author: AMY, Judge.

text:
    STATE of Louisiana v. Jared J. TIDWELL.
    No. 14-122.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Charles G. Gravel, Gravel, Cespiva, & Wilkerson, Alexandria, LA, for Defendant/Appellant Jared J. Tidwell.
    John R. Flynn, Jr., Alexandria, LA, for Defendant/Appellant Jared J. Tidwell.

      Charles A. Riddle, III, District Attorney, Michael F. Kelly, Assistant District Attorney, Marksville, LA, for Appellee State of Louisiana.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

I,The defendant was convicted of obstruction of justice. The trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion for new trial. Thereafter, the State instituted habitual offender proceedings. The defendant was adjudicated a third felony offender, and the trial court imposed sentence of thirty years at hard labor without the benefit of probation or suspension of sentence. The defendant appeals his conviction. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that after the murder of Christina Mayeaux, the defendant, Jared J. Tidwell, assisted the perpetrators in tampering with evidence and attempting to cover up the crime scene, most notably by pouring bleach over the victim’s body and the surrounding area. The defendant was subsequently indicted for obstruction of justice, a violation of La.R.S. 14:130.1. A jury unanimously found the defendant guilty of that charge.

Thereafter, the trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion for new trial. Alleging that the defendant was a fourth felony offender, the State instituted habitual offender proceedings. However, the State filed a motion seeking to reduce the habitual offender bill to third felony offender status. The trial court granted that motion and sentenced the defendant to thirty years at hard labor without the benefit of probation or suspension of sentence.

| ¿The defendant appeals, asserting that the evidence is insufficient to support his conviction.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After performing such a review, this court notes no such errors.

Sufficiency of the Evidence

The defendant’s sole assignment of error concerns the sufficiency of the evidence for his conviction for obstruction of justice, a violation of La.R.S. 14:130.1. The defendant frames this assignment within the context of the trial court’s denial of his motion for post-verdict judgment of acquittal and motion for new trial. However, we note that a motion for post-verdict judgment of acquittal tests the sufficiency of the evidence. See State v. Westmoreland, 10-1408 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, writ denied, 11-1660 (La.1/20/12), 78 So.3d 140.

The review of insufficiency of the evidence claims is well-settled. In State v. Dorsey, 10-216, pp. 42-43 (La.9/7/11), 74 So.3d 603, 633, cert. denied, — U.S. -, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012), the supreme court stated:

When an appellate court reviews a sufficiency of the evidence claim, the standard applied is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). This standard has been codified by our legislature in Louisiana Code of Criminal Procedure article 821, which provides: “A post verdict judgment of acquittal shall be granted only if the court finds |sthat the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” When circumstantial evidence is used to prove the commission of the offense, Louisiana Revised Statute § 15:438 mandates, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Neal, 00-0674, p. 9 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. State v. Cummings, 95-1377, p. 4 (La.2/28/96); 668 So.2d 1132, 1134. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. It is not the function of the appellate court to assess credibility or reweigh the evidence. Id.

The determination of the weight of the evidence is question of fact which rests solely with the trier of fact, and the trier of fact “may accept or reject, in whole or in part, the testimony of any witnesses.” State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285.

Additionally, where the identity of the perpetrator is the key issue, not whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). “[A]s appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency[,]” a single witness’s testimony, “[i]n the absence of internal contradiction or irreconcilable conflict with physical evidence,” if accepted by the fact finder, “is sufficient support for a requisite factual conclusion.” Dorsey, 74 So.3d at 634.

The defendant was charged with obstruction of justice, a violation of La.R.S. 14:130.1. That statute, provides, in pertinent part, that:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding | ¿which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any such evidence.

La.R.S. 14:180.1(A). See also State v. Jones, 07-1052 (La.6/3/08), 983 So.2d 95.

In this case, the State’s theory of the case was that the victim, Christina May-eaux, was killed on Saturday, December 3, 2011. According to the State, the primary suspects in Ms. Mayeaux’s murder were Trampus Bernard (the defendant’s uncle), Chad Tidwell (the defendant’s cousin), and their girlfriends, Heather Foster and Kayla Guillot. The State contended that the four primary suspects, along with the defendant, attempted to tamper with the crime scene by pouring bleach on Ms. Mayeaux’s body and the surrounding area.

Mary Normand testified about the discovery of the body of Ms. Mayeaux, who was her daughter. Ms. Mayeaux lived next door to Ms. Normand. According to Ms. Normand’s testimony, Ms. Mayeaux was addicted to pain medication. Ms. Normand stated that, on Friday, December 2, 2011, Ms. Mayeaux had gone to New Orleans in order to obtain pain medication. Ms. Normand spoke with Ms. Mayeaux on the phone after she returned from New Orleans. However, Ms. Normand was unable to reach Ms. Mayeaux on Saturday, December 3, and, when she had not heard from Ms. Mayeaux by Monday, December 5, she had two of her grandsons knock down Ms. Mayeaux’s door. Ms. Mayeaux’s body was found in the bedroom. Ms. Normand testified that at Ms. Mayeaux’s funeral, because [ ^bleach had been poured on her body, her features were distorted and her normally dark hair had turned orange.

Michael Lemoine also testified. According to Mr. Lemoine, his wife’s mother and Jared’s father are married, thus making Mr. Lemoine the defendant’s brother-in-law through marriage. Mr. Lemoine testified that the defendant confessed his involvement in the cover up of Ms. May-eaux’s murder while he and the defendant were talking at a Father’s Day gathering and later during a conversation in Mr. Lemoine’s driveway.

According to Mr. Lemoine, he and the defendant were talking about Trampus Bernard and Chad Tidwell. Mr. Lemoine testified that his understanding was that Trampus Bernard, Chad Tidwell, Heather Rivas (otherwise referred to as Foster), and Kayla Guillot went to Ms. Mayeaux’s house to buy pills and that “whatever they was doing didn’t work out right” and “it just got out of hand.” Mr. Lemoine testified that the defendant indicated that Ms. Mayeaux was hit in the head with a golf club and stabbed with a pocket knife. However, Mr. Lemoine did not know which of the perpetrators used the knife or the golf club.

Mr. Lemoine further testified that, because Ms. Mayeaux had scratched and bitten the perpetrators, “they” put bleach on her fingernails and throughout the house. In response to the State’s question asking how the defendant became involved, Mr. Lemoine stated that one of the perpetrators called the defendant and that he believed it was Chad Tidwell. Mr. Lemoine’s understanding was that “they” went back to the crime scene several times. Mr. Lemoine speculated that “they” had keys to the crime scene. On cross examination, during a discussion regarding Mr. Lem-oine’s use of “they,” the following colloquy occurred:

1 ñ[Mr. Larvadain, the defendant’s attorney]: O.K. Now did Jared tell you, looking at your statement, did Jared tell you he went in that house or they went in? [Mr. Lemoine]: They went in but from my understanding he went in too.

Mr. Lemoine admitted that he had a conviction for domestic violence. However, he maintained that he had not received anything in exchange for his testimony from the State. Further, Mr. Lemoine admitted that he had used multiple illegal drugs in the past, but stated that he currently does not use any illegal drugs. In response to the defendant’s questioning, Mr. Lemoine also maintained that he did not have any vendetta against the defendant and denied that he would obtain some items from his father-in-law if the defendant was not around.

In addition to these witnesses, several officers from the Avoyelles Parish Sheriffs Office testified. Detective Roland Patterson testified that he took photos of the crime scene. According to Detective Patterson, there was a slight odor of bleach and he could see liquid around Ms. May-eaux’s body and in the room itself. Upon further examination, Detective Patterson discovered that the body had been doused in bleach, and the bed had been soaked such that the bleach had gone through the bedspread onto the bedlinens. According to Detective Patterson, the murder occurred likely in the afternoon or early evening on Saturday, December 3, 2011, and the cleanup likely occurred on Sunday, December 4, 2011. Detective Patterson conceded that he had obtained neither DNA nor fingerprints which would indicate that the defendant was in the house.

Detective Joseph Whitmore testified that Chad Tidwell, Trampus Bernard, Heather Foster, and Kayla Guillot were the prime suspects in Ms. Mayeaux’s murder. According to Detective Whitmore, their investigation revealed that those 17four were in and around the crime scene at the time of the murder. The defendant’s name also came up during their investigation as being in the area around Ms. Mayeaux’s house and directly behind it on Saturday, December 3, and Sunday, December 4. Detective Whitmore stated that, although he did not know exactly when Ms. Mayeaux was killed, her loved ones lost contact with her on the evening of Saturday, December 3.

Further, Detective Whitmore testified that he interviewed Mr. Lemoine and that he was “surprised” by Mr. Lemoine’s information because some of the information were details that only someone who was at the crime scene or had spoken to someone who was at the crime scene would have known. Specifically, Detective Whitmore pointed to the information that Ms. May-eaux had been hit in the head with a golf club, that some keys to the house were found, and that numerous trips were made to clean up the crime scene. According to Detective Whitmore, Chad Tidwell and Heather Foster had been staying at Carson Bordelon’s house, which was directly behind Ms. Mayeaux’s house. Investigators seized a golf club from Mr. Bordelon’s house that had Chad Tidwell’s DNA on it.

Detective Whitmore conceded that there were no witnesses who saw the defendant at Ms. Mayeaux’s house and that he had no scientific evidence that showed that the defendant was ever in Ms. Mayeaux’s house. However, Detective Whitmore pointed to phone calls made between the defendant and the primary suspects in Ms. Mayeaux’s murder, including one that lasted for more than 48 minutes.

In addition to Detectives Whitmore and Patterson, Detective Jeremiah Honea testified, primarily about his involvement in analyzing the cell phone records of persons relevant to the investigation into Ms. May-eaux’s murder. | ^Detective Honea testified that he spoke with the defendant about some telephone calls and that the defendant initially told him that there were no phone calls between him and anyone pertinent to the investigation. However, when he spoke with the defendant again, the defendant told him that he spoke with Chad Tidwell on Sunday, December 4, during the Saints game. Detective Honea observed that the Saints game on December 4 started at noon. Further, according to Detective Honea, the defendant denied going to Ms. Mayeaux’s house.

Detective Honea testified about a series of text messages and phone calls between the defendant’s phone and phones belonging to Trampus Bernard, Chad Tidwell, Heather Foster, and Carson Bordelon. On Saturday, December 8, he noted the following interactions:

• 8:15 p.m. — two phone calls from the defendant to Trampus Bernard with a duration of zero seconds;
• 8:15 p.m. — two text messages from Trampus Bernard to the defendant;
• 9:48 p.m. — text message from the defendant to Trampus Bernard.

On Sunday, December 4, Detective Honea noted the following interactions:

• 1:41 a.m. — phone call from Carson Bordelon to the defendant with a duration of 48 minutes and 13 seconds;
• 7:19 a.m. — two phone calls from Heather Foster to the defendant with a duration of zero seconds;
• 1:43 p.m. — phone call from Heather Foster to the defendant with a duration of 28 seconds;
• 3:41 p.m. — two phone calls from the defendant to Heather Foster, one with a duration of zero seconds and one with a duration of five seconds;
|fl* 4:28 p.m. — text message from the defendant to Heather Foster; and
• 8:18 p.m. — phone call from Heather Foster to the defendant with a duration of two minutes and 50 seconds.

According to Detective Honea, it is not possible to retrieve text messages. Further, it is not possible to know who is using the phone, just which phone number is being used. Additionally, Detective Honea testified that there were no phone records that established the defendant’s location near the Mayeaux house. Detective Ho-nea testified that he had no direct proof that the defendant was in Ms. Mayeaux’s house the day she was killed. However, Detective Honea testified that Mr. Borde-lon saw the defendant at Mr. Bordelon’s house on Saturday evening into Sunday morning; that one of Ms. Mayeaux’s neighbors saw people moving around in Ms. Mayeaux’s house; and that she saw a truck which matched the description of a truck that the defendant was driving at that time.

Detective Honea was also questioned about whether the murder occurred on December 5, and he responded that the police believed that the murder occurred on Saturday, December 3.

The State also offered the testimony of two expert witnesses, Dr. Christopher Tape and Jerry Dubois. Dr. Tape, the forensic pathologist, testified as to the autopsy of Ms. Mayeaux. After reviewing the multiple injuries suffered by Ms. May-eaux, Dr. Tape stated that his conclusion was that Ms. Mayeaux died as a result of sharp force injuries to the neck and body. Dr. Tape also testified that the maximum depth of the knife used in the attack was approximately two and a half inches and would be consistent with a pocket knife. Further, Dr. Tape noted a blunt force injury to Ms. Mayeaux’s forehead that would be consistent with a golf |inclub. Finally, Dr. Tape testified that Ms. May-eaux had multiple defensive wounds on her hands and arms.

Jerry Dubois, an employee of the Louisiana State Police, testified that bleach and other strong chemicals are very detrimental to DNA profiles. Mr. Dubois testified that DNA was obtained from some of the samples collected at the crime scene, but that there was no DNA from the defendant. According to Mr. Dubois’ testimony, a few of the samples contained insufficient DNA for testing, but he could not say whether the reason for that was that the samples were bleached. Further, Mr. Du-bois testified that he could not presumptively say that the defendant was at the crime scene.

The defendant offered the testimony of three witnesses. Jackie Tidwell (the defendant’s sister) and Clara Coussan both testified about the Father’s Day gathering at which the defendant purportedly discussed Ms. Mayeaux’s murder and the coverup with Mr. Lemoine. Both women testified that they never heard any such conversation during the gathering and that they would have remembered such a thing. Further, they both testified that everyone “pretty much” stayed together during the gathering. However, both women testified that they arrived at the gathering in midday and left just before dark, and that they were not with the defendant and Mr. Lemoine every minute of that time. Jackie Tidwell conceded that she was “mingling” and it was impossible to know everything that was discussed, and Ms. Coussan conceded that it was possible that a conversation occurred without her knowledge.

Janice Tidwell, the defendant’s mother, also testified. According to her testimony, the defendant was living with her at the time of Ms. Mayeaux’s murder. She testified that she learned about the murder in the newspaper and that the ^defendant “looked surprised” when she told him about it. Further, Ms. Tidwell testified that the defendant had a 2006 heavy duty pickup truck at that time.

Our review of the evidence, viewed in the light most favorable to the State, indicates that the State offered sufficient evidence to support a conclusion that the defendant committed the crime of obstruction of justice. The State offered evidence that Ms. Mayeaux was killed as a result of multiple sharp force injuries to the head and neck sometime in the afternoon or evening of Saturday, December 3, 2011, and that the primary suspects in her death are Chad Tidwell, Trampus Bernard, Heather Foster, and Kayla Guillot. There was testimony that, during the weekend of December 3-4, Chad Tidwell and Heather Foster were at Carson Bordelon’s house, which was directly behind Ms. Mayeaux. There was testimony that witnesses saw people moving around in Ms. Mayeaux’s house on the evening of Saturday, December 3, and into the morning of Sunday, December 4. The State also offered evidence that indicated that, when Ms. May-eaux was found, her body and the surrounding area had been doused in bleach. There was testimony that the bleach damaged Ms. Mayeaux’s hair and skin. Further, according to the testimony of Mr. Dubois, bleach would damage any DNA present at the crime scene.

In order to prove that the defendant committed the crime of obstruction of justice, the State had to prove that the obstruction was committed with the knowledge that the act “has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding!)]” La. R.S. 14:130.1(A). “[T]he knowledge requirement is met if the perpetrator merely knows that an act ‘reasonably may1 affect a criminal proceeding.” Jones, 983 So.2d at 101. The evidence offered by the State, if accepted by the jury, was sufficient to prove that the events which lead to the death of Ms. Mayeaux would potentially be the subject 112of a future criminal proceeding and that the perpetrator knew that the act of pouring bleach on the crime scene might reasonably affect that proceeding.

Further, this evidence, if accepted by the jury, satisfies both the second and third requirements that the State prove that the perpetrator tampered with evidence “with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding!,]” and that the tampering be, as relevant to this case, by the “intentional alteration, movement, removal, or addition of any object or substance ... [at] the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by ... law enforcement officers!.]” La.R.S. 14:130.1(A)(1). It is sufficient that the perpetrator have the specific intent to distort the results of any investigation, not that it actually do so. Jones, 983 So.2d 95.

The defendant’s argument is not that the crime scene was not intentionally tampered with, but that he was not a participant in the tampering. However, the evidence, when viewed in the light most favorable to the State, was sufficient such that a reasonable juror could conclude beyond a reasonable doubt that the defendant committed the crime of obstruction of justice by participating in tampering with the crime scene.

The State’s primary witness in this regard was Mr. Lemoine. If accepted by the jury, Mr. Lemoine’s testimony was sufficient to support a conclusion that the defendant confessed to his involvement in tampering with the crime scene by pouring bleach on Ms. Mayeaux’s body and the surrounding area. Mr. Lemoine’s testimony also indicated that one of the reasons that the perpetrators poured bleach on the crime scene was to alter or destroy any evidence that was a result of Ms. 113Mayeaux scratching her attacker. Although the defendant argues that, in testifying about his understanding of what happened during the murder and the cleanup, Mr. Lemoine did not distinguish between “they” (the perpetrators) and “they” (the perpetrators and the defendant), Mr. Lem-oine specifically testified that it was his understanding that the defendant went into Ms. Mayeaux’s house. Further, Mr. Lemoine testified as to several details which Detective Whitmore indicated were things that would be known only to someone who was at the crime scene or had been told about by someone who was at the crime scene.

Further, the State offered evidence which, if credited by the jury, corroborated Mr. Lemoine’s testimony. Detective Ho-nea testified that, around the time period of Ms. Mayeaux’s murder, the defendant received multiple phone calls and text messages from phone numbers associated with either the primary suspects or Mr. Borde-lon. Further, when initially questioned about his contacts with the primary suspects, the defendant told the police there were no phone calls between him and any persons of interest, and later admitted to only one phone call during that time period. The defendant argues that he communicated with those persons on a regular basis and that, therefore, the phone calls could have been about matters completely unrelated to any criminal activity. However, it was within the jury’s province to make reasonable inferences that the timing of the phone calls related to criminal activity that occurred within that time period, especially given the defendant’s later actions in denying that any such contact took place.

Additionally, the State offered evidence which, if accepted by the jury, would indicate that the defendant was seen near the scene of the crime, more specifically at Mr. Bordelon’s house, on the weekend of December 3-4, and that a 1struck matching the description of a vehicle the defendant was using was seen outside Ms. Mayeaux’s house during the time when the cleanup occurred.

Here, the jury clearly credited Mr. Lem-oine’s testimony that the defendant participated in tampering with the crime scene. It was the jury’s prerogative to make credibility determinations and the appellate court should defer to the credibility and evidentiary determinations made by the jury. Accordingly, viewed in the light most favorable to the State, we find that a rational juror could have concluded beyond a reasonable doubt that the defendant committed the crime of obstruction of justice.

The defendant also argues, in his reply brief, that Ms. Mayeaux’s time of death in the autopsy report is inconsistent with the timeline advanced by the State. The report lists the date of death as December 4, 2011, and the time of death as undetermined. However, the State’s witnesses testified that they believed that Ms. May-eaux died in the afternoon or evening of December 3. Our review of the record indicates that, although the autopsy report was entered into evidence, this issue was not argued by counsel at the defendant’s trial. However, we find that this discrepancy does not render the jury’s decision irrational. The record indicates that Ms. Mayeaux’s loved ones lost contact with her on December 3, but she was not discovered until December 5. With regard to the phone contacts between the defendant and the primary suspects in Ms. Mayeaux’s murder, the majority of the contacts occurred on December 4, including one lengthy call at 1:41 a.m. The State argued that the cover up occurred on December 4. Given this evidence, any error with regard to the date and time of death was not so significant as to prevent a reasonable juror from finding that the State proved all the elements of the crime of obstruction of justice beyond a reasonable doubt.

| ^Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Jared J. Tidwell, for obstruction of justice is affirmed.

AFFIRMED.

      . Ms. Mayeaux’s name is occasionally spelled "Christine” in the record. We use the spelling given by her mother.

      . The defendant has appealed his sentence pursuant to his habitual offender determination in State v. Jared J. Tidwell, 14-123 (La.App. 3 Cir.6/4/14), 140 So.3d 894, 2014 WL 2515651.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Wendell PRICE.
    No. 14-127.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Frederick L. Welter, Assistant District Attorney, Lafayette, LA, for Plaintiff-Appellee, State of Louisiana.
    Harold D. Register, Jr., Attorney at Law, Lafayette, LA, for Defendant-Appellant, Wendell Price.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| .FACTS

On April 2, 2012, Officer Joseph Cormier of the Rayne Police Department was working a speed enforcement detail on the north side of the railroad tracks in Rayne when a vehicle approached him. “[T]he driver was very frantic, stating that her boyfriend had just been brutally beaten by three black males, and they had a tan dog with them.” The passenger had a face full of blood with a “bent, possibly broken” nose, and he appeared to be in a lot of pain. The driver and passenger reported the incident occurred on Live Oak. One of the three black men was wearing a red shirt, and another was a large man wearing a white shirt. Officer Cormier sent them to the police department and dispatched an ambulance to meet them. He then began a patrol to look for the suspects.

On Live Oak, Officer Cormier first saw a black man wearing a red shirt. He spoke to the man, obtained his personal information, and “told him to be on his way.” He looked down the street and saw a tan dog in the roadway. He followed it, and it went into the defendant’s yard. The defendant, “a large, black male wearing a white t-shirt,” was standing in the driveway.

The tan dog, a Chinese Char-Pei and Rottweiler mix, and two other dogs, a Chinese Char-Pei and a Rottweiler, were in the yard. When Officer Cormier asked the defendant to put his dogs away, the defendant refused. By then, Officer Joseph Credeur had arrived, but he remained inside his vehicle. An altercation ensued in which Officer Cormier hit the defendant in the head with his baton. Ultimately, Officer Credeur ended the altercation by using his Taser on the defendant, who was then arrested.

|2The defendant, Wendell Price, was charged with resisting an officer with force, a violation of La.R.S. 14:108.2, and battery of a police officer, a violation of La.R.S. 14:34.2, on August 16, 2012. The trial court severed the counts, and a jury found the defendant guilty of the lesser charge of resisting an officer, a violation of La.R.S. 14:108, on October 23, 2013. The trial court sentenced the defendant to serve a suspended sentence of six months in the parish jail. The trial court also placed the defendant on six months of misdemeanor probation with the special conditions of paying a $250.00 fine and $227.50 in court costs and completing an anger management program.

The defendant now appeals his conviction.

ASSIGNMENTS OF ERROR

1. The trial court erred in its determination that Officer Joseph Cormier and Officer Joseph Credeur provided credible testimony although there were several blaring [sic] internal contradictions and irreconcilable conflicts within their respective testimonies.
2. The trial court erred in failing to find that the State proved beyond a reasonable doubt that Wendell Price was resisting an unlawful arrest when Officer Joseph Cormier began to violently strike Price to effect the unlawful arrest.
3. The trial court erred in failing to consider Rayne Ordinance Sec. 18-2 when Wendell Price’s dogs were in his yard on private property.
4. The trial court erred in failing to consider that there was no probable cause to arrest Wendell Price when Price was merely outside speaking on the phone watching his well-trained dogs urinate and thus became the subject of a violent tirade by Officer Joseph Cormier.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find one error patent.

lsThe record before this court does not indicate that the trial court advised the defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

The defendant’s first two assignments of error allege the evidence was insufficient to convict him. First, the defendant argues the trial court erred in its determination that Officers Cormier and Credeur provided credible testimony in light of “several blaring [sic] internal contradictions and irreconcilable conflicts within their respective testimonies [sic] [.]” Next, the defendant contends the trial court erred in failing to find he was resisting an unlawful arrest when Officer Cormier “began to violently strike [him] to effect the unlawful arrestf.]”

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120, 134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in eases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (third alteration in original).

| ^Officer Cormier testified he pulled into the defendant’s driveway and asked him to put the three large dogs away for safety purposes so he could talk to him. The defendant first walked toward his house but then “came back and started cursing, saying he’s not putting his dogs away.” Officer Cormier told the defendant he would place him under arrest if he did not put his dogs away. The defendant refused, saying the dogs “were just using the restroom.”

When Officer Cormier told the defendant he had “one last chance” to put the dogs away or be placed under arrest,” the defendant responded, “I’m not putting my dogs away. Get the F off my property. You don’t belong here, and I’m not being arrested.” Officer Cormier told the defendant he was placing him under arrest. When he “went to grab' [the defendant’s] hand and put a cuff on it, he pulled back and hit me in the jaw with his left hand.” Officer Cormier tried again, and he and the defendant “wrestled for a second.” The defendant then put Officer Cormier in “a chokehold, a C-grip chokehold.”

At that point, Officer Cormier pulled out an expandable baton and pushed the defendant away. The defendant ran toward his house with Officer Cormier in pursuit. They fought some, and the defendant got Officer Cormier into another C-grip, which he described as “when you grab someone by the neck ... and you’re squeezing, and you’re trying to choke them ... There’s a lot of things that can be damaged in here which would cause a lot of turmoil and suffocation.” The defendant and Officer Cormier were pinned between the house and the car, where Officer Cormier had no room to push the defendant back. He continuously struck the defendant. Officer Cormier testified he “was in fear of [his] life.” He said he considered pulling his weapon and shooting the defendant “so that at least [he] could survive and go home,” but he refrained. He knew he would pass out, be | fiseverely hurt, or possibly die if he could not get out of the chokehold. Officer Credeur then used a Taser on the defendant that released the hold he had on Officer Cormier. The officers cuffed the defendant, escorted him to their vehicle, and transported him.

Officer Cormier was “investigating a crime, a very serious, felony, heinous crime where three persons committed a second degree battery, and [the defendant] was a possible suspect.” He believed the defendant could have been arrested simply for having one of his dogs in the street without a leash. Officer Cormier at first sought only to gather information, but when the defendant refused his lawful commands, he “commenced to placing him under arrest.” At the point the defendant struck Officer Cormier, he committed battery on an officer, creating another reason to arrest him.

Officer Cormier did not seek medical attention or take any pictures of his face after the incident. He said he did not know if the defendant was ever questioned about the original crime that led him to the residence.

Officer Cormier never told the defendant he was a suspect in a crime; he explained, however, this was because he never had the opportunity to talk to the defendant as he intended because the defendant refused to put up the dogs. The dogs were “still running around and ... leaving the yard and being on the road” when the defendant was arrested and transported to the police station.

Officer Credeur testified that he received Officer Cormier’s call on April 2, 2012, that a severely injured subject had approached him. Officer Cormier reported the incident “possibly occurred around the Live Oak area with three males with a large dog with them.” One wore a red shirt, and one wore a white shirt. 17Officer Credeur and Sergeant Chris Cormier went to the area and began canvassing it.

When Officer Credeur heard Officer Cormier advise over the radio he was going to speak with a suspect at the corner of Live Oak and Perrodin, he went to meet him and parked in the driveway behind him. Officer Cormier approached Officer Credeur’s vehicle and said he was going to advise the defendant to put up his dogs or face arrest. The dogs were in the defendant’s yard when Officer Credeur arrived. Officer Credeur saw the defendant walking toward the residence.

Officer Credeur testified that he stayed inside his vehicle and began checking his phone for information about another case from earlier that day. He looked up “when [he] heard a commotion occur.” He saw Officer Cormier and the defendant “underneath the carport area next to the rear — the back door and the car.” Although they were “tussling,” they were not throwing punches. Officer Credeur approached to break up the conflict and saw the defendant “had [Officer Cormier] in a C-grip chokehold with the left arm.” Officer Cormier’s feet were two to three inches off the ground. Officer Credeur said he could see daylight between Officer Cormier’s shoes and the driveway. Officer Credeur was unable to break up the conflict, and Officer Cormier was swinging his baton “to try to break the grip any way possible.” Officer Credeur “pulled [his] X26 Taser” and used the drive-stun on the defendant’s armpit, which tases only the immediate area, not the entire body. The defendant swung his arm, and the Taser hit him again. Officer Credeur continued to tell the defendant to stop. When he finally did, Officer Credeur told the defendant Officer Cormier was going to place him under arrest.

|8By the time Officer Credeur used the Taser, Officer Cormier’s “swinging was slowing down as if he was losing breath as in strength.” He said he was concerned for Officer Cormier’s life. He heard none of the conversation between Officer Cormier and the defendant, and he did not see the defendant hit Officer Cormier. In the meantime, Kyestle Thomas, the mother of two of the defendant’s children, had come outside and was holding a baby. During the incident, Officer Credeur had to move her out of the way to get to Officer Cormier and the defendant. Although Officer Credeur noticed people standing across the street from the defendant’s house, he testified they would not have been able to see the corner of the carport and the door to the defendant’s residence where the incident occurred.

The defendant and his witnesses told a different version of the incident at trial. Kaiia Archangel said she was walking to her mother’s house across the street from the defendant’s house on the day of the incident. She saw dogs running in the defendant’s yard when a Rayne police vehicle pulled up, and the officer hollered, “Put the f_in'g dog up.” The defendant asked, “What’s the problem,” and the officer said they were looking for a dog. Officer Cormier told the defendant, “Sir, I said for you to put the f-ing dogs up. Put the dogs up now.” He then told the defendant he was going to arrest him if he did not put the dogs away. Ms. Archangel saw the officer try to grab the defendant and “hit him with the stick” when the defendant tried to get away. Ms. Archangel admitted she may not have heard the first exchange between Officer Cormier and the defendant. She never saw the defendant take a swing at Officer Cormier or make any aggressive moves toward him, and she never saw the defendant “put a headlock” on him. Ms. [¡Archangel specifically recalled seeing the defendant’s father and brother at the scene. They did not testify at trial.

Ms. Archangel testified the first statement she gave police on April 3, 2012, “was screwed up from jump.” Even though she signed the statement, she “didn’t really read it” and “really didn’t understand it.” She told her son “what [she] wanted to be said. He rewrote her statement, she “typed it up,” and she had it notarized on April 27, 2012, because the defendant “wanted it be right[.]” The main difference between the two statements was the language Ms. Archangel said Officer Cor-mier used. The first statement showed him politely saying “[s]ir, put [t]he dogs up,” while the second statement said the first thing he said to the defendant was “[p]ut your f_ing dogs up” when he arrived.

When Ms, Archangel testified before the grand jury, she testified Officer Cormier might have asked the defendant to put his dogs up “in a nice way,” when he first approached him. The defendant “probably said, ‘No,’ and he probably p_ed [Officer Cormier] off.” At trial, she admitted she was “not remembering everything ...1 that probably happened that day.” However, she swore her second statement was the truth. When asked whether Officer Cormier could have been very courteous and professional in his first exchange with the defendant, Ms. Archangel responded, “I can’t answer that. I don’t know that.” She then admitted she “probably didn’t” hear the first exchange.

Ms. Archangel also gave contradictory and confusing testimony about her reading ability. Her second statement, signed before the notary, stated she could not read. She testified she lacked the ability to read the first statement she gave on April 3, 2012. However, she testified she attended school through the eleventh grade. She testified she also attended classes to become a certified nursing |inassistant for “maybe a month”; sometimes she studied, sometimes she did not. She later worked at Wendy’s as a cashier, operating a computer and making change. Ms. Archangel completed her own applications when she applied for jobs. She reviewed the first statement and determined “it was screwed up. It wasn’t right.” Her son then rewrote the statement, and she “typed it up.”

The tasks that Ms. Archangel said she accomplished would be difficult, if not impossible, if she could not read. Her testimony regarding her reading ability, which statement was correct, and what she actually saw and heard was confusing and difficult to understand. The jury could have reasonably determined her testimony was not credible or reliable.

Amanda Meche testified she was speaking to the defendant on the telephone on April 2, 2012, when he told her the police had arrived. She heard the officer “yelling obscenities at him and telling him to put his mother f-ing dogs up.” She said the officer continued to curse at the defendant as the defendant asked what he did wrong and if he could be taken to jail for letting his dog use the bathroom on private property. For “maybe two or three minutes[,]” she “could hear just beating and yelling and cursing on the other end from [the defendant] yelling and saying ‘What did I do?’ And [she] heard the officer just ke[ep] cursing at him and never once told him what he did wrong at all.” She “just listened until the phone hung up at him beating him ... about five minutes total.” She said she heard the defendant scream for help as he was being beaten, and she could tell who was hitting and who was being hit. She maintained the defendant never swore at the officer.

Ms. Meche further testified she heard the defendant “hollering, ‘Ou, ou, ou,’ ” and insisted she could tell “who’s hitting who.” She heard the noise the phone made when it fell to the ground, and she “heard the licks” being hit. A ^reasonable jury could determine Ms. Meche could not conclude which individual made which sounds under these circumstances.

Kyestle Thomas also testified. She is the mother of the defendant’s two children. She testified she was “in the kitchen with the kids” when she heard loud noises outside. She heard someone yell “[p]ut your f_ing dogs up[J” When she went outside, she heard the defendant ask why, and the officer repeated himself, saying he would arrest the defendant if he did not put the dogs away. Officer Cormier began hitting the defendant “with his black police stick.” When the defendant tried to get away and go in the house, Officer Cormier followed him under the carport. The defendant “tried to block himself from getting hit and grabbed [Officer Cormier’s] arm.” Officer Cormier “threw [the defendant] on the car, started hitting him.” Officer Credeur arrived and “Tased [the defendant] in the chest, and he went down on the ground” while the defendant leaned against the car with Officer Cormier “on him, hitting him” over the head with the black baton. Ms. Thomas said she never saw the defendant swing at the officer or put him in a headlock. Ms. Thomas never knew the defendant’s dogs to leave the yard.

The defendant testified he was on the phone with Ms. Meche when he let his dogs out of their kennel. He saw Officers Cormier and Credeur pass, and Officer Cormier waved at him. They went down the street, talked to someone for about five minutes, “[t]hen all of a sudden,” one officer came back down his street and pulled into his driveway.

The officer, who the defendant identified at trial as Officer Joseph Cormier, rolled down his window and said, “Put your f_ing dogs in the cage.” The defendant questioned what he had done wrong, and the officer said, “Put your f_ing dogs in the cage or I’m going to place you under arrest.” The defendant | ^pointed out the “No Trespassing” signs posted on his home and asked if the officer was going to arrest him for not putting his dogs up. The officer took out his baton and started striking the defendant. The defendant said he grabbed the officer’s hand, and the officer “just start[ed] pounding on [his] head,” and the defendant broke away from him. He tried to go in the house, but the officer grabbed him from the doorway and threw him on the top of his car in the carport.

The defendant leaned back on the car with the officer choking him. The defendant “grabbed him tight,” and the officer “got his baton and just started banging [him] on [his] head and banging [him] on [his] head.” The defendant then felt a shock, he started shaking, and he was on the ground. Officer Cormier started asking him, “Where’s the dope? ... Where’s the drugs?” Officers Cormier and Cred-eur would not allow the defendant to put his dogs back in their kennel; “they just threw [him] in the car.” He said he was never told he might be a suspect in a crime. He denied ever having Officer Cormier in a chokehold. Even though other witnesses testified in detail about the comments they heard from the officers and the defendant, no one other than the defendant testified he/she heard the officers ask the defendant anything concerning drugs.

The three dogs were a Rottweiler, a Chinese Shar-Pei, and a brown Chinese Shar-Pei and Rottweiler mix. The defendant said he trained them to stay within the boundaries of his property, and they have never strayed from it. He testified they had never in their lives been on the street.

Police charged the defendant with “dogs at large, resisting arrest violently with force, and battery on a police officer.” The defendant testified his refusal to put away his dogs led to the incident. He said he was never arraigned on the charge related to his refusal to put his dogs up, and he thought it “got dropped.”

| 13The defendant complains about perceived contradictions between the testimony of Officer Cormier and Officer Credeur. Officer Cormier did not mention being lifted off the ground while the defendant had a chokehold on him. Officer Credeur did not mention a suspect in a white shirt or Officer Cormier being lifted off his feet in his police report, but he testified to that at trial. He did not take a statement from Ms. Thomas, who was close to the altercation, and he did not see the defendant’s dogs in the street. As Officer Credeur explained, “Not all officers on the scene have to see the same crime committed ... for it to be an arrestable offense or a citation issued.”

Further, the defendant questions Officer Credeur’s memory of the incident. Officer Credeur’s report stated he heard Officer Cormier place the defendant under arrest, but at trial, he testified he heard nothing that took place between Officer Cormier and the defendant. Officer Credeur felt his memory of the event was better at trial than at the time he wrote the report. He testified he “had to rush” the report because his supervisor wanted it before he left for the day, and it was “done quickly, because at the time [he] was already officially off of work.”

“Resisting an officer is the intentional interference with, opposition or resistance to ... a ... lawful detention ... when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.” La.R.S. 14:108(A). “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.Code Crim.P. art. 215.1(A). A “public place” may include private property when an individual, although located on private property, is in an area where he has no expectation of privacy, is visible |14to the public, or is “exposed to public view, speech, hearing, and touch[.]” State v. Palmer, 09-44 (La.7/1/09), 14 So.3d 304, 309 n. 2 (citing Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924)).

In State v. Kinard, 12-446 (La.App. 5 Cir. 11/27/12), 105 So.3d 974, writ denied, 12-2745 (La.10/25/13), 124 So.3d 1090, the fifth circuit determined an officer was justified in placing a suspect in handcuffs after he approached the suspect’s vehicle for obstructing traffic, and a gun fell from the vehicle. The court noted the officer’s right “to stop and interrogate those reasonably suspected of engaging in criminal activity” as recognized by La.Code Crim.P. art. 215.1. Kinard, 105 So.3d at 978. Also, the fifth circuit noted an officer’s authorization “to take such steps as are reasonably necessary to protect his safety and to maintain the status quo[.]” Id. at 979.

Officer Cormier had learned of a brutal crime involving a black man wearing a white shirt with a tan dog just before he, according to his testimony, saw a tan dog in the street and traced it to a black man wearing a white t-shirt. Thus, he was lawfully allowed to detain the defendant, who was visible to the public albeit on private property, to determine whether he had committed the offense. Officer Cor-mier could lawfully take the step of asking the defendant to restrain potentially dangerous dogs to protect his safety. The defendant resisted that lawful detention when he refused to cooperate with Officer Cormier’s reasonable request. Officer Cormier was in uniform, and easily identifiable as a police officer. Accordingly, the testimony of Officers Cormier and Credeur establish all the elements of resisting an officer.

The testimony of the defendant’s other witnesses, however, contradicts the officers’ testimony. Based on the guilty verdict, the jury apparently accepted the 11fiofficers’ testimony and rejected the testimony of the conflicting witnesses. The jury made credibility determinations that this court will not set aside, and those determinations established sufficient evidence to convict the defendant. These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant argues the trial court erred in failing to consider the Rayne City Ordinance Sec. 18-2, when the defendant’s dogs were in his yard on private property. The issue of whether the dogs ever left the defendant’s yard is of no moment. Even if the dogs were on private property in compliance with the ordinance, the officers still saw a man in a public place who fit the description of someone who had just committed a crime. He even had a dog that matched the description of the dog with the suspect. Thus, the officers were authorized to question the defendant regardless of whether he was in compliance with the Rayne city ordinance pertaining to dogs.

ASSIGNMENT OF ERROR NUMBER FOUR

The defendant contends the trial court failed to consider whether the officers had probable cause to arrest him when he “was merely outside s[pea]king on the phone watching his well trained dogs urinate and thus became the subject of a violent tirade by Officer Joseph Cormier.” However, the defendant fit the description of a crime suspect. He refused to cooperate by putting his dogs away in the interest of officer safety when he was lawfully approached. He resisted a lawful detention by someone he knew to be a police officer. As discussed above, the officers had probable cause to arrest the defendant. This assignment of error lacks merit.

| ^CONCLUSION

The trial court is directed to inform the defendant of the provisions of La.Code Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that he received the notice. The defendant’s conviction is affirmed.

AFFIRMED.


author: PETERS, J.

text:
    Fred BULLIARD v. The CITY OF ST. MARTINVILLE, et al.
    No. 14-140.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Fred Bulliard.
    James D. “Buddy” Caldwell, Attorney General, Laura Putnam, Assistant Attorney General, Lafayette, LA, for Defendant/Appellee, State of Louisiana, through the Department of Transportation and Development.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

|,The plaintiff, Fred Bulliard, appeals a trial court judgment sustaining an exception of prescription in favor of the defendant, the State of Louisiana, through the Department of Transportation. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

On November 24, 2011, Fred Bulliard sustained serious personal injuries when the wheel of his bicycle struck an elevated drain culvert in St. Martinville, Louisiana. He subsequently brought a suit to recover damages for the injuries he sustained, naming the City of St. Martinville (City) and Louisiana Municipal Risk Management Agency Group (Louisiana Municipal Risk) as defendants. Thereafter, the City answered the petition denying liability, and Louisiana Municipal Risk responded by filing a peremptory exception of no cause of action.

On January 4, 2013, the City filed a motion for summary judgment wherein it asserted that the responsibility for the sidewalk on which the accident occurred lay with the State of Louisiana, because it was located within the highway right of way. Six days later, on January 10, 2013, Mr. Bulliard filed a supplemental and amending petition naming the State of Louisiana, through the Department of Transportation (DOTD), as an additional defendant. By a judgment dated April 16, 2013, the trial court dismissed the City and Louisiana Municipal as defendants in the litigation.

DOTD responded to Mr. Bulliard’s suit on May 21, 2013, by filing a peremptory exception of prescription. Following a hearing, the trial court granted DOTD’s exception and dismissed Mr. Bulliard’s suit. The trial court executed ajjwritten judgment to this effect on August 27, 2018, and, thereafter, Mr. Bulliard perfected this appeal. In his one assignment of error, Mr. Bulliard asserts that the trial court erred in granting DOTD’s prescription exception.

OPINION

In Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5 (La.App. 3 Cir. 4/6/11), 61 So.3d 826, 829-30, we reviewed the law pertaining to the exception of prescription:

The peremptory exception of prescription is provided for in La.Code Civ. P. art. 927(A)(1). When the exception of prescription is tried before the trial on the merits, “evidence may be introduced to support or controvert [the exception] when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 931.
When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). However, if prescription is evident on the face of the pleadings, as it is in the instant case, the burden shifts to the plaintiff to show the action has not prescribed. Id.; Younger v. Marshall Ind., Inc., 618 So.2d 866, 869 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).
Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.
If evidence is introduced, the trial court’s findings of fact are then subject to a manifest error analysis. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227. If no evidence is introduced, then the reviewing court simply determines whether the trial court’s finding was legally correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App. 3 Cir. 6/2/10), 39 So.3d 802.

At the hearing on the exception, DOTD introduced no evidence in support of its exception because prescription was evident on the face of the petition in that Mr. Bulliard failed to join it as a defendant within one year from the date of the accident giving rise to his claim for damages. Thus, the burden shifted to Mr. Bulliard to prove that his claim had not prescribed. In attempting to meet his burden of proof, Mr. Bulliard introduced three documents into evidence.

| aThe first document introduced is a January 3, 2012 letter from the City’s claims adjustor to Mr. Bulliard, which states:

Dear Mr. Bulliard,
After careful investigation and evaluation of the facts of the accident, we have determined that the City of St. Martin-ville was not liable for damages resulting from this accident.
However, the City of St. Martinville has a med-pay provision that allows payment up to $1,000.00 in related documented medicals. You may forward this information for our consideration to the above address.

The second document is an April 28, 2012 letter from Mr. Bulliard’s counsel to the claims adjustor, informing him of counsel’s representation, reiterating the facts of the accident, and requesting the exchange of any and all reports or information that the City might possess in relation to this accident. The third document is a September 6, 2012 letter from the same claims adjuster to Mr. Bulliard’s counsel which is basically a repeat of the January 3, 2012 letter.

Louisiana Code of Civil Procedure Article 1153 provides with regard to amended petitions, ‘When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” However, the jurisprudence has provided a caveat to the application of La.Code Civ.P. art. 1158.

In Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La.1983) (alteration in original), the supreme court stated:

In reviewing the instant case, we have found that the defendants have engaged in a smokescreen of legalistic maneuvering in order to dodge judicial resolution of the merits of the plaintiffs claim. As eloquently stated by the late Henry McMahon, one of the chief redactors of the new Louisiana Code of Civil Procedure, “The new code embodies procedural rules designed to permit the trial of a case to serve as [the] search for the truth, and to have [the] decision based on the substantive law applicable, rather than upon technical rules of | procedure.” Amendment of pleadings plays a central role in assuring that the pleadings are not an end in themselves, but only the means of properly presenting the case for full judicial resolution on the merits. See Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211 (1969); also McMahon, The Louisiana Code of Civil Procedure, 21 La. L.Rev. 1, 21 (1960); cf. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980) as discussed in n. 5, supra. The express purpose of arts. 934 and 1153 is to allow amendment of the petition to remove the grounds for the peremptory exception whenever possible and where dismissal of the suit should not be in the interests of justice. La. C.C.P. arts. 934, 1153, official revision comments; cf. Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488 (1936); Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 2nd Cir.1979).
In keeping with these precepts, we establish the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Mr. Bulliard argues that the trial court erred in granting the exception of prescription because his amended petition relates back to the date he filed his original petition or, in the alternative, because the doctrine of contra non valentem suspended the running of prescription against him.

In support of his first argument, Mr. Bulliard relies on a factually similar case, Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990), in which the ^supreme court held that the plaintiffs amended petition, naming the Baton Rouge Recreation and Park Commission (BREC) as defendant, related back to the filing date of his original petition against the City of Baton Rouge. Although BREC was a separate legal entity, the supreme court held that the relationship between the two was similar to the relationship between a parent corporation and its wholly separate subsidiary. After finding a very close relationship between BREC and the City of Baton Rouge and an absence of prejudice to BREC in maintaining a defense, the supreme court held that the notice of suit against the city served as notice of suit against BREC, thus satisfying the second and fourth criteria enunciated in Ray. It further found that the third criteria was satisfied because BREC either knew or should have known that but for the mistaken identity resulting from the connexity between the two, suit would properly have been instituted against it.

In this instance, Mr. Bulliard argues that this matter involves closely related governmental entities since St. Martin-ville is a political subdivision of the state. Although he admits that St. Martinville is technically a separate legal entity, as was BREC to the City of Baton Rouge, he argues that St. Martinville’s powers exist solely at the discretion of the state and, as an agency of the state, it is wholly subordinate to the state. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

We find no merit in this argument. In a traffic-death suit, the supreme court held that the plaintiffs amended petition against a parish road district and a city expressway commission did not relate back to his original petition against DOTD because the later named defendants were new and wholly unrelated to DOTD and because they received no notice within the one-year prescriptive period. Renfroe v. State ex rel. Dep’t of Transp. & Dev., 01-1646 (La.2/26/02), 809 So.2d 947. In so holding, the supreme court stated:

IfiAs we stated in Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040[, 1045] (La.1985):
The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim is made timely, and to protect him from stale claims and from the loss of non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period.

Id. at 951.

The supreme court further held that there were no “identity of interests” between DOTD and the later named defendants as the “relationship between DOTD and these other defendants has none of the components of a parent corporation and wholly owned subsidiary relationship as was found” in Findley. Id. at 952. It further held that the fourth criteria from Ray was not satisfied:

As we held in Findley, the Ray criteria seek “to prevent injustice to plaintiffs who mistakenly named an incorrect defendant, at least when there was no prejudice to the subsequently named correct defendant ... [;] the rule however [does] not apply when the amendment sought to name a new and unrelated defendant.” Findley, supra at 1170 (citing Giroir, supra); see also Newton v. Ouachita Parish School Bd., 624 So.2d 44 (La.App. 2 Cir.1993) (holding that where plaintiff timely sued the Ouachita Parish School Board (“OPSB”), mistakenly believing that OPSB supervised and controlled the school where the tortious incident occurred, and then filed an untimely petition naming the Monroe City School Board (“MCSB”) as the proper party, the court held that the purpose of plaintiffs amended petition was to name a wholly new defendant and not to merely correct a misnomer, such that suit against the MCSB had prescribed under Ray).

Id. at 952-53 (alteration in original).

Here, as in Renfroe, we find that there is no evidence establishing an identity of interests or a connexity between the City and DOTD such that notice to the City would serve as notice to DOTD. See Levingston v. City of Shreveport, 44,000 (La.App. 2 Cir. 2/25/09), 4 So.3d 942, writ denied, 09-673 (La.5/15/09), 8 So.3d 586. Based on his failure to satisfy the second and fourth Ray criteria, we find that Mr. Bulliard’s supplemental and amending petition fails to relate back to the date of filing of his original petition.

Nor do we find any merit in Mr. Bulli-ard’s argument that the doctrine of contra non valentem applies in this instance to suspend the running of prescription against him. Although the jurisprudence has recognized four factual situations in which this doctrine applies, Mr. Bulliard only relies on the fourth: “where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” Carter v. Haygood, 04-646, pp. 11-12 (La.1/19/05), 892 So.2d 1261, 1268.

Mr. Bulliard argues that contra non valentem should apply to him because he relied on misrepresentations the City made in its letters which led him to believe that it was the defendant responsible for the culvert. He claims that he could not know that DOTD was the proper defendant until the City filed its motion for summary judgment, and he argues that he should not be punished for relying on the City’s misleading conduct.

The supreme court addressed a similar argument in Renfroe, 809 So.2d 947, regarding the same contra non valentem situation. There, the court stated:

However, the doctrine of contra non valentem only applies in “exceptional circumstances.” La. C.C. art. 3467, Official Revision Comment (d); State ex rel. Div. of Admin. v. McInnis Brothers Construction, Inc., 97-0742 (La.10/21/97), 701 So.2d 937, 940. In fact, when this Court first officially recognized this fourth type of situation where contra non valentem applies, we specifically clarified that “[tjhis principle will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own wilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Corsey v. State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1322 (La.1979) (citing Cartwright v. Chrysler Corp., 255 La. 597, 598, 232 So.2d 285 (1970); Sumerall v. St. Paul Fire & Marine Ins. Co., 366 So.2d 213 (La.App. 2 Cir.1978)).
1 sWhile it is indeed unusual that different unrelated parties would own and maintain different portions of one roadway, the fact that the portion of the roadway was owned by some party other that the DOTD was “reasonably knowable” by the plaintiff within the prescriptive period. Thus, the doctrine of contra non valentem does not apply in this case.

Id. at 953-54.

We agree with this finding. The fact that the culvert was the responsibility of DOTD rather than the City was reasonably knowable by Mr. Bulliard within the one-year prescriptive period commencing with his accident. Accordingly, we find that the facts presented here do not rise to the exceptional circumstances necessary for the application of contra non valentem.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the exception of prescription and dismissing Fred Bulliard’s claims against the State of Louisiana, through the Department of Transportation and Development. We assess all costs of this appeal to the plaintiff, Fred Bulliard.

AFFIRMED.

      . Louisiana Municipal Risk Management Agency Group was erroneously referred to in the petition as Risk Management, Inc.

      . The dismissal was also granted as to Risk Management, Inc.


text:
    Danny R. ODELL v. Billie Kellerhuis ODELL.
    No. 14-250.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Richard Ducote, Pittsburgh, PA, for Defendant/Appellant Billie Kellerhuis Odell.
    George R. Knox, Lafayette, LA, for Plaintiff/Appellee Danny R. Odell.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

|,In an initial, considered decree, the trial court awarded the parties joint custody of their minor son. The trial court named the mother as the domiciliary parent. The parties returned to the trial court after the mother sought to relocate the child’s residence to Illinois. The father opposed the relocation and pursued a change in domiciliary status. Additionally, the father filed a motion for contempt upon an allegation that the mother violated a temporary restraining order regarding the relocation of the child’s residence to Illinois. Following a hearing, the trial court denied the mother’s relocation request, named the father as the domiciliary parent, issued a joint and shared custody plan, and found the mother in contempt. The trial court awarded attorney fees to the father. The mother appeals. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

The parties, Danny Odell and Billie Kel-lerhuis (formerly Billie Kellerhuis Odell), are the parents of a son born in 2009. In an initial, August 2011. custody decree, the trial court awarded the parties joint custody of the child and designated Ms. Keller-huis as the domiciliary parent. At that time the trial court denied Ms. Kellerhuis’s motion to relocate the child’s residence to the State of Illinois.

On December 5, 2012, Ms. Kellerhuis filed a “Motion for Relocation Authorization Pursuant to R.S. 9:355.1-355.17, Expedited Hearing, & Temporary Order of Relocation.” Therein, Ms. Kellerhuis again asked the trial court to allow her to relocate the child’s residence to Illinois in order for her to accept a job offer in that state. She noted that the deadline for beginning the position was December 17, 2012.

|2By a filing the following day, Mr. Odell opposed the relocation to Illinois and suggested that the proposed relocation constituted a change in circumstances warranting a modification in the custody order. Namely, Mr. Odell sought designation as the domiciliary parent. Mr. Odell prayed for the issuance of a temporary restraining order to prevent Ms. Kellerhuis’s relocation of the child’s residence before a hearing could be conducted. Additionally, Mr. Odell alleged that, since the issuance of the initial custody arrangement, Ms. Keller-huis had moved with the child from her apartment in Lafayette, Louisiana to Walker, Louisiana. He asserted that Ms. Kellerhuis did so without appropriate notice to him of the relocation and that the distance of the relocated home exceeded the mileage permitted by La.R.S. 9:355.2(B)(3).

Thereafter, on December 12, 2012, the trial court issued a temporary restraining order prohibiting Ms. Kellerhuis from “relocating the residence of the minor child to Princeton, Illinois from his current residence, or across State lines, until such time that a hearing can be held in this matter in accordance with the provisions of La.R.S. 9:355.1 et seq.” A hearing was scheduled for January 2013.

Before a hearing was conducted however, and in a January 3, 2013 supplemental opposition to Ms. Kellerhuis’s request for relocation, Mr. Odell alleged that Ms. Kel-lerhuis had, in fact, relocated the child’s residence to Illinois. He further asserted that Ms. Kellerhuis had made no effort to find employment in her initial residence of Lafayette, but had “focused all of her efforts in finding employment in the State of Illinois as a means of justifying a move to the State of Illinois which was previously denied” by the trial court. Mr. Odell simultaneously filed a rule for contempt, citing Ms. Kellerhuis’s alleged violation of the December 12, 2012 order prohibiting her from relocating the child’s residence to Illinois or |,.¡across state lines before a hearing could be conducted on her relocation request. He further argued that the alleged relocation violated the August 2011 custody judgment. Within the rule for contempt, Mr. Odell requested an award of expenses incurred by his objection to the relocation. The rule for contempt was set to be heard contemporaneously with the previously scheduled motions.

Although the hearing on the parties’ respective motions commenced on January 23, 2012 as scheduled, the hearing was re-fixed so that the parties could file briefs regarding a motion in limine filed by Mr. Odell. Thereafter, the matter resumed in March 2012. Following a hearing, the trial court found that Ms. Kellerhuis had impermissibly relocated the child to Walker, Louisiana, a distance of more than seventy-five miles without authorization, thereby violating La.R.S. 9:355.1, et seq. Additionally, the trial court denied Ms. Kellerhuis’s request to re-locate the child’s principal residence to Illinois. The trial court ordered that Ms. Kellerhuis pay attorney fees to Mr. Odell “in accordance with the provisions of La.R.S. 9:355.6.”

With regard to Mr. Odell’s request to change the original custody decree, the trial court re-visited the prior order, naming Mr. Odell as the domiciliary parent and issuing a joint and shared custody implementation plan. Finally, upon a finding that Ms. Kellerhuis was in violation of the temporary restraining order issued on December 12, 2012, the trial court found Ms. Kellerhuis in contempt of court.

Ms. Kellerhuis appeals that judgment, assigning the following as error:

A. The trial court manifestly abused his discretion in finding that Ms. Keller-huis was not in good faith in her relocation request, instead finding that she simply wanted to exclude the child from his father’s life, and, thus, in denying the relocation request.
|4B. The trial court manifestly abused his discretion in modifying the child custody decree to name Mr. Odell as the domiciliary parent and primary residential custodian, where the record does not support that Mr. Odell met his burden under Bergeron.
C. The trial court clearly erred as a matter of law in awarding attorney’s fees purportedly under R.S. 9:355.6.

Discussion

Relocation Request

Ms. Kellerhuis, as the parent seeking to relocate the principal residence of the minor child, had the burden of proving that 1) the proposed location was made in good faith and 2) the relocation was in the best interest of the child. La.R.S. 9:355.10. See also Hernandez v. Jenkins, 12-2756 (La.6/21/13), 122 So.3d 524. With regard to the best interest element, La.R.S. 9:355.14 provides:

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1)The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.

| b(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

(7) The reasons of each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

As explained by the supreme court, “[a] trial court’s determination in a relocation matter is entitled to great weight and will not be overturned [on] appeal absent a clear showing of abuse of discretion.” Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096.

In its denial of Ms. Kellerhuis’s request to relocate the child’s place of residence to Illinois, the trial court rendered extensive written reasons. Referencing its earlier rulings in the case, the trial court remarked that Ms. Kellerhuis had previously been granted the relief she sought in the ongoing custody matter, except for the denial of her initial request to relocate to Illinois. However, the trial court determined that, after the initial decree, Ms. Kellerhuis | (¡continued to pursue that relocation and did so in order to further separate Mr. Odell from the child. The trial court opined that Ms. Kellerhuis then set about pursuing a job offer in Illinois, without pursuing employment in Lafayette or Walker. The trial court further discounted the custody/visitation arrangement advanced by Ms. Kellerhuis, finding that, despite the child being “still in the bonding stage,” Ms. Kellerhuis proposed that the time periods between seeing Mr. Odell would be “completely inappropriate considering the age of this child[.]” In light of this perceived intent to separate the child from Mr. Odell, the trial court found Ms. Kellerhuis to be in “bad faith[.]” After review, we find that the record supports a determination that, as the party requesting relocation, Ms. Kellerhuis failed in her burden of proving that the proposal was in good faith.

In an attempt to meet that burden, Ms. Kellerhuis testified that she moved to Illinois to pursue a job offer with the State of Illinois. She explained that the position would enable her to live adjacent to her parents, who had developed a close relationship with the child and who could offer assistance with his care while she worked. However, the trial court acted within its fact-finding role in rejecting that explanation. Rather, the trial court permissibly viewed the attempted relocation to Illinois as the acceleration of a pattern of behavior directed toward distancing the child from Mr. Odell.

Also, and in addition to what the trial court determined were manipulative attempts to report Mr. Odell for allegedly inappropriate behavior with the child, the trial court was aware that Ms. Kellerhuis moved beyond the seventy-five mile limit permitted by La.R.S. 9:355.2 in her initial move to Walker. Ms. Kellerhuis |7did so without advance notice to Mr. Odell or permission of the court. Further, the record lacked evidence that the move was made in order to better Ms. Kellerhuis’s job search options. Rather, Ms. Keller-huis explained that she provided services in both the Lafayette and Walker locations in exchange for assistance with her rent. Otherwise, the unilateral move to Walker was largely unexplained in the record.

In addition to the fact that Ms. Keller-huis was aware of the previous denial of her request to relocate the child’s residence to Illinois, Ms. Kellerhuis removed the child from the state over both the objection of Mr. Odell and several days after the rendition of the December 12, 2012 temporary restraining order. While Ms. Kellerhuis suggested that she was entitled to travel with the child for a period of two weeks under the initial custodial plan, a reading of the custodial plan does not support that position in this instance. Rather, the trial court could have permissibly viewed the fine, technical interpretation of both the custodial plan and the relocation efforts as an attempt to distance the child from Mr. Odell and that she did so at the risk of violating both the custodial plan and the restraining order.

Similarly, although Ms. Kellerhuis suggests that the move to Illinois is necessary in order for her to secure a suitable job, the trial court rejected that purported motive. Notably, Ms. Kellerhuis failed to demonstrate that she engaged in any meaningful job search activities in an area closer to Mr. Odell. Rather, her |Rtestimony reflected that she sent only a few inquiries regarding possible positions she found via the internet or by word of mouth. This fact, too, supports the trial court’s determination that Ms. Kellerhuis’s reliance on the Illinois job opportunity was not the primary motivation. In opposition, Mr. Odell presented an expert in vocational rehabilitation who testified that Ms. Kel-lerhuis would be qualified for a number of jobs in the Lafayette area, and she could earn a salary in the mid-$30,000 range.

While Ms. Kellerhuis briefly argues that the trial court abused its discretion in its assessment of the best interest factors of La.R.S. 9:355.14, we note that Ms. Keller-huis was required to prove both good faith and that the relocation was in the child’s best interest. The trial court’s finding as to good faith pretermits further discussion of the best interest factors insofar as it relates to the relocation request.

For these reasons, we find no abuse of discretion in the trial court’s denial of the request to relocate the principal residence of the minor child to Illinois.

Change of Custody

In her brief to this court, Ms. Kellerhuis blends her argument that the trial court should have granted the relocation request with that pertaining to the separate custody issue. However, the trial court’s ruling and analysis is two-fold. First, the trial court denied the relocation request, addressed above. Additionally, the trial court granted Mr. Odell’s request regarding a change in custody, namely a change in the domiciliary parent designation and the issuance of a joint and shared custody implementation plan. With regard to his request, Mr. Odell was, of course, required to meet the burden of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), since it is unquestioned that he sought to change the custodial arrangement provided by the considered decree of August 2011.

[flRestating the Bergeron standard, the supreme court has recently explained that:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.
Thus, when a party seeks to change custody rendered in a considered decree, the proponent of change must not only show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she must also meet the burden of proof set forth in Bergeron.

Mulkey v. Mulkey, 12-2709, p. 11 (La.5/7/13), 118 So.3d 357, 365 (footnotes omitted). As with the issue of relocation, a trial court’s determination regarding child custody matters is entitled to great weight and will not be disturbed on appeal absent a clear showing of abuse of discretion. Gray v. Gray, 11-548 (La.7/1/11), 65 So.3d 1247, citing Bergeron, 492 So.2d 1193.

A large portion of the trial court’s extensive reasons for ruling addressed its concern regarding what it determined to be Ms. Kellerhuis’s ongoing efforts to keep Mr. Odell from the child. These reasons were largely set forth within the framework of the best interest of the child considerations of La.R.S. 9:355.14. However, those factors carried into the trial' court’s ultimate decision to grant Mr. Odell’s request to be named the domiciliary parent. The trial court explained:

The Court finds that the Bergeron heavy burden standard has been met by Mr. Odell. The Court finds that the actions of Ms. Kellerhuis are so deleterious to this child as to warrant a change of domiciliary custody from her to Mr. Odell. The Court believes that a shared custodial schedule is in the best interest of this child at this time. I do not think the child is seeing his father enough. I think the child needs continuing, ongoing contact with his mother.

11 nAfter review, we find no abuse of discretion in the trial court’s determination that Mr. Odell met the required burden.

The trial court’s findings undoubtedly related to actions taken by Ms. Kellerhuis after the August 2011 considered decree. Those actions included two unilateral changes of location, one of those being an out-of-state location that would have necessarily affected Mr. Odell’s exercise of his joint custody of the child. Further, the change of location to Illinois was taken under the shadow of temporary restraining order.

Additionally, the trial court addressed what it termed an “abuse of services” in an effort to create litigation support. On this note, testimony from social agency workers indicated that Ms. Kellerhuis had raised concerns of inappropriate conduct with the child. Although Ms. Kellerhuis denied that she felt that the child was being abused, the trial court referenced the reporting and explained that it feared that her conduct could eventually lead her to “try to convince the child that things are happening.” The court further stated that: “I think it is immoral to, you know, take services that are designed to help a child and really use them for litigation support so you can, you know, accomplish your quest to move to Ulinois[.]”

The facts underlying these findings are well established in the record. The trial court’s interpretation of those facts relied upon an appreciation of the parties’ testimony and assessment of their credibility. In light of the trial court’s factfinding role, we do not disturb those conclusions. Rather, in light of the facts as found by the trial court, the record supports the view that Mr. Odell demonstrated a change of circumstances that materially affected the welfare of the child had occurred after the prior custody order. It additionally supports a view |nthat the continuation of the existing decree was so deleterious to the child as to justify a modification of the custody decree.

Accordingly, we find no abuse of discretion in the trial court’s order of custody.

Attorney Fees

In its judgment, and as prayed for by Mr. Odell, the trial court ordered Ms. Kellerhuis to pay attorney fees to Mr. Odell in the amount of $3,000.00. The judgment reflects that it did so “in accordance with the provisions of La.R.S. 9:355.6[.]” However, as pointed out by Ms. Kellerhuis in her brief, La.R.S. 9:355.6 only provides that:

The court may consider a failure to provide notice of a proposed relocation of a child as:
(3) Sufficient cause to order the person proposing relocation to pay reasonable expenses incurred by the person objecting to the relocation.

While the statute provides for the payment of “reasonable expenses,” it does not separately provide for attorney fees. Certainly, “[a]s a general rule, attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract.” Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69. In this case they were not.

As noted by Mr. Odell in his brief, La. R.S. 9:355.19 provides for sanction for an unwarranted or frivolous proposal to relocate a child, including reasonable expenses and attorney fees. In Randazzo v. Prosperie, 13-0704 (La.App. 1 Cir. 9/13/13), 135 So.3d 22, the first circuit considered a situation in which attorney fees were awarded in a case involving a failure to send notice as required under the relocation statutes. The first circuit, noting that La.R.S. 9:355.6 no longer permits an award of attorney fees, nonetheless affirmed the award finding that such fees were otherwise available under La.R.S. 9:355.19. In that case, however, the first circuit remarked that, in making the award, “the trial court made no specific findings as to the cause regarding the award of sanctions.” Id. at BO. The present matter differs from Randazzo in this latter regard. In his prayer to the court, Mr. Randazzo sought attorney fees pursuant to La.R.S. 9:355.6 and the judgment reflected that they were made pursuant to La.R.S. 9:355.6. In light of this specific award, we do not reference La.R.S. 9:355.19 as a viable method of recovery.

As La.R.S. 9:355.6 provides no basis for attorney fees, we reverse that award.

DECREE

For the foregoing reasons, we reverse the trial court’s award of $3,000.00 in attorney fees. In all other respects, we affirm the judgment of the trial court. Costs of this proceeding are assessed to the appellant, Billie Kellerhuis Odell.

AFFIRMED IN PART. REVERSED IN PART.

      . The parties stipulated at the hearing that the distance between the Lafayette residence and the Walker residence exceeded seventy-five miles.

      . Louisiana Revised Statutes 9:355.2 provides that the statutory framework controlling the relocation of a child’s residence is applicable to a proposed relocation when:

        (3) There is a court order awarding custody and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered.
      Both stipulation of the parties and testimony established that the distance between the Walker residence and the initial residence in Lafayette exceeded seventy-five miles.

      . The version of La.R.S. 9:355.6 effective until August 2012, immediately prior to the events now at issue, provided that: "The court may consider a failure to provide notice of a proposed relocation of a child as: ... (3) Sufficient cause to order the parent seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the person objecting to the relocation.” (Emphasis added.)


author: KEATY, Judge.

text:
    Talesha BERTRAND, et ux. v. Robert RUMSEY, M.D., et al.
    Nos. 14-62.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Benjamin P. Mouton, McGlynn, Glisson & Mouton, Baton Rouge, Louisiana, for Plaintiffs/Appellants James Bertrand, Ta-lesha Bertrand.
    William C. Rowe, Jr., David C. Bolton, Rowe Law Firm, Baton Rouge, Louisiana, for Intervenors/Appellees Louisiana Patient’s Compensation Fund, Louisiana Patient’s Compensation Fund Oversight, Board, through the nominal defendant, Dr. Michael Kudla.
    James R. Shelton, Durio, McGoffin, Stagg & Aekermann, Lafayette, Louisiana, for Defendants/Appellees Louisiana Medical Mutual Insurance Company, Michael Kudla, M.D.
    J. Gregory Bergstedt, Elizabeth F. Shea, Fraser, Wheeler & Begstedt, Lake Charles, Louisiana, for Defendants/Appel-lees Preferred Professional Insurance Company, Robert Rumsey, M.D.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hFor the reasons set forth in the companion case hereto, Bertrand v. Kudla, 14-61 (La.App.3 Cir. 06/04/14) 139 So.3d 1233, the July 16, 2013 judgment notwithstanding the verdict rendered by the trial court denying an additional award of special damages for lost wages is reversed. We hereby award Talesha Bertrand the amount of $46,550.00 representing lost wages from May 31, 2005 through March 15, 2006. We further reverse the trial court’s denial of an increase in general damages to Talesha Bertrand and increase the award to $150,000.00.

REVERSED IN PART AND RENDERED.