author: MADELEINE M. LANDRIEU, Judge.

text:
    Boris RADAN v. STOLT-NIELSEN, INC., Stolt-Nielsen Transportation Group, Inc., et al.
    No. 2013-CA-0833.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2014.

      Lloyd N. Frischhertz, Jr., Dominick F. Impastato, III, Frischhertz Poulliard Frischhertz & Impastato, L.L.C., New Orleans, LA, for. Plaintiff/Appellant.
    John Wayne Mumphrey, Carlos Alberto Zelaya, II, Mumphrey Law Firm, L.L.C., Slidell, LA, Michael G. Helm, Helm Law Firm, LLC, Covington, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

LThe plaintiff, Boris Radan, appeals the trial court’s granting of summary judgment dismissing his case against defendant Port Ship Service, Inc. (“Port Ship”). For the reasons that follow, we affirm the trial court’s judgment.

FACTS AND PROCEEDINGS BELOW

Mr. Radan, a Croatian seaman who serving as Chief Engineer aboard a cargo ship, the M/V Stolt Pride, injured himself when he fell eight or more feet from a pilot’s ladder while attempting to disembark from the Stolt Pride onto the deck of a crewboat, the Little Ray, which was going to transport him to shore. When the accident occurred, the Stolt Pride was moored to the Kinder Morgan/Delta Terminal facility on the Mississippi River in Harvey, Louisiana. However, foreign crewmen were not allowed to exit vessels on the shore side by means of the gangplank because their travel through U.S. terminals was considered a national security risk. Hence, the Stolt Pride hired a water taxi, the Little Ray, and provided a pilot’s ladder for Mr. Radan’s use in making the approximately thirty-foot descent from the Stolt Pride to the Little Ray.

| ^Following the accident, Mr. Radan filed suit against his employer, Stolt-Nielsen; the owner/operators of the terminal facility, Kinder-Morgan; and the owner/operator of the Little Ray, Port Ship Service, Inc. (hereinafter referred to as “Port Ship”). Mr. Radan settled with Stolt-Nielsen and Kinder Morgan.

The remaining defendant, Port Ship, brought a motion for summary judgment asserting that it did not owe any applicable duty of care to Mr. Radan because the owner/operator of the Stolt Pride had the sole, non-delegable duty to ensure the safety of its crewmember in disembarking its ship. Alternatively, Port Ship argued that assuming it did owe a duty to Mr. Radan that it breached, the breach of this duty did not cause Mr. Radan’s accident. The matter was heard by the trial court on February 7, 2013. On February 21, 2013, the trial court issued a written judgment granting Port Ship’s motion for summary judgment and dismissing all the plaintiffs claims against it. In reasons included in the body of the judgment, the trial court found that Port Ship “had no duty to this seaman, Mr. Radan, for ingress and egress and thus cannot be held at fault.” The trial court further noted that Mr. Radan’s deposition testimony established that his fall had occurred as a result of his foot slipping off the ladder, and not as a result of any wrongdoing by Port Ship.

Mr. Radan now appeals this judgment.

|,ST AND ARP OF REVIEW/ APPLICABLE LAW

We review the granting of summary judgment de novo, applying the same standards used by the trial court. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. Thus, the motion will be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

Although Mr. Radan, a Jones Act seaman, has elected to file his negligence suit in state court pursuant to the “saving to suitors” clause, the substantive law applicable to his claims is the General Maritime Law. Milstead v. Diamond M Offshore, Inc., 95-2446, p. 7 (La.7/2/96), 676 So.2d 89, 94. State courts hearing maritime claims are free to apply their own rules and procedures, but they must apply maritime substantive law. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

To establish negligence against a non-employer shipowner under the General Maritime Law, the plaintiff/ seaman must demonstrate that there was a duty owed to him by the defendant, a breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant’s conduct and the plaintiffs injury. In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir.1991). | ¿Furthermore, the resultant harm must be reasonably foreseeable. Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir.1980).

ISSUES

On appeal, Mr. Radan argues that the trial court erred by: (1) finding that Port Ship owed no duty to him; and (2) improperly weighing disputed facts on summary judgment.

DISCUSSION

I. Whether Port Ship Owed a Duty to Mr. Radan

The trial court concluded that Port Ship had no duty to Mr. Radan based upon the long line of maritime jurisprudence holding that a shipowner/ Jones Act employer has a fundamental, non-delegable duty to provide its crew members with a reasonably safe means of ingress and egress from its vessels. See Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir.1969) and cases cited therein. The Louisiana Second Circuit Court of Appeal explained the scope of this duty in a case involving a worker on an oil rig who was injured while attempting to transfer from a crewboat to the rig:

A fundamental non-delegatable [sic] duty of a Jones Act employer is to supply a reasonably safe ingress and egress for its crew members to and from its vessel. Massey v. Williams-McWil-liams, Inc., 414 F.2d 675 (5th Cir.1969); see also, Hopson v. Texaco, 383 U.S. 262, 263, 86 S.Ct. 765, 15 L.Ed.2d 740 (1966) (holding Jones Act employer responsible for injuries a crew member sustained as a consequence of a cab driver’s negligence while transporting sick seaman from ship); Mounteer v. Marine Transport Lines, Inc., 463 F.Supp. 715 (S.D.N.Y.1979) (Jones Act employer responsible for cab driver’s negligence while transporting seamen to ship). We conclude, as the court in Massey, in similarly reviewing an accident involving the delivery of a seaman to the employer’s vessel, that this fundamental duty of the Jones Act employer may not be “palmed off onto the crew-boat.” Massey at 679.

Darker v. Sw. Offshore Corp., 32,606 (La. App. 2 Cir. 12/15/99), 763 So.2d 638, 643. In Parker, the appellate court reversed the trial court’s allocation of 35% liability to the crewboat owner and placed all the liability on the rig owner. The court acknowledged that the crewboat operator had a duty of reasonable care, but found that it had fulfilled that duty because the sea conditions were not unreasonably dangerous and the crewboat was properly positioned for the offloading of passengers. Id. at 643.

Similarly, in the case before us, Mr. Radan argues that summary judgment was improper because Port Ship owed a duty of reasonable care to its passengers, and a genuine issue of fact exists with regard to whether that duty was breached. We disagree. Mr. Radan was not a passenger aboard the crewboat when the accident occurred, and there is nothing in the record suggesting that the operator of the Little Ray was negligent in caring for Mr. Radan after he fell from the ladder on to the deck of the crew boat. The plaintiff cites no authority for the proposition that the crewboat operator’s duty of reasonable care extended to assisting Mr. Radan in his safe egress from his employer’s vessel. As noted above, the only jurisprudence cited indicates that the duty of a crew boat operator when a seaman is disembarking from a larger ship to the crewboat (or vice versa) is to properly position the crewboat and to make sure the sea conditions are not unreasonably dangerous for the transfer. The plaintiffs argument that the Port Ship had a duty to assist in the transfer by providing more lighting and/or a deckhand fails because the plaintiff cites no legal authority to support the existence of such a duty under the General Maritime Law. We therefore conclude that the trial court did not errj^by granting summary judgment on the basis of the absence of a duty on the part of Port Ship.

II. Weighing of disputed facts on summary judgment

The plaintiff argues that the trial court improperly weighed disputed facts when it stated in the judgment that Mr. Radan’s fall was caused by his foot slipping off the pilot ladder as he descended. The plaintiff argues that he submitted evidence showing inadequate lighting on the Little Ray and/or the lack of a deckhand aboard the crewboat to assist in the transfer, which evidence creates a genuine issue of material fact. We disagree. There is no genuine issue of material fact created in the absence of any evidence that either of these conditions caused the accident. Moreover, as the trial court noted, these conditions cannot be the basis of Port Ship’s fault because they pertain to the ingress and egress from the Stolt Pride, which is solely the duty of the shipowner.

Moreover, the trial court based its finding of causation upon Mr. Radan’s own deposition testimony. In his deposition, Mr. Radan recounted that while coming down the ladder, he stuck his right foot out to protect himself in case part of the Little Ray came up in the swell of waves and hit him; at the same time, he turned his head and looked over his right shoulder, and saw that the Little Ray “was not close.” Mr. Radan further testified that at that moment, his “left foot slipped.” When asked why he slipped, Mr. Radan said: “My left foot slipped because it was’ a rainy day, right? Everything was wet, okay?” He further testified that had his left foot not slipped, he would have put his right foot back on the ladder and continued going down. He agreed that if his left foot had not slipped, the accident would not have occurred.

|7Mr. Radan’s deposition testimony was undisputed. The only eyewitness to the accident was the captain of the Little Ray, Captain Wigginton. Captain Wigginton testified in his deposition that he did not see Mr. Radan’s foot slip, and did not know whether or not that had occurred. In finding that Mr. Radan had slipped off the ladder, the trial court did not improperly weigh the evidence because the only evidence submitted on this issue was Mr. Radan’s deposition testimony. We therefore do not agree that the trial court improperly weighed disputed facts on summary judgment.

Reviewing the entire record, we conclude that the summary judgment was properly granted.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . The accident occurred on November 28, 2008.

      . A pilot’s ladder is essentially a rope ladder with rungs that allows a crew member to disembark a ship onto a crewboat or launch boat situated alongside the ship.

      . The petition names and alleges as the plaintiff's employer four separate "Stolt-Nielsen” entities, collectively referred to herein as "Stolt-Nielsen.”

      . The petition names as defendants three separate "Kinder Morgan” entities, collectively referred to herein as "Kinder Morgan.”

      . The February 21, 2013 judgment is tided "Amended Judgment” and reflects that it corrects a "typographical error” in the original judgment issued February 15, 2013.

      . 28 U.S.C. § 1333(1) bestows original jurisdiction of maritime cases upon the federal district courts "saving to suitors in all cases all other remedies to which they are otherwise

        entitled." The emphasized language, commonly referred to as the "saving to suitors” clause, has been interpreted as giving states the concurrent power to hear in personam admiralty cases. Milstead v. Diamond M Offshore, Inc., 95-2446, p. 7 (La.7/2/96), 676 So.2d 89, 93.

      . For purposes of this opinion, "General Maritime Law” refers to the substantive federal maritime law, both statutory and jurisprudential.

      . In this case the oil rig was considered a vessel pursuant to the General Maritime Law.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Patrick Dewayne DYAS, Plaintiff-Appellant v. SHREVEPORT POLICE DEPARTMENT, Defendant-Appellee.
    No. 48,804-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Patrick Dyas, In Proper Person.
    Barham, Warner, Stroud & McKay, by A.M. Stroud, III, Nichole M. Cox, Shreveport, for City of Shreveport and Detective Patrick McConnell.
    Before STEWART, CARAWAY and MOORE, JJ.
   CARAWAY, J.

^Plaintiff, who was charged with the crime of murder, brought this action for claims against appellees for false arrest, malicious prosecution, and defamation surrounding his arrest. Appellees sought and obtained dismissal by summary judgment upon the assertion of probable cause for plaintiffs arrest and a qualified privilege against the claim of defamation. We affirm the judgment dismissing all of appellant’s claims.

Facts and Procedural Background

The plaintiff, Patrick Dewayne Dyas (“Dyas”), was arrested on two counts of first degree murder which were never prosecuted. Dyas later filed this suit against the City of Shreveport and Detective Patrick McConnell (“McConnell”) for the false imprisonment and malicious prosecution and defamation. The essential facts of this case surround a murder investigation for the deaths of Jacquetta Moore (“Moore”) and Cedric Davidson (“Davidson”). On November 26, 2007, the Shreveport Fire Department responded to a fire and discovered two bodies in a burned dwelling. After discovering stab wounds on Moore, detectives McConnell and Eric Farquhar (“Farquhar”) began investigating the scene for possible murders.

McConnell wrote a detailed and lengthy narrative of his investigation of the deaths, which was submitted in support of summary judgment. After initial investigation, Dyas, who had been romantically involved with Moore, became a person of interest in the two murders. Because of pending traffic ^charges, McConnell and Farquhar brought in Dyas for questioning, Mirandizing him before the interview. Dyas denied any involvement in the murders. During the course of this interview, McConnell had Moore’s cellphone and was attempting to unlock it to inspect its contents for evidence. He asked Dyas if he knew the- code to unlock the phone, and Dyas responded that he did not. McConnell then exited the room, leaving Dyas and the cellphone. Later, Dyas was to be booked and held for outstanding warrants on unpaid traffic tickets. Before leaving the office, Dyas asked for gum, and McConnell gave him some.

When McConnell and Farquhar arrived at the city jail, Dyas spat out his gum toward a trash can. However, the gum hit the floor, and McConnell heard something hit the floor, making a “tinkling” sound. Farquhar discovered that Dyas had spat out something plastic. At first, Dyas claimed that it was something that stuck to the gum when he spat it toward the trash can and was knocked off. However, upon being pressed on the issue, he admitted that it was a subscriber identity module, or SIM card, for his phone. He claimed that on a previous occasion, his SIM card had been stolen when he was arrested.

After leaving the city jail, Farquhar discovered that Dyas’s phone still had a SIM card in it and that Moore’s phone was missing its SIM card. The SIM card that Dyas spat out at the jail was placed in Moore’s phone, and her settings were restored. Subsequently, Dyas was charged with obstruction of justice on November 27, 2007. Dyas was formally charged by bill of information on January 10, 2008, with obstruction of justice. His bond was set initially at $1.3 million, but it was subsequently lowered to $100,000. [¡¿Dyas never posted bond.

During the next few weeks, McConnell and Farquhar interviewed numerous people who knew Moore, Davidson, and Dyas, including neighbors, friends, and coworkers. Soon, it became clear that Dyas and Moore had split up or were on the verge of splitting up. Moore was becoming romantically involved with Davidson. From the interviews, Dyas appeared to be jealous of any potential relationship Moore might have had with others.

The detectives learned that Dyas had a violent history with Moore and with other women. They also learned that Dyas had possibly shot several men who he suspected may have been involved with a past love interest. Some witnesses stated that they had seen Dyas parking his vehicle away from Moore’s home, and others indicated they had seen him standing near the home watching it while wearing dark clothing at night.

McConnell also learned that Dyas was being investigated for an unrelated arson. Moore’s home was determined to have been intentionally set on fire because about six fires had originated from different parts of the house. In the house, the police found a bottle of charcoal lighter fluid, and forensics showed that Dyas’s fingerprints were on the bottle. Additionally, during a later search of the home the detectives found a bloody knife blade consistent with the size of the stab wounds. The handle of this blade was missing. After further investigation, it was determined that Dyas was a cook on an oil barge offshore and that he had access to such knives.

On the night of Moore’s death, Dyas and Moore, via text message and voice calls, had been discussing having dinner. Some of the text messages |4within the text message dialogue had inexplicably been deleted. Phone records indicated that most of the text message activity and calls between Moore and Dyas had gone on for hours until around 1:00 a.m., shortly before Moore and Davidson were believed to be murdered.

Following this investigation, McConnell and Farquhar on February 15, 2008, charged Dyas with the first degree murders of Moore and Davidson. During the interviews and after the charges for the double homicide, Dyas received media attention, including newspaper stories reporting the crime, the investigation, and the legal proceedings involving the murders. However, after determining that there was insufficient evidence to convict Dyas of the murder charges, the Caddo Parish District Attorney decided not to pursue the charges against him. The investigation for the murders is still open, and no one was ever formally charged.

Meanwhile, Dyas was convicted of obstruction of justice and adjudicated a habitual felony offender. He was sentenced to 40 years in prison. This court affirmed the conviction in State v. Dyas, 45,065 (La.App.2d Cir.3/3/10), 32 So.3d 364, writ denied, 10-0759 (La. 11/19/10), 49 So.3d 397.

In Dyas’s petition, he argued that he was wrongfully accused publicly of first degree murder and that McConnell and Farquhar accused him of being guilty of the crimes before the district judge at the bond hearing. He also claimed that he was wrongfully incarcerated for 15 months as the result of these charges. He contended that he lost his home and custody of his child and that he suffered from depression and mental anguish at the hands of the officers.

| sThe City of Shreveport and McConnell sought summary judgment in 2013. Dyas filed a cross-motion for summary judgment. On April 29, 2013, the trial court granted defendants’ summary judgment and dismissed all of Dyas’s claims with prejudice. Dyas appeals the dismissal of his claims.

Discussion

When an appellate court reviews a district court' judgment on a motion for summary judgment, it applies the de novo standard of review, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Henderson v. Bailey Bark Materials, 47,946 (La.App.2d Cir.4/10/13), 116 So.3d 30; Gray v. American Nat. Property & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839 (citations omitted); Hall v. Federated Mut. Ins. Co., 46,806 (La.App.2d Cir.12/14/11), 80 So.3d 727. After adequate discovery or after a case is set for trial, a motion for summary judgment which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1).

The burden of proof on a motion for summary judgment remains with the mov-ant. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s |f,claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

On appeal, the City of Shreveport and McConnell argue that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars Dyas’s claims because they would call into question the validity of Dyas’s obstruction of justice conviction. However, we will focus instead on Dyas’s claims regarding his arrest on the first degree murder charges.

False Arrest and Malicious Prosecution

First we consider Dyas’s false arrest and malicious prosecution claims. The malicious prosecution fails because no prosecution on the murder charges was ever instituted. Regarding the false imprisonment claims, Dyas failed to show that the arrest and charges for first degree murder lacked probable cause.

False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). Thus, if police officers act pursuant to statutory authority in arresting and incarcerating a citizen, they are not liable for damages for false arrest and imprisonment. Id. 17Louisiana Code of Criminal Procedure Article 213 provides that a peace officer may arrest a person without a warrant when the peace officer “has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer,” La.C.Cr.P. art. 213(3). See also Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

The common element between a malicious prosecution claim and a false arrest claim is the absence of probable cause. To recover for malicious prosecution, a plaintiff must show the underlying prosecution lacked probable cause. Hibernia Nat’l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980); LeBlanc v. Pynes, 46,393 (La.App.2d Cir.7/13/11), 69 So.3d 1273. False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority. Kyle, supra. That statutory authority is La.C.Cr.P. art. 213, and it requires that the peace officer have “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.” La.C.Cr.P. art. 213(3). Reasonable cause to arrest without a warrant is the equivalent of probable cause to obtain an arrest warrant. State v. Powell, 598 So.2d 454 (La.App.2d Cir.1992). Therefore, if there was probable cause to arrest, then there is no false arrest cause of action.

Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed or is committing an offense. Id. Mere suspicion will not justify an arrest, but proof sufficient to convict is not required. Id.

| ^Regarding Dyas’s arrest for the first degree murders of Moore and Davidson, McConnell had adequate probable cause to support the charges. McConnell in the course of the investigation recorded a detailed narrative. The narrative showed that the detectives interviewed many people who knew the victims and Dyas. The picture that was painted was one of a potentially violent man who was jealous that his ex-girlfriend was seeing someone else. He had been seen watching Moore’s house. His fingerprints were on a lighter fluid bottle at the scene where several fires had been set, and Dyas had previously been investigated for arson. Further, a knife was found without a handle and was of a type which Dyas had access in his job as a cook. Phone records showed that Dyas and Moore were talking and texting up to a point shortly before her death, and several text messages in the dialogue had been deleted. Additionally, Dyas attempted to destroy a SIM card for Moore’s phone during the course of the investigation. These facts, although potentially insufficient to convict Dyas of first degree murder, were certainly enough to make a reasonable person suspicious that he had. Powell, supra.

We also note that when Dyas was charged with murder, he had already been arrested and was already in custody for the crime of obstruction of justice, for which he was convicted.

In opposition to the defendants’ motion for summary judgment and in support of his own cross-motion, Dyas submitted only (1) a request for production of documents, which have no evidentiary value regarding probable cause, (2) a family counselor’s report to a judge in a custody proceeding referencing the criminal charges, (3) arrest reports for first ^degree murder with a detailed description of the probable cause for the charges, and (4) two pages of McConnell’s narrative of the investigation, which as noted above contained ample probable cause to justify the charges and arrests. Therefore, Dyas failed to put on any evidence that his arrest and prosecution for murder or obstruction of justice lacked probable cause. The motion for summary judgment dismissing the claim for false imprisonment was proper.

Defamation and Qualified Privilege

We now turn to Dyas’s defamation claim. For a defamation claim, a plaintiff must establish the following necessary elements: (1) a false and defamatory statement concerning another person; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.07/10/06), 935 So.2d 669 (citations omitted).

In Louisiana, words that expressly or impliedly accuse another of criminal conduct without considering extrinsic facts or circumstances, are considered defamatory per se. Id. When a plaintiff proves publication of words that are defamatory per se, falsity, malice (or fault), and injury are presumed, but may be rebutted by the defendant. Id.

In Louisiana, privilege is a defense to a defamation action. Id. A conditional or qualified privilege applies if the statement is made (1) in good Imfaith, (2) on any subject matter of which the person communicating has an interest or in reference to which he has a duty, (3) to a person having a corresponding interest or duty. Id. Societal necessity requires unrestricted communication of such matters without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate. Id.

Determining whether a qualified privilege exists involves a two-step process. Id. First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. Id. Second, it must be determined whether the privilege was abused, which requires that the grounds for abuse — malice or lack of good faith — be examined. Id. The second step of determining malice or abuse of the privilege is generally a question of fact for the jury unless only one conclusion can be drawn from the evidence. Id.

The defendant abuses the privilege if he (1) knows the matter to be false or (2) acts in reckless disregard as to its truth or falsity. Id. Only those statements made with a high degree of awareness of their probable falsity meet the reckless disregard standard. Id. The plaintiff must prove that the publication was deliberately falsified or published despite the publisher’s awareness of probable falsity. Id.

In Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552, the Louisiana Supreme Court determined that a qualified privilege exists in favor of police officers publishing information concerning an ongoing | T1investigation to the news media, but the court determined that the police had abused the privilege. In so holding, the court stated:

While we agree that law enforcement officers, whose duty includes charging persons with crimes, should be allowed to report the fact of a criminal investigation and an arrest without fear of a defamation action if the person is cleared of the charges, an officer cannot add additional injurious statements that the officer had no reason to believe were true. Such a restriction of the privilege should not have a chilling effect on the free reporting of criminal investigations and arrests, but should prevent occurrences ... where the officer not only reported the investigation and arrest, but also reported facts pertaining to guilt that were not developed in the investigation.

The practical effect of the assertion of the conditional or qualified privilege is to rebut the plaintiffs allegations of fault and to place the burden of proof on the plaintiff to establish abuse of the privilege. Kennedy, supra.

Dyas provided only the evidence mentioned above. The record also reflects that several newspapers covered the investigation and trial of Dyas. This is the only evidence of a statement made from the police to the media. McConnell and Far-quhar made statements to the prosecuting attorneys, the court, and the media that Dyas committed murder and obstruction of justice. Therefore, as statements that Dyas committed criminal acts, they were defamatory per se. Thus, the burden of proof shifted to the defendants to show that the statements were not false, that fault was absent, and that no injury occurred. See Kennedy, supra.

However, McConnell and Farquhar are police officers who enjoy a qualified privilege. Any statements they made to the media concerning the investigation and the arrest are subject to a qualified privilege. See Trentecosta, supra. Furthermore, any statements that they made pursuant to their duty to notify the district attorney and the district judge of the charges 112and facts of the crime are likewise conditionally privileged. There was no indication that the officers added injurious statements beyond the facts they relied upon for the showing of probable cause. Therefore, McConnell and Farquhar cannot be liable for such statements properly communicated in performance of their duties. See Trentecosta, supra; see also Kennedy, supra.

There was no showing by Dyas that McConnell and Farquhar (1) knew their statements to be false or (2) acted in reckless disregard as to their truth or falsity. See Kennedy, supra. Again, none of the evidence that Dyas submitted with the motion for summary judgment gave any indication that McConnell and Farquhar knew their statements were false or that they had a high degree of awareness that the statements were probably false. As a result, Dyas failed to show that he could meet his burden of proof at trial. Therefore, his claim for defamation fails.

Conclusion

Because Dyas failed to show that McConnell and Farquhar acted without probable cause, his claims for false arrest and malicious prosecution fail. Further, because Dyas failed to produce any evidence that McConnell and Farquhar abused their qualified privilege, the trial court’s judgment dismissing the defamation claim was also correct. Costs of the appeal are assessed to appellant.

AFFIRMED.

      . Initially, Dyas named the Shreveport Police Department. After an exception of lack of procedural capacity was filed because the police department is not a legal person capable of being sued, he amended his petition to name the City of Shreveport. All pleadings and motions on behalf of the appellees named only the City of Shreveport and Patrick McConnell and do not include a third named defendant, Eric Farquhar.

      . Dyas also appeals the trial court's revocation of his pauper status. However, this court reinstated his pauper status in Writ No. 48,-571-CW on July 11, 2013. The pauper status has not since been revoked. Therefore, this issue is moot on this appeal.

      . Under Heck, for a plaintiff to recover damages under 42 U.S.C. § 1983, for unconstitutional conviction or imprisonment, he must prove (1) that the conviction or sentence has been reversed on direct appeal, (2) expunged by executive order, (3) declared invalid by a state tribunal authorized to make such determination, or (4) called into question by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364.

      .A successful claim for malicious prosecution requires proof of the commencement or continuance of an original criminal or civil judicial proceeding. Hibernia Nat’l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980); LeBlanc v. Pynes, 46,393 (La.App.2d Cir.7/13/11), 69 So.3d 1273.

      . We also note that insofar as Dyas made a claim under 42 U.S.C. § 1983, the failure to show an absence of probable cause also defeats that claim. His claim would be that he was unlawfully seized without probable cause as required under the Fourth Amendment of the United States Constitution. A deprivation of this right would be actionable under 42 U.S.C. § 1983, which allows a person to recover against persons acting under color of state law to deprive the plaintiff of a federal right.


author: MOORE, J.

text:
    Donwick D. CARTER, Plaintiff-Appellant v. Bonnie F. BRIGGS, Defendant-Appellee.
    No. 48,768-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Anthony J. Bruscato, Monroe, for Appellant.
    Bonnie F. Briggs, pro se.
    Before MOORE, LOLLEY and GARRETT, JJ.
   MOORE, J.

|! Donwick Carter appeals a Monroe City Court judgment that rejected his claim of wrongful conversion against his former live-in girlfriend, Bonnie F. Briggs. Finding no abuse of discretion, we affirm.

The parties agree that in January 2010, Carter moved in with Ms. Briggs, her daughter and granddaughter in her apartment in the Town & Country area of north Monroe. They also agree that Carter promised to pay the family’s grocery bills and one-half the rent. Carter testified that during this time, he was receiving food stamps, drawing worker’s comp benefits and working part-time at Pine Valley cookie dough company in West Monroe, taking home about $950 a month total. Ms. Briggs, however, testified that he was unemployed the whole time, just sitting around the house, and after she lost her job at Synergy, she started borrowing from relatives to make ends meet. There was much testimony, in particular, about the $800 Ms. Briggs had to borrow to attend a cousin’s funeral in Houston, Texas, in late August 2011.

Also in August 2011, Carter received a lump-sum worker’s comp settlement of $88,000. After spending some of the money, he went to Chase Bank on August 23 and opened a checking account, depositing $21,713. He testified that he never gave Ms. Briggs, or anyone else, authorization to access this account.

By this time, Ms. Briggs felt that Carter should go back to work. Searching online, she found and helped him fill out an application for a job as a truck driver with Central Refrigerated Service. The training, however, was in Salt Lake City, Utah. Carter testified that the following Friday (this would have been August 26, 2011), he boarded a Greyhound Bus to make the two-day trip to Utah. A few days later, he went to a branch of Chase |PBank to withdraw $200 in spending money. He testified that he then discovered $7,600 missing from his account; he “exploded” and told bank personnel he had “been robbed.” According to Carter, someone at the bank told him that a “telephone transfer” had removed the funds from his account and placed them in Ms. Briggs’s.

Carter immediately phoned Ms. Briggs; he testified that she left him a voicemail admitting that she took the $7,600, and he later played this to Monroe Police. Ms. Briggs, however, denied admitting anything, and argued the police could not have known whose voice was on the VMS. According to Ms. Briggs, Carter told her he had placed the money in her account so she could pay off their loans. He also told her not to worry about it, as the folks at Chase Bank assured him that if it was a fraudulent transfer, the bank would “re-credit” his account.

Carter promptly took a return bus to Monroe; on September 4, he reported the theft to Monroe Police, playing the VMS to Sgt. Staten. Sgt. Staten testified he was “not 100% sure” it was Ms. Briggs’s voice. He also testified that Carter told him he had left Ms. Briggs some four months earlier, even though he still had clothes and a computer at the apartment. (Carter later admitted “fudging” in the police report, but said it was the only way to get police assistance to enter the apartment and retrieve his belongings.) Sgt. Staten wrote up an arrest warrant which was not executed until “several months later.”

After Carter accused Ms. Briggs of theft, recriminations followed. On September 7, 2011, Ms. Briggs called the Ouachita Parish Sheriffs Office to report that Carter had stolen a pallet jack and several buckets of cookie |adough from his former employer, Pine Valley, and faked the knee injury for which he drew weekly comp benefits and, later, the lump sum settlement; he bragged that he could “get away with this” (scamming Chase Bank) the same way he “got away with Pine Valley.” Carter denied everything, and testified that as a result of Ms. Briggs’s false report, he was arrested, locked up for 20 days in Salt Lake City, and has spent $2,000 in attorney fees defending the charges.

Carter filed this suit in Monroe City Court in August 2012. He demanded restitution of his $7,600 and general damages for wrongful conversion. Ms. Briggs, appearing pro se throughout, answered that Carter transferred the money to her account “to pay the people that he had borrow [sic ] from over the course of several months[.]” In response to discovery, Ms. Briggs listed five family members to whom she had paid a total of $4,833 for loans, and “Repro [sic ] ear” of $2,500, to get her car out of repossession.

The matter came to trial in January 2013. Carter and Sgt. Staten testified as outlined above. Carter also called Felicia Moore, a teller at Chase Bank in Monroe. Ms. Moore confirmed that Carter had opened the account on August 28, 2011, the “telephone transfer” occurred on August 29, and Carter thought Ms. Briggs did it. She admitted, however, that Chase’s records did not show who actually made the transfer, and that only the account holder could change the settings, not by iPhone but by computer. She theorized that Ms. Briggs, having access to Carter’s home PC and personal information, could have changed Carter’s account settings and then moved the money out of his account. Ms. Moore confirmed that |4after receiving a police report of fraud, Chase would normally transfer the money back to the customer’s account, but this did not happen here because the bank suspected that Carter might have authorized Ms. Briggs to do what she did (also, Ms. Briggs had closed her account by then).

In addition to her own testimony, Ms. Briggs called her sisters, Sarah Thomas and L.D. Briggs, and her son, Kelly Briggs. They corroborated that they had loaned the couple various amounts of money over the months and, in late August 2011, Ms. Briggs repaid them the amounts stated in the discovery response. They admitted that all loans were in cash and without any documentation.

Ruling from the bench, the court told Carter, “Not one centillion [sic] of any piece of testimony that you have given has been credible to the court.” Instead, the court branded him “the author of what you thought was an elaborate scheme * * * to accuse the defendant of taking the money without your knowledge or without your authorization and reporting it to the bank or pretending to be surprised and bamboozled” by the fact the money was gone. The goal was to pay his debts but “also to have the financial institution to reimburse you, so to speak, or to place the money back in your account.” By contrast, the court found Ms. Briggs credible and accordingly dismissed Carter’s claim.

Carter now appeals, raising two assignments of error. By his first assignment, he urges the court erred in treating the ease as “a simple credibility choice” and, specifically, in failing to recognize his right of subrogation under La. C.C. art. 1829(3). This article states that subrogation takes place by operation of law, inter alia, “[i]n favor of an obligor who pays |fia debt he owes with others or for others and who has recourse against those others as a result of the payment.” He argues that even in Ms. Briggs’s version of events, she used Carter’s “separate” funds to pay $4,300 in joint debts and $3,300 in personal debts; hence, of the $7,600 she took, he is entitled to get $5,450 back. However, the record does not show that Carter urged the theory of subrogation in the trial court. As a general rule, appellate courts do not consider issues that were not raised in the pleadings, were not addressed at trial, or are raised for the first time on appeal. Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129; Mendoza v. Grey Wolf Drilling Co., 46,438 (La.App. 2 Cir. 6/22/11), 77 So.3d 18, writ denied, 2011-1918 (La.11/14/11), 75 So.3d 943. Such is the case here. Moreover, the testimony, sparse as it is, does not support the argument that Carter had recourse against Ms. Briggs, but rather that the $7,600 was his portion of their expense-sharing agreement. We perceive no error.

By his second assignment of error, Carter urges the court erred in crediting Ms. Briggs rather than himself. He argues that Ms. Briggs is “demonstrably a person of poor character,” while there is “no evidence” that he is such, and no rational fact finder could accept certain of her claims (such as that she acted on Carter’s instructions, or that she actually paid her family members the money). He also argues the judgment impermissibly shifted the burden of proof by making him disprove the claim of oral authorization to take money from his account.

Of course, the reviewing court gives much discretion to the trial court’s findings of fact. Guillory v. Lee, 2009-0075 (La.6/26/09), 16 So.3d 1104; Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. When there is conflict in the testimony, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable. Id. In short, the appellate court will not reverse unless it finds no reasonable factual basis for the trial court’s finding and that the finding is clearly wrong. Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802; Guillory v. Insurance Co. of N. Amer., 96-1084 (La.4/8/97), 692 So.2d 1029. The issue is not whether the trial court was right or wrong, but whether its finding was reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

On close review we detect no abuse of discretion. The trial court’s findings depended almost entirely on conflicting testimony of the he said, she said variety. True, the court could have rejected Ms. Briggs’s account, for the reasons advanced by Carter in brief; however, the court could also reject Carter’s account, in light of his admittedly “fudged” crime report to Sgt. Staten, his history of drawing worker’s comp while working for Pine Valley, and his alleged theft of equipment and cookie dough from Pine Valley. We also note the bank teller’s testimony that Chase Bank denied the normal reimbursement because it suspected that Carter himself authorized the transfer. This record supports the court’s rational finding that Carter transferred, or authorized the transfer of, $7,600 to Ms. Briggs’s account and fabricated the theft in a futile effort to make the bank pay him back. We perceive no manifest error.

For these reasons, the judgment is affirmed at Carter’s costs.

JjAFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Brandon KOHLMAN, Appellant.
    No. 48,807-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Teresa C. Carroll, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PITMAN and GARRETT, JJ.
   WILLIAMS, J.

_JjThe defendant, Brandon Kohlman, was charged by amended bill of information with forcible rape, a violation of LSA-R.S. 14:42.1(A)(1). Pursuant to a plea agreement, the defendant pled guilty to attempted simple rape, a violation of LSA-R.S. 14:43 and 14:27. The defendant was sentenced to serve 12½ years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence and ordered to register as a sex offender. The trial court denied the motions to reconsider sentence filed by defendant pro se and by defense counsel. The defendant now appeals. For the following reasons, we affirm defendant’s conviction and sentence.

FACTS

The record shows that in April 2012, Webster Parish Sheriffs Department officers investigated allegations that the defendant had sexually abused his 19-year-old stepdaughter, K. B., who is mentally impaired. The defendant was arrested and charged with forcible rape. As a result of the plea bargain, defendant pled guilty to the reduced charge of attempted simple rape. Prior to accepting defendant’s plea, the district court advised the defendant of the maximum penalty for a plea of guilty to attempted simple rape and that he would be required to register as a sex offender. The court then accepted the defendant’s plea as freely and voluntarily given. Subsequently, the district court imposed a sentence of 12½ years at hard labor to be served without benefits. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in denying the defense motions to reconsider sentence and in imposing an excessive sentence. |2Initially, we note that defendant’s pro se motion to reconsider sentence asserts that in return for his guilty plea, he was promised a 10-year maximum sentence with the requirement to register as a sex offender for only 15 years. Contrary to defendant’s allegations, the record demonstrates that during the guilty plea colloquy, the district court expressly informed the defendant of the nature of the charge to which the plea was offered (attempted simple rape), that he was susceptible to receiving a sentence of 12½ years without benefit of parole, probation or suspension of sentence and would be required to register as a sex offender. The defendant acknowledges receiving said sentence, the record shows there was no contemporaneous objection to the guilty plea agreement and there is no evidence that he was promised a lesser sentence. Thus, the record does not support the allegations of defendant’s motion to reconsider.

In addition, the defendant argues that the maximum sentence imposed is excessive because his imprisonment would entail significant hardship for his wife and sons. Defendant also asserts that he is not one of the worst offenders.

In reviewing a sentence for excessiveness, the appellate court applies a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The important elements which should be considered are the defendant’s personal history (age, family ties, marital ^status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App.2d Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

As a general rule, maximum or near maximum sentences are reserved for the worst type of offenders. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The sentencing range for attempted simple rape is mandatory imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than 12½ years. LSA-R.S. 14:43 and 14:27.

Prior to imposing sentence, the district court reviewed a presentenee investigation (“PSI”) report and recited defendant’s criminal history, which included a prior felony conviction for attempted simple burglary. The court considered the letters of support submitted by members of defendant’s family and the facts surrounding the incident. The court noted that the victim had been a special education student with a mild to moderate learning impairment.

In considering the guidelines of Article 894.1, the court found that defendant was in need of correctional treatment most effectively provided by commitment to an institution and that a lesser sentence would deprecate the seriousness of his offense. As aggravating factors, the court found that defendant was aware the victim was particularly vulnerable because of her mental impairment, that defendant used his position as stepfather to facilitate | Bthe commission of the crime, that he used threats of violence and a dangerous weapon in committing the crime and that there was an absence of grounds which would excuse or justify his criminal conduct.

Regarding the defendant’s social history, the court was aware of defendant’s age, that he had received treatment for alcoholism and that he was employed at the time of his arrest for this offense. However, the PSI indicated that the victim was fearful of the defendant and that she currently receives no support or contact from her mother.

The record demonstrates that the district court provided ample reasons for the imposition of this maximum sentence, which is not disproportionate to the severity of the offense. Considering the facts and circumstances of the offense committed and the defendant’s reduced sentencing exposure through the plea agreement, we conclude the trial court did not abuse its discretion in sentencing this defendant. Thus, we cannot say the 12]6-year sentence imposed is constitutionally excessive. This assignment of error is without merit.

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

CONCLUSION

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

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Waco COLLINS, Jr., Appellant.
    No. 48,782-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Joseph R. Keene, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   LOLLEY, J.

| j This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, whereby the defendant, Waco Collins, Jr., pled guilty to: possession of over 400 grams of cocaine, a violation of La. R.S. 40:967F(l)(c); distribution of a Schedule II Controlled Dangerous Substance, a violation of La. R.S. 40:967A(1); and, conspiracy to distribute a Schedule II Controlled Dangerous Substance, a violation of La. R.S. 14:26 and La. R.S. 40:967A(1). He was adjudicated a fourth felony offender and sentenced on each conviction to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, the sentences to run concurrently, and with credit for time served. Collins now appeals, and for the reasons stated herein, we affirm.

Facts

On February 27, 2012, Collins and three others were arrested as a result of a complex, undercover drug operation. Upon arrest, and after being advised of his Miranda rights, the defendant informed officers about his drug trading business and surrendered his remaining supply of cocaine. The total weight of the cocaine recovered from each arrest was about one kilogram. On September 25, 2012, the defendant, present with counsel, pled guilty to possession of over 400 grams of cocaine, distribution of a Schedule II Controlled Dangerous Substance, and conspiracy to distribute a Schedule II Controlled Dangerous Substance.

Subsequent to Collins’ guilty plea, the state filed a habitual offender bill of information under La. R.S. 15:529.1 seeking to have the defendant declared a fourth felony offender based on three prior convictions: (1) ^possession of a Schedule II Controlled Dangerous Substance on February 16, 1995; (2) armed robbery on July 2, 1996; and (3) aggravated battery on May 17, 1999. The record indicates that the state originally - sought to have the defendant adjudicated a fifth felony offender; however, because two felony convictions were pled on the same date and related to the same crime, it charged him only as a fourth felony offender.

To prove the first felony conviction, the state produced: a November 20, 1994, bill of information; court minutes bearing the name of the defendant, the crime charged, and a conviction date of February 16,1995; and, a set of fingerprints taken by a deputy sheriff on February 16, 1995. To prove the defendant’s second felony conviction, the state produced: a March 13, 1995, amended bill of information; court minutes bearing the name of the defendant, the crime charged, and a conviction date of July 2, 1996; and, a set of fingerprints bearing the defendant’s name taken by a deputy sheriff on July 2, 1996. To prove the third conviction, the state produced: a February 4, 1999, bill of information; court minutes bearing the name of the defendant, the crime charged, and a conviction date of May 17, 1999; and, a set of fingerprints taken by a deputy sheriff on May 17, 1999. Each document bore a raised seal and signature and was certified by the Caddo Parish Clerk of Court’s Office as being a true copy of the original court record. Additionally, the fingerprints used by the state to prove the identity of the defendant were obtained in accordance with La.C.Cr.P. art. 871(B)(1)(a) which provides, in pertinent part, that “[i]n every judgment of guilty of a felony ..., the sheriff shall cause to be attached to the bill of information or indictment the fingerprints of the defendant against whom [3such judgment is rendered.” The documents tendered by the state were compiled into separate exhibits with each exhibit representing one of the three predicate felony convictions.

At the habitual offender hearing, the state presented the testimony of Lt. Owen McDonnell, who was accepted without objection as an expert in fingerprint comparison and analysis. Using a set of fingerprints obtained from the defendant prior to the hearing, Lt. McDonnell examined the fingerprints in each of the state’s exhibits, and testified that each of them matched the defendant’s prints taken that day in court.

To further strengthen its ease, the state requested that Lt. McDonnell also examine each exhibit and compare the conviction date found in the court minutes with each date the fingerprints were taken. Lt. McDonnell explained that each date found on the fingerprints coincided with the corresponding conviction date. For example, in state’s exhibit S-2, which was tendered in support of the first predicate felony conviction, possession of a Schedule II Controlled Dangerous Substance, the court minutes revealed that the defendant pled guilty on February 16, 1995. The fingerprint document found in state’s exhibit S-2 also revealed that the defendant’s fingerprints were taken by a deputy sheriff in court on February 16, 1995, in accordance with La.C.Cr.P. art. 871(B)(1)(a).

Following cross-examination, the defendant objected to the introduction of the fingerprints as hearsay on the basis that the fingerprints were not identified with the respective bills of information tendered for each prior conviction. The defendant’s objection was overruled and the fingerprints and testimony were entered into evidence. Ultimately, the trial |4court found that the state proved, beyond a reasonable doubt, that the defendant charged as a habitual offender was the same person who was convicted of the alleged convictions and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. It is from this conviction and sentence as a multiple offender that the defendant appeals.

Discussion

On appeal, Collins assigns two assignments of error, both related to the state’s burden of proving, beyond a reasonable doubt, his status as a multiple offender. Specifically, the defendant takes issue with the methodology used by the state to prove his identity; he argues that the fingerprints are not properly linked to the corresponding bills of information and, therefore, do not qualify as competent evidence. We disagree.

To prove that a defendant is a habitual offender, the state is required to establish, by competent evidence, that there is a prior felony conviction and that the defendant is the same person who was convicted of that prior felony. State v. Payton, 2000-2899 (La.03/15/02), 810 So.2d 1127; State v. Bobo, 46,225 (La.App.2d Cir.06/08/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202. Because it is a question of fact, the state must prove that the defendant is the same person who committed the prior crimes it alleged beyond a reasonable doubt. La. R.S. 15:529.1; State v. Holmes, 12,351 (La.App. 5th Cir. 12/11/12), 106 So.3d 1076, writ denied, 2013-0086 (La.06/14/13), 118 So.3d 1080. The trial court’s determination of this question of fact will only be reversed if it is clearly wrong. Holmes, supra.

|./Various methods of proof establishing identity have been recognized as sufficient to sustain the state’s burden of proof including testimony of witnesses, expert opinion as to fingerprints, photographs contained in duly authenticated records, and evidence of identical driver’s license number, sex, race, and date of birth. State v. Brown, 2011-1656 (La.02/10/12), 82 So.3d 1232; State v. Henry, 42,416 (La.App.2d Cir.09/19/07), 966 So.2d 692, writ denied, 2007-2227 (La.08/29/08), 989 So.2d 95.

Here, the state elected to prove the identity of the defendant in the prior convictions by taking the defendant’s fingerprints in the courtroom on the day of the multiple offender hearing and having an expert compare them to the fingerprints from the defendant’s prior convictions. The state also had the expert link each set of fingerprints to the corresponding felony conviction by comparing the date found on the fingerprints to the date of conviction as shown in the court minutes.

While we recognize the fingerprints do not contain such items as the suit number or the defendant’s signature, they do contain evidence sufficient to link them to each felony conviction alleged by the state. Thus, when Lt. McDonnell compared the defendant’s fingerprints taken in court the day of the hearing with the fingerprints found in each of the state’s exhibits, as well as explained the relationship between the conviction dates and the dates the fingerprints were taken, this created overwhelming circumstantial evidence that the defendant was the same person convicted in each of the three predicate felony convictions.

Moreover, and crucial to our finding, each document tendered by the state was certified as being a true copy. That is to say, the Caddo Parish |6Clerk of Court’s Office certified by signature and seal that the bills of information, court minutes, and fingerprint documents were copies of the original documents that came out of the files bearing the case number, charge, and the defendant’s name.

We conclude that the evidence was sufficient to prove, beyond a reasonable doubt, that the defendant was the same person who was convicted of each predicate felony conviction. Accordingly, this conviction is valid for habitual offender purposes, and the defendant’s assignments of error are without merit.

Conclusion

Considering the foregoing, the conviction and sentence of Waco Collins, Jr., is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Robert MILES, Appellant.
    No. 48,830-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott II, District Attorney, Cloyce C. Clark, III, Tommy J. Johnson, Mark H. Kramar, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   CARAWAY, J.

| j After a jury convicted Robert Miles of possession of cocaine, he pled guilty to being a second felony habitual offender and was sentenced to 8 years at hard labor. He appeals arguing only that his sentence is excessive. We affirm.

Facts

On August 13, 2012, at around 7:30 a.m., officers of the Shreveport Police Department responded to calls concerning shots being fired. The description of the suspect given to officers was a black male of medium build who was relatively short, less than 6 feet tall, and wearing a dark top. Upon arriving at the scene, Corporal M. Shultz heard several additional shots. Thereafter, Shultz observed Robert Miles, who fit the description of the suspect, walking through a nearby field. Corporal Shultz approached Miles and asked him to stop, but he kept walking. Miles ran to a neighboring house and knocked on the door, but the occupant slammed the door in his face. Another officer arrived on the scene and Miles surrendered. Miles was detained and patted down, but no weapons were found.

When Officer Eric Swartout arrived, Miles was already handcuffed and in the back of a police car. Officer Swartout searched Miles and inside of his front right pants pocket found a cigarette package. “Sticking out” of the cigarette package was a blue cellophane Baggie containing about one gram of cocaine. In the area of Miles’ apprehension, Corporal Shultz located five 9mm shell casings. When Miles was searched at the jail, a 9mm live round was found in his pocket. The markings on that bullet matched other casings found at the scene.

|20n October 8, 2012, Miles was charged by bill of information with possession of a Schedule II CDS, cocaine, in violation of La. R.S. 40:967, and illegal use of weapons or dangerous instrumentalities, in violation of La. R.S. 14:94. Miles waived formal arraignment and entered a plea of not guilty.

A jury trial began on February 25, 2013. The jury found Miles guilty as charged of possession of cocaine but acquitted him of illegal use of weapons or dangerous instru-mentalities. Motions for new trial and post-verdict judgment of acquittal were denied by the trial court.

On March 4, 2013, the trial court sentenced Miles to 5 years’ hard labor, to run concurrently with any other sentence he may be serving, plus a fine of $1,000 and court costs, or serve 60 days in jail.

On that same date, the state filed a habitual offender bill of information charging Miles as a fourth felony offender. Specifically, the bill alleged that in addition to the instant conviction for possession of cocaine, Miles had previously been convicted of possession of a Schedule II CDS on September 7, 1995, criminal damage to property on September 2, 2000, illegal use of weapons on March 30, 2004, and simple burglary on March 31, 2008. Miles waived formal arraignment and pled not guilty.

On April 9, 2013, the state filed an amended habitual offender bill charging Miles as a second felony offender, based only on his prior conviction for simple burglary.

Miles pled guilty to being a second felony habitual offender and waived sentencing delays. The court vacated the prior sentence and |ssentenced Miles to 8 years at hard labor, concurrent with any other sentence he may be serving.

The defense filed a motion to reconsider sentence on April 17, 2013, arguing only that the sentence imposed was constitutionally excessive. The trial court denied the motion on April 18, 2013, without a hearing. This appeal followed.

Discussion

Miles argues that the 8-year sentence is excessive and disproportionate to the severity of the crime. He contends that he is a drug user, rather than a peddler or distributor, suggesting a need for treatment or rehabilitation. Miles points out that he was not convicted of illegally using a firearm and there was no physical harm to anyone in this case. He further notes that sentencing was very brief and that the trial court failed to order or receive a presentence investigation report. He also contends that the trial court did not adequately consider any mitigating factors, nor did it tailor the sentence to him.

Failure to specify a ground for relief shall preclude the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal. La.C.Cr.P. art. 881.1(E); State v. Blanche, 47,014 (La.App.2d Cir.4/25/12), 92 So.3d 508; State v. Howard, 38,787 (La.App.2d Cir.8/18/04), 880 So.2d 980. In such a circumstance, this court has held that the defendant is relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Because Miles raised only a claim of excessiveness in his |4motion to reconsider sentence, his sentence review is limited to the bare excessive sentence claim.

La. R.S. 40:967(0(2) provides for imprisonment with or without hard labor for not more than 5 years and, in addition, a possible fíne of not more than $5,000 for the crime of possession of cocaine.

Louisiana’s Habitual Offender Law provides that if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1.

A sentence is constitutionally excessive in violation of La. Const, art. I, § 20, if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Blanche, supra. A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Blanche, supra.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Blanche, supra.

The sentencing range for Miles, a second felony offender convicted of possession of cocaine, was not less than 2-1/2 nor more than 10 years at hard labor. Thus, Miles’ sentence of 8 years at hard labor is within the statutory range. The record shows that Miles was 47 years old at the time of the instant crime and was found to be in possession of one gram of cocaine. His criminal history includes prior convictions for possession of a Schedule II CDS, criminal damage to property, illegal use of weapons, and simple burglary. Although not clear that the amended bill was part of a plea agreement, the record shows that the state allowed Miles to plead guilty as a second felony offender, rather than charging him as a fourth. If adjudicated a fourth felony offender, he would have faced a sentence exposure of 20 years to life imprisonment. Thus, Miles benefitted substantially from reduced sentence exposure.

Considering these facts, we find that Miles’ sentence is not constitutionally excessive. His criminal record includes a prior drug offense for which he has failed to benefit from prior leniency in sentencing. The remainder of his criminal record shows an overall lack of rehabilitation. Moreover, he benefitted greatly from the reduced sentencing exposure afforded him through his guilty plea. In these circumstances, we find that the sentence imposed does not shock the sense of justice, nor is it | ^disproportionate to the severity of the offense. Therefore, this assignment of error is without merit.

AFFIRMED.

      . Although the record shows that no presen-tence investigation report was ordered, the trial court was not required to order such. State v. Collins, 32,409 (La.App.2d Cir.9/22/99), 763 So.2d 618.