author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Keith COOPER.
    No. 2012-KA-0174.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 10, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirk-ham, Assistant District Attorney of Orleans Parish, New Orleans, LA, for The State of Louisiana.
    C. Gary Wainwright, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

|sThe defendant appeals his convictions and sentences for armed robbery with a firearm, La. R.S. 14:64.3 and possession of stolen property, La. R.S. 14:69. The defendant assigns as error: (1) the trial court’s denial of the defendant’s motion to sever; (2) insufficiency of evidence to support convictions of armed robbery with a firearm; and (3) the trial judge’s entrance into the jury room during jury deliberations constitutes reversible error.

We find no error in the trial court’s judgment denying the defendant’s motion to sever. Additionally, we find the State presented sufficient evidence to convict the defendant of two counts of armed robbery with a firearm. Finally, the defendant waived his right of review for failure to make a contemporaneous objection at the time of occurrence of the trial judge’s entry into the jury room during jury deliberations.

The defendant’s convictions are affirmed and the sentence imposed for his conviction of illegal possession of stolen property is affirmed. The defendant’s sentences for two counts of armed robbery with a firearm are vacated and remanded for resen-tencing to impose the enhancement penalty of five years imprisonment as mandated by La. R.S. 14:64.3.

STATEMENT OF CASE

Keith Cooper was charged by bill of information with three counts of armed robbery with a firearm and one count of illegal possession of a stolen automobile. 14A jury trial was conducted on April 5, 2011, at which time the defendant was found guilty as charged on two counts of armed robbery with a firearm and one count of illegal possession of stolen property. The defendant was found not guilty on the remaining count of armed robbery with a firearm. The defendant was sentenced to a term of imprisonment to serve fifty years at hard labor on each count of armed robbery with a firearm and ten years at hard labor on his conviction for illegal possession of stolen property. The trial court ordered that all sentences are to be served concurrently.

STATEMENT OF FACT

Count One — Charles Lavoy

On or about April, 25, 2010, at approximately 3:45 a.m., Charles Lavoy began to enter his vehicle at the corner of Dumaine and Allard Streets when he noticed a gray or silver vehicle drive past his car and come to a swift halt. An African-American male jumped out of the car and approached his driver’s side window. The suspect pulled a gun out of his pants and pointed it at Lavoy. The suspect told Lavoy to give him his money. A second suspect came over and told Lavoy to turn over the car. Lavoy gave the suspects his wallet, keys, and cell phone, but he had no money in his possession. Lavoy exited the vehicle, and the two subjects entered the vehicle. Lavoy started walking back to his brother’s girlfriend’s house when he heard a gunshot and then he began running.

Lavoy’s vehicle was located a couple of days after the robbery. Upon inspection of his vehicle, Lavoy found a gun next to the fuse box under the hood. | sLavoy immediately notified the police of his discovery and was careful not to touch the weapon. The officers retrieved the weapon and preserved it for evidence.

Count Three-Stephanie Hinton

On April 26, 2010, at approximately 11:30 p.m., Stephanie Hinton left a coffee shop and headed home. Ms. Hinton was living on Iberville Street, near the intersection of Iberville and Murat Streets. Ms. Hinton parked her vehicle on the side of the street which was closest to her house. As Ms. Hinton walked around to the passenger side of the vehicle to get her bags out of the car, she heard a sound coming from behind. She turned around, facing Murat Street, and saw a man coming towards her with a gun. The man demanded that she give him everything she had. She gave him her keys and cell phone. At that point, another man approached Ms. Hinton and the first suspect. The second suspect took Ms. Hinton’s keys and got into her vehicle. The gunman instructed Ms. Hinton to turn around and to keep walking. Ms. Hinton complied with the orders of the gunman. While walking away, Ms. Hinton was able to hear her car start. Ms. Hinton was able to go to a neighbor’s home and call 911.

Arrest of Keith Cooper

On April 27, 2010, while responding to a complaint of loud music in the 500 block of Washington Avenue, New Orleans Police Officer James Alexander encountered the defendant, Keith Cooper. When the officer neared the 600 block of Washington Avenue, he could hear the music coming from a Hyundai Accent. Officer Alexander parked behind the vehicle, and walked to the driver’s side of the Hyundai. The car window was down so Officer Alexander tapped on the door and ordered the person in the driver’s seat, later identified as the defendant, Keith Cooper, to turn the music down and step out of the vehicle. The defendant blurted Rout that the vehicle was not his and he did not have a driver’s license. Officer Alexander ran the license plate number and learned that the vehicle was stolen. The officer then arrested the defendant for possession of a stolen automobile and advised the defendant of his Miranda rights. The defendant told the officer that the vehicle was a “rock rental.” Officer Alexander contacted the Third Police District detectives who came to the scene. The crime lab was also called out, and the defendant was taken to the Third Police District for questioning. Officers later learned that the owner of the Hyundai Accent was Charles Lavoy.

Jdentiñcation of Keith Cooper

Detective Hal Amos investigated the armed robberies of Charles Lavoy and Stephanie Hinton. The officer testified that Lavoy assisted in creating a composite sketch of the suspect, and Lavoy identified the defendant, Keith Cooper, in a photographic lineup as the person who robbed him. After the defendant was arrested in possession of Lavoy’s vehicle, the defendant became a suspect. A search was conducted at the defendant’s house, and two polo striped shirts, similar to the description given by Lavoy, were found.

Detective Brooke Duncan investigated the armed robbery of Stephanie Hinton. At approximately 11:45 p.m. she responded to a call of an armed robbery at the intersection of Iberville and Murat Streets. Ms. Hinton told Det. Duncan that there were two perpetrators. The defendant, Keith Cooper, was developed as a suspect when the officer learned that he had been arrested the night before in a stolen automobile. Ms. Hinton assisted in creating a composite photograph of the suspects and later identified the defendant, Keith Cooper, in a photographic lineup. Hinton told the officer that the suspects took her keys, her cell phone, and her car which contained her purse, I-Pod, and laptop computer. The vehicle was later |7recovered on South Alexander Street. The victim’s I-Pod was found in codefendant Michael Feltus’ house.

ERRORS PATENT

A review of the record for errors patent reveals two. The trial court imposed ille-gaily lenient sentences as to the two counts of armed robbery with a firearm, La. R.S. 14:64.3.

La. R.S. 14:64.3 restricts parole, probation, or suspension of sentences and mandates a sentencing enhancement of five years to run consecutively with the underlying sentence of armed robbery when the dangerous weapon used is a firearm:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

The first error patent is the trial court’s failure to impose the sentences without the benefits of probation, parole, or suspension of sentence as required by La. R.S. 14:64, La. R.S. 14:64.3, and La. R.S. 14:27. However, La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for ministerial correction of the sentences. State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Therefore, no remand is necessary to correct this error.

The second error involves the trial court imposing an indeterminate sentence. At the sentencing hearing, the trial court sentenced the defendant to serve fifty years in the Department of Corrections on each count of armed robbery |Rwith a firearm, sentences to run concurrently with each other and with the ten year sentence imposed for defendant’s conviction for illegal possession of stolen property. The trial court failed, however, to state the mandatory enhancement penalty within La. R.S. 14:64.3(A) of an additional five years imprisonment for each count of armed robbery to run consecutively to the sentences imposed under the provisions of La. R.S. 14:64.

This Court has previously addressed the error patent presented here in State v. Adams, 19-1140 (La.App. 4 Cir. 6/1/11), 68 So.3d 1165, and State v. Burton, 09-0826 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, writ denied, 10-1906 (La.2/11/11), 56 So.3d 999.

In Burton, this Court found the defendant’s sentence was indeterminate because the firearm enhancement was not included in his sentence. This Court noted that in cases where the minimum sentence had not been imposed, the Second, Third, and Fifth Circuit Louisiana Courts of Appeal held that the sentences were indeterminate, requiring that they be vacated, and that the cases be “remanded for resentenc-ing according to the law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3.” Burton, 09-0826 p. 3, 43 So.3d at 1076 (citing State v. Weaver, 38,322 (La.App.2 Cir. 5/12/14), 873 So.2d 909; State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08), 981 So.2d 881; State v. Price, 04-812 (La.App. 5 Cir. 3/1/05, 909 So.2d 612)). In Burton, this Court vacated the defendant’s sentence and remanded the matter for resentencing.

In Adams, this Court noted that it was unclear if the trial court failed to impose the additional five years or merely failed to specify that it had done so. This Court remanded the case with orders for the trial court to conduct a new sentencing hearing to impose sentences within the statutory guidelines of La. R.S. |a14:64 and impose consecutive five year sentences in compliance with La. R.S. 14:64.3, reserving to the defendant the right to appeal his new sentence.

Accordingly, the sentences as to counts one and three are vacated and remanded. The trial court is ordered to resentence the defendant in compliance with the mandates of La. R.S. 14:64.8.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In this assignment, the defendant argues that the trial court erred when it denied the defendant’s motion to sever offenses. La.C.Cr. P. art. 493 states:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Felony offenses that are not triable by the same mode of trial may still be joined in the same indictment or bill of information under the conditions specified in La. C. Cr. P. art. 493.2, which provides:

[ Ojffenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

Nonetheless, La.C.Cr.P. art. 495.1 provides that if the defendant or the State is prejudiced by the joinder of offenses in a bill of information or at trial, “the court may order separate trials, grant a sever-anee of offenses, or provide whatever other | inrelief justice requires.” In State v. Nix, 2007-1431, (La.App. 4 Cir. 6/18/08), 987 So.2d 855, this Court cited State v. Deruise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1232, for its discussion of the standard for reviewing a trial court’s ruling on a motion to sever counts:

A motion to sever is addressed to the sound discretion of the trial court, and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. [State v.] Brooks, 541 So.2d [801] at 804 [ (La.1989) ] (citing State v. Williams, 418 So.2d 562, 564 (La.1982)). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Id. (quoting State v. Washington, 386 So.2d 1368, 1371 (La.1980)). However, the fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So.2d 126 (La.1973), in a separate trial on the joined offense, does not per se prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So.2d 1012, 1019 (citing State v. Celestine, 452 So.2d 676 (1984)). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Brooks, 541 So.2d at 805.

Nix, 2007-1431, p. 11-12, 987 So.2d at 862.

A defendant bears a heavy burden of proving prejudicial joinder of offenses, and he must make a clear showing of prejudice. State v. Lebreton, 2003-0321 (La.App. 4 Cir. 10/8/03), 859 So.2d 785. In State v. Carter, 99-2234, pp. 34-35 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145, this Court stated: “Generally, ‘there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime,’ ” quoting State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990).

The Supreme Court in State v. Demise found that the two offenses of first degree murder were properly joined. The Court noted that although the crimes involved two different victims, the offenses were perpetrated on each victim within a relatively short time span, in the same area of town, and with the same weapon.

While the two charges in the present case share enough similarities to make joinder permissible, the facts of each offense are not identical and are easily distinguishable from each other. Furthermore, during voir dire, the prosecution and the defense referred to the charges as separate offenses and stressed to the potential jurors the importance of considering the charges independently. More important is that the evidence against the defendant on each count was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and evidence. All of the witnesses, with the exception of Officer Treadaway, the prosecution’s firearm expert, testified exclusively to either the murder of Gary Booker or that of Etienne Nachampas-sak. Only Officer Treadaway testified regarding both offenses, stating that the same gun was used in both murders. Additionally, both the prosecution and the defense compartmentalized their opening and closing statements according to the separate counts. In fact, over the prosecutor’s objection, the trial court allowed both defense attorneys to participate in closing arguments, with each one arguing a separate count. The trial judge also specifically instructed the jury that it was to consider the two counts separately and was to render a verdict as to each count independently of the other.

Deruise, 98-0541, p. 7, 802 So.2d at 1232-1233.

In State v. Lomax, 2009-1129 (La.App. 4 Cir. 3/24/10), 35 So.3d 396, this Court applied the Washington factors and concluded that the trial court did not 112abuse its discretion when it denied the defendant’s motion to sever the counts of possession of heroin and possession of a firearm by a convicted felon. This Court found that the defendant could not show that the jurors were confused by the presentation of the evidence or that they could not segregate evidence as to the two counts. The Court also noted that the defendant did not prove that the joinder of the two offenses caused the jury to infer a criminal disposition on his part, or that the joinder made the jury hostile. The Court took note of the fact that while the jury found the defendant guilty as charged as to the possession of heroin count, it failed to return a verdict on the felon in possession of a firearm count.

In the present case, the defendant was charged with three counts of armed robbery with a firearm and one count of possession of a stolen vehicle. The three counts of armed robbery with a firearm are felonies required to be tried by a jury of twelve, ten of whom must concur to render a verdict. However, the possession of a stolen automobile charge is a felony which requires a jury composed of six jurors, all of whom must concur to reach a verdict. La. C.Cr.P. article 782. In the present case, the defendant was tried by a twelve member jury, at least ten of whom concurred to render the verdicts in the present case. Thus, the offenses were properly joined under La.C.Cr.P. article 493.2.

Further, the armed robbery offenses were similar in nature, occurring within a few days of each other, within the same general location of the city, i.e. Mid-City, and during the late night, early morning hours. In each instance, there were two perpetrators, and a handgun was used. In two of the robberies, the victims’ vehicles were taken. Additionally, the illegal possession of the stolen vehicle charge was connected to the armed robbery of Charles Lavoy because the defendant was found to be in possession of Lavoy’s vehicle.

|1SA review of the trial transcript reveals that the evidence against the defendant on each count was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and evidence. Each robbery victim separately testified as to the facts of the crime. The State arranged its witnesses so that evidence of each offense was presented separately. The only officer who testified about two of the robberies was Officer Hal Amos. Additionally, the defendant’s only defense to each offense, except for the possession of a stolen automobile, was the same — lack of a reliable identification. There is nothing to suggest that the jury inferred a criminal disposition or was hostile towards the defendant. In fact, the jury found the defendant not guilty of the armed robbery of Victoria Willis. Thus, the defendant has not shown that he was prejudiced by the denial of his motion to sever offenses.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment of error, the defendant alleges that the trial judge committed reversible error when he entered the jury room during deliberations. However, the record reveals that the trial judge obtained the permission of both defense counsel and the State, and no contemporaneous objection was raised by defense counsel.

Under La.C.Cr. P. 841(A), “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Since there was no objection by defense counsel, this assignment is not preserved for review.

ASSIGNMENT OF ERROR NUMBER 3

| uThe defendant avers that the evidence presented was constitutionally insufficient to support a conviction on two counts of armed robbery with a firearm based upon misidentification.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green, supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but |, ¿rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Furthermore, this Court also reviews the reliability of an identification in accordance with the factors set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which are: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. State v. Stewart, 2004-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639.

In the present matter, both victims, Charles Lavoy and Stephanie Hinton, positively identified the defendant as one of the suspects who robbed them. Both victims assisted in the preparation of composite sketches and later identified the defendant, in photographic lineups and at trial, as one of the perpetrators who robbed them.

Lavoy testified that the defendant’s face was right in front of him. The defendant had to stoop down when he showed Lavoy the gun and told Lavoy to give him his money. Lavoy also stated that there was sufficient light in the area for him to see the defendant’s face clearly. Lavoy was able to give a description of the defendant, including the type of shirt the defendant was wearing at the time of the robbery. Lavoy noted that the defendant had large eyes, and that the defendant wore a cap that was pulled down on his forehead. A couple of days later, on April |Ui28, 2010, Lavoy assisted the police in preparing a composite sketch of the defendant and identified the defendant in a photographic lineup.

Stephanie Hinton testified that there was a street light on her street so she could see fairly well. She stated that she saw the defendant walk from Murat Street onto Iberville Street. The first suspect gave the defendant Ms. Hinton’s car keys, and the defendant got into the driver’s side of her vehicle. Three days after the armed robbery, April 29, 2010, Ms. Hinton assisted in preparing composite sketches of both men. The following day, April 30, 2010, she identified the defendant in a photographic lineup as the second suspect. Ms. Hinton stated that she was absolutely certain of her identifications. She also identified the defendant at trial as the second perpetrator.

Both Mr. Lavoy and Ms. Hinton acknowledged that they had the opportunity to view the defendant. There was sufficient lighting in both instances, and both victims testified that they were face to face with the defendant. Mr. Lavoy testified that the defendant stooped down to talk to him in his vehicle and pressed his face near the window. Ms. Hinton testified that she was focused on both of the perpetrators and was better able to remember the defendant because he appeared to be the older of the two perpetrators. Both victims gave specific descriptions of the perpetrators and were able to assist in the preparation of composite sketches, within a few days of the robberies. Additionally, both witnesses identified the defendant in photographic lineups within three to four days of the robberies. The victims’ testimony supports a conclusion that their identifications of the defendant were reliable.

Both victims testified that the defendant, along with another suspect, had robbed them of their personal belongings and automobiles. In the case of Mr. _JjjLavoy, the defendant was armed with a firearm during the robbery. In the robbery of Ms. Hinton, the first perpetrator was armed with a firearm. The evidence presented by the State was sufficient for the jury to conclude that the defendant was one of the perpetrators who robbed the victims, while armed with a firearm. This assignment is without merit.

CONCLUSION

Accordingly, the convictions and the sentence for illegal possession of stolen property are affirmed. The sentences as to the two counts of armed robbery with a firearm are vacated and remanded. The trial court is ordered to resentence the defendant in compliance with the mandates of La. R.S. 14:64.3.

      . In the bill of information, count one charged the defendant and co-defendant, Michael Feltus, with the armed robbery with a firearm of Charles Lavoy. Count two charged defendant with possession of a stolen automobile belonging to Charles Lavoy. Count three charged defendant with the armed robbery with a firearm of Stephanie Hinton. Count four charged co-defendant, Michael Feltus, with possession of stolen things, i.e. an I-Pod belonging to Stephanie Hinton. Defendant and co-defendant, Ronald Howard, were charged in count five with the armed robbery with a firearm of Victoria Willis. On January 25, 2011, Michael Feltus pled guilty as charged to both counts under North Carolina v. Alford. The trial court sentenced Feltus to five years at hard labor on the possession of stolen goods charge and to twenty years at hard labor on the armed robbery charge; said sentences to run concurrently.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. BELSOME, J.,

license: Public Domain

text:
    Leon A. CANNIZZARO, Jr., District Attorney for The Parish of Orleans, on behalf of The STATE of Louisiana v. AMERICAN BANKERS INSURANCE COMPANY. American Bankers Insurance Company v. State of Louisiana.
    Nos. 2012-CA-1455, 2012-CA-1456.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 10, 2013.

      Robert G. Harvey, Sr., Justin A. Zitler, Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, for Defendant/Appellant/Surety Corp. of America, et al.
    Fred L. Herman, Thomas J. Barbera, Mayra L. Scheuermann, Law Offices of Fred L. Herman, New Orleans, LA, for Appellee/Leon A. Cannizzaro, Jr., District Attorney for the Parish of Orleans, on behalf of the State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

_JjThe instant case arises out of judgments of bail bond forfeitures issued by Orleans Parish Criminal District Court. American Bankers Insurance Company (“ABIC”) sought to nullify the judgments of bond forfeitures and garnishment proceedings in Orleans Parish Civil District Court, rather than in Criminal District Court where the judgments were originally issued. The trial judge in Civil District Court determined that it lacked subject matter jurisdiction as to ABIC’s petitions for nullity and granted the State’s declina-tory exception for lack of subject matter jurisdiction pursuant to La. C.C.P. Art. 925(6). On appeal, ABIC argues that the trial court judge erred in granting the State’s declinatory exception because the basis for ABIC’s nullity action is civil in nature and subject to civil proceedings. We find that the trial court judge did not err in granting the State’s exception for lack of subject matter jurisdiction in that Louisiana statutory law and jurisprudence indicate that while a bail bond forfeiture proceeding is civil in nature, for jurisdictional purposes only, they are treated as criminal. Accordingly, ABIC should have raised its petition for nullity in Criminal District Court. Therefore, we affirm the trial court judge’s granting of the State’s declinatory exception for lack of subject matter jurisdiction.

|,PROCEDURAL AND FACTUAL BACKGROUND

Between 2006 and 2007, Orleans Parish Criminal District Court issued numerous judgments of bail bond forfeitures against ABIC in favor of the State of Louisiana. In 2009, the State filed a garnishment proceeding seeking a writ of garnishment directing JP Morgan Chase to pay over to the New Orleans sheriff property belonging to the judgment debtor ABIC. Thereafter, the writ was issued and JP Morgan Chase paid over approximately $152,863.73 to the sheriff who in turn paid the same to the State.

Subsequently, ABIC filed a petition for nullity of judgments of bond forfeiture in Civil District Court. ABIC also filed a petition for injunctive relief in the garnishment proceeding seeking to enjoin the Sheriff from disbursing the money received from JP Morgan Chase to the State. The petition for injunctive relief was denied as the Sheriff had already disbursed the money. ABIC took no further action relating to the injunction.

The State filed an exception for lack of subject matter jurisdiction as to ABIC’s petition for nullity. ABIC filed subsequent amended petitions for nullity. In December of 2011, ABIC filed a third amended and supplemental petition for nullity seeking to nullify both the judgments of bond forfeiture issued by Criminal District Court and the State’s garnishment petitions filed in Civil District Court. Additionally, ABIC filed an ex parte motion for abandonment pursuant to La. C.C.P. Art. 561 seeking to have the trial judge in Civil District Court declare the criminal proceedings, wherein the judgments of bond forfeiture were issued, abandoned for failure to take a step in the prosecution of the criminal proceedings in three years.

[ 3In June of 2012, the trial judge in Civil District Court conducted a hearing on the State’s exception for lack of subject matter jurisdiction. The State argued that Civil District Court does not have authority to review judgments of bond forfeiture pursuant to a petition for nullity wherein Criminal District Court issued the judgments. The State also argued that as to the garnishment proceedings to make the judgments of bond forfeiture executory, Civil District Court does have subject matter jurisdiction. The trial judge in Civil District Court rendered judgment granting the State’s exception for lack of subject matter jurisdiction and dismissing ABIC’s petitions for nullity. It is from the granting of the exception for lack of subject matter jurisdiction that the instant appeal arises.

STANDARD OF REVIEW

While “the trial court’s” factual findings on appellate review are subject to manifest error, “jurisdiction itself is a question of law subject to de novo review.” Winston v. Millaud, 05-0338 p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 149 (citing Sunrise Shipping Agency, Inc. v. Universal Maritime Servs., Ltd., 96-2703 (La.App. 4 Cir. 10/3/97), 700 So.2d 1135, 1137). On questions of law, the appellate court “gives no special weight to the findings of the district court, but exercises its constitutional duty to review questions of law and renders judgment on the record.” Id., 05-0338 at p. 5, 930 So.2d at 150. “Thus, in such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect.” Id.

SUBJECT MATTER JURISDICTION

The question here is whether in Orleans Parish the Civil District Court has jurisdiction to nullify judgments rendered by Criminal District Court. Orleans Parish is unique in that there are separate civil and criminal courts. Civil District |4Court has jurisdiction over civil issues only, and Criminal District Court has criminal jurisdiction only. See La. Const. Art. 7, §§ 81 and 83 (respectively). Notably, neither court has supervisory or appellate jurisdiction over the other. United Ben. Fire Ins. Co. of Omaha, Neb. v. Garrison, 166 So.2d 650, 651 (La.App. 4 Cir.1964).

For the purpose of determining jurisdiction, it is important to understand what relief ABIC seeks. The record before this Court demonstrates that ABIC sought to have Civil District Court nullify the judgments and proceedings of Criminal District Court.

ABIC contends that the “trial court erred as a matter of law in not entertaining the merits of [ABIC’s] nullity actions pursuant to [La. C.C.P. Art.2001 et seq.], insofar as [ABIC] alleged it was not served with process as required by law in either civil court proceedings, or criminal court civil proceedings on judgments of bond forfeiture.”

Pursuant to La.C.Cr.P. Art. 344(A), if the bail bond fixes the date of the appear-anee in Criminal District Court and the defendant fails to appear, the bond can be forfeited by Criminal District Court pursuant to La. R.S. 15:85 without any further pre-forfeiture notice. See La.C.Cr.P. Art. 844(A). If the bond does not fix the date of appearance, the defendant and the surety or the agent or bondsman is entitled to notice of the date the defendant is to appear. See La.C.Cr.P. Art. 344(B). If the defendant fails to appear, the bond can be forfeited again pursuant to La. R.S. 15:85. See La. R.S. 15:85. Should the defendant fail to appear, a hearing is conducted and a judgment of bond forfeiture is rendered “decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.” See La.C.Cr.P. Art. 849(B). The judgment cannot be ^enforced by the State for 190 days after the date of mailing the notice of the signing of the judgment. La.C.Cr.P. Art. 349.7(A)(1).

Additionally, the defendant and his sureties are entitled to “assert defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court that issued the judgment of bond forfeiture within sixty days after the date of mailing the notice of the signing of the judgment of bond forfeiture.” La. C.Cr.P. Art. 349.5(A)(1). “Nullity actions pursuant to [La. C.C.P. Art.2001 et seq.] not filed within the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.” La.C.Cr.P. Art. 349.5(A)(2).

ABIC failed to raise any objections pursuant to La.C.Cr.P. Art. 349.5(A)(1) in Criminal District Court relating to the judgments of bond forfeiture listed in its complaint. No appeals were timely taken. Accordingly, the State pursued enforcement of the judgments of bond forfeiture in garnishment proceedings in Civil District Court against JP Morgan Chase Bank, a third party in possession of property belonging to ABIC. After the State filed petitions to make executory the judgments of bond forfeiture in Civil District Court, ABIC sought to nullify the judgments and the garnishment proceedings for lack of service of process.

“A judgment rendered against a party who has not been served and who has not appeared is an absolute nullity.” State v. McCreary, 91-2270 (La.App. 4th Cir. 5/27/1993), 619 So.2d 755, 759. La. C.C.P. Art.2002 states,

A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
I fi(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

(citation omitted).

ABIC argues that “[djeclining to exercise subject matter jurisdiction on the nullity actions, while simultaneously maintaining subject matter jurisdiction over the civil court filings for which nullity is sought” should not stand. ABIC contends that either Criminal District Court entertains nullity actions under civil procedure rules, or the Civil District Court entertains a nullity action. We find ABIC’s assessment of the procedural facts in this case misguided. ABIC claims that Civil District Court relied on La. C.C.P. Art. 2002(A)(3) in granting the State’s declina-tory exception for lack of subject matter jurisdiction; however, the record indicates that Civil District Court granted the State’s declinatory exception pursuant to La. C.C.P. Art. 925(6). Thus, ABIC’s claim that Civil District Court arbitrarily exercised subject matter jurisdiction is without merit. We, therefore, address the issue of whether Civil District Court has subject matter jurisdiction over nullity actions on judgments of bond forfeiture and garnishment proceedings separately.

Nullity of Garnishment Proceedings

In this case, ABIC filed petitions for nullity of the petitions for garnishment alleging it did not receive service of process. Actions for nullity pursuant to La. C.C.P. Art. 2002 pertain to “final judgment[s]”. See La. C.C.P. Art. 2002. A petition for garnishment, like those filed by the State, is not a final judgment. Therefore, ABIC cannot seek to nullify petitions for garnishment for vice of form under La. C.C.P. Art. 2002.

| ./Furthermore, the burden rests with ABIC, the one attacking service of process, to establish with clear and convincing evidence that the State failed to provide notice. League Cent. Credit Union v. Gagliano, 336 So.2d 931, 932 (La.App. 4th Cir.1976). ABIC has not done so in this case. La. C.C.P. Art. 2412(A)(2) provides the method of service required for garnishment proceedings as follows:

The judgment creditor shall send to the judgment debtor written notice of the filing of the garnishment petition by mail or electronic means. However, the notice provided to the judgment debtor shall have no effect on the validity of the seizure, (emphasis added).

Thus, even if the State failed to provide proper notice, the issue is immaterial as “notice provided to the judgment debtor shall have no effect on the validity of the seizure.” La. C.C.P. Art. 2412(A)(2). For these reasons, ABIC’s claim that service of process renders the garnishment proceeding null pursuant to La. C.C.P. Art. 2002(A)(3) lacks merit.

In addition, Civil District Court was the proper venue to make executory the judgments of bond forfeiture. La. C.C.P. 2781 provides,

A judgment rendered in a Louisiana court may be made executory in any other Louisiana court of competent jurisdiction, if its execution has not been and may not be suspended by appeal, (citation omitted) (emphasis added).

La. C.C.P. Art. 2782 states in pertinent part,

... an ex parte petition complying with Article 891, with a certified copy of the judgment annexed, praying that the judgment be made executory. The court shall immediately render and sign its judgment making the judgment of the other Louisiana court executory.
The judgment thus made executory may be executed or enforced immediately as if it has been a judgment of that court rendered in an ordinary proceeding, (citation omitted) (emphasis added).

| ¡^Consequently, Civil District Court has subject matter jurisdiction over the garnishment proceedings rendered by Criminal District Court as provided by La. C.C.P. Art. 2417. Therefore, we find no issue with Civil District Court’s exercise of subject matter jurisdiction as it relates to the garnishment proceedings filed by the State to make executory the judgments of bond forfeiture.

Nullity of Judgments of Bond Forfeiture

Having found that Civil District Court has subject matter jurisdiction over the garnishment proceedings, we now find that Civil District Court does not have the same subject matter jurisdiction over ABIC’s petition for nullity of the judgments of bond forfeiture rendered in Criminal District Court.

ABIC argues that Civil District Court erred because actions in nullity filed pursuant to La. C.C.P. Art.2001 et seq. are subject to ordinary civil proceedings and as a result, Civil District Court has subject matter jurisdiction.

Louisiana jurisprudence demonstrates that an action for nullity is available with respect to judgments of bond forfeiture. State v. Likens, 577 So.2d 285 (La.App. 3d Cir.1991), writ denied, 580 So.2d 386 (La.1991). Judgments can be attacked on the grounds that they are absolutely null under La. C.C.P. Art. 2002 or relatively null as provided by La. C.C.P. Art. 2004. Failure to properly serve a defendant with process as required by law is a vice of form upon which a judgment can be nullified. La. C.C.P. Art. 2002(A)(2). Bankers Ins. Co. v. State, 37,080 p. 5 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 645. Additionally, an absolute nullity action may be brought at any time. La. C.C.P. Art. 2002(B).

Likewise, a relative nullity action is not limited to cases of fraud or ill practice, but is broad enough to include situations where a judgment is rendered through some improper practice or procedure. Duckworth Properties, LLC v. Williams, 10-0244 p. 4 (La.App. 4 Cir. 11/24/10), 52 So.3d 287, 290. “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practice.” La. C.C.P. Art. 2004(B).

With regard to jurisdiction over actions for nullity of judgments of bond forfeitures, we are guided by Louisiana jurisprudence. It is well settled that neither Civil District Court nor Criminal District Court has supervisory or appellate jurisdiction over the other. United Ben. Fire Ins. Co. of Omaha, Neb. v. Garrison, supra. See also Angelico v. Cannizzaro, 543 So.2d 1064, 1067 (La.App. 4th Cir.1989) (a judge of Civil District Court has no jurisdiction over a judge of the Criminal District Court while he is acting in his official capacity).

This Court in Maryland Nat’l Ins. Co. v. Garrison, 233 So.2d 32 (1970), held that Civil District Court has no jurisdiction over Criminal District Court to enjoin the execution of judgments of bond forfeiture. This Court stated,

... we still view as absolutely intolerable that one court having neither appellate, nor supervisory jurisdiction over a second court, should attempt to interfere by an injunction against the second court with that court’s operation of what it deems, rightly or wrongly, to be its business ... If the Civil District Court can enjoin the Criminal District Court, perhaps the Criminal District Court could imprison the Civil District Judge for contempt or conspiracy.

ImLikewise, in Connick v. Ward, 351 So.2d 250, 251 (La.App. 4th Cir.10/12/1977), the district attorney sought to enjoin the judges of Criminal District Court from imposing fines or forfeitures to be paid to the Appellate Process (Support) Fund. This Court found that Civil District Court may not exercise subject matter jurisdiction in an action for relative nullity against the judges of Criminal District Court; however, it did have jurisdiction as to the sheriff and the judicial administrator. Id. at 252. In determining that Civil District Court has no jurisdiction against the judges on the criminal bench, this Court stated that because “Civil District Court has no appellate jurisdiction ... [i]t therefore has no authority to review acts of the Criminal District Court.” Id.

Similarly, the merits of the present matter demonstrate that ABIC attempts to have Civil District Court review under a petition for nullity acts of Criminal District Court, namely the judgments of bond forfeiture. This Court in Connick v. Ward, made clear that Civil District Court has no authority to review the acts of Criminal District Court.

Our consideration of the merits of this case also includes a review of La. C.C.P. Art. 2006 which provides in pertinent part,

An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.

La. C.C.P. Art. 2006 states that an action to annul a judgment must be brought in the trial court. Louisiana jurisprudence demonstrates that courts have made a distinction between actions for absolute nullity and relative nullity. Relative nullity actions pursuant to La. C.C.P. Art. 2004 must be brought in the court that rendered the judgment. Succession of Schulz, 622 So.2d 693, 695 (La.App. 4th Cir.5/27/93). In this case, because Criminal District Court rendered the judgments of bond forfeiture, an action for relative nullity must be addressed by the rendering court.

Conversely, absolute nullity actions pursuant to La. C.C.P. Art. 2002 may be brought in any court at any time making it not necessary to bring the action in the court which rendered the judgment. See La. C.C.P. Art. 2006. See also Dawson v. Gosserand, 552 So.2d 1380 (La.App. 5 Cir. 11/15/89). Thus, jurisprudence would suggest that ABIC’s action to annul based on vice of form may be brought in Civil District Court despite Criminal District Court rendering the judgments of bond forfeiture.

If we end our analysis at this stage, Louisiana jurisprudence would indicate that for the purpose of subject matter jurisdiction, ABIC may bring an action for absolute nullity in Civil District Court. However, we find that a determination of subject matter jurisdiction based on the type of nullity action ABIC files, wholly ignores the substance of the petitions and the relief ABIC seeks. In the present matter, it is evident that ABIC seeks to annul the judgments of bond forfeiture rendered in Criminal District Court in an effort to cure its failure to challenge the issue earlier in the criminal proceedings under La.C.Cr.P. Art. B49.5.

In considering Louisiana statutory law and jurisprudence in globo, we are guided by the underlying principle that neither Civil District Court nor Criminal District Court has supervisory or appellate jurisdiction over the other. United, supra at 651. Because ABIC attempts to have Civil District Court review the judgments of bond forfeiture issued by Criminal District Court, we find that Civil District Court has no supervisory or appellate jurisdiction; and therefore, it has no authority to review acts of the Criminal District Court. ABIC’s remedy was to | iaseek relief on any issues involving vice of form and substance in Criminal District Court, and in the instance of an adverse judgment, to apply for relief with this Court. United, supra at 652.

In light of the above, we pretermit discussion of ABIC’s abandonment claim as a result of this Court’s finding of no subject matter jurisdiction.

DECREE

For these reasons, we find that the trial judge in Civil District Court properly rejected subject matter jurisdiction of ABIC’s petitions for nullity of the judgments of bond forfeiture. Accordingly, we affirm the trial judge in Civil District Court’s granting of the State’s declinatory exception for lack of subject matter jurisdiction.

AFFIRMED.

BELSOME, J., concurs in the result with reasons.

BELSOME, J.,

concurs in the result with reasons.

hi concur in the result of the majority’s opinion but write separately to discuss the trial court’s ruling as it relates to the specific claims made by American Banker’s Insurance Company (ABIC) in its action for nullity. In this appeal, the State received bond forfeiture judgments against numerous defendants and their Surety, in criminal district court. In Civil District Court, the State filed a petition to make the judgments executory and for garnishment. In response, ABIC filed a separate petition for nullity, asserting that the garnishment proceedings were an absolute nullity, for lack of proper service, and the bond forfeiture judgments were a relative nullity due to fraud or ill practices. The garnishment petition was later consolidated with the petition for nullity and the trial court granted the State’s exception to the nullity action for lack of subject matter jurisdiction. It is from this ruling that ABIC appeals.

When a judgment is alleged to be an absolute nullity, it may be attacked in any court. See La. C.C.P. art. 2002; La. C.Cr.P. art. 349.5(A)(2); Tracy v. Dufrene, 240 La. 232, 121 So.2d 843 (1960); Maryland Nat. Ins. Co. v. Garrison, 233 So.2d 32 (La.App. 4 Cir.1970); and Dawson v. Gosserand, 552 So.2d 1380 (La.App. 5 Cir.1989). In this case, the record reflects that ABIC’s nullity petition challenges the garnishment proceedings for lack of proper service. The law provides that the failure to provide notice has no effect on the validity of the seizure. I agree with the majority that ABIC cannot seek to nullify the State’s garnishment proceedings as there is no final judgment. Also, only Criminal District Court has jurisdiction over the relative nullity challenges to the bond forfeiture judgments for fraud or ill practices. For these reasons, I concur in the result.

      . ABIC filed appeals from the Criminal District Court's judgments of bond forfeitures in other cases; however, those cases were dismissed for ABIC’s failure to file timely appeal briefs.

      . Attached to ABIC’s third amended petition is a copy of the State's notification of the garnishment proceedings evidencing that the State provided notice pursuant to La. C.C.P. Art. 2412(A)(2).

      . La. C.C.P. Art. 2417 states,
      The procedure in garnishment proceedings under the writ of fieri facias in a court other than that which rendered the judgment shall be the same as if the garnishment were in the court where the judgment was rendered, except:
      (1) The judgment must be made executory in the court where the garnishment proceedings are filed, as provided in Article 2782; and
      (2) The writ of fieri facias directed to the sheriff, constable, or marshal of the court where the garnishment proceedings are filed may be issued either by the court which rendered the judgment or by the court which made the judgment executory.

      . ABIC avers that Maryland is "often mis-cited as to the holding and rationale ... where an improper injunction was clearly distinguished from a proper action in nullity.” We find that the language ABIC directs this Court to is dicta and at odds with jurisprudence on the issue of subject matter jurisdiction between the two district courts as is further discussed in this opinion. Therefore, we find such language not binding on the present matter.


author: TERRI F. LOVE, Judge.

text:
    Val C. CUPIT, Joseph Wallace Johnson, Ralph Schindler and Reed Hess v. CITY OF NEW ORLEANS through the BOARD OF ZONING ADJUSTMENTS and the Department of Safety and Permits.
    No. 2012-CA-1708.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 17, 2013.
    Shannon Casey Rodriguez, Michael I. Rodriguez, Jr., Rodriguez Law Office, New Orleans, LA, for Plaintiff/Appellant.
    Christy C. Harowski, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    Gary Clark, Roy M. Bowes, Joshua P. Matthews, Roy M. Bowes & Associates, Gretna, LA, Amicus Curiae.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

hVal C. Cupit, Joseph Wallace Johnson, Ralph Schindler, and Reed Hess (collectively “Plaintiffs”) seek review of the district court’s granting of the exception of no right of action filed by the City of New Orleans (“the City”). At the hearing on the exception of no right of action, the district court concluded that Plaintiffs have no standing to appeal a decision of the Board of Zoning Adjustments (“BZA”) because the Plaintiffs failed to prove specific harm. We find that Plaintiffs in this case have standing to seek judicial review of the BZA decision because the Plaintiffs, as neighboring property owners, are aggrieved persons as contemplated by La. R.S. 33:4727(E)(1) and Comprehensive Zoning Ordinance of the City of New Orleans (“CZO”) Section 14.11. Accordingly, we find the district court erred in finding that the Plaintiffs lacked standing to appeal a BZA decision, and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Macaluso Realty (“Macaluso”) owns the two-family home located at 825-827 Cha-pelle Street in the Lakeview neighborhood. Plaintiffs are individual homeowners in the same neighborhood. Prior to Hurricane Katrina, the Macaluso 12home enjoyed conforming status in the Lakeview two-family zoning district. After Hurricane Katrina, the Lakeview district was converted by city ordinance from two-family dwellings with a moratorium on new doubles to a single family zoning district with a waiver for existing doubles. See CZO 9A.1.3. For a property to maintain its non-conforming use as a double, owners had to rebuild and restore their properties within five years of Hurricane Katrina or lose their right to do so. See CZO 9A.1.3(2)(A)(c). The deadline for obtaining a permit to restore two-family dwellings that existed before Hurricane Katrina in Lakeview was August 29, 2010. Id. Two-family dwellings that failed to obtain a building permit by August 29, 2010, would lose their two-family status and revert to single-family status. Id.

In 2006, Macaluso applied for and received an emergency permit to restore the double residence; however Plaintiffs claim that no substantive repairs were completed on the structure and as a result the permit expired.

Macaluso received a supplemental permit to complete Hurricane Katrina repairs in October 2010, two months after the five year deadline to rebuild under the Lake-view zoning ordinance.

Additionally in October of 2011, Macalu-so received a second supplemental permit to complete Hurricane Katrina repairs. Three days later, the Director of the Department of Safety and Permits revoked the second supplemental permit citing that the property had lost its non-conforming use status under CZO 9A.1.3. Macaluso subsequently filed an appeal to the BZA.

Following a public hearing, the BZA overturned the decision of the Department of Safety and Permits to revoke the supplemental permit of October |s2011. Plaintiffs filed with the district court a writ of certiorari and appeal of the BZA decision to reinstate the supplemental permit. Plaintiffs claimed that the BZA’s decision was arbitrary and capricious because Ma-caluso was erroneously granted a supplemental permit in October 2011 in violation of CZO 9A.1.3. The City filed an exception of no right of action claiming that Plaintiffs do not belong to the class of aggrieved parties for whom the law provides a remedy because they have not suffered specific identifiable harm as a result of the BZA’s decision to overturn the revocation of Macaluso’s supplemental permit. The district court concluded that because Plaintiffs failed to demonstrate any specific harm, Plaintiffs did not have standing to seek a remedy in the present matter. Consequently, the district court granted the City’s exception of no right of action.

It is from the district court’s ruling granting the City’s exception of no right of action that this appeal follows.

STANDARD OF REVIEW

Review of a peremptory exception of no right of action is reviewed de novo as it involves questions of law. Parker v. State, 11-1475, p. 1 (La.App. 4 Cir. 3/7/12), 86 So.3d 791, 793, writ denied, 12-957 (La.6/15/12), 90 So.2d 1067. This Court has previously stated:

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211; See also La. C.C.P. art. 927. The exception of no cause of action determines whether, based on the facts alleged in the four corners of the petition, the law affords the plaintiff a remedy. The court accepts the allegations of the petition as true, and decides whether the plaintiff is legally entitled to the relief claimed in the petition. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

| Jenkins v. Gray Ins. Co., 11-0035, p. 3 (La.App. 4 Cir. 7/6/11), 67 So.3d 707, 709, writ denied, 11-1821 (La.10/21/11), 73 So.3d 389.

EXCEPTION OF NO RIGHT OF ACTION

Plaintiffs allege that the district court erred in granting the City’s exception of no right of action because Plaintiffs are “aggrieved” by the BZA’s decision to reinstate Macaluso’s supplemental permit as required by La. R.S. 33:4727 and New Orleans CZO § 14.11. La. R.S. 33:4727(E)(1) states:

Any person or persons jointly or severally aggrieved by any decision by the board of adjustment ... may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds for the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.

Additionally, CZO § 14.11 provides in pertinent part:

Any persons or persons ... aggrieved by any decision of the Board of Zoning Adjustments may present to the Civil District Court within thirty days after the filing of the decision in the office of the Board, a writ of certiorari asking for such relief and under such rules and regulations as are provided for such matters in appropriate legislation of the State of Louisiana.

The above statute and ordinance both codify a cause of action brought by an “aggrieved” person or persons to challenge the legality of a BZA decision. The district court in this case interpreted “aggrieved” as a showing of present or future probable harm to one’s property, as defined by the first inquiry in a three-part test announced in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) and adopted by Louisiana Hotel-Motel Ass’n v. Parish of East Baton Rouge, 385 So.2d 1193, 1196 (La.1980).

The three-part test set forth in Hunt involved a determination of whether a neighborhood association has standing to bring an action on behalf of its members. |sHunt established that in order for a neighborhood association to have standing, the first inquiry was whether the members of the organization would be able to bring suit in their own right. Vieux Carre Property Owners v. Hotel Royal, L.L.C., 09-0641, p. 4 (La.App. 4 Cir. 2/3/10), 55 So.3d 1, 2-3. Secondly, the inquiry asks “whether the interests of the association wished to protect were pertinent to its purpose.” Id., 09-0641 at p. 4, 55 So.3d at 3. Finally, the Hunt test requires that the organization establish that neither the claim asserted nor the relief sought requires individual members’ participation. Id.

The Louisiana Supreme Court has held that in order to meet the first prong of the Hunt test, the neighborhood association must establish harm that is not only “present and probable for the future” but also establish harm that would occur to the members themselves. Id., 09-0641 at p. 5, 55 So.3d at 3.

Hotel Royal and Yokum

The City cited this Court’s opinions in Hotel Royal, supra, and Yokum v. Nicholas S. Karno, II, Inc., 10-1239 (La.App. 4 Cir. 6/1/11), 66 So.3d 1240, to support its argument that Plaintiffs have no right of action because they cannot establish actual or specific harm as intended in Hunt.

In Hotel Royal, the neighborhood association filed a petition for declaratory judgment and for a preliminary and permanent injunction alleging that the defendants’ expansion of their hotel property violated local zoning ordinances. Hotel Royal, 09-0641 at p. 3, 55 So.3d at 3. The neighborhood association alleged that the expansion of the hotel property threatened the “architectural, historical, cultural and aesthetic integrity, and values of the Vieux Carre” and would create additional traffic congestion, noise, and other destructive activities to the French Quarter. Id., 09-0641 at p. 3, 55 So.3d at 6-7. Applying the first prong of the | fiHunt test, this Court found that the association failed to establish present or probable harm for the future. We concluded that the allegation that the alleged zoning violations would threaten the values of the Vieux Carre to be subjective and not susceptible to measurement. Id., 09-0641 at p. 1, 55 So.3d at 7. This Court also found that possible increased congestion and noise due to the zoning violations did not rise to the level of “present and probable harm.” Id.

Similarly in Yokum, two neighborhood associations and two private individuals filed suit for damages and injunctive relief alleging that the defendant’s bar establishment violated municipal noise ordinances. Yokum, 10-1239 at p. 1, 66 So.3d at 1242. This Court applied the Hunt test and determined that the first prong was not satisfied. The neighborhood associations failed to demonstrate that a single member of the association within listening distance of the defendant’s bar suffered actual damage to his person or property due to the bar’s alleged illegal conduct. Id., 10-1239 at p. 5, 66 So.3d 1240 at 1243-44. Furthermore, this Court concluded that the neighborhood associations failed to allege that either association sustained damage due to the bar’s activities. Id, 10-1239 at p. 5, 66 So.3d 1240 at 1244.

In this case, the City claims that if actual harm is necessary for a neighborhood association to bring suit on behalf of its members, then it should follow that the neighbors should be required to make the same showing of actual harm. Thus, the City alleges that because Plaintiffs failed to prove that they suffered any actual harm, Plaintiffs lack standing to appeal the BZA’s decision to reinstate the supplemental permit.

We find the procedural posture of Hotel Royal and Yokum, both cases that the district court in this case relied on to grant the exception of no right action, to |7be distinguishable from the present matter as they both involve injunctions. Here, the Plaintiffs seek judicial review of the BZA’s decision to reinstate Macaluso’s supplemental permit pursuant to statute and ordinance.

Carrollton/Riverbend

Unlike Hotel Royal and Yokum, we find the present case is procedurally similar to this Court’s recent opinion Carrollton/Riverbend Neighborhood Ass’n v. The City of New Orleans, 11-1737 (La.App. 4 Cir. 6/27/12), unpub. In Carrollton/Riverbend, a neighborhood association sought judicial review of the BZA’s decision which granted a zoning variance pursuant to La. R.S. 38:4727(E)(1) and CZO § 14.11. Robinson Ventures, L.L.C. purchased two parcels of land on Zimple Street and filed an application for a zoning variance with the BZA. One purpose of the neighborhood association, whose members reside in the Carroll-ton neighborhood, is to preserve the area’s historic character. The neighborhood association filed a petition for writ of certio-rari and judicial review of the BZA decision approving the zoning variance of one of Robinson’s properties.

Robinson intervened and filed an exception of no right of action, alleging that the neighborhood association failed to sustain actual economic harm or to have a pecuniary interest in the matter. Following the district court’s finding that the neighborhood association lacked standing, an appeal to this Court followed.

On appeal, Robinson claimed, as does the City in this case, that in order to be an “aggrieved” party, the neighborhood association must demonstrate harm that is present or probable for the future as a result of the BZA zoning waivers. In Carrollton/Riverbend, this Court concluded that Hotel Royal and Yokum are distinguishable, where the action is brought pursuant to La. R.S. 33:4727(E)(1) and CZO § 14.11. The Carrollton/Riverbend opinion stated:

Nothing in Hotel Royal and Yokum implies intent to overturn years of jurisprudence allowing neighbors and neighborhood associations to seek judicial review of a BZA decision to grant a variance to zoning ordinances ... [the neighborhood association was] only required to allege that the BZA acted illegally and specify the grounds for the illegality ... [and there is] no requirement in the statute or ordinances that the neighbors or neighborhood association demonstrate a clear, direct economic injury to secure judicial review of a BZA decision.

Carrollton/Riverbend, 11-1737 at p. 5. See also Joubert v. City of New Orleans Office of Safety & Permits, 09-0601 (La.App. 4 Cir. 1/13/10), 30 So.3d 186. (Neighbors given the opportunity to present their grievances to the district court pursuant to La. R.S. 33:4727(E)(1)).

The right to judicial review of a BZA decision to reinstate a zoning ordinance waiver is provided by statute and ordinance. Here, the Plaintiffs as adjacent property owners and neighbors are among the individuals the zoning ordinances are in place to protect. See Curran v. Board of Zoning Adjustments, 580 So.2d 417 (La.App. 4 Cir.1991). Likewise, as we noted in Carrollton/Riverbend, “a variance to zoning ordinances erases that protection, causing aggrievement.” Carrollton/Riverbend, 11-1737 at p. 5.

The City contends that Carrollton/Riverbend is distinguishable from the present case because it does not involve a zoning variance request. Rather, the BZA decision maintains the use of the Macaluso property as a two-family dwelling. However, it is the decision to maintain the use of the property as a two-family dwelling by reinstating the supplemental permit that creates a zoning variance in the Lakeview district. Thus, just as a request for a variance to a zoning ordinance causes ag-grievement to adjacent property owners and neighbors, so does |athe BZA’s decision to overturn the Department of Safety and Permits denial of Macaluso’s permit. Moreover, the City avers that Carroll-ton/Riverbend is distinguishable because in that case it was a neighborhood association that sought relief. This Court finds that this argument lacks merit as La. R.S. 33:4727(E)(1) and CZO § 14.11 permit persons individually or jointly to seek review of a BZA decision.

Thus, the Plaintiffs “were only required to allege that the BZA acted illegally and specify the grounds for the illegality.” Id., 11-1737 at p. 5. The Plaintiffs allege that the BZA failed to consider that Macaluso lost the use of the subject property as a double on August 29, 2010, when Macaluso failed to make substantive improvements to the property and failed to apply for a supplemental permit before the deadline.

Pursuant to La.R.S 33:4727(E)(1) and CZO § 14.11, we find that the Plaintiffs are aggrieved persons and have standing to seek judicial review of the BZA’s decision to reinstate Macaluso’s second supplemental permit which allowed the subject property to remain a two-family dwelling. Further, because we find that the district court erred in granting the exception of no right of action, we pretermit discussion on Plaintiffs’ claim that the district court erred in not providing them an opportunity to amend their petition under La. C.C.P. Art. 934.

DECREE

Based on the foregoing, we find that the district court erred in granting the exception of no right of action as the Plaintiffs have standing to seek judicial review of the BZA decision pursuant to statute and ordinance. Accordingly, the | ^judgment of the district court granting the exception of no right of action is reversed.

REVERSED

DYSART, J., concurs in result.

      . Plaintiffs assert that Macaluso’s supplemental permit was erroneously granted.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. David E. BENDER.
    No. 2012-KA-1682.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 17, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for the State of Louisiana/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appel-lee/State of Louisiana.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| T This is a criminal appeal. The defendant, David Bender, appeals his conviction and sentence for simple burglary of a vehicle, a violation of La. R.S. 14:62. Finding merit to Mr. Bender’s argument that the district court erred in accepting the State’s use of a juror’s prior convictions as a race-neutral reason for a peremptory strike during a Batson challenge, we reverse his conviction and remand for a new trial.

STATEMENT OF THE CASE

On June 16, 2011, Mr. Bender was charged by bill of information with one count of simple burglary of a vehicle. On June 20, 2011, Mr. Bender pled not guilty at his arraignment. On August 5, 2011, the district court found probable cause. On October 8, 2011, a jury trial was held; the jury found Mr. Bender guilty as charged. On December 1, 2011, the district court denied Mr. Bender’s motions for new trial and post judgment verdict of acquittal. On February 5, 2012, the district court sentenced Mr. Bender to serve ten years at hard labor, with credit for time served. On July 30, 2012, a multiple bill hearing was held. The district court |2adjudicated Mr. Bender a second felony offender, vacated the prior sentence, and resentenced Mr. Bender to sixteen years at hard labor, with credit for time served. This appeal followed.

STATEMENT OF THE FACTS

On June 8, 2011, Juan Carlos Molina was residing at 1416 Erato Street in New Orleans. At about 12:30 a.m. that day, Mr. Molina was watching television in his living room when he heard noises outside. When he looked out his window, he saw Mr. Bender standing by his Ford Explorer. Mr. Bender broke the passenger side window of the vehicle, cleared the glass away, and climbed into the vehicle through the window. Because Mr. Molina did not speak fluent English, he woke up his roommate, Rodrigo Mendoza, to help him call 911 to report the incident. When the police arrived on the scene, Mr. Molina spoke to them using Mr. Mendoza as an interpreter. Mr. Molina testified that Mr. Bender made a mess in his vehicle and that he took the GPS system, telephone charger, and radio out of the vehicle. Mr. Molina identified the title and registration to his vehicle. He testified that he did not give Mr. Bender permission to be in his vehicle.

Mr. Mendoza confirmed Mr. Molina’s testimony that Mr. Molina woke him up him around 12:45 a.m. to assist him with a 911 call. At trial, Mr. Mendoza identified his voice on the 911 call tape. Mr. Mendoza stated that he watched Mr. Bender in Mr. Molina’s vehicle while they placed the 911 call.

At 12:45 a.m. on June 8, 2011, Officer Timothy Sisón and Detective Rob Barriere of the New Orleans Police Department (the “N.O.P.D.”) were on patrol |3when they received a call of a car burglary in the 1400 block of Erato Street. When the officers arrived on the scene, they observed that Mr. Bender was in the vehicle and that the passenger side window was broken. The officers identified themselves and ordered Mr. Bender to exit the vehicle and to get on the ground. At that point, Detective Jonathan Bulling arrived on the scene. The officers arrested Mr. Bender and placed him in handcuffs. Detective Bulling performed a search incident to arrest; he found a pair of pliers in Mr. Bender’s pants pocket. He advised Mr. Bender of his Miranda rights. Mr. Bender denied any involvement in the alleged car burglary, but he admitted that a bicycle found nearby belonged to him.

The officers observed that the interior of the vehicle had been ransacked. The radio was still intact, but it was halfway out of the dashboard. Detective Bulling met with the owner of the vehicle, Mr. Molina, and the witness, Mr. Mendoza. Officer Sisón and Detective Barriere secured Mr. Bender and the crime scene. Crime scene technicians were called to the scene, and they took photographs of the scene and searched for fingerprints. Several items were found on the porch of the residence located at 1412 Erato Street, including a cell phone, two cell phone chargers, a screwdriver, a black GPS holder, a bottle of cologne, and two pairs of sunglasses. Mr. Molina and Mr. Mendoza identified these items as belonging to them.

14 Officer Jamar Goiens, with the Sixth District Night Watch, testified that the 911 call was received about 12:38 a.m. on June 8, 2012. When he arrived on the scene at 1:44 a.m., six police officers were already on the scene.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR

Mr. Bender’s sole assignment of error is that the district court erred in accepting the State’s use of a juror’s prior convictions as a race-neutral reason for a peremptory strike during a Batson challenge. This court recently summarized the requirements for a Batson challenge in State v. Holand, 10-0325, pp. 6-7 (La.App. 4 Cir. 4/18/11), 64 So.3d 330, 333-34, as follows:

In Batson, the United States Supreme Court adopted a three step process for determining whether a prosecutor has exercised a peremptory challenge in a racially discriminatory fashion. The defendant first must demonstrate a prima facie ease of purposeful discrimination (step one). Once the defendant establishes a prima facie case of discrimination, the burden shifts to the prosecutor to give race-neutral reasons for the peremptory challenges (step two). After the prosecutor has presented his reasons, the trial court must assess the weight and credibility of the explanation to determine whether the defendant has met the ultimate burden of proving purposeful discrimination (step three). Batson, 476 U.S. at 93-95, 106 S.Ct. 1712.

Id. The instant appeal involves only step two: the requirement that the prosecutor give race-neutral reasons for the peremptory challenge.

A district court’s findings regarding a Batson challenge are entitled to great deference on appeal. State v. Juniors, 03-2425, p. 28 (La.6/29/05), 915 So.2d 291, 316. When a defendant voices a Bat-son challenge to the State’s exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends Isupon whether the district court finds the prosecutor’s race-neutral explanations to be credible. State v. Maxwell, 11-0564, p. 5 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 118. A reviewing court owes a district court’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. State v. Elie, 05-1569, p. 5 (La.7/10/06), 936 So.2d 791, 795.

The jurisprudence has recognized that a prospective juror’s prior criminal record is a legitimate race-neutral explanation for excluding a juror. State v. Dabney, 91-2051 (La.App. 4 Cir. 3/15/94), 633 So.2d 1369, 1375-76; State v. Knighten, 609 So.2d 950 (La.App. 4 Cir.1992). In Knighten, this court established criteria for accepting prior arrest records of prospective jurors as a race-neutral reason:

We, therefore, hold that where the prosecutor uses prior arrest records as a purported race-neutral reason in response to a Batson claim, he must provide the defense attorney with evidence of those records, if the defense attorney requests further proof of the prior arrest, and that the arrest records be furnished to the trial judge and be put on the record.

Knighten, 609 So.2d at 957.

In Knighten, supra, the defendant made a Batson challenge after the State excluded six African-American prospective jurors. The prosecutor, in providing reasons for the exclusion, stated that two of the excluded jurors had either previous criminal or civil arrests. The defense attorney informed the trial court that the arrest records of the venire members were not made available to him, and that he knew of no prior arrests. This court noted that the prosecutor never entered the alleged arrest records into the trial record or even showed them to the judge or opposing counsel. Also, the trial judge never asked to see the records. This court [fiheld that the trial court was in error when it accepted this proffered explanation as a legitimate race-neutral reason for excluding those jurors. This court stated:

The fact that an alleged prior arrest record was used as the race-neutral reason for two of the prosecutor’s peremptory exclusions does not form the gravamen of our concern. We understand that a prior arrest may cause an unfavorable view to the State’s case. State v. Thompson, 516 So.2d 349, 354 (La.1987). However, when such a bias or prior arrest is not determined through voir dire, which is the very purpose of voir dire, the defendant must have the opportunity to show whether a prior arrest actually exists or that other venire members, not of the same race, with similar prior arrests were not excluded by peremptory challenge. In the present case, defense counsel learned after the fact that the excluded jurors had allegedly been arrested. Thus, he could never ask the jurors any questions concerning the veracity and background of the arrests or the nature of the alleged charge. He could never make a record to show that there might be a confusion in the computer that generated the information withheld from the defense by the prosecutor during voir dire. Additionally, the defense could not demonstrate during voir dire that these presumptively innocent citizens were not arrested at a date and time when African-American citizens were arrested under statutes long ago held unconstitutional. To ask about arrests on general voir dire may have been embarrassing for the potential juror, yet, it is entirely possible that white jurors may also have been similarly situated.
We simply cannot tell from this record how the prosecutor determined that the challenged jurors had arrest records. We have no more than unsworn statements of the prosecutor unaided by exhibits of records, affidavits or cross-examination. The fact that the prosecutor did not disclose the alleged arrest information to the defense until her challenges had been made, precluded the defense from developing an adequate record on appeal. As the defense attorney is protecting the constitutional rights of both the defendant and the excluded juror, he must be given the opportunity to show that the prosecutor’s reasons are either not legitimate or merely pretext. Furthermore, the trial judge, in order to properly weigh the evidence, would also need to see the arrest records to be able to make the same determination. Without the prosecutor producing such records, neither the defense attorney nor the judge would be able to determine whether the prosecutor’s reasons satisfy the requirements established in Batson, 476 U.S. at 98, 106 S.Ct. at 1723-1724.
We, therefore, hold that where the prosecutor uses prior arrest records as a purported race-neutral reason in response to a Batson |7claim, he must provide the defense attorney with evidence of those records, if the defense attorney requests further proof of the prior arrest, and that the arrest records be furnished to the trial judge and be put on the record.

Knighten, 609 So.2d at 956-957.

In Dabney, supra, after the defendant set forth a Batson challenge, the proseeutor indicated that that he had excluded a particular juror because of his young age, his prior arrests, and his unresponsiveness. This court found that the State violated the Knighten criteria, but concluded the error was harmless because the defense attorney failed either to request the records from the prosecutor or to alert the judge that the defense was unaware of the prior arrests. This court reasoned:

It is not our purpose to dilute or weaken the Knighten criteria; however, counsel for the defense must request the arrest records from the State or alert the judge that the records were not available to counsel or that counsel was unaware of the juror’s prior record. Failing to comply with any of these standards constitutes a waiver of any requirement that the State produce the arrest records. However, whenever defense counsel or the court requests production of the records in the possession of the State, the State must produce the evidence to opposing counsel or the court.

Dabney, 91-2051 at p. 8, 633 So.2d at 1375-76.

In the instant case, defense counsel made a Batson challenge after the prosecutor had excluded three African-American potential jurors. Although the district court did not state whether the defendant had made a prima facie case, it requested reasons for the exclusions from the State. The prosecutor provided the reasons for the exclusions, and the trial court denied the defendant’s Batson 1 ^challenge, finding that the reasons were race-neutral. The defendant only seeks review of the reasons given for the exclusion of one juror, Ms. Joseph. The prosecutor stated that Ms. Joseph was excluded because she had pri- or convictions. Defense counsel objected, stating: “the fact that Ms. Joseph has convictions is information that the District Attorney has access to that the defense counsel has not. And I would object as to Mr. Bender’s due process rights under the United States constitution as to the state having access to that information.”

This present case is similar to Knighten, supra. The State only advised the defense counsel of Ms. Johnson’s prior convictions after defense counsel made a Batson challenge. The State never stated the nature of Ms. Johnson’s prior convictions. Defense counsel was prevented from asking Ms. Joseph any questions concerning the veracity and background of the convictions and making a record as to whether there were Caucasian jurors who had similar convictions. Additionally, the appellate record does not indicate how the prosecutor determined that Ms. Joseph had prior convictions. There are no exhibits, affidavits, or testimony other than the prosecutor’s unsworn statements to show that Ms. Joseph had prior convictions. The State did not specifically ask Ms. Joseph any questions during voir dire. Nor did Ms. Joseph volunteer any answers to the general questions asked by the State and defense counsel. The voir dire transcript reveals that the only time Ms. Joseph spoke occurred when defense counsel asked her where she lived and if she had been a victim of any crimes. The fact that the prosecutor did not disclose Ms. Joseph’s prior convictions until defense counsel made the Batson challenge prevented defense counsel from developing an adequate record on appeal. The trial court was in error for accepting, over defense counsel’s objection, the alleged prior convictions as a legitimate 13race-neutral reason for the exclusion of Ms. Joseph. As only one discriminatory exclusion is required to prove a Batson claim, the district court erred when it denied the defendant’s Batson challenge. Knighten, 609 So.2d at 958. We thus find the defendant’s assignment of error has merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence are reversed; and this case is remanded for a new trial.

REVERSED AND REMANDED.

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

      . As this court has noted, “where a trial judge, without expressly ruling on the issue, asks that race-neutral reasons be given, the reviewing court may conclude that a prima facie case existed.” State v. Knighten, 609 So.2d 950, 953 (La.App. 4th Cir.1992) (citing State v. Collier, 553 So.2d 815, 819, n. 5 (La.1989)).