author: PEATROSS, J.

text:
    PELICAN STATE WHOLESALE, INC., Plaintiff-Appellee v. Patricia McCain MAYS, Defendant-Appellant.
    No. 44,442-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.
    Michael E. Kramer, Winnsboro, for Appellant.
    Frederick B. King, LLC, Monroe, for Appellee.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   PEATROSS, J.

| tIn this suit to collect an outstanding balance on an account owned by Pelican State Wholesale, Inc. (“Pelican”), the trial court granted summary judgment in favor of Pelican, finding that the now deceased James D. Mays, Jr., signed a “new account” form which contained a clause reflecting a surety agreement to personally obligate himself for the debt. Defendants, Mr. Mays’ widow, Patricia McCain Mays, and children (collectively referred to herein as “Mrs. Mays”), appeal. Finding that genuine issues of material fact exist regarding the interpretation of the “new account form,” we reverse the summary judgment and remand for further proceedings.

FACTS

Mr. and Mrs. Mays were the sole shareholders of Louisville U-Pak-It, Inc., which ran a convenience store in Monroe. In 1999, the Mays contracted with Pelican to supply tobacco and other products for the convenience store. A “new account” form was completed and signed by Mr. Mays. The form appears to be a standard Pelican form to be completed by potential customers seeking to purchase Pelican’s products on credit. On the form, Mr. Mays supplied the business information requested, as well as the information for him and his wife as owners of Louisville U-Pak-It. He then signed and dated the form, with no corporate designation of title.

Mr. Mays died in 2004 and Louisville U-Pak-It ceased operations shortly thereafter. An outstanding balance of approximately $8,000 remained with Pelican. Pelican filed suit against Mrs. Mays and the Mays’ children to collect the unpaid balance. Thereafter, Pelican filed a motion for summary judgment relying on the following language in the “new account” Lform:

WE CERTIFY THAT ALL THE INFORMATION ON THIS FORM IS CORRECT. WE ACKNOWLEDGE AND AGREE THAT A RATE OF 18% PER ANNUM BUT IN ANY EVENT NOT TO EXCEED THE MAXIMUM LEGAL RATE WILL BE CHARGED ON ALL UNPAID BALANCES SEVEN (7) DAYS AFTER THE DELIVERY DATE. IN THE EVENT OF DEFAULT AND REFERRAL TO AN ATTORNEY OR COLLECTION AGENCY, WE AGREE TO ALL COSTS OF COLLECTION INCLUDING ATTORNEY’S FEES. IN THE EVENT OF CHANGE OF OWNERSHIP THIS AGREEMENT WILL REMAIN IN EFFECT AS WILL THE RESPONSIBILITY OF DEBT INCURRED AND COLLECTION PROCEDURES TO THOSE PARTIES LISTED ABOVE. WE AUTHORIZE YOU TO CONTACT THESE REFERENCES AND FOR THEM TO RELEASE ANY FINANCIAL INFORMATION YOU REQUIRE IN CONSIDERATION OF THE MATTERS CONTAINED HEREIN. BE IT UNDERSTOOD THE BELOW SIGNED PERSONALLY GUARANTEES ALL PURCHASED AMOUNTS BY THE BUSINESS NAMED ABOVE. ALL FIRST ORDERS SHIPPED ARE TO BE CASH.

(Emphasis added.)

Following this language on the form are date, signatux-e and title lines. Mr. Mays dated and signed the form, but did not fill in a title.

As stated, the trial judge granted summary judgment in favor of Pelican, finding that Mr. Mays’ signature constituted a suretyship agreement to be personally obligated on the debt. This appeal ensued.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 31134. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. See La. C.C.P. art. 966(A)(2); Hinson v. Glen Oak Retirement Home, supra; Lee v. Wall, 31,468, 31,469 (La.App.2d Cir.1/20/99), 726 So.2d 1044; Gardner v. Louisiana State University Medical Center in Shreveport, 29,946 (La.App.2d Cir.10/29/97), 702 So.2d 53. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B).

The majority opinion of this court in Fleet Fuel, Inc. v. Mynex, Inc., 40,683 (La.App.2d Cir.3/8/06) 924 So.2d 480, writ denied, 06-0762 (La.6/23/06), 930 So.2d 977, set forth the law regarding contractual suretyship:

A contract of guaranty is equivalent to a contract of suretyship and the two terms may be used interchangeably. Therefore, the provisions of the civil code governing the contract of surety-ship may be examined in testing whether there is a contract of guaranty.
Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so. LSA-C.C. art. 3035. A surety is liable to the creditor in accordance with the provisions of the Civil Code, for the full performance of the obligation of the principal obligor, without benefit of division or discussion, even in the absence of an express agreement of solidarity. LSA-C.C. art. 3045. The surety’s contract need not observe technical formalities, but must contain an absolute expression of intent to be bound.
Contracts of guaranty are subject to the same rules of interpretation as contracts in general. Although parol evidence is inadmissible to vary the terms of a written contract, if the terms of a written contract are susceptible of more than one interpretation, or there is uncertainty or ambiguity as to its | .[provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and show the intent of the parties. In interpreting provisions of an agreement about which there exists some doubt, a court must seek the true intention of the parties, even if to do so necessitates departure from the literal meaning of the terms.
In ascertaining the intention of the parties to a contract, where it cannot be adequately discerned from the contract or agreement as a whole, the facts and circumstances surrounding the parties at the time of contracting are a relevant subject of inquiry. Determining the intent of the parties becomes, in part, a question of fact.

(Emphasis added; internal citations omitted.)

Both parties in the case subjudi-ce cite and analogize the instant case to Fleet Fuel v. Mynex, supra. In Fleet Fuel, this court affirmed summary judgment in favor of a corporate signor, holding that, as a matter of law, the signature in that case did not constitute “an absolute expression of [the corporate signor’s] intent to be bound” as guarantor. As stated by the majority in Fleet Fuel and as emphasized in the dissenting opinion in Fleet Fuel, however, the question of the intent is a question of fact. We conclude that material issues of fact exist in situations where liability turns on such intent and the same cannot be ascertained from the language of the contract and there exist outside circumstances that may assist in discerning such intent.

The existence of factual issues involving the question of the intent to be bound by a corporate signor as surety were recognized by the trial court in the case of Pelican Plumbing Supply, Inc. v. J.O.H. Construction Co., Inc., 94-991 (La.App. 5th Cir.3/28/95), 653 So.2d 699. In Pelican Plumbing Supply v. J.O.H., the trial court granted summary judgment inj-favor of the corporate defendant in a suit on open account, but refused summary judgment against the vice president signor individually, sending the issue of his intent to be bound as guarantor to a trial on the merits. Ultimately, the trier of fact found that the vice president in Pelican Plumbing Supply had not signed the document in his personal capacity and was, therefore, not liable as guarantor. The fifth circuit affirmed. Significant to the matter before this court is that the trial court in Pelican Plumbing Supply recognized the factual issues surrounding a corporate representative signing on an account for the corporation where the intent to be bound individually as guarantor is not clearly discernable from the document itself.

Here, as previously stated, the “new account form” employed by Pelican and Mr. Mays was a corporate form of Pelican’s for use by businesses seeking credit with Pelican for the purchase of its products. The information provided by Mr. Mays on the form was primarily corporate information. It is not clear from the document language and/or signature itself that Mr. Mays held an “absolute intent to be bound as personal guarantor.” See Fleet Fuel, supra. Thus, we conclude that genuine issues of material fact exist that preclude summary judgment in this case.

CONCLUSION

For the foregoing reasons, the summary judgment of the trial court in favor of Pelican State Wholesale, Inc. is reversed and the matter is | ¿remanded to the trial court for further proceedings. Costs of appeal are assessed to Plaintiff/Appellee Pelican State Wholesale, Inc.

REVERSED AND REMANDED.

      . We are cognizant of the potential applicability of La. R.S. 13:3721, or the "Dead Man's Statute,” at a trial on the merits of this matter. It will be within the province of the trial court to determine if the requirements of this statute are met and, if so, the effect the provision would have on the admission of evidence of intent.


source: Caselaw Access Project

author: LOLLEY, J. GASKINS, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Richard Lee HOWARD, Appellant.
    No. 44,434-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Paula Corley Marx, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Jacob P. Broussard, Assistant District Attorney for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| iThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Richard Lee Howard was charged with aggravated burglary, a violation of La. R.S. 14:60, and after a jury trial, he was found guilty as charged. Howard was sentenced to 10 years’ imprisonment at hard labor, and 30 days’ imprisonment in the parish prison in lieu of court costs. The sentences were ordered to run concurrently, with credit for time served. For the following reasons, we affirm the conviction and sentence, but for that portion of the sentence which imposed 30 days’ imprisonment in the parish prison in lieu of court costs, which we vacate.

Facts

On September 6, 2007, Linda Jamison and her friend LaShonda Rutledge were at Jamison’s home on Bernard Boulevard in Shreveport for the evening. Rutledge fell asleep while Jamison continued to work until the early morning hours of September 7th. At some point, Jamison walked into her kitchen, where she saw a tall black male with a revolver in his hand. Jamison turned and ran back to the bedroom, falling onto the floor. The commotion woke Rutledge. The intruder had followed Jamison into the bedroom. He told the two women that he was not going to kill them, but that he just wanted their purses and some other things. The man then took Jamison’s laptop and Rutledge’s purse before leaving the house. Once the women were sure that he was gone, they called the police.

Corporal Terrence Lasane of the Shreveport Police Department responded to the call. When Cpl. Lasane arrived at Jamison’s residence, he found that the rear screen door to her home had been removed. Lasane |2interviewed the women and obtained a description of the burglar. Lasane also notified the on-call investigator, Detective Richard Terpin, who came to the scene. The police then attempted to locate the suspect, but were unable to do so at the time. No fingerprints were found in the residence. The stolen items were not recovered.

Detective Terpin interviewed both women, who described the burglar as a tall black male, wearing dark clothing and with a thin or sheer material, like a scarf, covering his mouth. Jamison did not know the burglar’s name but thought that she had recognized him as a man she had sold CDs to many times and whom she had frequently seen around the neighborhood. Rutledge testified at trial that she had never seen him before, although Det. Ter-pin recounted that Rutledge had seen the burglar around the neighborhood, but was not sure of his name.

A week after the incident, Jamison called the police and reported that she had just seen the burglar on nearby Harris Street and that she had immediately recognized him. When the police arrived, the suspect was gone. Later, Jamison and Rutledge were shown a photographic lineup, but neither made an identification.

A short time later, Det. Terpin was contacted by a Cpl. Lewis who relayed that he had conducted a field interview of a man matching the description of the burglar. Corporal Lewis gave Terpin the man’s name. Detective Terpin was subsequently able to locate a photograph of that man, who turned out to be Howard, and constructed a second photographic lineup containing that photograph. Detective Terpin showed the lineup separately |sto both Ja-mison and Rutledge, and both women immediately selected Howard as the burglar.

Howard was arrested and interviewed, but denied any participation in the burglary of Jamison’s home. During trial, Howard testified that he was familiar with Ja-mison and where she lived, but that he had not taken any part in the crime. He also testified that Jamison had given him some CDs to sell; he had sold some of them and had given some away; and, he had not given Jamison the money. Howard testified that he had encountered Jamison later, and that she had “some guys on the back of her truck following me down the street.” According to Howard, Jamison was “pointing at me ... like she was trying to show somebody ... who I was or whatever.” Howard stated that Jamison also told him that the police were after him. It was Howard’s belief that because he had owed Jamison approximately $40, she and Rutledge made the story up against him.

After a trial by jury, Howard was found guilty of aggravated burglary. Post-verdict motions of acquittal and for a new trial were filed and denied by the trial court. Howard waived sentencing delays and was sentenced to 10 years of imprisonment at hard labor, and 30 days of imprisonment in the parish prison in lieu of court costs. This appeal ensued.

Discussion

In Howard’s first assignment of error he argues that the state failed to prove his identity as the perpetrator of the crime beyond a reasonable doubt. Specifically, he argues that the state failed to negate the reasonable probability of misidentification of the defendant. We disagree.

|4The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App. 2d Cir.06/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.05/04/07), 956 So.2d 607.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.05/09/07), 956 So.2d 769. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. 5State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

Here, because the record does not reflect that Howard filed a motion to suppress the identification evidence in the trial court, this court should review this evidence only in the context of its sufficiency. Notably, neither woman made an identification when shown the first photographic lineup-Howard’s photo was not included. However, both Rutledge and Jamison were able to immediately identify Howard from the second photographic lineup when his picture was added. Thus, there is sufficient evidentiary support for the factual conclusion that he was the individual who burglarized Jami-son’s home on September 7, 2007. The testimony of the two women is sufficient even in the absence of physical evidence. State v. Robinson, supra; State v. Ponsell, supra. This assignment therefore has no merit.

In Howard’s second assignment of error he maintains that the sentence of thirty days in jail in lieu of court costs is indeterminate and unconstitutional, because he is indigent and the amount of court costs is not specified. Specifically, he argues that the trial court imposed a sentence in | [¡violation of La. C. Cr. P. art. 879, because the amount of court costs is not specified. Further, Howard stated that he is indigent, and that there is no indication that he will be able to raise court costs during his 10-year prison term for the aggravated burglary conviction. As such, Howard urges that the 30-day sentence, imposed in lieu of court costs, must be vacated. The state concedes that the portion of Howard’s sentence ordering him to serve jail time in lieu of court costs was erroneous.

An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App. 2d Cir.04/03/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, supra. This court has considered it error for a trial court to impose jail time for failure to pay court costs. See State v. Kerrigan at 1247. In the context of disposition of this claim, this court may choose to amend the defendant’s sentence. See State v. Tillman, 43,569 (La.App. 2d Cir.10/22/08), 997 So.2d 144, 149, where this court vacated that portion of an indigent defendant’s sentence which had been imposed in lieu of jail time, and affirmed the sentence as amended.

|7The record shows that this defendant was and is an indigent. Howard was represented at trial and on appeal by the indigent defenders’ office. The jurisprudence is clear that a defendant cannot be sentenced to serve jail time because he is unable to pay court costs. Bearden v. Georgia, supra; State v. Tillman, supra. Therefore, the portion of the Howard’s sentence which imposes 30 days of jail time, in lieu of the payment of court costs, should be vacated. Notably, the State concedes that the trial court erred in ordering Howard serve jail time for failure to pay his court costs. Further, we note that the 30-day sentence has no practical effect anyway as it was ordered to run concurrent with Howard’s 10-year sentence.

Conclusion

For the foregoing reasons, Howard’s conviction is affirmed. As to his sentence, that portion of the sentence imposing jail time in default of the payment of court costs is vacated. As amended, Richard Lee Howard’s conviction and sentence are affirmed.

AS AMENDED, AFFIRMED.

GASKINS, J., concurring in part and dissenting in part.

GASKINS, J.,

concurring in part and dissenting in part.

Li concur with the majority opinion, but respectfully dissent on the vacating of the parish prison sentence of 30 days in lieu of the payment of court costs. I disagree that we should, wholesale, vacate alternative jail time (if payment is not made) when we note that a defendant has an indigent defender appointed to his case. The appointment of an indigent defender does not necessarily mean that an analysis of the defendant’s ability to pay has been assessed, but if it was, the assessment was made at the beginning of prosecution. Further, this court continues to reverse this alternative sentence, when the amount of fine (or costs) is minimal. Even if the defendant was unable to pay the legal costs of hiring an attorney, the defendant may be capable of paying the costs of court, a sum of money usually far less than legal fees.

      . Article 703 of the Louisiana Code of Criminal Procedure provides in pertinent part that:
      A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.... A motion filed under the provisions of this article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable.
      Article 521 mandates that all pretrial motions be filed within 15 days after arraignment, unless a different lime is provided by law or fixed by the court.

      . La. R.S. 15:175(A)(l)(b) states that "[a] person will be deemed "indigent” who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own.” This is a determination that the trial court makes not later than arraignment and which is subject to review throughout the proceedings. Subsection (A)(1)(e) further requires an accused claiming indigency to apply for indigent defense counsel and establish his indi-gency and entitlement to appointed counsel.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Johnny R. WILLIAMS, Jr., Appellant.
    No. 44,418-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Johnny R. Williams, Jr., pro se.
    Jerry L. Jones, District Attorney, Madeleine M. Slaughter-Young, Geary S. Ay-cock, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

11 Johnny Williams was charged with aggravated rape, in violation of La. R.S. 14:42, aggravated kidnapping, in violation of La. R.S. 14:44, and false imprisonment while armed with a dangerous weapon, in violation of La. R.S. 14:46.1. The state dismissed the aggravated kidnapping charge and the remaining two matters were tried before a jury which convicted Williams as charged. The court sentenced Williams to mandatory life imprisonment for the aggravated rape, and to a concurrent five-year sentence for the false imprisonment conviction. On appeal, Williams contests various procedural rulings of the court. Finding no merit to his arguments, we affirm Williams’s convictions and sentences.

Facts

Williams and the victim, T.L., were Monroe residents who had a child together. Their relationship continued until sometime in 2006, when T.L. ended the relationship and began seeing another man. T.L. then initiated child support proceedings against Williams.

On September 8, 2006, T.L. drove her friend’s car to a gas station in Monroe. As she got out of her car, she saw Williams pull up. Williams approached T.L. and demanded that she go with him. When Williams reached under his car seat as if he had a gun, T.L. agreed to go with him.

T.L. followed Williams to his mother’s house, and the two got into the defendant’s car. They went for a drive, and the defendant became angry, telling T.L. that “if he couldn’t have me, no one could.” They returned to Williams’s mother’s home, and the defendant made T.L. go inside. Once 12inside, the defendant bound the victim’s ankles, wrists, forearms and thighs with duct tape. Williams was aimed with a knife, which he used to cut the duct tape as he bound the victim. He then put duct tape over T.L.’s mouth and had sexual intercourse with T.L. without her consent.

Williams removed some of the duct tape and began to talk to T.L. Williams became angry again, fought with the victim and again bound T.L. with duct tape. Williams picked up T.L., moved her to the side of the bed and covered her with a blanket and then left the room. After about two hours, Williams’s mother came home and discovered T.L.

Williams’s mother extracted a promise from T.L. not to call the police in exchange for the return of the victim’s missing car. After several hours, the car was returned, but T.L. went to the police. Police arrested Williams and these charges resulted.

Williams opted for a jury trial. After the jury convicted him as charged and the trial court denied motions for new trial and post-verdict judgment of acquittal, Williams lodged this appeal.

Discussion

In Williams’s first assignment of error, he argues that the trial court erred in denying his challenge for cause of juror J.R.B. Specifically, Williams argues that the juror’s answers as a whole do not support the court’s conclusion that the juror could put aside an incident in her past and serve as a fair juror.

During voir dire, the prosecutor asked the jury panel whether anyone had been the victim of a sex offense. Juror J.R.B. responded in the |3affii-mative. When asked if she could talk about it, she responded “I’d rather not.” The prosecutor explained that the issue could be discussed outside the presence of the rest of the jury. J.R.B. responded “that’s fine.” During later questioning, this juror stated she believed that more than half of the victims of sex offenses would have known their assailant prior to the offense.

When notified of the life imprisonment penalty for aggravated rape, J.R.B. said the severity of the penalty was important to her; she said “I don’t think it would color my decision, but I think that I would be more-I’d probably have to have more facts than....” She said that she would probably hold the state to a higher standard because of the harsh penalty.

During questioning by the defense attorney, J.R.B. said she could adhere to the “beyond a reasonable doubt” standard of proof. She also said she believed people generally presume others to be innocent.

In the trial court’s questioning of J.R.B., she was able to discuss some of the details of the sexual assault she experienced twelve years before when she was twelve years old. The court’s questioning continued:

Court: Did that person- — was that person ever held accountable or confronted on it?
J.R.B.: No.... Later on down the line about ten years. It’s been twelve now. So about ten years later I met his brother who apologized, but by that point I had already forgiven him. And you know it’s just kind of — -it’s in the past. It’s made me who I am and I’m okay.
Court: Has it made you stronger?
J.R.B.: Yes. Absolutely.
Court: The defendant in this case, Mr. Williams, has the absolute right to have a trial by jury and he’s | ¿requested such. Should Mr. Williams feel uncomfortable with your experiences having you potentially as a juror that he would favor and say, I think she’d be fair, but I’m worried about how she may feel about the victim. Can you factor that out or would you judge the case just on the merits or would you be a good juror or how do you feel about that?
J.R.B.: I think I’d be a good juror. I mean I’m not — I think — I’m at a loss for words. I think I’d be fair.
Court: If the incident is more than just a touching as you have experienced, is it something that you think during the trial you may revisit it in your mind your experiences and say I won’t let this happen to anyone else or would you just simply be able to say, this is the evidence and I have to judge it and they didn’t prove it or they did prove it.
J.R.B.: I have to keep it separate. I mean, I’ve been doing that for a long time.
Court: Do you feel uncomfortable being asked to sit in judgment on this type case or do you think that you can— you would just soon be here as you would on a burglary case?
J.R.B.: Honestly, not really. I feel like I could look — I could tell more if a girl is lying than I would be able to know. And I may be completely wrong for saying, that. But I think that if there’s any reason or any kind of evidence or doubt or any other reason that she would be saying the things that she’s saying, then you know—
Court: You’re a good judge of character?
J.R.B.: I would think so on this particular case.
Court: And can you follow the law in a sense of placing your personal situation, however horrific it was and I’m sure that it was, can you give Mr. Williams a fair trial if you’re selected as a juror in this case?
l.-jJ.R.B.: I believe so.

Neither of the attorneys had any questions for J.R.B.

Later, defense counsel challenged J.R.B. for cause, arguing that the juror would bring her own experience into the case outside of the evidence. The prosecutor objected, citing the juror’s assertions that she could be fair and would not let the incident interfere with her judgment. The court denied the challenge, stating:

[J.R.B.] was very candid. She indicated that she was 12. She could put it behind her. This was not a case that was actually charged. She had forgiven the individual. Her [sic ] brother spoke to her. She was further asked about wanting or needing more facts after the court explained to her the hypothet that was posed to the first two panels. She agreed that she could follow' the law, would follow the law. And I believe she was rehabilitated to the extent that the court feels she could be fair and would be able to mentally put her issues behind her that occurred some ten, eleven years ago. So the court will deny your challenge for cause based on her rehabilitation in her own testimony in this court.

Defense counsel objected to this ruling. Williams later used his twelfth and last peremptory challenge to remove J.R.B.

La. C. Cr. P. art. 797 provides, in part: The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality.
* * *
(4) The juror will not accept the law as given to him by the court.

Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683. Thus, “[t]o prove there has been reversible error warranting reversal of the | [¡conviction and sentence, defendant need only show (1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges.” State v. Ross, 623 So.2d 643, 644 (La.1993). The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will only be reversed when review of the entire voir dire shows the trial judge abused his discretion. State v. Robertson, 92-2660 (La.1/14/94); 630 So.2d 1278, cert denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

As this court recently explained in State v. Jones, 41,672 (La.App. 2d Cir.1/14/09), 999 So.2d 1156, 1161:

The declaration of an otherwise fair and impartial juror that he or she -was previously the victim of a crime similar to that for which the defendant stands charged does not render the juror incompetent to serve. State v. Hopkins, 39,730 (La.App. 2d Cir.8/17/05), 908 So.2d 1265, writ denied, 2005-2253 (La.3/17/06), 925 So.2d 541; State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207.

In the instant case, the trial court engaged the juror in a lengthy colloquy about how her experience as the victim of a sex offense might affect her service as a juror. The trial court was careful not to require the juror to involuntarily revisit the assault. The juror was able to discuss the matter. The juror clearly had some difficulty with the colloquy as she indicated that she would look only at the judge during their exchange and pretend the attorneys were not present. However, her answers to the judge’s questions were direct and not evasive. The juror repeatedly expressed her belief that she could be a fair juror. She said she was “not really” uncomfortable being a juror in a sex offense case, that she had forgiven the 17person who assaulted her, and that she ■would be able to keep her personal experience separate from the evidence presented at this trial.

Prospective jurors, being members of the community, bring with them their life experiences and attendant personal beliefs. A juror is disqualified from service only when the juror’s experiences and beliefs render the juror impartial or unable to accept the law as given by the court. La. C. Cr. P. art. 797. In this case, the juror’s responses as a whole and the entire voir dire demonstrate that the juror could be impartial and accept the law as given by the court, so the trial judge did not abuse his discretion by denying the defendant’s challenge for cause to J.R.B. This assignment of error is without merit.

In a supplemental pro se brief Williams also argues that the trial court erred in allowing the indictment to be amended over his objection.

A Ouachita Parish grand jury originally indicted Williams on October 26, 2006, for aggravated rape, aggravated kidnapping and false imprisonment. Trial was eventually set for August 13, 2007. On that date, the court took up a pretrial matter, and then the court proceeded to commence jury selection. At that point, the prosecutor moved to file an amended bill of information which deleted the aggravated kidnapping charge but upgraded the false imprisonment charge to false imprisonment with the use of a weapon.

Williams argues that the trial court erred in allowing the state to amend the charge against him on the day of trial in August 2007. At the time the state filed the amending charge, trial had not yet begun. | sllltimately, however, after various continuances granted to both the defense and the state, trial did not occur until January 2008.

The prosecutor has the authority under La. C. Cr. P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant’s right under La. C. Cr. P. art. 489 to move for a continuance if the amendment led to his prejudice. State v. Crochet, 05-0123 (La.6/23/06), 931 So.2d 1083. The purpose of a continuance is to protect defendant from surprise or prejudice which may result from such amendment. State v. Cleveland, 25,628 (La.App. 2d Cir.1/19/94), 630 So.2d 1365. When the State requests an amendment to the bill of information before the first prospective juror is called, the defendant’s remedy is a motion for continuance, not an objection to the amendment. State v. Ignot, 29,745 (La.App. 2d Cir.8/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618.

In the instant case, the state upgraded the false imprisonment charge from a misdemeanor to a felony. Although it is clear that Williams was aware that the state had evidence of his use of a weapon during the offense, the trial court recognized the risk of prejudice to the defendant by the amended charge and so granted a continuance in August 2007 to allow time for preparation for trial on the amended charge. The record reflects that the tidal was actually continued for more than five months after the state filed the amended charge. In this situation, Williams has failed to demonstrate prejudice from the procedure employed by the trial court in handling the ^amendment to the charge. La. C. Cr. P. art. 921. Thus, this assignment of error is without merit.

Williams also argues that the trial court erred in allowing the jury to view the trial evidence out of his or his attorney’s presence. At the conclusion of the evidence but prior to closing arguments, the court instructed the jurors that they would be able to view the exhibits if they wished to do so, and the court discussed with the attorneys the procedure to be used. The court informed the jurors that “We [the judge, the defendant and the attorneys] are going to exit the courtroom, turn it over to you. The bailiff may come and go but we will be gone while you view the evidence for as long as you want to.” The judge then asked the prosecutor and the defense attorney whether they had any objection to this plan, and both attorneys responded that they had no objection. The record reflects that “Everyone [was] escorted out of the courtroom while jurors viewing evidence.”

Williams argues on appeal that the court erred by allowing the jury to examine these items outside of the defendant’s presence in violation of La. C. Cr. P. art. 831. However, the right to be present may be waived by the defendant or by his attorney, or by defendant’s voluntary absence or his failure to assert an objection to a discussion held in his absence. State v. Williams, 34,359 (La.App. 2d Cir.5/9/01), 786 So.2d 203, writ denied, 01-2275 (La.5/10/02), 815 So.2d 835. Because no objection to the procedure was lodged by defendant at trial, Williams may not complain about the procedure on appeal. La. C. Cr. P. art. 841. Moreover, because | mthe evidence had been admitted at trial in Williams’s presence, Williams has failed to show prejudice in the procedure employed. This assignment of error is without merit.

Decree

For the above reasons, Williams’s convictions and sentences are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    Sammie Jo BAKER, Plaintiff-Appellant v. DOLLAR TREE STORES, Defendant-Appellee.
    No. 44,388-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Street & Street, by C. Daniel Street, Monroe, for Plaintiff-Appellant.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley, by Keith E. Pittman, for Defendant-Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

| ,The plaintiff, Sammie Jo Baker, appeals a ruling of a workers’ compensation judge (WCJ) finding that she willfully made false representations regarding a claim for workers’ compensation benefits and that, as a result, under La. R.S. 23:1208, she forfeited all right to those benefits. The defendant, Dollar Tree Stores (Dollar Tree), has answered the appeal, arguing that the WCJ erred in finding that the plaintiff had an accident in the course and scope of her employment at Dollar Tree on or about October 9, 2007. For the following reasons, we affirm.

FACTS

Ms. Baker was employed by Dollar Tree as a freight manager. She was responsible for unloading trucks and stocking the stoi’e with merchandise. Trucks generally held several hundred boxes weighing as much as 100 pounds each. Ms. Baker stated that she personalty engaged in the manual labor necessary to unload the trucks. She had one assistant to aid her.

In March or April 2007, Ms. Baker claimed that she pulled a muscle in her back while working at Dollar Tree. This injury is not the basis of the present suit. It was not reported as a work-related accident and no workers’ compensation claim was made. Ms. Baker used her regular medical insurance to pay for her care. At that time, Ms. Baker saw her family physician, Dr. David A. Yarbrough. An MRI of her spine was ordered and she was referred to an orthopedic surgeon, Dr. Scott McClelland. Dr. McClelland prescribed medication and three weeks of physical therapy. Ms. Baker returned to work with no restrictions.

(2On October 9, 2007, Ms. Baker claimed that she lifted a 40 to 50 pound box of merchandise and put it down on the floor of the store. She heard her back pop and immediately felt pain in her back and leg. This is the injury concerned in this case. Her assistant was not in view when the injury occurred.

Ms. Baker told her store manager that she hurt her back. The manager asked her to finish the day. The next morning, she unlocked the store and when the manager arrived, Ms. Baker went to Dr. Yar-brough’s office. Another MRI was ordered. On October 11, 2007, an accident report was completed by Dollar Tree and the matter was handled as a workers’ compensation claim. After the MRI, Ms. Baker was referred to a neurosurgeon. She did not see him because the workers’ compensation insurance adjuster refused the claim on the basis that this was a preexisting condition.

On November 6, 2007, Ms. Baker filed a disputed claim for compensation, asserting that Dollar Tree refused to pay temporary total disability benefits and/or supplemental earnings benefits, as well as medical benefits. She sought penalties and attorney fees.

Dollar Tree filed a reconventional demand claiming that Ms. Baker did not truthfully reveal her medical treatment for back injuries prior to April 2007, and therefore must forfeit any claim for benefits for violation of La. R.S. 23:1208.

Trial on this matter was held on August 20, 2008. Ms. Baker testified regarding her injury in March or April 2007 and the injury upon which this |sclaim is based, which occurred in October 2007. She stated that, since the October accident, she has had consistent, severe back pain which radiates down both legs. She said that she can’t stand or sit for very long and lying down doesn’t give her any relief. She stated that she cannot play with her three children and has to take someone with her when she goes to the grocery store. She has not worked since shortly after the injury. Ms. Baker contends that she remains unable to work.

Dollar Tree argued at trial that Ms. Baker was not truthful in her deposition testimony and in answers to interrogatories about the onset and duration of her complaints with her back. In her deposition, Ms. Baker outlined her extensive work history and stated that she had never been injured at woi*k prior to her first injury at Dollar Tree in March or April 2007. She also stated numerous times that she had never been treated for back pain before her injuries at Dollar Tree in 2007. However, her medical records showed that she had longstanding complaints of back and leg pain and she sought treatment in 2005 and in December 2006 through January 2007.

On November 12, 2008, the WCJ made an oral ruling in this matter. The WCJ found that Ms. Baker was injured while working in the course and scope of her employment on October 9, 2007. The WCJ then addressed the issue of fraud under La. R.S. 23:1208. The WCJ observed that Ms. Baker testified in her deposition that she never went to a doctor for complaints of back pain before April 2007. She also failed in answers to interrogatories to mention any back injuries within the past 10 years.

1 ,The WCJ noted that the claimant’s deposition answers are in clear contrast to the medical records showing that she had back pain for several years prior to the present injury. The WCJ found that the false statements were not inadvertent or insignificant. This was the same physical complaint attributed to the alleged injury. The questions posed were straightforward and not subject to any misunderstanding by the claimant. The WCJ determined that Ms. Baker’s answers were not due to a lapse in memory.

The WCJ found that Ms. Baker committed fraud within the definition of La. R.S. 23:1208 and, as a result, forfeited her right to workers’ compensation benefits. The case was dismissed with prejudice. Ms. Baker appealed. Dollar Tree answered the appeal, arguing that the WCJ erred in finding that Ms. Baker was injured in the course and scope of her employment.

FRAUD

On appeal, Ms. Baker argues that the WCJ erred in finding that she committed fraud under La. R.S. 23:1208 and thereby forfeited her right to workers’ compensation benefits. This argument is without merit.

Legal Principles

Misrepresentation and forfeiture under the Workers’ Compensation Act are regulated by La. R.S. 23:1208 which states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|-E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for a forfeiture of benefits under this statute are: (1) a false statement or representation; (2) willfully made; and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 1994-2708 (La.9/5/95), 660 So.2d 7; Thomas v. Hollywood Casino, 44,271 (La.App. 2d Cir.5/13/2009), 13 So.3d 717. All three requirements must be present before a penalty will be imposed. Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App. 2d Cir.12/11/02), 843 So.2d 415. There is no requirement of prejudice to the employer; when the statute is satisfied, benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed. Freeman v. Chase, 42,716 (La.App. 2d Cir.12/5/07), 974 So.2d 25. See also Franklin v. HealthSouth, 41,458 (La.App. 2d Cir.9/20/06), 940 So.2d 83.

Forfeiture is a harsh remedy and must be strictly construed. An inadvertent and inconsequential false statement will not result in forfeiture of benefits. La. R.S. 23:1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Slater v. Mid-South Extrusion, 43,343 (La.App. 2d Cir.8/13/08), 989 So.2d 252.

| r,The WCJ’s finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Thomas v. Hollywood Casino, supra; Slater v. Mid-South Extrusion, supra. When there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Moore v. Transmissions, Inc., 41,472 (La.App. 2d Cir.9/27/06), 940 So.2d 694. Under this standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Baker v. Stanley Evans Logging, 42,156 (La.App. 2d Cir.6/20/07), 960 So.2d 351, writ denied, 2007-1817 (La.12/14/07), 970 So.2d 533; Hubbard v. Allied Building Stores, Inc., 41,534 (La.App. 2d Cir.11/1/06), 942 So.2d 639.

Discussion

Ms. Baker contends that she did not willfully attempt to deceive the WCJ in order to receive benefits. She points out that MRIs, taken six months before and six days after the present injury, show that she was injured and that the injury occurred at work. She claims that defense counsel picked out certain points in the deposition in an attempt to show deception. She urges that, if the deposition is considered as a whole and in context, it is clear that she was not trying to mislead anyone.

In her deposition, the following exchange occurred regarding whether Ms. Baker had ever sought treatment for back pain before April 2007:

Q. Okay. Now, you allege that you injured your back in April, 2007; is that correct?
A. Yes, sir.
|7Q. Okay, Did you ever have to go to the doctor for complaints of back pain before April, 2007?
A. Not that I can remember.
Q. Okay. So you’ve never gone to seek medical treatment for back pain before April, 2007?
A. You’re confusing me here.
Q. Okay. That’s all right. I just want to — ■
A. You’re moving fast.
Q. Okay.
A. Before April of — I have been to a chiropractor and it was around December of '06.
Q. Okay. And what—
A. It was just for an adjustment. It wasn’t for an injury.
Q. Okay. What doctor was that?
A. Eli, and I don’t remember his last name. He’s in Bastrop. Bastrop? Yeah, I think it’s Bastrop is where he’s located.
Q. E—
A. E-L-I.
Q. Eli, and he’s a chiropractor?
A. Yes, sir.
Q. And you said you went to him on one occasion?
A. I think I went to him, I think, two or three times, if I’m not mistaken.
Q. Okay. And what’s the reason you went to Dr. Eli?
A. For adjustments through my neck.
Q. Did you have neck pain at the time?
Is A. Well, I wasn’t really — it was more like a erink in your neck like if you slept the wrong way.
Q. Okay. But you didn’t have any kind of treatment for your back?
A. No.
Q. Okay. So it’s fair to say that before April, 2007 you never went to a doctor for complaints of back pain?
A. Not for my back, no.

Later in her deposition, Ms. Baker was asked, “Have you ever treated with a doctor before for pain running down your legs?” She said, “No.” As a follow-up question, Ms. Baker was questioned, “And just to be clear for the record, before your April, '07 incident where you went to Dr. Yarbrough, you had never treated with a doctor for back pain, correct?” She stated, “Not that I recall, that’s right.”

Dollar Tree propounded interrogatories to Ms. Baker asking for information on any accidental injuries, diseases, disabilities, physical defects, or abnormalities of any nature for the 10-year period prior to the October injury. Ms. Baker listed a history of various ailments, but did not include treatment she had received for her back.

Ms. Baker’s medical records actually showed that she treated with Dr. Dhaya Narendra Kutnikar, a family practice physician, for back pain in May 2005. She also complained that her right knee popped. She stated in the medical records that she had low back pain for quite a while and had been to a chiropractor. Dr. Kutnikar found tenderness at the L4-5 level of Ms. Baker’s back.

|t)In December 2006, Ms. Baker went to Dr. Eliah Globke, a chiropractor, complaining of low back pain, right leg pain, numbness in her right thigh, neck pain, upper back pain, and headache. Ms. Baker told Dr. Globke about consulting with Dr. Kut-nikar. She stated in her medical history that she had been experiencing back problems off and on for about two years, which had been getting progressively worse. She was diagnosed with lumbar segmental dysfunction, thoracic segmental dysfunction, and cervical segmental dysfunction. She made seven visits to Dr. Globke between December 2006 and January 2007, listing back and leg pain as more significant than her neck pain.

After her first injury at Dollar Tree in early 2007, Ms. Baker saw her family physician, Dr. Yarbrough, on March 20, 2007, complaining of low back pain radiating down both legs at times. She reported treating with a chiropractor, but got no relief. Ms. Baker saw Dr. Yarbrough again on March 30, 2007, and her back pain had not improved. An MRI was performed on April 4, 2007.

Ms. Baker was referred to Dr. Scott McClelland, an orthopaedic surgeon. Ms. Baker saw Dr. McClelland on April 30, 2007. She told him that for the last three and one-half years, she had low back pain that went down into the coccygeal region and down the right leg. She described the pain as intermittent and said that it would occur a couple of times per month, last for three or four days, and then go away. She claimed that this time, the pain had come on and had been constant. She said that the pain started at the end of the previous year. She stated that she went to a | mchiropractor, but the pain became worse. She also complained of grinding about the right lateral hip. She was prescribed medication and physical therapy. Notably, Dr. McClelland’s records do not show that Ms. Baker ever told him about her alleged work injury at Dollar Tree in early 2007.

On October 10, 2007, after the present accident, Ms. Baker returned to Dr. Yar-brough’s office. A note in her chart for that date indicates that her low back pain had not improved after physical therapy prescribed by Dr. McClelland. There is no reference to a work-related injury.

When asked why she did not mention her prior treatment for back pain in her deposition, Ms. Baker testified at trial that she forgot about seeing Dr. Kutnikar in 2005 and that she did not recall the specific conditions for which she received chiropractic treatment. She claimed that she had no intent to deceive when, in her deposition testimony, she denied receiving treatment for back pain prior to April 2007.

The record in this matter supports the WCJ’s finding that Ms. Baker violated La. R.S. 23:1208 by willfully making false statements for the purpose of receiving workers’ compensation benefits. Ms. Baker was repeatedly asked during her deposition whether she had ever sought medical treatment for back pain prior to her work injury around Easter 2007. The questions were clear and unambiguous. After her initial protestations of confusion, Ms. Baker consistently stated that she had not received any treatment for her back prior to April 2007. However, her medical records show that she had been experiencing back pain for several years prior to the alleged work-related injuries in 2007 at Dollar Tree. She had also |,[Complained of pain radiating down into her legs. She sought treatment with Dr. Kutnikar for back pain in May 2005. She then made numerous visits to Dr. Globke in December 2006 and January 2007 for treatment of back pain which she described as more significant than her neck pain. Ms. Baker’s complaints of back pain were persistent, significant, and predated any alleged injury at Dollar Tree. Further, her prior treatment was not so far removed in time from her alleged injury that she would have forgotten about it. Ms. Baker admitted receiving chiropractic treatment for her neck, but denied any treatment for her back, even though her medical records reflect that her complaints regarding her back and legs were more significant than those relating to her neck. Ms. Baker’s consistent misrepresentations about her prior medical history concerning back pain, the malady for which she now seeks workers’ compensation benefits, show that her statements were not inadvertent or inconsequential.

Under the facts presented here, the WCJ did not err in finding that Ms. Baker violated La. R.S. 23:1208 and forfeited her right to workers’ compensation benefits.

CONCLUSION

For the reasons stated above, we affirm the finding that the claimant, Sammie Jo Baker, violated La. R.S. 23:1208 and as a result, forfeited [ ^entitlement to any workers’ compensation benefits. Costs in this court are assessed to Ms. Baker.

AFFIRMED.

      . Ms. Baker also argues on appeal that the WCJ erred in refusing to award her benefits, penalties, and attorney fees. Dollar Tree answered the appeal, arguing that if this court reversed on the issue of fraud, that the WCJ erred in finding that Ms. Baker suffered an accident in the course and scope of her employment. Because we affirm the WCJ's finding regarding fraud in this case, and forfeiture of workers’ compensation benefits, we do not reach consideration of these issues.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Brandon DAVIS, Appellant.
    No. 44,254-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.
    Louisiana Appellate Project, by Michael H. Idoyaga, New Orleans, for Appellant.

      Charles Rex Scott, II, District Attorney, Suzanne Morelock Owen, William Edwards, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   DREW, J.

| iBrandon Davis was convicted by a jury of first degree murder, and was sentenced to life imprisonment without benefit of probation, parole or suspension. He appeals, urging the insufficiency of evidence. We affirm.

FACTS

At daybreak on April 23, 2005, Chief Harry L. Lowery of Caddo Parish Fire District Two was dispatched to a car fire on Kuhn Road. The trunk lid had melted away during the fire and he observed a charred body lying on its right side with its head facing toward the driver’s compartment.

Sgt. Dale Hubbard of the Caddo Parish Sheriffs Office testified that when he arrived on the scene of the car fire, he was handed a license plate from the burnt vehicle. He and Lt. William Rehak observed the horrific scene in the trunk.

That morning, Caddo Det. Terry Richardson was told that a body had been discovered in the trunk of a burning car. He ran the license plate and learned that it was rented by Renee Farley from Hertz Rental in Houston, Texas.

Ms. Farley told Detective Richardson that:

• she had rented two cars, a Nissan Altima and a Toyota Camry;
• two of her cousins, Tonya Douglas and Tosha Lampkin, were in the Altima; she was driving the Camry;
• Douglas and Lampkin were staying at the David Motel in Bossier City; and
• Douglas had called that morning, looking for Lampkin.

|2Pet. Richardson and Lt. Rehak met with Tonya Douglas at the David Motel in Bossier City. With her permission, the officers searched the motel room and took a Texas I.D. card, toothbrush, and a traffic citation that had been given to Tosha Lampkin during their drive from Houston to visit with local family.

When Douglas and Lampkin had arrived in the area, they drove to the David Motel since it was too late to visit their family. They ordered some take-out food from a nearby Waffle House. Lampkin left to pick up the food around 3:00 that morning. Douglas fell asleep after Lampkin left and woke up around 8:00 a.m. without having seen her. She was unable to find anyone who had spoken to Lampkin.

Det. Richardson noticed camera monitors, so he asked the manager for the surveillance tapes. Chagan Parbhu, owner of the David Motel, obliged and testified regarding the surveillance footage from his motel.

No one in the motel had seen or heard anything, so Richardson and Rehak went to the Waffle House and retrieved the food receipts for early that morning. Ann Smith, an employee of the diner, identified a ticket and receipt from the restaurant showing that the victim picked up her food between 2:00 and 4:00 a.m.

Richardson and Rehak returned to their office and began viewing the hotel surveillance footage and observed that:

• the tape’s clock was off by approximately an hour;
• the Nissan Altima left the lot and returned shortly thereafter, followed by a small red car;
Is* the two vehicles briefly stopped at the hotel, then left at the same time.

The motel video footage was shown on the local news to see if anyone recognized the red car. This media request ultimately led them to Mrs. Stafford, who said that the red car on the surveillance footage belonged to her daughter, Laquetta Stafford. Det. Richardson noticed the red car in the parking lot. Laquetta Stafford informed him that on the night in question she had loaned her car to Dwight Bacon, who was gone all night. She also told Det. Richardson where Bacon lived.

Laquetta Stafford testified at trial that:

• at the time of the murder, she owned a red Toyota Tercel that was distinctive because of two different sets of rims (Ford on the front, Toyota on the back), a missing strip from the side paneling, and a towel in the back window;
• Bacon wanted to borrow her car to visit his girlfriend at around 9:30 p.m. on April 22, to which she agreed after he offered to put gas in the car;
• Bacon had never borrowed her vehicle before;
• she did not hear from or see Bacon again until daybreak;
• she called him on the cell phone she had lent him;
• he said he was on his way and hung up;
• she heard him talking to another male outside but couldn’t understand the words and didn’t recognize the voice;
• she found a contact lens case in the back seat with “Rebecca” written on it;
• her mother advised that her car was on the news; and
• she gave the contact lens case to Det. Richardson.

|4 Rebecca Speed testified that:

• at 1:00 a.m. on April 22, 2005, she pulled into her apartment complex, turned off the ignition, and was listening to the radio with her car windows down;
• she heard someone say “hey”;
• when she looked, there was a man standing next to her window with a gun;
• she fled from the man and quickly told the complex security guard;
• her car, with her purse inside it, was taken and discovered approximately two hours later, with almost all of the purse’s contents missing;
• she lost a contact lens case that had “Rebecca” written on it;
• she heard it described on the news and contacted the sheriffs department;
• she was shown a photo lineup, and she picked photo # 3, being 80-85% sure that the man in that lineup photo was her carjacker;
• she did not know Brandon Davis, Dwight Bacon, or Laquetta Stafford; and
• accordingly, she could not give any other explanation for how her contact lens case came to be in Laquetta Stafford’s car.

Det. Angela Pell was called to the scene of Speed’s (apparent) carjacking and stated that based on the surveillance footage of the incident, Speed’s description of the perpetrator (5'4"-5'6", wearing a blue sweatshirt and blue jeans) was consistent with the image of the perpetrator in the motel surveillance footage.

Det. Richardson went to Bacon’s apartment and a black male in his 20s answered the door. Richardson identified the man as Dwight Bacon and | ¿asked him and Christina Burnett (a juvenile also present in the apartment) to come with him to the office, where Richardson and Rehak interviewed Bacon, after which they placed him under arrest. They then spoke to Bacon’s sister, Granada Bacon.

Granada Bacon testified that she and Bacon lived together in an apartment along with Bacon’s girlfriend. Bacon did not own a vehicle at the time of the murder, and that night, Dwight, Granada, and Laquetta Stafford were at Bacon’s apartment. Bacon borrowed Stafford’s red, two-door car that night and his sister did not see him again until approximately 7:00 the following morning.

Through the testimony of Del Irving, an employee of the Cash ‘N A Flash pawnshop, the state introduced the federal fix-e-arm fonn and pawn ticket filled out by Bacon on Api-il 22, 2005, to í-etiieve his Hi-Point Model CF .380 handgun. Irving also px-oduced a l-eceipt showing that some .380 ammunition was purchased by Bacon at the same time. The sei-ial number from the firearm was recorded on several of the forms and was identified as “P814629.” The pawn shop’s surveillance video was played for the jury dui-ing Irving’s testimony.

Kevin Ward, another pawn shop employee, testified that he assisted Bacon on April 22. He identified the defendant in a photographic lineup.

Sgt. Malcolm Laing of the Caddo Parish Sheriffs Office testified that:

most of the area pawnshops had joined a group where pawn information would be reported through a computer system accessible by law enforcement online;
• he conducted a search using Bacon’s name and discovered the location where he had pawned and redeemed a .380-caliber handgun;
• he assisted in the search of Bacon’s apartment where the .380-caliber handgun was located and found that the serial number matched that of the handgun pawned and redeemed by Bacon on Api'il 22; and
• dui'ing that seai-ch, officers found a partial box of American Eagle cartridges.

Officers were able to locate Davis on April 27, after intei-viewing Bacon. Davis agreed to accompany the officers and make a statement that day. During his first interview, the officers repeatedly tried to get a confession from the defendant, but Davis asserted his innocence throughout the interview. He admitted having been inside the red car before, but not on the night in question. The officers informed him that the only time Bacon had ever driven that car was on April 22.

Det. Richardson testified that Davis:

• admitted knowing Bacon;
• admitted being in the little red car on only one night;
• denied knowing what Bacon’s intentions were;
• said he wished that Tosha hadn’t died;
• said. he had never held Bacon’s gun before; and
• remained emotionless through the whole interview.

Lt. Rehak testified that Davis said he had an alibi, and that he’d been in the red ear with Bacon, but just not on the night of the murder.

|7Pavis was interviewed twice on April 28 by Det. Ward and Lt. Rehak.

Detective Kay Ward testified that:

• at the end of her first interview with the defendant, he was emotional;
• in the last interview, Davis related how and where the fire was started;
• Davis admitting holding the gun at one point during the evening;
• he didn’t plan to kill anybody;
• while the incident was ongoing, he was speechless, standing outside his body;
• the fire was started in the back seat of the car; and
• the victim was alive and conscious when she was put in the trunk.

Lt. Rehak recalled that during the third interview, the defendant said,

He and Dwight ... did go to the David Hotel. They encountered a female there. That when they left he followed Dwight. Dwight was in the red car, he was in the gray Altima with Tosha Lampkin, the victim, that she was told to drive and follow the red car.
That she was put or told to get into the trunk of the car and that the car was set on fire in the passenger seat by lighting a box that was behind the driver’s seat but it was in the back seat, lighting the box and using some grass and like some dry grass and weeds from the side of the road. She was alive when the fire started.

When Lt. Rehak asked if the defendant had sex with her, the defendant responded, “Don’t make me answer that.” The defendant finally admitted that he and Bacon took some money from the victim.

Corporal Jeff Thomas, who was accepted as an expert in fingerprint analysis and crime scene investigations, testified that:

18* he was dispatched to examine the burned car;
• there was no way for him to obtain latent prints as nothing remained from which to take fingerprints because of the fire and the water hoses used to douse the fire;
• he received several spent and live cartridges recovered from the scene;
• he noted two bullet holes near the gas tank fill area;
• after the vehicle was moved to the storage facility, he found a key in the trunk locking mechanism that had fallen inside the trunk when the lid melted;
• he also found several gold teeth, one with what looked like the letter “T” etched into it, and some bobby pins;
• he also processed Laquetta Stafford’s vehicle several days later but was unable to make any identifications from the prints found on that car;
• he was involved in a search of Bacon’s apartment and located a shoe box with a Hi-Point .380 semiautomatic handgun on a shelf in the bedroom closet, loaded with live cartridges;
• no prints were obtained from the gun; and
• he took DNA swabs from the firearm and buccal swabs from the defendant.

Caddo Sheriffs Lt. Owen McDonnell testified as an expert in the areas of “friction skin analysis and comparison” and “crime scene analysis and reconstruction.” He testified that he was able to determine a range of distances from which the shots were fired into the vehicle:

By taking the two bullets and coming back to where they would converge and then taking into account the fact that the gun is not going to be stationary the whole time it was fired, you can estimate that it was two to five feet, from two to five feet back towards this way and approximately four and a half to seven and a half feet away from the vehicle.

|flLt. McDonald also testified that La-quetta Stafford’s vehicle was leaking transmission fluid when it was searched, and officers at the scene of the burning car noticed an oily spot on the road to the east of the burning vehicle.

The state called Richard Beighley as an expert in the field of firearms identification. He identified two of the .880 cartridges found at the scene as being fired from the .380-caliber Hi-Point pistol taken from Bacon’s apartment. Beighley also stated that the ammunition found in Bacon’s apartment had a Federal head stamp, brass primer with a brass cartridge and was a full metal jacket, as were all the casings found at the scene and the ammunition inside the firearm.

Stewart G. Paley testified as an expert in forensic DNA analysis. He was tasked with identifying the victim. He examined the victim’s toothbrush, a piece of a femur, and a piece of a right rib, testifying:

The results were that the DNA profile obtained from the femur was consistent, matching at every locus with the DNA profile we obtained from the toothbrush. We just can’t say that it matches and everybody gets to go home. We have to put some sort of significance on the profile. And because we can tell you that DNA profile is unique to everyone, but unless we test everyone in the world, we have to actually give some sort of significance and run some statistics. So the probability of finding the same DNA profile in someone else — -and just the frequency of this profile was one in 48.3 quadrillion. So what that means is on average, I have to look at 48 .3 quadrillion DNA profiles before I came across this exact profile. And since there are about 6.6 billion people in the world, that makes a pretty good case that this is a good identification.

Finally, Det. Richardson was notified that Jarrett Ardoin, a former inmate of the Caddo Correctional Center with the defendant, might have some information regarding the case. Richardson interviewed Ar-doin, who | xpidentified the defendant in a lineup, and gave officers several cards and letters given to him by the defendant while they were incarcerated together for eight months. Ardoin met the defendant in the Caddo Correctional Center in April 2005. Ardoin asked Davis what he was in jail for, and testified as to the response he received:

He told me that him and the other guy, Dewight [sic ], that they were on Airline, I think, I believe, and they seen her in the car at the — I mean leaving the Waffle House and they followed her to the motel and pulled up behind her car at the motel and [defendant] got out of the vehicle and got in the passenger side and made her leave with the gun on her and the other guy followed them to the first place they went to.
He told me that he had anal sex and vaginal sex with her and that while he was having vaginal sex with her they were making her perform oral sex on the other guy and then they left that scene and went to the second place where the murder and the sex happened again.
He told me that, um, they didn’t intend to kill her, it was just a robbery and I don’t think that they intended to kill her because he said that that wasn’t the intention, it turned out that way. The reason why he said they did it like that was to get rid of the evidence and they were worried that she was going to remember the license plate from the vehicle in front and he told me that she promised that she wasn’t going to tell nobody and that she had a ten-year-old at home and please not to kill her.

Finally, Ardoin read from a letter that Davis passed to him in jail:

I’m going to tell you something because I know you probably got a shitty feeling about me. First, I’m not a hardcore gangster. As we followed that person I know in my mind that that person didn’t have nothing worth committing a crime over. The stuff we got was nowhere near — nowhere near and the money wasn’t close to a hundred, maybe eighty. And when you was steady asking me questions I was tripping, what did we do with the money. Hell, my friend, it wasn’t shit to do |T1 anything with. Like you thought, I was trying to show a mother fucker I was still wild and went along with some dumb shit and I deserve to get punished.
Even though I have a lot of good in me I’m completely embarrassed of telling you my crimes, that’s why I trip it on you — trip out on you. But I’m not telling you this to have to tell somebody, I just want to be completely truthful to somebody. I’m just a young mother fucker that’s went through a little hard time and made a lot of bad decisions. I never really sold drugs but what embarrasses me the most I’ve took somebody away from life and now I’m charged with that kind of crime. Maybe all my dirt has caught up on me.
Thug, I’m not trying to impress you, this is me, I haven’t done shit to impress nobody and I’m beginning to feel a lot better giving you the absolute truth because I know sooner or later you’re going to be gone and I feel like we’re using each other to pass time but my feelings are kind of serious.
Dam [sic ], I’m just a petty robber that’s done stuck his feet off in some deep shit. So now you know what the deal is. Ain’t no sense — ain’t no sense of fronting or fainting[.]

David Hensley, an investigator with the Caddo Parish District Attorney’s Office, obtained a handwriting exemplar from the defendant while he was incarcerated at Caddo Correctional Center.

Robert Foley was called to testify as an expert in forensic document examination and handwriting comparison. He testified that the writer of the known samples (Davis) wrote the letter in question.

Chief Deputy Coroner Joseph Johnson testified merely to authenticate the autopsy photographs and reports.

Caddo Parish D.A.’s Investigator Rusty McKinley testified that he went to the coroner’s office to inquire as to the cause of death, whether there were any projectiles lodged in the body, and whether evidence of a sexual assault could be obtained. He noted the cherry red color of the victim’s body, under the charred outside.

112The state called Dr. Frank Paretti, who was accepted as an expert in forensic pathology, and who testified as to the cause and nature of the victim’s death:

Well, first of all, the body was extensively charred or burnt, there were no grossly recognizable features that I was able to see or Dr. McCormick himself. He was not — he didn’t document any injuries externally. The internal examination the majority [sic ] of the organs were burnt, there was a lot of charring and burning of the internal organs. Of significant note what was important, what was documented was there was soot or smoke present in the upper and lower air passages. And the organs some of the organs that were relatively uninvolved upon sectioning had a cherry red discoloration. Now, that’s important because inside we’re not cherry red we’re more like dark red and when you see cherry red it indicates an exfixial [asphyxial] type death such as due to carbon monoxide.
Your blood what happens is the oxygen normally attaches onto the red blood cell and the carbon monoxide or the smoke has a higher affinity so they attach onto the molecule so it makes you turn bright red pink and you can see that externally and internally that really pink inside. And as I mentioned, there was soot present in the upper and lower air passages, there were no other documented injuries.

Sadly, Dr. Paretti established that the victim was alive when the vehicle was set on fire because she was able to inhale the smoke. The body’s severely burnt state precluded taking anal and vaginal smears. A piece of liver was sent for toxicology screening and the carbon monoxide level was 19%.

The defendant put on no evidence. The jury returned a verdict of guilty as charged of first degree murder, but was unable to return a recommendation during the penalty phase, so the court sentenced the | isdefendant to the mandatory life imprisonment at hard labor without benefit of probation, parole, or suspension.

DISCUSSION

The defense argues that the evidence was insufficient because:

• the defendant’s confessions were vague and unreliable;
• he asserted innocence throughout;
• the confessions were uncorroborated by other evidence;
• the confession, by itself, is insufficient to support the verdict in this case, citing State v. Willie, 410 So.2d 1019 (La.1982);
• the present case is analogous to State v. Whittington, 450 So.2d 47 (La.App. 3d Cir.1984), where the Third Circuit held that absent a corpus delicti, an accused cannot be convicted on a confession alone; and
• the defendant lacked the intent necessary to be guilty of first degree murder.

The state argues that “[ajppellant’s admissions and the other evidence are such that an application of the Jackson standard leads to the conclusion that the jury’s unanimous verdict of guilty was based on sufficient evidence.” The state argues that the victim was murdered during the course of several of the enumerated felonies contained in the statute and that the murder was conducted in such a manner that there can be no doubt death was the intended result.

Our law on reviewing sufficiency of the evidence is well settled.

| piFirst Degree Murder is defined, in pertinent part, in La. R.S. 14:30(A) as:

[T]he killing of a human being:

(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles!.]

Principals are defined in La. R.S. 14:24 as:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet injjsits commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The defense cites State v. Willie, supra, and State v. Whittington, supra, for the argument that a defendant cannot be convicted using only his own confession without proof of the corpus delicti. The defense attempts to analogize from these cases and argues that there was no physical evidence linking the defendant to this murder, so his confession alone could not implicate him. This is a baseless analogy.

In Willie, the Louisiana Supreme Court reiterated the “well settled” statement that “an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime had been committed by someone; in other words, without proof of the corpus delicti, [citations omitted.]” The Willie court ruled that the corpus delicti must be proven beyond a reasonable doubt. The supreme court held that it was proven in Willie, because even though the corpse was discovered partially decomposed, several items of evidence connected the body with the identity of the victim and her injuries suggested that she had died as a result of the criminal agency of someone.

The Whittington court held that hearsay testimony that someone had burglarized a church was not sufficient to prove the existence of the corpus delicti.

This court directly addressed this issue in State v. Cutwright, 626 So.2d 780, 783-784 (La.App. 2d Cir.1993), writ denied, 93-2931 (La.2/25/94), 632 So.2d 761. This court stated:

hfiln any criminal prosecution the corpus delicti must be established independently of a defendant’s extrajudicial statement, confession or admission.... The corroboration rule requires only that there be some evidence, besides the confession, that a criminal act was committed by someone[.]

A confession alone can supply the proof linking an accused to a crime, once the death is shown to be by violent means. See State v. Celestine, 452 So.2d 676 (La. 1984); State v. Romero, 369 So.2d 1342 (La.1979).

This evidence shows that Tosha Lamp-kin was killed by being locked in the trunk of a car, which was set on fire. Bacon was involved in the crime because his gun was used to shoot holes in the side of Ms. Lampkin’s rental car. Surveillance footage shows Bacon’s borrowed car and the rental car being operated in concert.

During his first interview, the defendant gave conflicting statements, first insisting that he had never seen Bacon driving anything but Bacon’s sister’s black car, then admitting being in a little red car with Bacon but not on April 22, 2005.

During the second interview, the defendant’s demeanor was somewhat different from that during the first interview. His tone of voice was more resigned.

During the final interview, the defendant began to say that they had no reason to kill the victim and that he hadn’t planned to kill anyone that night. He then gave details of the crime to the officers, including the fact that the victim was alive and conscious when she was put in the trunk and |17when the fire was set. He stated that the fire was started in the back seat of the car behind the driver’s seat.

It was clearly proven that:

• Tosha Lampkin died as a result of the criminal agency of someone;
• Davis was heavily involved in all of the evening’s sordid events, starting with his foiled practice run at the very fortunate Rebecca Speed;
• he got in the vehicle with Ms. Lamp-kin and made her follow Bacon;
• he anally and vaginally raped the victim and then drove her to the place of her death; and
• while conscious, she was forced into the trunk of a car that was set ablaze.

The defendant’s confession is sufficient to uphold a conviction since evidence beyond a reasonable doubt of the corpus delicti is clearly present. The jury’s determinations as to credibility and believability should not be overturned absent an abuse of discretion, and this record reflects none whatsoever.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Ms. Lampkin was later determined to be the decedent.

      . The glasses case was later identified as belonging to Rebecca Speed.

      . The man in photograph 3 was subsequently identified during the trial by law enforcement officers as the defendant, Brandon Davis.

      . A matter of hours before the murder and the other atrocities.

      . His criminal history was described as possession of marijuana, theft, and “a prescription charge.”

      . Dr. Paretti testified that "[t]hey say chronic smokers, people who smoke a lot, can have a carbon monoxide level of up to ten percent so you normally get over ten percent if you smoke four or five packs of cigarettes a day. So nineteen percent it's high, it indicates that she was alive and is inhaling the carbon monoxide or smoke.”

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jadison standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).