author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Lawrence E. BURTON.
    No. 2012-KA-1321.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Assistant District Attorney, Matthew R. Payne, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

_JjThe Appellant, Lawrence E. Burton, appeals the re-imposition of a sentence, on remand, of thirty (30) years and an additional five (5) year sentence, to be served without benefit of probation, parole or suspension, for a violation of La.Rev.Stat. 14-M.&. Finding that the district court did not err, we affirm.

The facts of this matter were previously set forth by our court in State v. Burton, 09-0826 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073. The facts pertinent to our review of the instant appeal are detailed herein.

Burton was arrested on June 2, 2008, charged with one count of La.Rev.Stat. 14:64.3, armed robbery where a firearm was used in the commission of the robbery, and one count of La.Rev.Stat. 14:27(64.3), attempted armed robbery with a firearm. At trial, Burton was found guilty of one count of La.Rev.Stat. 14:64.3, and was later sentenced to serve thirty (30) years in the custody of the 1 ^Louisiana Department of Corrections without benefits to be served consecutively with any other sentences. However, the district court did not mention the enhancement provision found in La.Rev.Stat. 14:64.3, requiring that defendants found guilty thereof be sentenced to serve an additional five years without benefit of probation, parole or suspension.

Burton appealed the conviction citing various assignments of error, including arguing that his thirty-year sentence was excessive; nevertheless, we affirmed Burton’s conviction. Id., p. 11, 43 So.3d at 1080. Additionally, this Court further chose to pretermit any ruling on the excessive sentence assignment of error upon learning that the sentence itself made no reference to the firearm enhancement provision found in La.Rev.Stat. 14:64.3. Id, p. 2, 43 So.3d at 1076. We held that the omission rendered the sentence illegally indeterminate, and vacated the sentence of thirty years and remanded the case for resentencing. Id. (citing State v. Weaver, 38,322 (La.App. 2 Cir. 5/12/04), 873 So.2d 909, State v. McGinnis, (La.App. 3 Cir. 4/30/08) 981 So.2d 881, and State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612).

In March 2012, the trial court dismissed the State’s multiple bill and the case was closed. On April 18, 2012, the trial court convened a hearing for the purpose of resentencing Burton in accordance with this Court’s ruling. The trial court then sentenced Burton to serve: 1) thirty (30) years with the Louisiana Department of Corrections without benefit of probation, parole or suspension of sentence, and 2) an additional five years with the Department of Corrections without benefit of probation, parole or suspension, in accordance with the firearm enhancement. The total sentence of thirty-five (35) years is to be served concurrently with any other sentences he may be serving.

| aBurton timely appealed the trial court’s corrected sentence. Thereafter, Burton filed a pro se brief. In total, he raises three (3) assignments of error:

1) The trial court erred in going beyond the remand order and increasing the term of the sentence, after appeal;
2) The trial court erred in imposing an unconstitutionally excessive sentence under the circumstances of the offense and the offender, as to the pre-termitted issue from the original appeal, and
3) In his pro se brief, Burton argues that the district court did not have subject matter jurisdiction in this case where the State instituted prosecution against appellant for a non-offense.

The first assignment of error raised by Burton is that the trial court erred in going beyond the remand order and increasing the term of the sentence, after appeal. Burton argues that that the trial court misinterpreted the order of this Court in his prior appeal. He maintains that we never instructed the trial court to resentence him; rather, he avers that our Court asked only that the trial court state whether the firearm enhancement mandated by La.Rev.Stat. 14:64.3 of five years had been included in his thirty year sentence. The district court, he argues, erred in adding five years to his sentence pursuant to the firearm statute.

Article 882 of the Louisiana Code of Criminal Procedure, entitled Correction of illegal sentence; review of illegal sentence, provides in pertinent part:

A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable ease by writs of certiorari and prohibition.

1¿Burton relies upon State v. Fraser, 484 So.2d 122, 124-125 (La.1986), in which the Supreme Court addressed article 882 and the issue of post-appellate sentence enhancement in opining:

Article 882 A, as amended, merely authorizes an appellate court to correct an illegal sentence on review. Nothing in the amendment suggests that an appellate court may correct an illegally lenient sentence of which the prosecutor has not complained. Article 882 B still requires an application for review of an illegal sentence by either the defendant or the prosecutor. Of course, the appellate court may correct a patent error when the matter is otherwise properly before the court on appeal, but there is no codal or statutory authority for an appellate court to search the record for patent sentencing errors to the detriment of the only party who sought review by the appellate court. [Emphasis added].

In Fraser, the Supreme Court further reasoned that an appellate court is prohibited, on an appeal taken by the defendant, from imposing a sentence more severe than the sentence from which the appeal was taken. Id. Burton argues essentially that when a defendant “alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant” because when a court of appeal reviews a sentencing error that is unfavorable to a defendant it provides “a chilling effect on defendant’s exercise of his right to appeal.” State v. Napoli, 437 So.2d 868 (La.1983) (citing State v. Goodley, 398 So.2d 1068 (La.1981)).

Burton further argues that the State did not move to correct the trial court’s sentence as illegally lenient. With regard to the duty of the State to object timely to illegally lenient sentences, Burton cites State v. Washington, 522 So.2d 628, 634 (La.App. 4 Cir.1988) (on rehearing), wherein we refused to consider the State’s objection to a lenient sentence raised in its appellate brief in an effort to obtain a harsher penalty. We reasoned that the State should have instead filed “a motion to |ficorrect the sentences in the trial court, answered defendants’ appeals, or applied for writs of review.” Id.

In Burton’s prior appeal, we found that Burton’s sentence was indeterminate because the firearm enhancement was not included in his sentence from our review of the record. The district court’s realization, upon remand, that the enhancement had not been included and that the sentence of Burton needed to be increased, is not an error. The sentencing enhancement is statutorily mandated pursuant to La.Rev.Stat.l4:64.3. Therefore, a trial court that discovers upon remand that the firearm enhancement was not previously calculated into sentencing must include it. We explained that a court that corrects an illegal sentence does not create a chilling effect on the defendant’s exercise of his right to appeal because the correcting court is “only assuring that his sentence will conform to the terms of the statute under which he was convicted.” State v. Gayden, 452 So.2d 783, 784 (La.App. 4 Cir.1984); see also State v. Williams, 00-1725, pp. 9-10 (La.11/28/01), 800 So.2d 790, 798. Burton’s reliance upon the holdings of Fraser and Washington, therefore, is misplaced. The district court acted in compliance with our directives on remand, and thus, this assignment of error is without merit.

The second assignment of error raised by Burton is that the trial court erred in imposing an unconstitutionally excessive sentence under the circumstances of the offense and the offender. He argues that the trial court gave no explanation for the length of the sentence it imposed, nor did the court discuss his criminal record. Thus, he argues his sentence of thirty-five (35) years is illegal under RLa.Code Crim. Proc. Art. 894.1. He also lists mitigating factors that should have been considered; however, none of those factors was presented at the time he was sentenced.

A trial court’s discretion in sentencing will not be set aside where abuse of discretion is not manifest. State v. Smith, 01-2574, p. 6 (La.1/14/03) 839 So.2d 1, 4. Furthermore, pursuant to State v. Walker, 00-3200, p. 2 (La.10/12/01) 799 So.2d 461, 462, while sentences must comply with La.Code Crim. Proc. Art. 894.1, no sentence will be set aside for excessiveness if supported by the record. See also State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819. Lastly, we explained the application of article 894.1 in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D). [Emphasis added].

We find that the record supports the thirty-year sentence imposed on Burton because during the commission of the offense he held a gun to the victim’s head and threatened to kill him. Pursuant to La.Rev.Stat. 14:64.3, the sentencing range faced by Burton is between fifteen (15) and one hundred and four (104) years at hard labor without benefit of parole. Burton’s sentence falls within this statutory 17range. Additionally, the sentence imposed is not excessive when compared to other armed robbery sentences that have been upheld.

For example, in State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, the Supreme Court noted that the defendant’s forty-year sentence was “within the thirty-five to fifty-year range this Court has found acceptable for first offenders convicted of armed robbery. State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50; State v. Augustine, 555 So.2d 1331, 1332 (La.1990) and the cases cited therein.” Likewise, in State v. Wix, 02-1493 (La.App. 4 Cir. 1/15/03), 838 So.2d 41, we upheld two (2) thirty-seven-year sentences for two (2) counts of armed robbery. Thus, the district court did not abuse its discretion when it imposed the thirty-year sentence on Burton, and this assignment of error is without merit.

Lastly, the assignment of error raised by Burton in his pro se brief is that the district court did not have subject matter jurisdiction in this case because the State instituted prosecution against him for a non-offense. He argues that La.Rev.Stat. 14:64.3 is not a crime, but a sentencing enhancement statute. Thus, he contends that because he has not been charged with an actual crime, “the only jurisdiction the trial court has is to quash the bill entirely, unless it is properly amended.” He argues, therefore, that he is “entitled to have his underlying convictions and sentences vacated and set aside and remanded for a new trial on the grounds that the proceeding against him is an absolute nullity and therefore legally void.”

The bill of information filed by the Orleans Parish District Attorney’s Office reads as follows:

Lawrence Burton ... late of the Parish of Orleans, on the 11th day of APRIL in the year of our Lord, two thousand AND EIGHT in the Parish of Orleans [¡^aforesaid, and within the jurisdiction of the Criminal District Court of the Parish of Orleans, WHILE ARMED WITH A DANGEROUS WEAPON, TO WIT: A HANDGUN, ROBBED NICHOLAS TASSIN OF U.S. CURRENCY, CELL PHONE, KNIFE AND WALLET ...

In State v. Crosby, 338 So.2d 584, 588 (La.1976), the Louisiana Supreme Court defined jurisdictional defects as those which do not permit conviction of the charged offense, even conceding a defendant’s factual guilt. The Crosby Court identified one such jurisdictional defect as being when the charge in the indictment does not constitute a crime. Id.

Article 494 of the Louisiana Code of Criminal Procedure provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Our Court explained the application of art. 494 in State v. Galindo, 06-1090, (La.App. 4 Cir. 10/3/07), 968 So.2d 1102:

The Bill of Information must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. State v. Allen, 00-0194 (La.App. 4 Cir. 08/01/01), 793 So.2d 426, 433, citing State v. Comeaux, 408 So.2d 1099 (La.1981).

Id., 06-1090, p. 12, 968 So.2d at 1111 (quoting State v. Johnson, 02-254 (La.App. 5 Cir. 6/26/02), 822 So.2d 840).

|9In the matter sub judice, the language of the bill of information specifically accuses Burton of having robbed the victim while armed with a gun. Louisiana Rev. Stat. 14:64 defines armed robbery as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” Additionally, La.Rev.Stat. 14:64.3 pertains to armed robberies that are committed with the use of a firearm. Comparing the bill of information to the statutes at issue, we find that Burton was sufficiently notified by the wording of the bill of information of the crimes with which he was being charged as the bill of information details that Burton committed a robbery while armed with a firearm. Thus, it is clear that Burton was charged with an “offense” over which the trial court, as a state court of Louisiana, had “subject-matter” jurisdiction. We find that this assignment is without merit.

Furthermore, the record does not reveal that Burton raised the issue of the alleged insufficiency of his indictment in the district court. Burton did file a pro se motion to quash in the district court, but the basis for the motion was that the bill of information “is defective, in that, it seek [sic] enhancement of sentence to a non-felony offense with [sic] which is contrary to the provision of La. R.S. 15:529.1 A.”

Our Court reasoned in Galindo that a defendant is precluded from raising claims challenging the sufficiency of an indictment after a verdict has been rendered:

A defendant may not complain of technical insufficiency in an indictment for the first time after conviction, when the indictment fairly informed the accused of the charge against him and the defendant is not prejudiced by the defect. State v. Michels, 98-608 (La.App. 5 Cir. 1/13/99), 726 So.2d 449. The omission of an essential fact does not necessarily create a prejudicial error because such facts can be supplied during discovery, by a bill of particulars. State v. Allen, supra. For these reasons, after the verdict a defendant ordinarily cannot complain of the insufficiency of a Bill of Information “unless it is so defective that it does not set forth an identifiable offense against the laws of this state and inform the defendant of the statutory basis of the offense.” State v. Allen, 793 So.2d 426, 434. [Emphasis added.]

Galindo, p. 12, 968 So.2d at 1102.

As explained above, the bill of information sufficiently alerted Burton that he was being charged with the armed robbery, and because he did not raise this issue in the district court prior to being convicted, we find that this assignment of error is untimely raised.

DECREE

For the foregoing reasons, we affirm the judgment of the district court re-imposing, on remand, a thirty-year sentence and adding an additional five-year sentence to be served without benefit of probation, parole or suspension, on Lawrence E. Burton for a violation of La.Rev.Stat. 14:64.3.

AFFIRMED

LOBRANO, J., concurs in the result.

      . La.Rev.Stat. 14:64.3 states, in pertinent part:
      A. 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.

      . An errors patent review was also conducted in Burton’s prior appeal.

      . La.Code Crim. Proc. Art. 894.1 provides in pertinent part:
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Vickie Watson WARD, Individually and on Behalf of the Estate of Mancil Watson, Respondent v. VIVIAN HEALTHCARE AND REHABILITATION CENTER, Applicant. In re Medical Review Panel of Mancil Watson (Deceased) PCF No. 2010-00755.
    No. 47,649-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      William C. Monroe, for Respondent.
    McGlinchey Stafford, PLLC, by Deirdre Claire McGlinchey, Shreveport, LA, Cara E. Hall, New Orleans, LA, for Applicant Nexion Health at Vivian, Inc. d/b/a Vivian Healthcare Center.
    Frank Hardy Thaxton, III, Shreveport, LA, for Applicant Louisiana Patients Compensation Fund.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

| tAt issue in this appeal is whether a medical malpractice action is prescribed when the request for review by a medical review panel was filed within one year of the victim’s death but the Patient’s Compensation Fund (PCF) determined that the request did not satisfy the minimum requirements set forth in La. R.S. 40:1299.47(A)(l)(b). The trial court denied the peremptory exception of prescription asserted by the defendant, Nexion Health at Vivian, Inc., d/b/a Vivian Healthcare Center. This court denied the defendant’s request for supervisory review, but the supreme court granted the defendant’s writ and remanded for briefing, argument, and a full opinion. Because the legislature did not provide any penalty for the failure of a request to contain all the minimum requirements, because the request at issue does not clearly fail to meet the minimum requirements, and because the request was filed within one year of the victim’s death, we now affirm the trial court’s judgment and remand for further proceedings.

FACTS

Mancil Watson, a resident of Vivian Healthcare Center, a nursing home in Vivian, Louisiana, died on July 8, 2009. His death certificate lists malnutrition as the cause of death, with dementia and a cere-brovascular infarction (a stroke) as secondary causes.

By letter dated July 2, 2010, and stamped received by the Division of Administration on July 7, 2010, an attorney on behalf of Mr. Watson’s estate, the plaintiff herein, filed a formal complaint against the defendant requesting the formation of a medical review panel. The letter, which was ^accompanied by a $100 filing fee, alleged that the defendant “did not provide proper care for Mr. Mancil Watson which caused his death.” The letter referred to July 8, 2009, as the “Date of Occurrence.”

By letter dated July 19, 2010, the PCF returned the letter, citing the failure to provide the date of death and a brief description of the alleged malpractice. The letter stated, “Please be advised that in order to maintain your original filing date, you must return the corrected panel request within thirty (30) days of the date of this letter.” The PCF letter also acknowledged its receipt of the $100 filing fee, which was not returned.

The attorney for Mr. Watson’s estate sent a follow-up letter dated August 19, 2010, and stamped received by the Division of Administration on August 20, 2010. This letter stated that Mr. Watson died on July 8, 2009, that he was a patient at the nursing home due to a stroke that resulted in him being unable to walk, and that the staff allowed bedsores to develop and failed to provide proper nutrition, which was a direct cause of his death.

On March 9, 2012, the defendant filed an exception of prescription in the First Judicial District Court, asserting that the plaintiffs medical malpractice claim is untimely because it was not deemed filed within the prescriptive period set forth in La. R.S. 9:5628. In support of its exception, the defendant asserted that the plaintiff failed to timely submit a claim that met the requisites of La. R.S. 40:1299.47(A)(1)(b) and that the PCF had no authority to, in effect, extend the prescriptive period by granting an additional 30 days for the plaintiff to file a corrected request. The defendant noted, too, that the plaintiff failed to timely file the corrected request within |3the 30-day extension granted by the PCF. Thus, even if the PCF could grant the extension, the claim still would not be deemed filed within the applicable prescriptive period for medical malpractice actions.

In a memorandum opposing the exception, the plaintiff argued that the amended request related back to the timely original request.

The exception was argued before the trial court on April 30, 2012. Plaintiffs counsel was unable to attend and submitted based on the filings. After taking the matter under advisement, the trial court rendered a judgment on May 31, 2012, denying the defendant’s exception of prescription.

As stated above, this court denied the defendant’s application for supervisory review, but the supreme court granted the writ and remanded for briefing, argument, and a full opinion. In re Watson, 2012-1891 (La.11/30/12), 103 So.3d 361. At issue, as presented by the defendant, is whether the filing of a request that does not comply with the requirements of La. R.S. 40:1299.47(A)(1)(b) suspends prescription on the malpractice claim; if not, is the PCF authorized to extend the prescriptive period by allowing the claimant to maintain the original filing date by filing a corrected request; and if the PCF is authorized to grant the extension, is the malpractice claim prescribed when the claimant then fails to file a corrected request within the extended period.

DISCUSSION

The prescriptive period for actions based on medical malpractice is set forth by La. R.S. 9:5628(A), which requires such claims to be brought |4within one year of the alleged act, omission, or neglect or within one year from the date of discovery. However, all such claims must be filed, at the latest, within three years from the date of the alleged act, omission, or neglect. La. R.S. 9:5628(A).

The filing of a request for review by a medical review panel suspends the prescriptive period. La. R.S. 40:1299.47(A)(2)(a). Such requests are deemed filed “on the date of receipt of the request stamped and certified by the division of administration!.]” La. R.S. 40:1299.47(A)(2)(b). The plaintiffs request was stamped received by the division of administration on July 7, 2010, within one year of the death of Mr. Watson. Though the request appears timely, the defendant argues that the request did not comply with the mandatory requirements of La. R.S. 40:1299.47(A)(1)(b), is not valid, and did not suspend prescription.

Determining whether the plaintiffs claim is prescribed requires interpretation of La. R.S. 40:1299.47(A)(1)(b). Where an exception of prescription involves the interpretation of a statute, a legal issue is presented and the de novo standard of review is applied. Johnson v. Littleton, 45,323 (La.App.2d Cir.5/19/10), 37 So.3d 542.

The purpose of statutory interpretation is to determine legislative intent. Perritt v. Dona, 2002-2601 (La.7/2/03), 849 So.2d 56. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written with no further interpretation made in search of the legislative intent. Id.; La. C.C. art. 9; La. R.S. 1:4. The legislature is presumed to act with knowledge of the ^principles of statutory construction and existing laws on the same subject. Borel v. Young, 2007-0419 (La.11/27/07), 989 So.2d 42. When the legislature changes the wording of a statute, the presumption is that it intended to change the law. Id.

The Medical Malpractice Act (MMA), La. R.S. 40:1299.41 et seq., provides limitations on liability and other advantages to healthcare providers that are in derogation of the rights of tort victims. Therefore, the MMA must be strictly construed. Perritt, supra; Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992). One such advantage is the requirement that a claim first be submitted to a medical review panel before the malpractice action may commence in court. La. R.S. 40:1299.47(B)(1)(a)(I); Williams v. Notami Hospitals of Louisiana, Inc., 2004-2289 (La.App. 1st Cir.11/4/05), 927 So.2d 368. The medical review panel is a filtering process that is meant to weed out frivolous claims or prompt defendants to settle valid claims reasonably. Perritt, supra; Everett v. Goldman, 359 So.2d 1256 (La.1978). However, the medical review panel’s findings are not binding on the parties. Perritt, supra.

The review process begins with the filing of a request in accordance with La. R.S. 40:1299.47(A). The legislature by Acts 2003, No. 961, amended this statute to provide requirements for the medical review panel request. La. R.S. 40:1299.47(A)(1)(b) states:

(b) A request for review of a malpractice claim or a malpractice complaint shall contain, at a minimum, all of the following:
(i) A request for the formation of a medical review panel.
(ii) The name of only one patient for whom, or on whose behalf | fithe request for review is being filed; however, if the claim involves the care of a pregnant mother and her unborn child, then naming the mother as the patient shall be sufficient.
(iii) The names of the claimants.
(iv) The names of the defendant health care providers.
(v) The dates of the alleged malpractice.
(vi) A brief description of the alleged malpractice as to each named defendant health care provider.
(vii) A brief description of the alleged injuries.

The above language appears clear and unambiguous. The legislature’s use of the word “shall” signals that these are mandatory requirements. La. R.S. 1:3. Thus, the legislature has seen fit to provide mandatory minimum requirements for the information that must be contained in a request for a medical review panel. WZhat the legislature has not provided is guidance as to the penalty or effect of the failure of a claimant to comply with all the requirements.

The statute, as it existed prior to the 2003 amendments and exists now, provides a penalty for the failure to a pay the required filing fee. The failure to either pay the filing fee or obtain a waiver within the requisite 45-day period following the mailing of confirmation of receipt of the request “shall render the request for review of a malpractice claim invalid and without effect.” La. R.S. 40:1299.47(A)(1)(e). The defendant notes that courts have strictly enforced this provision. For instance, the defendants cite In re Herring, 2007-1087 (La.App. 3d Cir.1/30/08), 974 So.2d 924, wherein the claimant’s failure to timely pay the filing fee rendered his request invalid. Because the invalid request did not operate to suspend ^prescription, Herring’s malpractice claim was dismissed on an exception of prescription. This case and others cited by the defendant are based on the clear language of La. R.S. 40:1299.47(A)(1)(e).

Recognizing that the statute does not expressly provide that the failure to comply with the mandatory minimum requirements for a medical review panel request renders the request “invalid and without effect,” the defendant argues that no express provision is necessary. The defendant asserts that the statute now defines what constitutes a valid request; therefore, a request that does not include the required minimum elements is not valid.

In amending La. R.S. 40:1299.47, the legislature was surely aware of the language stating that the failure to pay a filing fee renders the request “invalid and without effect.” Yet, the legislature did not include similar language with regard to a request that does not contain all the listed elements. It is not the job of the judiciary to insert penalty provisions into a statute where the legislature has not done so. Marks v. New Orleans Police Department, 2006-0575 (La.11/29/06), 943 So.2d 1028.

The Marks ease concerned the application of La. R.S. 40:2531(B), which specifies the minimum standards that apply when a law enforcement officer is under investigation. The statute requires the completion of an investigation within 60 days, unless the police department obtains an extension from the Municipal Fire and Police Civil Service Board. Marks, |8then a sergeant in the New Orleans Police Department (NOPD), was terminated as a result of an investigation completed after the 60-day period had passed. Marks’ termination was upheld by the Civil Service Commission, but reversed by the appellate court because of the failure to comply with the minimum standards set forth in La. R.S. 40:2531(B).

The NOPD appealed to the supreme court, which reversed the appellate court’s decision on the grounds that the legislature did not include any penalty in the statute for noncompliance with the 60-day period and that the judiciary could not supply the penalty. The court found that the failure to comply with the 60-day period did not require dismissal of the disciplinary action. The supreme court was not persuaded by the use of “shall” in the statute. The court noted that statutes employing mandatory language generally prescribe some penalty if the required action is not done. The court noted that when the terms of statute “are limited to what is required to be done, ie., procedural rules, then the statute is considered directory even though mandatory language is employed.” Id., 2006-0575 at 10, 943 So.2d at 1035. The supreme court was also persuaded by the absence of any prejudice to Marks from the delay in his disciplinary action.

Likewise in Carter v. Duhe, 2005-0390 (La.1/19/06), 921 So.2d 963, the court refused to provide a penalty, where none was provided by the legislature, for the failure of a builder to give a homeowner written notice of the New Home Warranty Act (NHWA) requirements as mandated by La. |flR.S. 9:3145. While acknowledging that laws are not to be construed in a way that renders them meaningless, the court recognized that “it is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so.” Id., 05-3090 at 10, 921 So.2d at 970. The supreme court found that the homeowner was not prejudiced by the builder’s failure to provide the required notice.

Similarly, the statute at issue in this matter has mandatory language setting forth the requirements for a medical review panel request, but no penalty provision for noncompliance. Moreover, there is no allegation or showing that the defendant was prejudiced by the allegedly deficient request. It is not the function of this court to provide a penalty where the legislature has not done so. Therefore, strictly construing the statutory provision at issue, we cannot conclude that the request received on July 7, 2010, was invalid and without effect and did not suspend prescription on the underlying malpractice claim.

We observe that contrary to the PCF’s rejection of the request, the letter received July 7, 2010, did include the date of death, July 8, 2009, which was referred to as the “Date of Occurrence.” Strictly construed, the statute itself does not explicitly require a date of death; it requires the |indate(s) of the alleged malpractice. La. R.S. 40:1299.47(A)(1)(b)(v). July 8, 2009, is the date that Mr. Watson died as a result of malnutrition allegedly caused by the defendant’s failure to provide proper care. Thus, the original request appears to include the requisite date.

The letter also alleged that the defendant failed to provide proper care for Mr. Watson and that this failure caused his death. The letter did not specify in what way the defendant failed to provide proper care. Thus, the PCF concluded that it was deficient.

In Perritt, supra, which predates the effectiveness of the 2003 amendments to La. R.S. 40:1299.47, the claimant’s letter set forth the dates of treatment and the alleged date of malpractice. It also maintained that the defendants deviated from the applicable standard of care. The defendants sought to compel the plaintiff to provide more information. The trial court agreed that the letter did not contain facts sufficient to provide the defendants with proper notice and granted the motion to compel. After the supreme court granted writs and ordered this court to review the matter, we affirmed the district court’s ruling and found that the defendants’ motion to compel was essentially an exception of no cause of action or vagueness based on the plaintiffs failure to list his injury or the facts that caused it. The supreme court then considered the Perritt matter along with two other cases concerning whether the parties may propound interrogatories during the review panel stage when the complaint fails to set forth facts sufficient to provide notice as to the alleged malpractice. The supreme court concluded that neither interrogatories, the exception of no cause of action, |nnor the exception of vagueness is permissible during the medical review panel stage.

In determining that the MMA does not allow interrogatories in the review panel stage, the supreme court noted that La. R.S. 40:1299.47 does not provide a required format for the “complaint” and that nothing in the MMA specifies that the defendants are entitled to “notice.” As stated:

The claim is not required to be a fact pleading with the specificity that may be required in a petition in a lawsuit; rather, the claim need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the Act.

Id., 02-2601 at p. 13, 849 So.2d at 65.

Likewise, in concluding that the MMA does not allow for exceptions of no cause of action or vagueness during the medical review panel stage, the court again noted that it is a claim, not a petition, that is before the panel for review. Thus, the court indicated that the claim or request for a medical review panel does not require the same detail as to the facts of the alleged malpractice as is required for a petition instituting litigation before a court.

The legislature has amended La. R.S. 40:1299.47, and there are now minimum requirements for a request for review of a malpractice claim but no penalty for noncompliance with these requirements. As to the facts of the alleged malpractice, La. R.S. 40:1299.47(A)(1)(b)(vi) requires only a “brief description of the alleged malpractice as to each named defendant health care provider.” This does not mandate the type of fact pleading required in a court petition. The requirement for “a brief description of the alleged malpractice” is in line with the pre-amendment law of Perritt, supra, |12that the claimant “need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the [MMA].” Perritt, 02-2601 at 13, 849 So.2d at 65. This information is provided through the submission of written evidence to the medical review panel as provided by La. R.S. 40:1299.47(D), not the initial request to the PCF for review.

Considering the clear and plain language of the statute and construing it strictly due to its provisions being in derogation of the rights of tort victims, we find the statement that the “provider did not provide proper care for Mr. Mancil Watson which caused his death” to be a “brief description of the alleged malpractice” as to the defendant herein. As stated, there is no allegation or indication in this record of prejudice to the defendant from this brief description of the alleged malpractice. The sole defendant is the nursing home where Mr. Watson resided, and it would surely be aware of the care that was provided to him, of his ailments, and of his death. The initial request suffices as notice to the defendant that a malpractice claim is being asserted based on its failure to provide proper care to Mr. Watson. The details of that alleged failure will be made clear upon the submission of written evidence to the medical review panel.

We find that the initial request received on July 7, 2010, within one year of Mr. Watson’s death, was timely. It appears to comply with the minimum requirements set forth by La. R.S. 40:1299.47(A)(1)(b). We also find that even if the request failed to comply with the minimum requirements, the statute contains no penalty provision that would render the |iarequest invalid and without effect so that it does not suspend prescription. For these reasons, we affirm the trial court’s judgment. Our findings preclude the need to address the defendant’s remaining issues concerning the authority of the PCF to grant additional time to file a corrected request and the timeliness of the corrected request.

CONCLUSION

For the reasons explained in this opinion, we affirm the trial court’s judgment denying the exception of prescription asserted by the defendant. We assess the defendant with costs and remand for further proceedings.

AFFIRMED and REMANDED.

      . The letter referred to the defendant as Vivian Healthcare & Rehabilitation Center.

      . See In re Medical Review Panel Proceedings of Ouder, 2007-1266 (La.App. 1st Cir.5/2/08), 991 So.2d 58; In re Medical Review Panel Proceedings of Berry, 2009-0752 (La.App. 4th Cir. 1/27/10), 30 So.3d 251; and Igwike v. Memorial Medical Center, 06-0167 (La.App. 4th Cir.5/23/07), 959 So.2d 562.

      . La. R.S. 40:2531(B) states that "the following minimum standards shall apply” when a law enforcement officer is under investigation.

      . La. R.S. 9:3145(B) provides, in relevant part, "The builder shall give the owner written notice of the requirements of this Chapter at the time of the closing!.]”

      . The notice obligation required the builder to provide notice of the law, namely, the warranties provided by the NHWA. The court explained that it would be contrary to the established principle that all citizens are charged with knowledge of the law to mandate prior notice for the law to be effective. Carter, supra. In contrast, the NHWA penalizes an owner who fails to give the builder notice of defects. See La. R.S. 9:3144.


author: WILLIAMS, J.

text:
    Martha HUMBLE and James R. Humble, Plaintiff-Appellant v. PAFFORD EMS, Dianna Nicole Hackler, Zach Helton and XYZ Insurance Company, Defendant-Appellee.
    No. 47,903-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Walter F. Clawson, Shreveport, LA, for Appellant.
    Brady D. King, II, Monroe, LA, Nicholas M. Graphia, for Appellee, Zach Helton and Dianna Nicole Hackler.
    Phillip M. Hendry, for Appellee, Pafford Emergency Medical Service, Inc.
    Before WILLIAMS, STEWART and SEXTON (Ad Hoc), JJ.
   WILLIAMS, J.

| plaintiffs, Martha Humble and James R. Humble, appeal a district court judgment sustaining peremptory exceptions of no right of action and no cause of action filed by defendant, Zach Helton. For the following reasons, we reverse and remand this matter for further proceedings.

FACTS

Plaintiff, Martha Humble, and defendants, Nicole Hackler and Zach Helton, were employed by defendant, Pafford Emergency Medical Service, Inc. (“Paf-ford”). Helton was the supervisor in charge of plaintiff and Hackler.

On July 26, 2011, plaintiff and her husband, James R. Humble, filed a tort suit naming Pafford, Hackler and Helton as defendants. In the original petition, plaintiffs alleged as follows:

2.
At all times relevant herein:
A. DIANNA NICOLE HACKLER was a resident of Eldorado, Arkansas and an employee of PAFFORD EMS.
B. ZACH HELTON was an employee and supervisor of Pafford EMS on the day the incident occurred[.]
8.
On or about August 2, 2010, MARTHA HUMBLE was an employee of PAF-FORD EMS. The defendant, DIANNA NICOLE HACKLER, was also employed at PAFFORD EMS on August 2, 2010.
4.
On or about August 2, 2010, MARTHA HUMBLE was physically attacked by the defendant named herein, DIANNA NICOLE HACKLER.
5.
Upon arrival at plaintiffs place of employment, DIANNA NICOLE HACK-LER approached MARTHA HUMBLE being verbally abusive towards plaintiff and advising plaintiff that she was not going to accept a dirty and unmaintained ambulance. Plaintiff attempted to back away from the defendant, HACKLER, when the defendant charged plaintiff grabbing her around the throat choking her and then began to kick the plaintiff in her shins.
7.
Plaintiff further shows that the supervisor, ZACH HELTON, upon information and belief, advised the defendant HACKLER that if she would attack the plaintiff that he would pay her to hurt the plaintiff.
* * *

Plaintiff also alleged that Pafford was negligent in, inter alia, (1) failing to provide a safe work environment; (2) failing to exercise control over its employees; and (3) allowing a supervisor to incite physical confrontations between the company’s employees.

On October 24, 2011, Helton filed a peremptory “exception of no cause of action and/or no right of action.” Helton argued that he was entitled to immunity from tort suits pursuant to the Workers’ Compensation Act. Helton also argued that even if the allegations against him were true, plaintiffs failed to allege sufficient facts to support a cause of action based on an intentional act.

On March 1, 2012, plaintiffs filed a supplemental and amending petition, stating:

III.
Plaintiffs desire to Amend and Supplement the Original | ¡¡Petition for Damages by adding the following paragraphs:
"7."
Plaintiff further shows that the supervisor, ZACH HELTON, upon information and belief, advised the defendant HACKLER that if she assaulted the plaintiff that he would pay to have her bailed and/or bonded out of jail. Plaintiff further shows that the statement by ZACH HELTON was an intentional act, which incited the defendant, HACK-LER, to harm the plaintiff. As a supervisor of employees, HELTON had a duty to discourage HACKLER from harming the plaintiff instead of encouraging and inciting her to do so, which duty was breached.
“7a.” Plaintiff further shows that at all pertinent times HELTON was acting within the course and scope of his employment with PAFFORD EMS when he incited HACKLER to harm plaintiff, MARTHA HUMBLE.
* * ⅜
“9.”
The defendants, PAFFORD EMS, ZACH HELTON AND DIANA [sic] HACKLER are liable and negligent for the damages sustained by the plaintiff for the following non-exclusive list of particulars:
A. Failing to exercise control over their employees and failing to discourage an employee from harming another employee.
B. Allowing a supervisor to inflict an intentional act upon the plaintiff by encouraging and inciting defendant HACKLER to attack and cause harm to a co-employee.
C. Failing to provide a safe work environment for its employees; and
D. Other acts of negligence which will be shown at the trial of this matter.
* # *

The district court sustained the exception of no right of action and no |4cause of action and dismissed Helton as a defendant. The court stated:

[Considering that the plaintiff is faced with an exclusive remedy of Worker’s Compensation, and certainly wants Mr. Helton involved because that means Paf-ford gets involved because he was employed as a supervisor[.] [I]f those facts are correct, then it’s the plaintiffs burden of alleging with specificity how this survives the exclusive remedy of Worker’s Compensation.
I don’t feel like the plaintiff has met that burden in the pleadings. Failure to warn, to train, to supervise are all allegations that sound in tort. Certainly, Ms. Humble has an action against Ms. Hackler, but I don’t think that’s what she wants. She wants it against Mr. Helton so she can go against Pafford, and I don’t think the specificity has been established to avoid the absolute statutory regime of Worker’s Comp exclusivity. And, the amended petition doesn’t appear to do that and, certainly, the interrogatory responses don’t do that.

Plaintiffs appeal.

DISCUSSION

Plaintiffs contend the district court erred in sustaining the exceptions of no right of action and no cause of action. Plaintiffs argue that an intentional act by a co-employee is an exception to the exclusive remedy provision of LSA-R.S. 28:1032(B). According to plaintiffs, the petitions specifically alleged that Mrs. Humble was injured as a result of Helton’s intentional act while both Mrs. Humble and Helton were acting in the course and scope of their employment.

No Right of Action

The function of the peremptory exception is to have the plaintiffs | .¡action declared legally nonexistent, or barred, by effect of law. LSA-C.C.P. art. 923; Waggoner v. America First Ins., 42,863 (La.App.2d Cir.1/16/08), 975 So.2d 110. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La.10/25/11), 79 So.3d 246; Hood v. Cotter, 2008-0215 (La.12/2/08), 5 So.3d 819. The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Richland Parish Police Jury v. Debnam, 42,421 (La.App.2d Cir.10/17/07), 968 So.2d 294, writ denied, 2008-0016 (La.3/24/08), 977 So.2d 953.

The determination whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Eagle Pipe and Supply, Inc., supra; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 (La.11/29/06), 943 So.2d 1037. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Eagle Pipe and Supply, Inc., supra; Hood, supra; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211.

We have conducted a de novo review of the record in this case. | ^Assuming that the petition states a valid cause of action, we find that plaintiffs belong to the class of persons to whom the law grants the cause of action asserted herein. Plaintiffs alleged that Mrs. Humble sustained personal injuries as a result of the conduct of her supervisor and co-employee, Helton and Hackler, respectively. Therefore, Mrs. Humble and her husband, James, are the proper parties to bring this lawsuit for damages sustained by Mrs. Humble arising out of the alleged conduct of the defendants. Consequently, the district court erred in sustaining the exception of no right of action.

No Cause of Action

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendants to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 2001-0175 (La.9/18/01), 795 So.2d 302; Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207. The exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Kinchen v. Livingston Parish Council, 2007-0478 (La.10/16/07), 967 So.2d 1137; Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346.

No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the pleadings; for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be 17accepted as true. Id. The exception of no cause of action presents questions of law requiring a de novo review by appellate courts. Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254; Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App.2d Cir.10/07/09), 22 So.3d 246, writ denied, 2009-2420 (La.2/5/10), 27 So.3d 299.

Ordinarily, an employee is limited to recovering workers’ compensation benefits, rather than tort damages, for injuries sustained on the job. However, this exclusive remedy rule is inapplicable when the employee’s injury is caused by the employer’s intentional act. LSA-R.S. 23:1032(B); Crockett v. Therral Story Well Service, Inc., 45,716 (La.App.2d Cir.1/5/11), 57 So.3d 355, writ not considered, 2011-0263 (La.3/25/11), 61 So.3d 650; Gallant v. Transcontinental Drilling Company, 471 So.2d 858 (La.App. 2d Cir.1985).

|RThe term “intentional act” as used in this section means the same as an intentional tort in reference to civil liability. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Crockett, supra. In this context, the meaning of intent is that the actor either: (1) consciously desires the physical result of his act; or (2) knows that the result is substantially certain to follow from his conduct. Id. The phrase “substantially certain to follow” requires more than a reasonable probability that an injury will occur and the word “certain” has been defined to mean inevitable or incapable of failing. Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208; Crockett, supra. Knowledge and appreciation of a risk does not constitute intent, nor does an employer’s reckless or wanton conduct constitute intentional wrongdoing for purposes of the Act. Simoneaux v. Excel Group, LLC, 2006-1050 (La.9/1/06), 936 So.2d 1246; Reeves, supra.

In the instant case, in the original petition, plaintiffs alleged that Hackler approached Mrs. Humble at their place of employment and became “verbally abusive towards plaintiff’ regarding the uncleanliness of an ambulance. In the supplemental and amending petition, plaintiffs alleged that Helton advised Hackler “that if she assaulted the plaintiff that he would pay to have her bailed and/or bonded out of jail[.]” Plaintiffs also alleged that Hel-ton’s statement constituted “an intentional act, which incited [Hackler] to harm the plaintiff.”

We note that plaintiffs did not allege that Helton either threatened or physically harmed Mrs. Humble. However, Helton’s statement, “I will pay to have you bailed and/or bonded out of jail if you [attack] her,” indicated |9that he consciously desired Hackler to physically attack and harm Mrs. Humble and urged her to do so with impunity. We feel that Helton’s promise and commitment to Hackler shows that he had a conscious desire to have Mrs. Humble harmed. Clearly, this type of incitement and instigation by Hel-ton, the supervisor, is the exact type of behavior that is beyond the scope of the Workers’ Compensation Act, LSA-R.S. 23:1032(B).

Accepting the allegations set forth in plaintiffs’ petition as true and applying the statute to the facts set forth in both the original and supplemental and amending petitions, we find that the plaintiffs have stated a cause of action in intentional tort. Therefore, the district court erred in sustaining the exception of no cause of action and in dismissing Helton as a defendant in this tort suit.

CONCLUSION

For the reasons set forth herein, we find that the district court ruling, sustaining the peremptory exceptions of no right and no cause of action, is hereby reversed. We remand this matter for further proceedings. Costs of this appeal are assessed to defendant, Zach Helton.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . Pafford filed a brief in this Court. However, Pafford did not file an exception of no right/no cause of action in the district court; therefore, the district court's dismissal of the claims with regard to Helton did not include Pafford. Consequently, the opinion of this Court does not address any of the allegations against Pafford.

      . LSA-R.S. 23:1032 provides, in pertinent part:
      A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury ... for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages!.]

      B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      C.The immunity from civil liability provided by this Section shall not extend to: (1) Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment^]


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Paris T. SMITH, Appellant.
    No. 47,983-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Ron Christopher Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & PITMAN, JJ.
   PITMAN, J.

[ following a jury trial, Defendant, 16-year-old Paris T. Smith, was found guilty of being a principal to second degree murder in violation of La. R.S. 14:24 and 14:30. He was sentenced to life imprisonment without the benefit of probation or suspension of sentence, but the sentence was imposed with eligibility for parole. This appeal followed. For the reasons stated herein, we affirm Defendant’s conviction and sentence.

FACTS

Defendant was originally charged, along with codefendants Caddara Hogan (“Hogan”) and Farrell Rochelle (“Rochelle”), with the first degree murder of Ronald Wilson (“Wilson”) during an attempted armed robbery, contrary to La. R.S. 14:30. The grand jury indictment was amended to the charge of principal to second degree murder in violation of La. R.S. 14:24 and 14:30.1(A)(2). Defendant was transferred to adult court where Defendant and Rochelle were tried together.

A jury trial was held and evidence presented that, on the day of the robbery and shooting, Defendant, Hogan and Rochelle were present at a party at the home of Eric Gilliam, a/k/a “Little E,” drinking and smoking marijuana. Ironically, the party was held in celebration of Little E’s completion of a rehabilitation program. Wilson, who was a painter and carpenter, was repairing the porch of the home where the party was being held. Defendant, Hogan and Rochelle believed Wilson was going to have money later in the day and that he planned to go to the home of a friend, Ms. Rena Lee.

12At trial, Ms. Lee testified that, on February 3, 2010, Wilson came to her home in Mansfield at approximately 7:15 p.m. They were talking, watching television and using the crack cocaine that Wilson had brought with him. Ms. Lee was on her couch and Wilson was sitting in a chair by the door when the door was kicked open by a person with a scarf wrapped around his neck and wearing a black hoodie. The person had a silver gun, which he pointed at Wilson, and asked, “Where’s the money?” When Wilson responded, “What money?” the person shot him in the foot. Wilson then told the person the money was in his truck so Wilson and the person went outside. Ms. Lee testified that she looked out the door and saw two more people, one standing at the road watching and the other at the tailgate of Wilson’s truck.

Ms. Lee stayed inside her home and she heard three shots fired. When everything became quiet, she opened her door and called Wilson’s name, but no one answered. She attempted to call 911, but received a busy signal. Her neighbors called her to come out of her house, and she stayed with them until the police arrived. She did not know at that time whether or not Wilson was dead because she did not approach his body.

Ms. Lee’s back door neighbor, John Scroggins, testified that he arrived at his home around 7:00 p.m. and was watching television when he heard pops and then a firearm boom. He looked out his window and saw three African American men running up the street. One had a white dog. | ¡¡Scroggins described two of the men as two as being tall, and the third one was shorter.

Det. Adam Ewing of the DeSoto Parish Sheriffs Office investigated the case. He testified that he learned Wilson had been shot in the foot inside Ms. Lee’s home, and a .380 caliber bullet was removed from the carpet where Wilson had been sitting when he was shot. Det. Ewing further testified that Wilson was found lying outside the home and appeared to be armed with a shotgun he had retrieved from his truck. Det. Ewing recovered a 12-gauge pump shotgun that belonged to Wilson, from which two rounds had been fired. Two 12-gauge shotgun shells were recovered at the scene-one from the yard and one une-jected from the gun. Det. Ewing also testified that the police found Wilson’s wallet, which contained $732, on the passenger side of the pickup truck close to the front fender.

Det. Ewing further testified that he obtained information that three individuals were involved in the incident — Hogan, Rochelle and Defendant. Det. Ewing stated that Defendant was interviewed several times and gave conflicting statements in which he sometimes claimed to have been involved and other times claimed he was not. Det. Ewing testified that he believed Hogan was the person who shot and killed Wilson. The weapon used in the crime was never recovered, although two .380 caliber bullets were recovered — one from the floor of the home and one from Wilson’s body.

Dr. James Traitor testified that he performed the autopsy on Wilson and recovered a bullet from his body. He stated that Wilson died as a result |4of a gunshot to the upper lobe of the left lung, which bullet continued to travel through the heart to the middle lobe of the right lung, cracking the right sixth rib and lodging in the tissue near the rib fracture.

Hogan testified for the state. He had been offered and had accepted a plea bargain agreement to plead guilty to the reduced charge of manslaughter. Hogan testified that he, Rochelle and Defendant met at the party at noon and remained there until it was dark outside. He testified that it was Rochelle’s idea to rob Wilson and that Defendant was involved in the plan. Hogan testified that he knew Wilson would be going to Ms. Lee’s house that evening because a “drug party” was held at her house every first and third week of the month “when the checks come out.” He stated that the three of them decided to rob Wilson because they knew he would have money from working on “Little E’s” porch. Hogan further testified that they all dressed in black hoodies, walked to Ms. Lee’s house and waited for Wilson to come outside.

Hogan further stated that Rochelle had a chrome and black gun and that, when Rochelle grew tired of waiting for Wilson to emerge from Ms. Lee’s house, Rochelle pushed open the door and entered the house atone. Hogan testified that Rochelle shot Wilson in the foot and then took Wilson to his truck where Wilson retrieved his shotgun instead of any money. Hogan stated that he and Defendant were standing next to each other in the yard; and, when the shooting between Wilson and Rochelle began, they both ran away. He testified that he did not realize Wilson had fidied until he was at Defendant's home and heard others discussing Wilson’s death.

Rochelle testified that he went to Ms. Lee’s house with Hogan, but denied planning a robbery or knowing that Hogan had a gun. He testified that he and Hogan left the party and that Hogan asked him to “go up the street and hit a lick with him” and that he agreed to go. Rochelle testified that he did not know what Hogan meant; but, when Hogan told him Wilson was supposed to have money on him and he wanted to “hit a lick,” Rochelle understood that Hogan was “fixing to go pick up some money or something.”

Rochelle further testified that Defendant met up with them as they were walking to Ms. Lee’s house. Rochelle testified that Hogan pushed Defendant into Ms. Lee’s yard and onto the porch and made him kick in the door. Thereafter, Hogan went into the house and demanded money from Wilson and it appeared that Hogan was “drawing down on some dude.” Rochelle claimed that, when shots were fired, he ran away. He stated he heard approximately four or five more gunshots and that he ran to a friend’s house. He did not know if Hogan got any money, and he did not tell anyone about what had happened.

Defendant testified in his own behalf, claiming that he was at the party earlier in the day and that Hogan told him to go get a gun from Hogan’s grandmother’s house. Defendant testified that, because he was afraid of Hogan, he walked down the block to the relative’s house, got a gun and gave it to Hogan. Defendant stated that he then went home.

| (¡According to Defendant’s testimony, he left his home about 6:00 p.m. and was walking down the street when he met up with Rochelle and Hogan on their way to Ms. Lee’s house. Hogan asked him to come along with them. Defendant testified that he was not aware they were going to Ms. Lee’s house or that they were waiting for someone to come out of the house.

Defendant testified that, when they arrived at Ms. Lee’s house, Hogan pushed him onto the porch and forced him to kick in the door. Defendant stated that, after Hogan asked Wilson for money twice, Hogan shot Wilson in the foot. Defendant further stated that, when the first shot was fired, he was going to run, but Hogan grabbed him by the arm and told him to stay. Defendant further testified that, when Wilson came out to get his wallet from the truck, he pulled out a shotgun instead and then Defendant ran away. Defendant stated that he heard a total of three shots, but only witnessed the shot fired inside the house. Defendant claimed he ran home and never saw Hogan again. He only learned that Wilson was dead when he heard others talking about the incident.

The jury found Defendant guilty as charged and he was sentenced to life in prison at hard labor, without the benefit of probation or suspension of sentence. The trial judge found Defendant may be eligible for parole, as provided in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Defendant filed a motion to reconsider sentence, claiming that the sentence was excessive and that, in light of Miller, he should have been sentenced to a term less than life with the possibility of probation and |7suspension of sentence. The motion to reconsider sentence was denied.

Defendant now appeals.

DISCUSSION

Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to support the verdict and that the state failed to present proof that he had a gun, shot a gun or participated in the shooting of Wilson. Defendant claims there was no proof that he knew of an armed robbery, participated in an attempted armed robbery or aided, abetted, counseled or procured Hogan and/or Rochelle to commit a robbery. Defendant claims only those persons who knowingly participate in planning or executing a crime are principals to that crime. Further, Defendant claims the testimony implicating him was inconsistent and incredible so that the essential elements of the crime were not proven beyond a reasonable doubt.

The state argues that the evidence is clearly sufficient to support the jury’s conclusion that Defendant, together with Hogan and Rochelle, went to Ms. Lee’s home with the intent to commit a robbery, which resulted in Wilson’s death. Defendant admitted he retrieved the murder weapon from Hogan’s grandmother’s residence and, on cross-examination, admitted they all three planned the robbery as a group. The state claims the evidence showed beyond a reasonable doubt that Defendant was a participant, had knowledge of the planning and was present during the botched robbery which resulted in Wilson’s death.

La. R.S. 14:24 defines principals to crimes as follows:

LAll 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 in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

La. R.S. 14:30.1 defines the crime of second degree murder and states in pertinent part as follows:

A. Second degree murder is the killing of a human being:
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery ... even though he has no intent to kill or to inflict great bodily harm.
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:64(A) provides in pertinent part:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

The state is not required to show that the defendant’s conduct was the sole proximate cause of the victim’s death in order to satisfy the causation element of this offense. Sufficient proof is presented where it is shown that the defendant’s actions were a “contributing cause” or a “substantial factor” in the resulting death of the victim. State v. Stone, 33,383 (La.App.2d Cir.5/15/00), 758 So.2d 997, writ denied, 00-2145 (La.6/1/01), 793 So.2d 181. Under La. R.S. 14:30.1(A)(2), no intent to harm or kill is necessary to be a principal to second degree murder occurring during the course of a Rrobbery. State v. Grant, 623 So.2d 204 (La.App. 2d Cir.1993), writ denied, 629 So.2d 400 (La.1993); State v. Brown, 43,775 (La.App.2d Cir.12/3/08), 999 So.2d 179, writ denied, 09-0047 (La.9/25/09), 18 So.3d 81.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Dorsey, 10-0216 (La.9/07/11), 74 So.3d 603, cert. denied, - U.S. -, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). 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, 05-0477 (La.2/22/06), 922 So.2d 517. 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. 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). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

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. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09),in 23 So.3d 913.

The Jackson 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 a defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/06/09), 21 So.3d 299.

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. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

The evidence in this matter is more than sufficient to find Defendant guilty of being a principal to second degree murder. Hogan testified that Defendant helped plan the robbery while at the party earlier in the day. InRochelle testified that Defendant met them on the street and that Hogan forced Defendant into Ms. Lee’s yard and onto her porch and then to kick in her door. Defendant himself testified that he left the party to obtain a weapon for Hogan from Hogan’s relative and that he was present with Hogan at Ms. Lee’s house when the armed robbery and shooting took place after he kicked in the house door.

From these facts presented, any rational trier of fact could have found the essential elements of the crime of principal of second degree murder proven beyond a reasonable doubt. One of the individuals of the group was armed with a dangerous weapon and attempted to take Wilson’s wallet, a thing of value, from his immediate control. The elements of armed robbery, as defined in La. R.S. 14:64(A), the underlying enumerated offense for the conviction of second degree murder, were met. Second degree murder does not require an intent to kill or inflict great bodily harm, but only requires the perpetration or attempted perpetration of an enumerated offense. La. R.S.14:30.1. Since the victim died as a result of a gunshot wound received during the commission of the armed robbery and Defendant’s participation in the actions were well documented, all of the essential elements of the crime have been proven beyond a reasonable doubt.

For the foregoing reasons, this assignment of error is without merit.

We note that the trial judge sentenced Defendant, who was 16 years old at the time of the commission of the offense, to life in prison without the possibility of probation or suspension of sentence, but with the possibility of parole. La. R.S. 15:574.4(D), as amended, provides that any person | ^serving a sentence of life imprisonment who was under the age of 18 years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder or second degree murder, shall be eligible for parole consideration. Since this Defendant is serving a sentence for conviction of second degree murder, the sentence of life in prison without the benefit of parole is still mandatory. The Louisiana Legislature has not yet amended La. R.S. 15:574.4(D) to incorporate the ruling of Miller v. Alabama, supra.

Article 1, Sec. 20, of the Louisiana Constitution states in pertinent part: “No law shall subject any person ... to cruel, excessive or unusual punishment.” In State v. Dorthey, 623 So.2d 1276 (La.1993), the supreme court recognized that, in certain circumstances, a minimum mandated sentence could be constitutionally excessive. In this case, the trial court reviewed the sentence for constitutional excessiveness and imposed this sentence with the possibility of parole in accordance with Miller v. Alabama, supra. See State v. Williams, 12-1766 (La.3/8/13), 108 So.3d 1169.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Paris J. Smith, are affirmed.

AFFIRMED.

      . Although the codefendants were tried together in the lower court, the appeals have not been consolidated in this court.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Russel J. BENTLEY.
    No. 2012-KA-1106.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2013.

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

| Russel Bentley appeals his conviction for second degree murder arguing that the trial court erred in not granting his motion to suppress the evidence. For the following reasons, we affirm.

STATEMENT OF CASE:

Defendant, Russel Bentley (“Bentley”), and a co-defendant, Norman Newman (“Newman”), were charged by grand jury indictment with one count of first degree murder, in violation of La. R.S. 14:30. The bill of indictment provided that Bentley and Newman committed first degree murder of Clifton Barnes on July 19, 2006, while perpetrating or attempting to perpetrate an armed robbery.

Bentley and Newman filed motions to suppress the evidence and identification. The trial court denied the motions to suppress the evidence, specifically regarding the seizure of the gun. The defendants sought review in this court, which was denied.

Thereafter, the State amended the bill of indictment to charge both Bentley and Newman with second degree murder. Newman pled guilty to a charge of manslaughter, in violation of La. R.S. 14:31, and received a forty year sentence. | ¡The State also offered Bentley a plea bargain of twenty years in exchange for a guilty plea, which he refused.

Bentley was found guilty by a jury of the amended charge of second degree murder. He subsequently filed a motion for new trial which was denied. The same day, the trial court sentenced Bentley to life in prison without benefit of probation, parole, or suspension of sentence.

FACTUAL BACKGROUND:

In July of 2006, the victim, Clifton Barnes (“Clifton”), and his wife, Tyra Barnes (“Tyra”), were living in a FEMA trailer near Clifton’s barbershop with their two young children in the 3600 block of St. Claude Avenue.

Tyra testified that on July 16, 2006, two men came to the trailer asking for her husband, who was in Texas with their son. The two men returned the following two days. After the third visit, Tyra observed the two men sitting in a red Camaro with a black hood, watching the residence. She stated that she became concerned, but did not notify authorities.

On July 19, 2006, Clifton returned from Texas. Tyra told him about the two men, but Clifton said he did not know who they were. Later that afternoon, the Barnes’s went to the bank and withdrew about $9,000.00 to purchase building materials to rebuild their flooded home. They returned home with about $3,500.00.

That evening, the same two men, who had previously visited, knocked on their door and asked Clifton for a haircut. Clifton told them that he was closed for the night, but to return the next morning. The two men then backed Clifton into the trailer at gun point. Tyra testified that one man, later identified as Newman, had the gun and demanded money. The other man, later identified as Bentley, |sstood at the door of the trailer. When Clifton asked the men what they were doing, Newman again demanded money and shot Clifton. The men allowed Tyra to go into the bedroom with the children. Newman again demanded, “where’s your money?” Clifton again stated that he did not have any money, and Newman shot Clifton again. Tyra heard Newman again demand money. Clifton stated that he did not have any. She then heard Bentley say “hit him in the head” and Clifton plead “don’t do this; I have a family.” Newman shot Clifton two more times, once in the head, killing him. Tyra testified that she did not see her husband give the men money but that after they had left, her husband’s pants were down around his knees and the money was gone. The police were called, and Tyra gave the description of the two men and the events that unfolded. Several days later, she identified Newman and Bentley out of two separate photographic line ups as the men who killed her husband.

Sergeant Ronald Ruiz (“Sgt. Ruiz”) of the NOPD testified that he responded to the scene on St. Claude Avenue. He stated at the motion to suppress hearing that he developed Newman as a suspect from a “crimestoppers” tip. During the investigation, Sgt. Ruiz determined that Newman was residing in an apartment on Parc Brittany Boulevard. As a result, Sgt. Ruiz conducted a surveillance of the apartment complex and observed a red Camaro that matched Tyra’s description. After determining that the Camaro was registered to Newman, Sgt. Ruiz compiled the photographic line-up from which Tyra identified Newman as the gunman.

Thereafter, Sgt. Ruiz spoke with the apartment manager at Parc Brittany to determine in which apartment Newman was living. Sgt. Ruiz subsequently obtained an arrest warrant for Newman and a search warrant for his apartment. A SWAT team executed the warrants, while Sgt. Ruiz and other members of the 14homicide team waited in the parking lot. The SWAT team found Newman, his wife Conchetta Jackson (“Conchetta”), their two children, and Bentley inside the apartment. Bentley was found in the children’s bedroom where he had been sleeping.

Ruiz testified that when he entered the apartment, Conchetta and Bentley were handcuffed sitting at the dining room table, and the children were sitting on the sofa. Newman was injured during the SWAT team entry and immediately taken to the hospital. After interviewing Con-chetta, Sgt. Ruiz and other members of the homicide team searched the apartment.

During the search, the police confiscated two photographs of Newman in the red Camaro as well as a Glock pistol. The handgun was found inside a duffel bag between the children’s beds, next to where Bentley was sleeping. Ruiz identified the duffel bag and handgun found in the children’s room from a photograph at trial. He also identified the Glock .40 caliber handgun, magazine, and eight live .40 caliber rounds, as the items he discovered in Bentley’s duffle bag. Sgt. Ruiz testified that Bentley was developed as an additional suspect because he was inside Newman’s residence and because he matched Tyra’s general physical description of the second man who had entered her trailer. Tyra subsequently identified Bentley’s photograph in a line-up.

As noted by the State, due to a hearsay objection, Sgt. Ruiz could not testify at trial as to Bentley’s location during the SWAT tekm’s entrance. However, Sgt. Ruiz’s testimony from the motion to suppress hearing provides that the SWAT team informed him that Bentley was sleeping in one of the children’s beds, next to the duffle bag containing the handgun.

^Conchetta, who divorced Newman pri- or to trial, testified that Bentley was residing at the Parc Brittany apartment with them for approximately two weeks before the search. He slept in her children’s’ bedroom and had a duffle bag with clothes. Conchetta testified that when the police entered their apartment, she asked Bentley if he had anything in their home, and he nodded his head towards the children’s room. Conchetta testified that on the night of the incident, when the police officers showed her the handgun found in the duffle bag, she stated, “that’s not his [Newman]; he doesn’t have anything to do with guns.” Meredith Acosta, a firearms examiner for the Jefferson Parish Sheriffs Officer, testified that the bullet casings found at the trailer on St. Claude matched the .40 caliber pistol found at the Parc Brittany apartment.

DISCUSSION:

As his sole assignment of error, Bentley contends that the trial court erred in denying his motion to suppress the evidence and abused its discretion in allowing the State to introduce the gun seized in the home of Newman as being in the possession of Bentley.

The trial court is vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Bridges, 11-1666, p. 4 (La.App. 4 Cir. 11/28/12), 104 So.3d 657, 660. The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 20-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218; U.S. v. Seals, 987 F.2d 1102, 1106 (5 Cir.1993).

Bentley argues that the trial court committed error in admitting the gun into evidence because Sgt. Ruiz provided inconsistent testimony as to the search and subsequent seizure of the gun, and because the search of Bentley’s duffle bag was outside the scope of the search warrant.

Testimony of Sgt. Ruiz:

Bentley argues that the only evidence supporting that the gun was within Bentley’s possession was the “duplicitous” and inconsistent testimony of Sgt. Ruiz. Bentley claims Sgt. Ruiz is unreliable because he was “convicted in federal court for lying to an FBI agent in the attempt to cover-up the murder of Henry Glover.”

In support of this argument, Bentley cites an article from the Times Picayune website allegedly reporting Sgt. Ruiz’s conviction. The article provides that Sgt. Ruiz was investigated by the NOPD and reassigned to desk duty following the verdict in the Glover case in December of 2010. He was not convicted.

The State argues this Court cannot consider the investigation of Sgt. Ruiz in evaluating Bentley’s assignment of error as it is outside the record for appeal and because any pending investigation, without a conviction, could not be used for impeachment purposes. The State’s argument has merit.

It is well established that an appellate court may not consider evidence which is outside the record. State v. Johnson, 09-0259, p. 10 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, 212; State v. Sylvester, 10-1021, p. 7 (La.App. 4 Cir. 3/30/11), 63 So.3d 288, 293. Moreover, an appellate court will only review issues that were submitted to the trial court. La. Uniform Rules— Courts of Appeal 1-3; see also, La.Code Crim. Proc. art. 841 (a new basis for an objection cannot be raised for the first time on appeal).

Generally in a criminal case, “only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, indictment or a prosecution.” La.Code Evid. art. 609.1(B). Moreover, as noted by the State, this Court, in State v. Howard, 00-2700, p. 20 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, 1260-1261, found that evidence that a police officer was under criminal investigation was not admissible to attack his credibility because “even if the State knew of the pending investigation, such information was not Brady information to which the defendant was entitled.”

Bentley also claims that Sgt. Ruiz is unreliable because he provided inconsistent testimony concerning the execution of the search warrant. However, our review of the record reveals that Sgt. Ruiz provided similar testimony at both the hearing and the trial.

Sgt. Ruiz testified at the suppression hearing that Bentley was in the same room as where the firearm was located, but admitted that he and the homicide team were in the parking lot of the apartment complex while the SWAT team made entry. He stated after the SWAT team secured the residence for officer safety, he entered the premises and was informed by the SWAT team supervisor that Bentley was sleeping in the children’s room on the first bed closest the door. Sgt. Ruiz testified that he subsequently observed the duffle bag between the two children’s beds and upon searching the bag, discovered the handgun.

|RAt trial, Sgt. Ruiz also testified that he was not present for the SWAT team’s initial entry into the apartment, but was downstairs. He testified that he located the duffle bag containing the handgun between the two beds. However, after a hearsay objection by the defense, Sgt. Ruiz was prohibited from testifying that the SWAT team had informed him that they discovered Bentley asleep in the children’s bedroom.

Bentley attempts to argue that Sgt. Ruiz admitted at trial that he had nothing to do with the discovery of the duffle bag and that it was the SWAT team, and not Sgt. Ruiz, who discovered the handgun. However, a reading of the transcript demonstrates that Sgt. Ruiz was explaining for the benefit of the jury how the police and the SWAT team generally execute a search warrant pursuant to the defense attorney’s instruction. Sgt. Ruiz did not testify that he did not find the handgun at issue, nor did he testify, as Bentley suggests, that another officer of the SWAT team found the handgun.

The only real “inconsistency” that exists between the hearing and trial transcript is that Sgt. Bentley was able to testify at the suppression hearing that Bentley was in close proximity to the duf-fle bag containing the firearm when the SWAT team gained entry, while at trial Sgt. Ruiz was precluded from testifying as to Bentley’s location due to a hearsay objection by the defense. However, because hearsay testimony is admissible in a suppression hearing, the trial court was entitled to rely on Sgt. Ruiz’s representations in denying the motion to suppress. See, State v. Shirley, 08-2106, pp. 5-7 (La.5/5/09), 10 So.3d 224, 228-229 (hearsay rules do not apply in hearings on motions to suppress evidence); State v. Lee, 11-0398, p. 6 (La.App. 4 Cir. 1/30/12), 83 So.3d 1191, 1196 (“there is a relaxation in ^suppression hearings of the evidentiary rules which ordinarily govern the conduct of a trial”). As such, Bentley’s arguments in this regard have no merit.

Search Warrant:

Bentley also argues that the trial court erred in refusing to suppress the gun because the police officers had no authority to search Bentley’s bag under the search warrant.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. 1, § 5; State v. Francis, 10-1149, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 writ denied, 11-0571 (La.10/7/11), 71 So.3d 311. In addition to conferring similar protections to the Fourth Amendment, Article 1, § 5 of the Louisiana Constitution expands the scope of protection, affording Louisiana citizens standing to contest the illegality of a search or seizure to “any person adversely affected.” La. Const. Art. 1, § 5; State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396, 397; State v. Lewis, 08-0172, p. 3 (La.App. 4 Cir. 6/25/08), 988 So.2d 789, 790-791.

However, a judge may issue a warrant authorizing the search for and seizure of anything within the territorial jurisdiction of the court which “[m]ay constitute evidence tending to prove the commission of an offense.” La.Code Crim. Proc. art. 161(A)(3). A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts that establish the cause for the issuance of the warrant. La.Code Crim. Proc. art. 162 A. The search warrant shall particularly describe the person or place to be searched, the person or things to be seized, and the lawful purpose or reason for the search. U.S. Const. Amend. IV; La. Const. Art. I, § 5; La.Code Crim. Proc. art. |in162(C). While in the course of executing a search warrant, a peace officer may make photographs, lift fingerprints, seize things whether or not described in the warrant that may constitute evidence tending to prove the commission of any offense, and perform all other acts pursuant to his duties. La.Code Crim. Proc. art. 165. The defendant bears the burden of proof to show that evidence seized pursuant to a search warrant should be suppressed. State v. Fournette, 08-0254, p. 26 (La.App. 4 Cir. 7/2/08), 989 So.2d 199, 215; La.Code Crim. Proc. art. 703(D).

The warrant in the instant case authorized the officers to search for “[a]ny and all firearms, instrumentalities associated with it[s] use (I.E. ammunition, cleaning kits, registration papers), blood stained clothing” within the Parc Brittany apartment.

Nevertheless, Bentley asserts because he was not named in the search warrant and was a “mere guest within the Newman household,” the search of his duffle bag was outside the scope of the search warrant.

The State disagrees citing State v. Evans, 98-0992 (La.App. 4 Cir. 6/24/98), 715 So.2d 695 to support its position. In Ey- ans, after receiving complaints of gunfire and finding spent casings, the police obtained a warrant to search the residence of the defendant for “[a]ll firearms, more specifically a .45 caliber weapon and a .223 caliber weapon” in order to compare the casings. Id., 715 So.2d at 697. When the officers arrived to execute the search warrant, the In defendant was asleep in bed with a woman. In searching the residence, an officer found marijuana in the pocket of a coat in the defendant’s bedroom. When both occupants were advised they would be charged with drug violations, the defendant stated that the marijuana belonged to him and was arrested for possession of marijuana. The defendant filed a motion to suppress claiming the search exceed the scope of the search warrant because there was no detectable bulge or indication that the pocket held a weapon. The State argued a .45 was small enough to fit into a pocket; thus, the officers had a legal right to confiscate the controlled dangerous substance found while searching for the gun. The trial court suppressed the evidence, but this Court granted writs and reversed holding that the officers did not exceed the scope of the search warrant. The Evans Court reasoned:

... Given that a warrant authorized a search of the residence and the coat was located in the residence, it does not appear the officers exceeded the scope of the warrant when they searched the pocket of the coat found in the residence.
The issue of whether the officer observed a bulge in the pocket appears to be irrelevant as this was not a pat down search for weapons under the detention statute. Depending upon the size of the coat pocket, a small weapon may very well have been concealed in the coat pocket. Sufficient probable cause to believe a weapon was being kept somewhere in the residence already existed. Absent some testimony clearly establishing or suggesting that a weapon could not possibly have been concealed in the coat pocket, the scope of the arrest warrant was not exceeded.

Id. at pp. 3-4, 715 So.2d at 697-698 (citations omitted).

The State’s argument is persuasive as the search warrant in the instant case authorized a search of the apartment for any firearms or instrumentalities associated with its use, and the police officers could reasonably assume, like the |12officers in Evans, that a firearm or any related items would be concealed in a duf-fle bag.

The duffle bag was a container that could hold items identified in the warrant. Therefore, the search of the bag was within the scope of the warrant, and Bentley’s constitutional rights were not violated by the search.

Further, Conchetta testified that Bentley had been living with her family for approximately two weeks prior to the execution of the search warrant. She further stated that Bentley had been staying in her children’s room and that he had a duffle bag “with his clothes in it” in the room. Sgt. Ruiz testified that Bentley was sleeping in the children’s room when the SWAT team entered the residence, which indicates that Bentley’s connection to the apartment was more than a mere visitor or passerby.

Bentley claims, however, that the testimony of Sgt. Ruiz’s and Conchetta is insufficient to establish a relationship to the residence because Sgt. Ruiz did not actually observe Bentley asleep in the apartment and because Conchetta’s credibility, as Newman’s ex-wife, is questionable. Bentley claims Conchetta is unreliable because it was her husband who used the gun to kill Clifton and unbelievable because she stated that she was unaware that Newman had pled guilty to killing Clifton.

However, as explained above, hearsay is admissible at hearings on motions to suppress the evidence, and this Court may review the entire record to determine the correctness of a trial court’s pretrial ruling. Bentley’s argument in this regard lacks merit.

| ^Bentley’s argument concerning Con-chetta’s credibility likewise lacks merit as credibility determination is a question fact within the sound discretion of the trial court and may not be overturned unless clearly contrary to the evidence. See, State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751. Here, Conchetta indicated on redirect that the reason she did not know of Newman’s plea was because she was no longer involved with him and not following the case. Moreover, Sgt. Ruiz was instructed by the SWAT team that Bentley was sleeping in the children’s room at the time of their entry. As such, there is evidence supporting the trial court’s ruling on the motion to suppress.

It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Robinson, 10-0885, p. 7 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208, 1213. As noted earlier, credibility determinations are within the sound discretion of the trial court, are entitled to great weight, and cannot be disturbed unless clearly contrary the evidence. State v. Brown, 09-657, p. 5 (La.App. 4 Cir. 10/14/09), 23 So.3d 989, 992. Considering that the warrant was issued for the purpose of seizing any firearms contained in the residence; that the duffle bag was located in the residence; that Bentley was not just a transient visitor; and that the bag was not in his physical possession at the time it was searched, it was not unreasonable for the police officer to assume a firearm or any instrumentalities associated with its use could be concealed in the duffle bag or that the bag was covered by the search warrant. The record therefore supports the trial court’s denial of the motion to suppress.

1,4Accordingly, for the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . A review of the record for errors patent reveals none.

      . The Glover case involved the death of a citizen in the aftermath of Hurricane Katrina. Several NOPD officers were implicated in the incident.

      . Bentley fails to cite any authority to support his "mere guest” argument. However, Bentley does cite Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) as well as a few other cases. Those cases are distinguishable because they involved a search of a visitor’s person, not of a visitor’s bag. See, Ybarra, 444 U.S. at 92, 100 S.Ct. at 342 (holding that the issuance of a search warrant for a bar and the bartender working there did not extend to the search/pat-down of a patron of the bar in the absence of any indication that the bar was frequented by drug users or that patrons were seen using drugs in the bar, or reasonable belief that the patron was involved in criminal activity or armed and dangerous).

      . See, State v. Martin, 595 So.2d 592, 596 (La. 1992) (in reviewing a trial court's ruling on a motion to suppress, appellate court may consider the entire record).