author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Tori L. JONES.
    No. 13-KA-99.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser— Appellate Counsel, Walter G. Amstutz, Joseph E. Roberts, Assistant District Attorneys, Gretna, Louisiana, for Appellee, the State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Appellant, Tori L. Jones.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges the trial court’s denial of his motion to withdraw his guilty plea to distribution of cocaine, a violation of La. R.S. 40:967(A). For the following reasons, we affirm.

Procedural history

On March 2, 1999, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tori L. Jones, with distribution of cocaine on March 17, 1998, in violation of La. R.S. 40:967(A). Defendant was arraigned and pled not guilty on March 10, 1999. Defendant filed various pre-trial motions, including a motion to suppress identification. On July 21, 1999, the trial court heard and denied defendant’s motion to suppress identification.

On August 16, 1999, defendant withdrew his not guilty plea and tendered a plea of guilty to distribution of cocaine. Pursuant to the plea agreement, on August 17, 1999, the State filed a multiple offender bill of information, alleging defendant was a second felony offender, having previously been convicted of possession with intent to distribute marijuana on April 8,1997.

IsOn October 6, 1999, defendant filed a pro se Motion to Withdraw Guilty Plea, which was heard and denied by the trial court on October 19, 1999. Immediately thereafter, the trial court sentenced defendant to 15 years imprisonment at hard labor to run concurrent with the parole revocation defendant was serving, and concurrent to the sentence imposed in case number 98-6561. On October 26, 1999, defendant filed a Motion for Appeal. After substantial delays, defendant’s appeal was granted on November 26, 2012.

Facts

Defendant’s conviction resulted from a guilty plea so the circumstances surrounding the charged offense were gleaned from the record, including testimony presented at defendant’s suppression hearing. Here, the bill of information alleges that on March 17, 1998, defendant violated La. R.S. 40:967(A) in that he did knowingly or intentionally distribute a controlled dangerous substance, to wit: cocaine. Further, at the suppression hearing, the State introduced testimony from Jefferson Parish Sheriffs officers that defendant sold four rocks of crack cocaine to an undercover officer on March 17,1998.

¡¿aw and argument

On appeal, defendant raises two assignments of error: first, defendant argues that the trial judge erred in denying his motion to withdraw his guilty pleas; and, second, Mr. Jones was denied the effective assistance of counsel.

In his first assignment of error, defendant argues that the record as a whole fails to show that he made a knowing and intelligent waiver of his constitutional rights when he entered his guilty plea. Specifically, defendant contends that prior to the acceptance of his guilty plea, the trial court failed to advise him of his constitutional right to remain silent.

The State responds that, while the guilty plea colloquy does not address defendant’s privilege against self-incrimination, the waiver of rights form contains a waiver of that privilege, which was signed by defendant, his attorney, and the trial judge. Thus, the State maintains that there is a sufficient affirmative showing in the record that defendant was advised of his privilege against self-incrimination, and knowingly, intelligently, and voluntarily waived that right.

A guilty plea will not be considered valid unless the plea was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454 So.2d 93 (La.1984). Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. The waiver of those rights must be on the record, unequivocal, express and knowing, and free and voluntary. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State v. Nuccio, supra.

While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688, 690 (La.1981). In State v. Strain, 585 So.2d 540, 543 (La.1991), the Louisiana Supreme Court emphasized that the determination of a valid waiver of counsel during a guilty plea depends on the entire record and not just on certain “magic” words used by the trial judge.

In State v. Hinson, 01-1548 (La.9/14/01), 797 So.2d 32, 32-33 (per curiam), the Louisiana Supreme Court found that the defendant knowingly and intelligently waived his right to counsel before pleading guilty based on the totality of the circumstances. The court, citing Strain, supra, reiterated that whether a plea is knowing and voluntary is determined by the entire record and not just by certain magic words used by the trial judge. See also, State v. Vicknair, 09-612 (La.App. 5 Cir. 1/26/10), 32 So.3d 238, 243.

Further, a written form containing a waiver of rights is a part of the record, and can be examined to determine the free and knowing nature of the plea. State v. Dunn, 390 So.2d 525 (La.1980). In Dunn, the Louisiana Supreme Court noted that, during the guilty plea colloquy, the trial judge failed to specifically refer to the defendant’s privilege against self-incrimination. The supreme court opined that, although a “direct, three-right colloquy between the trial judge and defendant is preferable and ... encouraged,” a written waiver-of-rights form may be considered in determining whether the defendant was adequately “informed” of his rights. Dunn, 390 So.2d at 527. Finally, the Dunn court considered the waiver-of-rights form that was initialed and signed by the defendant a “sufficient affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self-incrimination.” Dunn, 390 So.2d at 527. This Court held similarly in State v. Hebert, 02-884 (La.App. 5 Cir. 12/30/02), 838 So.2d 30, 31-34 (transcript of the plea colloquy and the well-executed waiver-of-rights form constituted | (¡sufficient affirmative showing on the record that the defendant knowingly waived his privilege against self-incrimination without specific advisal of right against self-incrimination from trial judge) and State v. Cole, 04-615 (La.App. 5 Cir. 3/1/05), 900 So.2d 15, 23-24 (explanation by defense counsel and a well-executed waiver-of-rights form were sufficient to support a knowing and voluntary guilty plea even without specific advisal of the right against self-incrimination from trial judge).

In the instant case, on August 16, 1999, defendant withdrew his plea of not guilty and entered a plea of guilty to distribution of cocaine. During the Boykin colloquy, defendant informed the trial judge that he was 22 years old and had attended two years of college. The trial judge explained that defendant was being charged with distribution of cocaine, and that the maximum sentence defendant could receive would be 30 years at hard labor.

During the colloquy, the trial judge told defendant that no one could force him to plead guilty and confirmed that no one had used any force, intimidation, coercion, or promises of rewards to induce him to plead guilty. The trial judge further advised defendant that he had the right to hire an attorney of his choice, or, if he could not afford an attorney, to have an attorney appointed at no cost to him. The trial judge informed defendant that he had a right to trial by jury or, if he chose, by a judge; the right to confront his accusers; and the right to compel testimony from his witnesses.

Next, the trial judge told defendant that, if the court accepted his plea, defendant could not assert any allegation or defects such as an illegal arrest, an illegal search and seizure, an illegal confession, or an illegal line-up. Defendant |Talso indicated that he understood that, by pleading guilty, he was admitting that he did, in fact, commit the charged offense.

The trial judge asked defendant whether his attorney had advised him that, if his plea was accepted, his sentence would be 15 years at hard labor. Defendant indicated that he understood the offered agreement. The trial judge also informed defendant that this conviction could be used to enhance a sentence in the event of a subsequent conviction. Defendant indicated that he understood these rights and the fact that he was giving up these rights if he plead guilty. Following the colloquy, the trial judge accepted defendant’s plea, finding that defendant had made a knowing, intelligent waiver of his rights, and that his guilty plea was knowing, intelligent, free and voluntary.

Further, the transcript of the guilty plea proceedings reflects that, prior to the colloquy, defendant’s attorney advised the trial judge that he had completed the appropriate waiver-of-rights, or Boykin, form with defendant. The first paragraph of that Boykin form, which was introduced into the record, reads:

Your attorney has indicated to me that he/she advised you of your rights (1) to a trial by jury or by the Court alone, (2) to confront your accusers, and (3) of your right against self-incrimination, and that by entering a plea of guilty you are waiving or giving up these rights. He/she has also indicated to me that you have advised him/her that you understand these things. Is that correct?

Although defendant did not initial that introductory paragraph, he did initial the remaining questions on the form. Furthermore, defendant struck through language in the paragraph immediately above his signature to specify that he was not waiving the statutory delay between his guilty plea and sentencing as noted:

|SI, as the defendant in this case, acknowledge that the foregoing has been read to me, that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty, all of my rights to me, and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all of the consequences regarding my plea of guilty. I am completely satisfied with the explanations of my attorney and the judge.
I, further acknowledge that my act of pleading guilty is a knowing, intelligent, free and voluntary act on my part. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing remains except for the judge to give judgment and give me my punishment. I waive all delays for sentencing and acknowledge I ana-ready for sen-tencingv (Emphasis in original).

The waiver of constitutional rights form was signed by defendant and his attorney, then signed and dated by the trial judge.

Upon review, we find that, although the trial judge did not specifically advise defendant of his right against self-incrimination, defendant’s plea colloquy along with the well-executed waiver-of-rights form constitutes a sufficient affirmative showing on the record that defendant knowingly waived his privilege against self-incrimination. Dunn, supra. Based on the foregoing, we find no error in the trial judge’s denial of defendant’s motion to withdraw his guilty plea. This assignment lacks merit.

In his second assignment of error, defendant argues that he was denied effective assistance of counsel. Specifically, he contends that he was confused about whether his guilty plea included a stipulation to the multiple offender bill as a second felony offender, and that his attorney and the district attorney misled and/or pressured him into pleading guilty by conveying to him that if he did not plead guilty, the State would seek a life sentence by proving that defendant was a third felony offender. He further contends that the State indicated that one of the jcjOffenses that would be used to enhance his penalty was his juvenile adjudication for armed robbery from 1991, which he later learned could not be used to enhance his sentence. Thus, defendant maintains that his attorney should have advised him that the State’s threats of a life sentence were unfounded as they were not permissible under the law. Finally, defendant asserts that his counsel was ineffective for failing to file a timely motion for appeal on his behalf.

In response, the State argues that despite defendant’s contention that he pled guilty because he believed he faced a possible life sentence, nothing in the record supports defendant’s assertion that his counsel misled him as to the status of the law. The State asserts that defendant entered into a favorable plea agreement and has failed to show that his counsel’s performance was deficient or that he was prejudiced. The State maintains that at the close of the sentencing proceeding, defense counsel ensured that defendant understood the appeal and post-conviction prescriptive period and that his trial attorney, Indigent Defender Board (I.D.B.), would not handle his appeal. Finally, the State submits that the record demonstrates that defense counsel vigorously represented defendant throughout the proceedings and that defendant received a favorable plea agreement as a result. Accordingly, the State notes that defendant’s ineffective assistance of counsel claims do not meet either the first or second prongs of the Strickland test.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63.

ImUnder the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 05-53, 908 So.2d at 63 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). This requires showing that counsel’s errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must take into consideration the counsel’s perspective at the time. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078-79, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. Id.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed |uin the interest of judicial economy. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

In this case, the record contains sufficient evidence to rule on the merits of defendant’s ineffective assistance of counsel claims. The record does not support defendant’s assertion that he was misled and/or pressured into pleading guilty in order to avoid a life sentence. Specifically, at the hearing on his motion to withdraw guilty plea, defendant argued that he pled guilty because he was told that he would face a possible life sentence if he did not.

Defendant testified that he later learned that his four prior convictions for armed robbery entered on October 2, 1991 could not be used as predicate convictions because they were juvenile adjudications. Defendant stated that his attorney and the district attorney had misled him regarding the possibility of being adjudicated a third felony offender and sentenced to life imprisonment.

In response to defendant’s allegations, the prosecutor replied:

The defendant has accused all of us of threatening him with life imprisonment. I am not cavalier when I say this, but it was not a threat, it was a promise. I do not think I communicated that directly with Mr. Jones. It is not my usual practice. I never talk to defendants. I probably told that to Mr. Fleming—
—and the basis of it was that [defendant’s] rap sheet shows that on October 2nd, 1991, defendant was convicted of four counts of armed robbery. Those counts along with the distribution of marijuana which the multiple bill is based on and a conviction of this offense would allow the State to multiple bill him as a three time offender; three strikes and you’re out life sentence. Again, it was not a threat. It was an acknowledgement to defense counsel if he did not plea, that’s what the State intended to do.

Defense counsel further responded regarding his advisal with respect to this issue:

|12I did not indicate to Mr. Jones that he would receive life. I had indicated that the prosecutor would try to give him a life sentence. I told Mr. Jones that the first conviction, the armed robberies — well, actually it’s a juvenile adjudication which occurred prior to the change in the multiple offender law which now allows you to use some certain juvenile adjudications — I had had indicated to him it was my belief that they could not do that, that the court was inclined, however, to agree with the district attorney, and he might have a hard time on appeal with that issue. That it could — if the prosecutor’s position is right, he would face a mandatory life sentence.
I further communicated to Mr. Jones that even if we are right and he would still in fact be a second multiple offender, fifteen years would be the minimum sentence on that case, and he could certainly receive up to at least sixty years on the distribution and I guess twenty years on the carnal knowledge as a second offender, and it was certainly in his best interest.

Thus, the record in this case indicates that neither the prosecutor nor defense counsel misled the defendant as to the status of the law in effect at the time.

As to this issue, defendant has failed to show that his counsel’s performance was deficient, and that he was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Dabney, 05-53, 908 So.2d at 63. Accordingly, defendant has failed to establish the first criteria to prove ineffective assistance under Strickland.

Moreover, despite defendant’s contention that his attorney was inadequately representing him, the record reflects otherwise. Defense counsel advised the trial court that he hired a private investigator to work with him and thoroughly investigated this matter. Defense counsel filed various omnibus pre-trial motions including a Motion for a Preliminary Examination, Motion to Suppress the Evidence, Confession, Statement, and/or Identification, Motion for Pre-Trial Disclosure of Evidence of Independent and Separate Offense, Wrongs, or Acts, Motion for Criminal Records and Pending Charges of all State Witnesses, and a | ^Motion for Reduction of Bond. Further, at the hearing on defendant’s Motion to Suppress Statement, defense counsel questioned various witnesses, reviewed all information given to him by defendant, and presented arguments in support of the motion.

Moreover, defendant received the benefit of a favorable plea agreement. At the time of the offense, the sentencing exposure for the instant distribution of cocaine offense was a minimum of five years without benefit of parole, probation, or suspension of sentence and a maximum of thirty years at hard labor, and a possible $50,000.00 fine. See, La. R.S. 40:967. Further, as part of the same plea bargain, defendant tendered a plea to carnal knowledge of a juvenile, which exposed defendant to a maximum of ten years at hard labor. See, La. R.S. 14:80. Thus, defendant faced a possible maximum term of imprisonment of 40 years, if the sentences were imposed consecutively.

Instead, pursuant to defendant’s plea agreement, he was sentenced to 15 years for the distribution of cocaine offense and four years for the carnal knowledge of a juvenile offense, to be served concurrently. The State also dismissed a pending charge for distribution of a controlled dangerous substance within one thousand feet of a school. Further, the State filed a habitual offender bill alleging that defendant was a second felony offender, which carried potential enhancement of his penalty for distribution of cocaine to up to 60 years imprisonment at hard labor. The record does not reflect that the State pursued proving defendant’s multiple offender status or sentencing enhancement. In sum, defendant received a very favorable result from his negotiated plea agreement.

Upon review, we find that defendant has failed to show that his counsel’s performance was deficient, and that he was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Dabney, 05-58, 908 So.2d at 68. Accordingly, defendant has failed to establish the first criteria to prove ineffective assistance under Strickland.

Lastly, defendant argues that he was denied effective assistance of counsel when his attorney failed to file a timely motion for appeal on his behalf. He argues that he was prejudiced by his counsel’s omission because the trial court originally dismissed his pro se motion for appeal as untimely, which took twelve years to rectify.

Although, it is true that the trial court incorrectly denied defendant’s pro se motion for appeal as untimely, that ruling is not attributable to defense counsel. Moreover, any error in this regard was corrected by defendant when he filed a timely pro se motion for appeal and by the trial court when it granted defendant’s out-of-time appeal. See, State v. Wood, 34,819 (La.App. 2 Cir. 8/22/01), 793 So.2d 441, 452 (citing State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461). Finally, the claim is rendered moot because the defendant is now before the court on appeal. Id.

In light of the foregoing, we find that defendant has failed to establish deficiency or prejudice as required under Strickland. This assignment of error lacks merit.

11SErrors patent

As is our routine practice, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920. Our review reveals that defendant was not given a complete advisal regarding the time period for seeking post-conviction relief provided in La. C.Cr.P. art. 930.8. Specifically, the transcript indicates that the trial judge advised the defendant that he has “two years from today’s date to seek post-conviction relief.” By this opinion, this Court can correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief. Accordingly, defendant is notified that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 or 922. In all other aspects, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . On October 19, 1999, defendant also pled guilty to carnal knowledge of a juvenile, in violation of La. R.S. 14:80, in case number 98-6561. In that case, the trial judge, in accord with the plea agreement sentenced defendant to four years at hard labor to run concurrent to the sentence in the instant case, and a parole revocation defendant was serving. Further, defendant has also appealed his conviction, in case number 98-6561, which is currently before this Court in docket number 13-KA-98.

      . On October 26, 1999, defendant filed a motion for appeal. On or about July 25, 2000, relator sought mandamus relief requesting that this Court order the trial judge to rule on defendant’s pro se motion for appeal. On August 11, 2000, this Court ordered the trial judge to rule on defendant's motion. State ex rel. Jones v. Green, 00-1343 (La.App. 5 Cir. 8/11/00) (unpublished writ disposition). On August 29, 2000, the trial judge denied defendant’s motion for appeal as untimely. After 12 years, defendant again sought relief with this Court, which instructed the trial court to reconsider defendant’s motion for appeal. Jones v. State, 12-379 (La.App. 5 Cir. 6/1/12) (unpublished writ disposition). On November 26, 2012, the trial court granted defendant’s Motion for Appeal.

      .On the date of the offense, La. R.S. 40:967(A) read: "Except as authorized by this Part 1 or by Part VII-B of Chapter 5 of Title 402 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:(l) To ... distribute, or ... possess with intent to ... distribute ..., a controlled dangerous substance or controlled substance analogue classified in Schedule II...."

      . 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . "There has never been a requirement that a defendant initial each line in a plea form.” State v. Woods, 09-399 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 405, writ denied, 10-0784 (La.10/29/10), 48 So.3d 1096. See also, State v. Nelson, 10-760 (La.App. 5 Cir. 3/29/11), 63 So.3d 280, 283-284 (even though the well-executed waiver of constitutional rights form did not contain the defendant’s initials, the plea colloquy and waiver form constituted a sufficient affirmative showing on the record that the defendant was advised of her rights, that she understood them, and that she made a knowing and intelligent waiver of them).

        . At the hearing on defendant's motion to withdraw his guilty plea, the State asserted that defendant's rap sheet showed that defendant was convicted of four counts of armed robbery on October 2, 1991. Defendant, who was born on December 28, 1976, was fourteen years old on the date of those convictions.

      . Although the Louisiana Supreme Court in State v. Brown, 03-2788 (La.7/06/04), 879 So.2d 1276, writ denied, 543 U.S. 826, 125 S.Ct. 158, 160 L.Ed.2d 40 (2004), later struck down the provision in the Habitual Offender law that allowed prior juvenile adjudications rendered without the right to a jury trial to be used as predicate offenses, the provision was in effect at the time of defendant’s guilty plea in 1999 and, thus, advice that the adjudications could be used as predicates was not misleading. See also, State v. Lemon, 05-567 (La.App. 5 Cir. 2/14/06), 923 So.2d 794.

      . At the time of the instant offense, La. R.S. 15:529.1 provided, in pertinent part:
      A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children's Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;

      . Defendant committed the instant offense on September 15, 1998. He was sentenced on October 19, 1999. La.C.Cr.P. art. 930.8 was amended to shorten the prescriptive period from three years to two years, effective August 15, 1999. This amendment has been held to be retroactive. State v. Boles, 99-662 (La.App. 5 Cir. 11/10/99), 750 So.2d 1059, 1062.

      . See, State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753, (La.2/10/12), 80 So.3d 468; State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 688, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89 and 10-2752 (La.5/20/11), 6 So.3d 974; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473; State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Troy GREENUP.
    No. 12-KA-881.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/App ellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant, Troy Greenup, appeals his conviction for aggravated rape upon a victim under the age of thirteen in violation of La. R.S. 14:42. Defendant argues the trial court erred in admitting evidence of a prior sexual battery of another boy, claiming that evidence was overwhelmingly prejudicial. Defendant also argues the trial court erred in denying defendant’s motion for new trial, asserting that the state’s improper rebuttal argument prejudiced the jury and affected the verdict. For the following reasons, we find these assignments of error to be without merit and affirm defendant’s conviction. However, we remand this matter to the trial court for notification to the defendant of his sex offender registration requirements pursuant to La. R.S. 15:540 et seq.

STATEMENT OF THE CASE

On June 9, 2011, a Jefferson Parish Grand Jury returned an indictment charging defendant with aggravated rape upon a victim under the age of thirteen in violation of La. R.S. 14:42.1. On June 10, 2011, defendant was arraigned and ^entered a plea of not guilty to the charge. The matter proceeded to trial by jury, where on June 14, 2012, a 12-person jury returned a verdict of guilty as charged.

Defendant filed motions for post-verdict judgment of acquittal and new trial, which the trial court denied on July 20, 2012. That day, after defendant waived sentencing delays, the trial court sentenced defendant to mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal follows.

FACTS

The case arises out of D.B.’s allegations against his father, the defendant in this matter. D.B. alleges that when he was between the ages of three and five years old, on multiple occasions, defendant used his penis to penetrate D.B.’s mouth and “butt.” D.B. alleges these acts started when he was living with his parents in Westwego in an apartment on Tanglewood Street and continued after they moved to a residence on Avenue D. D.B. was born in 1997 and later testimony by D.B.’s mother corroborated the fact that they all lived together from May 2000 until sometime in 2003 or 2004, when D.B.’s mother and D.B. moved in with D.B.’s maternal grandparents. D.B. alleges his father ceased these acts when he and his mother moved out. D.B. did not report these acts at the time they occurred.

Several years later, in mid-2010, D.B.’s mother received a phone call from a person asking her to testify for defendant in an unrelated matter. D.B.’s mother did not immediately agree; she testified that she prayed on the matter and after a Rcouple of months, in September 2010, asked her son whether his father had ever hurt him:

I just asked him. I just told him he wasn’t in trouble, and I needed to know — needed him to be honest and let me know if his daddy’s ever touched him wrong.... He said “Yes.”

D.B.’s mother continued to ask him questions about what specific acts his father committed. D.B.’s mother testified that D.B. told her that these acts occurred when she went to work.

D.B.’s mother did not call the police, rather, she sought counseling for D.B. from a clinic in Marrero. That clinic then reported D.B.’s allegations to the Office of Community Services (“OCS”). In response, OCS (now the Department of Children and Family Services) investigated the matter.

Ms. Kay Evans, an OCS investigator, interviewed D.B., his mother, and his father. Ms. Evans testified that D.B.’s allegations were consistent and that she recommended that D.B. stay with his mother because D.B.’s father no longer had access to him. Ms. Evans also interviewed each of D.B.’s siblings, who all denied having been abused by the defendant. Ms. Evans also testified that she prepared a report indicating that D.B.’s father denied the allegations of abuse and further denied ever living with D.B. during the relevant time period.

After its investigation, OCS notified the police and D.B. was brought to the Audrey Hepburn Care Center and the Children’s Advocacy Center (“CAC”) for further investigation.

On October 16, 2010, at the Audrey Hepburn Care Center, Anne Troy, a forensic nurse practitioner, interviewed and examined D.B. D.B. told Ms. Troy that while his mother was away at work, defendant forced him to put his mouth on defendant’s penis and defendant inserted his penis into D.B.’s anus. Ms. Troy then physically examined D.B. Although that examination revealed no physical 1 r,evidence of sexual abuse, Ms. Troy testified that such findings are not unusual because the alleged abuse had occurred many years prior.

On January 18, 2011, Staci Lanza of the CAC interviewed D.B. In that interview, D.B. alleged that when he was three or four years old, on multiple occasions, defendant removed D.B.’s clothes and inserted his penis into D.B.’s mouth and “butt.” In that recorded interview, D.B. stated that, during the first instance of abuse, his father had laid behind him on a bed in the living room, with both of them naked, and inserted his penis into D.B.’s “butt.” D.B. also alleged that on a different occasion, defendant forced D.B. to put his mouth on defendant’s penis. D.B. alleged that this type of abuse also happened after he moved to a new residence with his mother and father. D.B. alleged that in his new residence, his father penetrated him orally and anally with his penis.

On November 14, 2011, the state filed a “Notice of Intent to Use Evidence of Other Crimes.” The state sought to introduce evidence of defendant’s past sexual battery of another boy, L.T., under La. C.E. 404(B) to prove opportunity, intent, and modus operandi, and under La. C.E. 412.2 to prove a lustful disposition toward children. After a hearing on the matter, the trial court ruled that the state would be permitted to introduce such evidence at trial. Defendant’s counsel objected to this ruling.

The matter proceeded to trial. At trial, the state introduced evidence of defendant’s past sexual battery of another young boy, L.T. The state called L.T.’s mother, and then L.T. Before either testified however, the trial judge read a limiting instruction to the jury, informing the jury that they could only consider such testimony for the purposes of finding defendant had “a system, intent, and/or lustful disposition towards children.” Once on the stand, L.T.’s mother testified that she was introduced to defendant through her boyfriend’s cousin and for about 16a year in 2009 or 2010 defendant came to her house “nearly every day” in the afternoon. She testified that, during that time, L.T. was five years old. L.T.’s mother testified that L.T. and defendant were alone only when she and the other adults were outside smoking cigarettes, a time period typically of five to ten minutes. L.T. then took the stand and testified that defendant touched his “private area,” what L.T. identified as his “pee-pee,” while both he and defendant were clothed. L.T. also testified that he touched the defendant’s “private area.” He testified that this occurred at his house when he and defendant were alone while the others were outside. L.T. testified this happened one night while he was watching a movie and that he thereafter told his mother about the occurrence. L.T.’s recorded interview from the CAC was published to the jury.

The defense called only one witness, Bonnie Henderson. Ms. Henderson testified that defendant had never lived with D.B. and his mother. She testified that from 2000 until 2005, defendant resided with Ms. Henderson’s sick mother and acted as her full-time caregiver.

At the conclusion of trial, the jury returned a verdict finding defendant guilty as charged of aggravated rape.

DISCUSSION

On appeal, defendant argues the trial court erred both in admitting the evidence relating to defendant’s past sexual battery of L.T. and in failing to grant his motion for new trial based on the state’s prejudicial rebuttal argument to the jury. We address each assignment in turn.

First Assignment

Defendant argues the trial court erred in permitting the state to introduce evidence relating to defendant’s alleged sexual battery of L.T. under La. C.E. |7404(B) in order to prove opportunity, intent, and modus operandi, and under La. C.E. 412.2 to prove defendant had a lustful disposition toward children.

In its pre-trial “Notice of Intent to Use Evidence of Other Crimes,” the state sought to introduce evidence of defendant’s prior arrest for the sexual battery of L.T., asserting that the evidence was admissible to prove modus operandi, opportunity, and intent pursuant to La. C.E. art. 404(B), as well as defendant’s lustful disposition toward children pursuant to La. C.E. art. 412.2. After a hearing, the trial court ruled the evidence admissible pursuant to La. C.E. arts. 404(B) and 412.2. The defense objected to the court’s ruling.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. State v. Williams, 09-48, p. 9 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 363, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860 (citation omitted). However, such evidence may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule when it tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character. State v. Dauzart, 02-1187, p. 8 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165.

For instance, the Louisiana Supreme Court first recognized a “lustful disposition” exception in State v. Cupit, 189 La. 509, 179 So. 837 (1938). In Cupit, the defendant was charged with assault with intent to commit rape of his niece. The state presented evidence that the defendant had raped another niece and that the defendant had been charged with the rape of a third niece. The Supreme Court held the evidence was admissible because the “prior offenses ... clearly tended to show the lustful disposition the defendant bore towards his nieces, and his | sunnatural desire to have sexual intercourse with them; all of his nieces being children of tender age.” Cupit, 179 So. at 839.

In 2001, the Louisiana legislature codified this lustful disposition exception in La. C.E. art. 412.2 which governs the admission of evidence of similar crimes, wrongs, or acts in sex offense cases and, in pertinent part, provides:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Accordingly, pursuant to La. C.E. art. 412.2, evidence of a prior sexual offense is admissible to show a defendant’s lustful disposition towards children if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. State v. Olivieri, 03-563, p. 19 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 218; See also La. C.E. art. 403. In conducting the balancing test under La. C.E. art. 403, the trial court should consider whether the probative evidence of prior acts will serve to “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

For instance, in Olivieri, supra, this Court held that evidence of the defendant’s prior conviction for forcible rape was admissible under La. C.E. art. 412.2 in the defendant’s aggravated rape prosecution. There, the defendant forced the victim, an adult woman, into her car, drove her to a remote location, and raped her in the backseat of her car. Id. at 209-10. The victim of the prior offense, who was also an adult woman, testified that the defendant forced her into her car and leaped her in the backseat. Id. at 215-16. The Olivieri court concluded that the prior conviction was relevant to show the defendant’s propensity to sexually assault women who tended to matters near their vehicles and to show the defendant’s attempt to kidnap women and drive off in their vehicles. Id. at 218-19.

Although the Olivieri court observed that the evidence was prejudicial for the same reason that it was probative, the court concluded that it was not so prejudicial as to warrant its exclusion, pointing out that the evidence was presented in an orderly manner and there was no indication the other crimes evidence misled or confused the jury. Olivieri, 03-563, 860 So.2d at 219.

In State v. Williams, 11-876, pp. 8-9 (La.App. 5 Cir. 3/27/12), 91 So.3d 437, 441, writ denied, 12-1013 (La.9/21/12), 98 So.3d 334, this Court found the defendant’s prior conviction of carnal knowledge of a 13-year-old girl to be highly relevant to his charged offense of molestation of a 9-year-old girl. This Court found the evidence admissible under 412.2 to show the defendant’s lustful disposition towards young children. Although the charged offense in Williams involved touching and the prior conviction involved intercourse, this Court found that there is no requirement that the prior act be identical in nature to the charged offense. Id. In reaching its conclusion, this Court reasoned:

There was no indication that the other crimes evidence confused or misled the jury. The evidence was presented in an orderly manner, and the trial judge gave a limiting instruction regarding the prior conviction when the State presented the certified copy of defendant’s prior conviction and prior to jury deliberations. The trial court also clearly instructed the jurors that they were not to find guilt in this case based on the other sexual offense.

Id.

The admissibility of other crimes or bad acts under La. C.E. art. 412.2 however is not unlimited. In State v. Parker, 42,311, pp. 14-15 (La.App. 2 Cir. 8/15/07), 963 So.2d 497, 505-507, the Second Circuit held that in a defendant’s prosecution for indecent behavior with three juvenile females, the trial court abused its discretion in admitting evidence of prior uncharged misconduct with three adult women.

In this case, we find that defendant’s alleged sexual abuse of L.T. was highly relevant to show that he had a lustful disposition toward young boys with whom he had regular contact. The record reflects that both L.T. and D.B. were boys at or around the age of 5 years when their abuse occurred. The evidence further shows that defendant lived with D.B. and that he came to L.T.’s residence almost every afternoon. Although the charged offense involved anal and oral sexual intercourse with D.B. and the prior act involved the mutual touching of genitals, there is no requirement that the prior act be identical in nature to the charged offense. Williams, supra. Although the evidence of defendant’s prior sexual abuse of L.T. is inherently prejudicial, we find its probative value to show defendant’s lustful disposition toward children substantially outweighed its prejudicial nature. See Olivieri, supra. Further, we find that any prejudice created by the evidence was minimized by the trial court’s instruction to the jury and by the orderly nature of the presentation of the evidence relating to D.B. and L.T. Immediately prior to the testimony of L.T. and his mother, the court instructed the jury as follows regarding evidence of other crimes:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show intent, system, and/or to show a lustful disposition towards children. Remember. The accused is on trial only for the offense charged.

InThe evidence at trial was presented in an orderly and clear manner: the state presented the testimony regarding defendant’s abuse of D.B. before the evidence regarding L.T.’s abuse. Additionally, the jury was not likely to be confused between the two different crimes as both L.T. and D.B. testified. At the time of their trial testimony, L.T. was eight years old and D.B. was fourteen years old. Furthermore, the record reflects that the testimony presented regarding L.T.’s abuse did not overwhelm or detract from the evidence presented for the charged offense. See State v. Hernandez, 11-712, pp. 24-27 (La.App. 5 Cir. 4/10/12), 93 So.3d 615, 629-630 (Wicker, J., Concurring), writ denied, 12-1142 (La.9/28/12), 98 So.3d 834.

For these reasons, we find the trial court did not abuse its discretion in admitting this evidence under La. C.E. art. 412.2. Because we find that the evidence relating to L.T. was admissible to prove defendant’s lustful disposition toward children under La. C.E. art. 412.2, we need not address defendant’s other arguments that this evidence was also improperly admitted under La. C.E. 404(B) to prove intent or system. Therefore, defendant’s first assignment of error is without merit. Second Assignment

In his second assignment of error, defendant argues that the trial court erred in denying his motion for new trial on the grounds that his counsel’s objection to the state’s use of prejudicial and inflammatory language during its rebuttal argument should have been sustained. The state responds that its rebuttal argument was simply an inarticulate response to the defense’s argument that defendant had a | ^motive to fabricate his allegations against defendant to extricate himself from the problems he faced in school at that time.

Here, during the state’s rebuttal argument, the prosecutor argued:

How do you think it’s going to be at [school] next year when the boys learn, and they will learn, that [D.B.] was anally penetrated by his father and made to suck his penis? Do you think that the boys will just say “That’s okay. We still love you. Try out for the football team next week.” Or will it be more along the lines of “There goes that faggot, [D.B.].”

In addressing this assignment, we recognize that a prosecutor has considerable latitude in making closing arguments. State v. Pierce, 11-320, p. 15 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1277. However, this latitude is not without limits. Id., 11-320 at 16, 80 So.3d at 1277. La.C.Cr.P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.

A prosecutor should refrain from argument that tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict. State v. Messer, 408 So.2d 1354, 1356 (La.1982). The trial judge has broad discretion in controlling the scope of closing arguments. State v. Robertson, 08-297, p. 13 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 660, writ denied, 08-2962 (La.10/9/09), 18 So.3d 1279. A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Pierce, 11-320 at 16, 80 So.3d at 1277.

Here, defense counsel objected to the state’s rebuttal argument on the grounds that the state had exceeded the scope of its rebuttal. The state responds, | ^however, that the rebuttal argument, although inarticulate, addressed the defense counsel’s argument that D.B. had fabricated the allegations against defendant. In his closing, defense counsel argued:

Not until [D.B.] reaches his adolescence in the 7th [grade] and he’s having trouble in school and he’s in danger of failing and he’s got anger issues. He’s threatening to kill a teacher, and he’s being suspended, and he’s fighting with his brothers and sisters at home. That’s when the allegations of abuse started. That’s when they start. You can draw your own conclusions from that, but I think it’s pretty clear.
Can you convict a man and send him to prison for the rest of his life when you have unsubstantiated allegations, the facts of which transform and change across time and depending on the situation, details are different, where a young man who’s in a very difficult point in his life, who’s full of anger, is disappointed, he had difficulties — you can’t send someone to prison for the rest of their life just on allegations alone. And that’s all we’ve got in this case.

We find that defense counsel’s closing statement did call into question whether D.B. fabricated his allegations in response to problems he faced in school at the time he made the allegations. In consideration of this, we find that the state was permitted to respond to the defense’s fabrication theory. Here, the prosecution’s hypothetical described what possible future situation D.B. would have to consider had he fabricated his allegations and this was properly within the scope of rebuttal.

While we find that the state’s use of this hypothetical, and the derogatory use of the word “faggot” distasteful, we find the state did not intend to appeal to a juror’s potential prejudice against homosexuals. Therefore, we find that the trial judge properly overruled defense counsel’s objection and did not err in denying defendant’s motion for new trial on that basis. Therefore, defendant’s second assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). On review, we find one patent error requiring this case be remanded to the trial court.

The record does not reflect that defendant was notified of Louisiana’s sex offender registration requirements in accordance with La. R.S. 15:540, et seq. At the time of the offense, defendant’s conviction was defined as a “sex offense.” See La. R.S. 15:542(E)(2001); La. R.S. 15:541(14.1) (2002-2004). La. R.S. 15:540, et seq., mandates registration and notification of sex offenders and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration and notification requirements. This Court has found that the failure to provide this notification, even where a life sentence has been imposed, is a patent error warranting remand for written notification. See State v. Williams, 09-48, pp. 18-19, 28 So.3d at 368-69. Therefore, we remand this matter to the trial court for compliance with La. R.S. 15:540, et seq.

CONCLUSION

For the forgoing reasons, defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court with instructions. The court is to inform defendant with appropriate written notice of his sex offender notification and registration requirements, by using the form contained in La. R.S. 15:543.1, within 10 days of this opinion, and to file written proof in the record that defendant received such notice. State v. Starr, 08-341 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 460-461, writ denied, 08-2991(La.9/18/09), 17 So.3d 384.

AFFIRMED AND REMANDED.

      . To protect the privacy of the victim, we use initials to identify the victim, the child witnesses, and the victim's family members, pursuant to La. R.S. 46: 1844(W)(3). State v. Greene, 06-667, p. 3 (La.App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229, writ denied, 07-0546 (La.10/26/07), 966 So.2d 571.

      . B.H., a defense witness, disputed the allegation that defendant lived with D.B. and his mother in the early 2000s. B.H. testified that defendant lived with her sick mother from 2000 to 2005 when her mother died. B.H. testified that defendant never lived with D.B. or his mother.

      . The Second Circuit in Parker held however that this error was harmless and did not warrant the reversal of the defendant’s conviction. Parker, supra at 14-14, 507.

      . Although the trial court had ruled that the evidence relating to L.T. would be admissible to prove "opportunity” at the end of its pretrial Prieivr hearing, in its instruction to the jury, the trial court only allowed the jury to consider this evidence for intent, system or lustful disposition.

      . It is well-settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520. La. R.S. 15:541(24)(a) is the current designation of the provision that defines "sex offense” for purposes of sex offender registration.


author: ROBERT A. CHAISSON, Judge.

text:
    ZEN-NOH GRAIN CORPORATION v. Justin THOMPSON.
    No. 13-CA-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.
    Paul N. Vance, Laurent J. Demostheni-dy, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    B. Gene Taylor III, Bradley L. Drell, Attorneys at Law, Alexandria, Louisiana, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2In this lawsuit involving a dispute over contracts for the purchase of scrap corn products, Zen-Noh Grain Corporation appeals from a judgment sustaining an exception of Us pendens. For the following reasons, we vacate the judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 21, 2011, Justin Thompson entered into a written contract with Zen-Noh for the purchase of a quantity of scrap grain which was stored in grain bins in Port Allen, Louisiana. That contract provided that the scrap grain would be dry and that Mr. Thompson would have a minimum of two trailers available to haul the grain during the “shipment period” of November 1 to November 30, 2011. The clean-out of the grain bins was not completed by November 30, but Mr. Thompson continued to accept grain and haul it to his property in Rapides Parish. At some point during the clean-out process, the remaining grain was so impacted that pressurized water was used to break apart the grain so that it could be removed from the bins. At that time, Zen-Noh contracted with a third-party that had trailers Iscapable of transporting wet grain to deliver the grain to Mr. Thompson’s property. Zen-Noh maintains that this procedure was used by agreement of Mr. Thompson and that he accepted 1,056.41 tons of hydro-blasted grain between February 6, 2012, and March 15, 2012, on which date he refused to accept the last shipment of grain. On March 22, 2012, Mr. Thompson filed suit in Rapides Parish alleging that the grain had been delivered late and that some of it had been wetted down. In that suit he seeks damages of $164,000 for his lost profits and additional damages of $130,000 for the estimated cost of removing the wetted and decayed grain from his property.

During December of 2011, while the above events were transpiring, Mr. Thompson and Zen-Noh entered into four separate verbal contracts for the purchase of scrap corn product which was stored at Zen-Noh’s grain bins in St. James Parish. Zen-Noh maintains that Mr. Thompson picked up all of the scrap corn product specified in these contracts, but failed to pay for all of it. On July 9, 2012, Zen-Noh filed the present suit in St. James Parish to collect approximately $163,000 which it claims is owed on the sale of the scrap corn product under these contracts.

In response to this suit, Mr. Thompson urged an exception of lis pendens pursuant to La. C.C.P. art. 531. He argues that the disputes in both suits arise out of the same “transaction or occurrence.” The trial judge sustained the exception and dismissed the St. James case. This appeal followed.

LAW AND ANALYSIS

La. C.C.P. art. 531 provides, in pertinent part, that “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, |4between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.” The issue here is whether the dealings between the parties which underlie the Rapides Parish and St. James Parish suits constitute the same “transaction or occurrence” for purposes of the lis pendens exception. The meaning of the phrase “transaction or occurrence” was extensively addressed in Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, as follows:

The term “transaction or occurrence” is used in seven articles of the Code of Civil Procedure. In addition to its use in Article 1061, it is found in Article 425, which deals with preclusion by judgment; it is used in Articles 531 and 532, both dealing with lis pendens; in Article 891, the term enumerates one of the required formalities of a petition; in Article 1071 it defines the parameters of a cross-claim; and in Article 4845, the term helps define the jurisdictional limits of city and parish courts. Another provision, Article 1153, uses the slightly different expression “conduct, transaction, or occurrence” as part of the formula for when an amendment to a pleading relates back for prescription purposes.
Although none of these articles specifically define the expression “transaction or occurrence,” they variously equate the term with “the subject matter of the litigation” (Articles 425 & 891), “the subject matter of the principal action” or “principal demand” (Article 1061 & 4845), and “the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action” (Article 1071). What the transaction or occurrence is that is the subject matter of the litigation, or the principal demand or action, or the original action, has been determined on a case-by-case basis, according to the annotations under these articles.
Some definitions are available, however. Black’s Law Dictionary defines “transaction” as, inter alia, “a broader term than ‘contract,’ ” and “a group of facts so connected together as to be referred to by a single legal name; as a crime, a contract, a wrong.” Among the definitions of “transaction or occurrence” found in 42 Words and Phrases, Supp. p. 201 (1997), is “whether pertinent facts of different claims are so logically related that issues of judicial economy and fairness mandate that all issues be tried in one suit.” The federal courts have given the words “transaction or occurrence” a broad and liberal interpretation in order to avoid a multiplicity of suits. All logically related events entitling a person to institute legal action against another generally are regarded as comprising a “transaction or occurrence.” Lasa Per L’Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (6th Cir.1969).

In the context of a res judicata exception, this Court has followed the federal analysis of a “transaction or occurrence” in the compulsory counterclaim context. See Durkin v. Quest, Inc., 98-939 (La.App. 5 Cir. 12/29/98), 724 So.2d 868, citing Park Club, Inc. v. Resolution Trust Corp., 967 F.2d 1053 (5th Cir.1992). That analysis involves a four part inquiry as to:

(l)Whether the issues of fact and law raised by the claim and counterclaim largely are the same; (2) whether res judicata would bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule; (3) whether substantially the same evidence will support or refute plaintiffs claim as well as defendant’s counterclaim; and (4) whether there is any logical relationship between the claim and the counterclaim. An affirmative answer to any of the four questions indicates the counterclaim is compulsory. This standard is taken from Fed.R.Civ.P. 13(a), which provides that a counterclaim is compulsory if it “arises out of the transaction or occurrence which is the subject matter of the opposing party’s claim.” (Citations omitted). Durkin, at 870-71.

In the present case, none of the four questions can be answered in the affirmative. Zen-Noh correctly points out that the issues to be resolved in the Rapides Parish litigation are whether it breached the contract in failing to timely deliver the scrap grain and in delivering wet grain, and if so, the amount of damages suffered by Mr. Thompson. The issue in the St. James litigation is whether Mr. Thompson paid in full for the scrap corn product he received under the four contracts. The facts of the two suits are thus distinct, a judgment in either suit would not constitute res judicata in the other, entirely different evidence will support or refute the claims in the two suits, and there is no logical relationship between the two actions. While it can be argued that both parties are in the grain business, had an ongoing business relationship, and are now involved in disputes over grain contracts, those facts alone are insufficient to meet the “arising out of the same transaction or occurrence” requirement of La. C.C.P. art. 531.

IfiWe also note that Mr. Thompson argues in brief that the logical relationship between the two actions arises because “without ZGC’s breach of contract # S91099 [the Rapides Parish suit] Thompson would not have withheld payment on the four December contracts [the St. James Parish suit], and there would be no dispute.” Zen-Noh correctly points out, however, that this argument is based on the concept of compensation as set forth in La. C.C. art. 1893. That article provides that compensation can only take place when the sums in question are liquidated and presently due. Here, the monies claimed by the two parties have not yet been liquidated, nor are they presently due. See National Glass & Glazing, Inc. v. Grimaldi Construction, Inc. 96-121 (La.App. 5 Cir. 7/30/96), 680 So.2d 56. The assertion by Mr. Thompson is simply in anticipation that resolution of the two suits will result in a situation where some set-off may become available once both suits are finally adjudicated. Such a supposition does not in any way establish that the two suits are now to be considered as arising out of the same “transaction or occurrence.”

The standard of review in the lis pen-dens context is whether the trial court abused its sound discretion. See Rivers v. Bo Ezernack Hauling Contractor, LLC, 09-1495 (La.App. 3 Cir. 5/5/10), 37 So.3d 1088. In the present matter, we find such an abuse. As shown above, the two actions at issue clearly do not arise out of the same transaction or occurrence, and it was thus error to sustain the exception of lis pendens and dismiss the St. James Parish suit.

CONCLUSION

For the foregoing reasons, the judgment sustaining the exception of lis pendens and dismissing the suit filed by Zen-Noh against Justin Thompson in |7St. James Parish is hereby vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED


text:
    QUALITY PAINT HARDWARE AND MARINE SUPPLY INC. v. CRESCENT COATING AND SERVICES, INC. and Billy Ray Orgeron, Max Welders, LLC and Max Welders Holding Company, LLC.
    No. 13-CA-129.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.

      Daniel A. Ranson, Attorney at Law, Gretna, Louisiana, for Appellant, Quality Paint, Hardware & Marine Supply, Inc.
    Kyle Schonekas, Patrick S. McGoey, Andrea V. Timpa, Elisa C. Mills, Ian L. Atkinson, Attorneys at Law, New Orleans, Louisiana, for Appellee, Crescent Coatings & Services, Inc. and Billy Ray Orgeron.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a suit on an open account, in which a paint supplier sued a paint buyer and its purported agent for the balance owed on its account. After a bench trial, the trial judge found in favor of the paint buyer and dismissed the paint supplier’s action. For the following reasons, the trial court’s judgment is affirmed.

Facts and Procedural History

Crescent Coatings & Services (hereinafter “Crescent Coatings”) is hired by oilfield companies to apply special paints and coatings to specific pieces of machinery. If required under the contract, Crescent Coatings supplies the paint/coating for the job. To facilitate its purchase of large quantities of paint, Crescent Coating’s accountant, Billy Ray Orgeron, applied for a line of credit with a local paint supplier, Quality Paint, Hardware, & Marine Supply, Inc. (hereinafter “Quality Paint”) on December 21, 2007.

In 2010, Crescent Coatings ordered paint from Quality Paint on February 18; March 1; March 4; and March 16, 2010. The parties agree that Quality Paint delivered thru its agent, Saia Trucking, and Crescent Coatings received and paid |sfor each of those orders, except the order placed March 16, 2010. Thus, only one order is at issue.

On July 14, 2011, Quality Paint sued Crescent Coatings; Billy Ray Orgeron; Max Welders, L.L.C.; and Max Welders Holding Company, L.L.C. (hereinafter collectively “Max Welders”) for the balance of $11,365.40 for marine paint ordered on March 16, 2010. Crescent Coatings and its employee, Billy Ray Orgeron, answered the petition, denied responsibility for payment on the basis that Crescent Coatings did not receive, and Quality Paint failed to deliver, the paint in question.

A bench trial commenced on October 8, 2012. At trial, A1 Hebert, Crescent Coatings’ Vice President of Operations, testified that he was informed, on March 17, 2010, by the paint manufacturer that Crescent Coatings’ March 16, 2010 order from Quality Paint had been cancelled by the manufacturer. The parties presented evidence that Crescent Coatings placed an order for a larger quantity of the same paint directly with the paint manufacturer on March 22, 2010, which was successfully delivered to Crescent Coatings on March 23, 2010.

The trial testimony further revealed that Quality Paint shipped the product from the paint manufacturer directly to Crescent Coatings’ paint shed on Blackwater Court in Gibson, Louisiana. Quality Paint, as part of the delivery instructions given to the shipper, identified the sign for Max Welders, another business on Blackwater Court, as a landmark to find Crescent Coatings’ location.

John Pitre, a veteran driver for Saia Trucking, testified that, in his career, he made one delivery to Blackwater Court, which was on March 17, 2010. That day, Pitre stopped at Max Welders, where Elliott Naquin signed for the order and used a forklift to unload the order from Quality Paint. Before Pitre departed, Naquin |4realized his mistake, reloaded the order onto Pitre’s truck, and directed Pitre toward Crescent Coatings’ location at 199 Blackwater Court.

Pitre testified that he drove into the “little yard” with a warehouse next door to Max Welders, waited for a man to repair a forklift, then allowed the man to unload the order. Pitre did not obtain a signature from the man that unloaded the order because his computerized order system did not allow for a second signature.

The parties introduced the delivery ticket from Saia Trucking for the March 16, 2010 order, which was signed by Elliott Naquin, an employee of Max Welders, not Crescent Coatings. At trial, Mr. Naquin agreed that the signature was his but testified that he had no memory of this delivery and that he “never unloaded any delivery for Crescent Coatings at Max Welders.” Further, it is undisputed that no employee from Crescent Coatings signed the delivery ticket for the March 16, 2010 order.

Moreover, Crescent Coatings’ payroll records for its Gibson location for March 17, 2010 were introduced, which reflected that no employees were onsite at Gibson after 7:30 a.m. Finally, evidence, including photographs and satellite images, were introduced that revealed that Crescent Coatings’ Gibson location was not a warehouse in a “little yard” next door to Max Welders, but a site that included a four-sided structure without a roof and several locked shipping containers about 1000 feet down a gravel road that was perpendicular to Blackwater Court.

At the close of Quality Paint’s case-in-chief, Max Welders moved for an involuntary dismissal, Quality Paint agreed, and the trial judge granted Max Welders’ motion. The record before this Court does not contain a 'written judgment memorializing this ruling.

|fiAt the close of trial, the trial judge took the matter under advisement. On October 15, 2012, the trial judge issued a written judgment in favor of Crescent Coatings and Billy Ray Orgeron, dismissing Quality Paint’s claims. In her Reasons for Judgment, the trial judge found credibility in Quality Paint’s testimony that the paint was ordered and the order was not cancelled. The trial judge further believed Crescent Coatings’ testimony that it did not receive the paint. The trial judge found the least credible testimony was presented by Saia’s delivery driver, John Pi-tre, who contradicted testimony from several more credible witnesses, including his statement that Crescent Coatings’ location was a warehouse in a “little yard,” next door to Max Welders. The trial judge concluded “that the paint was more likely lost or mishandled in transit than received and hidden by Crescent.” Finally, the trial court, relying on La. C.C. arts. 2482 and 2616, found that Quality Paint failed to bear the burden of proving delivery and, thus, should bear the loss in this matter. On December 3, 2012, Quality Paint devol-utively appealed the judgment rendered on October 15, 2012.

On appeal, Quality Paint argues three assignments of error: first, the trial court erred in failing to find that Max Welders was the putative agent of Crescent Coatings and delivery of the shipment of paint to Max Welders was delivery to Crescent Coatings; second, the trial court erred in failing to find that based upon equity, usage and the conduct of the parties developed in their contractual dealings that the delivery of the paint to Max Welders was delivery in accordance with the parties’ contract; and third, the factual findings and conclusions of the trial court were not reasonable and clearly wrong in concluding that the delivery driver’s testimony concerning the events that occurred when he delivered the paint was contradicted by the testimony of the employee of Max Welders, who signed the delivery receipt for the paint, resulting in manifest error.

| (Jurisdictional Matters

Before addressing the merits of Quality Paint’s appeal of issues regarding Max Welders, we must determine which issues are properly before this Court. First, the record before this Court does not contain a written judgment dismissing Max Welders. When a trial judge has failed to produce a written and signed final judgment, no appeal from that judgment may be taken. La. C.C.P. art. 1911. A minute entry and an oral judgment that has not been reduced to writing and signed by the trial judge are insufficient to divest the trial court of jurisdiction and grant jurisdiction to the appellate court. State v. Beaudoin, 06-88 (La.App. 5 Cir. 6/29/06), 939 So.2d 428 (citing La. C.C.P. art. 2088). Thus, without a written judgment signed by the trial judge, no appeal from that judgment may be taken. See: La. C.C.P. art. 1911; C.C.P. art. 1918; Lenard v. Goodwin, 554 So.2d 294 (La.App. 5th Cir.1989).

Further, under the express provisions of La. C.C.P. art. 2088, the trial court is not considered divested of jurisdiction to consider any issue that is “not reviewable under the appeal.” This language “not reviewable under the appeal” has generally been interpreted to give the trial court continuing jurisdiction over all issues that are unaffected by the appeal, even if the issue is not specifically listed in La. C.C.P. art. 2088. State Through Department of Social Services on Behalf of Harden v. Southern Baptist Hospital, 94-2228 (La.App. 4 Cir. 10/12/95), 663 So.2d 443, writ denied, 95-2751 (La.1/26/96), 666 So.2d 676. Here, the trial court retains jurisdiction over issues regarding Max Welders.

Second, even if there were a final judgment on that matter, the dismissal of Max Welders may not be appealable. La. C.C.P. art. 2085 provides, in pertinent 17part, that, “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979). Acquiescence should be decreed only when the party’s intention to acquiesce and abandon his right of appeal is clearly demonstrated by direct or circumstantial evidence that the party now appealing intended to acquiesce. Succession of Marcel, 387 So.2d 1363 (La.App. 1 Cir.1980).

Here, a review of the trial transcript reveals:

Your Honor, with respect to the motion made by Max Welding, I think the evidence is clear, as indicated, that the driver did take the paint order back and deliver it to Crescent Coating, and that ... Max Welding did not take the paint — does not have the paint, and I have no objections as in [sic] dismissal at this point.

Third, the written judgment of October 15, 2012, which is the subject of this appeal, makes no mention of Max Welders, except to identify its counsel. Thus, only issues that were raised at trial between Quality Paint and Crescent Coatings are before this court for review, which brings us to the merits of the issues raised by Quality Paint on appeal.

Law and Argument

In its first assignment of error, Quality Paint argues that the trial judge should have applied “the doctrine of apparent authority and agency by estoppel” to find that Crescent Coatings held out Max Welders was Crescent Coatings’ putative agent for receipt of goods. We have reviewed the record and find, however, that the issue of “putative mandatary” was not raised by Quality Paint in the trial court in its pleadings, in testimony, or in argument. Generally, issues not raised in the trial court will not be given consideration for the first time on appeal. See, U.R.C.A. Rule 1-3; Warner v. Alex Enterprises, Inc., 08-0929 (La.App. 4 Cir. 1/28/09), 4 So.3d 922, 925. Therefore, we will not consider this assignment of error.

Next, Quality Paint argues that the trial court erred in failing to find that, “based upon equity, usage, and the conduct of the parties ... that the delivery of the paint to Max Welders was delivery in accordance with the party’s [sic] contract.” Quality Paint argues that it designated Max Welders as the destination to deliver the paint order and the shipment was delivered to Max Welders as noted on the delivery receipt; therefore, pursuant to La. C.C. 2616, the risk of loss should have transferred to Crescent Coatings when the order was delivered as instructed.

La. C.C. art. 2616 reads, in pertinent part:

When the contract requires the seller to ship the things through a carrier, but does not require him to deliver the things at any particular destination, the risk of loss is transferred to the buyer upon delivery of the things to the carrier, regardless of the form of the bill of lading.
When the contract of sale requires the seller to deliver the things at a particular destination, the risk of loss is transferred to the buyer when the things, while in possession of the carrier, are duly tendered to the buyer at the place of destination.

Contrary to Quality Paint’s assertion, the testimony at trial reflected that Crescent Coatings required delivery of every paint order to its Gibson location at 199 Blackwater Court, not Max Welders’ location at 188 Blackwater Court. Testimony revealed that, contrary to this argument, Quality Paint’s President told the shipping company to look for Max Welders’ sign as a landmark to help direct its drivers to Crescent Coatings but did not instruct the shipper to offload the order at Max Welders. In fact, the testimony from Max Welders’ employees, Crescent Coatings’ employees, and even Quality Paint’s President was unequivocal that Crescent Coatings expected delivery of shipments to its isolated location at 199 Blackwater Court. The trial court did not err in finding that Quality Paint was required to deliver the goods to Crescent Coatings’ Gibson location and, because |sthe goods were not tendered at the place of destination, the risk of loss remained with Quality Paint. This assignment of error lacks merit.

In its final assignment of error, Quality Paint argues that “the factual findings ... of the trial court ... that the delivery driver’s testimony concerning the events that occurred when he delivered the paint was contradicted by the testimony of the employee of Max Welders, LLC[,] who signed the delivery receipt for the paint, [were not reasonable and clearly wrong,] resulting in manifest error.”

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, the Louisiana Supreme Court set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

In this case, the trial judge’s factual finding that Quality Paint failed to prove delivery of the order to Crescent Coatings was based on her credibility determinations. In Rosell, supra, the supreme court expounded on the concept of |in“clearly wrong” or “manifestly erroneous” with regard to credibility determinations:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d at 844-45 (citations omitted).

In this case, the trial judge based her finding that the delivery was not completed on inconsistencies in the delivery driver’s testimony. Upon our review of the record, and keeping in mind the correct standard of review, we find no manifest error in the trial court’s factual determination. This assignment of error lacks merit.

Conclusion

Based on the foregoing, we find no error in the trial court’s judgment in favor of Crescent Coatings and Billy Ray Orgeron in this case. For that reason, the judgment is affirmed. Costs of this appeal are assessed entirely to Quality Paint.

AFFIRMED

      . The record reflects a document entitled . "Personal Guarantee” signed by Billy Orger-on. However, the document does not reflect whose debts Mr. Orgeron guaranteed to pay.

      . Max Welders has a guard-gated entrance, which requires all drivers to stop.

      . La. C.C.P. art. 1911 reads, in pertinent part: "Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled."