author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Antonio JACKSON, Appellant.
    No. 47,856-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Jonathan M. Stewart, District Attorney, Douglas Stokes, Assistant District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

11Antonio Jackson appeals his conviction of aggravated burglary and his sentence, as a fourth felony offender, of life in prison without benefits. We affirm.

Factual Background

Early on the morning of June 7, 2009, MJ was in her apartment on Harvey Place, a housing project in Jonesboro, Louisiana. MJ was 61 years old and confined to a wheelchair, having lost one leg and suffering from diabetic neuropathy in the other. Unable to sleep, she was talking to a friend on the landline phone. She testified that around 3 a.m., she heard a knock on her front door. She asked who was there, and a voice answered, “Antwon”; she replied that she did not know anybody by that name, and rolled her wheelchair away from the door. She called 911, and a little while later police lights and a siren passed the front of her apartment, but nobody came to the door. She got back on the phone with her friend when suddenly her lights went out and phone died. She heard a “rumbling” at the back door, followed by the sound of soda cans tumbling to the floor; she knew that someone had broken in through that window and stepped on the cans stacked under it. She began screaming, but her next door neighbor was out of town so nobody heard her.

The intruder came directly to MJ, picked her up out of the wheelchair, set her on the floor and demanded money. MJ pleaded that she did not have any, as she had not yet cashed her check; however, the intruder threatened that if she did not hand over $20, he would rape her. She offered her bank card, but the intruder would not take it; panicking, she said she might have lasóme coins somewhere. He dragged her by her one leg to- the kitchen, where she began opening cabinets and pulling things out, but she could not find the coins. He then dragged her to the living room and raped her; dragged her to the bedroom and raped her; and finally dragged her to the living room and raped her again. He then went to the kitchen, where MJ heard some coins rattling in a tin can; she surmised he had found the coins she had not been able to locate earlier. The intruder then left the apartment.

MJ testified that because the lights were out she could not see the intruder well, but she could tell he was wearing a scarf around his face and rubber gloves on his hands. After he left, she crawled back to her wheelchair and went to the apartment office, where she called the police.

Police Chief G. Wesley Horton and Officer Christopher Walker testified that they responded to a 911 call, with Deputy Paul Trosclair of the Jackson Parish Sheriffs Office, at MJ’s apartment early that morning. They did not say why, but they left and went down the street to Kristen Rat-cliffs apartment in the project. Ms. Rat-cliff consented to let them come in; there, they saw Jackson standing totally nude, next to a pile of wet clothing, including a striped polo shirt. They took Jackson and Ms. Ratcliff to the JPD for questioning.

Later that day, Chief Horton returned to MJ’s apartment and tried, unsuccessfully, to lift fingerprints from the electrical box, windowsill and interior of the apartment, but he confirmed that the electrical box was open and power had been cut off. He found a shoeprint on MJ’s front door; 13 Officer Walker photographed it, and the door was removed to make an impression of the print. Walker also took several photos of the interior and exterior of the apartment.

The officers then returned to Ms. Rat-cliffs apartment; she consented to a search. Under the kitchen sink, they found several coins, some loose in a plastic bag, some in a felt bag and some in paper rolls; they seized these. They also noticed, on the floor, a pair of flip-flops with treads resembling the shoeprint on MJ’s front door; they seized the flip-flops.

Officer Walker went to the hospital and asked MJ to describe the coins; she did so “to a tee,” mostly older coins of sentimental value to her. He showed her the coins, and she confirmed they were hers. With this and other investigative information, Officer Walker swore out a warrant for Jackson’s arrest.

Procedural History and Trial Testimony

In September 2009, the Jackson Parish grand jury indicted Jackson on one count each of aggravated rape and aggravated burglary. Jackson filed motions to suppress the physical evidence seized from Ms. Ratcliffs apartment, the results of the voice lineup and certain statements made by Jackson at the correctional center. After a hearing in August 2010, the district court denied all motions to suppress, and these rulings are not 14designated as errors on appeal.

At trial in September 2011, MJ and the police officers testified as outlined above. In addition, the state called Michael Stelly, an expert in fingerprint and footprint analysis. Stelly examined the latent shoeprint found on MJ’s front door and the flip-flops seized from Ms. Ratcliffs apartment. Although he could not make an individual match, he testified that the print on the door was consistent with the tread of the right flip-flop. He also testified that the impression on the door showed a mark where the heel overhung the sole of the flip-flop. He concluded that the portion of the heel print on the door matched the exemplar of Jackson’s footprint. The state introduced photos of Jackson’s foot in the flip-flop; the heel almost completely overhangs the end of the rubber sole.

The state also called Dr. Dirk Rainwater, the emergency room doctor who examined and treated MJ on the morning of the incident. MJ told him she had been assaulted and raped; she was very upset and anxious. Dr. Rainwater found bruising on her buttocks and irritation in her genital area, which he described as “nothing inconsistent” with the history she gave.

Finally, the state called two lay witnesses. Kristen Ratcliff testified that in 2009 she was living in the project with Jackson; she identified him in open court. She admitted that she let the police search her apartment and that they found some coins which she had never seen before and did not put there. Douglas Stringfellow, who lived on Congo Street not far from IsHarvey Place, admitted that a JPD officer stopped and questioned him early on the morning of July 7, but denied that he ever tried to break into anybody’s apartment, knock on their door or steal their money.

The defense called Dr. Jessica Esparza, an expert in DNA analysis, who examined the rape kit of MJ taken at the emergency room on July 7, 2009, as well as oral swabs from MJ and Jackson. Dr. Esparza testified that MJ was positively excluded as a donor of any of the DNA found in the rape kit. In fact, she concluded, all the rape kit swabs — perineal, anal, vaginal and cervical — tested negative for male DNA.

The defense also called Officer Matthew Nash of the JPD, who established the timeline: MJ’s first 911 call was at 4:16 а.m.; an officer arrived at the scene at 4:19; the officer stopped and questioned a man named Stringfellow, but by 4:29 released him when he said he was merely walking home; and MJ’s second call, from a different phone, was at 6:04. The second call described the assailant as a heavyset black man wearing a mask and a striped shirt.

After an hour and 46 minutes’ deliberation, the jury found Jackson not guilty of aggravated rape but guilty as charged of aggravated burglary. Both verdicts were 10-2.

The state then charged Jackson as a fourth felony offender, citing his February 18, 2003, guilty plea to four counts of forgery; his November 15, 2004, guilty plea to one count of aggravated battery; and his November 15, 2004, no contest plea to five counts of simple burglary and one of simple | r,burglary of an inhabited dwelling, and guilty plea to two additional counts of simple burglary and one of simple burglary of an inhabited dwelling. After a hearing in April 2012, the district court adjudicated him an habitual offender. At sentencing in May 2012, the court cited aggravating and mitigating factors gleaned from Jackson’s PSI, and initially sentenced him to 30 years at hard labor; however, the court vacated this and imposed the mandatory life sentence at hard labor without benefits for a fourth felony offender with two prior crimes of violence.

Defense counsel filed a motion to reconsider sentence, which the district court denied. This appeal followed.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Jackson urges the evidence was insufficient to convict him of aggravated burglary. He contends that because the jury acquitted him of aggravated rape, it must have rejected MJ’s testimony, at least in part. He suggests that owing to the profusion of inconsistencies in her account, any rational finder of fact should have rejected it in its entirety. He cites: (1) her claim that she first called the police at 3:00 a.m., versus the police log showing it was over an hour later, at 4:16 a.m.; (2) her testimony that the man at the door said his name was “Antwon,” versus her report to Dr. Rainwater that it was “Anthony,” and she never used his true name, “Antonio”; (3) her report to police that she was raped vaginally, orally and anally, versus her testimony describing only vaginal rape; (4) her testimony that the rapes occurred first in the living room, then in the bedroom, then in the living room, versus her statement to Dr. Rainwater that the first was in the bedroom, and the others in the living 17room; (5) her description of the size of the stripes on Jackson’s shirt, versus the stripes on the actual shirt; (6) her testimony that the intruder tried to kick in the back door, versus the shoeprint found on the front door; and (7) her testimony that the intruder knocked over soda cans under the window versus the police photos showing the cans still neatly stacked. He also cites the absence of fingerprints or DNA from the interior or exterior of MJ’s apartment, and the absence of mud, water or debris on the floor, despite the officers’ testimony that it had been raining that night. He contends that the record shows, at most, that Jackson may have accidentally kicked on MJ’s front door, thinking it was Ms. Ratcliffs, but that he moved along, and somebody else came by and committed the crime an hour or so later. He offers as a reasonable hypothesis of innocence that Ms. Rat-cliff, or another friend of hers, stole the coins earlier and stashed them under her counter. Finally, he reiterates that MJ’s claims of multiple rape were completely refuted by Dr. Esparza’s DNA testing; this, with the raft of inconsistencies in the trial testimony, mandate a finding of insufficient evidence.

The state responds that the jury properly disregarded the portion of MJ’s testimony that was disproved by the DNA evidence, but had a rational basis to accept the portion that described the aggravated burglary. The state cites four salient points: (1) Jackson’s heel print was found on MJ’s front door; (2) the electrical box was disconnected, allowing the intruder to enter under cover of darkness; (3) MJ’s “unusual collection of coins” was found |8in Ms. Ratcliffs apartment, where Jackson was staying; and (4) medical evidence showed that MJ had indeed been dragged around her home during the burglary, as she testified. The state concludes that the evidence supports the verdict.

The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier or fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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 factfinder. State v. Pigford 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.2d 603; State v. Knight, 45,231 (La.App. 2 Cir. 5/19/10), 36 So.3d 1163, writ denied 2010-1425 (La.1/14/11), 52 So.3d 899. A reviewing court pays great deference to the jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Williams, 2007-1407 (La.10/20/09), 22 So.3d 867; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. A reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94; State v. Cunningham, 46,664 (La.App. 2 Cir. 11/2/11), 77 So.3d 477. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219; State v. Cunningham, supra.

Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence, by contrast, consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Id.; State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901. A person in unexplained possession of recently stolen property is presumed to be the thief, in the absence of other evidence creating a reasonable hypothesis of innocence. La. R.S. 15:432; State v. Muse, 363 So.2d 462 (La.1978). When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603.

As pertains to this case, aggravated burglary is defined as the unauthorized entering of any inhabited dwelling, with the intent to commit a felony or any theft therein, if the offender commits a battery upon any person while in such place. La. R.S. 14:60. Battery is defined, in pertinent part, as the intentional use of force or violence upon the person of another. La. R.S. 14:33.

[inWe acknowledge the discrepancies between MJ’s testimony and the other evidence, but find enough corroboration to support the conviction. She testified that somebody disconnected the lights and phone before breaking in, a point confirmed by Chief Horton and Officer Walker. She testified that the intruder demanded money and dragged her around the apartment by her one leg, a point confirmed by Dr. Rainwater’s finding of bruising on her buttocks. She testified that the intruder carried off her identifiable accumulation of older coins, which officers found in Ms. Ratcliffs kitchen. These facts satisfy the elements of an unauthorized entering of MJ’s apartment, with the intent to commit a theft therein, and with the offender committing a battery on MJ while inside.

Although the apartment was dark, MJ told the JPD dispatcher that the intruder was wearing a striped shirt; officers entering Ms. Ratcliffs unit found Jackson standing next to a striped shirt he had just removed and thrown to the floor. Ms. Ratcliff testified that she did not put the coins in her kitchen, leaving her boyfriend Jackson as the only person who could have done so. Officers also found Jackson’s shoeprint and partial heel print on MJ’s front door. An initial suspect, String-fellow, was released, and he testified he did not break into the apartment. These facts satisfy the element of identity, proving that Jackson committed the crime, not some other person (such as Stringfellow) who might have skillfully planted Jackson’s shoeprint and stashed the coins in such as way as to mislead officers.

The jury obviously saw that MJ was disabled, sickly, unable to sleep, and suddenly thrown into pitch darkness when her ordeal began, and that these facts might impair her ability to discern, for example, which door the h intruder was kicking which time, or whether the soda cartons actually fell to the floor or were merely jostled in place. The jury also saw the gaping discrepancy that arose when Dr. Esparza found absolutely none of Jackson’s DNA in MJ’s rape kit, but it chose to accept those parts of her testimony that found corroboration in the other evidence. We will not disturb the jury’s rational credibility call. State v. Williams, supra; State v. Hill, supra. This assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Jackson urges his life sentence is excessive. He concedes that the minimum sentences prescribed by the habitual offender statute are constitutional and when a mandatory sentence is prescribed, the trial court is not required to comply with the guidelines of La. C. Cr. P. art. 894.1. However, he urges that the appellate court should consider any mitigating factors to determine whether the defendant is entitled to a downward deviation under State v. Williams, 2007-1111 (La.12/7/07), 969 So.2d 1251. He beseeches this court to avoid the “automated verbiage or knee-jerk terminology” routinely deployed to affirm sentences within the statutory range, citing dissents in State v. Jackson, 2009-2406 (La.1/19/11), 55 So.3d 767 (Knoll, J., dissenting), and State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243 (Thibodeaux, C.J., dissenting), writ denied, 2012-1540 (La.1/18/13), 107 So.3d 626. Finally, he argues that the district court initially sentenced him to 30 years, and nothing at the habitual offender hearing changed the facts of the case; he submits that the weak evidence at trial, and the six years since the last predicate felonies, would support a downward deviation to 30 years.

112The state responds that because the instant offense and two of the prior offenses were crimes of violence, the life sentence was mandated by La. R.S. 15:529.1 A(4)(b). It urges that Jackson’s criminal history (with convictions for aggravated battery, aggravated burglary, forgery, felony theft, burglary of an inhabited dwelling and simple burglary) shows his propensity to enter other people’s homes, steal from them and wreak physical and emotional harm. It submits that nothing in this record supports a downward departure.

Ordinarily, review of sentences for excessiveness is a two-step process, the first being an examination of the district court’s compliance with the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). However, when there is a mandatory sentence, the district court is not required to justify under Art. 894.1 the sentence it is legally required to impose. State v. Thomas, 41,734 (La.App. 2 Cir. 1/24/07), 948 So.2d 1151, and citations therein; State v. Rose, 606 So.2d 845 (La.App. 2 Cir.1992). Nevertheless, the district court conducted an exhaustive analysis of the 894.1 factors, noting that Jackson did not use a dangerous weapon and did not commit a “major economic crime,” but finding that the aggravating factors predominated. We find adequate compliance with the guidelines, even if such was not required.

The second step is a review for constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is deemed grossly disproportionate if, 113when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The habitual offender law has been found constitutional in its entirety, and the minimum sentences it imposes are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Thomas, supra. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional by “clearly and convincingly” showing that he is exceptional. Id. In State v. Johnson, supra, the supreme court held that lack of violence cannot be the only reason, or even the major reason, for declaring a sentence excessive. Lack of violence obviously has no application to the instant ease.

The state correctly shows that the instant offense is a crime of violence, La. R.S. 14:2B(20), and that two of his predicate offenses, simple burglary and simple burglary of an inhabited dwelling, carry sentences of 12 years or more,' La. R.S. 14:62B, 62.2, thus invoking the mandatory life sentence of R.S. 15:529.1A(4)(b). Moreover, the record does not show, and surely not clearly and convincingly, that Jackson is exceptional. With the district court, we find the aggravating factors greatly outweigh any mitigating ones. His first predicate offense, a guilty plea entered in February 2003, was to four counts of forgery, and his third predicate, a plea (guilty and no-contest) entered in November 2004, was to six counts of simple burglary and three counts of simple burglary of an inhabited dwelling, an astonishing II felonies in the nine years before the instant offense. The PSI shows that Jackson satisfactorily completed a one-month 114release for good time in 2007, but two other probationary terms were revoked for criminal conduct. This record shows that Jackson was indeed the kind of offender the legislature contemplated when it mandated life in prison for fourth felony offenders under § 529.1A(4)(b). This exception lacks merit.

Conclusion

Jackson finally argues, as an error patent, that at the habitual offender hearing the district court failed to advise him of his right to remain silent, contrary to La. R.S. 15:529.1D(1)(a). He concedes that because he did in fact exercise his right to remain silent, the error is harmless, State v. Timmons, 44,702 (La.App. 2 Cir. 9/23/09), 22 So.3d 1074, writ denied, 2009-2251 (La.4/16/10), 31 So.3d 1053, but suggests that in cumulation with other trial errors, it would support reversal. We agree that the error was harmless and find, as we did in Timmons, that it had no prejudicial effect on any of Jackson’s substantive rights.

We have reviewed the entire record and find nothing else we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Jackson’s conviction, adjudication and sentence are affirmed.

AFFIRMED.

      . Chief Horton and Officer Walker both testified that it had been raining in the evening before this incident.

      . The other information was a voice lineup in which a sheriff's deputy got Jackson and four other randomly selected black males from the correctional center to call out the name "Ant-won” and repeat a series of phrases. Dep. Horton brought this to the hospital and played it for MJ, who immediately identified Voice No. 2 as the person who broke into her apartment, threatened and raped her. Voice No. 2 was Jackson.

      .The indictment also charged him with one count of pandering, involving Ms. Ratcliff, but pursuant to the defense's motion to quash, this charge was severed and no mention of it was made at trial.

      . In spite of these rulings, the state offered no evidence at trial of the voice lineup or of Jackson's post-arrest statements.

      . The photos, admitted as Exhibits S-35, 36 and 37, were taken by Officer Walker at the JPD.

      . Jackson filed a pro se motion for post verdict judgment of acquittal, which trial counsel adopted, urging insufficiency of evidence. The district court ultimately denied it.

      . Photos, admitted as Exhibits S-39, 40 and 41, show the felt bag, two rolls each of nickels and dimes, and a number of loose coins, including several silver dollars, half dollars and dimes of obsolete designs that have not been minted in over 60 years, as well as silver half dollars, quarters and dimes not minted in over 40 years.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    Angela HARRISON v. HORACE MANN INSURANCE COMPANY.
    No. 12-CA-753.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Sidney D. Torres, III, Roberta L. Burns, Beau F. Camel, Attorneys at Law, Chalmette, LA, for Plaintiff/Appellant.
    Michael E. Holoway, Attorney at Law, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   ROBERT A. CHAISSON, Judge.

bln this action, Angela Harrison has sued her homeowners’ insurer, Teachers Insurance Company (“Teachers”), for claims arising from Hurricane Katrina. Ms. Harrison appeals from a judgment of the trial court sustaining Teachers’ exception of prescription. For the following reasons, we reverse the judgment of the trial court and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 29, 2005, Hurricane Katrina struck the Gulf Coast causing extensive damage and destruction to the region. Subsequently, numerous lawsuits proposing class certification were filed in Louisiana. Some of these class actions have been resolved, and some of them are still pending in various procedural postures in various courts. At least two of these class actions named Teachers as a defendant.

On July 22, 2009, Angela Harrison filed this lawsuit against her homeowners’ insurer, Teachers, alleging that it had failed to timely initiate adjustment of her Hurricane Katrina damage claim and to tender the amounts due to her pursuant to her policy. In her petition, Ms. Harrison alleged that she was a putative class member of several class actions against Teachers, and as such, her | Sclaims were timely asserted. On March 29, 2012, Teaehers filed an exception of prescription, contending that Ms. Harrison filed this lawsuit subsequent to September 1, 2007, the extended filing deadline established by the Louisiana Legislature in Act 802 of 2006 for Hurricane Katrina claims. In her opposition to Teachers’ exception of prescription, Ms. Harrison claimed to be a putative class member of two timely filed class actions that served to suspend the running of liberative prescription on her claim. She specifically identified the two class actions as: In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182 of the Eastern District of Louisiana (the “Master Consolidated” litigation); and The State of Louisiana v. AAA Ins., No. 07-5528 of the Eastern District of Louisiana (the “Road Home” litigation). Additionally, Ms. Harrison contended that the filing of the “Road Home” litigation by the State of Louisiana, as partial subrogee to her rights as a recipient of a “Road Home” grant, interrupted prescription as to her claim.

After a hearing on June 4, 2012, the trial court rendered judgment sustaining Teachers’ exception of prescription. It is from this judgment that Ms. Harrison now appeals.

LAW AND ANALYSIS

Through 2006 La. Acts 739 and 802, the Louisiana legislature extended the prescriptive period on Hurricane Katrina-related claims until September 1, 2007. Ms. Harrison’s claim, asserted almost two years after this date, would at first glance appear to be prescribed. However, Ms. Harrison’s petition additionally alleges that Teachers is a defendant in several pending class actions of which she is a putative member.

In Louisiana, class actions are governed by La. C.C.P. art. 591 et seq. These statutory provisions provide special rules regarding the suspension of liberative | prescription on claims arising out of the same transactions or occurrences as those brought in a class action proceeding. Article 596 provides, in pertinent part:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

La. C.C.P. art. 596 is a special provision, the purpose of which is to prevent prescription from accruing against the claims of members of a putative class action until such point as the propriety of the class action or the member’s participation in the class action is determined. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835, p. 14 (La.11/02/12), - So.3d -, 2012 WL 5374248. According to the plain language of La. C.C.P. art. 596, a petition brought on behalf of a class suspends prescription as to “all members” of the class “as described or defined therein.” Id.

Generally, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 5 (La.3/15/11), 62 So.3d 721, 726. Although evidence may be introduced to support or controvert any objection of prescription |fipleaded, in the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Duckworth, 11-2835 at 26, — So.3d -, citing Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 5 (La.11/29/05), 917 So.2d 424, 428.

Ms. Harrison’s petition alleges that Teachers is a defendant in several pending class actions of which she is a putative member. Ordinarily, such allegations would be sufficient to allow this Court to conclude that Ms. Harrison’s petition was not prescribed on its face and, therefore, it was Teachers’ burden to prove that Ms. Harrison’s claims are prescribed. Although Ms. Harrison’s petition does not specifically identify these class actions, she identifies them in her opposition to Teachers’ exception of prescription as the “Master Consolidated” litigation and the “Road Home” litigation, both of which were pending in federal district court at the time that Ms. Harrison filed her petition. Teachers argues, therefore, that because Louisiana courts do not allow “cross-jurisdictional tolling,” Ms. Harrison is not enti-tied to the benefit of suspension of prescription pursuant to La. C.C.P. art. 596.

In the recent case of Quinn v. Louisiana Citizens Property Insurance Corporation, 12-0152 (La.11/02/12), — So.3d -, 2012 WL 5374255, the Louisiana Supreme Court, finding that the legislature has rejected “cross-jurisdictional tolling” in class action proceedings, held that the provisions of La. C.C.P. art. 596 do not extend to suspend prescription on claims asserted in a putative class action filed in a federal court. Therefore, under the holding in Quinn, the “Master Consolidated” litigation relied on by Ms. Harrison, which was | fiOriginally filed in federal court, clearly did not serve to suspend the running of prescription on her claim.

Ms. Harrison, however, invites this Court to distinguish the “Road Home” litigation from the “Master Consolidated” litigation on the basis that the “Road Home” litigation was originally filed in a state court, Orleans Civil District Court, and was only later removed to federal district court. She therefore argues that the “Road Home” litigation suspended the running of prescription on her claim.

In Quinn, in addition to relying on the “Master Consolidated” litigation, the plaintiffs sought to rely on the “Road Home” litigation and three state court cases to suspend the running of prescription on their claims. However, their reliance on class actions other than the “Master Consolidated” litigation was only raised in their briefs to the court. Their petition alleged only that Citizens was a defendant in a “recently dismissed ” class action proceeding filed in the United States District Court. Of the five class actions the plaintiffs sought to rely on, only the “Master Consolidated” litigation fits this description.

The Supreme Court, having only the facts and procedural posture of the “Master Consolidated” litigation before it for consideration, held that the provisions of La. C.C.P. art. 596 do not extend to suspend prescription on claims asserted in a putative class action filed in a federal court (emphasis ours). Quinn, 12-0152 at 1, — So.3d -. Consequently, the Court found that the allegation in the plaintiffs’ petition that Citizens was a defendant in a “recently dismissed” class action proceeding filed in the United States District Court (clearly referring to the “Master Consolidated” litigation) was not sufficient to warrant a finding that the petition was not prescribed on its face. It further found that the burden of proof shifted to the plaintiffs to prove a suspension of prescription, and that the plaintiffs failed to 17meet this burden since they did not introduce any evidence at the hearing of the exception.

Since the plaintiffs in Quinn did not allege in their petition suspension by virtue of the “Road Home” litigation (either by name or description), and they did not introduce any evidence regarding the “Road Home” litigation at the prescription hearing, the specific question as to whether the “Road Home” litigation served to suspend the running of prescription on the Quinns’ claims was arguably not resolved by the court’s holding in Quinn. The question thus becomes, does the “cross-jurisdictional tolling” rule enunciated by the Supreme Court in Quinn apply only to cases that are originally filed in a foreign jurisdiction, or does it also apply to cases originally filed in a Louisiana state court but which are thereafter removed, and are pending in federal court at the time that prescription would have run under the applicable Louisiana statutory provisions.

The first sentence of La. C.C.P. art. 596 provides that “[l]iberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein.” The fact that federal law allows the removal of some cases to federal court pursuant to diversity jurisdiction does not negate the validity of the first sentence of La. C.C.P. art. 596. Nor does the fact that a particular class action is removed to federal court serve to retroactively nullify an otherwise valid suspension of prescription that commenced pursuant to Article 596 when the case was originally filed in a Louisiana state |scourt. Therefore, the running of prescription on Ms. Harrison’s claim was suspended by the filing of the “Road Home” litigation in Orleans Civil District Court. The burden was upon Teachers to prove that prescription had begun to run again upon one of the triggering events provided for in Article 596.

Suspension continues pursuant to La. C.C.P. art. 596(A) “until thirty days after one of three events occurs: (1) a person elects to be excluded from the class by submitting an election form; (2) a person is excluded from the class by the redefinition or restriction of the class (and notice thereof is issued); or (3) the action is dismissed, the demand for class relief is stricken, or class certification is revoked or refused (and notice thereof issued).” Duckworth, supra, at 14, — So.3d -. “These three events are the exclusive statutory triggers for recommencing the accrual of liberative prescription on the claims of those persons described or defined in the class action petition.” Id., at 14-15, — So.3d -. Although Article 596 does not specifically mention removal to federal court as a potential manner in which the action is dismissed, removal of the case to federal court, in effect, operates as a dismissal of the matter from the state court and ends the litigation in the state court. La. C.C.P. art. 596(A)(3) provides that the running of prescription recommences when the action is dismissed only upon giving the appropriate notice to the putative class members. In light of the Supreme Court’s ruling in Quinn that Louisiana does not allow “cross-jurisdictional tolling,” the removal of a class action to federal court affects substantive rights of the putative class members, and due process dictates that they be given notice before the running of prescription recommences.

Accordingly, we find that, pursuant to the Supreme Court’s holding in Quinn, the “Road Home” litigation pending in federal court does not serve to suspend the running of prescription; however, we agree with Ms. Harrison that the original filing of the “Road Home” litigation in a Louisiana state court did, [ ¡pursuant to the plain language of La. C.C.P. art. 596, suspend the running of prescription on her claim.

This outcome is not, in our opinion, violative of the Supreme Court’s holding in Quinn that rejected “cross-jurisdictional tolling” in class action proceedings. The fact that the “Road Home” litigation is currently pending in federal court has no effect on the suspension of prescription in this matter. It was the filing of the “Road Home” litigation in state court that triggered the initial suspension of prescription. The continuation of that suspension is the result of the absence of any notice to the putative class members that the litigation was terminated in state court. It is in no way dependent upon, or effected by, the pendency of the “Road Home” litigation in federal court. Upon the removal of the case to federal court and its termination in state court, any party in that litigation could have requested that the state court issue the appropriate notice to putative class members in order to recommence the running of prescription. Teachers has introduced no evidence that such notice was given. Therefore, we find that it was error for the trial court in this matter to sustain the exception of prescription.

Ms. Harrison further contends that the filing of the “Road Home” litigation by the State of Louisiana, as partial subrogee to her rights as a recipient of a “Road Home” grant, interrupted prescription as to her claim. Having found that Ms. Harrison’s claim was not prescribed due to a suspension of the running of prescription, we pretermit any discussion on the issue of whether the bar to “cross-jurisdictional tolling” of prescription is also applicable to co-obligees pursuant to a contractual sub-rogation agreement.

CONCLUSION

The running of prescription on Ms. Harrison’s claim was suspended by the filing of the “Road Home” litigation in a Louisiana state court. Teachers has failed 11ftto introduce any evidence that the running of prescription has recommenced. We therefore find that the trial court erred in granting the exception of prescription. We reverse that ruling and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED

      . Although the "Master Consolidated” litigation was pending in federal court at the time that Ms. Harrison filed her lawsuit on July 22, 2009, the class allegations in that case had been dismissed by the court on June 16, 2009, prior to Ms. Harrison filing her lawsuit. However, she argues that her suit was timely filed within the remaining prescriptive period after prescription began to run again.

      . Defendant argues that we should follow our decision in Harney v. Louisiana Citizens Property Ins. Co., 12-177 (La.App. 5 Cir. 11/27/12), 106 So.3d 193, as a basis for affirming the trial court's decision herein. In Harney, we stated that: "Since the ‘Road Home' litigation is pending in federal district court, plaintiffs by law may not rely upon that case for suspension of prescription on their claims.” Harney, at 5, 106 So.3d 193. (Emphasis added.) Although the "Road Home” litigation was in fact pending in federal district court at the time we decided Harney, the plaintiffs in Harney did not allege in their petition suspension of prescription by virtue of the "Road Home” litigation (either by name or description), and they did not introduce any evidence regarding the "Road Home” litigation at the prescription hearing; therefore, the prior procedural history of the "Road Home” litigation was not before this Court at the time that we decided Harney.


text:
    David SCHEUERMANN, Jr. v. CADILLAC OF METAIRIE, INC. and General Motors Corporation.
    No. 12-CA-828.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.
    Michael A. Britt, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    W. Evan Plauché, Kevin O. Larmann, Stephen N. Elliott, Matthew A. Ziifle, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

12In this automobile repair suit, David Scheuermann, Jr. appeals a judgment enforcing a settlement agreement and dismissing his suit against Cadillac of Me-tairie and GMAC Service Agreement Corporation (GMAC). For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Scheuermann bought a Cadillac automobile from Cadillac of Metairie in 2001, and bought a service warranty for it from GMAC in 2005. The service agreement was valid until September 29, 2008, or until the vehicle reached 83,025 miles, whichever occurred first. On August 8, 2008, shortly before the service warranty was due to expire, Mr. Scheuermann brought the car to Cadillac of Metairie with complaints of a “knocking” sound in the engine. Cadillac of Metairie made repairs to the vehicle; however, Mr. Scheuermann noted that the |3“knocking” noise was still present and again complained. By the time that the vehicle was returned to Mr. Scheuermann, the warranty had expired. When the dispute could not be resolved amicably, Mr. Scheuermann filed suit against Cadillac of Metairie and GMAC.

As the result of settlement negotiations, GMAC agreed to pay for a replacement engine to be installed in Mr. Scheuer-mann’s vehicle in exchange for dismissal from the suit of both GMAC and Cadillac of Metairie. A letter setting forth this agreement was sent to Michael A. Britt, Mr. Scheuermann’s counsel, and stated as follows:

Dear Mike:
This will confirm that under the warranty Mr. Scheuermann purchased, we will have the engine fixed at Best Chevrolet and we expect a signed release dismissing all defendants including the warranty company, GMAC Service Agreement Corporation, who was never named??
We also agree that the only consideration for settlement for General Motors, GMAC Service Agreement Corporation and the dealership, Cadillac of Metairie, Inc. is that we will reimburse the dealership where Mr. Scheuermann wants his vehicle fixed, which is Best Chevrolet, for all repairs that he is complaining about that relates to the lawsuit.
I would like this acknowledgment to be signed before the vehicle goes to Best Chevrolet for repairs and upon completion of the repairs that your client will sign a release releasing all defendants and sign a motion to dismiss dismissing all complaints.
Furthermore, as all contractual obligations to pay for repairs have now expired, if Mr. Scheuermann should have any more problems that relate to this repair this cause of action will be with Best Chevrolet which I assume will give him some kind of warranty on parts and labor.
If you are in agreement with the above, would you please sign the bottom of this letter and fax it back to me so we can set up the repairs for this Thursday or Friday.
As noted, according to the warranty agreement, I think Mr. Scheuermann gets a rental for at least five days, and I will have that |4set up at Best Chevrolet so when he brings in his vehicle for the repairs, he can have a rental.
With best regards, I remain Very truly yours, s/Stephen Elliott

Michael Britt signed the letter, but added a hand-written addendum which stated that “[d]ismissal of case will be done after repairs completed by Best Chevrolet.”

After Best Chevrolet replaced the engine in Mr. Scheuermann’s vehicle, counsel for defendants requested that Mr. Scheuermann comply with the settlement agreement and dismiss Cadillac of Metair-ie and GMAC from the suit. Mr. Scheuer-mann, claiming that the engine was still not operating properly, refused to dismiss these defendants. He further asserted that the “after repairs completed” language in the hand-written addendum was understood by him to mean “after repairs completed successfully.” Because he claimed that the repairs were not successful, there was, in his opinion, no valid agreement to dismiss the defendants.

GMAC and Cadillac of Metairie urged a motion to enforce the settlement agreement and dismiss the suit. The trial judge, finding that the defendants had complied with the settlement agreement, dismissed the suit as to GMAC and Cadillac of Metairie. This appeal followed.

LAW AND DISCUSSION

The only issue on appeal is whether the trial court was correct in finding that the defendants complied with the settlement agreement and therefore were entitled to a dismissal of the lawsuit against them. The rules pertaining to compromises are contained in La. C.C. arts. 3071-3083. Article 3071 defines a compromise as a contract whereby the parties settle a dispute or uncertainty concerning an |sobligation or other legal relationship. Article 3072 provides that a compromise shall be made in writing, or recited in open court so that it may be reduced to writing. Article 3080 precludes any subsequent action on the claim.

In Hancock Bank of Louisiana v. Holmes, 09-1094 (La.App. 5 Cir. 5/25/10), 40 So.3d 1131, 1134, this Court summarized the law applicable to compromises as follows:

There are two essential elements of a compromise: (1) mutual intention of preventing or putting an end to litigation, and (2) reciprocal concessions of the parties to adjust their differences. Trahan v. Coca Cola Bottling Co., 04-0100 (La.3/2/05), 894 So.2d 1096. The parties’ intent in executing a compromise is normally discerned from the four corners of the document; extrinsic evidence is normally inadmissible to explain, expand or contradict the terms of the instrument. Brown v. Drillers Inc., 93-1019 (La.1/14/94), 630 So.2d 741. Nevertheless, when the parties to a compromise dispute its scope, they are permitted to raise factual issues regarding whether the unequivocal language of the instrument was intended to be truly unequivocal. Id. However, such latitude is granted only in the presence of some “substantiating evidence” of mistaken intent. Dimitri v. Dimitri, 00-2641 (La.App. 4 Cir. 1/30/02), 809 So.2d 481, 485.
In Brown v. Drillers Inc., supra, the Supreme Court held that “substantiating evidence” must establish: either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. Brown v. Drillers Inc., supra, 630 So.2d at 749. In the absence of such evidence, the compromise is subject to the normal rules of contract analysis and enforced precisely as written. Id.
The trial court’s interpretation of an alleged compromise agreement is subject to manifest error/clearly wrong review. Kelly v. Owens, 29,613 (La.App. 2 Cir. 8/20/97), 698 So.2d 757, writ denied, 97-2311 (La.12/12/97), 704 So.2d 1193; Doyal v. Pickett, 25,247 (La.App. 2 Cir. 12/1/93), 628 So.2d 184. This is because the existence or validity of a compromise depends on a finding of the parties’ in: tent, an inherently factual finding.

In the present case, Mr. Scheuermann’s attorney signed a document which on its face can have no other interpretation than that it was meant to settle the dispute between the parties. The agreement required GMAC to pay to “have the |fiengine fixed at Best Chevrolet.” Although the letter agreement does not specifically state that the vehicle’s engine was to be replaced, all parties agree that replacement of the engine was the “repair” that GMAC agreed to pay for. Moreover, the agreement specifies that any problems which occurred after the repairs by Best Chevrolet, ie., after the replacement engine was installed, because of either parts or labor, would be the responsibility of Best Chevrolet. The addendum merely confirms that the release would not be forthcoming until the repairs were completed by Best Chevrolet.

Mr. Scheuermann filed an affidavit stating basically that his understanding was that the release would only be made if the repairs were completed satisfactorily, and therefore that his consent to the agreement as interpreted by the defendants was lacking. In effect, Mr. Scheuermann argues that the replacement engine had to function properly before the defendants would be released from any further repair obligations. In order for this Court to accept Mr. Scheuermann’s interpretation of the agreement, we would have to read into the agreement the word “properly”, or “satisfactorily”, terms that are simply not present in the agreement or the handwritten addendum. Furthermore, Mr. Scheuermann’s interpretation would completely negate the provisions of the agreement that provided that after the repairs were made by Best Chevrolet, should he experience any more problems that relate to the repair, his cause of action would be with Best Chevrolet. We do not find this to be a reasonable interpretation of the settlement agreement. Nothing in the service warranty required GMAC to resolve Mr. Scheuermann’s complaints by providing him with a complete replacement engine. In compromise of this litigation, GMAC agreed to provide Mr. Scheuer-mann with a complete replacement engine in exchange for a release from any further repair obligations and a dismissal from this lawsuit. In the context of a complete replacement of the 17engine as opposed to an attempted repair of the existing engine, it is completely reasonable that GMAC would require, as part of any compromise agreement, a release from responsibility from any further repair obligations, with Mr. Scheuermann limited to pursuing any claims for problems occurring with the replacement engine against Best Chevrolet.

In his reasons for judgment, the trial judge noted that the addendum did not add additional conditions to the settlement agreement, but rather merely clarified when the release would be tendered. It is clear that the trial judge found that GMAC’s obligation under the settlement agreement was to pay to have the replacement engine installed in Mr. Scheuer-mann’s vehicle, after which GMAC and Cadillac of Metairie would be released from the lawsuit and Mr. Scheuermann would be limited to pursuing any further repair claims regarding the replacement engine, if there were any, against Best Chevrolet. We find no manifest error in this factual determination on the record before us. We therefore agree with the determination by the trial judge that the compromise agreement was binding, and hereby affirm his judgment dismissing this suit as to GMAC and Cadillac of Metairie.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . Although the letter agreement does not specifically state that the vehicle's engine was to be replaced, the parties do not dispute that replacement of the engine was the "repair” that GMAC agreed to pay for.

      . The suit is still pending in the district court as to other defendants.

      .This case was previously before this Court on appeal, but it was remanded to the district court because the settlement agreement had not been properly placed in evidence.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Johnny L. EUBANKS.
    No. 12-896.
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2013.

      J. Reed Walters, District Attorney, 28th Judicial District Court, Steven P. Kendrick, Attorney at Law, Jena, LA, for Ap-pellee, State of Louisiana.
    Peggy J. Sullivan, La Appellate Project, Monroe, LA, for Defendant/Appellant, Johnny L. Eubanks.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

hThe Defendant, Johnny L. Eubanks, was charged by bill of information filed on November 16, 2009, with possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. A plea of not guilty was entered on December 1, 2009. Trial by jury commenced on June 21, 2010, and the jury returned a verdict of guilty the following day. On August 31, 2010, the Defendant was sentenced to serve twenty years at hard labor. A motion to reconsider sentence was filed on October 1, 2010, and was denied as untimely filed on October 6, 2010.

A motion for out-of-time appeal was filed on March 8, 2012, and was subsequently denied. An application for post-conviction relief was filed on April 20, 2012. On July 3, 2012, the trial court granted the Defendant fifteen days to perfect an appeal. The Defendant filed a motion for appeal on July 3, 2012.

The Defendant is now before this court asserting three assignments of error. Therein, he contends the evidence is insufficient to support his conviction, his sentence is excessive, and supplemental materials may reveal erroneously denied challenges for cause or Batson challenges.

FACTS:

The Defendant ran a stop sign at the intersection of Louisiana 127 and Highway 165 in Olla on September 19, 2009, and was stopped by Officer Steve Poole. Upon exiting his vehicle, the Defendant told Officer Poole that he was driving under suspension. The Defendant was then arrested and read his Miranda rights. The Defendant subsequently admitted he had illegal narcotics on his person and in his truck. The Defendant pulled a bag of marijuana from the waistband of his pants and told Officer Poole there was a bag of marijuana in a backpack that was in a toolbox in the truck.

ERRORS PATENT:

|2In accordance with ,La.Code Crira.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, the Defendant contends the evidence adduced at trial was insufficient to support a conviction for possession of marijuana with intent to distribute. He argues the State failed to prove he had the intent to distribute the marijuana.

There is sufficient evidence for conviction if the appellate court determines that “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Hobley, 98-2460, p. 33 (La.12/15/99), 752 So.2d 771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).

State v. Bivens, 11-156, p. 4 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, 788, writ denied, 11-2494 (La.3/30/12), 85 So.3d 115.

The Defendant was convicted of possession of marijuana with intent to distribute. Thus, the State was required to prove beyond a reasonable doubt that the Defendant had the specific intent to distribute the marijuana. State v. Hunter, 09-1487, p. 2 (La.App. 3 Cir. 6/2/10), 41 So.3d 546, 549.

“Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred.” State v. Hearold, 603 So.2d 731, 735 (La.1992) (citations omitted). There are five factors courts consider to determine whether an intent to distribute can be inferred:
1) whether the defendant ever distributed or attempted to distribute the drug; 2) whether the drug was in a form usually associated with possession for distribution to others; 3) whether the amount of drug created an inference of an intent to distribute; 4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and 5) whether there was any | ¡¡paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id.

Bivens, 74 So.3d at 790. “Mere possession of marijuana is not evidence of intent to distribute it unless the quantity is so large that no other inference is reasonable. State v. House, 325 So.2d 222 (La.[]1975).” State v. Greenway, 422 So.2d 1146, 1148 (La.1982).

Trooper Charles Turnage testified that he weighed the marijuana found and it weighed 368 to 370 grams, and a gallon plastic bag weighed fifteen and one-half grams. He agreed that the marijuana had previously been weighed and was heavier. Trooper Turnage and the trial court then calculated there were 451 grams in one pound.

Trooper Turnage testified that the average size joint contained half a gram of marijuana, and a large joint would contain approximately three-fourths of a gram of marijuana. Trooper Turnage stated that a heavy user would smoke about two grams of marijuana a day. He also stated that a 400 gram package of marijuana would last a heavy smoker using two grams a day 200 days. Trooper Turnage testified that, in his experience, it was not typical of a drug user to purchase a 200-day supply. Trooper Turnage further stated that, if a person smoked five blunts a day composed of two grams of marijuana each, the person would use a pound of marijuana in approximately forty-five days.

Trooper Turnage testified that he found a set of digital scales inside a compact disc case in the console of the Defendant’s truck. Trooper Turnage testified that scales would be used to weigh drugs when buying and selling. He stated that fifty percent of the time, a common user would bring a scale to a drug|4buy. However, he testified this would not be the case with the purchase of “nickel and dime sacks.”

Trooper Turnage testified that he had purchased a pound of marijuana in the past and did not bring scales with him because he would need a scale the whole package could sit on in order to get an accurate weight. When asked what type of scale would be used, Trooper Turnage responded:

Well, you’ve got some triple beams there, I would not bring that on a dope deal, I’m sorry. Because most of the time I’m going to meet at somebody’s, if I meet at somebody’s house they’re going to have a set. If I meet in a parking lot ... that’s going to look, that’s just too far-fetched.

Trooper Turnage testified that he had never investigated the Defendant for dealing drugs. He indicated that it was typical to find cash on a person arrested for dealing drugs, and it would not be uncommon for the cash to be fives or tens. Conversely, no cash was found on the Defendant at the time of his arrest. Additionally, no weapons were found on the Defendant.

Trooper Turnage testified the marijuana found in this case was not packaged in small bags, and no empty bags or cellophane were found. Trooper Turnage testified that drugs packaged in smaller bags would be more indicative of intent to distribute. Additionally, having a single package of marijuana with a bunch of empty Ziplock bags “decreases ... slightly from the scenario where you’ve already got it packaged.” “[B]ut ... it weighs heavier than just having that one single bag.”

Trooper Turnage testified there was a small partially used marijuana cigarette in the small package of marijuana the Defendant pulled from his waistband and a package of Zig-Zags in the purse of the passenger. Trooper Turnage stated these things “could go with personal consumption.”

IsTrooper Turnage was questioned regarding the purchase of marijuana in bulk as follows:

Q Okay. I’m saying is it common, doesn’t [sic] you think it makes sense for someone with a severe marijuana problem to use that same theory of economics? In other words, to buy in bulk as verse, buy—
A I would say it makes good sense.
Q It makes good sense, right? Okay. So, in your, and I think you answered this earlier, in your practice it’s not uncommon for people who purchase marijuana to buy in bulk, right?
A It’s not uncommon for people who purchase marijuana to buy in bulk.
Q To buy in bulk. As opposed to buying a whole bunch of nickel sacks or dime sacks?
A I will say that if, normally, if I’m going to buy just for my personal use, for a day-to-day basis, I’m not going to buy that large, of course, I don’t smoke weed-
A And I, you’re right, I don’t have knowledge of what it would have on me as a person. I would say that, you know, each person is—
Q Different.
A — diferent [sic]. There’s a lot of variables and is what you’re asking is—
Q Impossible.
A — would somebody choose to go to Sam’s versus the corner store. You ask yourself also risk, you know, what is the risk here?

Trooper Turnage was further questioned as follows:

Q So, I’m going to Holden to get my marijuana. It would probably be safer for me to buy in bulk as opposed to making a trip every weekend to get an ounce. It would probably be safer for me to get a pound in one trip, wouldn’t you think?
A If the only person that I’m going to go to is that person down there at Holden—
Q Uh-huh (yes).
|rA — and I’m going to travel from here, then that analogy makes sense to me.

Trooper Turnage agreed that possession of a pound of marijuana was not a one hundred percent guarantee that a person was selling marijuana. He testified that a pound of marijuana was worth $600 to $1,000.

The Defendant contends the evidence was insufficient to prove he had the specific intent to distribute the marijuana he possessed. In support of this argument, the Defendant cites State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213, for the proposition that an average user could smoke a pound of marijuana in less than two months. In Cho, a police officer testified that a pound of marijuana would make 448 large blunts, and he made a calculation based on an average user smoking ten marijuana cigarettes a day. The Defendant also asserts that, at the sentencing hearing, he stated he was a very heavy marijuana user and smoked all day every day. Additionally, based on the evidence presented regarding the bulk purchase of marijuana and his heavy use, his possession of slightly less than a pound of marijuana should not create an inference of intent to distribute and was not inconsistent with personal use.

The expert testimony presented in Cho and the Defendant’s remarks regarding his marijuana use were not before the jury in the case at bar. Such calculations and remarks cannot be considered by this court in its review of the sufficiency of the evidence. Uniform Rules — Courts of Appeal, Rule 1-3.

In support of its argument that the evidence was sufficient to support the Defendant’s conviction, the State cites State v. Decuir, 599 So.2d 358 (La.App. 3 Cir.), writ denied, 605 So.2d 1095 (La.1992). The State asserts that therein, this court found that possession of marijuana in an amount that would produce almost |7500 cigarettes, along with paraphernalia that included a box of sandwich bags, a scale, a pipe, a roach clip, scissors, and rolling papers was sufficient to support an inference that the defendant intended to distribute marijuana. The State asserts the Defendant in the case at bar possessed almost three times as much marijuana as the defendant in Decuir did. The police officers in Decuir found 126 grams of marijuana. Testimony by police indicated that one gram of marijuana made four cigarettes and the total amount of marijuana found would produce almost 500 cigarettes.

Here, Trooper Turnage testified that the amount of marijuana found was not a one hundred percent guarantee that a person was selling marijuana, however, it was not typical for a drug user to buy a 200-day supply. The Defendant possessed paraphernalia in the form of a scale found inside the truck’s console and Zig-Zags found in the purse of the truck’s passenger. Additionally, there was a small, partially used marijuana cigarette inside the package of marijuana the Defendant removed from his waistband.

Trooper Turnage testified the scale he found could be used for weighing drugs at the time of purchase by the Defendant or by the Defendant for sale to individuals. Further, Trooper Turnage testified that a buyer could bring a scale to a drug buy fifty percent of the time.

In State v. Sibley, 310 So.2d 100 (La.1975), police found eleven packets of marijuana in two houses belonging to the defendant and his automobile. The marijuana was found in several plastic bags. The supreme court found “there was evidence establishing that defendant possessed enough marijuana for 600 cigarettes. Intent to distribute could be inferred from this circumstance.” Id. at 103.

In State v. Francois, 03-1313, p. 4 (La.4/14/04), 874 So.2d 125, 128 our supreme court stated:

In cases involving circumstantial evidence, when the jury reasonably rejects the hypothesis of innocence advanced by the defense, “that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). In the present case, respondent Francois’s attorney put the issue of intent squarely before the jury....

In State v. Love, 06-539, p. 10 (La.App. 4 Cir. 12/6/06), 947 So.2d 161, 166-67, the fourth circuit stated:

The jury in this matter was presented with a reasonable hypothesis of innocence and rejected it. This Court’s function is not to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence, but instead to “assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt.” State v. Mussall, 523 So.2d 1305, 1311 (La.1988). (citing 2 C. Wright, Federal Practice and Procedure, Criminal 2d, § 467, at 465-466 (1982)). Furthermore, this Court “cannot substitute its idea of what the verdict should be for that of the jury.” Id. This Court is also “constitutionally precluded from acting as a ‘thirteenth juror’ in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact.” State v. Mitchell, p. 8, 1999-3342 (La.10/17/00), 772 So.2d 78, citing State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir.1993). Applying this standard, this Court must conclude that the jury’s verdict was a fundamental denial of due process before it can reverse the jury’s' verdict. State v. Mitchell.

Based on Sibley, 310 So.2d 100, and the jury’s rejection of the Defendant’s argument that the marijuana was purchased in bulk for personal use, we affirm the Defendant’s conviction.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, the Defendant contends the sentence of twenty years was excessive under the facts and circumstances of this case. We do not agree.

The Defendant was sentenced on August 31, 2010, and defense counsel orally objected to the sentence but failed to state specific grounds for the objection. |aThe Defendant then filed a motion to reconsider sentence on October 1, 2010, alleging his sentence was excessive. The trial court denied the motion as untimely filed.

In State v. Gordon, 11-898, p. 2 (La.App. 3 Cir. 2/22/12), 85 So.3d 242, 244, writ denied, 12-659 (La.9/14/12), 97 So.3d 1015; and State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court noted that defense counsels made an oral objection to the sentence but did not specify the grounds for the objection. This court went on to perform a “bare bones” review of the sentences for constitutional excessiveness.

A panel of this court summarized the standard to be used in reviewing excessive sentence claims in State v. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565, stating:

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) [ (]quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
In making this determination, the appellate court may take into account several factors, including “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. However, the appellate court should remain mindful that the sentence should be particularized to the individual defendant and the particular offense committed. State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208.

State v. Skinner, 11-703, pp. 3-4 (La.App. 3 Cir. 2/1/12), 84 So.3d 760, 763 (alterations in original).

The Defendant was convicted of possession of marijuana with intent to distribute, which is punishable by five to thirty years imprisonment and a fine of not more than $50,000. La.R.S. 40:966(B)(3). The Defendant was sentenced to serve twenty years at hard labor and was not ordered to pay a fine.

At the sentencing hearing, the Defendant informed the trial court that he had been using marijuana since the age of twelve and had been in trouble in the past, but drugs had never been the basis for such. The trial court subsequently sentenced the Defendant, noting he was twenty-seven years old and a fourth felony offender. The trial court then discussed the Defendant’s criminal history and its reasons for the sentence imposed, stating the following:

[Y]ou pled guilty to simple burglary on March 23, 2001, for an event that occurred on September 10, 2000. As part of that plea you received a sentence of three years at hard labor in the custody of the Department of Corrections and those three years were suspended and you were placed on three years of active supervised probation. You were next arrested on June 28, 2001, and charged with the unauthorized use of a movable, along with several other crimes. For the charge of unauthorized use of a movable, you received another sentence of three years at hard labor in the custody of the Department of Corrections, which is again, suspended. You were also placed on three years active supervised probation for that conviction as well. Some time afterward your probation was revoked. Finally, on May 25, 2004, you were sentenced on another simple burglary charge in Caldwell Parish to two years at hard labor for an incident which occurred on October 19, 2003, and this constituted your third felony offense. Subsequent to your felony convictions starting in May of 2005, you were arrested to [sic] the charge of simple burglary, but pled two months later to a charge of disturbing the peace. In May of 2008, you again returned to crime, entering a pre-trial diversion program for simple battery. Pleading guilty to the misdemeanor of driving while intoxicated in January of 2009, concerning an incident Inthat happened in July of 2008, and finally, you were arrested on the instance [sic] charges on September 2009. Your continued criminal history, shows that you engaged in felony criminal activity since you were 18 years old.- Basically, it’s the entire time that you’ve been an adult, you’ve been engaged in felony criminal activity. You’ve either been in jail or you’ve life [sic] somewhat restricted on all these occasions because of your continued criminal activity. And your continued violation of the restrictions placed upon you show to me that you don’t take the rules of society really very seriously as it relates to criminal activity. The pattern of conduct that you exhibit shows me that you do not understand boundaries and that you place your desires and wants above that of society, and expectations as shown by its law. No information has been provided to me as to any profession or trade that you may possess, so I can only assume that the only way you earn income to support yourself is stealing others belongings or through the sale of drugs. This is simply unacceptable in today’s society. Because of your past actions, I must find that there is an undue risk that you would commit another crime if you were given a suspended sentence or placed on probation. Additionally, the record is clear that you cannot effectively participate in a free society. It appears from the information provided to me that if you are not in the custody of the State of Louisiana, you are committing criminal acts. Accordingly, given your continued extensive criminal history, as well as the instant drug charges on which your plea is based, on which your conviction is based, I believe you’re in need of correctional treatment that can be provided most effectively by committed [sic] to an institution. Possession of marijuana with intent to distribute is a serious offense and it will not be treated lightly in this Court. The jury found that the marijuana in your possession was packaged to sell. I understand what you say it was for personal use. However, a jury of your peers indicated otherwise. And you also had the tools by which to accomplish, the division of that large amount of marijuana into smaller quantities. This shows to me that you intended to prey on the weakness of others and potentially make a profit on the sale-of this poison. This is not even a situation where treatment can help you. There is no allegations [sic] of use or your addiction to your illegal substances other than your own self-serving statement that you provided to me this morning. The only addiction I see is that you have is to other people’s stuff, and acquiring their property through whatever means is necessary. Therefore, I believe that a lesser sentence would deprecate the seriousness of the offense charged. As indicated earlier, it’s [sic] part of the Pre-sentence Investigation Report I was provided information that you are 27 years old. I have no information as to any persons that may rely on you for support. However, the report indicates that you have not been able to maintain consistent employment, have no outstanding or marketable skill, and a limited education. Therefore, it seems the only way a free [sic] society for you to make a living is by stealing others property or selling drugs. This mitigates against — excuse me — this mitigates toward a sentence of incarceration.

| |2The Defendant contends that costing the taxpayers of the State $20,000 per year for twenty years is grossly disproportionate to the offense, as he is not a marijuana dealer, smoked marijuana religiously since the age of twelve, and none of his prior offense demonstrate dangerous or violent tendencies. The State asserts the Defendant’s sentence is not excessive and cites State v. Cass, 46,228 (La.App. 2 Cir. 4/13/11), 61 So.3d 840, writ denied, 11-1006 (La.11/4/11), 75 So.3d 922; and State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, in support of its argument.

In Cass, 61 So.3d 840, the defendant was convicted of possession of marijuana with intent to distribute and adjudicated a second felony offender. He was then sentenced to forty years at hard labor.

In Jones, 33 So.3d 306, the defendant was convicted of possession of marijuana with intent to distribute and sentenced to the maximum term of thirty years at hard labor, but no fíne was imposed. The fifth circuit found the sentence was not excessive, noting the defendant had two prior convictions for drug offenses, numerous arrests for serious charges, had two additional weapons convictions and two additional drug convictions at the time of the possession of marijuana with intent to distribute conviction, ran from the police almost striking an officer with his car, and possessed a loaded gun.

In State v. Jackson, 07-975 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, the defendant was convicted of possession of marijuana with intent to distribute for possessing 10.5 grams of marijuana and was sentenced to eighteen years at hard labor. The fifth circuit found the sentence was not excessive based on the defendant’s criminal history, which included a conviction for manslaughter. The Defendant in the case at bar possessed significantly more marijuana than Jackson did. However, Jackson had a prior conviction for a violent felony, and the | ^Defendant has two prior convictions for simple burglary and one for unauthorized use of a movable.

In State v. Moton, 35,150 (La.App. 2 Cir. 8/22/01), 793 So.2d 1269, the defendant was sentenced to twenty years at hard labor for possession with intent to distribute marijuana. The second circuit found the sentence was not excessive in light of the fact that Moton had a prior conviction for possession of cocaine, a record of assaul-tive behavior, and two felony convictions for fleeing from police officers. Additionally, the offense involved over ten pounds of marijuana, and, at the time of his arrest, the defendant had absconded from parole in Ohio and was wanted on an active Ohio arrest warrant. The cases are similar in that both Moton and the Defendant were sentenced for a fourth felony offense.

In light of the sentences imposed in Jackson, 985 So.2d 246, and Moton, 793 So.2d 1269, we find the Defendant’s sentence is not excessive. Therefore, we affirm the sentence.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, the Defendant asserted the requested supplemental materials may reveal erroneously denied challenges for cause of Batson challenges.

In brief, the Defendant noted the transcript of jury selection was not included in the record at the time of filing and a motion to supplement, requesting a transcript of jury selection, was filed. The Defendant sought leave of court to file a supplemental brief in the event the transcript of jury selection revealed any errors.

No supplemental brief was filed in this matter. Thus, the Defendant has presented this court with nothing to adjudicate.

luDECREE:

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: COOKS, Judge.

text:
    Keri McGee CORMIER v. Brandon Lee CORMIER.
    No. 12-1340.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2013.
    Rehearing Denied May 29, 2013.

      Lynette Young Feucht, Eunice, LA, for Defendant/Appellant, Brandon Lee Cormier.
    Marcus L. Fontenot, Ville Platte, LA, for Plaintiff/Appellee, Keri McGee Cormier.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   COOKS, Judge.

JjFACTS AND PROCEDURAL HISTORY

Brandon Lee Cormier and Keri McGee Cormier (now Carriere) were married on March 13, 1998. One child was born of that union; namely, Parker Cormier. The marriage was terminated by a Judgment of Divorce dated June 5, 2005.

By way of a consent judgment, the parties were granted joint custody of Parker, with Keri named as the primary domiciliary or custodial parent. Brandon was granted ten days per month visitation with Parker. Keri was also awarded $350.00 per month in child support.

Initially, it appears the original custody and visitation schedule worked well, and Keri even allowed Brandon a few extra days per month with Parker, the net result that both parents essentially had equal time with Parker. At the time Brandon was employed in the oil industry and worked on a fourteen day on and off schedule. Brandon and Keri also lived in close proximity with each other, which further facilitated the handling of the custody plan between the two. However, the amicable relationship between Keri and Brandon did not last.

On September 30, 2011, Brandon filed an ex parte petition to modify custody with the district court. In support of his petition, Brandon made several allegations: that Keri engaged in excessive drinking, there were acts of domestic violence in Keri’s house, and that Keri engaged in inappropriate sexual situations while Parker was in her custody. On October 12, 2011, Keri filed a Rule for Modification of Child Support, Visitation and Contempt. On that same date, Brandon filed a Temporary [.^Restraining Order and Preliminary Injunction seeking to prohibit Eric Blanchard from overnight visits with Keri while Parker was in her custody and further seeking to prevent contact between Blanchard and Parker, citing allegations of domestic violence. The district court denied the Temporary Restraining Order. The district judge apparently did not believe Brandon’s allegations concerning Keri and denied the ex parte petition. Brandon then filed a second ex parte petition to modify custody, which was also denied by the district judge.

Brandon then filed a motion to recuse Judge Thomas Fuselier, who presided over and denied the two ex parte petitions. Brandon alleged a conflict of interest “due to a close, personal relationship” between Judge Fuselier and Keri’s family. Out of an abundance of caution, Judge Fuselier recused himself, and the case was transferred to a different division of the Thirteenth Judicial District Court. The matter was reset for hearing.

Prior to trial on the merits in the district court, the matter was heard by an Evangeline Parish hearing officer, who rendered certain recommendations. The hearing officer recommended no change of custody and no modification of visitation. In his written reasons, the hearing officer noted Parker “does not always tell the truth to his parents,” and “it appears that [Parker] attempts to tell each parent what they want to hear.” The hearing officer also believed Parker exaggerated the alleged “bad” conditions and was “playing” each parent against the other. The hearing officer did not find a material change in circumstances was proven sufficient to warrant modification of the previously rendered consent judgment awarding joint custody to Brandon and Keri.

As to the issue of child support, the hearing officer, after reviewing the submitted affidavits of income and expenses, determined Brandon’s gross wages were $10,800.00 per month, and Keri’s gross wages were $1,800 per month. Using the child support worksheet, the hearing officer found Brandon’s monthly child support obligation was $1,785.34, and Keri’s was $297.66. After giving Brandon a credit for the monthly private school expenses and a credit for maintaining Parker on his health insurance, the hearing officer recommended RBrandon pay Keri $1,000.00 per month in child support. Brandon filed an objection to the hearing officer’s recommendations as to custody and support.

Trial on the merits was held over three days, and post-trial memoranda were filed, after which the district judge rendered written reasons for judgment. The trial court specifically found no merit in Brandon’s allegations of excessive drinking on Keri’s part and the existence of domestic violence in Keri’s home. As to the allegations that Keri engaged in inappropriate sexual behavior while Parker was in her custody, the trial court found proof of only one incident, which occurred during a camping trip, and involved Parker hearing noises and peeking inside the camper bedroom while his mother was involved with her then boyfriend. The trial court, while accepting this event occurred, noted it was not highly unusual for couples to be discovered in sexual situations by curious children. The trial court also specifically noted the hypocrisy of Brandon’s allegations of excessive drinking on Keri’s part, when the evidence established he did not refrain from drinking in the presence of Parker. The trial court believed Brandon “encourage[d] Parker’s disrespectful behavior with Keri and buys everything that Parker wants in an effort to outdo what Keri provides with her tighter financial resources.” The trial court further found both Brandon and Keri were presently in stable, healthy relationships. It concluded Brandon failed to establish a material change of circumstances occurred and the consent judgment of November 19, 2004, as to custody was maintained.

The trial court also upheld the hearing officer’s recommendation to increase Keri’s child support award to $1,000.00 per month, holding Brandon responsible for all private school expenses, and maintaining Parker on his health insurance plan. In its reasons for judgment, the trial court stated it found Brandon’s “efforts to change the conditions of his employment has resulted in a voluntary underemployment situation[.]”

IsA final judgment was signed, from which Brandon has timely filed this appeal. Brandon contends the trial court erred in finding a change of material circumstances was not proven warranting a modification of custody and in increasing the amount of child support awarded to Keri. For the following reasons, we affirm.

ANALYSIS

I. Custody.

Brandon contends the trial court erred in denying a change in the custodial arrangement between he and Keri, arguing he successfully established a material change in circumstances since the previously rendered consent judgment between the parties. Where, as here, the underlying custody decree is a stipulated or consent judgment, rather than a considered decree, the party seeking modification of the decree must prove that (1) there has been a material change of circumstances since the custody decree was entered, and (2) the proposed modification is in the best interest of child. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478.

This court has previously held in Gremillion v. Gremillion, 07-492 (La.App. 3 Cir. 10/03/07), 966 So.2d 1228, that a trial court’s determination in a child custody case is entitled to great weight and should not be disturbed absent a showing that there was a clear abuse of discretion on the part of the trial judge. It is well established a “trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses” and its “determination ... will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Both the hearing officer and the trial court issued written reasons for judgment finding no merit in Brandon’s allegation of various improper behavior on | fiKeri’s part. A review of the record reveals much of the support for Brandon’s allegations against Keri was based on the statements made by Parker. As noted by the hearing officer, Parker has credibility issues (as many young children thrust in the middle of a custody dispute understandably develop). Both Brandon and Keri corroborated that Parker is often untruthful to his parents. While several specific allegations were made in his ex parte petitions, Brandon was unable to substantiate them at trial. The only specific example presented at trial, as set forth by the trial court in its reasons for judgment, was the camping incident.

The trial court specifically noted a large number of witnesses testified, and it took approximately 83 pages of notes during trial. A review of the witnesses’ testimony indicates they had no personal or independent knowledge of the events alleged by Brandon and were relying on statements made to them by either Brandon or Parker. We find no error with the trial court’s determination to accord little, if any, weight to their testimony.

Brandon also argues in brief that he has spent significantly more time with Parker in the last few years than has Keri. However, Keri pointed out on several occasions, Tammi (Brandon’s current wife) would pick Parker up from school and keep him until 5:00 p.m. Keri would then take Parker home for the remainder of the evening. Thus, the days Brandon alleges he had physical custody of Parker were not accurate.

The record also supports the trial court’s findings that Brandon actively “encourage[d]” Parker’s disrespectful behavior towards Keri. It was established at trial that Brandon does not allow Keri to come into his house and requires that she wait in her vehicle when picking up Parker from his visits with his father. Parker also testified in court that Brandon told him he could not go to church with his mother because it would be a mortal sin for Keri to attend a church service.

17Brandon argues because Keri willingly allowed him several instances of extra visitation, this amounts to a material change in circumstances from the previously entered consent judgment. In essence, Brandon contends this action on the part of Keri was a “voluntary modification” of the consent judgment to a “shared custody arrangement.” We strongly disagree with this contention and shudder to think of the potential chilling effect such a conclusion would have on encouraging cooperation between parents with joint custody. Keri should not be penalized for attempting to foster an amicable relationship with her ex-spouse and to allow her son extra time with his father.

We note that La.R.S. 9:335(A)(1) provides that absent the showing of good cause, the trial court must render a joint custody implementation order when, as here, joint custody has been decreed. The implementation order shall allocate the legal authority of the parents and the time periods during which each parent shall have physical custody of the children to assure continuing contact with both parents. La.R.S. 9:335(A)(2). Here, the record does not contain the requisite implementation order. Accordingly, we shall remand this case to the trial court to establish a joint custody implementation order.

II. Support.

The standard of review for child support awards is well established in this circuit and others. “The trial court has great discretion in decisions concerning modifications of child support decrees, and such decisions will not be disturbed on appeal absent clear abuse of discretion. Stelly v. Stelly, 02-113 (La.App. 3 Cir. 6/26/02), 820 So.2d 1270.” Rougeau v. Rougeau, 02-484, p. 2 (La.App. 3 Cir. 10/30/02), 829 So.2d 1125, 1126.

We note Brandon does not question the methodology used by the hearing officer in setting forth the parties’ respective child support amounts. Instead, he argues the support award should be terminated if he is named domiciliary parent, |sor, in the alternative, the support award should be calculated using his new revised salary figure.

The record throughout these proceedings indicated Brandon worked a fourteen days on and off schedule offshore. It was not until after trial commenced that Brandon stated he is no longer working offshore, and his salary is $40,000.00 less per year. The trial court was dubious of this new arrangement and specifically believed Brandon’s “efforts to change the conditions of his employment has resulted in a voluntary underemployment situation!)]” Brandon produced no witnesses nor check stubs to support this alleged new work schedule and revised salary, relying only on his self-serving testimony. The trial court did not err in rejecting, as unreliable, Brandon’s undocumented wage reduction.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. This matter is remanded to the district court for the purpose of rendering a joint custody implementation order. Costs of this appeal are assessed to appellant, Brandon L. Cor-mier.

AFFIRMED AND REMANDED.