author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Tyrone T. BOWMAN, Appellant.
    No. 48,797-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2014.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    Tyrone T. Bowman, pro se.
    James E. Paxton, District Attorney, Anita T. Mack, Edwin Moberly Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GARRETT, JJ.
   STEWART, J.

|2Pefendant Tyrone Bowman was convicted of second degree murder, in violation of La. R.S. 14:30.1. He was sentenced to the mandatory life sentence at hard labor without benefit of parole, probation, or suspension of sentence for his second degree murder conviction. On appeal, the defendant challenges the sufficiency of the evidence presented, and the trial court’s denial of the motion for new trial. For the reasons stated herein, the defendant’s conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

An armed robbery occurred at a Sonic restaurant in Lake Providence, Louisiana, on October 10, 2000. During the armed robbery, Sonic manager, Spencer Washington (“victim”), was shot and killed. On May 10, 2010, the defendant was implicated in the crime and charged with first degree murder via bill of indictment. On October 5, 2012, the indictment was amended to the charge of second degree murder. The defendant pled not guilty.

On March 20, 2013, the jury trial began. The following evidence was adduced at trial.

Officer Columbus Willis of the East Carroll Parish Sheriffs Office testified that shortly before midnight on October 10, 2000, he was dispatched to an armed robbery and shooting at a local Sonic restaurant. Upon arrival, he saw the victim lying unresponsive on the ground. He also saw a Sonic employee being interviewed by police officers who had already arrived at the scene. Officer Willis was briefed by another officer who informed him that the employee described the suspect as a male wearing a black mask, a black sweatshirt, and black pants. A second Sonic employee emerged from across the street from Sonic, and called out to Officer Willis hand another police officer. She informed them that the suspect had headed toward Grace Episcopal Church.

Based upon the information given, Officer Willis and Officer Lee Antwine commenced a foot search for the suspect. Since the ground was wet with dew, Officer Willis was able to spot footprints in the grass as they approached Grace Episcopal Church. The officers followed the footprints that headed toward “the trees,” and Officer Willis recovered a black sweater cap, that he identified as a black mask, under the trees.

Officers Willis and Lee proceeded through the trees, and traveled along First Street. As they approached West Street by the old Council on Aging building, Officer Willis testified that someone said, “I saw somebody ran [sic] through here and whoever it was took a sweater off, took off his shirt and threw it down and kept running.” Officer Willis saw a figure, but couldn’t see the person who made the statement. He was able to recover a black sweatshirt on the side of the old Council on Aging building. He stated that the sweatshirt did not appear to have been there long, since there was no dew on it.

The search ended at Darryl’s Mini Mart, which Officer Willis testified is not even a mile from the Sonic restaurant. Officer Willis noted that had they not stopped along the route, it would have taken about five minutes to get to Darryl’s Mini Mart from Sonic. Terrance Baker, an employee at Darryl’s, told Officer Willis that the defendant had come in the store wearing only an undershirt, and that he had given him a shirt to put on.

Brenda Thompson, a former cook at Sonic, testified that she witnessed the armed robbery. She noted that it occurred on a Tuesday night, Land that they were busy that night because of a 99-cent burger special that Sonic was having. After the restaurant closed at 10 p.m. that night, Thompson, Thompson’s coworker, Mia Tyler, and the victim remained at the restaurant for another hour to clean the kitchen. She testified that the victim carried a handgun in a case because the restaurant had previously been robbed twice. As they exited the restaurant, with the victim carrying the deposit bags and the case that housed his gun, a man dressed in a black mask, shirt, and mask approached them, brandishing a handgun. The man demanded the money from the victim. The victim refused, and the man grabbed Tyler. Thompson fled the scene, headed toward Grace Episcopal Church. She heard two gunshots, and Tyler yell that the man was headed toward her. Thompson saw the man run past the church, and head toward the Byerley house, which she stated was across the street from the church. When she saw that the man was out of sight, she ran back to Sonic and found the victim with a single gunshot wound to his chest.

Mia Tyler, the other Sonic employee who witnessed the robbery, testified that the suspect was wearing all black and had a handgun in his possession. The suspect came up behind Tyler and grabbed her. The victim was able to remove his gun from its case. The suspect attempted to use Tyler as a shield, but Tyler was able to flip him over her and onto the ground. Tyler stated that the suspect sprang to his feet, and the suspect and victim shot at each other. The victim was struck by a bullet, and the suspect was able to grab the deposit bag and flee the scene.

Terrance ■ Baker, the cashier at Uncle Darryl’s Mini Market, testified that the defendant came by the store at approximately 11:00 p.m. He stated |Bthat the store closed at 11:00 p.m., but that it sometimes stayed open after 11:00 p.m. if it was busy. He stated that the defendant “wasn’t himself.” Baker asked the defendant what was wrong and if he had been fighting. The defendant informed him that he had. Baker remembered that the defendant was wearing a tank top that night, and that the defendant asked him for a shirt. Baker gave him one of the shirts he was wearing, and the defendant left.

Sergeant Gregory J. Pleasant with the Louisiana State Police testified that this case was assigned to him. During the course of his investigation, Sergeant Pleasant developed a number of possible suspects, and was able to eliminate everyone but the defendant. After reading the defendant his Miranda rights, Sergeant Pleasant interviewed the defendant, and he noted that during the interview he felt that the defendant was “toying with him”:

[The defendant] would say, “I’ll tell you about it later,” you know, he started with, “I’ll tell you about it if you give me a cigarette.”

Sergeant Pleasant noted that the defendant never denied committing the crime. Pleasant did submit a hair sample from the defendant, but the DNA results had not been given at the time he transferred to Baton Rouge, Louisiana.

James Branch, the defendant’s best friend in 2000, was in jail at the time the armed robbery took place. He testified that he had a friend, William Green, who worked at Sonic. Green informed him that Sonic was an “easy lick,” and closing time on Tuesdays is the best time to commit the robbery. Branch shared this information with the defendant. Branch also admitted | ñthat he had robbed this Sonic restaurant about a year before this armed robbery occurred.

While Branch was in jail in 2000, the defendant was taken into custody for a probation violation. Branch got the opportunity to speak with the defendant, and he testified that the defendant told him about the murder. The defendant explained that “the man wouldn’t give him [the defendant] the bag.” Branch did not come forward with this information until 2010.

James Thompson, the defendant’s cell mate for approximately two months in 2001, testified that while they were housed together, the defendant told him “about how he had pulled the robbery off at Sonic.” The defendant referred to the robbery as a shooting, and stated the male manager “wouldn’t turn loose the money box.” The defendant told Thompson that he was wearing a winter cap on the night the armed robbery occurred, and that when he ran, a tree branch snatched it off his head.

Julie Nailer, a forensic DNA analyst with the Louisiana State Police Crime Laboratory, was qualified as an expert in the field of DNA analysis. Nailer testified that her involvement in this case consisted of ABO blood typing, issuing a report in October 2000 regarding the blood type of the reference blood that was received, issuing a DNA report in 2008, and issuing two additional reports in 2013.

Nailer’s office received evidence and reference samples related to the armed robbery on October 18, 2000. This evidence included a brown envelope containing one fired 25-caliber shell casing, a white cardboard box containing a firearm, a fired 9mm shell casing, and a black stocking cap; a brown paper bag containing a long sleeved black sweatshirt; a brown paper |7bag containing two shoes, two socks, pants, briefs, a shirt, and a jacket; a brown envelope containing one clear bag containing one box with a bullet taken from the victim; a brown envelope containing six tubes of body fluid taken from the victim; and a brown envelope containing one white envelope containing hair pulled from the defendant. Nailer actually tested the black sweatshirt, the stocking cap, the shell easing, the sample of body fluid, and the pulled hair.

Nailer commented that her laboratory was “behind the times,” and that she did not perform a DNA analysis on the stocking cap until February 18, 2008. After performing the testing on the stocking cap/ face mask, Nailer testified that she did detect some DNA, but it was an insufficient amount for her to make a conclusion. She also performed a DNA analysis on the sweatshirt on February 18, 2003, and was able to detect sufficient DNA around the collar of the sweatshirt that allowed her to obtain a profile. After comparing profiles obtained from the defendant and the victim, the Nailer concluded that the defendant could not be excluded from having worn the sweatshirt. Further, she testified that “approximately 97.4 percent of the population could be excluded as being a possible contributor of the DNA in this mixture.”

Jeff Goudeau, the supervisor of the firearms section at the Louisiana State Police Crime Lab, was qualified as an expert in the field of firearms. He testified that he examined the evidence recovered from the crime scene in February 2009. He concluded that the bullet extracted from the victim was not fired by the victim’s 9mm handgun. Rather, the bullet was consistent with a .25 caliber handgun.

IsWillie Robinson, Sr., who is currently the chief of police in the town of Rayville and was formerly chief investigator for Richland Parish Sheriffs Office, testified that he interviewed the defendant on November 1, 2000. After reading the defendant his Miranda rights, the defendant initially denied any involvement in the armed robbery. The defendant later told Robinson that if “he [Robinson] could get him [the defendant] ten years, he’d [the defendant] tell him [Robinson] what happened.” Robinson responded that he couldn’t offer him ten years, but he would contact the district attorney to see what sentencing options were available. While they were taking a break from the interview, Robinson testified that the defendant “began to cry, and he [the defendant] told me, mister, I only fired one shot.”

Dr. Steven Timothy Hayne, a physician practicing in the fields of anatomic pathology, forensic pathology and clinical pathology, was qualified as an expert in the field of forensic pathology. He testified that the victim died of injuries sustained from a single gunshot wound to the chest.

Detective Todd Cummings of the Louisiana State Police, Criminal Investigation Division, testified that in June 2002, he was assigned to investigate the victim’s death as a cold case. In March 2009, he received a crime lab report from the state police crime lab indicating that the defendant had been identified as the contributor of DNA found on a sweatshirt. Cummings stated that the defendant’s three confessions to Thompson, Branch, and Robinson, the crime lab reports regarding the DNA, and the supporting witnesses that placed the defendant in the area at the time the crime was committed, led him to arrest the defendant for the victim’s murder.

1 flNeah Horath testified that on October 10, 2000, he was employed at the East Carroll Sheriffs Department as an evidence custodian and investigator. He collected evidence and photographed the crime scene and surrounding area for the robbery and murder that occurred at Sonic. His photographs were admitted into evidence, and included pictures of two shell casings found at the crime scene, a 9mm handgun belonging to the victim, the mask Officer Willis located in “the trees,” the black sweatshirt discovered by Officer Willis, and the bullet found in the victim’s chest.

On March 22, 2013, the jury found the defendant guilty as charged of second degree murder. On May 20, 2013, the defendant filed a motion for a new trial, alleging that the jury was intimidated by the victim’s family. The trial court denied the motion, and subsequently conducted a sentencing hearing. After considering the information contained in the presentence investigation report, the trial court concluded that the defendant was in need of correctional treatment, that a lesser sentence would deprecate the seriousness of the crime, and that he was likely to re-offend. It sentenced the defendant to mandatory life imprisonment without the benefit of probation, parole, or suspension of sentence.

The defendant filed the instant appeal.

LAW AND DISCUSSION

Sufficiency of the Evidence

In the defendant’s first assignment of error, he argues that the evidence was insufficient to support his conviction for second degree murder. Specifically, the defendant argues that the state failed to prove that he was the person who robbed the Sonic restaurant and shot the victim.

| inWhen issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the. crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

|nThe Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert., denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal | ^contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra; State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Lewis, 43,402 (La.App.2d Cir.8/13/08), 990 So.2d 109. A tentative identification is not necessarily unreliable. Id. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990). A victim’s or eyewitness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility choices of the trier of fact beyond the constitutional standard of sufficiency. State v. Davis, 2002-1043 (La.6/27/03), 848 So.2d 557; State v. Ponsell, supra. Testimony by a jailhouse informant is a credibility determination made by the jury. State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66.

La. R.S. 14:30.1 provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juvenile, or terrorism, even though he has no intent to kill or to inflict great bodily harm. (Emphasis added.)

La. R.S. 14:64(A) states:

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

The defendant contends that there is no direct evidence linking him to the crime. He further contends that no witnesses identified him as the suspect, nor did anyone place him at the crime scene.

114As stated in the facts section of this opinion, Sonic employee Brenda Thomas testified that a man dressed in a black mask, shirt, and mask approached them, brandishing a handgun. Sonic employee Mia Tyler testified that the suspect was wearing all black and had a handgun in his possession. Thomas and Tyler heard the suspect demand the deposit bag from the victim. Tyler saw the suspect shoot the victim and flee with the deposit bag. Further, Dr. Hayne testified that the victim died of injuries sustained from a single gunshot wound to the chest, and expert witness Jeff Goudeau testified that the bullet which struck the victim was not fired from his own handgun. These testimonies sufficiently establish that the victim was killed during the perpetration of an armed robbery, which are necessary elements for a conviction of second degree murder.

The testimony presented at trial placed the defendant near the scene of the crime at the time the armed robbery took place. Thompson testified that the Sonic restaurant closed at 10:00 p.m., and that she, Tyler, and the victim remained at the Sonic restaurant for another hour to clean the restaurant. When they walked out of the restaurant and were subsequently robbed, it was approximately 11:00 p.m.

Officers Willis and Lee were able to follow the suspect’s route with the help of eyewitnesses. Officer Willis was able to recover a black cap/winter mask and sweatshirt along the route to Uncle Darryl’s. The sweatshirt is the same sweatshirt that Julia Nailer extracted DNA evidence from, and after testing the evidence, could not exclude the defendant as a possible contributor. Officer Willis described the walk from Sonic to Darryl’s Mini Mart as a walk that takes about five minutes.

11sTerrance Baker, the cashier at Uncle Darryl’s Mini Market, testified that the defendant came by the store at approximately 11:00 p.m. He also stated that the defendant was only wearing a tank top.

Chief Investigator Willie Robinson testified that the defendant tearfully informed him that he “only fired one shot.” Further, the defendant’s former best friend, James Branch, and his former cell mate, James Thompson, both testified that the defendant admitted to committing this armed robbery.

From the totality of the evidence presented, the jury could have concluded beyond a reasonable doubt that the defendant was guilty of second degree murder. This evidence overwhelmingly establishes the defendant’s identity as the person who committed the second degree murder of the victim while perpetrating this armed robbery. Therefore, this assignment is without merit.

Denial of Motion for New Trial

In the defendant’s second assignment of error, he argues that the trial court erred in denying his motion for new trial. He argues that the jury’s verdict cannot be relied upon as being based entirely upon the evidence and not on factors extrinsic to the trial, since members of the jury believed the victim’s family was taking pictures of them on the last day of trial. The trial court ruled that the act of the victim’s family taking photographs of each other was not “such that would be a presumptive prejudicial act.” We agree.

The decision on a motion for new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of abuse. State v. McLemore, 26,106 (La.6/24/94), 640 So.2d 847, writ denied, 94-1908 (La.12/9/94), 647 So.2d 1107, cert denied, 514 U.S. 1116, 115 S.Ct. 1974, 131 L.Ed.2d 863 (1995).

Initially, in any trial, there is a presumption of jury impartiality prejudice will not be presumed, but can be demonstrated by a defendant by a preponderance of credible evidence. U.S. v. Winkle, 587 F.2d 705 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). However, any unauthorized communication, contact, or tampering directly or indirectly, made by a nonjuror with a juror during a trial about the matter pending before the jury is deemed presumptively prejudicial, if not made in accordance with the rules of court and the instructions and directions of the court made during the trial, with full knowledge of all the parties. The presumption is not conclusive, but the burden rests heavily upon the state to establish, after notice to and hearing of the defendant, that such contract with the juror was harmless to the defendant. Winkle, supra. Prejudice may be shown by evidence that an extrinsic factual matter tainted the jury’s deliberations. Thus, an adequate demonstration of extrinsic influence upon the jury overcomes the presumption of jury impartiality and shifts the burden to the state to show that the influence demonstrated was not prejudicial. State v. Sinegal, 393 So.2d 684 (La.1981); McLemore, supra.

Essentially, an impermissible “outside influence” is an unauthorized communication or overt act by a third party which creates an extraneous influence on the jury. However, even if such acts occur they are subject to harmless error analysis. State v. Sanders, 33,778 (La.App.2d Cir.10/4/00), 769 So.2d 183; Sinegal, supra. Proper analysis for determining harmless error is whether the jury’s guilty verdict actually rendered in the 1 ^particular case was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Small, 37,134 (La.App.2d Cir.6/27/03), 850 So.2d 1019.

In this case, as Deputy Mondario Han-ford escorted the jury to lunch, he testified that he immediately noticed the victim’s family already seated in the restaurant. After receiving confirmation from his supervisor that the jury could enter the restaurant, he positioned himself so that he could observe both the jury and the victim’s family. Hanford testified that he did not see any contact transpire between the jury and the victim’s family, but he did overhear a juror state that a member of the victim’s family took a picture of the jury.

Reginald Washington, a member of the victim’s family, testified that he took a photograph of his uncle, whom he had not seen in over a year, and his mother. Washington expressed that he had no intent to take a picture of the jury and that he and his family members made a conscientious effort to comply with instructions to avoid contact with the jury. In fact, when asked, Washington noted that he would have had to angle his camera differently in order to take a picture of the jury.

Reginald Washington’s act of taking a photograph of two of his family members did not create an extraneous influence on the jury. No evidence was presented to prove that a photograph was actually taken of the jury. We conclude that the act of taking a photograph of a family member in the presence of the jury does not constitute the establishment of contact or communication. Moreover, even if this communication was impermissible, |isit constituted only harmless error. See Sanders, supra. The assignment of error lacks merit.

CONCLUSION

For the reasons stated, we hereby affirm the defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Melody Ann Rushing OLSON, Plaintiff-Appellee v. Kimmy Lee OLSON, Defendant-Appellant.
    No. 48,968-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2014.

      David C. Hesser, Alexandria, Gregory S. Moore, for Appellant.
    Jennifer H. Johnson, Robert S. Tew, Monroe, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   WILLIAMS, J.

1 ,The defendant, Kimmy Olson, appeals a judgment in favor of the plaintiff, Melody Olson. The trial court ordered partition in kind of the parties’ co-owned property, allocating to plaintiff the ownership and debt of two condominium units and 100% of the shares of the business entities. The court assessed defendant with liability for his personal line of credit and allocated to the parties the movable property in their possession. For the following reasons, we reverse and remand for partition by licitation.

FACTS

Melody and Kimmy Olson were married in March 1987. The couple entered into a court-approved post-nuptial separation of property agreement in November 1987. During the marriage, the parties formed KM, Inc., as a real estate holding and investment company. The parties are the equal shareholders of KM, Inc., and Melody is the manager and operator of the company. Later, the parties formed two other real estate holding companies, KM Group, LLC, and KM Real Estate, LLC. The owner of each company is KM, Inc.

In 1996, Melody was awarded $2,440,163.05 from a sexual discrimination law suit against her employer. These funds were considered her separate property. Melody deposited the money in an AG Edwards investment account. A significant portion of these funds was loaned to the business entities formed by the parties, establishing a shareholder debt owed to Melody. In 2009, Melody and Kim Olson purchased units 201 and 901 of River-scape Condominium from KM Group, LLC, for the price of $1,251,000. Melody allocated $810,902.60 of her shareholder debt as the |2down payment and the remainder of the price was borrowed from Community Trust Bank. Kim did not contribute any funds for the purchase of the property.

In 2011, the plaintiff, Melody Olson, filed a petition for divorce and for partition of co-owned property against the defendant, Kim Olson. Defendant then filed a petition to annul the marital agreement. In September 2011, a judgment of divorce was rendered. After a hearing in October 2012, the court denied defendant’s petition to annul the post-nuptial contract. After trial on the partition, the district court held the matter open for the parties’ submission of post-trial memoranda and defendant filed an exception of prescription as to plaintiffs claims for recognition of her loans to the businesses.

Subsequently, the trial court issued written reasons for judgment finding that partition in kind was necessary. Noting that the value of the business entities is based solely on the value of the immovable property owned by each company, the court found that the combined value of this property is $8,533,250. This amount was reduced by liabilities of $2,853,904.47 and the shareholder debt of $1,189,599.36 owed to plaintiff by the companies, resulting in a negative value of $510,253.83 for the business entities. Regarding the condo units, the court found a negative value of $421,194.95, based on the appraised value of $751,000, less the mortgage debt of $361,292.35 and the $810,902.60 of the plaintiffs shareholder debt used as the down payment.

Accordingly, the trial court rendered judgment allocating to plaintiff the ownership and debts of the business companies and the condo units. | sThe court allocated to defendant any movable property in his possession and the debt owed for his personal line of credit. The court also denied the defendant’s exception of prescription. In addition, the judgment prohibited either party from performing a transaction that would increase the other’s liability. After defendant appealed the judgment, plaintiff filed a motion for special assignment alleging that the value of the businesses could decline while the appeal is pending. This court denied the plaintiffs motion.

DISCUSSION

The defendant contends the trial court erred in denying his request for a jury trial in connection with his petition to declare the post-nuptial contract null. Defendant argues that his request for a jury was proper because he sought a declaratory judgment.

When a proceeding for declaratory judgment involves the determination of an issue of fact, such issue may be tried in the same manner as issues of fact are tried and determined in other civil actions. LSA-C.C.P. art. 1879. The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury. LSA-C.C.P. art. 1781(B). A trial by jury shall not be available in a partition or divorce proceeding. LSA-C.C.P. art. 1732. In Louisiana, a civil litigant’s right to trial by jury is statutory rather than constitutional and is dependent on the nature of the proceeding. Leonard v. Parish of Jefferson, 95-1082 (La.1/16/96), 666 So.2d 1061.

In the present case, as support for his contention, defendant cites in his brief Brumfield v. Brumfield, 477 So.2d 1161 (La.App. 1st Cir.1985), in which a jury considered the validity of a pre-nuptial contract. In Brumfield, |4no action for separation or divorce had been filed when the wife sued to have the pre-nuptial agreement declared null. Here, in contrast, the defendant filed his petition to declare the parties’ marital agreement null as a responsive pleading in the proceeding for divorce and partition. Thus, this case does not involve the same situation as Brumfield. Under Article 1732, a jury trial is not available in a partition or divorce proceeding. Based on the procedural situation of this case, we cannot say the trial court erred in denying defendant’s request for a jury trial regarding the validity of the marital agreement. The assignment of error lacks merit.

The defendant contends the trial court erred in failing to annul the parties’ 1987 post-nuptial agreement. Defendant argues that the matrimonial contract is invalid because the parties signed the agreement before judicial approval, the district court did not make a finding that the agreement was in the parties’ best interests and the same attorney represented both parties.

Spouses may enter into an agreement that terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. LSA-C.C. art. 2329. Article 2329 imposes certain procedural limitations on the spouses’ ability to implement a contract for the termination of the legal regime during their marriage. The district court must be satisfied that the spouses both agree to the change, that the spouses understand the principles underlying a change in the matrimonial regime and that the agreement appears to serve the spouses’ best interest. Boyer v. Boyer, 616 So.2d 730 (La.App. 1st Cir.1993).

In the present case, attorney Vicki Green testified that she represented | ¿both parties in preparing the matrimonial agreement. Green stated that she met with both spouses to review the agreement, the joint petition and their verifications. Green testified that at the time, the defendant expressed his understanding of the matrimonial agreement. Green and plaintiff recalled that the parties and their attorney later went to the courthouse and met with the district judge, who spoke with both spouses before signing the judgment. At trial, defendant denied having appeared before the judge.

In his appellate brief, the defendant asserts that the attorney’s representation of both parties was “prohibited” by the Rules of Professional Conduct. At the time the parties signed the agreement, Professional Conduct Rule 1.7 provided that a lawyer “shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation.”

At trial, attorney Green testified that she consulted with both parties and advised them that their interests were potentially adverse. The trial testimony shows that both spouses were aware of and consented to the joint representation. Defendant did not object to such representation to the attorney or to the court at the time. Based on the evidence presented, defendant failed to show that attorney Green’s representation of the parties violated the Rules of Professional Conduct.

In support of his contention that the matrimonial agreement is invalid, defendant cites Trahan v. Trahan, 2012-173 (La.App. 3rd Cir.6/6/12), 91 So.3d 1291 and Williams v. Williams, 99-1101 (La.App. 3rd Cir.4/12/00), 6760 So.2d 469. In Trahan, supra, the court found that the Article 2329 requirements were not met because the husband did not certify to the district court that he thought the agreement was in his best interest and he was aware of the governing laws. In addition, he did not appear in court, he was not represented by counsel and the judgment did not include a finding that the spouses understood the governing principles and that their best interests were served. In Williams, supra, the court found that the submission of a joint petition with the attached agreement followed by an order of the district court was insufficient to satisfy the Article 2329 requirements.

Here, in contrast to the situations of Trahan and Williams, the defendant signed a verification certifying to the court that the matrimonial agreement was in his best interest and that he understood the principles involved. Defendant met with an attorney who discussed the agreement with him before he signed. Additionally, the judgment states that both parties appeared and exhibited to the court that they understand the rules and principles governing the matrimonial agreement.

We note that Article 2329 does not provide a procedural instruction as to how a district court should ascertain the best interests of the parties. The law does not specify the form that the court’s finding will take or how it must be expressed and does not require a hearing. See Trahan, supra; Boyer, supra. In this case, the district court reviewed the joint petition and the verifications, spoke with the parties and rendered judgment approving their agreement to establish a separate property regime. This approval indicates that the court made a finding that the agreement appears to serve the best interest of the spouses. After reviewing the record and the 17applicable law, we cannot say the trial court erred in concluding that the procedural requirements of Article 2329 were satisfied and that the parties’ matrimonial agreement is valid. This assignment of error lacks merit.

Partition

The defendant contends the trial court erred in deducting the amount of the shareholder debt, which - was used as a down payment, from the appraised value of the jointly owned condo units. Defendant argues there is no legal basis for the court’s deduction because the shareholder loan of $810,902.60 is not secured by a lien or mortgage on the property.

Ownership of the same thing by two or more persons is ownership in indivi-sión. In the absence of other law or juridical act, the shares of all co-owners are presumed to be equal. LSA-C.C. art. 797. No one may be compelled to hold a thing in indivisión with another. Any co-owner has a right to demand partition of a thing held in indivisión. LSA-C.C. art. 807. The court shall decree partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in indivisión. LSA-C.C. art. 810. When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares. LSA-C.C. art. 811.

In the present case, the trial court ordered partition, in kind of the co-owned condominium units, but then allocated “all ownership” and debt of the units to plaintiff. Such allocation of assets and liabilities is allowed under LSA-R.S. 9:2801, which applies to partitions of former community |8property. However, the record shows that the co-owned condominium units were purchased in 2009, after the parties executed the matrimonial agreement establishing a separate property regime between the spouses. As a result, the partition of their co-owned property is subject to the general rules of co-ownership found in LSA-C.C. arts. 797 et seq. These co-ownership rules, unlike a situation involving former community property, do not provide for the allocation of the parties’ liabilities in partitioning the co-owned property.

In the partition of co-owned property, Article 810 provides that the court shall order partition in kind when the co-owned property is susceptible to division into as many lots of nearly equal value as there are shares. Under Article 811, when the co-owned property is not susceptible to partition in kind, the court shall decree a partition by licitation and the proceeds shall be distributed to the co-owners in proportion to their shares. Property cannot be conveniently divided when a diminution of its value, or loss or inconvenience to one of its owners, would be the consequence of such division. Entrada Co. v. Unopened Succession, 38,800 (La.App.2d Cir.9/22/04), 882 So.2d 661; Cahill v. Kerins, 34,522 (La.App.2d Cir.4/4/01), 784 So.2d 685. When a thing is partitioned by licitation, a mortgage, lien or privilege that burdens the share of a co-owner attaches to his share of the proceeds of the sale. LSA-C.C. art. 815. When a partition is to be made by licitation, the sale shall be conducted at public auction. All counsel of record shall be given notice of the sale date. At any time prior to the sale, the parties may agree upon a nonjudicial partition. LSA-C.C.P. art. 4607.

19Here, the record shows that each party owns as separate property a one-half interest in two individual condominium units within a multi-unit development. Through application of the articles for partition of co-owned property, the defendant should have been recognized as an owner of a one-half interest in each condominium unit and he should have received an equal proportion of the property’s value. Thus, the trial court erred in awarding to plaintiff all ownership and all debt of both condominium units. Because the court failed to divide the thing held in indivisión into lots of equal value as required for a partition in kind, we shall reverse the court’s allocation of ownership of the condominium units to plaintiff.

We note that the parties did not specifically litigate the issue of whether the co-owned condo units are susceptible to equal division. However, the trial testimony indicated that given the type of property involved, there is no practical method of dividing the condo units without diminishing their value. Where the record reflects clearly that the property cannot be divided in kind, there is no necessity to require additional evidence to that effect. Cahill, supra. Consequently, based upon the evidence contained in the record, we remand this matter and direct the trial court to order a partition by licitation of the co-owned condominium units.

In addition, the trial court allocated to the parties the ownership of the movable property in their possession. Under Article 807, co-owners are entitled to a partition of co-owned property. Thus, because the parties are separate in property and the movable property was wholly owned by each party and not co-owned, the movables were not subject to the partition. Consequently, that part of the judgment allocating ownership of the movable hnproperty must be reversed.

Corporate Shares and Property of Corporation and LLCs

The defendant contends the trial court erred in awarding to plaintiff all shares of stock of KM, Inc., and the assets and debt of the corporation and the limited liability companies. Defendant argues that the court’s error in partitioning the co-owned property resulted in an unequal allocation of property between the parties.

A juridical person is an entity to which the law attributes personality, such as a corporation. The personality of a juridical person is distinct from that of its members. LSA-C.C. art. 24. The general rule is that a corporation is a distinct legal entity separate from the individuals who own interests in the corporation. Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164 (La.1991). A corporation has the power to buy and sell property, make contracts, incur debt, sue and be sued. LSA-R.S. 12:41(B); Succession of Mydland, 94-050.1 (La.App. 1st Cir.3/3/95), 653 So.2d 8.

Shares of a corporation are the units into which the shareholder’s rights to participate in the control of the corporation, in its profits or in the distribution of corporate assets, are divided. LSA-R.S. 12:1(S). A share of a corporation may broadly be defined as the interest or right which the owner, who is called the shareholder or stockholder, has in the management of the corporation, in its surplus profits and, upon dissolution, in all of its assets remaining after the payment of its debts. Succession of Quintero, 209 La. 279, 24 So.2d 589 (La.1945).

Although shareholders have certain rights as provided by law and in the corporation’s articles or by-laws, such rights do not entitle shareholders |nto any direct ownership interest in the property owned by the corporation. Succession of Mydland, supra. The property of the corporation is not the property of the individual shareholders. Nor does a shareholder have a pecuniary interest in the property owned by the corporation. Mydland, supra. The shareholder’s interest in the corporation does not equate to ownership of specific corporate assets. The sale of corporate shares is not a sale of its assets. Fina Oil and Chemical Co. v. Amoco Pro duction Co., 95-1877 (La.App. 1st Cir.5/10/96), 673 So.2d 668.

In the present case, the record shows that the parties are shareholders who own equal shares of KM, Inc. As shareholders, the parties fully own their shares and they are not co-owners of each individual share. Under Article 807, co-owners are entitled to a partition of co-owned property. Thus, because the parties are separate in property and are not co-owners of the shares of KM, Inc., the corporate shares cannot be subject to a partition. Consequently, the trial court erred in allocating to plaintiff all shares of stock of KM, Inc., in the partition proceeding.

In addition, as shareholders of KM, Inc., the parties do not have any ownership interest in the property owned by KM, Inc., including KM Group, LLC, and KM Real Estate, LLC. The record shows that the parties are not co-owners of any property owned by the corporation or the LLCs, which are separate legal entities capable of owning property. Without an ownership interest, the parties do not possess a right of action to demand partition of the property owned by the business entities. Thus, the court erred in allocating to plaintiff the ownership of all movable and immovable property owned by KM, Inc., KM Group, LLC, and KM Real Estate, LLC.

| iglf either of the parties seek to obtain ownership of the property owned by KM, Inc., or the LLCs, then the party would be required to dissolve the entities and have the assets liquidated. In a dissolution, a liquidator is appointed to close out the corporation’s affairs. LSA-R.S. 12:141. The liquidator has the authority to sue and be sued on behalf of the corporation and to sell the corporation’s assets. LSA-R.S. 12:145. A proceeding for involuntary dissolution may be instituted by a shareholder against a corporation. LSA-R.S. 12:143(B)(1).

At trial, the plaintiff asserted claims for recognition of shareholder loans that she made to KM, Inc., KM Group, LLC, and KM Real Estate, LLC, as reflected by a shareholder debt account established with each business entity. Plaintiffs claims regarding the shareholder debt involve the business entities’ assets and liabilities. As previously stated, the corporation and LLCs are not subject to the partition proceeding. In reaching this conclusion, we pretermit discussion of the assignment of error regarding prescription of plaintiffs claims concerning shareholder debt.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed. This matter is remanded and the district court is directed to order a partition by licitation of the parties’ co-owned condominium units. Costs of this appeal are assessed to the appellee, Melody Olson.

REVERSED AND REMANDED.


author: PETERS, J. GREMILLION, Judge,

text:
    Kenyon BUDWINE v. Offender Alton MARKS.
    No. 13-1238.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2014.

      Kenyon Budwine, Kinder, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|,The plaintiff, Kenyon Budwine, an inmate of the Allen Correctional Center, appeals the trial court’s dismissal of his tort action against the private corporation operating that prison as well as several of its employees. For the reasons that follow, we reverse the trial court judgment dismissing Mr. Budwine’s suit against the named defendants and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On September 5, 2013, Mr. Budwine filed a tort suit in the Thirty-Third Judicial District Court against GEO, Inc., the operator of the Men Correctional Center in Men Parish, Louisiana, several GEO employees, and Mon Marks, a fellow inmate. Mr. Budwine’s tort claim, arises from a physical attack on him by Mr. Marks during a September 4, 2012 recreation break in the prison yard. According to Mr. Budwine’s allegations in his petition, on that day, Mr. Marks was allowed by the GEO employees to enter the recreation area despite being restricted from participating in the recreation break due to a disciplinary matter. Mr. Budwine asserted in his petition that toward the end of the break while the inmates were returning to their cells, Mr. Marks attacked him with a piece of aluminum wire taken from the prison fencing. Mr. Bud-wine claims to have sustained cuts to his face and neck as a result of the attack. Mr. Budwine’s petition is silent concerning his compliance with any administrative remedies he might have had available to him.

The day after Mr. Budwine filed his suit, and before service was had on any of the defendants, the trial court issued a judgment dismissing Mr. Budwine’s claims against GEO and its employees based on its conclusion that Mr. Budwine 1 ¡Jailed to timely comply with the administrative remedies provided by the Correctional Administrative Remedy Procedure Act, La. r.s. l&im-im

On appeal, Mr. Budwine seeks reversal of the trial court’s judgment dismissing his claims against GEO and the employee defendants.

OPINION

The trial court based its decision to dismiss Mr. Budwine’s suit against GEO and its employees without allowing issue to be joined on La.R.S. 15:1172 and the judicial screening provisions of La.R.S. 15:1184(B). We find that the trial court erred in relying on these statutes to dismiss Mr. Bud-wine’s suit.

Louisiana Revised Statutes 15:1172(A) provides, in pertinent part, that:

Upon adoption of the administrative remedy procedure, in accordance with the Administrative Procedure Act, and the implementation of the procedure within the department or by the sheriff, this procedure shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action they may claim to have against ... the contractor operating a private prison facility or any of its employees[.]

With regard to the time limitations for filing a claim for an administrative remedy, La.R.S. 15:1172(B)(1) (emphasis added) provides that “[a]n offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.” The penalty for failure to timely initiate administrative remedies is found in La.R.S. 15:1172(C), which states:

If an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit | ^asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

Louisiana Revised Statutes 15:1177 provides a special form of judicial review for decisions related to non-delictual complaints rendered through the administrative process established in La.R.S. 15:1172. With regard to the judicial review of these complaints, La.R.S. 15:1177(A) provides that the inmate dissatisfied with an adverse decision involving a complaint against a contractor operating a private-prison facility “may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court or, if the offender is in the physical custody of the sheriff, in the district court having jurisdiction in the parish in which the sheriff is loeated[.]” Thereafter, La.R.S. 15:1177(A) sets forth the specific and exclusive steps that may be taken in the judicial-review process for non-delictual complaints.

Additionally, these non-delictual complaints are subject to a special initial judicial screening process pursuant to La.R.S. 15:1178 (emphasis added):

A. When a clerk of court receives a petition for judicial review filed under the provisions of R.S. 15:1177, the clerk shall transmit the petition to the appropriate division or official of the court prior to taking any action on the petition.
B. The court, as soon as practicable after receiving the petition, shall review the petition to determine if the petition states a cognizable claim or if the petition, on its face, is frivolous or malicious, or fails to state a cause of action, or seeks monetary damages from a defendant who is immune from liability for monetary damages.
C. If the court determines that the petition states a cognizable claim, the court shall return the petition to the clerk of court for service of process.
D. If the court determines that the petition, on its face, is frivolous, or fails to state a cause of action, or seeks monetary damages from a defendant who is immune from liability for monetary |4damages, the court may dismiss the petition, or any portion of the petition, without requiring the exhaustion of administrative remedies.

In fact, La.R.S. 15:1179 prohibits the clerk of court from effecting service of process of a petition filed under the provisions of La.R.S. 15:1177 “until the petition has been reviewed by the court and has been found to state a cognizable claim.”

However, La.R.S. 15:1177(0) makes it clear that the special form of judicial review for non-delictual complaints handled through the administrative process and the judicial screening process of La.R.S. 15:1178 does not apply to delictual complaints initiated through the administrative review process. Louisiana Revised Statutes 15:1177(0) (emphasis added) provides, in pertinent part, that “[tjhis Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.” Thus, instead of the step-by-step judicial-review procedure mandated by La.R.S. 15:1177(A) for non-delictual complaints first subject to the administrative-remedy procedure, delictual complaints are treated the same as any other civil action.

In Mr. Budwine’s case, the trial court did not review his petition under La.R.S. 15:1178. Instead, it reviewed the petition pursuant to the authority provided in La.R.S. 15:1188. While La.R.S. 15:1188 contains judicial screening language similar to that in La.R.S. 15:1178, it is not a part of the Correctional Administrative Remedy Procedure Act. Instead, it comprises a part of the Prison Litigation Reform Act, La.R.S. 15:1181-1191. Unlike the Correctional Administrative Remedy Procedure Act, the Prison Litigation Reform Act provides the authority for inmates to seek remedies with respect to prison conditions. RLa.R.S. 15:1182. Thus, we find that judicial review process of La.R.S. 15:1182 is not applicable to Mr. Budwine’s suit.

Having found that neither the judicial screening provisions of La.R.S. 15:1178 nor the judicial screening provisions of La.R.S. 15:1182 are applicable to Mr. Budwine’s suit and because, pursuant to the explicit terms of La.R.S. 15:1177(0, any inmate action seeking damages based on a delictual or tort action should be filed in the district court, as an original civil action and subject to the procedure applying in all civil actions, we find that the trial court erred in dismissing Mr. Budwine’s suit without allowing issue to be joined with the named defendants.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court dismissing GEO, Inc. and its employees from the suit filed by Kenyon Budwine and remand the matter to the trial court for further proceedings. We decline to assess costs at this time because Kenyon Budwine’s suit was dismissed before issue was joined with GEO, Inc. and its employees. Costs of this appeal are to be assessed by the trial court at the termination of this litigation.

REVERSED AND REMANDED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissenting.

|,I respectfully dissent from the majority’s decision and would affirm the trial court.

Mr. Budwine is an inmate at the Allen Correctional Center in Kinder, Louisiana. He alleged in his petition that he was attacked by another inmate, Alton Marks, on September 4, 2012. Mr. Budwine sought administrative relief by filing a request for same on January 23, 2013. His relief was denied by the Secretary of the Department of Public Safety and Corrections on March 11, 2013. Mr. Budwine filed suit on September 5, 2013, in the Thirty-Third Judicial District Court in which he named Marks and several employees of GEO, Inc., and GEO itself as defendants. Mr. Budwine attempted to file the matter in forma pauperis.

In accordance with La.R.S. 15:1188, the trial court reviewed Mr. Budwine’s petition. The trial court found that Mr. Bud-wine failed to allege that he followed the Correctional Administrative Remedy Procedure Act (CARP), La.R.S. 15:1171 et seq., and specifically, that he did not pursue administrative remedies within ninety days of the tort, as is required by La.R.S. 15:1172(B)(1). Further, the trial court found that Mr. Budwine’s petition failed to state a claim upon which relief 12could be granted as to his demands for punitive damages and injunctive relief. The trial court also denied the motion to allow Mr. Budwine to proceed in forma pauperis, because he had not used the correct form in his application. This appeal ensued.

In dismissing Mr. Budwine’s demands for injunctive relief and punitive damages, the trial court relied upon the Prison Litigation Reform Act, La.R.S. 15:1181, et seq. Section 1188 of the Prison Litigation Reform Act provides for judicial screening of all prisoner suits in no event before service on the defendants and to dismiss the petition or any portion thereof if the petition is frivolous, malicious, fails to state a cause of action, seeks money damages from an immune entity or person, or, redundantly, “fails to state a claim upon which relief can be granted.” Also before service can be initiated, a prisoner is required by the Act to comply with requirements if he is proceeding in forma pauperis. La.R.S. 15:1186.

The Louisiana Supreme Court in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, declared that CARP was unconstitutional as applied to tort claims. The Louisiana Constitution vests original jurisdiction of civil claims with the district court, and CARP impermissibly divests those courts of that jurisdiction. The court determined that this divestiture was effected by virtue of the fact that under CARP, the matter would be tried by the administrative agency, and the district court was then limited to determining whether the agency had manifestly erred. However, the court also stated, “The Legislature, of course, is free to enact procedures for initial submission of tort claims by prison inmates to an administrative | sagency for review, for example, of frivolous claims, as long as the action of the administrative agency does not constitute the exercise of original jurisdiction.” Id. at 720. The quoted language was footnoted, and that footnote endorsed the procedure adopted in the Prison Litigation Reform Act that requires that the district court review the petition and dismiss it or portions thereof, as noted above.

Following the" decision in Pope, the legislature responded by amending La.R.S. 15:1172(B) to address the supreme court’s decision. See 2002 La. Acts First Ex. Sess. No. 89, § 2. Pope indicates that the trial court did not err in dismissing the plaintiffs petition. The legislature can require that an inmate initiate his demand by seeking administrative review. Mr. Budwine initiated administrative review, but well after the ninety-day period prescribed by La.R.S. 15:1172(B)(1); thus, the trial court properly dismissed it as to GEO and its employees. The other contentions in Mr. Budwine’s appeal concerning whether he stated a cause of action against the GEO defendants and regarding whether he should be allowed to proceed in forma pauperis are rendered moot.

The judgment of the trial court in favor of all defendants except Alton Marks and against Appellant, Kenyon Budwine, should be affirmed.

      . With regard to the remaining claim against Mr. Marks, the trial court rejected Mr. Bud-wine’s application for forma pauperis status, finding that he had used an inappropriate form in his application. Mr. Budwine initially raised this issue on appeal, but subsequent to filing his motion for appeal, he was granted the right to proceed in forma pauperis. Therefore, this issue has been rendered moot and we will not consider it on appeal.

      . Mr. Baldwin couches his assignments of error in the form of "Questions and Issues Presented.”

      . GEO, Inc. manages the prison.

      . Mr. Budwine later filed the proper application to proceed in forma pauperis and his application was granted on September 23, 2013.


author: PAINTER, Judge.

text:
    2 S SIGN COMPANY, INC. v. Kevin KELLER and Sunset Solutions, LLC.
    No. 14-47.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Howell D. Jones, IV, Alexandria, LA, for Plaintiff-Appellee, 2 S Sign Company, Inc.
    B. Gene Taylor, Alexandria, LA, for Defendant-Appellant, Kevin Keller.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Kevin Keller (Keller), appeals the judgment rendered against him on the petition for open account filed by Plaintiff, 2 S Sign Company, Inc. (2 S Sign). Finding that Keller has no personal liability for any debt of Sunset Solutions, LLC (Sunset), that might be owed to Plaintiff, we reverse the trial court’s judgment against Keller and render judgment dismissing Plaintiffs suit against Keller in its entirety and with prejudice.

FACTS AND PROCEDURAL HISTORY

2 S Sign filed a petition on open account against Keller and Sunset seeking to recover $19,900.52 allegedly owed to it for custom advertising signs constructed by it. Sunset is a limited liability company owned by Johnathan S. Grimmett. Keller was employed by Sunset, and he was neither a member of nor an officer of the LLC. There was no written contract for the construction of the signs. Negotiations were handled by Keller on behalf of Sunset. It is undisputed that Keller had authority and consent to act on behalf of Sunset for the construction of these signs and that Keller had authority to write checks on Sunset’s account to pay Sunset’s bills.

Following a trial on the merits, the trial court rendered judgment in favor of 2 S Sign against Keller, individually, and Sunset in the full amount claimed by 2 S Sign with interest from the date of demand. Keller and Sunset were also cast with all costs of the proceedings. Sunset did not participate in the trial, and Grimmett appeared in proper person.

Keller now appeals that judgment alleging that the trial court erred in holding him personally liable for Sunset’s debt because there was no written or oral agreement by Keller to act as Sunset’s guarantor and because he neither exceeded his authority nor defrauded Sunset in connection with his dealings with 2 |2S Sign. Keller also asserts that the trial court erred in allowing 2 S Sign to proceed on a theory of fraud when such allegations were never pled with particularity. Finally, Keller argues that the trial court erred in awarding the full amount sued upon when 2 S Sign judicially confessed and even asked for an offset for funds received in settlement in the amount of $7,086.34. Sunset did not appeal the judgment, and 2 S Sign has not filed a brief in this court.

DISCUSSION

Neither the trial court’s written reasons for ruling nor its judgment discloses the theory upon which it found Keller personally responsible for the debt of Sunset to 2 S Sign.

The applicable standard of review in this case is the manifest error standard. In Brewer v. J.B. Hunt Transp., Inc., 09-1428, pp. 12-13 (La.3/16/10), 35 So.3d 230, 239-40, the Louisiana Supreme Court stated:

To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes’ the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.
Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id. at 883. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, a reviewing court may well find manifest error. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). Where such factors are not present, however, and a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. This is not to say, however, that | Tactual determinations cannot ever, or hardly ever, be upset. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Although deference to the factfinder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and the obligation to determine whether a trial court verdict is clearly wrong based on the evidence, or clearly without evidentiary support. Id.

In this case, based on the evidence and the testimony of the witnesses, we find that the trial court’s finding personal liability by Keller was clearly without evidentiary support. First, La.Civ.Code art. 3038 provides that “[sjuretyship must be express and in writing.” It is undisputed that there is no written contract for the construction of the signs and that there is no other writing wherein Keller purports to express an intent to be bound personally for the obligations of Sunset. Moreover, Michelle Stacy, the owner and operator of 2 S Sign, testified that she handles the day to day operations of 2 S Sign and that she was well aware that the contract at issue was with Sunset and that Keller never provided anything in writing to her or made any verbal representation that he guaranteed payment on behalf of Sunset. Her testimony further acknowledged that any checks she received from Keller were checks drawn on Sunset’s account not Keller’s personal account. In fact, her testimony was that she merely inferred that Keller would pay if Sunset did not. The trial court clearly ignored the law that “suretyship must be express and in writing” and the jurisprudence that “[sjuretyship cannot be established by inference.” Jimco, Inc. v. Gentilly Terrace Apartments, Inc., 230 So.2d 281, 284 (La.App. 4 Cir.1970).

We further find that if the trial court found Keller personally liable on a theory that Keller exceeded his authority as Sunset’s agent in his dealings with 2 S Sign, this was also manifestly erroneous. Louisiana Civil Code Article 3016 provides that “[a] mandatory who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the |4contract.” Again, 2 S Sign was fully aware that the contract at issue was with Sunset. Although Grimmett executed an affidavit stating that Keller began “to usurp” his authority and contract for jobs without his knowledge and consent, his testimony at trial clearly contradicted this. In fact, Grimmett’s trial testimony established that he gave Keller permission to enter into a contract with 2 S Sign and that Keller had authority to write checks to pay Sunset’s bills. Grimmett clearly testified that he did not recall executing the affidavit and that Keller “had the authority and control.”

2 S Sign never specifically pled fraud, but advanced an argument at trial that Keller defrauded Sunset. However, there was no evidence or testimony presented to prove fraud. Quite to the contrary, Grim-mett’s testimony clearly established that as far as he knew, Keller acted properly in contracting with 2 S Sign on behalf of Sunset. His testimony clearly established that Keller had the authority and consent of Sunset to contract with 2 S Sign. Therefore, if the trial court’s judgment was premised on a finding of fraud, this was clear error.

2 S Sign also advanced the theory that piercing the corporate veil was proper in this instance to find Keller personally liable for the debt at issue. However, ‘ “ ‘piercing the corporate veil applies to shareholder, directors, and officer, not employees.’ ” ’ Winn Fuel Service, Inc. v. Booth, 45,207, p. 7 (La.App. 2 Cir. 4/14/10), 34 So.3d 515, 519. There is no dispute that Keller was merely an employee of Sunset. Thus, if the trial court’s judgment finding Keller personally hable under the theory of piercing the corporate veil, it is clearly wrong.

Because we have found no basis for imposing personal liability for Sunset’s debt on Keller, we need not consider Keller’s arguments that the trial court erred in allowing 2 S Sign to proceed on the theory of fraud at trial and that the trial court |erred in failing to offset the judgment by the amount of settlement funds received by 2 S Sign.

DECREE

Finding absolutely no factual or eviden-tiary support for the trial court’s finding of personal liability on the part of Keller, we reverse the trial court’s judgment against Keller and render judgment dismissing Plaintiffs suit against Keller in its entirety and with prejudice. All costs of this appeal are assessed to Plaintiff-Appellee, 2 S Sign Company, Inc.

REVERSED AND RENDERED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Caleb A. BAXLEY.
    No. 14-48.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      James P. Lemoine, District Attorney, •Renee W. Dugas, Assistant District Attorney, Colfax, LA, for Appellee: State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: Caleb A. Baxley.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe defendant was convicted of illegal possession of stolen things valued $1,500.00 or more. Thereafter, the trial court sentenced the defendant to ten years at hard labor, ordered that the defendant pay restitution to the victim, and imposed various fees and costs. The defendant appeals. We affirm the defendant’s conviction, vacate his sentence, and remand for resentencing in conformity with this opinion.

Factual and Procedural Background

The defendant, Caleb A. Baxley, was charged with illegal possession of stolen things valued $1,500.00 or more, a violation of La.R.S. 14:69, and theft of a motor vehicle, a violation of La.R.S. 14:67.26, in connection with the theft of two motor vehicles in April of 2012. After a jury trial, the defendant was found not guilty of theft of a motor vehicle and guilty of illegal possession of stolen things valued $1,500.00 or more. For his illegal possession of stolen things conviction, the trial court sentenced the defendant to ten years at hard labor. The trial court also ordered the defendant to make restitution to the victim and allowed the defendant to reserve his right to a restitution hearing if he and his probation officer could not agree on the amount of restitution owed. Further, the trial court ordered that the defendant’s restitution be paid in equal installments during his parole. The trial court also ordered the defendant to pay court costs and $1,000.00 to the Public Defender’s Office.

The defendant appeals, asserting that the evidence was insufficient to support his conviction.

| ¡^Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After performing such a review, this court finds an error concerning the defendant’s sentence which requires vacating the defendant’s sentence and remanding for resentencing.

Our review of the record reveals that the trial court ordered the defendant to pay restitution to the victim, Barry Batiste. However, the trial court did not set the amount of restitution due, instead reserving the defendant’s right to a restitution hearing. Pursuant to La.Code Crim.P. art. 883.2(A), “the trial court shall order the defendant to provide restitution to the victim” where the trial court finds “an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution[.]” This court has previously determined that, where restitution is ordered as either a condition of probation or as part of the defendant’s. principal sentence, failure to state the amount of restitution results in an indeterminate, and therefore illegal, sentence. State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378. Thus, the defendant’s sentence must be vacated and remanded for resentencing. Id.

Accordingly, we vacate the defendant’s sentence and remand the matter for resen-tencing.

[ ^Sufficiency of the Evidence

The defendant’s sole assignment of error concerns the sufficiency of the evidence for his conviction for illegal possession of stolen things valued $1,500.00 or more.

In State v. Captville, 448 So.2d 676, 678 (La.1984) (footnote omitted), the supreme court discussed review of sufficiency of the evidence claims, stating that:

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard, which was adopted by the Legislature in enacting La.C.Cr.P. Art. 821 pertaining to postverdict motions for acquittal based on insufficiency of evidence, is that the appellate court must determine 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.

In so doing, the appellate court should only impinge upon the factfinder’s discretion to the extent necessary to guarantee fundamental due process protections and may not second guess the rational credibility determinations of the factfinder. State v. Carthan, 99-512 (La.App. 3 Cir. 12/8/99), 765 So.2d 357, writ denied, 00-0359 (La.1/12/01), 778 So.2d 547. Further, where the conviction is based on circumstantial evidence, “assuming every fact to be proved that the evidence tends to prove[,]” the evidence must exclude every “reasonable hypothesis of innocence[.]” State v. Leger, 05-0011, p. 91 (La.7/10/06), 936 So.2d 108, 170 (quoting La.R.S. 15:438), cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). However, the circumstantial evidence rule does not establish a stricter standard of review than the more general “reasonable doubt” formula. State v. Chism, 436 So.2d 464 (La.1983).

|/‘Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.” La.R.S. 14:69(A). Where the value of the thing is $1,500.00 or more, the defendant’s sentencing exposure is imprisonment for not more than ten years, with or without hard labor, a fine of not more than $3,000.00, or both. La.R.S. 14:69(B)(1). Thus, the State had to prove beyond a reasonable doubt: 1) that the defendant intentionally possessed, procured, received, or concealed something of value; 2) that the thing was stolen; and 3) that circumstances indicated that the defendant knew or had good reason to believe that the thing was stolen. See Carthan, 765 So.2d 357. The State need not prove that the defendant was in actual possession of the stolen item(s) in order to support a conviction but may prove that the item(s) were in the defendant’s constructive possession, i.e., within the defendant’s dominion or control. State v. Short, 00-866 (La.App. 5 Cir. 10/18/00), 769 So.2d 828 (citing State v. Skipper, 527 So.2d 1171 (La.App. 3 Cir.1988), writ denied, 559 So.2d 132 (La.1990)), writ denied, 00-3271 (La.8/24/01), 795 So.2d 336.

The evidence presented at the defendant’s trial consisted of evidence concerning the theft of a 2000 GMC 2500 truck, for which the defendant was found not guilty, and the defendant’s possession of a stolen 1999 GMC Suburban, for which the defendant was found guilty. The owner of the Suburban, Barry Batiste, described the Suburban as “tan-ish/gold-ish at the top and brownish/gray at the bottom” and as having temporary tags. He stated that it was in drivable | scondition when he purchased it and that he paid approximately $3,200.00 for the vehicle.

According to Mr. Batiste, one evening he parked the Suburban outside his home in Alexandria, and, when he came out the next morning, it was missing. He stated that he left his keys in the vehicle, which is how “they” were able to drive the vehicle. Mr. Batiste called the police to report the Suburban missing and testified that he informed the police of several items that were inside it. Mr. Batiste testified that he had not given anyone permission to use the vehicle and did not know who might have taken it. Further, Mr. Batiste testified that he did not know the defendant and had never seen him before the day of trial. Mr. Batiste stated that he had not given the defendant permission to use his vehicle. Mr. Batiste also noted that, when he got the vehicle back, its rearview mirror had been “snatched out[.]”

In a separate incident, a 2000 GMC 2500 truck was stolen in Dry Prong, Louisiana, which was the basis for the defendant’s theft of a motor vehicle charge. While investigating the theft of the truck, the police learned from William Jarvis, one of the defendant’s neighbors, that a possibly-stolen Suburban was parked in the defendant’s back yard. The Dry Prong' Chief of Police, Darrell Rushton, testified that, after learning that information, he called the Alexandria Police Department and confirmed that a Suburban matching the description given by Mr. Jarvis had been stolen.

There was testimony that Chief Rushton and Sergeant Joshua Daniels of the Grant Parish Sheriffs Office proceeded to the defendant’s house. However, the defendant and his girlfriend, Jasmine Matney, were not home. Sergeant Daniels testified that there was a tan Suburban parked behind the house, in clear view • of Rthe street. Chief Rushton testified'that the Suburban was within five feet of the back steps and that a temporary tag was lying on the front seat of the vehicle. According to the two officers, the Suburban’s Vehicle Identification Number matched that of the vehicle reported stolen in Alexandria. Chief Rushton testified that he contacted the owner of the vehicle, Mr. Batiste, and received a list of things that were supposed to be in the vehicle. According to Chief Rushton, he obtained a search warrant for the defendant’s residence after doing a preliminary search of the vehicle and not finding any of the items. Additionally, Sergeant Daniels testified that the vehicle’s radio had been removed.

Thereafter, Chief Rushton and Sergeant Daniels executed the search warrant. Both officers testified that they located in the defendant’s house several of the items which were listed as missing. Mr. Batiste testified that the missing items included his wallet, Social Security card, and insurance card. Chief Rushton testified that the officers located items on a coffee table in the residence that included items that had Mr. Batiste’s name on them, such as a Social Security card, insurance papers, and a medical card. Sergeant Daniels testified that, “in plain view” in the residence, the officers located a nylon bag and items including a Social Security card that were reported as missing. Although Chief Rushton testified that he contacted the State Police about obtaining additional evidence from the recovered vehicle, both Chief Rushton and Sergeant Daniels testified that they never received any fingerprint evidence.

In addition to this testimony, the defendant’s neighbors, William and Peggy Jarvis testified. Mr. Jarvis testified that he “thought there was a whole lot of stealing going on” and called the police because he was concerned that his son |7might have been involved. Mr. Jarvis stated that his son, Edward Otie Jarvis, was good friends with the defendant and that, although he did not have any reason to think that Otie was involved in the thefts, he was a “mischievous problem child.” After testifying about his knowledge of the events surrounding the theft of the 2000 GMC 2500 truck, Mr. Jarvis addressed the Suburban. Mr. Jarvis testified that a Suburban “showed up” behind the defendant’s house and sat there for a few days. He never looked at it that closely, but he believed that “it came out” that the truck belonged to the defendant’s boss or perhaps his live-in girlfriend’s boss.

Peggy Jarvis testified that Jasmine Mat-ney, the defendant’s live-in girlfriend, drove a blue van. She also testified that she asked the defendant about the Suburban, and he told her that “some boss-man” had loaned it to them and that Jasmine got it from “some man.” Mrs. Jarvis testified that she concluded that it had been stolen, because the defendant was not working. During Mrs. Jarvis’ testimony, the following colloquy occurred:

[The State]: The first conversation you had about the Suburban, you were told that it belonged to Jasmine’s boss?
[Mrs. Jarvis]: No. Caleb’s boss.
Q: Caleb’s boss. Was Caleb working? A: No. That’s how I knew.
Q: And then, at some point later on he admitted they had stolen it.
A: Yes.

Further, Chief Rushton testified that the Jarvises’ house and the defendant’s house were very close together and that they visited each other. Additionally, the | ^defendant elicited testimony from Chief Rushton that his initial investigation was based solely on information learned from the Jarvises.

The owner of stolen property’s testimony may “constitute ample evidence of the property’s value.” State v. Johnson, 04-1266, p. 14 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 955 (quoting State v. Davis, 569 So.2d 131 (La.App. 1 Cir.1990)). Thus, Mr. Batiste’s testimony was sufficient such that a rational juror could have found beyond a reasonable doubt that the 1999 Suburban was stolen and was worth in excess of $1,500.00.

With regard to the defendant’s possession of the Suburban and knowledge that it was stolen, in Skipper, 527 So.2d 1171, in connection with the theft of a truck, the defendant was convicted of illegal possession of stolen things. The police apprehended the defendant after responding to a silent alarm at a car dealership, and a wrecked vehicle was located in the ditch a short distance from the dealership. Id. There was testimony that the vehicle had been stolen sometime earlier and that a set of keys belonging to the vehicle and a wallet, which had contents that were identified as belonging to the vehicle’s authorized user, were found on the defendant when he was arrested. Id. This court found that the defendant’s proximity to the stolen vehicle and possession of the vehicle’s keys and property belonging to the vehicle’s user were sufficient to show that the defendant intentionally possessed the stolen vehicle. Id. Further, this court determined that the defendant’s possession of an insurance card issued to the owner of the vehicle and credit cards issued to its authorized user were sufficient to establish that the defendant knew that the vehicle was stolen. Id.

In Short, 769 So.2d 823, the defendant was convicted of several counts of illegal possession of stolen things after items which were looted from multiple Rhomes were found in an apartment which was leased to someone other than the defendant. Although the defendant claimed that he did not live in the apartment, the defendant was listed as an occupant in the apartment, the defendant admitted that the lessor had moved out and that he was living there by himself, and the defendant’s personal items were found in the apartment. The fifth circuit concluded that the state presented sufficient evidence to show that the defendant had been in constructive possession of the items found in his apartment. Id.

“[T]he fact that the defendant and the stolen property were both located at the same place at the same time does not indicate that the defendant knew the property was stolen or that the defendant procured, received or concealed the property.” State v. Wilson, 544 So.2d 1300, 1302 (La.App. 4 Cir.1989). Here, the only testimony as to how the Suburban came to be in the defendant’s back yard was that it “showed up” and had been there for a few days. Further, none of the witnesses testified that they had seen the defendant in possession of the Suburban.

However, in this matter, the State offered evidence that items from the stolen vehicle were in the defendant’s home and that the vehicle was in close proximity to the defendant’s residence. Several of the items which were in the defendant’s home were personal items that had the vehicle owner’s name on them, such as his Social Security card. See Skipper, 527 So.2d 1171. The State also offered the Jarvises’ testimony which indicated that the defendant was in possession of the Suburban. Notably, Mrs. Jarvis’ testimony was that the defendant offered more than one explanation about who had loaned him the Suburban and, ultimately, that the defendant admitted to her that the Suburban was stolen. It was the jury’s prerogative to accept or reject the witnesses’ testimony, and the appellate court may not second guess the rational credibility determinations of the factfinder. | inThus, given the evidence offered by the State, the testimony was sufficient for the jury to conclude that the defendant both intentionally possessed the Suburban and knew that it was stolen. Accordingly, we conclude that the evidence was sufficient to support the defendant’s conviction for illegal possession of stolen things valued $1,500.00 or more.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Caleb A. Baxley, for illegal possession of stolen things valued $1,500.00 or more is affirmed. The defendant’s sentence is vacated and remanded for resentencing.

CONVICTION AFFIRMED. SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . Pursuant to our review of the record, we also note that the trial court ordered that the defendant’s restitution be paid in monthly installments. While restitution may be ordered to be paid in monthly installments when ordered as a condition of probation, the same is not true where restitution is ordered as a part of the defendant’s principal sentence. See State v. West, 04-793 (La.App. 3 Cir. 11/10/04), 887 So.2d 657.

      . Otie Jarvis’ middle name is also spelled "Ode” and "Odie” in the record. We use the spelling contained in the trial transcript.