text:
    STATE of Louisiana, Appellee v. Corey Lynn GAY, Appellant.
    No. 48,832-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Louisiana Appellate Project, by Teresa Culpepper Carroll, Jonesboro, for Appellant.
    Charles R. Scott, District Attorney, Karelia Stewart, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before MOORE, LOLLEY and GARRETT, JJ.
   MOORE, J.

|]The defendant, Corey Lynn Gay, was convicted by a jury of distribution of methamphetamine, in violation of La. R.S. 40:967(A)(1). Subsequently, he was adjudicated a seventh-felony habitual offender and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals his conviction and sentence. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

Gay was charged by an amended bill of information with distribution of a Schedule II Controlled Dangerous Substance (“CDS”) in violation of La. R.S. 40:967(A)(1). The bill alleges the unlawful act occurred on June 24, 2011. The defendant waived arraignment and pled not guilty on September 12, 2011.

A jury trial began on July 10, 2012. In the course of the trial, the state produced evidence that on June 24, 2011, a task force of Shreveport Police Department (“SPD”) law officers commenced an undercover operation coordinated by Agent Keith Knox with the defendant as its target. Undercover SPD Officer Allen Alkire contacted the defendant and arranged a meeting with him for the purpose of buying methamphetamine. The defendant instructed Alkire to meet him at the Brook-shire’s grocery store parking lot on North Market Street in Shreveport. Agent Al-kire drove to the Brookshire’s to meet the defendant, while other officers (hereinafter called the “cover team”) watched from nearby. Alkire was carrying audio and visual surveillance equipment during his encounters with the defendant. Officer Knox listened to the interactions through a transmission from this ^equipment. Officer Alkire waited at the Brookshire’s parking lot 30 to 40 minutes before the defendant arrived in a compact sedan. He pulled up alongside Alkire’s vehicle, window to window. The defendant instructed Alkire to follow him to the Highland neighborhood where he would acquire the methamphetamine.

Agent Alkire followed the defendant to a Circle K store at the corner of Olive Street and Centenary Boulevard. The cover team followed secretly. Upon arrival, the defendant told Alkire to remain at the store while h went around the corner to get the methamphetamine. Alkire saw the defendant walking westbound on Olive Street and then lost sight of him.

A few minutes later, the defendant telephoned Alkire and told him to come pick him up on Highland Road where he would be walking. Alkire drove down Olive Street, turned left (southbound) on Highland, and saw the defendant walking northbound on the sidewalk. He drove past him and turned his vehicle around at the next intersection, driving back alongside the defendant and stopped. Gay got into the passenger side of the vehicle. Once in the vehicle, Gay gave the methamphetamine to Alkire. In exchange, Alkire gave Gay five twenty-dollar bills whose serial numbers had been recorded.

Alkire drove the vehicle to a tire shop near the intersection of Olive and Centenary where he let the defendant out of the vehicle. ' At this time Agent Knox was able to see the defendant clearly for the first time. After Gay left the vehicle, Alkire stated into the recording equipment, “That was Corey Gay.” During trial, Gay contested the admissibility of Alkire’s recorded statement identifying him, arguing that: (1) it was hearsay, (2) that [ait implied that he was targeted because the state suspected him of other bad acts, and (3) that it was more prejudicial than probative. The court decided that the statement would not be hearsay if introduced through Agent Alkire’s testimony, and that the jury would not infer from the statement that the state had investigated the defendant for other bad acts. The court allowed the statement to be presented to the jury.

After the defendant departed from Agent Alkire’s vehicle, the officers met at a predetermined place. Alkire gave Officer Knox the substance that he had bought from the defendant. The officers performed a field test upon the substance, and the test yielded a positive result for the presence of methamphetamine. Officer Knox labeled the bag and put it into a locked drop box at the police station. A property room attendant normally takes things from the drop box and brings them to the property room. At trial, Agent Alkire identified the plastic bag and crystalline substance introduced as the drugs he bought from the defendant and gave to Officer Knox. Knox identified the writing on the plastic bag as his own. The officers did not recover the marked money used by Agent Alkire to purchase the drugs, but Knox testified that he did not expect to get it back. The state played the audio-visual recording of the entire encounter at trial, and submitted the recording into evidence.

About two weeks after the undercover operation described above, Officer Knox created a six-person photographic lineup which he presented to Agent Alkire on July 8, 2011. Alkire identified the photograph of the defendant as the person from whom he met and purchased the drugs. The state later introduced the lineup document, with Alkire’s mark on the picture 14of the defendant, at trial. Officer Knox prepared an arrest warrant for the defendant on July 13, 2011. Both Knox and Alkire noted that the defendant’s physical appearance in court was different from his appearance on the day of the offense. He wore a “doo rag” and a hat during the crime, but no glasses. In court, he wore glasses but no hat or “doo rag.” Nonetheless, both officers identified the defendant as the person who committed the crime.

Bruce Stentz, a forensic chemist at the North Louisiana Crime Lab in Shreveport, tested the purchased chemical to determine its composition. Stentz first weighed the chemical, which he did while it was still in its small plastic bag. The weight of the substance and its container together was 1.62 grams. Stentz estimated in court that the bag probably weighed about a gram, so that the chemical within it probably only weighed about 0.6 grams. He agreed with defense counsel that this is about half of the weight of a small one-gram package of sugar. After measuring the weight, Stentz performed two color tests upon the chemical. One color test was a Cobalt thiocyanate test, or Scott’s Test, which detects cocaine. The other test was the Marquis Test, which detects methamphetamine and amphetamine. The first test yielded a negative result for cocaine, but the second gave a positive result for methamphetamine or amphetamine. Stentz stated at trial that the Scott’s Test and the Marquis Test were merely presumptive. Stentz next tested the substance with a gas chromatograph mass spectrometer. The spectrometer determined that the chemical was methamphetamine.

On July 11, 2012, the jury found the defendant guilty as charged of distribution of methamphetamine, a Schedule II CDS, in violation of La. R.S. |r,40:967(A)(l). The judge ordered that a presentence investigation report be submitted, but only for the purpose of ascertaining the past convictions of the defendant.

On August 8, 2012, the state filed an habitual offender bill of information which asserted that the defendant had seven pri- or felony convictions which could serve as a basis for the present adjudication, and that the defendant therefore deserved fourth-felony habitual offender status under La. R.S. 15:529.1. The state asserted prior convictions for (1) felony theft in 1993, (2) unauthorized use of a movable in 1993, (3) simple arson in 1995, (4) accessory after the fact/attempted simple robbery in 1998, (5) attempted carjacking in 2000, (6) possession with the intent to distribute a Schedule I CDS in 2006, and (7) possession of a Schedule II CDS in 2012.

Habitual offender hearings were held on April 22 and 29, 2013. The defense and the prosecution agreed in the first hearing that they would not apply the habitual offender adjudication to the seventh conviction (the 2012 conviction for possession of a Schedule II CDS) because that conviction occurred after the instant conviction.

The defendant also made two additional objections. First, the defendant argued that the fifth conviction (for attempted carjacking in 2000) should not be used for habitual offender purposes because of an irregularity arising from an alleged conflict of interest: the prosecutor for that conviction had served as the defendant’s lawyer for the third conviction — the 1995 conviction for simple arson. Second, the defendant argued that the transcript of the Boy-kin hearing for the sixth conviction (the 2006 conviction for possession of a Schedule I CDS) contained an insufficient Boy-kin | (¡admonition. According to defense counsel, in the 2006 hearing, the judge told the defendant: “[B]y pleading guilty to this charge you waive certain basic constitutional rights[.] They are the right to have a trial by a jury, the right to confront witnesses at that trial, the right not to be forced or compelled to testify or give evidence against yourself.” (Emphasis added.) The defendant contended that the Boykin colloquy was deficient because the court failed to inform him that he could confront the witnesses accusing or testifying against him, citing this court’s decision in State v. Russell, 46,426 (La.App. 2 Cir. 8/17/11), 78 So.3d 991. He argued that Russell requires that the judge tell defendants of their right to confront, not just any witnesses, but specifically those witnesses who were accusers.

The trial judge rejected these objections, finding that no conflict of interest existed in the fifth conviction, and that the Boykin colloquy satisfied Russell, supra, in the sixth conviction. The judge found the defendant to now be a seventh-felony habitual offender, and, in a May 6, 2013, hearing, sentenced him to the statutorily-required term of life in prison.

Defendant filed this appeal.

DISCUSSION

By his first assignment of error, the defendant alleges that the jury erred as a matter of law in convicting him of Distribution of CDS, Schedule II, Methamphetamine, because the evidence was insufficient to convict. The defendant makes two specific arguments for insufficiency. First, he argues that the state failed to prove the identity of the person who committed the lycrime. The undercover agent never saw the perpetrator until the day of the encounter with him, that the agent never recorded the perpetrator’s license plate number though he had the opportunity to do so, that the agent did not pick the defendant from a lineup until two weeks after the encounter, that the defendant looked different in court from how the offender looked on the day of the crime, and that the agent stated in the recording of the encounter that the perpetrator was tall with a big chest, whereas the defendant’s rap sheet stated that he was five feet and seven inches tall and that his weight was 167 pounds.

Secondly, the defendant argues that the state failed to prove that the substance Agent Alkire purchased was the same one which the agent gave to Officer Knox, which substance Knox left in the drop box, which an attendant took to the property room, which someone then took to the laboratory, and which the laboratory later tested and found to be methamphetamine.

The state argues that the undercover agent had sufficient contact with the defendant for him to be able to select the defendant from a lineup, and that identification by one witness is sufficient for a conviction. Regarding the chain of custody of the evidence, the state argued that the evidence which the state showed to the jury was sufficient for a finding that the evidence was an illegal drug.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. 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. 2 Cir. 1/14/09), 1 So.3d 833. 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. 2 Cir. 2/25/09), 3 So.3d 685.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that 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. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

|9In 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. 2 Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

Identiñcation

The likelihood of misidentification violates due process when the totality of the circumstances indicate that misiden-tification probably occurred. State v. Brown, 40,769 (La.App. 2 Cir. 03/08/06), 923 So.2d 976, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). When assessing the reliability of an identification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Kemp, 39,358 (La.App. 2 Cir. 3/11/05), 896 So.2d 349, 356, writ denied, 05-0937 (La.12/09/05), 916 So.2d 1052, citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Agent Alkire testified that he began his encounter with the defendant | lnin the grocery store parking lot, where he and the defendant talked with one another face-to-face from their cars for several minutes. Alkire followed the defendant to the Highland neighborhood and subsequently identified him walking on Highland Road, where he let him in the vehicle and purchased the drugs from him.

Officer Knox also saw the defendant while watching the encounter between the defendant and Agent Alkire. Knox testified that he was not able to see the defendant very well, but that he nonetheless saw him well enough to describe the difference between the his appearance on the date of the crime and his appearance in court. In addition to testimony from these two officers, the jurors themselves saw the audiovisual recording of the meeting in the grocery store parking lot and the meeting that occurred inside Alkire’s car. Although the recorded images of the defendant’s face pass quickly, they are clear.

We conclude Agent Alkire’s testimony alone identifying the defendant as the perpetrator was sufficient evidence upon which the jury could convict the defendant, especially considering Alkire’s close face-to-face contact with the defendant in the Brookshire’s parking lot and during the drug transaction. This identification was further verified by Agent Knox and the video of the offender. The jury had more than enough evidence on which to find that the defendant was the perpetrator of the crime. Therefore, the conviction rests upon sufficient evidence of identity.

Chain of custody

The law on the chain of custody of evidence is well settled. To admit ^demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes by a preponderance of the evidence that it is more probable than not that the object is relevant to the case. It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Booker, 46,256 (La.App. 2 Cir. 5/18/11), 70 So.3d 818, 823.

The defendant’s complaint that the state did not prove the chain of custody lacks merit. The state need not offer evidence of the chain of custody if, instead, it adduces testimony that the evidence is related to the case. At trial, Agent Alkire testified that the plastic bag containing the crystalline substance introduced in court was the drug which he bought from the defendant and gave to Officer Knox. Knox identified the writing on the plastic bag as his own. Bruce Stentz identified the substance as the one which he had tested at the crime lab. The state thus produced strong evidence that the substance shown at trial was the same as that which Agent Alkire bought in the transaction in question, and the defendant offers no grounds to doubt the state’s evidence other than the several steps in the chain of custody and the general possibility of mistake during storage and transfer. This argument is therefore without merit.

By his second assignment, the defendant contends that the trial court erred, as a matter of law, in allowing a portion of the video of the crime to be | ,2played to the jury where the undercover agent verbally identifies the perpetrator by name as the defendant. The defendant argues that Agent Alkire’s audio/visual recorded statement, “That was Corey Gay,” was inadmissible because it suggests that officers were investigating the defendant based upon evidence of prior crimes. He points out that he filed a motion in limine seeking notice whether the state planned to introduce evidence of past crimes, and the state responded that it did not. The defendant also complains that the trial court allowed Alkire’s statement that federal-state law enforcement partnerships are not uncommon “especially if a narcotics offender or distributor has a long criminal history.”

The state argues that Agent Alkire’s recorded identification of the defendant was not evidence of prior crimes. Even if the comment implied past crimes, argues the state, it is far more probative than prejudicial because it speaks directly to the identity of the perpetrator, and mis-identification was a central argument of the defense.

According to La. C.E. art. 404(B)(1):

Except as provided in Article 412 [which concerns sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

A trial error does not provide grounds for reversal of a conviction and sentence unless it affects substantial rights of the accused. La. C. Cr. P. art. 921; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. The test is whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), rehearing denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error. Johnson, supra; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

Defendant objects to Agent Alkire’s statement, “That was Corey Gay,” because the statement tends to show that the investigation specifically targeted him, and thus, he contends, it implied that he had committed other crimes prior to the instant offense. We find no merit in this contention. Obviously a criminal investigation of an individual is based upon information obtained by police of illegal acts which they, in turn, investigate. Criminal investigations naturally infer that criminal activity has occurred or is ongoing thereby prompting the investigation. Likewise, identification of a perpetrator during an investigation indicates the identity of the perpetrator, but in no way constitutes evidence of “prior bad acts” contemplated by the Code of Evidence. As the trial judge ruled, the jurors were unlikely to infer from Officer Alkire’s statement that the defendant had committed other crimes.

Additionally, while prior bad acts are not admissible to prove 114character or acts in conformity therewith, they are admissible for many other purposes, including identity, provided that the state gives notice when the defendant requests to be informed of such usage. La. C.E. 404(B)(1). The defendant did request notice of any plans by the state to expose past crimes. Although the state told him that it did not intend to introduce evidence of past crimes, the defendant nonetheless cannot have failed to know of the state’s intention to introduce the recording which contained this statement to which it objects. Therefore, assuming for the sake of argument that the statement in question constituted evidence of prior bad acts, the defendant had reasonable notice in advance of trial that the state would present this evidence of his identity.

The defendant also claims that it was error to allow admission of the statement by Alkire that federal and state law enforcement often worked together “especially if a narcotics offender or distributor has a long criminal history.” Defendant contends that this also was improper use of evidence of prior bad acts.

Our review of the transcript indicates that Agent Alkire, a Shreveport Police Officer who is currently assigned to the FBI Northwest Louisiana Violent Crime Force, made this statement at trial in response to a question on direct examination regarding under what circumstances and how often members of a federal task force might work with SPD or Caddo Sheriffs Office agents. Agent Alkire made the statement above as part of his general response that it really depended on the situation, but it was not uncommon for state and federal agents to work alongside one another.

|1sWe find no merit in the contention that this statement was introduced to show prior bad acts. Instead, the statement was made to explain how Shreveport Police, the Caddo Sheriffs Office and federal ATF agents may work together on the same criminal investigations. Furthermore, the defendant did not object to the statement by Alkire at trial, nor to a similar statement made by Knox during his testimony regarding federal and local agents working together.

This assignment is therefore without merit.

By his third assignment of error, the defendant alleges that the trial court erred, as a matter of law, in denying the defense’ motion to quash the habitual offender bill of information and finding defendant to be a seventh felony offender under the habitual offender law.

Defense counsel objected at the habitual offender hearing to inclusion , of the fifth conviction, guilty plea conviction in 2000 for attempted carjacking, on grounds that the prosecutor in that case, Laura Wingate, had been the defendant’s counsel in his 1995 conviction for simple arson, which presumably raised an issue regarding the validity of the conviction due to conflict of interest. Neither party could produce a transcript of the guilty plea. Defendant argued that prosecution by his former defense counselor was thus a procedural irregularity which needed a waiver from the defendant, and under State v. Shelton, 92-3070 (La.7/1/93), 621 So.2d 769, the absence of a transcript for the purpose of showing the exact nature of the guilty plea meant that the carjacking offense could not be used. The trial court rejected this argument and included this conviction as one of the defendant’s seven convictions on which the habitual offender adjudication 11fiwas based.

La. C. Cr. P. art. 680 states, in pertinent part, that a district attorney shall be re-cused from a case when he:

(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.

Rule 1.9 of the Louisiana Bar Association Rules of Professional Conduct (at La. R.S. Title 37, Ch. 4, art. XVI) reads:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

In State v. Crandell, 604 So.2d 123, 128 (La.App. 2 Cir.1992), this court stated:

In an action to recuse the district attorney, the defendant has the burden of showing, by a preponderance of the evidence, that the district attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Edwards, 420 So.2d 663 (La.1982). The mere fact that an assistant district attorney previously represented a defendant in the same criminal matter does not ipso facto require the district attorney and other members of his staff to be recused. State v. Brown, 274 So.2d 381 (La.1973); State v. Bell, 346 So.2d 1090 (La.1977). The law presumes that the attorney will respect a client’s confidences, and where counsel is not called upon to use against a former client any confidential knowledge gained through their former association, the accused suffers no prejudice. State v. Brazile, 231 La. 90, 90 So.2d 789 (1956); State v. Johnston, 546 So.2d 1231 (La.App. 1 Cir.1989); State v. Daughtery, 563 So.2d 1171 (La.App. 1 Cir.1990), writ denied, 569 So.2d 980 (La.1990).
The courts have consistently refused to recuse the district attorney and the rest of his staff when an assistant district attorney formerly represented the defendant. See State v. Brazile, supra; State v. Brown, supra; State v. Bell, supra; State v. Brown, 478 So.2d 600 (La.App. 2 Cir.1985); State v. Byrd, 491 So.2d 87 (La.App. 3 Cir.1986), writ denied, 506 So.2d 1219 (La.1987); State v. Johnston, supra; State v. Daughtery, supra. Also, see and compare State v. Edwards, supra; State v. West, 561 So.2d 808 (La.App. 2 Cir.1990), writ denied, 566 So.2d 983 (La.1990).

We note that none of the cases cited in Crandell involve a defendant’s past attorney later serving as prosecutor in a case against him. Rather, they all involve former defense counsel joining a district attorney staff, but a different assistant district attorney prosecuting the defendant.

In State v. Allen, 539 So.2d 1232 (La.1989), a lawyer represented a defendant in bankruptcy court, but later prosecuted the same defendant for arson with intent to defraud. Because of the bankruptcy, any insurance payments that the defendant received from the burned house likely would have gone to his bankruptcy trustee, so he would have gotten no profit from them. On appeal to the Louisiana Supreme Court, the defendant argued that the prosecutor had a conflict of interest because he could have testified at the criminal trial that the defendant’s bankruptcy prevented him from benefitting from the alleged arson. The Supreme Court found that the bankruptcy proceeding had a substantial relationship to the criminal proceeding and, | ^therefore, reversed and remanded for a new trial with a different prosecutor.

In State v. Shelton, 621 So.2d 769, 779 (La.1993), the Louisiana Supreme Court held that if the defendant denies the allegations of the bill of information, the burden is on the state to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the state meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.

The validity of the 2000 carjacking turns on whether the attorney, Ms. Wingate, had a personal interest in the cause which was in conflict with the fair and impartial administration of justice (as prohibited by La. C. Cr. P. art. 680), and second, whether she used information relating to the prior representation to the disadvantage of the former client (as prohibited by Rule of Professional Conduct 1.9). The defendant suggests no reason why the prosecutor had a personal interest in the carjacking case, nor does he suggest any private information from the previous simple arson case which she might have used to the defendant’s disadvantage in the later case.

Accordingly, the defendant has not shown a conflict of interest which would raise an issue regarding the 2000 carjacking conviction. He has shown no need for a perfect transcript of the conviction under Shelton. Therefore, we conclude that the trial court did not err when it included the fifth conviction in the habitual offender adjudication.

Boykin colloquy

Defendant also argues that the Boykin colloquy for the defendant’s 2006 conviction for possession of a Schedule I CDS was defective. The |19transcript for that guilty plea shows that the trial court informed him of his “right to confront witnesses at trial.” The defendant argues that the U.S. Constitution and this court’s ruling in State v. Russell, 46,426 (La.App. 2 Cir. 8/17/11), 73 So.3d 991, require Boy-kin colloquies to inform a defendant of a right to confront his accusers, rather than the more general “witnesses.”

The Constitution requires that a guilty plea be recorded showing that the defendant was informed of and waived his constitutional right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Markray, 45,129 (La.App. 2 Cir. 4/21/10), 35 So.3d 453. The trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980). In a felony case, a court shall not accept a plea of guilty without first addressing the defendant personally in open court and informing of, and determining that he understands, inter alia, the right to confront and cross-examine the witnesses against him. La. C. Cr. P. art. 556.1 A(3).

No specific articulation of the defendant’s rights is required or sacramental. State v. Smith, 375 So.2d 1328 (La. 1979). However, the core concept of the rights must be conveyed. For example, advising the defendant he has a “right to remain silent” is insufficient to describe [ 2pthe right against self-incrimination at trial, State v. Robicheaux, 412 So.2d 1313 (La.1982), and advising of a “right to trial” is insufficient to describe the right to a jury trial, State v. Santiago, 416 So.2d 524 (La.1982).

In State v. Russell, supra, a defendant claimed on appeal that at his Boykin colloquy the judge asked him, “Do you understand by pleading guilty you waive your right to confront them at trial?” This court observed that the rule set forth by the Louisiana Supreme Court that advice of a right to confront “the state’s witnesses” or “the D.A.’s witnesses” is adequate. However, we found that the trial court’s advice that Russell could “confront them at trial,” without any antecedent word to show the identity of “them,” was inadequate.

In State v. Anderson, 34,491 (La.App. 2 Cir. 4/4/01), 784 So.2d 749, this court held that the phrase “you waive your right to confront your witnesses and to cross examine them at trial” adequately complied with the mandates of Boykin and La. C. Cr. P. art. 556.1. We reasoned that the admonition satisfied Boykin because “[i]n common usage, the phrases confront and cross-examine always connote adversarial activities.” The Louisiana Supreme Court cited this rationale with approval in State v. Mendenhall, 2006-1407 (La.12/8/06), 944 So.2d 560.

The question is whether advice that the defendant was waiving his right to “confront witnesses at that trial” violated Boykin v. Alabama, supra. In State v. Anderson, supra, where an almost identical statement to the one which occurred in this case, this court held that the statement satisfied Boykin because the word “confront” always connotes adversarial activity. We therefore conclude, under the same rationale, that the advice which the trial court gave in this case satisfies Boy-kin.

| ⅞1 Therefore, this assignment is without merit.

By his fourth and final assignment of error, the defendant alleges that the district court erred, as a matter of law, in sentencing defendant to an excessive sentence of life imprisonment.

The defendant argues that the sentence of life imprisonment is grossly out of proportion to the severity of the crime. He sold an amount of methamphetamine equal to only half a pack of sugar. The statutory sentencing range for the instant offense is only 2 to 30 years, and all of his prior convictions resulted in a total of only 16½ years. The trial court rejected this argument made in defendant’s motion to reconsider.

The state argues that the defendant has shown that he cannot stop himself from criminal activity. Any lesser sentence would deprecate the seriousness of this crime and the past offenses, and this case is not an exception to the general rule. It contends that the defendant is not worthy of a lesser sentence.

Appellate review of sentences for exces-siveness is a two-step process, the first being an analysis of the district court’s compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. State v. Mims, 619 So.2d 1059 (1993); State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied, 2010-2682, 2010-2706 (La.4/25/11), 62 So.3d 85, 89.

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 infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and |a2punishment 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, 99-1758 (La.5/16/00), 769 So.2d 1158. Normally, sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2081 (La.2/15/08), 974 So.2d 665. Nevertheless, the sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7

Where there is a constitutional mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally required to impose. In addition, to rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758; State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied, 2003-3232 (La.6/4/04), 876 So.2d 73.

Where there is a constitutional mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally required to impose. In addition, to rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758; State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied, 2003-3232 (La.6/4/04), 876 So.2d 73.

The Louisiana Supreme Court has repeatedly held that mandatory life sentences for habitual offenders are generally not unconstitutional. Some habitual offenders are exceptions and deserve a downward departure. The defendant in this case contends that his life sentence is excessive and not tailored to him because the penalty for his current and prior offenses amounted to a total of 16½ years. We find no merit in this argument. This ^defendant has six previous felony convictions, one of which was a violent offense, and one of which was a drug offense. He also has another recent drug conviction not used toward his habitual offender status. While he has had several opportunities to stop his criminal activity, he has instead repeatedly returned to crime. Based on this record, he does not merit a downward departure. The statutorily-imposed life sentence is constitutional.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John Wayne FARLEY, Appellant.
    No. 48,839-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne Morelock Owen, Gregory Scott Brady, Amanda Sullivan, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

| , John Wayne Farley was convicted of the crime of fourth offense DWI, La. R.S. 14:98(E), a relative felony requiring a unanimous six-person jury verdict. He was convicted by a nonunanimous 12-per-son jury. We pretermit consideration of the improper jury composition and reverse on other grounds, as the state was allowed to improperly argue for a conviction under La. R.S. 14:98(A)(l)(b), predicated upon a partial, preliminary, and incomplete BAC reading.

FACTS

On May 29, 2010, Farley caused an automobile accident in Caddo Parish. Because of a strong odor of alcoholic impurities on his breath, he was given field sobriety tests, placed under arrest, and taken to the selective enforcement office of the Shreveport Police Department (“SPD”). He refused to complete a breath test.

Farley was tried and convicted of the crime of DWI, fourth offense.

DISCUSSION

1. Is a BAC of 0.08% or more a presumption of impairment, or is it an actual definition of the crime of DWI?

Statutory language exists to support the proposition that a BAC of 0.08% or more is merely presumptive evidence of the crime of DWI.

^Statutory language also exists to support the proposition that a BAC of 0.08% or more is an actual definition of the crime of DWI.

In short, the statutory language of Title 82 treats the 0.08% BAC as presumptive evidence of impairment. The language outlining the crime of DWI in Title 14 utilizes the 0.08% BAC as an actual definition of the crime. We accordingly conclude that the 0.08% or greater BAC referenced therein is definitional. Farley is charged with violating La. R.S. 14:98.

Farley’s right to a fair trial was prejudiced by the state’s improper argument that the illusory 0.17% BAC during the partial test triggered the 0.08% BAC presumption/definition under La. R.S. 14:98(A)(l)(b).

II. Was this issue preserved for appellate review?

The defendant filed a motion in limine, requesting the disallowance of evidence of the incomplete 0.17% BAC, as being unduly prejudicial.

III. Considering that the breath test was not completed, was it proper for the state to argue the 0.08% presumption/definition to the jury?

Evidence was allowed that the officer observed a partial and incomplete reading of 0.17% on the Intoxilyzer during the test, at which point Farley allegedly quit blowing into the machine. The prosecutor was | sallowed to improperly argue the BAC reading to the jury as proof of guilt under La. R.S. 14:98(A)(l)(b).

Consider these statements by the prosecutor:

• “And on the machine, the result that registered was .170. The legal limit for it to be considered driving while intoxicated is .08. It’s more than double the legal limit.”

• “Corporal McDonald saw what the result was, walked over to the camera and tried to zoom in, because he wanted it caught on tape, too, .170, more than twice the legal limit.”

• “So I’ll just reiterate, in Corporal McDonald’s experience, whenever somebody has all six clues and then submits to the Intoxilyzer, they blow at least .10 which is in excess of .08.”

The prosecutor also elicited this testimony from the officer who attempted to conduct the Intoxilyzer test:

“He didn’t blow long enough for the instrument to lock in the blood alcohol concentration, but I did observe his blood alcohol as he was blowing, as the instrument was measuring his blood alcohol, I did observe it go from zero, which it starts at zero, it went all the way from zero to a .170, which the state legal limit is .080.”

IV. Was use of the .170% BAC merely harmless error?

There was a great deal of evidence of Farley’s impairment. Even so, we cannot say that this BAC definitional argument (0.08% BAC and above) was not of critical importance in the jury’s deliberations. The abortive BAC reading may have been crucial to the guilty verdict.

|4V. The Jury Charge and Subsequent Jury Instruction

The trial court read the text of La. R.S. 14:98(A)(l)(a), (b), and (c) to the jury in its basic charge, and then again when the jury asked for another reading of the DWI statute. On neither occasion did the trial court give a limiting instruction to consider the 0.17% BAC only as to the general question of whether the defendant was under the influence of alcoholic beverages, ie., the BAC reading could at most be considered as evidence of general impairment under R.S. 14:98(A)(l)(a), but could not be extrapolated to prove that Farley’s BAC was at or above the trigger point of 0.08%, thus violating R.S. 14:98(A)(l)(b).

SUMMARY

Usage of the 0.17% partial reading to argue the violation of R.S. 14:98(A)(l)(b) was improper, and we cannot say that this egregious error did not taint the jury’s verdict. Arguing that a 0.17% BAC was over twice the legal limit was not merely “icing on the cake.” It was improper and unfair.

Since the jury was allowed to consider an ephemeral BAC reading to trigger a conviction because the BAC reading was at least 0.08%, we cannot find that the defendant received a fair trial and we accordingly reverse.

DECREE

Defendant’s conviction is REVERSED. The case is REMANDED.

      . The officer conducting the breath test briefly saw the machine register a reading of 0.17%. Since Farley did not blow long enough, the result did not "lock in.”

      . The previous convictions allegedly occurred on October 20, 2010; October 29, 2009; October 20, 2009; February 16, 2009; September 15, 2004; and October 2, 2003.

      . La. R.S. 32:662. Administering chemical tests; use of results as evidence
      A. The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:
      (1) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:

      (c) If the person had a blood alcohol concentration at that time of 0.08 percent or more by weight, it shall be presumed that the person was under the influence of alcoholic beverages.
      (Our emphasis.)

      . La. R.S. 14:98 Operating a vehicle while intoxicated
      A(l) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:

      (b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood[.]
      (Our emphasis.)

      . The prosecutor could have argued that Farley’s refusal to complete the test could be considered as evidence of guilt, but only on the question as to his operating a motor vehicle while under the influence of alcoholic beverages, as prohibited by La. R.S. 14:98(A)(l)(a). See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). We note that ethanol readings taken from blood drawn for medical reasons, not in conformity with state regulations, can be used for limited purposes in a criminal prosecution. See State v. Marullo, 2005-1921 (La.3/10/06), 923 So.2d 638.

      . The state points to the wealth of evidence showing impairment. This makes the state's improper argument even more unreasonable and unnecessary.

      . The jury should not have been allowed to consider a conviction predicated upon La. R.S. 14:98(A)(l)(b), as no proper evidence was adduced under this subsection. Indeed, the evidence presented should have resulted in a limited jury charge referencing only the crime of prosecution under La. R.S. 14:98(A)(l)(a). (Our emphasis.)


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Leonard O’Neal BANKS, Appellant.
    No. 48,867-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Paula Corley Marx, Louisiana Appellate Project, for Appellant.
    John McIntosh Lancaster, District Attorney, Penny Wise Douciere, Kenneth Douglas Wheeler, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GARRETT, JJ.
   GARRETT, J.

liThe defendant, Leonard O’Neal Banks, pled guilty to one count of second degree kidnapping pursuant to a plea agreement that included an agreed-upon sentencing cap of 20 years at hard labor. The trial court accepted the plea and later sentenced the defendant to 18 years at hard labor, without benefit of parole, probation, or suspension of sentence. This appeal followed. Seeking to withdraw, the defendant’s appellate counsel filed an An-ders/Benjamin brief stating that she could find no nonfrivolous issues to raise on appeal. For the following reasons, we grant the motion to withdraw and affirm the defendant’s conviction and sentence.

FACTS

The defendant and five codefendants were originally charged with aggravated kidnapping, aggravated second degree battery, and conspiracy to commit aggravated battery. On May 3, 2013, the defendant and one codefendant were charged in an amended bill of information with second degree kidnapping, first degree robbery, and aggravated second degree battery. On May 8, 2013, during jury selection, the defendant reached a plea agreement with the prosecution whereby he was allowed to plead guilty to one count of second degree kidnapping with a sentencing cap of 20 years. The charges of first degree robbery and aggravated second degree battery were dismissed along with several charges in other cases. It was agreed that the defendant would not testify in the trial of Joey Banks or any of the other 12defendants involved in this matter. The prosecution agreed not to charge the defendant as a habitual offender.

The record shows that in the late evening hours of February 26, 2012, into the early morning hours of February 27, 2012, the defendant, along with Joey Banks, Robert Banks, William Johnson and Anthony Johnson, came into contact with a group of men including Latrell Seals, Kevin Tally, and the victim in this matter, Shedrick Dorsey. A confrontation occurred. Joey Banks produced a gun and fired several shots at Seals, Tally and Dorsey. The defendant and Joey Banks caught Dorsey and inflicted bodily injury upon him. Blankets were draped over Dorsey’s head and he was forcibly placed in a vehicle by the defendant, Joey Banks, and William Johnson. Dorsey was taken to a residence in Rayville, Louisiana, where Otis Banks was present. It was thought that Dorsey had information about a fire that occurred at a house occupied by the girlfriend of Otis Banks. Dorsey was punched and made to eat dog food. Otis Banks heated up a clothing iron and tortured Dorsey by burning him on the arms, back and buttocks in an effort to get information regarding the fire. While Otis Banks burned Dorsey with the iron, the defendant, Joey Banks, Robert Banks, Anthony Johnson and William Johnson observed the torture. Dorsey was eventually placed back into the vehicle with his head covered, taken to another location, and released.

At the guilty plea hearing, the defendant stated that he was 30 years old and had gone to school through the ninth grade. Prior to the hearing, the defendant had not taken any drugs or alcohol that would affect his mind. The defendant stated that he understood the plea agreement. He was Uniformed that he was charged with the second degree kidnapping of Shedrick Dorsey and was read the elements of that offense. He was instructed that the penalty for second degree kidnapping is imprisonment at hard labor for not less than five nor more than 40 years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence. The defendant acknowledged that he had not been threatened or tricked into entering a plea to the charge. The defendant affirmed that he understood that by pleading guilty, he waived his right to trial by jury, his right of confrontation, and his right against self-incrimination. The defendant was informed and acknowledged that he understood that, by pleading guilty with an agreed-upon sentencing cap, he waived his right to appeal or to seek review of the length or severity of the ^sentence that would be imposed.

The defendant did not dispute the factual basis for the plea. The trial court accepted the plea, finding that it was entered freely and voluntarily with an understanding of the nature of the charge and the consequences of the plea, including an understanding of the plea agreement. The trial court ordered a presentence investigation (“PSI”) report.

The defendant appeared before the trial court for sentencing on June 11, 2018. As mitigating factors, the trial court noted that the 30-year-old defendant had a girlfriend and three children who depend upon him, he has been on disability since the age of five due to lead poisoning, he has a nerve disorder, and that although he was a principal to the offense, the defendant was not the person in this matter who actually burned the victim with the iron. The defendant expressed remorse for the offense. The trial court noted that the defendant had been in jail for the present offense for 14 months without any disciplinary problems. The trial court considered letters submitted on the defendant’s behalf and determined that his guilty plea in this case was a mitigating factor.

As aggravating factors, the trial court noted the defendant’s extensive criminal history. The defendant had a juvenile record and, as an adult, had previously pled guilty to simple battery and two counts of disturbing the peace. The defendant had also been arrested for two separate counts of theft of an automobile, as well as possession of stolen things, three counts of theft, resisting an officer, first degree robbery, criminal damage to property, distribution of Schedule II CDS and possession of Schedule II CDS with intent to distribute.

|fiThe defendant had a prior felony conviction resulting from a 2003 guilty plea to aggravated battery and two counts of aggravated robbery. He was sentenced to eight years on each offense, to be served concurrently. The defendant was eventually paroled and in October 2010, successfully completed parole. He had not been in any trouble since that time, until the present offense. The trial court considered that the defendant’s criminal history included several crimes of violence and crimes against the person.

The trial court noted the significant benefit the defendant received from the plea agreement as well as the facts that the crime manifested deliberate cruelty to the victim and was “one of the most horrible crimes I’ve seen with torture.” Actual violence was used in the commission of the offense, a dangerous weapon was used, and the offense resulted in significant permanent injury to the victim. The victim’s mother wrote a letter to the court stating that Dorsey will have physical and emotional scars for the remainder of his life due to this offense. The trial court sentenced the defendant in accordance with the agreed-upon cap and ordered that the defendant serve 18 years at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served.

On June 24, 2013, the defendant filed a pro se motion and order for appeal which was granted and the Louisiana Appellate Project was appointed to represent the defendant. In September 2013, the defendant filed in this court a pro se motion for production of the trial court record for the purpose of filing a pro se appeal. On September 24, 2013, this court transmitted the record to the defendant at his place of incarceration with | ^instructions to return the record to this court no later than October 24, 2013.

On October 15, 2013, the defendant’s appellate counsel filed a motion to withdraw in this matter, along with an Anders brief alleging that she had made a conscientious and thorough review of the trial court record and could find no nonfrivolous issues to raise or appeal and no rulings of the trial court which would arguably support the appeal. Anders v. State, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, supra.

The Anders brief outlined the procedural history of the case and the facts upon which the offense was based. The brief contained a “detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, supra. Defense counsel verified that she mailed copies of the motion to withdraw and the brief to the defendant in accordance with the Anders, Jyles, Mouton, and Benjamin cases. The defendant was informed of his right to file a pro se brief in this matter. The state filed a brief concurring that there were no nonfrivolous issues to raise on appeal.

On October 31, 2013, this court issued an order holding the motion to withdraw in abeyance and rescinding the previous deadline for filing a pro se brief. The defendant was informed that he could file a brief within 30 days of the date of the order. In spite of requesting and receiving a copy of the trial court record, the defendant has not filed a pro se brief in this matter.

DISCUSSION

|7This court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2. This provision applies to both agreed-upon sentences and sentencing ceilings, ranges, and caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Smith, 47,800 (La.App.2d Cir.2/27/13), 110 So.3d 628. At the guilty plea colloquy, the defendant was specifically informed that, by entering into a plea agreement with a sentencing cap, he would not be allowed to appeal the length or severity of the sentence. Even though at the sentencing hearing the defendant was informed of the time limitations for appeal, the trial court’s notice did not affect the voluntariness of the guilty plea and the defendant is now precluded from seeking review of the sentence imposed in conformity with the plea agreement. See State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243; State v. Pullig, 44,606 (La.App.2d Cir.9/23/09), 22 So.3d 1043.

CONCLUSION

For the reasons stated above, the motion to withdraw is granted and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . The defendant was charged as a codefen-dant with Joey Banks regarding the offenses in this matter. The defendant chose to plead guilty to second degree kidnapping and Joey Banks proceeded to trial by jury where he was convicted as charged. The appeal of Joey Banks is also before this court for consideration in State v. Banks, 48,868 (La.App.2d Cir.02/26/14), 134 So.3d 1235.

      . La. R.S. 14:44.1 provides:
      A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
      (1) Used as a shield or hostage;
      (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
      (3) Physically injured or sexually abused;
      (4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
      (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.

        li. For purposes of this Section, kidnapping is:
      (1) The forcible seizing and carrying of any person from one place to another; or
      (2) The enticing or persuading of any person to go from one place to another; or
      (3) The imprisoning or forcible secreting of any person.
      C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.


text:
    Tony Randall KING, Plaintiff-Appellant v. Tamra Hudson KING, Defendant-Appellee.
    No. 48,881-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Eugene P. Cicardo, Jr., Alexandria, for Plaintiff-Appellant.
    Crews Grady, PLLC, By: Pamela Net-terville Grady, for Defendant Appellee.
    Before BROWN, STEWART and GARRETT, JJ.

      . While Tony objects to Medicare expenses claimed by Tamra, he has cancer, medical. and dental insurance coverage through his employment.

   GARRETT, J.

_JjThe plaintiff, Tony Randall King (“Tony”), appeals from a trial court judgment ordering him to pay the defendant, Tamra Hudson King (“Tamra”), final periodic spousal support in the amount of $500 per month. For the following reasons, we amend in part, and as amended, affirm the trial court judgment.

FACTS

The parties were married on August 5, 2009, and were in their late 40s. Both parties had been married previously and had children from prior marriages. They worked for a company called Ergon when they married. Tamra contended that Tony encouraged her to resign when they bought a house next to Tony’s father in Gilbert, Louisiana, and moved there.

Tony was employed as a chief engineer on a riverboat on the Mississippi River. His schedule required him to work on the boat for 30 days and then be home for 15 days. Tamra complained that Tony was away from home too much and urged him to find work closer to home. Tony refused because his job paid well and had good benefits.

In late 2010, Tamra, unfortunately, was diagnosed with rectal cancer. Her treatment included weekly chemotherapy and radiation treatments five days per | ¡week. Many complications arose. She eventually underwent numerous surgeries. She currently suffers from bowel incontinence which makes it impossible to work outside the home. She hoped in the future to have additional surgery to correct the bowel problem, but her doctor advised she had not healed properly for the surgery at the time of the hearing.

Tony’s sister, Patsy King, went with Tamra to some of her treatments. According to Ms. King, Tamra said that she needed a “rent-a-husband” because Tony was gone so much and Tamra was in contact with a former boyfriend, “Bill,” who had offered to take her to some of her medical appointments. When the comments about Bill were relayed to Tony, he confronted Tamra and accused her of having an affair. Tony claims Tamra admitted visiting Bill while Tony was away. Tamra maintained that she had remained friends with Bill, who was also a friend of her family, but was not having an affair.

Tamra claimed that in late March 2011, Tony confronted her about his |..¡allegations regarding Bill. At the same time, he also presented her with an affidavit he wanted her to sign in order to obtain an immediate divorce. The affidavit stated that Tamra was the defendant in the “foregoing Rule for Divorce,” that she had been furnished with a copy of the rule and waived formal citation, service of process, all legal delays, notice of trial, and appearance at trial. The affidavit stated that Tamra agreed that a judgment on the rule could be entered against her on the day of the hearing on the rule and that she and Tony had not lived together since August 12, 2010. She refused to sign the affidavit because it was untrue. In addition to being untruthful, the affidavit was particularly hurtful because the date in the document, August 12, was Tamra’s birthday. Tony denied giving her the affidavit. However, Tamra produced the document at trial and it was introduced into evidence. She also contended that Tony took her debit card and checks and transferred money out of a checking account, leaving her without any means of support. Tamra also asserted that Tony disconnected the television service from the exterior of their house and removed the AirCard out of the computer, denying her Internet access. According to Tamra, Tony’s accusations, actions and conduct were making it impossible for her to remain at the family home.

After the confrontation, Tony left and only returned home late at night. On |4March 28, Tamra drove herself to a doctor’s appointment. After she returned, her children helped her move some of her things out of the house. She went to Vicksburg, Mississippi, with her children. When Tony went home the next morning, he discovered that Tamra had moved out. She never returned to live at the house and he never asked her to return. Tamra had to live with relatives for a while and later moved into a trailer in Vicksburg.

On May 12, 2011, Tony filed for a divorce under La. C.C. art. 102. Tamra filed an answer and reconventional demand asking that Tony maintain her health, dental, and prescription coverage through his employment. She also sought interim and final periodic spousal support. The parties entered into a stipulated judgment whereby Tony was to pay Tamra interim spousal support in the amount of $1,000 per month. This amount was later reduced to $750 per month and Tony was ordered to pay an additional $250 a month to satisfy an ar-rearage of $3,000. In March 2013, Tony was found to be in arrears in the amount of $10,100. He was ordered to pay $750 in interim spousal support, in addition to $500 per month to decrease the arrearage. An income assignment order was issued to Tony’s employer. Tony was also found in contempt of court for failure to pay the support judgment.

In December 2012, Tony terminated Tamra’s health insurance coverage. He |sclaimed he did not intend to terminate her coverage. However, as a result, Tamra incurred some uncovered medical expenses and other treatment was cancelled or postponed due to the lapse in insurance coverage. Tamra undertook steps to qualify for Social Security disability benefits and Medicare. At some point, Tony filed for bankruptcy.

The parties were eventually divorced on February 17, 2013. On April 1, 2013, the trial court held a hearing on the issues of fault and entitlement to final periodic spousal support. The trial court found that Tamra was not at legal fault in the breakup of the marriage and awarded her final periodic spousal support in the amount of $500 per month, to be collected through an income assignment order. In lengthy and well-reasoned oral reasons for its decision, the trial court stated that, in making an award of final spousal support, when a spouse has been free from fault prior to the filing of the proceeding to terminate the marriage and is in need of support, the court may allow that spouse, out of the income and means of the other spouse, final periodic spousal support which shall not exceed one-third of the net income of the obligor’s income. The trial court found that Tony became aloof after Tamra’s cancer diagnosis; accused her of having an affair; presented Tamra with an affidavit to obtain a divorce; cut off the television service; and took steps to remove her from a checking account, ATM card, and safe deposit box. The trial court | finoted that it was required to make a credibility determination between the testimony of Tony and Tamra, as their testimony differed in many areas. The trial court stated it found Tamra to be credible because of the divorce affidavit she produced in court corroborating her version of what occurred. According to the trial court, the presentation of the untrue affidavit to obtain a divorce also demonstrated that Tony had decided to terminate the marriage prior to March 28, 2011. Tony’s actions made it impossible for Tamra to continue to live in the matrimonial domicile. The trial court found that Tamra left with lawful cause and was not at fault in the breakup of the marriage.

In setting the amount of the final periodic spousal support, the trial court considered the factors set forth in La. C.C. art. 112. The trial court determined that Tamra’s expenses exceeded her income. The trial court determined that Tamra’s monthly income consisted of $1,263, the amount of her Social Security disability check. The trial court found that Tony made a gross salary of $70,000 per year and even after bankruptcy payments, he had sufficient disposable income from which he could pay final spousal support. The trial court noted that Tony had “tremendous expenses.” The trial court considered the age of the parties, the short duration of the marriage, and the fact that both have health concerns. The court terminated the interim spousal support and ordered Tony to pay Tamra $500 per 17month in final periodic spousal support beginning on April 1, 2013, as well as $500 per month until his arrearage is satisfied. The court stated that the spousal support award would be for an indefinite period for now, but noted that the court would consider a motion to reduce or terminate the award in the event that Tamra is able to return to work. The judgment was signed on May 21, 2013.

On appeal, Tony argues that the trial court erred in finding that Tamra was free from fault in the dissolution of the marriage; in finding that she was in necessitous circumstances, or alternatively in making an excessive award of $500 per month; and in ordering Tony to pay an amount which is more than one-third of his net income.

FREEDOM FROM FAULT

Tony argues that Tamra was not free from fault in the termination of the marriage. Tony claims that when he confronted Tamra regarding an alleged affair, she left without lawful cause, cut off the electricity to the house, withdrew money from a joint bank account, and changed his cell phone plan, causing him to incur a large cell phone bill. Tony contends that Tamra abandoned him and did not have lawful cause to leave. This argument is without merit.

Legal Principles

IsLa. C.C. art. Ill provides that, in a proceeding for divorce or thereafter, the court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.

Fault is a threshold issue in a claim for spousal support. Hunter v. Hunter, 44,703 (La.App.2d Cir.9/30/09), 21 So.3d 1032. A spouse seeking final periodic spousal support must be without fault and the burden of proof is upon the claimant. Adkins v. Adkins, 42,076 (La.App.2d Cir.4/11/07), 954 So.2d 920. Since the statutory law no longer specifies the type of fault which would constitute grounds to deny final periodic spousal support, legal fault must be determined according to the prior jurisprudential criteria. See Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359; Hunter v. Hunter, supra.

The word “fault” contemplates conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties and responsibilities. A spouse is not deprived of spousal support after divorce simply because he or she was not totally blameless in the marital discord. Hunter v. Hunter, supra. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Hunter v. Hunter, supra. Legal fault includes, but is not limited to, habitual intemperance or excesses, cruel treatment or outrages and abandonment. Hunter v. Hunter, supra; Roan v. Roan, 38,383 (La.App.2d Cir.4/14/04), 870 So.2d 626. See also Martin v. Martin, 45,007 (La.App.2d Cir.3/3/10), 32 So.3d 319; Jenkins v. Jenkins, 38,873 (La.App.2d Cir.9/22/04), 882 So.2d 705. Mere bickering and fussing do not constitute cruel treatment for purposes of denying alimony. Hunter v. Hunter, supra.

The necessary elements to prove abandonment are that the party has withdrawn from the common dwelling, without lawful cause, and has constantly refused to return to live with the other. See Adkins v. Adkins, supra; Hutson v. Hutson, 39,901 (La.App.2d Cir.8/9/05), 908 So.2d 1231. Lawful cause which justifies the withdrawal from the common dwelling has been held by this court to be that which is substantially equivalent to a cause giving the withdrawing spouse grounds for a separation under former La. C.C. art. 138. Adkins v. Adkins, supra; Skannal v. Skannal, 631 So.2d 558 (La.App. 2d Cir.1994), writ denied, 637 So.2d 1067 (La.1994). A continued pattern of mental harassment, nagging, and griping by one spouse directed at the other can constitute cruel treatment. Mere friction or dissatisfaction in the relationship or incompatibility between the spouses, however intense, is not enough to constitute cruel treatment or lawful cause for abandonment. Thus, where one spouse unilaterally decides to leave the matrimonial domicile, and subsequently refuses to return, the separation is either for lawful cause or it is abandonment. Adkins v. Adkins, supra. In proving a constant refusal to return to live with the other spouse, the abandoned spouse must show that he or she desired the other spouse’s return. See Von Beckman v. Von Beckman, 386 So.2d 910 (La.1980); Adkins v. Adkins, supra; Hutson v. Hutson, supra; Ashworth v. Ashworth, 2011-1270 (La.App. 3d Cir.3/7/12), 86 So.3d 134.

Domestic relations issues such as the determination of entitlement to spousal support largely turn on evaluations of witness credibility. Jones v. Jones, 38,790 (La.App.2d Cir.6/25/04), 877 So.2d 1061. The fact finder has the discretion to accept or reject, in whole or in part, the testimony of any witness. Hunter v. Hunter, supra. The trial court has vast discretion in matters regarding determination of fault for purposes of determining entitlement to final periodic support. The trial judge’s finding of fact on the issue of fault will not be disturbed unless it is manifestly erroneous or clearly wrong. Jones v. Jones, supra; Carr v. Carr, 33,167 (La.App.2d Cir.4/5/00), 756 So.2d 639; Hunter v. Hunter, supra.

Discussion

Tony argues that the trial court erred in finding that Tamra had lawful cause to leave the matrimonial domicile. He claims her abandonment constituted fault which precludes the award of final periodic spousal support.

Tony testified that Tamra frequently requested that he quit his job to be at home more, but he admitted that these discussions were “normal, everyday little comments and stuff.” Tony also related an earlier incident where Tamra had allegedly left the matrimonial domicile. Tony contended that at one point, while he was at home, Tamra went to Vicksburg, Mississippi, to visit family and look for a job. According to Tamra, she was not looking for a job, but had gone to Vicksburg to take her mother to a medical appointment. After a few days, Tamra returned to the family home. Tony said that Tamra never treated him cruelly during the marriage. He also stated at one point that he had no reason to suspect any infidelity.

| ^Tony stated that he did not know if Tamra was involved with Bill. He testified that prior to their confrontation regarding his suspicion that Tamra was having an affair with Bill, the parties hardly ever argued and he “thought everything was good.” During the confrontation over his suspicions about Bill, Tony told Tamra “if she’s going to be running back and forth to Bill, she just needed to be moving.” Tony claimed that, not only did Tamra leave the marital domicile and take furniture and household items with her, she shut off the electricity to the house, withdrew an income tax refund from the bank, and changed his cell phone plan causing him to incur a bill of $1,500. He also accused Tamra of forging his name to a form to change the beneficiary of his life insurance policy from his daughter to herself. Tony acknowledged that after his separation from Tamra, one of his ex-wives, Debra, moved into the matrimonial domicile. At the time of the hearing, Tony was staying at the residence of another ex-wife, Jeannine.

Tamra claimed that when she was diagnosed with cancer, she sent Tony a text message. Shortly after her diagnosis, Tamra asked Tony to return home to be with her during her cancer treatment. According to Tamra, after this request, Tony did not contact her for two weeks, even though she claimed that he contacted other members of his family. In February 2011, while Tony was at home, Tamra became 11svery ill from her cancer treatment and was hospitalized for several days. Tamra claimed that Tony did not spend much time with her at the hospital.

Regarding Bill, Tamra stated that he was a family friend whom she had dated briefly prior to her marriage to Tony. She said she was no longer seeing Bill. After her cancer diagnosis, she acknowledged that she talked to Bill on the telephone about once a week, as he was concerned about her health. Tamra pointed out that Tony accused her of having an affair with Bill during the time she was undergoing chemotherapy and radiation treatment for cancer. Tamra testified that she thought Tony wanted to end the marriage because of her illness.

According to Tamra, Tony confronted her regarding his suspicions about Bill on Friday, March 25, 2011. She said Tony had the divorce affidavit with him at that time. They discussed his intention to eliminate her access to a bank account and he gave her $60. Tamra stated that she told Tony she was going to the bank to get her things out of their safe deposit box. She claimed that he wanted to take her to the bank to make sure she did not get any money out of the checking account. Tamra testified that while she was at the bank, she asked a bank employee if her name had been removed from their joint checking account. The employee told her it had not, but stated Tony was working on it. According to Tamra, Tony transferred the money in the account to an account that was only in his name.

| uAfter the confrontation, Tony left the residence during the day. On Monday, March 28, 2011, Tamra stated that she was preparing to go to a doctor’s appointment when she noticed that Tony’s bags were gone. When she returned from her appointment, she discovered that the television service had been disconnected and the AirCard was gone from the computer, eliminating her Internet access. She claimed that the debit card and checks from a bank account had been taken out of her purse. Tony denied these claims. Tamra testified that Tony’s actions made it impossible to remain at the matrimonial domicile. After she left, he never asked her to return, a fact that Tony acknowledged.

Tamra testified that the electricity was in her name and she shut down the account after she left. She denied changing Tony’s cell phone plan. Documentation concerning the cell phone bill and any alleged changes to Tony’s cell phone plan was discussed at the hearing but was not introduced into evidence. Tamra also denied changing the beneficiary on Tony’s life insurance policy. The document was executed on February 21, 2011, when Tony was at home. Other than Tony’s self-serving testimony, no proof of this accusation was presented at trial. When the income tax refund was deposited in April 2011, Tamra was able to transfer the funds to a credit union account and she withdrew a portion of the funds to have money to live on. Tamra stated that from March 2011 until July |152011, when she received her first interim spousal support payment, the income tax refund was the only money she had to live on.

In this matter, there is no dispute that Tamra withdrew from the common dwelling. The trial court found that she had lawful cause to leave. As noted above, the trial court has immense discretion in matters regarding the determination of fault for purposes of determining entitlement to final periodic spousal support as well as discretion to accept or reject, in whole or in part, the testimony of any witness. The trial court in this matter made credibility determinations regarding the testimony of Tony and Tamra and found Tamra to be credible. We do not find that the trial court’s credibility determinations or findings of fact are manifestly erroneous, clearly wrong, or an abuse of the discretion afforded the trial court in these matters. The facts show that Tony was not very supportive of Tamra following her cancer diagnosis. He did not communicate with her. Tony never proved that an adulterous relationship existed. The false affidavit shows that Tony had taken steps to attempt to end the marriage. He also took action to eliminate her access to a bank account, television service, and Internet service at the matrimonial domicile. All these facts made their living together insupportable and all occurred while Tamra was undergoing difficult medical treatment. We observe that La. C.C. art. 98 provides that married persons owe each other the duties of fidelity, support, 11fiand assistance. While the parties were married, Tony’s conduct was violative of the duties imposed by this article.

The record fully supports the trial court’s finding that Tony’s conduct and treatment of Tamra gave her lawful cause to leave. Although the trial court found that Tamra constantly refused to return, it did not actually consider the legal requirements of the third element of abandonment, that the party has constantly refused to return to live with the other. As set forth above, a necessary element of proof for a claim of abandonment is that the abandoned spouse desired the other spouse’s return. After Tamra left on March 28, 2011, Tony acknowledged that he never requested that she return.

Tony’s actions regarding Tamra, coupled with his desire that Tamra leave and his failure to show that he desired her return, demonstrate that Tamra had lawful cause to leave, precluding a finding that she abandoned Tony. See Von Bechman v. Von Bechman, supra; Hutson v. Hutson, supra. Accordingly, we affirm that portion of the trial court judgment finding Tamra to be free from fault.

NECESSITOUS CIRCUMSTANCES AND EXCESSIVE AWARD

Tony argues that the trial court erred in finding that Tamra is in necessitous circumstances, or in the alternative, that an award of $500 per month was 117excessive. We find that Tamra proved her need for an award of permanent periodic spousal support. However, the trial court erred in making an excessive award.

Legal Principles

In determining final periodic spousal support, La. C.C. art. 112 provides:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C. The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

11SA spouse may be awarded final periodic support when he or she has not been at fault and is need of support, based on the needs of that party and the ability of the other party to pay. A claimant spouse does not need to prove necessitous circumstances. Anderson v. Anderson, 48,027 (La.App.2d Cir.5/15/13), 117 So.3d 208. Final periodic spousal support, formerly known as permanent alimony, is limited to an amount sufficient for maintenance as opposed to continuing an accustomed style of living. The court shall consider all relevant factors in determining the amount and duration of final support. La. C.C. art. 112; Anderson v. Anderson, supra.

Discussion

Tony contends that for a spouse to receive final periodic spousal support, he or she must be in need and the award must be limited to maintenance as opposed to maintaining an accustomed style of living. He argues that Tamra receives $1,894 per month, an amount which includes $681 in Social Security benefits Tamra’s daughter received, in addition to the $1,263 that Tamra receives in Social Security disability benefits. Tony contends that the trial court erred in excluding from Tamra’s income the $631 paid monthly to her daughter because that amount did not terminate until May 1, 2013, one month after the hearing. Tony also urges that the trial court should not have considered Tamra’s television and Internet expenses | ^because these are not necessary expenses. He also asserts that the trial court should not have considered Tamra’s future expenses for Medicare and an amount for miscellaneous expenses as these would not arise until a month after the court hearing.

The record shows that Tamra established at the hearing that her daughter’s Social Security benefits were terminating in early May 2013, since her daughter was turning 18. Also, Tamra’s Medicare coverage would begin on May 1, 2013, and she would be required to pay $99 per month for Medicare “Part B” coverage and $50 to $100 per month for a supplement for prescription coverage. Tamra testified that all these events would definitely occur one month after the hearing. The trial court accepted her testimony. These factors were not speculative and the trial court did not abuse its discretion in determining that Tamra’s monthly income would only consist of the $1,263 in Social Security disability benefits, and that she would be in-eurring expenses for Medicare and for a prescription supplement. The trial court concluded that Tamra’s expenses for Medicare and the prescription supplement would cost between $150 and $200 per month. These are appropriate amounts.-

|2nWe also find that the trial court did not err in considering Tamra’s Internet and television services as necessary expenses under the circumstances of this case. As stated in Anderson v. Anderson, supra, La. C.C. art. 112 no longer requires proof of necessitous circumstances, but only proof of need. The operative question is whether the trial court abused its discretion in finding need. Anderson v. Anderson, supra. See also Patton v. Patton, 37,401, 37,402 (La.App.2d Cir.9/24/03), 856 So.2d 56. In Anderson, the spouse claiming that television and Internet expenses were necessary was suffering from anxiety and depression. This court agreed with the claimant spouse even though she was able to work outside the home. In this case, Tamra is seriously ill and not able to leave her house often. She testified that she considered Internet and television services to be necessary expenses. Under these circumstances, we find that the trial court did not err in considering these expenses as needs.

Tony next argues that the trial court erred in allowing Tamra $100 in miscellaneous expenses because this item was speculative. To the contrary, Tamra testified that this item was included in her list of expenses to cover vehicle maintenance. Transportation expenses are considered one of the basic necessities of life. See Jones v. Jones, supra.

| ¾1 Based upon this record, Tamra has a monthly income of $1,263 and allowable monthly expenses of $1,684.58. Tamra’s expenses exceed her income by $421.58 per month. In ordering Tony to pay Tamra final periodic spousal support in the amount of $500 per month, the trial court’s figure was slightly higher than the amount actually established at the hearing. We amend the trial court award to require Tony to pay Tamra final periodic spousal support in the amount of $421.58 per month.

AWARD IN EXCESS OF ONE-THIRD OF OBLIGOR’S NET INCOME

Tony contends that the trial court award of $500 per month in final periodic spousal support exceeds one-third of his net income, contrary to La. C.C. art. 112(C). This argument is without merit.

Discussion

La. C.C. art. 112 specifies that a spousal support award shall not exceed one-third of the obligor’s net income. The code article does not define the term la“net income.” The record shows that after payroll deductions for taxes, insurance, 401k retirement account and other items, Tony has a net monthly income of $3,521.48. One-third of Tony’s net income is $1,173.83. La. C.C. art. 112 also states that in making an award, the court is to consider the financial obligations of the parties. Tony testified that he has monthly expenses of $2,122.92, which include a monthly bankruptcy payment of $650. Tony contends that his “disposable income” is only $1,398.56, and thus the support award must be capped at $466.19. We note that Tony’s argument blurs the distinction between “net income” and “disposable income.” As noted by the trial court, Tony’s expenses were “tremendous.” However, Tony had sufficient funds to pay a former spouse $700 per month in cash to live in her home. The award of $421.58 in this case clearly is not excessive whether computed on Tony’s net income or his claimed disposable income.

CONCLUSION

For the reasons stated above, we amend the trial court judgment to order Tony Randall King to pay the sum of $421.58 monthly to Tamra Hudson King in final periodic spousal support. In all other respects the judgment is affirmed, including that portion finding that Tamra Hudson King was free from fault in the | ^breakup of the marriage and is in need of and entitled to final periodic spousal support. Costs are assessed to Tony Randall King.

AMENDED IN PART; AFFIRMED AS AMENDED.

      . At the time of the support hearing in 2013, Tony was 50 years old and Tamra was 52.

      . Tamra testified that she developed a staph infection the week after the parties separated which delayed her cancer surgeiy until June 14, 2011. When her cancerous tumor was removed, she also underwent a total hysterectomy and removal of her appendix. She began a second round of chemotherapy in August 2011, which caused her to have bleeding behind one eye, necessitating care from a retinal specialist and two laser surgeries. Also, Tamra had cataract surgery and developed a sore on her cornea which had not healed at the time of the hearing in this matter.

      .The evidence reflects that Tony remained in contact with his ex-wives during his marriage to Tamra. After Tony and Tamra separated, Tony lived with two of his ex-wives.

      . Until its repeal in 1990, La. C.C. art. 138 specified numerous grounds for separation from bed and board including adultery; when either spouse has been convicted of a felony and sentenced to death or hard labor in the state or federal penitentiary; habitual intemperance of one of the married person, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable; public defamation on the part of one of the married persons towards the other; abandonment; an attempt of one of the married persons against the life of the other; when the husband or wife has been charged with a felony, and shall actually have fled from justice, the wife or husband of such fugitive may claim a separation from bed and board, on producing proofs to the judge before whom the action for separation is brought, that such husband or wife has actually been guilty of such felony, and has fled from justice; intentional non-support of the husband of his wife or the wife of her husband who is in destitute or necessitous circumstances; when the husband and wife have voluntarily lived separate and apart for six months and no reconciliation has taken place during that time; when the spouses have lived six months separate and apart, voluntarily and without reconciliation, provided that such spouses shall execute an affidavit attesting to and testifying that they have so lived separate and apart and that there exists irreconcilable differences between the spouses to such a degree and nature as to render their living together insupportable and impossible.

      . We note that the trial court disallowed some of the items claimed by Tamra. She has not appealed and these issues are not before us. The items allowed by the trial court are as follows: housing, $595; electricity, $150; water, $31; sewerage, $33; garbage pick-up, $23; cell phone and Internet, $120; car insurance, $35.08; renter’s insurance, $17.50; Medicare and prescription supplement, $200; Direct T.V. subscription, $80; gasoline, groceries, and household supplies, $300; miscellaneous vehicle maintenance costs, $100. These expenses are not extravagant. As set forth above, the only items contested on appeal by Tony are the Medicare and prescription supplement, Internet and television expenses, and the "miscellaneous” category which Tamra testified was for car maintenance.