author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Shawanda Marie NEVERS-HAWKINS
    NO. 17-KA-193
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Justin B. LaCour
    COUNSEL FOR DEFENDANT/APPELLANT, SHAWANDA MARIE NEV-ERS-HAWKINS, Prentice L. White
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Stephen J. Windhorst
   CHEHARDY, C.J.

hOn appeal, defendant challenges her conviction and enhanced sentence. For the following reasons, we affirm.

Procedural History

On August 8, 2014, the St. John the Baptist Parish District Attorney filed a bill of information charging Shawanda Marie Nevers-Hawkins, defendant-herein, with theft of assets of an aged person, in violation of La. R.S. 14:67.21. Defendant was arraigned on August 18, 2014, and pled not guilty. On February 16, 2016, the two-day trial commenced before a six-person jury, which found defendant guilty as charged. On February 18, 2016, after trial, defendant orally moved for a post-verdict judgment of acquittal that was denied by the trial judge.

On March 4, 2016, the State filed a multiple offender bill of information alleging defendant to be a “fifth” felony offender. On June 13, 2016, defendant stipulated to the allegations set forth in the multiple offender bill of information. The trial judge found that the: State had presented sufficient proof that defendant was' a third felony offender. Thereafter, a restitution hearing was held. The trial judge, however, postponed sentencing so that defense counsel could prepare a motion for new trial.

On September 8, 2016, defendant orally moved for a new trial, which was denied that day. That same day, defendant waived sentencing delays, but withdrew her prior stipulation to the multiple bill.

Consequently, , on September 8, 2016, the State presented testimony supporting their allegations in the multiple offender bill of information. After hearing the testimony, the trial judge found that the State had proven that |2defendant was a third felony offender. That day, the trial judge sentenced defendant under La. R.S. 16:529.1 to twelve years imprisonment in the Department of Corrections. Also, after finding defendant to be indigent, the trial judge ordered her to pay restitution of $20,000.00 to the victim, in the amount of $160.00 per month. Defendant immediately orally moved to appeal. On September 19, 2016, defendant filed a timely Pro Se Motion for Appeal, which was granted the next day. This appeal follows.

Facts

At trial, Barbara Sylvester-testified that she was born on October 17, 1948. At the time of trial, Ms. Sylvester was a sixty-seven year old retiree, living alone, on a fixed income from retirement and social security disability. Ms. Sylvester testified that she had known Shawanda Marie Nev-ers-Hawkins for most of Ms. Hawkins’ life because they lived in the same neighborhood and Ms. Sylvester was friends with Ms. Hawkins’ mother.

Ms. Sylvester explained that, on August 30, 2013, Ms. Hawkins called her on the phone and asked to borrow $1,500.00 for an ice machine for “her restaurant.” Ms. Sylvester agreed, and Ms. Hawkins came to' her house to pick up the $1,500.00 in cash. According to Ms. Sylvester, Ms. Hawkins promised to pay her back the next day. ■

Later that day, however, Ms. Hawkins contacted Ms. Sylvester asking, to borrow an additional $18,500.00. Ms. Sylvester testified that Ms. Hawkins stated that she was the owner of 3LJs Café in LaPlace, and that the money to pay Ms. Sylvester back was going to come from credit card sales at the business. Ms. Hawkins drafted a ‘promissory note,’ providing that she was borrowing $20,000.00 Lon August 30, 2013, which would be repaid, plus an additional $20,000.00 for a total of $40,000.00, by September 30, 2013. Ms. Sylvester testified that she did not know how Ms. Hawkins intended to use the loan money but that Ms. Sylvester did not intend to invest money in 3LJs Café.

On the evening of August 30, 2013, Ms. Hawkins and Ms. Sylvester went before a notary public and signed the note. Afterward, Ms. Sylvester went to her bank; withdrew $18,500.00 from her savings account, obtained a cashier’s check in the amount of $18,500.00, and-gave it to Ms. Hawkins.

Ms. Sylvester testified that Ms. Hawkins did not repay her by September 30, 2013. Ms. Sylvester requested, repayment from Ms. Hawkins via facsimile transmission on October 17, 2013 and October 24, 2013, to no avail. At trial, Ms. Sylvester testified that Ms. Hawkins has never .repaid any of the $20,000.00 lent to her. Ms. Sylvester testified that, in November of 2013, she went to the St. John Parish Sheriffs Office (“SJPSO”), filed a complaint that her money was stolen, gave a statement, and picked defendant from a photographic lineup as the person that stole her money.

Detective Maurice Rodriguez of the SJPSO testified that, after Ms. Sylvester reported the incident, his investigation revealed that defendant did not own or operate any business in St. John Parish that would allow her to pay back the- money as set forth in the promissory note, which was drafted by defendant. Based on his investigation and, experience as a law enforcement officer, he concluded that Ms. Sylvester was a victim of fraud; Detective Rodriguez eventually arrested Ms. Hawkins, defendant herein, in June, of 2014, and charged her with theft of assets of an aged person.

Ashley Deroche, ah employee of the SJPSO property tax occupational license department, testified that an occupational license is required by St. John Parish ordinance for any person wanting to conduct business in the Parish and that |4her department maintains records of occupational licenses. Ms. Deroche reported that SJPSO issued an occupational license, effective June 4, 2013, to Laquana A. Lewis as the owner of 3LJs Café> Services and Sports Bar in LaPlace. Ms. Deroche further noted that there were no occupational licenses in defendant’s name for 2013.

After the State rested, Laquana Lewis, defendant’s daughter, testified that 3LJs was a family-owned business, which she owned and defendant managed. At the close of the testimony and evidence, the six-person jury unanimously found défen-dant guilty as charged.

Discussion

On appeal, defendant raises two assignments of error challenging her conviction and sentence: first, defendant argues that the State proved to fail.that* she intended to- defraud Ms. Sylvester and, thus, her conviction should'be reversed, and second, her sentence of twelve .years- is excessive and unconstitutional.

In her first assigrimént of error, defendant argues that the evidence was insufficient to support her conviction. She contends that there was no fraudulent plan to misappropriate any funds from Ms. Sylvester or to commit any form of conversion. She further asserts that she was unable to pay Ms. Sylvester because her business was suffering, and the accounts receivable for the restaurant were -diminishing. Defendant explains that, although she was not the registered owner of-the 3LJs Café, she was borrowing the money from Ms. Sylvester .in an attempt to salvage her family business and that Ms. Sylvester was aware of the purpose of the loan.- She further explains that she showed good faith by executing a promissory note in favor of Ms. Sylvester with the intent of returning the original sum and paying her one hundred percent interest. Defendant maintains that she" never intended to. defraud Ms. Sylvester.

LThe Staté responds that ⅛ presented sufficient evidence at trial to support the conviction. The State responds that several factors point to the defendant’s intent to defraud the victim: the “doúblé-ydur-mon-ey” nature of the loan, defendant’s misrepresentations regarding ownership of the business and building, the defendant’s avoidance of' the' victim, and failure to repay any portion of the debt. The State argues that defendant presented her hypothesis of innocence at trial, which was rejected by the jury when it found beyond a reasonable doubt that defendant intended to defraud the victim.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in ordér to convict, it must exclude every reasonable hypothesis -of- innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine-whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 977, writ denied, 04-1809 (La. 5/6/05), 901 So.2d 1086.

|fiIn this case, defendant was convicted of theft of the assets, of an aged person, in violation of La. ,R.S. 14:67.21. At the time of the offense, theft of the assets of an aged person wa,s defined in pertinent: part as: _ _ ,

[t]he intentional use, consumption, conversion, management, or appropriation of an aged person’s ... funds, assets, or property through the execution or attempted execution of a fraudulent or deceitful scheme - designed to benefit a person other than the aged person[.]

La. R.S. 14:67.21(B)(3) (2013). La. R.S. 14:67.21(A)(1) defined “aged person” as any person sixty years of age or older. The victim in the instant case was over the age of sixty at the timé of the offense.

Theft is a crime of specific intent. State v. Patterson, 11-158 (La. App. 5 Cir. 11/29/11), 78 So.3d. 855, 859. Specific criminal intent , is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed, criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred, from the circumstances of a transaction and from the actions of the accused. State v. Joseph, 09-400, p. 13 (La. App. 5 Cir. 12/29/09), 30 So.3d 157, 165. Further, specific intent is a legal conclusion to be resolved by the fact-finder. Id.

In State v. Greene, 09-2723 (La. 1/19/11), 55 So.3d 775 (per curiam), the State charged the defendant with theft in an amount over $500.00; however, the trial court found him guilty of unauthorized use of a movable. The supreme court found that considering the evidence presented at trial, any rational trier of fact could find that the defendant took the advance payment on the contract from the victim by fraudulently representing himself as a licensed general contractor in Louisiana, and by that act alone, committed the offense of unauthorized use of a |7movable when he took the $25,000.00 deposit from her. Moreover, the supreme court found that none of the ensuing events undercut the inference of fraudulent intent arising from the defendant’s initial misrepresentations, noting that the defendant continued to draw on the victim’s advance money until he had completely depleted the advance even though he had performed relatively little work on the house. Also, the supreme court indicated that the victim’s complaint was criminal in nature.

In the instant case, the evidence presented at-trial showed that, on August 30, 2013, defendant contacted Ms. Sylvester to borrow $20,000.00. Defendant drew up a document that reflected that defendant was the owner of a business and proceeds from credit .card sales at the business would be used to repay Ms. Sylvester. Further, the defendant’s document promised repayment of twice the borrowed amount from the “credit card sales or- by profits from all sales of the establishments operated and owned” by defendant within 30 days. The promissory note also provided in pertinent part:

In the event that these things listed below happen or the borrower sells the building the balance of 40,000.00 will be taken out of the sale of the building and given to the lender.
1) The failure of the Borrower to pay the balance in full on or before the Due Date.

Ms. Deroche from SJPSO testified that defendant was not the registered owner of any business in the parish at that time.

The defense presented testimony that the business in question was managed by defendant but could not repay the loan due to a downturn in business.

In finding defendant guilty, the jury made a credibility determination and rejected defendant’s version of events. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, |Rthe testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Upon review, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to prove that defendant intended to defraud Ms. Sylvester. First, defendant’s misrepresented ■ to Ms. Sylvester that she owned the business and that the money for repayment would come from credit card sales of the business or sale of the building. Second, the' promissory note drafted by-defendant promised Ms. Sylvester double her money—$40,000.00—in thirty days, which is highly unlikely. Third, defendant avoided Ms; Sylvester for months with various empty promises of repayment but did not repay any part of the stolen money. Considering the evidence in the light most favorable to the prosecution, we flnd that there was sufficient proof for a rational trier of fact to conclude beyond a reasonable doubt that defendant committed theft of assets of an aged person.

In her second assignment of error, defendant argues that her twelve-year enhanced sentence was excessive in light of the weak circumstantial evidence that the State used to. convince the jury that she defrauded Ms. Sylvester of $20,000.00. She further argues that, in light of the fact that all of her convictions are non-violent, a twelve-year sentence is grossly excessive.

The State responds that the trial judge did not abuse his discretion when imposing sentence. Here, the defendant’s sentence fell slightly below mid-range and the trial judge was aware that defendant had four prior felony convictions, three of which were for crimes of fraud. The State argues that, given defendant’s criminal history, the high dollar amount of the theft, and the age of the victim, a twelve-year, sentence was not excessive.

On February 18, '2016, defendant was convicted of theft' of assets of an aged person. Oh September 8, 2016, the trial judge subsequently found her to be a third Infelony offender. The trial judge ordered defendant, to pay $20,000.00 in restitution to Ms. Sylvester in the amount of $150.00 per month based on her indigent status. The trial judge stated that, after.hearing the testimony and evidence, he believed that the interest of justice demanded that defendant serve twelve years in the Department of Corrections, noting that the sentencing range for a third felony offender in 2013 was “6.8 years as a minimum to 20 years as a maximum.” Defense .counsel objected to the order of restitution while defendant .was incarcerated and to the twelve-year sentence. ,

The Eighth Amendment to the United States Constitution and Article I, §' 20 of the Louisiana Constitution prohibit the.imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Crawford, 05-494 (La. App. 5 Cir. 1/31/06), 922 So.2d 666, 669, writ denied, 09-1172 (La. 3/12/10), 28 So.3d 1021. A sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits. State v. Riche, 608 So.2d 639, 640 (La. App. 5 Cir. 1992), writ denied, 613, So.2d 972 (La. 1993). Whether the sentence imposed is too severe depends on the circumstances of the case 'and the background -of the defendant. State v. Woods, 09-399 (La. App. 5 Cir. 3/9/10), 38 So.3d 391, 411, writ denied, 10-0784 (La. 10/29/10), 48 So.3d 1096. A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad , discretion. Riche, supra at 640.

| inIn reviewing a sentence for excessiveness, the reviewing court must consider the crime and the- punishment in light of the harm to society and gauge whether, the penalty is so disproportionate as to shock its sense of justice. Crawford, supra at 669. The three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. Id. at 670. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. at 670-71. An-“appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” La. C.Cr.P. art. 881.4(D).

As a third felony- offender with an underlying conviction of theft of assets of an aged person, the sentencing range in August of 2013, when the offense was committed, was 6.7 years to 20 years." See La. R.S. 14:67.21(0(1) (2013); La. R.S. 15:529.1(A)(3)(a).

In State v. Mangham, 47,977 (La. App. 2 Cir. 4/10/13), 113 So.3d 493, the defendant pled guilty to theft of assets of an aged person in violation of La. R.S. 14:67.21 and was sentenced to serve eight years imprisonment at hard labor, The trial judge said he would have given the defendant the maximum ten-year sentence except that he pled guilty. In that case, the defendant took over $200,000.00 from his in-laws by telling them that he was an agent for Primerica Financial Services and could invest their funds for a substantial return. Instead, the defendant spent the money for his own use.

InOn appeal, he argued that his sentence was excessive since he was a first felony offender and was ordered to pay restitution, The appellate court upheld the sentence, noting that the defendant defrauded his elderly, sick in-laws out of their savings for three years and then moved on to con other individuals, made no effort to confess his wrongdoing to his family or mention paying the money back until he faced criminal charges and preyed upon the trust of his own family "members to rob them of their financial security. The appellate court found that given the large amount of money stolen and the circumstances of his crimes, the sentence imposed did not shock the sense of justice considering the heinous crime committed.

In the instant case, we find that the trial judge did not abuse his discretion by imposing a twelve-year enhanced sentence. Defendant used her long-term friendship with the victim and made misrepresentations in order to encourage the 65-year-old victim.to give her $20,000.00, which she did not repay. Also, defendant had a criminal history, which included convictions for forgery, obstruction of justice, and issuing worthless checks, Further, the sentence imposed is mid-range and supported by the jurisprudence.

In light of the foregoing, we find that the twelve-year enhanced sentence was not constitutionally excessive.

Errors patent

We have reviewed the record for errors patent, according ,to La. C.Cr.P. art.. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We have found the following errors that require correction.

Post-Conviction Relief Advisal

In this case, the sentencing transcript indicates that the trial judge advised defendant that she had two years to file a petition for post-conviction relief, which is incomplete. The failure of the trial judge to advise' a defendant that the | ^prescriptive period for seeking post-conviction- relief runs from the time his conviction and sentence -become final renders the advisal incomplete. State v. Grant, 04-341, p. 5 (La. App. 5 Cir. 10/26/04), 887 So.2d 596, 598.

Further, it is well-settled that if a trial court provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ de nied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La. 10/16/09), 19 So.3d 473. Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Consistency/Commitment

There is a discrepancy between the transcript and the State of Louisiana Uniform Commitment Order (UCO). When there is a discrepancy, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). The UCO reflects the date of the offense as June 19, 2014; however, the record shows the correct date of the offense as on or about August 30, 2013. Therefore, we remand this matter for the correction of the UCO regarding the date of the offense. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Additionally, we order the Twenty-Fourth Judicial District Clerk of Court to transmit the corrected UCO to the officer in charge of the institution to which defendant has been sentenced, as hswell as the Department of Corrections’ Legal Department. See La. C.Cr.P. art. 892(B)(2); State v. Roland, 06-244 (La. 9/15/06), 937 So.2d 846.

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER.

      . Defense counsel’s motion for a “verdict of acquittal based on the evidence not being supported by the jury's finding" can be considered a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. See State v. Richardson, 35,450, p. 6 (La. App. 2 Cir. 2/27/02), 811 So.2d 154, 159 (oral motion for a judgment of acquittal notwithstanding the jury’s verdict could be considered a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821).

      . While we note that the trial judge did not impose a sentence on the underlying conviction, we point out that the failure to impose an original sentence before a multiple offender adjudication is not error since the original sentence would be vacated upon the defendant’s sentencing as a multiple offender. State v. Crane, 00-1373, p. 6 (La. App. 5 Cir. 3/14/01), 783 So.2d 448, 452, n.4.

      . La. R.S. 14:67.21 and several other statutes were repealed, effective August 1, 2017, by Acts 2017, No. 281, § 3.

      . We note that the trial judge incorrectly cat culated the minimum sentencing exposure as 6.8 years but the correct minimum sentence for a third felony offender under La, 15:529.1(A)(3)(a), where, as here, the underlying felony has a maximum sentence of ten years is 6.7 years, In this case, defendant was not sentenced to the minimum but rather'to twelve years so this misstatement was inconsequential.

      . The State filed a multiple bill with the following predicate offenses: 1) a guilty plea on May 13, 1998, to forgery in violation of La. R.S, 14:72, in case number 97-7879 in the Twenty-Fourth Judicial District Court; 2) a guilty plea on May 26, 1999, to obstruction of justice in violation of La. R.S. 14:103.1 [sic], in case number 97-0022 in the TwentyTNinth Judicial District Court; 3) a guilty plea on October 13, 1999, to issuing worthless checks in violation of La. R.S. 14:71, in case number 1998-CR-663 in the Fortieth Judicial District Court; and 4) a guilty plea on January 21, 2003, to issuing worthless checks in violation of La. R.S, 14:71, in case number 02-0608 in the Twenty-Ninth Judicial District Court. Defendant was found to be a third felony offender after a hearing,_

      . The UCO also reflects the adjudication date as September 8, 2016, which was the date that defendant was found to be a third felony offender and sentenced as such.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Jonathan ISAAC
    NO. 17-KA-87
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR-PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, JONATHAN ISAAC, Jane L. Beebe ■
    DEFENDANT/APPELLANT, Jonathan Isaac,’ In Proper Person
    Panel composed of. Judges Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy
   JOHNSON, J.

h Defendant appeals his convictions and sentences for five counts of armed robbery challenging the sufficiency of the evidence, the denial of his motion to suppress the evidence, and the- imposition of sentence without reasons. For the reasons that follow, we affirm Defendant’s convictions and sentences. •

Defendant, Jonathan Isaac, was charged in a bill of information on May 18, 201Í with five counts of armed robbery in violation of La. R.S. 14:64. He pled not guilty and proceeded to trial on June 27, 2016 before a 12-person jury. After a three-day trial,-the-.jury found Defendant■ guilty as charged , on all- five counts. On July 18, 2016, the trial court sentenced Defendant to 55 years imprisonment on each count without the benefit of probation, parole or suspension of sentence, to run concurrently with each other. Pursuant to the State’s pre-trial notice of intent to invoke firearm sentencing provision under La. R.S. 14:64.3, the- trial court further sentenced Defendant to an additional five years imprisonment on each count, also to be served without benefits, to run eoncurrently with each other and consecutively to the concurrent 55-year sentences.

Prior to sentencing, the State had filed a multiple offender bill of information as to count one, alleging Defendant to be a second felony offender. After a hearing on August 18, 2016, the trial court adjudicated Defendant a second felony offender, vacated his sentence on count one, and resen-tenced Defendant on count one under La. R.S. 15:529.1 to 55 years imprisonment, to run concurrently with his sentences on counts two, three, four, and five. The trial court further ordered that the five-year enhancement under La. R.S. 14:64.3 on count one be served consecutively to the 55-year enhanced sentence.

J¿FACTS

This case arises from a series of five armed robberies that occurred at various Jefferson Parish businesses over the span of approximately one month. The details of each armed robbery are as follows.

March 6, 2011—Armed Robbery of Ashley Arthur and Jayeshkumar Patel at the Subway on Barataría Boulevard (Counts One and Two)

On March 6, 2011, Jayeshkumar Patel, manager at the Subway restaurant on Bar-ataría Boulevard in Marrero, and-Ashley Arthur, an employee, were working when they were robbed at gunpoint. Surveillance footage from the robbery depicted two men, armed with guns, dressed in dark pants, wearing hats and coverings on their faces, enter the restaurant and take money from Mr. Patel’s wallet and the cash register. Mr. Patel testified that approximately one thousand dollars was taken from the cash register and. one hundred dollars was taken from him. Outside the business, a Newport brand cigarette butt was discovered. The cigarette butt was sent to a DNA lab for testing, which revealed the cigarette butt was consistent with the DNA profile obtained from a reference sample of Defendant.

March 13, 2011—Armed Robbery of Adrian Labeaud and Dana Rhea at the Subway on Jefferson Highway (Counts Three and Four)

On March 13, 2011, Dana Rhea and Adrian Labeaud were working at a Subway on Jefferson Highway when two armed men entered the restaurant from the backdoor. One of the perpetrators ordered Ms. Rhea to crawl .on the floor to the cash register .where she then opened the register and gave the man the cash. While Ms. Rhea was at the cash register, the second assailant put a gun to Mr. Labeaud’s side and instructed him to keep his face down towards the ground. After learning the whereabouts of the safe from Mr. La-beaud, the men also ^removed money from the safe before instructing Ms. Rhea and Mr. Labeaud to crawl to the back of the store and wait there.

Deputy Richard Uyeda of the Jefferson Parish Sheriffs Office (“JPSO”) responded to the armed robbery. When he arrived, Mr. Labeaud and Ms. Rhea informed Deputy Uyeda that two black males, wearing bandanas over their faces and brandishing semi-automatic handguns, entered the store from the rear entrance and stole money from the cash register and the safe before ordering them to the ground and fleeing.

As in the March 6, 2011 robbery, a Newport brand cigarette butt was discovered outside of the restaurant, and DNA analysis indicated that Defendant was the donor of the DNA on the cigarette butt. The police also obtained surveillance footage of the robbery, which depicted similarities to the March 6, 2011 robbery.

March 24, 2011—Armed Bobbery of Nicholas Ramsak at GameStop on Belle Promenade (Count Five)

On the evening of March 24, 2011, Nicholas Ramsak was working at the GameS-top on Belle Promenade to Marrero when he was robbed at gunpoint. Mr. Ramsak testified that two men, one of whom was armed with a gun, entered the store, demanded the money from both cash registers, took the cash, ordered him to the ground, and then fled. Fingerprints taken from a video gaming accessory cabinet located behind the counter, which was inaccessible to the public, matched those of Defendant’s.

An arrest warrant for Defendant and a search warrant for his residence was obtained. Defendant was arrested and a pack of Newport brand cigarettes was recovered to the room to which he was arrested. Additionally, a search of Defendant’s residence revealed clothing that matched the description of the clothing worn by one of the suspects from some of the robberies.

| information obtained from Defendant’s phone records further indicated that co-defendant Savage’s phone was contacted frequently around the times of the robberies. Moreover, celr phone tower information obtained from Defendant and Savage’s cell phone records placed both phones near the location of the robberies, at the times they occurred. The police subsequently obtained an arrest warrant, for Savage and a search warrant for his residence. Articles of clothing similar to the ones depicted in the surveillance videos were among items seized as a result of the search of Savage’s residence and vehicle.

Following Savage’s arrest, he was transported to the investigations bureau where, after being advised of his rights, he confessed to committing the armed robberies with Defendant and further identified Defendant from a photograph, stating that he had known him for a number of years. Savage also identified himself and Defendant from several of the screen shots taken from the surveillance videos of the robberies.

During trial in this case, Savage testified that he had been convicted of the armed robberies with which Defendant was also being charged. He denied identifying Defendant as having committed the armed robberies with him, despite being confronted with the statement he provided to the police following his arrest. He maintained that he provided the statement under duress after being threatened by the police.

ISSUES

On appeal, defense counsel’s sole assignment of error is that the trial court erred to denying his motion to suppress the evidence. Defendant filed a pro se supplemental brief also challenging the denial of the motion to suppress and | ¿raising two additional assignments of error relating to the sufficiency of the evidence and sentencing.

DISCUSSION

Sufficiency of the Evidence

In his pro se assignment of error, Defendant asserts the evidence was insuf-fieient to find him guilty of the charged armed robberies. He argues that identity is an essential element of the crimes and that the State failed to prove he was involved in the crimes beyond a reasonable doubt. _

In- reviewing the sufficiency of the evidence,- an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince -a rational trier of fact that all of the elements of the crime have been proven, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08); 985 So.2d 234, 240. Rather, a reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found the State proved the essential elements of the crime beyond a reasonable doubt. Id.

Defendant in the instant case was found guilty by a jury of five counts of armed robbery. Under La. R.S. 14:64, to support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything |ñof value from the person of another by use of force or intimidation while armed with á dangerous weapon. State v. Thomas, 08-813 (La. App. 5 Cir. 4/28/09); 13 So.3d 603, 606, writ denied, 09-1294 (La. 4/5/10); 31 So.3d 361. Encompassed within proving the elements of an offense is the necessity of.proving the identity of the defendant as the perpetrator. State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13); 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13); 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Id.

Defendant does not argue that the State failed to establish any of the essential statutory elements of his convictions, but rather contends the State failed to prove beyond a reasonable doubt his identity as the perpetrator of the armed robberies.

The testimony adduced at trial established that the witnesses did not see the faces of the perpetrators of the armed robberies because their faces were covered. The evidence showed that at each- of the armed robbery locations, two -black men, armed with guns, wearing coverings on their faces, entered the businesses and stole money from the employees, cash registers and/or safe. Surveillance footage from all three armed robberies were similar in that they depicted the robberies being committed in the same manner and involved suspects clothed in the same or similar distinct apparel. Upon further investigation into the armed robberies, officers recovered two Newport brand cigarette butts from the scenes of the two Subway robberies. The cigarette butts were tested and found to match Defendant’s DNA. In addition, a fingerprint taken from a video gaming accessory cabinet, not accessible to the public, at the .GameS-top robbery matched that of Defendant’s. Moreover, analysis of the surveillance footage from the robberies was consistent with Defendant’s general physical description, and , a search, of Defendant, and co-17defendant Savage’s residences revealed clothing matching the description of the robbery suspects.

Defendant was later arrested and a pack of Newport cigarettes was found nearby. Moreover, a review of Defendant’s cell phone records revealed that he was in frequent contact with Savage around the times of the robberies, and cell phone tower information placed both Defendant and Savage’s phones near the locations of the robberies at the time they occurred. At trial, the State also presented evidence that upon Savage’s arrest, Savage confessed to committing the armed robberies with Defendant. Although Savage testified that he lied to the police, the trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 08-384 (La. App. 5 Cir. 9/16/03); 858 So.2d 80, 84, writ denied, 03-2745 (La. 2/13/04); 867 So.2d 688. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95); 661 So.2d 442, 443.

Based on this evidence, we find the State sufficiently negated any reasonable probability of misidentifieation of Defendant as perpetrator of the five armed robberies. Therefore, we find sufficient evidence to support Defendant’s armed robbery convictions.

Denial of Motion to Suppress

In this counseléd assignment of error, Defendant argües he was denied his' due process rights when an exigent circumstances request was used by law enforcement to track his cellular phone despite the fact that none of the requisites for the issuance of-'such a request were met. As such, Defendant maintains the trial court erred in failing to grant his motion to suppress the evidence based on the unlawfully obtained exigent circumstances- request.

| «Defendant filed a pre-trial motion to suppress, which was heard on October 1,. 2013. The facts adduced at the suppression hearing, as well as at trial, establish that after determining Defendant’s identity from fingerprints located at the scene of one of the robberies, a search warrant for Defendant’s residence was obtained and executed. While at Defendant’s residence, Defendant’s girlfriend provided the officers with Defendant’s cell phone number. The police then executed an “exigent circumstances request, form” addressed to Sprint/Nextel, seeking Defendant’s subscriber information, call detail records, cell site information, precision location of the mobile device (GPS), and any text messages available, Sprint/Nextel provided the requested information, which included a call detail log based on Defendant’s cell phone use between March 18, 2011 and March 25, 2011.

From this log, it was discovered that a certain telephone number had contacted Defendant numerous times around the times/dates of the armed robberies. The police obtained a court order for the cell phone records associated with that incoming cell phone number, which was determined to belong to Savage. GPS tracking also obtained from the exigent. circumstances form provided the officers with Defendant’s location, enabling them to arrest him pursuant to the previously issued arrest warrant.

JPSO Detective .Wayne Rumore, who was involved in the investigation, indicated that it was necessary to obtain an exigent circumstances request to locate Defendant in order to “prevent another crime from happening, or prevent flight.” JPSO Captain Dax Russo, who was also involved in the investigation, explained that the exigent circumstances request form, which is not signed by a judge but by the issuing officer who declares under penalty of perjury that the information | contained on the form is true and correct, requires the officer to declare an exigent situation involving either immediate danger of death or serious bodily injury to any person, conspiratorial activities characteristic of organized crime, or an immediate threat to a national security interest. In indicating that “immediate danger of death or serious bodily injury to any person” was present in this case, Captain Russo stated:

We have Heroin addicts running around Jefferson Parish robbing businesses that are occupied by civilians. Placing them on the ground face down with a gun to the back of their head. We felt that it was a matter of time before a gun could of [sic] accidentally discharged, or one of the victims didn’t cooperate, and could become a victim of a homicide. So, we felt there was an immediate threat to one of the citizens [sic] lives in this parish.'

He further testified at the hearing that he received additional information that Defendant “might become violent towards police and flee the area.”

At the conclusion of the hearing, Defendant moved to suppress the evidence obtained as a result of the exigent circumstances request form, arguing that the form, obtained without a judge’s signature, contained false information provided ■ by Captain Russo regarding the exigent circumstances which allowed for the warrant-less search of his cell phone information. The court denied Defendant’s motion to suppress evidence, finding there were exigent circumstances “based on the natures of the crimes” and noting that the information provided by Captain Russo regarding the exigency of the situation appeared credible and was not inconsistent.

On appeal, Defendant argues that his expectation of privacy was violated when the police used an exigent circumstances request to track his cell phone and obtain his location without justification. He contends the police failed to meet the requirements for an exigency. In particular, Defendant contends that the robberies in the present matter were non-violent and did not cause injury to any person. He maintains that the exigent circumstances request was based on misleading and [ minsufficient information and, thus, not validly obtained. As such, Defendant asserts the resulting evidence should have been suppressed.

In a hearing on a motion to suppress, the State bears the-burden of establishing the admissibility of evidence seized without a warrant. The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Lee, 05-2098 (La. 1/16/08); 976 So.2d 109, 122.

In this case, the police requested subscriber information, call detail records with cell site information, and the precise GPS location of Defendant’s cell phone from Sprint/Nextel pursuant to an exigent circumstances request. In 2011, 18 U.S.C. § 2702(c)(4) of the Stored Communications Act (SCA) authorized cell phone service providers to disclose, without a warrant,

a record or other information pertaining to a subscriber to or customer of [cell phone] service ... to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of-information relating to the emergency. ■

Congress thus deemed it reasonable, to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury. United States v. Caraballo, 963 F.Supp.2d 341 (D. Vt. 2013). “Because there is a. strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is ‘reasonable,’ ... the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional.” United States v. Watson, 423 U.S. 411, 416, 96 S.Ct 820, 46 L.Ed.2d 598 (1976) (internal citations and quotation marks omitted).

Of note, the SCA offers no ■ suppression remedy for criminal defendants. See Orin S. Kerr, A User’s Guide to the Stored Communication Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1241 (2004). Rather, a Incriminal defendant must seek protection for electronic communications under the Fourth Amendment to the United States Constitution and Article 1, § 5 of the Loui-> siana Constitútion, which prohibit unreasonable searches and seizures.

A person is constitutionally protected against unreasonable search and seizure of his house, papers, and effects. U.S. Const, amend. IV;' La. Const, art. I, § 5 (1974). Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. Warrantless seizures are per se unreasonable unless they can be justified under one of the narrowly drawn exceptions to the Fourth Amendment’s warrant requirement. State v. Freeman, 97-1115 (La. App. 5 Cir. 12/29/98); 727 So.2d 630, 634.

However, a defendant only has standing to challenge an infringement on his Fourth Amendment right when he is able to claim a justifiable, reasonable, or legitimate expectation of privacy in the item seized. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). To determine if a defendant has a reasonable expectation of privacy, a court must not only .consider whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Ragsdale, 381 So.2d 492 (La. 1980).

Defendant does not argue that the exigent circumstances request issued to Sprint/Nextel in this case violated the warrant requirement of the Fourth Amendment. Rather, he attacks the exigent circumstances request for its veracity, | ^claiming that the affiant, Captain Russo; was untruthful in his “exigent description”- and that none of the three delineated exigent situations required, to obtain the information sought pursuant to the exigent circumstances-request existed.

The warrant requirement of the Fourth Amendment must yield in those situations in which exigent circumstances require law enforcement officerp to act without delay. United States v. Moreno, 701 F.3d 64, 72-73 (2d Cir. 2012), cert. denied, 569 U.S. 1032, 133 S.Ct. 2797, 186 L.Ed.2d 864 (2013). In such circumstances, “the exigencies of the situation make, the needs of law enforcement so- compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (internal quotation marks omitted) (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Under the circumstances of this case, we find that exigent circumstances justified law-enforcement obtaining the real-time :GPS location of Defendant’s cell phone to determine his location.

Exigent circumstances have been described as an “emergency or dangerous situation” and as circumstances “in which police action' literally must be ‘now or never’ to preserve the evidence of the crime.” Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639 (1980); Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973). Exigent circumstances may arise from the need to prevent the offender’s escape, to minimize the possibility of a violent confrontation which could--cause injury to the officers and the public, and Lato preserve evidence from destruction or, concealment. State v. Brisban, 00-3437 (La. 2/26/02); 809 So.2d 923. “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967); Riley v. California, — U.S. —, 134 S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014).

The issue in this' case turns on whether the circumstances known to law enforcement and presented to Sprint/Nex-tel were within the category of “exigent circumstances” that permit, warrantless searches. “The core question is whether the facts ... would lead a reasonable, experienced officer, to believe that there was an urgent need to ... take action.” United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008), cert. denied, 555 U.S. 1061, 129 S.Ct. 664, 172 L.Ed.2d 638 (2008) (internal citations and quotation marks omitted). “A district court’s determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous.” United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991) (citations omitted).

At the time the exigent circumstances request was made to Sprint/Nextel, three armed robberies, involving five victims, in Jefferson Parish had been committed at various businesses over the. span of less than one month. The perpetrators of the crimes were armed with firearms, and as Captain Russo testified, it was only a matter of time before a gun accidentally discharged or a victim-,wasi shot because he was uncooperative. ¡Video surveillance evidenced the violent nature of the armed robberies, depicting armed gunmen entering the businesses and forcing the victims to the ground, face down, with a gun pointed to the back of their heads. The police believed Defendant was involved in these | warmed robberies and had information he “might become violent towards police and flee the area.”

Because of the frequency and volatile nature of the violent crimes that had been committed, exigent circumstances justified GPS tracking of Defendant’s phone to determine his location in order to effectuate his arrest, pursuant to a validly issued arrest, warrant, in order to protect the public against additional crimes. Additionally, Sprint/Nextel’s disclosure of the GPS tracking information was authorized by the SCA and the use of the real-time GPS location of Defendant’s cell phone was no more expansive than necessary to address the exigency that existed. (See United States v. Takai, 943 F.Supp.2d 1315 (D. Utah 2013), where the court found exigent circumstances sufficient to obtain GPS “pinging” data from the service provider to locate the defendant under the SCA without a warrant, where the defendant was. a suspect in several armed robberies and officers believed the defendant was armed and dangerous and that another armed robbery might be imminently forthcoming).

Further, in addition to exigent circumstances, the police had a good faith, reasonable belief that applicable law authorized the obtaining of Defendant’s cell phone records in the circumstances of this case. In Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the Supreme Court concluded that its holding in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), “that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause,” should be extended to instances in which “officers act in objectively reasonable reliance upon a statute authorizing | ^warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment.” Krull, 480 U.S. at 342, 107 S.Ct. 1160. Thus, even though the SCA has hot been ruled unconstitutional and Defendant does not challenge its constitutionality, suppression in the instant matter is not a viable remedy. See United States v. Takai, supra (ruling that based upon the emergency provisions of the SCA, “even if the court were required to find that [law enforcement] acquired the CSLI [cell site location information] in violation of the defendant’s Fourth Amendment rights, the Leon good faith exception, as further applied by Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), would remove suppression as an available remedy”).

Accordingly, we find the trial court properly denied Defendant’s motion to suppress based on exigent circumstances, the SCA, and the officers’ reasonable good faith reliance on applicable law.

Sentencing

In this pro se assignment, Defendant requests his sentences be vacated and the trial court be ordered-to state reasons for the sentences • imposed under La. C.Cr.P. art. 894.1. Defendant argues that by imposing concurrent 60-year sentences on each count, the trial court effectively sentenced him—a 54-year-old second felony offender—to a life sentence when no harm was levied against the victims and he was never clearly identified as the perpetrator of any of the robberies. He maim tains that a life sentence was not likely the trial court’s intention. We note that Defendant did not raise the issue of the trial court’s compliance with La. C.Cr.P. art. 894.1 below and,, thus, is precluded from raising it | infor the first time on appeal. See State v. Muth, 13-1003 (La. App. 5 Cir. 6/24/14); 145 So.3d 495, 498-99.

Errors Patent

We have reviewed the record for errors patent pursuant to La. C.Cr.P. art. 920 and find several errors in the State of Louisiana Multiple Offender Uniform Commitment Order (MO-UCO) that require corrective action.

First, the MO-UCO contains the incorrect offense date on counts three and four. The record reflects counts three and four were committed on March 13, 2011, and not on March 12, 2011, as is incorrectly indicated on the MO-UCO. Second, the adjudication date is incorrect on the MO-UCO, referencing July 18, 2016 (the date Defendant’s original sentences were imposed), when Defendant was convicted on June 29, 2016. Third, the MO-UCO reflects the date Defendant was resentenced as a multiple offender but does not reflect the date Defendant’s original sentences were imposed, which was July 18, 2016. Fourth, both the original uniform commitment order (UCO) and the MO-UCO do not reflect that Defendant’s sentences on each count were enhanced under La. R.S. 14:64.3. Finally, on the MO-UCO, the box which asks whether the sentencing was part of a multiple bill proceeding is checked “No,” when it should be “Yes,” yet on the original UCO it is checked ‘Tes,” when it should be “No.”

| t/Thus, we find it necessary to remand this matter for correction of the referenced UCO and MO-UCO errors. We further direct the Clerk of Court of the 24th Judicial District Court to transmit the corrected UCO and MO-UCO to the officer in charge of the institution to which Defendant has been sentenced and the Department of Correction’s legal department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are affirmed. The matter is remanded for the correction of the UCO and MO-UCO as instructed herein.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENTS

      . Damion Savage was also named as a co-defendant in the bill of information; however, he was tried separately from Defendant, Co-defendant Savage’s convictions and sentences were affirmed by this Court on appeal. See State v. Savage, 16-511 (La. App. 5 Cir. 4/12/17); 218 So.3d 714.

      . Mr. Labeaud described the two assailants as black males, approximately five foot nine inches, "two hundred something pounds,” with a bandana or shirt covering their faces, and carrying handguns.

      . Savage signed a consent form giving the officers authority to search his vehicle.

      . JPSO Detective Wayne Rumore denied threatening Savage. .

      .When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as, to trial errors is necessary. Id.

      . Defendant also requests that this Court “find that evidence was insufficient to find defendant guilty of the enhancement clause.” This one sentence is the only argument given by Defendant with respect to this issue. We find Defendant has failed to brief this potential grievance and, thus, find it abandoned under Uniform Rules, Court of Appeal, Rule 2-12,4. See State v. Camp, 16-473 (La. App. 5 Cir. 3/15/17); 215 So.3d 969, 973. Nonetheless, we note that a review of. the record under State v. Raymo, 419 So.2d 858, 861 (La. 1982), reflects that the State presented sufficient evidence to establish the firearm enhancement in this case.

      . At the GameStop location, Mr. Ramsak testified that he only saw one of the men with a gun.

      . In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing; it may also consider the evidence presented at trial. State v. Raines, 00-1941 (La. App. 5 Cir. 5/30/01); 788 So.2d 635, 639, writ denied, 01-1906 (La. 5/10/02); 815 So.2d 833.

      . In co-defendant Savage's appeal, State v. Savage, 16-511 (La. App. 5 Cir. 4/12/17); 218 So.3d 714, Savage, unlike Defendant here, argued that the exigent circumstances request violated the warrant requirement of the Fourth Amendment to the United States Constitution by allowing his phone records to be obtained without independent judicial consideration of the evidence. We concluded that Savage did not have a reasonable expectation of privacy in the call detail record log associated with his phone number or that of Defendant’s phone number, and thus, no infringement of his Fourth Amendment right occurred.
      Although Defendant does not raise the issue that the exigent circumstances request violated his Fourth Amendment right, we note that several jurisdictions have found' that the "pinging” of-a defendant's cell phone to obtain its- location does not constitute a search within the meaning of the Fourth Amendment, (See United States v. Caraballo, 963 F.Supp.2d 341 (D. Vt. 2013), where the government’s warrantless use of real-time cell phone location information did not constitute a search under the Fourth Amendment because the defendant did not have a reasonable expectation of privacy where the defendant was on notice that disclosure of his cell phone location information to law enforcement might occur in the event of an emergency; United States v. Skinner, 690 F.3d 772 (6th Cir. 2012), cert. denied, — U.S. —, 133 S.Ct. 2831, 186 L.Ed.2d 913 (2013), where the Sixth Circuit held that there was no .Fourth Amendment violation when federal agents used data emanating from the defendant’s cell phone to determine its real time location as he transported drugs along the highway. The agents "pinged” the phone along the way to locate it and arrested the defendant, The federal appeals court found that the defendant did not have a reasonable expectation of privacy in the GPS data and rejected his argument that the use of the,GPS location information emitted from his cell phone was a warrantless search in violation of the Fourth Amendment; Devega v. State of Georgia, 286 Ga. 448, 689 S.E.2d 293 (2010), where Georgia's highest • court rejected a cjaim by the defendant that his attorney was ineffective for failing to challenge the war-rantless "ping” of his cell phone as a violation of his Fourth Amendment rights. The court held that the warrantless monitoring of a defendant's cell phone location revealed the same information as visual surveillance so there was no Fourth Amendment violation; People v. Moorer, 39 Misc. 3d 603, 959 N.Y.S.2d 868 (NY County Court 2013) concluding that "by a person's voluntary utilization, through GPS technology, of a cell phone, a person necessarily .has no reasonable expectation of privacy with, respect to the phone's location—vis-a-vis the pinging—even though he maintains what may be a reasonable ex- , pectation of privacy in the content of his phone conversations.”)

      . The Louisiana Supreme Court, has found exigent circumstances existed in those instances where a subject, attempts to flee in order to avoid arrest. State v. Abadie, 390 So.2d 517 (La. 1980).

      . See United States v. Caraballo, 963 F.Supp.2d 341 (D. Vt. 2013), finding that the defendant posed an exigent threat to the undercover officers and confidential informants involved in the drug operation which justified the ."pinging” of his cell phone, which at most constituted a limited intrusion into his privacy interest, objectively could be viewed as plausibly consistent with existing law, and which the officers, used in the ..most limited way .to achieve their goal.

      . However, we note the trial court’s failure to articulate every circumstance listed in La. C.Cr.P. art 894.1 will not require a remand for re-sentencing if there is an adequate factual basis for the sentence contained in the record. State v. Brooks, 00-953 (La. App. 5 Cir. 2/11/03); 841 So.2d 854, 858. There is an adequate factual basis for Defendant’s sentences in the record, The same judge who sentenced Defendant also listened to the evidence presented at trial. The evidence showed that Defendant and his cohort entered various businesses in Jefferson Parish, taking control of the employees, and robbing them at gunpoint. Armed robbery is designated as a crime of violence—La. R.S. 14:2(B)(21)—and the Louisiana Supreme Court has recognized the highly charged atmosphere at the scene of an armed robbery, noting that it is conducive to violence and fraught with danger of serious physical ham}, not only to the victim, but to any person at the scene. See State v. Levi, 259 La. 591, 250 So.2d 751 (1971). Additionally, Defendáht’s prior criminal history, including his conviction for simple robbery in 2003, was established at the multiple offender hearing. These facts provide an adequate factual basis Defendant's 60-year sentences.

      . It is noted that the deficiencies in the MO-UCO pertain to the MO-UCO issued on August 31, 2016, after a Nunc Pro Tunc entry was made by the court on August 20, 2016, to correct the omission of a State’s exhibit introduced at the multiple bill hearing held on August 18, 2016. Some of the referenced deficiencies, including the incorrect offense date on counts three and four, and the incorrect demarcation that the resentencing was not part of a multiple bill proceeding, are not present in the first MO-UCO issued on August 24, 2016, prior to the Nunc Pro Tunc entry.


author: WINDHORST, J.

text:
    Rochelle Peiffer LARSON v. Emile Gerard LARSON
    NO. 16-CA-695
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, ROCHELLE PEIFFER LARSON, Cindy H. Williams
    COUNSEL FOR DEFENDANT/APPELLANT, EMILE GERARD LARSON, Arita M. L. Bohannan, Lauren Davey Rogers
    Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

| Appellant, Emile Larson, seeks review of the trial court’s April 29, 2016 judgment granting Rochelle Larson interim spousal support and an increase in child support and denying Mr. Larson interim spousal support. For the reasons that follow, we amend the judgment and affirm as amended.

Procedural Background

Mr. Larson and Ms. Larson were married on June 26, 1999. On the same day, the parties executed a pre-nuptial agreement wherein the parties agreed they would remain separate in property and they renounced the establishment of a community of acquets and gains between them. Ms. Larson filed a petition for divorce on February 21, 2013, requesting child support and interim spousal support, and in due course, final spousal support. On February 26, 2013, Mr. Larson filed an answer and reconventional demand for divorce, requesting interim spousal support.

On May 1, 2013, the hearing officer recommended that Mr. Larson pay Ms. Larson child support in the amount of $2,066.00 per month, effective February 21, 2013, and ordered Mr. Larson to pay health insurance, and 78% of uncovered extraordinary medicals, school tuition, registration, mandatory fees, and extracurricular activities for the children. The hearing officer further recommended that once the parties obtained shared custody (50/50), Mr. Larson’s child support obligation would be reduced to $1,091.00 per month, plus the 78% uncovered extraordinary medicals, school tuition, registration, mandatory fees, añd extracurricular activities for the children. Mr. Larson objected to the award of child support to Ms. Larson. Ms. Larson objected to the amount of child support.

|2On June 3, 2013, the hearing officer recommended that Mr. Larson pay Ms. Larson interim spousal support in the amount of $3,241.00 per month, effective February 21, 2013, and ordered Mr. Larson to maintain health insurance on Ms. Larson. The hearing officer further recommended an increase in the interim spousal support award, effective June 16, 2013, to the amount of $3,728.00 per month and ordered Mr. Larson to maintain health insurance, on Ms. Larson. On June 5, 2013, both Mr. Larson and Ms. Larson objected to the amount of the interim spousal support award.

On September 10, 2013, Ms. Larson filed a supplemental and amending, petition wherein she formally withdrew her request for final spousal support “at this time.”

Mr. Larson filed a rule to reduce child support on January 9, 2014, stating that his employment with Stantec Consulting Services Inc. (Stantec) was terminated through no fault of his own. Mr. Larson contends that the elimination of his position resulted in a material change in cir-. cumstances warranting a reduction in his child support obligation.

On August 4, 2014, Ms. Larson filed a motion to reset her rules for contempt and objections. Within that motion, Ms. Larson also requested an increase in child sup-' port. Ms. Larson contended that Mr. Larson had obtained new employment since the last time the. parties were before the hearing officer. She also' claimed that upon information and belief, he was earning significantly more than previously and therefore had more disposable income to allocate to his child support obligation.

Judgment for divorce was granted on June 26, 2014. The parties’ numerous objections to hearing officer recommendations and motions were set and reset | .¡several times due to continuances, the recusal of two trial court judges, and the' transfer to and return from juvenile court of the parties’ spousal and child support objections and motions. Trial on all of the parties’ outstanding motions and objections was set and heard over four days on August 26, 2015, August 27, 2015, January 11,2016 and January 20, 2016.

The trial court awarded Ms. Larson interim spousal support for the period beginning May 1,2013 and ending December 26, 2014. Ms. Larson was awarded the amount of $3,008.00 per month for the period beginning May 1, 2013 and ending June 16, 2013. For the period beginning June 17, 2013 and ending December 26, 2014, Ms. Larson was awarded the amount of $3,638.00 per month. The trial court made the awards executory and Mr. Larson- received a credit in the amount of $12,501.41 for all previous payments made, as stipulated by the parties. The trial court denied Mx*. Larson’s request for spousal support. The trial court also granted Mr. Larson’s rule to reduce child support, retroactive to the date of filing, January 1, 2014, and .reduced the amount to $401.00 per month. The trial court further granted Ms.’Larson’s rule to increase child support, retroactive to the date of filing, August 8, 2014, and increased the amount to $1,081.00 per month.

Applicable Law

Spousal Support

In a proceeding for divorce, the court may award a party an interim spousal support allowance based on the needs of that party, the. ability of the other party to pay, and the standard of living of the parties during the marriage. La. C.C. art. Ill and 113. A spouse’s right to claim interim spousal support is based on the statutorily imposed, duty on spouses to support each other during marriage. La. C.C. art. 98; Hall v. Hall, 08-706 (La. App. 5 Cir. 02/10/09), 4 So.3d 254, 257, writ denied, 09-0812 (La. 05/29/09), 9 So.3d 166; McAlpine v. McAlpine, 94-1594 (La. 09/05/96), 679 So.2d 85, 90. Thus, interim spousal support provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Short v. Short, 11-1084 (La. App. 5 Cir. 05/22/12), 96 So.3d 552, 556.

Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. St. Pierre v. St. Pierre, 09-1124 (La. App. 5 Cir. 05/25/10), 42 So.3d 426, 428-429; Dufresne v. Dufresne, 08-215 (La. App. 09/16/08), 992 So.2d 579, 588, writ denied, 08-2843 (La. 12/17/08), 996 So.2d 1123. The needs of the; claimant spouse is defined as “the total, amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation limited only by the husband’s ability to pay.” Hall, 4 So.3d at 257. The trial court has wide discretion in imputing income to a claimant spouse where that spouse’s income is uncertain. Molony v. Harris, 09-1529 (La. App. 4 Cir. 10/14/10), 51 So.3d 752, 757; Kirkpatrick v. Kirkpatrick, 41,851 (La. App. 2 Cir. 01/24/07), 948 So.2d 390, 394-395.

Interim spousal support is awarded retroactive to the date of the petition for spousal support. La. R.S. 9:310 A; Loftice v. Loftice, 07-1741 (La. App. 1 Cir. 03/26/08), 985 So.2d 204, 210. However, if the court “finds good cause for not making the award retroactive, the court may fix the date such award shall Recome due.” La. R.S. 9:310 C. The burden is on the defendant-in-rule to show good cause for not making the award retroactive. Broussard v. Broussard, 532 So.2d 281, 283 (La. App. 3 Cir. 1988). Interim spousal support “shall terminate upon the rendition of a judgment of divorce.” La,. C.C. art. 113 A. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition' of judgment of divorce, whichever occurs first. La. C.C. art. 113 B.

| r,The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made. Hall, 4 So.3d at 257. The burden is on the claimant to prove his or her entitlement to interim spousal support. Short, 96 So.3d at 557.

A trial court is afforded much discretion in- determining an award of interim spousal support, and that award may not be disturbed absent a clear abuse of discretion. Lowentritt v. Lowentritt, 11-703 (La. App. 5 Cir. 03/13/12), 90 So.3d 1081, 1086; McFall v. Armstrong, 10-181 (La. App. 5 Cir. 10/12/10), 50 So.3d 904, 907. As to interim spousal support specifically, an “abuse, of discretion will not be found if the record supports the trial court’s conclusions about the means of the payor spouse and his or her ability to pay.” Short, 96 So.3d at 556 (citing Lambert v. Lambert, 06-2399 (La. App. 1 Cir. 03/23/07), 960 So.2d 921, 928). Factual findings shall not be set aside absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). To substantiate reversal, the appellate court must find from the record that there is no reasonable factual basis for the finding of the trial court and that the record establishes that the finding is clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987).

Child Support

A trial court’s order of child support is entitled to great weight. Hall v. Hall, 11-60 (La. App. 5 Cir. 05/24/11), 67 So.3d 635, 638, writ denied, 11-1752 (La. 10/14/11), 74 So.3d 214. An appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Id.; State, D.S.S. ex rel. D.F. v. L.T., 05-1965 (La. 07/06/06), 934 So.2d 687, 690.

An award of child support may be modified if the circumstances of the child or of either parent materially change, La. C.C. art. 142. An award for child.support shall not. be modified unless the-party seeking the modification shows a material | -(¡change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award. R.S. 9:311 A(1).

The determination of whether a material change of circumstances has occurred is a question of fact and will not be disturbed absent manifest error. Hall, 67 So.3d at 639; Hernandez v. Hernandez, 05-1342 (La. App. 1 Cir. 06/09/06), 938 So.2d 1019, 1024-1025. The trial court is in a better position to observe the demeanor of the witnesses and rule on their credibility. Hall, 67 So.3d at 639.

Discussion

In his first three assignments of error, Mr. Larson contends that the trial- court abused-its discretion and was manifestly erroneous in 1) finding Ms. Larson was in need of and entitled to interim spousal support because she is the benefactor of several trusts and her income and assets were greater than- his; 2) refusing to attribute to Ms. Larson -her half of Mr. Larson’s retirement benefit pursuant to the pre-nuptial agreement in calculating Ms. Larson’s income; and 3) ordering Mr. Larson to pay interim spousal support past the date of divorce when no rule for final spousal support was pending.

. Mr. Larson argues .that Ms. ' Larson gave eonflicting.responses to discovery regarding several trusts and repeatedly refused to provide all documents necessary to determine her income. He contends that Ms. Larson filtered hundreds of thousands of dollars through her checking account and could not provide any explanation for the money. Mr. Larson claims" that Ms. Larson also owns a company named Con-lumat, Ameritrade accounts, a Raymond James account, Exxon stock, Arthur Peif-fer Family L.P., leases for oil in Texas, rental property in Colorado, was employed full time and had an interest in a portion of his pension. Thus, he argues that that Ms. Larson’s income was greater than his and she was not in need of interim spousal support. Mr. Larson also argues that the parties agreed that Ms. Larson was entitled to a portion of his retirement benefits pursuant to the pre-nuptial agreement Land that portion would come from his survivor benefits. Because Ms. Larson has refused to sign the QDRO that would give Ms. Larson her portion, Mr. Larson argues that Ms. Larson’s portion should be counted as income for Ms. Larson. He further argues that he was ordered to pay interim spousal support beyond the date of divorce when no rule for final support was pending.

At trial, Mr. Larson attempted to show that Ms. Larson has sufficient funds and is not in need of support. On appeal, we cannot find that the trial court was clearly wrong or manifestly erroneous in its-conclusion. The income and expenses affidavit submitted by Ms. Larson showed that her expenses were $6,058.00 a month and the hearing officer imputed income to Ms. Larson in the .amount of $1,535,00 per month. Bruce Miller, qualified as an expert in the areas of trusts and taxation, testified extensively that after .reviewing Ms. Larson’s trusts and tax documents, he concluded that she did not have an interest in any trust. Mr. Miller also produced a letter from David P. Chaney, CPA, wherein Mr. Chaney explained that he prepared the Arthur Peiffer Family L.P. tax returns from 2003 to 2014. Mr. Chaney stated that he was given documentation in 2003 that referenced one of the trusts (“Heritage”) even though those trusts never came into existence. Mr. Chaney’s letter states that he erroneously continued to prepare the Arthur Peiffer Family L.P. tax returns referencing the “Heritage” trusts which generated confusion.

Stephanie Halphen, accepted as an expert forensic CPA, testified that she analyzed Ms. Larson’s investments at Raymond James, the Conlumat checking account statements and the tax returns for the relevant time period. She also ordered IRS transcripts that would have shown if any trusts were reporting income for Ms. Larson and there were none. Ms. Halphen prepared a summary of Ms. Larson’s average monthly income. Ms. Halphen testified extensively regarding Ms. Larson’s | ^accounts and investments and concluded that $1,535.00, the amount of income imputed to Ms. Larson, was reasonable based on her calculations of Ms. Larson’s income. Ms. Halphen also explained that the large deposits of funds in Ms. Larson’s checking account could be accounted for and were from the sale of Ms. Larson’s personal property to pay bills, repayment of a loan by Ms. Larson’s brother, the sale of Ms. Larson’s Mercedes, a settlement check from an insurance company in May 2013, and another settlement check for a lawsuit against her step-daughter in December 2013 for $15,627.62, She testified that these funds were “non-reoecurring funds” and they did not count as income. Ms. Halphen further testified that Ms. Larson carries a margin loan on her -Raymond James account wherein she is required to pay interest. Moreover, Ms. Halphen testified that after reviewing Mr. Larson’s financial records for a three year period, Mr. Larson had average monthly deposits of $10,752.36.- The income and expense affidavit submitted by Mr. Larson provided that his average net monthly income was $10,785.27.

After a four-day trial, the trial court awarded Ms. Larson interim spousal support for the period beginning May 1, 2013 and ending December 26, 2014. Ms. Larson was awarded $3,008.00 per month for the period beginning May 1, 2013 and ending June 16, 2013, and awarded $3,638.00 per month for the period beginning June 17, 2013 and ending December 26, 2014. The awards were made executory and Mr. Larson received credit in the amount of $12,501.41 for all previous payments made, as stipulated at trial by the parties.

There was no showing that the trial court abused its discretion in awarding Ms. Larson interim spousal support. Despite Mr. Larson’s assertions to the contrary, the record supports the trial court’s conclusions that Ms. Larson was in need of support and Mr. Larson had the means and the ability to pay spousal support in the | aamounts awarded by the trial court. There is no evidence in the record to support Mr. Larson’s argument that Ms. Larson is a “multimillionaire.” There is a reasonable factual basis for the findings of the trial court and thus, the trial court was not wrong or manifestly erroneous. We also find that the trial court did not abuse its discretion and it was not manifestly erroneous in declining to impute Ms. Larson’s portion of Mr. Larson’s'monthly retirement benefits as income to Ms. Larson. While it is undisputed that Ms. Larson is entitled to her portion of Mr. Larson’s monthly retirement benefits, uneontradict-ed testimony at trial established that Mr. Larson received and continues to receive all of the funds from his monthly retirement benefits. Ms. Larson has not received any funds from Mr. Larson’s monthly retirement benefits. Thus, the trial court properly determined that the monthly retirement funds received and used by Mr. Larson were income properly attributable to Mr. Larson. See Loftice, 985 So.2d at 209.

However, we do find that the trial court abused its discretion and was manifestly erroneous in awarding interim spousal support in the amount of $3,638.00 per month for the period beginning June 27, 2014 and ending December 26, 2014. Ms. Larson did not have a motion for final spousal support pending at the judgment of divorce, so her interim' spousal support therefore terminated at the rendition of the judgment of divorce, June 26, 2014. Accordingly, Ms. Larson’s interim spousal support terminated on June 26, 2014, arid that portion of the judgment is amended to reflect that Ms. Larson is awarded interim spousal support for the period beginning May 1, 2013 and ending June 26, 2014.

In his fourth assignment of error, Mr. Larson contends that the trial- court abused its discretion and was manifestly erroneous in not awarding him interim spousal support. Mr. Larson argues that his hearing officer affidavit showed a deficit of over $3,000.00 between his earnings and expenditures. He claims that the | inextravagant iifestyle that existed during the marriage was provided for by Ms. Larson.

There is nothing in the record that supports Mr. Larson’s contention that he is in need of interim spousal support, or that Ms. Larson has the ability to pay interim spousal support. The trial court did not abuse its discretion in declining to award Mr. Larson interim spousal support. Because there was a reasonable factual basis for finding that Mr. Larson,was not entitled to- interim spousal support, the trial court’s finding was not manifestly erroneous. Accordingly, this argument is without merit.

in his fifth assignment of error, Mr. Larson contends that the trial court abused its discretion and was manifestly erroneous in simultaneously granting his rule to reduce child support and granting Ms. Larson’s motion to increase child support because Ms. Larson’s motion to increase child support was not pending before the trial court.

Based on the record, the trial court intended to set all outstanding objections and motions on its docket, including the motion to increase child support. The history and nature of this case is complicated. The parties filed numerous pleadings, objections, and motions which were set and continuously continued. The continuances were due in part to the numerous child and spousal support issues that were transferred to the juvenile court and subsequently returned to the trial court. Additionally, two prior trial judges recused themselves from this case which caused the objections and motions to be reset several times. Once the matter was transferred to the third trial judge, the record establishes that the trial court wanted to hear all of the outstanding motions and objections, on May 5 and May 6, 2016. For reasons ^unknown, all of those matters were continued to August 26, 2016. Therefore, Ms. Larson’s motion to increase child support was properly on the trial court’s docket.

Furthermore, the trial court did not abuse its discretion and was not manifestly erroneous in granting both Ms. Larson’s motion to increase child support and Mr. Larson’s rule to reduce child support obligation. Mr. Larson’s rule to reduce child support was filed January 1, 2014, when he was unemployed due to no fault of his own. The trial court granted Mr. Larson’s rule to reduce child support, retroactive to January 1, 2014. Ms. Larson filed her. motion to increase child support on August 4, 2014, alleging that a material change in circumstance had occurred when Mr.- Larson had obtained new employment since the last hearing officer conference. The undisputed testimony showed that Mr. Larson lost his job with Stantec in January 2014, and was unemployed for 10 weeks. Mr. Larson obtained new employment on April 7, 2014 and began making $78,000.00 per year, plus his monthly retirement benefits. Thus, Ms. Larson established a material change in circumstance which' supports the trial court’s granting of Ms. Larson’s motion to increase child support. Accordingly, the trial court did not abuse its discretion and was not manifestly erroneous in awarding Ms. Larson an increase in child support. However, the award was incorrectly made retroactive to August 8, 2014,' Ms. Larson filed her motion to increase child support on August 4, 2014. Therefore, that portion of the judgment is amended to reflect that the award of child support to Ms. Larson is retroactive to August 4,2014.

^Conclusion

For the reasons stated above,,the judgment is amended to reflect that Ms. Larson is awarded interim spousal support for the period beginning May 1, 2013 and ending June 26, 2014, and to reflect that the award of child support to Ms. Larson is retroactive to August 4,2014, and affirmed as amended.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED

      . On February 15, 2017, this Court found the April 29, 2016 judgment to be deficient because it lacked the requisite decretal language, and the trial court was ordered to amend its judgment, The trial court signed its amended judgment on March 7, 2017, and supplemented the record on review.

      . For reasons beyond the control of the parties, Mr. Larson’s rule to reduce child support was not ruled on by the time Ms, Larson filed her motion to increase child support. Rather, both motions were heard at the same time, approximately two years after they were filed. In the interest of judicial economy, we find the trial court properly considered Ms. Larson’s motion to increase child support to be filed in response to Mr. Larson’s rule to reduce child support. Mr. Larson was unemployed at the time of his request for a reduction in his child support obligation and had obtained new employment at the time of Ms. Larson’s motion to' increase child support.

      . The original judgment and the amended judgment ruled on other mptions that were not appealed.

      . Mr. Miller also wrote a letter dated August 1, 2014, wherein he addressed each trust and concluded that Ms. Larson did not have an interest in any trust.

      . According' to the summary, Ms. Larson's average net-monthly income based on her bank statements was $1,303.00 a month and was $1,841.52 based on average net monthly income' from. tax returns for the period of - 2012 through 2014.

      . Mr. Larson also argues that the trial court erred because it did not set a value for the reduction and increase of child support and did not attribute an income amount to either party on the respective motions. Prior to submission, this Court ordered the trial court to submit an amended judgment to address deficiencies, in the judgment, including Mr. Larson’s argument regarding lack of value set. The trial court’s amended judgment sets the value for the reduction and increase of child support and attached documents calculating each respective motion which included the amount of income attributed to each party. We therefore decline to address this issue.