author: PENZATO, J.

text:
    STATE of Louisiana v. Marlone Rashen BRUMFIELD
    2017 KA 0080
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2017

      Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Attorneys for Appellee, State of Louisiana
    David F. Gremillion, Rachel Yazbeck, New Orleans, Louisiana, Attorneys for Defendant/Appellant, Marlone Rashen Brum-field
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

^Defendant, Marlone R. Brumfield, was charged by amended bill of information with aggravated obstruction of a highway, a violation of La. R.S. 14:96 (count one); possession of a schedule II controlled dangerous substance-cocaine, a violation of La. R.S. 40:967(C) (count two); and third-offense possession of marijuana, a violation of La. R.S. 40:966(E)(3) (count three). He pled not guilty. Prior to trial, the state severed count three. Following a jury trial, defendant was found guilty as charged on counts one and two. Thereafter, he filed motions for new trial and postverdict judgment of acquittal, both of which the trial court denied. The state filed a habitual offender bill of information, alleging defendant to be a fourth-felony offender with respect to both convictions. Defendant denied the contents of the habitual offender bill and, after a hearing, the trial court adjudicated him to be a fourth-felony habitual offender on each count. On count one, the trial court sentenced defendant as a fourth-felony habitual offender to life imprisonment at hard labor, without probation or suspension of sentence. On count two, the trial court sentenced defendant as a fourth-felony habitual offender to twenty years at hard labor, without probation or suspension of sentence, concurrent -with the sentence on count one. Defendant filed a motion to reconsider these sentences, which the trial court denied. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the convictions, habitual offender adjudications, and sentence on count two; we amend the sentence on. count one and affirm that -sentence as amended.

I «FACTS

On the evening of August 26, 2016, officers with the St. Tammany Parish Sheriffs Office narcotics division utilized a “cooperating individual” (Cl) to set up a controlled purchase of liquid promethazine and codeine. Defendant was the target of the investigation, and the sale was to occur in the parking lot of a Wendy’s fast food restaurant on La. Hwy. 21 in Cov-ington.

Several St. Tammany Parish Sheriffs detectives parked in the area of the Wendy’s in unmarked vehicles. Detectives Scott Thomas, Jason Prieto, and Roger Gottardi conducted surveillance from their vehicles located in adjacent parking lots. Detectives Bart Ownby and Jay Quinn sat inside a single vehicle in the Wendy’s parking lot, intending to make contact with defendant. The Cl and two unidentified detectives were located at the police station, where the Cl maintained contact with defendant.

Defendant arrived at the Wendy’s in a white truck, and drove slowly around the parking lot. He then entered the Wendy’s drive-thru line, but exited it before reaching the window. At some point while he was in the parking lot or the drive-thru line, defendant sent a text message to the Cl, asking who the “white guy” was. The information regarding this text message was radioed to the detectives in the area. Shortly after sending the text message, defendant exited the Wendy’s parking lot and began to drive down Stirling Boulevard.

Once defendant exited the Wendy’s parking lot, the detectives decided to effect a traffic stop of the vehicle. In an attempt to do so, the detectives began to maneuver their .unmarked vehicles around defendant’s truck to try to box it in and prevent him from fleeing. At that time, they had not activated their emergency lights or sirens. Once defendant was boxed in on three sides (front, back, and left), the detectives activated their emergency lights. In response, defendant applied the truck’s brakes, causing the police vehicles to the left and front to continue onward Lwithout him. He cut from the right lane of traffic, turned through the left lane, jumped the median on La. Hwy. 21, and began to travel at a high rate of speed in the opposite direction, disregarding traffic signals. Defendant eventually entered ' 1-12 and traveled eastbound at speeds in excess of 100 miles per hour. In doing so, he maneuvered his vehicle around several tractor-trailers and other passenger vehicles. In one particular incident, defendant cut in front of a tractor-trailer, causing it to slam on its brakes and the pursuing officers to drive on the interstate’s shoulder to prevent a collision. As defendant continued to evade officers on 1-12, he turned off his vehicle’s headlights despite the darkness and time of day (approximately 9:45 p.m.). Defendant exited the interstate at U.S. Hwy. 190 in Covington and continued to drive at a high rate of speed, disregarding traffic signals, and driving on the shoulder and median. He reached the Claiborne Hill area, where he sideswiped a church van that was traveling in the middle lane. He then turned onto Boston Street (U.S. Hwy. 190 Business) and then onto Lee Lane. He entered the Boston Commons parking lot, where the vehicle ultimately struck the handicapped ramp of an area business. Defendant exited the crashed vehicle and began to flee on foot, but he was soon apprehended.

After being apprehended, defendant was informed of his Miranda rights and Deputy T.J. Schlesinger initiated an outer clothing pat down. Deputy Schlesinger felt what appeared to be a cigarette box on defendant’s lower body. He received permission from defendant to remove the box, which was located inside defendant’s underwear. Deputy Schlesinger opened the box with the defendant’s permission and observed a substance that later tested positive as containing cocaine. Deputy Sehles-inger also found a small quantity of marijuana in defendant’s back pocket. A search of the vehicle driven by defendant revealed two bottles of red liquid. | ^Chemical analysis of the liquid in these bottles indicated that the substance was diphenhydramine (Benadryl). Defendant did not testify at trial.

SUFFICIENCY OF THE EVIDENCE

When issues are raised on appeal as to both sufficiency of the evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). In his second assignment of error, defendant contends that the evidence presented at trial was insufficient to support his conviction for possession of cocaine. In particular, he argues that the state failed to prove beyond a reasonable doubt that he knowingly or intentionally possessed the cocaine. Defendant does not challenge his conviction for aggravated obstruction of a highway.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the.essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in La. Code of Crim. Proc. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732.

To support a conviction for. possession of cocaine, the state must present evidence establishing beyond a reasonable doubt that the defendant was in possession of the drug and that he knowingly or intentionally possessed it. La. R.S. 40:967(C). Guilty knowledge is an essential element of the crime of possession of cocaine.- The elements of knowledge and intent are states. of mind and need not be proven as facts, but may be inferred from the circumstances. State v. Sylvia, 2001-1406 (La. 4/9/03), 845 So.2d 358, 361.

Defendant does not dispute that he possessed the cocaine. Rather, he argues that his possession was not knowing or intentional. At trial, the only hypothesis of innocence presented to the jury on this count was advanced through defense counsel’s closing argument. At that time, defense counsel put forth the theory that defendant was unaware of the presence of the cocaine in the cigarette pack because he was an addict without delayed gratification abilities. Thus, defense counsel’s theory was that defendant would have ingested the cocaine if he were aware of its presence.

The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. We are constitutionally precluded from acting as a. “thirteenth juror” in assessing what weight to, give evidence ⅛ criminal cases. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

|7When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury’s verdict in this case reflected the reasonable conclusion that defendant knowingly and intentionally possessed the cocaine. The jury reasonably rejected the defense theory that defendant, as an addict, would not be able to possess cocaine without immediately ingesting it. The circumstances presented by the state that are particularly indicative of defendants guilt are the location of the cocaine when it was recovered — inside a cigarette box located in defendant’s underwear — and defendant’s flight. The Louisiana. Supreme Court has noted that evidence of flight by a defendant may support a finding of guilty knowledge sufficient to prove knowing possession of cocaine. See Sylvia, 845 So.2d at 361 (citing State v. Postell, 98-0503 (La. App. 4th Cir. 4/22/99), 735 So.2d 782). In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. State v. Mire, 2014-2295 (La. 1/27/16), 231 So.3d 1074, 2016 WL 314814 (per curiam).

After a thorough review of the record, we find that the evidence supports the jury’s verdict finding defendant guilty of pqssession of cocaine. Viewing the evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of this offense. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).

This assignment of error is without merit.

¡^MOTION TO SUPPRESS

In his first assignment of error, defendant contends that the trial court erred in denying a motion to suppress the evidence found on his person and in the vehicle, all of which was seized by the police without a warrant. He contends that the police had no reasonable suspicion to attempt to pull over his vehicle, that Deputy Schlesinger’s actions exceeded the allowable scope of a pat down, that there was no consent, and that the-search of the vehicle was not a valid inventory search.

The Fourth Amendment to the United States Constitution and Article I, section 5, of the Louisiana Constitution protect people .against , unreasonable searches and seizures. However, the right qf law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La. Code Crim. P. art. 215.1, as well as both federal and state jurisprudence. State v. Bracken, 506 So.2d 807, 811 (La. App. 1st Cir.), writ denied, 511 So.2d 1152 (La. 1987) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and State v. Pautard, 485 So.2d 909 (La. 1986)). Reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individu-. al’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is or is about to be engaged in criminal conduct. Pautard, 485 So.2d at 911. The totality of circumstances must be considered in determining whether or not reasonable cause exists. State v. Belton, 441 So.2d 1195, 1198 (La. 1983).

At the hearing on the motion to suppress, Detective Thomas testified that the defendant’s actions when he entered the Wendy’s parking lot were not consistent with what people do inside of a parking lot. Defendant was riding the brake and was driving extremely slow compared to the other vehicles, as if he was looking for | ^something. After he sent a text message to the Cl asking who the “white guy” was, defendant jumped into the drive-through line and jumped out of thé line before placing his order. Detective Thomas stated that he and the other officers tried to effect a traffic stop in order to further their investigation of defendant, and to corroborate the information given by a third party. According to Detective Thorn:as, it was a reasonable suspicion that defendant had . the items the officers were looking for in the vehicle, namely codeine with promethazine cough syrup.

We find that the-above articulated facts and circumstances,, within the officers’ knowledge, in connection with the reasonable inferences drawn therefrom, provided the officers with a reasonable cause to believe that defendant had been, was or was about to be engaged in criminal conduct. See Bracken, 506.So.2d at 812. Thus, the attempted investigatory stop was legal.

Continuing the analysis, following the attempted traffic stop, defendant led officers oh a protracted chase that ended only when he crashed his vehicle, fled on foot, and was eventually detained by patrol officers who were called in to assist. In taking evasive actions by engaging in numerous acts of dangerous driving, defendant ultimately gave the police probable cause to arrest him for any of the offenses he committed, including the offense for which he was convicted in count one. Upon his apprehension, defendant was properly searched incident to his arrest, and gave Deputy Schlesinger permission to remove and open the cigarette box containing cocaine. Therefore, all of the contraband was lawfully seized from defendant’s person. See State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1226. This-search and seizure was lawful regardless of whether defendant' was formally under arrest at the time of the search. See State v. Surtain, 2009-1835 (La. 3/16/10), 31 So.3d 1037, 1046.

Defendant alsp challenges the search of the vehicle, but this search was justified under the automobile exception to the warrant requirement. Under., the |inautomobile exception, police may search a vehicle without obtaining a search warrant if the car is readily mobile and probable cause exists to believe it contains contraband or evidence of criminal activity. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam); United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982). In such cases, no special exigency is required beyond a showing of the mobility of the automobile. Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam). Further, it has been held in applying the automobile exception that there is no constitutional distinction between seizing and holding a vehicle before presenting the probable cause issue to a magistrate and immediately searching the vehicle without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Gordon, 93-1923 (La. App. 1st Cir. 11/10/94), 646 So.2d 1005, 1010. In this ease, at the time the vehicle was searched, defendant’s person had already been searched, and he had been found to be in possession of cocaine and marijuana. This information, coupled with the officers’ knowledge from the initial set up to purchase promethazine and codeine from defendant,, gave them probable cause to believe the vehicle might contain contraband or evidence of criminal activity. Even if we were to find the vehicle search to be unlawful, any error concerning the admission of evidence seized from the vehicle would be harmless beyond a reasonable doubt because no true contraband was discovered. See La. Code Crim. P. art. 921.

Considering the above, the trial court was correct in denying the motion to suppress the evidence. The officers had reasonable suspicion to attempt to pull over defendant’s vehicle. Thereafter, his actions gave rise to probable cause leading to his arrest, a search of his person incident thereto, and a search of the vehicle also supported by probable cause.

InThis assignment of error is without merit.

EXCESSIVE SENTENCE

In his third assignment of error, defendant contends that his sentences are unconstitutionally excessive. Though defendant does not clearly state that he challenges both sentences as excessive, we treat this assignment of error as if he has done so.

Prior to addressing the merits of defendant’s final assignment of error, we note a sentencing error which is correctable by this court on appeal. Our review for error is pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

On count one, defendant was sentenced as a fourth-felony habitual offender to life imprisonment, without probation or suspension of sentence. The trial court clearly stated that defendant was being sentenced according to the “mandatory provisions of law” after finding that two of defendant’s prior felonies (aggravated battery and simple robbery) were for crimes of violence and his instant felony was punishable by imprisonment for twelve years or more. See La. R.S. 14:2(B)(5) & (23); La. R.S. 14:96(B). Accordingly, defendant’s “mandatory” sentence is one which also requires the restriction of parole. See La. R.S. 15:529.1(A)(4)(b).

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in 112any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. La. R.S. 15:301.1(A).

An illegal sentence may' be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crina. P. art. 882(A). As an appellate cour,t, we are authorized to correct an illegal sentence that involves no more than the ministerial correction of a sentencing error. State v. Carter, 2016-1078 (La. App. 1st Cir. 12/22/16), 210 So.3d 306, 309, writ not considered, 2017-0399 (La. 4/24/17), 219 So.3d 1100. In the instant ease, *the correction of this sentencing error does not require discretion, so we amend the sentence on count one to include a restriction of parole.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than the needless infliction of pain and suffering. State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. A trial court is given wide discretion in the imposition of sentences within' statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).

As discussed above, because of defendant’s prior felony convictions, the sentence imposed on count one was mandatory. For his conviction and habitual offender adjudication' on count two, the habitual offender sentencing range was |,(¡twenty years to life. On this count, the trial court imposed a legal, minimum sentence of twenty years, without probation or suspension of sentence, to run concurrently with the sentence on ■count one.' See La. R.S. 15:529.1(A)(4)(a) & (G); La. R.S. 40:967(C)(2). '

Courts are charged with applying a statutorily mandated'"punishment unless it is unconstitutional. State v. Dorthey, 623 So.2d 1276, 1278 (La. 1993). In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court re-examined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence in the context of the Habitual Offender Law.- The court stated that to' rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means 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.

Johnson, 709 So.2d at 676 (quoting State v. Young, 94-1636 (La. App. 4th Cir. 10/26/95), 663 So.2d 525, 531 (Elotkin, J., concurring), writ denied, 95-3010 (La., 3/22/96), 669 So.2d 1223.)

The trial court imposed the two sentences in this case as directed by the Habitual Offender Law (minus the ministerial correction made by-this court). At the sentencing hearing, defendant presented no evidence to rebut the presumption that the mandatory sentences were, constitutional, but he argued that one of th,e prior felonies used to enhance his instant sentences (the conviction for second-offense possession of marijuana) is now classified as a misdemeanor and should not be used to enhance his instant sentences. See La. R.S. 40:966(E)(Z )(b) (following amendment by 2015 La. Act No, 295). Defendant’s motion to reconsider sentence argued that he was not trying to violate the law, that he has children who depend on his support, and that he is in need of rehabilitation. On appeal, he argues that he has |ualways struggled with drugs, and he reiterates the claim regarding enhancement using the second-offense marijuana conviction.

Defendant failed to “clearly and convincingly” rebut the . presumption that the mandatory sentences were constitutional. Defendant did not present to the trial court any particular or special circumstances that would .support a deviation from the mandatory minimum sentences provided for in the ..Habitual Offender Law. Defendant failed to clearly and convincingly show that because of unusual circumstances, he was the victim of the legislature’s failure .to assign sentences that were meaningfully tailored to his culpability, the gravity of the offenses, and the circumstances of the case. See Johnson, 709 So.2d at 676. There was no reason for the trial court to - deviate from the provisions of La. R.S. 15:529.1(A)(4)(a) and (b) in sentencing the defendant, and the sentences were not grossly disproportionate to the severity of the offenses. Therefore, these sentences were not unconstitutionally excessive.

This assignment of error is’without merit.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCE ON COUNT TWO AFFIRMED. SENTENCE ON COUNT ONE AMENDED AND, AS AMENDED, AFFIRMED.

      . The alleged predicate convictions are as follows: 1) a May 31, 2005 conviction for simple robbery under St. Tammany Parish (22nd JDC) docket number 396405; 2) a July 16, 2008 conviction for aggravated battery under St. Tammany Parish (22nd JDC) docket number 404979; and 3) an August 22, 2011 conviction for second-offense possession of marijuana (a felony at the time of this conviction) under St.- Tammany Parish (22nd JDC) docket number 506272.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Even assuming we were to find merit in defendant’s claim that the second-offense possession of marijuana conviction could not be used to enhance his instant sentences, he would still be subject to third-offense habitual offender sentences of life imprisonment, without parole, probation, or suspension of sentence on count one, and 40 months to ten years, without probation or suspension of sentence on count two. See La. R.S. 15:529.1(A)(3)(a) & (b); La. R.S. 40:967(0(2).


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    STATE of Louisiana v. Martin DYSON
    2015 KA 1800
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017

      Hillar C. Moore, III, District Attorney, Stacy Wright, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, Attorney for Defendant-Appellant, Martin Dyson
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

|2The defendant, Martin Dyson, was charged by bill of information with two counts of sexual battery, violations of Louisiana Revised Statutes 14:43.1 (prior to amendment by 2011 La. Acts No. 67 § 1 and 2015 No. 256 § l). He entered a plea of not guilty and, following a bench trial, was found guilty on both counts. The defendant filed a motion for' new trial, which was denied. On count one, the defendant was sentenced to twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, the defendant was sentenced to five years at hard labor without the benefit of probation, parole, or suspension of sentence. The district court ordered the sentences to run concurrently. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, arguing that the sentence imposed on count one is excessive. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

Count one:

During the first half of 2011, the defendant was living with his nephew on Dutton Street in Baton Rouge in order to help him renovate his home. Also living in the residence were the defendant’s nephew’s wife and her four children. One of the children, twelve-year-old T.H. was awakened in the middle of the night to someone lying on top of her and “riding” her. T.H. testified that the person put a pillow over her face and pulled up her nightgown. She was wearing underwear, but- could feel the person’s penis on her vagina. According to T.H., the person then ran out of her bedroom. The following night, someone entered her bedroom, hpulled her shorts down, and inserted his penis into her vagina. T.H. explained that she could not see the person because he held a pillow over her head. However, when the person walked out of her room, T.H. followed him and identified the person as the defendant. The defendant told T.H., “You don’t have to tell nobody” and threatened to hurt her family if she told. After returning to her bedroom, T.H. saw blood on her sheets. She washed them before school the next day “so nobody would know.” T.H. did not disclose the incidents until May 2012.

Count two:

During June or July 2011, thirteen-year-old J.B. was spending the night at her grandmother’s house on Underwood Avenue in Baton Rouge. While asleep, she was awakened by her great-uncle, the defendant, who resided at the residence at the time. The defendant asked J.B. to help him find a bowl. The two looked for the bowl in the kitchen, and when they were unable to find it, the defendant asked J.B. to come into his room. Once in the room, the' defendant told J.B. to get on the bed and lie on her stomach. The defendant, who was wearing only a white muscle shirt and boxer shorts, got on top of J.B. and began “dry humping” her. According to J.B., the defendant told her not to let another man “do this” to her. The defendant also told J.B. not to tell or he would kill her grandmother. Once J.B. was able to get up, she went into- her grandmother’s room and went back to sleep. The following day, the defendant gave J.B. $20. J.B. asked the defendant, “What I [sic] supposed to be, your slut[?]” According to J.B., the defendant responded, “No, not yet.”

J.B. did not disclose the incident to her mother until October 2011. Thereafter, in February 2012, the defendant was placed under arrest and gave a [¿videotaped statement. In his statement, the defendant admits to “hunching” J.B., which he described as “humping.”

EXCESSIVE SENTENCE

In his sole assignment of error, the defendant contends that the district court imposed an excessive sentence. Specifically, he argues that although he was sentenced to the mandatory minimum sentence on count one, the district court should have deviated downward from that sentence because he is a “family man with two sons and two daughters.... • two brothers and two sisters.” The defendant also contends that-he has no significant criminal history.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is' grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in’ light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessiye in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the district court before imposing sentence. See La. Code Crim. P. [¡¡art. ,894.1. The district court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir. 1990), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article.894.1, a review for individual exces-siveness should consider the circumstances of the crime and the district court’s stated reasons and factual basis for its sentencing decisión. Herrin, 562 So.2d at 11.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a district court judge were to find that the punishment mandated by Louisiana Revised Statutes 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender . Law. While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by La. R.S. 15:529.1. State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); see State v. Collins, 2009-1617 (La. App. 1st Cir. 2/12/10), 35 So.3d 1103, 1108, writ denied, 2010-0606 (La. 10/8/10), 46 So.3d 1265.

Mandatory sentences have been repeatedly upheld as constitutional and consistent with the federal and state constitutional provisions ■ prohibiting cruel, | r,unusual or excessive punishment. See State v. Jones, 46,758 (La. App. 2nd Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 2012-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence - is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means 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. Johnson, 709 So.2d at 676.

At the time .of the 'offenses, La. R.S. 14:43.1C(2), provided: “Whoever commits the crime of sexual battery on a victim under the age-of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years.” Louisiana Revised Statutes 14:43.10(2) also provided, “At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.” -On count one, the defendant was sentenced to the statutory mandatory minimum sentence of twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. •

The defendant contends that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, gravity of the offense, and circumstances of the case because “unbeknownst to the legislature, [he] is a family man with two sons and two daughters. He also has two brothers and two sisters.” At the hearing on the defendant’s motion to reconsider sentence, the district court denied the motion and noted that the defendant was sentenced to the minimum sentences on both counts and that it ordered that the sentences on both counts to run concurrently. The defendant responded, “How do you put something on somebody that they didn’t have anything happen?" That’s |7what I don’t understand. They had to keep me in this parish "three years to put something on me, to find something, to try to find on me. Whatever. If you don’t reconsider my — I just keep on doing my time, whatever, but that’s it.” Although the defendant presents himself as a “family man,” the record clearly establishes that both victims were, members of the defendant’s family and step-family, and the defendant used those relationships to exploit the young female victims. The defendant also argues that he has “no significant criminal history.” Contrary to the defendant’s assertion, he admitted at trial that he was previously convicted of third and fourth offense driving while intoxicated. The record before us clearly establishes an adequate factual basis for the sentences imposed. The defendants who was fifty-three years old at the time of the offense, used his status as a relative of the twelve-year old victim’s step-father to gain access into her home, enter her room in the middle of the night, cover her face with a pillow, pull down her shorts, and insert his penis into her vagina. He presented no evidence that he was exceptional, such that the sentence imposed was not meaningfully tailored to his culpability, the gravity of the offenses, and the circumstances of the case. Accordingly, no downward departure from the presumptively constitutional mandatory .minimum sentence was .warranted. The sentence imposed was not grossly disproportionate to. the severity of the offense and, therefore, was not unconstitutionally excessive. The assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Count one occurred between January 1, 2011, and June 30, 2011, and the victim, T.H., was twelve years old. Count two occurred between June 1, 2011, and July 31, 2011, and the victim, J.B., was thirteen years old.

      . Herein, the two victims will be referred to by initials only. See La. R.S. 46:1844W.

      . The defendant does not challenge the sentence imposed on count two in his brief.


text:
    Barry MCCRANEY and Peggy Souza McCraney v. John DOE, Matt Smith and New Zion Baptist Church
    2017 CA 0123
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2017

      Joseph F. Myers, Covington, Louisiana, Attorney for Plaintiffs/Appellants, Barry McCraney and Peggy Souza McCraney
    David J. Knight, Folsom, Louisiana, Attorney for Defendant/Appellee, Matt Smith
    Ryan N. Ours, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, New Zion Baptist Church
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

12This is an appeal by Appellants,'Barry McCraney and Peggy Souza McCraney, of a judgment dismissing their case following a trial of the matter against Appellees, Matt Smith and New Zion Baptist Church. Appellants failed to timely file a brief within the time period provided by Rule 2-12.7 of the Uniform Rules of Louisiana Courts of Appeal. This court dismissed the appeal on May 3, 2017 after thirty (30) days passed from the mailing of the notice in accordance with Rule 2-8.6 of the Uniform Rules of Louisiana Courts of Appeal and no brief was filed. However, both Appel-lees timely answered the appeal requesting damages for a frivolous appeal. The answers to appeal are the only issue before this court.

FACTS AND PROCEDURAL HISTORY

We set forth the facts of the appeal only as it relates to the request for damages for a frivolous appeal by both Appellees in their answers to appeal. Appellants sued Matt Smith, New Zion Baptist Church, and John Doe, alleging that Matt Smith made harassing phone calls to them. Both Appellees filed answers denying the allegations. The matter was originally set for trial on March 9, 2015, but Appellants sought a continuance. The trial court granted the continuance and set the trial for the week of August 24, 2015. Counsel for Appellants withdrew from the case on August 12, 2015. Subsequently, new counsel enrolled and sought to continue the trial date. The second counsel for Appellants withdrew from the case on September 8, 2015. A third counsel enrolled for Appellants and sought a continuance of the November 23, 2015 trial date, which the trial court granted over'the opposition of both Appellees. The matter was reset for trial on March 9, 2016. On that date, the trial court granted a previously filed motion to continue and set the trial for June 3, 2016. Two days prior to the June 3, 2016 trial date, Appellants filed a motion to continue trial. On the day of the trial, the trial court heard oral | ¡¡arguments regarding the motion to continue. The trial court denied the continuance, but agreed to hold the transcript open to allow the Appellants to proffer any necessary depositions. Counsel for Appellants informed the trial court that he was not prepared to go forward with the trial, and on oral motion of Matt Smith, the case was dismissed with prejudice. The trial court signed a judgment on July 13, 2016, dismissing Appellants’ case, with prejudice, and noting that Appellants declined at the trial to present any evidence in support of their case.

Despite having presented no evidence at the trial court, Appellants filed an appeal in this matter. The return day was extended in this matter until February 2, 2017. Therefore, both Appellees answered the appeal within the time delay provided by La. C.C.P. art. 2133, seeking damages for a frivolous appeal. As noted above, this court dismissed the appeal as no brief was filed on behalf of Appellants.

ANSWERS TO APPEAL

The only issue before this court is whether Appellees are entitled to damages for a frivolous appeal. Louisiana Code of Civil Procedure article 2164 provides that an appellate court may award damages, including attorney fees, for a frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. The courts have been reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Cordon v. Par. Glass of St. Tammany, Inc., 2014-0475 (La. App. 1 Cir. 12/23/14), 168 So.3d 633, 640, writ not considered, 2015-0167 (La. 4/17/15), 168 So.3d 390, citing Henkelmann v. Whiskey Island Preserve, LLC, 2013-0180 (La. App. 1 Cir. 5/15/14), 145 So.3d 465, 471. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Furthermore, because appeals are favored in our |4Iaw, penalties for the filing of. a frivolous appeal will not be imposed unless they are clearly due. Cordon, 168 So.3d at 640.

The Notice of Appeal was filed on October 5, 2016. On February 2, 2017, Matt Smith filed an answer to the appeal claiming he had incurred attorney’s fees and expenses in connection with the case. On February 10, 2017, New Zion Baptist Church filed an answer to the appeal seeking civil damages, attorney’s fees, and all costs (trial and appellate). On March 3, 2017, this court notified the Appellants that because no brief had been filed, the appeal would be deemed abandoned pursuant to Rule 2-8.6 of the Uniform Rules of Louisiana Courts of Appeal if the Appellants’ brief was not filed by a certain date. On March 27, 2017, Appellants sought an extension of time to file their brief, which was granted until April 12, 2017. On April 12, 2017, Appellants again sought to extend the time to file their brief, which this court denied on April 21, 2017. Prior to the denial, Smith filed an appellee brief, which mainly asserted his position as to damages for frivolous appeal. On May 3, 2017, this court dismissed the appeal as abandoned.

When an appellant does not file a brief specifying any error, it is difficult for a court to find that the party seriously believed in the merits of his position. Voiron v. Voiron, 2003-2823 (La. App, 1 Cir. 12/17/04), 897 So.2d 697, 699, citing Capital-Union Savings, FA. v. Williams, 528 So.2d 187, 188 (La. App. 1 Cir. 1988). Furthermore, Appellants’ abandonment of the appeal took place after Smith and New Zion Baptist Church answered the appeal seeking damages for frivolous appeal. See Voiron, 897 So.2d at 699, citing Muse v. Ross, 26,554 (La. App. 2 Cir. 3/1/95), 651 So.2d 364, 366; Ecopur, Inc. v. McCloud, 432 So.2d 380, 381 (La. App. 1 Cir. 1983). On the record before us, we find that Appellants could not have possibly believed they could win the appeal when it was filed. They presented absolutely no evidence at the trial court, even though they were granted four continuances of the trial date, and the trial court agreed to hold the | ^transcript open to proffer any necessary depositions. The case had been pending since September 25, 2012, more than three years prior to the June 3, 2016 trial date and over a year from the original trial date of March 9, 2015. We agree with counsel for Matt Smith that Appellants’ attempt to obtain a continuance based on needing more discovery was evidence that Appellants had insufficient evidence to carry their burden of proof. We therefore, find Appellants have filed a frivolous appeal. Damages are clearly due pursuant to Article 2164. Consequently,- we render judgment in-favor of Matt Smith and New Zion Baptist Church and award each of them damages in the amount of $1,500.00.

■We issue this memorandum opinion in Compliance with Rule 2-16.1(B), Uniform Rules of Louisiana Courts of Appeal. ■

CONCLUSION

For the above and foregoing reasons, the answers to appeal by Matt Smith and New Zion Baptist Church are hereby granted and we render judgment in favor of Matt Smith and New Zion Baptist Church and award each of them damages in the amount of $1,500.00. All costs of this appeal are assessed against Barry McCra-ney and Peggy Souza McCraney.

DAMAGES AWARDED.


text:
    STATE of Louisiana v. Corderrius Dashon MITCHELL
    2017 KA 0431
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017

      Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, Louisiana, Appellee, State of Louisiana
    Bertha M. Hillman, Covington, Louisiana, Defendant/Appellant, Corderrius. Da-shon Mitchell
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

| gDefendant, Corderrius Dashon Mitchell, was charged by grand jury indictment with attempted armed robbery, a violation of La, R.S. 14:27 and 14:64, and with second degree murder, a violation of La. R.S. 14:3o.!.. He pled not guilty. Prior to trial, the state dismissed the charge of attempted armed robbery. Following a jury trial, defendant was found guilty as charged of second degree murder. Thereafter, the trial court sentenced defendant to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging two assignments of error concerning issues related to the jury. For the following reasons, we affirm the conviction and sentence.

FACTS

On the evening of December 16, 2011, Fausto David Ortiz Herrera, a Honduran citizen, was shot and killed on Tracy Avenue in East Baton Rouge Parish. Around the time of the shooting, the victim’s brother saw two black males in the area, but he did not recognize them.

Shortly after the time of the shooting, East Baton Rouge Parish Sheriffs Deputy Kevin Davis was responding to a suspicious vehicle complaint on Sunnybrook Drive, which dead ends near a wooded area bordering Tracy Avenue. As Deputy Davis turned onto Sunnybrook Drive, he saw the suspicious vehicle driving toward him with its lights off. When Deputy Davis activated his emergency lights, the vehicle sped away and led Deputy Davis on a brief chase down Joor Road, before ultimately stopping on Crestaire Drive. At the dead end of Crestaire Drive, the vehicle stopped and its occupants fled on foot, evading capture that evening. During an inventory of the abandoned vehicle, Deputy Davis found a bill of sale and Louisiana ID with defendant’s name on them. Detectives discovered that ^defendant’s residence was located on Courtland Drive, only a couple of blocks away from where the vehicle was abandoned.

Brendin Sanders testified at trial that he was with defendant on the day and evening of the shooting. Sanders described that he and defendant met up with Reshaud Johnson, Keandre “Kiki” Collins, and David Betz. These five men spent part of the evening riding around together and smoking marijuana. Sanders testified at trial that at some point, one of the others started talking about performing a “lick,” or a robbery, on a “Mexican.” Sanders stated that defendant drove his vehicle to a dead end in a neighborhood off of Joor Road. Sanders testified that the other four men exited the vehicle and went into the nearby woods while he waited in the car. Sanders stated that he had seen Betz with a gun, and he saw defendant hand Collins a gun. After the four others were gone for “fifteen to twenty-five minutes,” defendant and Betz returned to the vehicle. Sanders testified that almost immediately after defendant and Betz reentered the car, a police vehicle approached and activated its lights, at which point defendant began to drive the car away. Sanders stated that he jumped out of the vehicle before it reached Joor Road. Sanders indicated that he later spoke with defendant, who asked Sanders to call defendant’s mother and tell her that somebody had stolen his car. Sanders testified that he did not “really” know who the shooter was, but he told a detective he believed that Collins was the shooter because he “heard that.”

The state presented evidence at trial that defendant’s mother lied to the police about his whereabouts and made a false report of defendant’s car being stolen. Defendant’s mother admitted that she lied “to protect [her]. son” and that she did not know where defendant was or who he was with on the night of the shooting. The state also introduced a video recording of a meeting that defendant had with his mother, grandmother, and uncle in the interrogation room of the police station. The video reflects that during this meeting, one of defendant’s family members allowed |4him to use a cell phone to call another family member and request an alibi for the night of the incident. Defendant did not testify at trial.

JURY ISSÜES

In his only two assignments of error, defendant raises issues concerning the jury. In his first assignment of error, defendant contends that the trial court unlawfully placed time restraints on jury deliberations. In his second assignment of error, defendant argues that the trial court erred in dismissing a seated juror based upon comments she made during trial, replacing her with the alternate juror, and allowing the jury to deliberate without first making a determination regarding whether the other jurors had been tainted by the dismissed juror’s remark. Because the first assignment of error is better addressed in light of the second, we address the second assignment of error first.

Dismissal of Juror

Following a lunch break on the last day of trial, the trial court went on the record outside of the .presence of the jury and stated:

In light of the information that I received that Juror No. '209, Sylvia Davis, has indicated to Juror No.- 40, I believe; that the justice system treats black people different, and that her son was beaten half to death by a police officer, and she sued the police department and won her case, and she didn’t tell me that-during voir dire. Not that I specifically asked that question, but I would assume as an algebra teacher, she’s educated enough to know that that’s the kind of information we would need to make a decision as to whether or not she could be a fair and impartial juror. And had the state — I don’t think there’s a way to bring her in and allow the defense to question her as to whether or not she could still be fair and impartial. First of all, because I don’t think she can be with this information; and secondly, but if we do that and somehow she claims she can be fair and impartial and let her go. back in the jury room, she would know where the information came from and it would make for a very contentious jury atmosphere that I don’t think we need to get into. And had the state known of this information or I had known of this information before she was selected, I would have granted a challenge for cause. And even if I wouldn’t have, the state — she was elected fourth juror — well, she was in the first panel, let’s put it that way. And the State would have certainly used the peremptory challenge to get rid of her.

[RThe trial court’s remedy was to complete the trial with Juror Davis in the box and to excuse her after instructions were given to the jury.

Defense counsel objected on the ground that he did not know “the entire context as to how this exchange occurred between these two jurors.” Defense counsel further stated that there was no opportunity to “question these jurors as to that context and how it may or may not affect their impartiality with regard to fairness.”

After charging the jury, the trial court asked Juror Davis to remain in the courtroom while the other jurors and the alternate retired to the jury room with instructions for them not to begin deliberations yet. The trial court then informed Juror Davis that she was being dismissed because of the information received about her lawsuit against the Baton Rouge Police Department. Following Juror Davis’s dismissal, the remaining jurors and alternate returned to the courtroom, the alternate was made part of the jury, and the trial court addressed the jurors:

During the course of the trial, I was informed that Ms. Davis had a lawsuit that she filed against the city police and won because they allegedly beat her son. And had that information been relayed to us during the jury selection process, I would have granted a motion for cause to dismiss her from the jury if the state had asked me to do so; or if they didn’t and they had that information, they would have used one of their peremptory challenges. So that’s why she has been excused. So now y’all can go deliberate.

On appeal, defendant does not challenge the dismissal of Juror Davis, Rather, he argues that the trial court should have questioned the remaining jurors either individually or in a group to see if Juror Davis’s remark had any effect on them. Defendant contends that “[s]ome of the jurors may have resented and been antagonized by this remark made by a black [juror], and they could have transferred that resentment and antagonism toward [defendant] who is also black.”

Louisiana Code of Criminal' Procedure article 789(A) provides for the replacement of a juror with an alternate juror in the event the former becomes unable | Rto serve or is disqualified. Once a jury has been selected and sworn, the defendant has a right to have his case decided by the particular jurors selected to serve. See State v. Cass, 356 So.2d 396, 397 (La. 1977). A juror may not be discharged unless there is a legal cause, i.e., death, illness, or any other cause which renders a juror unable or disqualified to perform, and an absence of this legal cause will lead to reversal. See State v. Clay, 441 So.2d 1227, 1230 (La. App. 1st Cir. 1983), writ denied, 446 So.2d 1213 (La. 1984).

There is no serious issue in the instant case as to whether Juror Davis’s dismissal was warranted, and defendant makes no such claim on appeal. Instead, defendant argues that it was incumbent upon the trial court to conduct an examination .of the remaining jurors to determine whether they could be fair and impartial in light of Juror Davis’s alleged remark concerning the justice system treating black people differently.

The jurisprudence is clear that, generally, once a juror has been qualified as competent to serve and sworn — all in the presence of the defendant — he cannot thereafter be disqualified as incompetent to serve unless- the defendant.is present and a hearing conducted. See State v. White, 244 La. 585, 606-07, 153 So.2d 401, 408-09 (1963); State v. Tennors, 2005-0538 (La. App. 3d Cir. 2/15/06), 923 So.2d 823, 834-39; see also La. Code Crim. P. art. 831(A)(3) (declaring the requirement of defendant’s. presence at “proceedings for the discharge of the jury or of a juror”). However, defendant has cited no authority for the proposition that the. remaining jux-ors must be examined for their impartiality upon the dismissal of another juror.

While defense counsel objected at trial to the trial court’s continuation of the trial without examining the remaining jurors, he did not move for a mistrial and/or the relief associated therewith. Under La, Code Crim. P. art. -771(2), a defendant may request the trial court to promptly admonish the jury to disregard an irrelevant or immaterial remark of such a nature that it might create prejudice against the |7defendant, or the state, in the mind of the jury when the remark or comment is made by <a person other than the judge, district attorney, or court official, regardless of whether the remark or comment is within the scope of La. Code Crim. P. art. 770. Louisiana Code of Criminal Procedure article 770(1) prohibits remarks concerning race, religion, color, or national origin, if the remark or comment is not-material and relevant and .might create prejudice against the- defendant in the mind of the jury. Under Article 771 (emphasis added), “[upon] motion of a defendant,” the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. In the instant case, defendant requested neither an admonition nor a mistrial.

Without a request for an admonition or mistrial, the trial court seated the alternate juror, informed the remaining jurors of Juror Davis’s dismissal and the reason therefor (which itself was a sanitized version of the available information), and -ordered the jury to begin deliberations, The trial court has the discretion to utilize-the service of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. State v. Fuller, 454 So.2d 119, 123 (La. 1984). In the instant case, the trial court elected to utilize the alternate juror rather than sua sponte raise any issue related to a mistrial and examine the remaining jurors. On the record before us, we believe this course' of action was permissible.

The alleged remarks made by Juror Davis — that the justice system treated black people differently and that she had sued the Baton Rouge Police Department in connection with an incident involving her son — were, more prejudicial to the .state’s case than to the defense. Contrast State v. Jones, 2009-0751 (La. App. 1st Cir. 10/23/09), 29 So.3d 533, 540 (where a juror’s use of a “pernicious racial slur” and “limited initiative on the part of the trial judge to rectify the situation” warranted a new trial). In Jones, 29 So.3d at 537-39, the trial court was given a note concerning the situation , by a juror who both asked not' to be named and who asked the court not |sto divulge the name of the person making the statement, and the offending juror was allowed to remain seated on the jury without'any questioning or rehabilitation. Unlike in Jones, the offending juror was removed from the panel in the instant case, and the comment was not a “pernicious racial slur,” but one perhaps evincing sympathy for defendant. While defendant now argues that the remaining jurors could have come to resent Juror Davis, a black woman, as a result of her comments and transferred that resentment to defendant, this claim is purely speculative and not supported by anything in the record.

In addition to the above, questioning the remaining jurors in the instant case may have served only to further highlight the impermissible comment, causing the examination itself to taint the jury. A fair reading of the trial judge’s initial statement indicates that Juror Davis’s comment appears to have been made solely to Juror No. 40, who reported it to the court. Particularly, Juror No. 40 expressed a concern that if' the trial court questioned Juror Davis, she would become aware of “where the information came from,” indicating that this remark had likely been made only to a single' person. 'Given this information, the trial court' could' have reasonably determined that it was unnecessary to question the remaining jurors about their exposure to Juror Davis’s remark. Juror No. 40’s reporting of the remark to the trial court.demonstrated a respect for the impartiality required of the jury system, obviating any need for the trial court to question her impartiality under these circumstances.

Considering the above and the record as a whole, we find that the trial court did not err. or abuse its discretion in declining to examine the remaining jurors about their' ability to be impartial. The remark was not prejudicial to defendant on its face. Any alleged prejudicial impact of the remark is purely speculative and was not raised in a motion for mistrial. Further, the context indicates that the remark likely was not |nmade to the jury as a whole, making any examination of the remaining jurors unnecessary.

This assignment of error is without merit.

Time Limitation on Jury Deliberations

In his remaining assignment of error, defendant contends that the trial court unlawfully placed a time limitation on jury deliberations.

Following closing arguments, the trial court addressed the jury:

All right. Ladies and gentlemen, the law requires that once you begin deliberations, you have to be sequestered, which means that you have to be put up in a hotel room if you can’t reach a verdict in a short period of time or — you know, of course, it’s getting kind of late now. However, my good friend the high Sheriff, Sid Gautreaux, tells me they can’t do it because they don’t have the money, and they can’t get a hotel on such short notice — somehow he’s getting around the law — or we can stay here till midnight and declare a mistrial or something at that point. I’ve suggested that rather than do that we’re going to come back here tomorrow morning at 9:00 and begin deliberations because once you start, we can’t stop, unless it goes like four, five, six hours and I’ve got to declare a mistrial. And if it’s going to take a long time, then I would rather y’all be fresh and ready to go, unless y’all tell me differently.

At that time, Juror Sharon Myshrall told the trial court that she needed to take care of her six grandchildren beginning the next day because both sets of their parents were out of town. She also indicated that she had a handicapped brother at home. Initially, the trial court told Ms. Myshrall to “bring [her grandchildren] on up here and we’ll entertain them in my office.” Ms. Myshrall asked if the trial judge was serious, and he indicated he was. Ms. Myshrall then asked what would happen if the jury ended up sequestered, and the trial judge replied that they could not be sequestered because the sheriff would not let him do it. The following exchange then occurred:

Trial court: So the only other answer I have is we could go start deliberating right now, but I’m not going to stay up here till nine or ten o’clock at night, depending on how long it takes. So what do y’all think?
| inMs. Myshrall: I’d rather stay to late, but that’s just me. I’ll do whatever.
Trial court: All right. We’ll do it and it won’t be long before I call a mistrial if y’all don’t reach a verdict since we can’t get around it.

The trial court then charged the jury.

Out of an abundance of caution, defense counsel lodged a vague objection, noting that “one of the jurors basically wanted to go forward.” The trial court noted the objection and stated, “You understand we had the agreement... but it fell apart and nothing I can do about it.”

A jury is sequestered by being kept together in the charge of an officer of the court so as to be secluded from outside communication, except as permitted by La. R.S. 18:1307.2. La. Code Crim. P. art. 791(A). In noncapital cases, the jury shall be sequestered after the court’s charge and may be sequestered at any time upon order of the court. La. Code Crim. P. art. 791(C). Noncompliance with the sequestration provisions of Article 791 requires the reversal of a defendant’s conviction. See State v. Willis, 371 So.2d 1327, 1328 (La. 1979) (per curiam).

The instant case presents a unique set of circumstances. Following closing arguments and presented with the late hour, the trial court suggested to the jury that they return to be charged and to deliberate on the following day, a Saturday. Only one juror expressed any opinions as to the matter and indicated that it would be preferable to proceed with deliberations on the same day due to personal scheduling conflicts the following day. Though the trial court expressed a willingness to provide childcare for this juror’s grandchildren during deliberations, the juror had a clear preference to deliberate immediately. Complicating matters was. the sheriff’s apparent inability to accommodate a sequestered jury. Further complicating matters was the decision to select a single alternate juror who, though not seated at the time, was already anticipated to replace Juror Davis.

|nUpon the dismissal of Juror Davis and the seating of the sole alternate juror, the jury began to deliberate at 5:29 p.m. At 5:45 p.m., the jury returned to the courtroom to listen again to the definitions of second degree murder and manslaughter. The jury retired to continue deliberations at 5:50 p.m. and returned with a verdict at 6:18 p.m.

Defendant contends that the trial court’s statements concerning the time window for the jury’s deliberations constituted something akin to an impermissible Allen charge. An Allen charge is an instruction acknowledged to be calculated to dynamite jury deadlocks and achieve jury unanimity. State v. Nicholson, 315 So.2d 639, 641 (La. 1975). Such a charge, and any coercive modification thereof, is banned in the courts of Louisiana. Id. An Allen charge emphasizes that the jury has a duty to decide the matter at hand, which implies that the trial judge will not accept a mistrial in the ease. Additionally, when the duty to reach a verdict is coupled with the trial court’s admonition that those in the minority should reconsider their position, there exists an almost overwhelming pressure to conform to the majority’s view. State v. Washington, 93-2221 (La. App. 1st Cir. 11/10/94), 646 So.2d 448, 454-55.

Contrary to defendant’s contention, wé do not find the trial court’s statements to be a coercive modification of the prohibited Allen charge. The statements occurred prior to the beginning of jury deliberations, eliminating any possibility that the jury had deadlocked at this stage. More importantly, the statement did not indicate that the 'court would not accept a mistrial. See Washington, 646 So.2d at 455. In fact, the trial court indicated that it would have no choice but to declare a mistrial if the jury could not reach a verdict. The trial court never gave any indication to the jury that it would be required to reach a verdict.

JlgThe length of time of jury deliberation is a matter directed to the discretion of the trial judge and without more, it cannot constitute coercion. State v. Simmons, 414 So.2d 705, 707 (La. 1982). In the instant case, the trial court was presented, essentially, with two alternatives. Initially, the preferred course of action was to have the jury return the following day, at which point it could begin deliberations. However, Ms. Myshrall indicated a- hardship. While the trial court expressed a willingness to alleviate that particular juror’s hardship, Ms. Myshrall expressed a preference to begin deliberations immediately. Notably, mo other jurors objected to this course of action.

Faced with these circumstances, the trial court had the option to allow the jurors to begin deliberating immediately, knowing that the sheriff could not accommodate sequestration. Alternatively, the trial court could have disregarded Ms. Myshrall’s stated preference (the only one on the record), ordered the jurors to return the following morning, and trusted Ms. Mysh-rail to appear in court with her six grandchildren. Had Ms. Myshrall not appeared on the following day, there was no alternate juror to replace her, and the trial court would have been forced to declare a mistrial due to an inadequate number of jurors. See La. Const, art. I, § 17(A); La. Code Crim. P. art. 782(A); La. Code Crim. P. art. 775(3).

In stating to the jury that they would have a few hours on the current evening to deliberate before the declaration of a mistrial, the trial court’s intent was not coercive, but - factual. If the jury could not reach a verdict, the trial court would have no choice but to declare a mistrial. The jury was not instructed that a verdict was required, but they were informed that their time window for deliberation would be shortened due to circumstances beyond their and the trial court’s control.

Defendant points to the relatively short length of deliberations -as evidence that the jury felt coerced into arriving at a verdict. We note, however, that the jury appears to have taken its deliberations seriously, as is demonstrated by its request to | ishave the definitions of second degree murder and manslaughter re-read. Further, the unanimous verdict would seem to indicate that the brevity of deliberations was due more to the jury’s acceptance of the state’s evidence rather than any alleged coercion by the trial court. Notably, the trial court never gave the jury a definitive amount of time that it would be allowed to deliberate. Had the jury deliberated for a few hours, been called back to receive a true deadline, and returned with a yerdict immediately before that deadline, defendant would potentially have a stronger argument .that the jury was coerced into reaching a verdict within the time limits outlines -by the trial court. Where, as here, the jury reached a unanimous verdict well in advance of any potential deadline, we cannot say that the trial court acted in a manner to coerce the jury.

This court clearly recognizes the trial court’s obligation to insure that all'parties receive a fair trial' while also achieving the twin goals of professionalism and civility. However, considering the unique facts and circumstances of this case, and the record as a whole, we find that the trial court did not err or abuse its discretion in informing the'jury that a mistrial would be declared if it could not reach a verdict in the instant cáse.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . Also charged in the same indictment'were codefendants Keandre Duane Collins, Jérrico George, David Michael Betz, and Reshaud Johnson. These individuals were not tried with defendant and are not parties to this ■appeal.

      . This exception concerns absentee voting by members of a sequestered jury.

      . Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


text:
    In the MATTER OF the Minority of Brian L. CALLEY
    2017 CA 0068
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: September 21, 2017

      Gregory Webb, Peter J. Losavio, Jr., Elliot W. Atkinson, Jr., Baton Rouge, -LA, Attorneys for Plaintiffs/Appellants Clinton D. Calley, Jr. and Deborah B. Calley
    Weldon J. Hill, II, Stanley J. Bordelon, Baton Rouge, LA, Attorneys for Defendant/Appellee Louisiana Department of Health & Hospitals
    Kelley R. Dick, Jr., Baton Rouge, LA, Attorney for Defendant/Appellee J.P. Morgan Chase Bank, N.A.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

laThis appeal concerns the right of the State of Louisiana, Department of Health and Hospitals (DHH), to reimbursement of Medicaid benefits it paid from a trust. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

Brian L. Calley was severely injured in a motorcycle accident on August 16, 1980. Because he was a minor, his parents, Clinton D. Calley, Jr., and Deborah B. Calley, filed a tort suit to recover damages. Funds from the settlement of the lawsuit were used to establish the Calley Trust on June 26, 1989. The settlement and the establishment of the Trust were approved by the district court. Clinton and Deborah were the settlors and the beneficiaries of the Trust. The Trust provided that its income was to be used in part “for the payment of medical or related expenses” incurred by the Calleys for Brian that were not covered by Medicaid. Brian died on October 3,2015.

DHH paid Medicaid benefits on behalf of Brian after his accident and throughout his life. On February 25, 2016, after Brian’s death, DHH filed a motion for approval of payment from the assets of the Trust. It sought $1,080,246.10 in Medicaid benefits paid on behalf of Brian from December 1, 1993 through November 29, 2012; $1,077,831.90 represented medical expenses Rand $2,594,20 represented Medicare Part B premiums. After a hearing, the district court granted DHH’s motion.

The Calleys appeal the judgment. They urge four assignments of error: the district court erred in interpreting the plain language of Article VIII of the Trust as requiring a payback to the State for paid Medicaid benefits; the district court erred in failing to apply federal law that restricts the right of a state agency to seize assets of a third party to reimburse Medicaid benefits; the district court erred in failing to apply Louisiana law, which has a self-imposed estate only reimbursement tax; and the district court erred in failing to apply federal law that restricts the rights of the State .to reimbursement from tort-derived assets to the portion of settlement or judgment that is earmarked for medical expenses of the beneficiary.

DISCUSSION

Article VIII, the provision of the Trust DHH relies on for payment, states, in pertinent part:

A special charge against the Trust funds exists with respect to any claim by the State of Louisiana and/or the United States of America for recovery of any sums paid under Title XIX of the Social Security Act for medical services rendered to Brian L. Calley. In the event any such claim should be made, and payment thereof is approved by the court having jurisdiction, said claims shall be satisfied out of existing Trust funds.

(Footnote added.)

RArticle V of the Trust states, in pertinent part, that the Trust income and as much of the principal as may be necessary should be used:

for the payment of medical or related expenses or the providing of medically-related needs not covered by Title XIX of the Social Security Act or similar State dr Federal programs, incurred by Clinton D. Calley, Jr., and/or Deborah B. Calley as the result of medical treatment, medical management, or fulfillment of the medical or related needs of their son, Brian L, Calley. .“Medically related needs” as used herein are defined to include attendant care and the purchase of articles and services for the comfort, recreation and education of Brian L. Calley, as well as the reasonable costs of providing him with the presence and society of his immediate family during any- times in which he does not reside with his family.

The trustee was authorized to make distributions directly to health care service providers and to reimburse the settlors for expenses they incurred after court approval, pursuant to Article VII of the Trust.

In granting DHH’s motion for payment, the district court in its oral reasons stated that the Trust specifically established in Article VIII a special charge against the trust funds as to any claim by the State to recover any sums paid through Medicaid. The district court determined that the Trust was clear and it did not need to look beyond its plain language for the parties’ intent. The district court explained that Brian had benefitted from the Trust because he avoided a Medicaid eligibility issue (by sheltering settlement funds in the Trust), so the district court did not agree with the Calleys’ position that it should disregard the Trust’s language that the parties agreed to reimburse the State for the Medicaid expenses. The district court also did not believe that the Trust repayment provision was against public policy or prohibited by federal or state law.

| ^Louisiana law favors the liberal construction and interpretation of trusts. A preliminary provision of the Louisiana Trust Code, La. R.S. 9:1724, provides:

The provisions of this Code shall be accorded a liberal construction in favor of freedom of disposition. Whenever this Code is silent, resort shall be had to the Civil Code or other laws, but neither the Civil Code nor any other law shall be invoked to .defeat a disposition sanctioned expressly or impliedly by this Code.

See Succession of Voorhies v. Voorhies, 2003-163 (La. App. 3 Cir. 7/16/03), 853 So.2d 655, 657. A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if it is susceptible of such an interpretation. La. R.S. 9:1753. In construing a trust, the set-tlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. In re James C. Atkinson Clifford Trust, 2000-0253 (La. App. 1 Cir. 6/23/00), 762 So.2d 775, 776, writ denied, 2000-2262 (La. 10/27/00), 772 So.2d 655. A trust or disposition in trust may be made subject to any condition not forbidden in the Louisiana Trust Code and' not against public order or good morals. La. R.S. 9:1736. Parol or extrinsic evidence may be admitted to aid in construing the trust instrument only if the instrument is ambiguous and uncertain and only to explain, not contradict the instrument. In re James C. Atkinson Clifford Tr., 762 So.2d at 776. Also, La. R.S. 9:2252 provides that trusts and their provisions are to be governed by the law in effect at the time of their creation.

In this case, neither party contends that the Trust language is ambiguous. Therefore, this court must determine whether the district court erred in interpreting the Trust to authorize payment to -DHH for Medicaid benefits it paid Brian. Appellate review of questions of law is simply a review of whether the lower court |fiwas legally correct or' legally incorrect. Sanders v. Pilley., 96-0196 (La. App. 1 Cir. 11/8/96), 684 So.2d 460, 463, writ denied, 97-0352 (La. 3/21/97), 691 So.2d 90.

The Medicaid program-was established in 1965 as Title XIX of the Social Security Act, 42 U.S.C. § .1396 et seq., to provide medical assistance to persons .whose income and resources- are insufficient to meet the costs of necessary care and services. Atkins v. Rivera, 477 U.S. 154, 156, 106 S.Ct., 2456, 2458, 91 L.Ed.2d 131 (1986); Sanders, 684 So.2d at 464. If an individual has assets available to him or her over a statutory amount, that individual is ineligible to receive Medicaid assistance, See 42 U.S.C. § 1396(a)(17). The federal government shares the costs of Medicaid with states that elect to participate in the program. Atkins, 106 S.Ct. at 2458; Sanders, 684 So.2d at 464. In return, participating states must comply with the applicable Medicaid federal rules, regulations, and statutes. Ark. Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 1758, 164 L.Ed.2d 459 (2006).

Under federal law, a state’s Medicaid program has a subrogation right’ for reimbursement of medical expenses ■ paid • on behalf of an injured plaintiff in a tort case. As a condition of receiving Medicaid benefits, an individual must assign to the state any rights to the' recovery of medical care provided as a result of a third-party, tort-feasor. See 42 U.S.C. § 1396k(a)(Z). If an individual chooses not to pursue a claim, the state must seek reimbursement. See 42 U.S.C. § 1396a(25)(H). Medicaid’s right of reimbursement is governed by federal anti-lien statutes which .limit the government’s recovery, Additionally, 42 U.S.C. § 1396p(b)(Z) provides, in pertinent part, “No adjustment or recovery of any medical assistance correctly |7paid on behalf of an individual under the State plan may be made, except [in circumstances not relevant here].”

. The Calleys’ initial argument on appeal is' that the Trust’s plain language sets forth a security device with its use of the words “special charge” based on a “claim” by the State or United States for recovery. They then argue that the Medicaid payments are not pre-approved for reimburse-mbnt under the Trust, because they allege that Article VIII of the Trust does not provide that the Medicaid payments must be reimbursed. Thus, the Calleys contend that for DHH to succeed, federal or state law must provide for reimbursement since an underlying obligation or claim is necessary.

The Calleys assert that Article VIII of the Trust should not be given effect because federal law at the time of the creation of the Trust did not require a payback provision. The Omnibus Budget Reconciliation Act of 1993, U.S. PL 103-66, 107 Stat. 312 (OBRA ’93), U.S.' PL. 103-66, 107 Stat. 312, enacted August 1Ó, 1993, established a general rule' that trusts would be counted as assets for the purpose of determining Medicaid eligibility, but it excepted from that rule special needs trusts for severely disabled persons under age 65; the special needs trusts were required to include a payback provision to obtain or preserve Medicaid eligibility. See 42 U.S.C. § 1396p(d)(4)(A). In Sanders, 684 So.2d at 464, this court did not apply 42 U.S.C. § 1396p (the special needs trust provision) to a trust established by the father of a severely disabled child composed of settlement proceéds from the father’s tort suit on behalf of his son where the trust was established before the enactment of OBRA ’93. While the Calleys’ allegations are correct that special needs trusts requiring the inclusion of a payback provision did not become a legal method to obtain or preserve Medicaid eligibility until the | «enactment of OBRA ’93, the law did not prohibit the inclusion of a payback provision in a trust prior to the enactment of OBRA ’93.

The State established a program for the recovery of Medicaid payments made on behalf of individual recipients- from the succession estates of those individuals when La. R.S. 46:153.4 was enacted by La. Acts 2003, No. 226, § 1. DHH in this case was not treating the matter as an estate recovery claim, however, because the Trust assets are not part of Brian’s estate; Thus, La. R.S. 46:153.4 does not apply. As with OBRA ’93, the failure of the State to authorize such a provision when the Trust was creáted does not prevent parties from including such a provision in a trust, as the Calleys did here.

The Calleys contend that DHH can only be reimbursed from that part of the Trust funds that represents compensation for medical care for Brian, relying on Ahlborn, 126 S.Ct. at 1756, and Wos v. E.M.A. ex rel. Johnson, 568 U.S. 627, 632-39, 133 S.Ct. 1391, 1396-99, 185 L.Ed,2d 471 (2013). In Ahlborn, the Supreme Court found that the anti-lien provisions of the Medicaid law (42 U.S.C.. § 1396p(a)(Z)), precluded an Arkansas statute’s automatic imposition of a lien for Medicaid payments on tort settlement proceeds meant to compensate the recipient for damages other than medical care costs, such as for pain and suffering, lost wages, and loss of future earnings. In Wos, the Supreme Court held that any reimbursement calculation for Medicaid payments, which uses a statutory formula to determine the apportionment of medical and non-medical expenses, was not conclusive and could be challenged in a judicial or administrative proceeding by demonstrating, with evidence, that the lien amount exceeded the amount recovered for medical expenses. See Wos 133 S.Ct. at 1398-99.

The Calleys’ reliance on Ahlborn and Wos is misplaced because those cases dealt with liens imposed against the property or assets of a living Medicaid |flrecipient whereas this case involves the State’s recovery of Medicaid funds paid from the Trust of a deceased Medicaid recipient. The plain language of 42 U.S.C. § 1396p(a)(Z) states, in relevant part, that “[n]o lien may be imposed against the property of any individual prior to his [or her] death on account of medical assistance paid or to be paid on his [or her] behalf under the State plan, except ... under circumstances not relevant here. (Emphasis added). In several out-of-state cases after Ahlborn and Wos, the courts have allowed states to recover Medicaid benefits that were paid from special needs trusts, as defined by 42 U.S.C. § • 1396p(d)(4)(A), upon the beneficiary’s death without being limited to that part of the settlement representing medical expenses. See Austin v. Capital City Bank, 111,894 (Kan. Ct. App. 6/26/15) 2015 WL 4366519, at 6 (unpublished opinion); Herting v. California Dept. of Health Care Services, 235 Cal. App.4th 607, 617-18, 185 Cal.Rptr.3d 401, 409 (2015); Coles v. New Jersey Dept. of Human Services, 13-3987 (D.N.J. 2014) 2014 WL 2208142, at 8 n.4 (unpublished opinion). See also Goheagan v. Perkins, 197 So.3d 112, 120 (Fla. 4th Dist. Ct. App. 2016) (the anti-lien statute does not preclude the' State’s recovery of the full amount of its Medicaid lien from the wrongful death settlement by the estate of the deceased Medicaid recipient).

While this case does not involve a statutory special needs trust, the rationale behind such trusts applies in this case and was alluded to by the district court. The special needs trust statute specifically addresses the unique and difficult situation faced by severely disabled individuals with assets that are sufficient to end their Medicaid eligibility but insufficient to account for their medical costs. Matter of Abraham XX., 11 N.Y.3d 429, 436-37, 900 N.E.2d 136, 139-41, 871 N.Y.S.2d 599 (2008). Through the trust, the disabled person is able to qualify for Medicaid benefits, but upon his or her death, the life-enhancing purpose of the special needs 11fltrust can no longer be effectuated and the State is enti-tied to reimbursement of funds to sustain the Medicaid system. Id.

For the foregoing reasons, the Calleys’ assignments of error have no merit. The district court did not err in interpreting the provision of the Trust established by the Calleys to require payment to DHH for Medicaid payments made for their son, and this provision was not against public policy.

CONCLUSION

For the foregoing reasons, the judgment of the district court granting the motion for approval of payment of the Louisiana Department of Health and Hospitals from the assets of the Calley Trust is affirmed. Costs of this appeal are to be paid by Clinton D. Calley, Jr., and Deborah B. Calley.

AFFIRMED.

      . The Louisiana Department of Health and Hospital’s name was changed to the Louisiana Department of Health on June 2, 2016 by 2016 La. Acts, No. 300, § 1.

      . The settlement was valued at $2,529,444.00; out of the cash portion of the settlement ($1,550,000.00), Clinton and Deborah were each paid $183,256.00, and litigation expenses And attorney's fees of $1,083,488.00 were paid. The sum of $100,000.00 funded the trust along with $7,000,00 in monthly payments from an annuity Clinton and Deborah purchased with the settlement funds. The annuity was guaranteed to be paid for at least 120 months.

      .DHH alleged that documents it received from the trustee, J.P. Morgan Chase Bank, N.A., showed that as of February 10, 2016, there were sufficient trust assets to fully reimburse DHH. Article X of the Trust provided that it shall remain in existence until Brian’s death, at which time the Trust would terminate “and the entire Trust estate shall be paid to the said Clinton D. Calley, Jr., and Deborah B. Calley or their respective heirs and/or legal successors.”

      . We note that DHH sought reimbursement of $1,080,246.10; however, the amounts paid as shown by the exhibit and the sum of the amounts for medical expenses and premiums total $1,080,426.10.

      . The court designated the judgment as a final appealable judgment pursuant to La. C.C.P. art. 1915(B)(1).

      . The remainder of Article VIII states: "If the available Trust funds are not sufficient to satisfy the claim in its entirety, the balance shall be paid from payments thereafter made to the Trust in preference to any other claims except expenses necessary for the maintenance and preservation of the Trust.”

      . At the hearing, the parties stipulated that Brian was eligible for Medicaid except for a short period of time when DHH terminated his benefits in November of 1992. DHH based the termination on its contention that the Trust and its income were Brian's property, contrary to the beneficiary designations in the Trust. The Calleys appealed the termination and Medicaid benefits were ultimately reinstated with a Medicaid eligibility date of October 5, 1992.

      . The district court noted that Clinton and Deborah raised the argument for the first time at the hearing that they did not know if the Trust funds were “dollar for dollar matches” of Medicaid, apparently referring to the Trust being only for medical expenses., However, we note that the Calleys did raise this issue in their supplemental memorandum in opposition to DHH's motion for approval of payment. Moreover, the Calleys argue that the Trust funds did not include settlement money only for Brian’s medical expenses, as shown by motions in the record seeking authorization for special trust expenditures for expenses related to Deborah’s back surgery and the purchase of a. single-family dwelling with modifications to accommodate Brian's disabilities.

      . 42 U.S.C. § 1396p(a)(Z), states, in pertinent part: "No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be - paid on his behalf under the State plan, except