author: WILLIAMS, J.

text:
    Rochundra GARRISON, et al., Plaintiffs-Appellants v. STATE FARM FIRE AND CASUALTY COMPANY, et al., Defendants-Appellees
    No. 51,245-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017.

      ANTHONY J. BRUSCATO, Counsel for Appellants, Rochundra Garrison and Sam Winston, Jr.
    K. DOUGLAS WHEELER, Counsel for Appellee, State Farm Fire and Casualty Company
    MARCY L. ALLEN, Counsel for Appel-lee, Duane T, Lucky, Jr.
    Before BROWN, WILLIAMS, and COX, JJ.
   WILLIAMS, J.

liThe plaintiffs, Rochundra Garrison and Sam Winston, Jr., appeal a summary judgment in favor of defendants, State Farm Fire and Casualty Company and Duane Lucky, Jr. The district court also granted State Farm’s exception of.no right of action against Garrison and denied the insurer’s motion to strike an affidavit. For the following reasons, we reverse in part and remand.

FACTS

Sam Winston, Jr. (“Winston”), was the owner of a 2004 Buick LeSabre. Winston lived with his adult daughter, Rochundra Garrison, and her children at a residence in Bastrop. Winston allowed Garrison to drive the vehicle, but he remained the title owner. The title documents were kept in the vehicle. The car developed a hole in the radiator and overheated when operated. Garrison contacted her friend, Clarence Hollins, a mechanic at Ray’s Auto World (“Ray’s Auto”), a used car lot in Bastrop, and he agreed to repair the car. Ray Waller was the owner of Ray’s Auto. The vehicle was then towed to the Ray’s Auto lot, where it remained for several weeks. When Garrison returned to ask about the repairs, Hollins told her that the car had been sold by Waller.

The chain of title shows a sale of the 2004 Buick on October 15, 2013, from Winston to Waller, with Winston’s signature witnessed by Duane T. Lucky, Jr. (“Lucky”), as notary. Then, on November 23, 2013, Waller sold the car to Mary Palmer, with Lucky again witnessing the signatures as notary. Winston denied signing the bill of sale or title. The plaintiffs, Winston and Garrison, filed a lawsuit against Waller for conversion and obtained a judgment against him. The plaintiffs then filed a petition against |2Lucky and State Farm Fire and Casualty Company (“State Farm”), which had issued a notary bond for Lucky, alleging that he had facilitated the conversion by notarizing the sale documents without confirming the identity of the person purporting to sign as Winston. The plaintiffs obtained an affidavit from Waller, who stated that he had taken the sale documents for the 2004 Buick to Lucky’s office so that he “would notarize” the documents with his signature. Waller testified that he did not sign Lucky’s name as notary.

In his deposition, Lucky denied signing the documents as notary and asserted that his name was also forged. Lucky testified that after receiving a letter from plaintiffs’ attorney regarding the forged signatures, he confronted Waller, who admitted that he had forged Lucky’s name to the title and bill of sale. Lucky stated that he had done prior notary work for Waller and other used car dealers. Lucky acknowledged that he routinely notarized the signature of the dealer, as the vehicle seller, without requiring the seller to appear and sign before him.

State Farm and Lucky filed a motion for summary judgment based on Lucky’s testimony that he had not signed the documents as notary. In opposition, plaintiffs submitted the above affidavit from Waller. Lucky’s attorney then obtained a second affidavit from Waller, in which he contradicts his initial affidavit. In the second affidavit, Waller stated that he had signed the name of Lucky on the bill of sale and title transferring the ownership of Winston’s vehicle. State Farm filed a motion to strike Waller’s initial affidavit and an exception of no cause of action as to Garrison.

After a hearing, without giving reasons, the district court rendered judgment granting the exception of no cause of action and granting summary | ¿judgment in favor of State Farm and Lucky, dismissing plaintiffs claims. The court also denied State Farm’s motion to strike. Plaintiffs appeal the judgment. State Farm answered the appeal alleging that the court erred in denying the motion to strike.

DISCUSSION

The plaintiffs contend the district court erred in granting summary judgment in favor of the defendants. Plaintiffs argue that summary judgment is not appropriate because an issue of material fact exists as to whether Lucky signed the sale documents and was negligent in performing his notary duties.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La. 10/2/09), 18 So.3d 122; Whitaker v. City of Bossier City, 35,972 (La.App. 2 Cir. 4/5/02), 813 So.2d 1269. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. R.S. C.C.P. art. 966(B).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002; Benson v. State, 48,300 (La.App. 2 Cir. 10/9/13), 124 So.3d 544. One reason is that such factual determinations call for credibility evaluations and the weighing of testimony. Benson, supra.

14A seller of a vehicle shall deliver to the purchaser thereof a certificate of title and the assignment of title must be executed by the seller in the presence of a notary or two witnesses. If executed in the presence of two witnesses, the acknowledgment of witness must be signed by one witness in the presence of a notary. La. R.S. 32:705. An authentic act is full proof of the agreement contained therein and the validity of the instrument is presumed in the absence of convincing proof to the contrary. La. C.C. art. 1835. Eymard v. Terrebonne, 560 So.2d 887 (La. App. 1 Cir. 1990). A person denying the authenticity of a signature on a notarized instrument has the burden of proving that the signature is a forgery. Eymard, supra; Thompson v. Woods, 525 So.2d 174 (La. App. 3 Cir. 1988). A notary is liable both for deliberate misfeasance and for negligence in performing his official duties. Collins v. Collins, 629 So.2d 1274 (La. App. 5 Cir. 1993).

In the present case, State Farm and Lucky filed a motion for summary judgment alleging there was no evidence that Lucky had signed the vehicle title and bill of sale as notary. In support of the motion, defendants submitted Lucky’s deposition testimony acknowledging that the sale documents contained his name as notary public and his correct notary number, but denying that he had signed the signature appearing above his name on the documents. Lucky stated in his deposition that he had received copies of the sale documents with the letter from the plaintiffs’ attorney. However, Lucky testified that when speaking on the phone, he said he did not know what the attorney was talking about; he did not say that his signature had been forged. Lucky asserted that he did not look at the sale documents until after he had spoken with the attorney and then simply threw the documents in the trash. Lucky testified that when he later asked Waller 1 ¿about the notary signature on the sale documents, Waller then said he had signed Lucky’s name. State Farm also submitted the deposition testimony of Garrison and Winston stating that they did not have personal knowledge that Lucky had signed the sale documents.

The plaintiffs presented the title of the 2004 vehicle and the bill of sale bearing the name of Lucky as notary public, his notary number and his signature. In opposing the motion for summary judgment, plaintiffs submitted Waller’s affidavit dated January 26, 2016. In that affidavit, Waller stated that he had taken the title and a bill of sale for the 2004 Buick to Lucky’s office “to have the documents notarized. Duane Lucky would notarize the documents where his name appears as Notary. [Waller] did not sign Duane Lucky’s name as notary” on the documents.

In response, the defendants produced a second affidavit by Waller dated April 14, 2016, stating that he had signed the first affidavit while under duress caused by the “threatening language” used by plaintiffs’ attorney. Waller further stated that he had signed Lucky’s name on the title of the 2004 vehicle and that he had “no knowledge that Duane Lucky notarized or otherwise had any involvement” with the sale documents.

Based on the contradictory affidavits signed by Waller contained in this record, there is a factual issue as to the identity of the person who signed Lucky’s name as notary on the sale documents. Although the defendants filed a motion to strike Waller’s first affidavit as “inherently unreliable,” they have not shown a persuasive reason to explain why Waller’s second affidavit should be considered more reliable, when both were signed under oath. Despite Waller’s assertion of duress when signing the initial affidavit, we note that any such duress did not prevent him from asserting the need to ^change the affidavit language before signing. At a minimum, the affidavits raise the issue of Waller’s credibility in describing the circumstances surrounding the execution of the sale documents. After reviewing the evidence presented, we cannot say the district court erred in denying the motion to strike.

Even if the court were to disregard one or both of Waller’s affidavits, the evidence in the record creates a genuine issue of material fact as to whether Lucky signed the sale documents. The plaintiffs presented documentary evidence, including the assignment of title and bill of sale containing Lucky’s name and signature as notary. Defendants submitted Lucky’s deposition testimony denying that he is the person who signed his name as notary. Such a denial and Lucky’s description of his conduct after receiving the sale documents from plaintiffs’ attorney will require the fact finder to make an assessment of Lucky’s credibility that is not appropriate in a summary judgment proceeding.

In addition, the signature of each person who signs a notarized document is presumed valid absent convincing proof to the contrary. The person attacking the authenticity of a signature has the burden of proving a forgery. This case is uncommon in that the notary, and not a party to the sale, is the person denying the validity of his signature on the documents. In determining the validity of the notary signature, the fact finder will need to consider the documentary evidence. The weighing of such evidence would not be appropriate on summary judgment.

Based upon this record, a material issue of fact exists as to whether the sale documents for the 2004 vehicle contain the authentic signature of Lucky as notary public. In making a determination regarding the validity of |7the signature, the fact finder will need to assess the credibility of the witnesses and weigh the evidence presented. Consequently, we conclude the district court erred in granting the defendants’ motion for summary judgment.

In their second assignment of error, plaintiffs raise the issue of the district court’s grant of the exception of no right of action as to Garrison. However, in their brief, plaintiffs state they do not object to the exception being granted. Thus, this court will not address the issue. See URCA Rule 2-12.4.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment granting the motion for summary judgment is reversed and the judgment is otherwise affirmed. This matter is remanded for further proceedings. Costs of this appeal are assessed to the appellees, State Farm Fire and Casualty Company and Duane Lucky, Jr.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Randy E. PRESENTINE, Appellant
    No. 51,241-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MONIQUE YVETTE METOYER, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, PITMAN, and STONE, JJ.
   PITMAN, J.

| j Defendant Randy Presentine pled guilty to vehicular homicide, and the district court sentenced him to 25 years at hard labor, with the first 3 years to be served without benefits, and to pay a fine of $2,000. Defendant appeals, arguing that his sentence is excessive. For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS

On March 3,2015, the state filed a bill of information charging Defendant with vehicular homicide in violation of La. R,S. 14:32.1. The bill of information alleged that, on or about January 31, 2015, Defendant killed seven-year-old D.H. while Defendant was engaged in the operation of a motor vehicle and had a blood alcohol level concentration of 0.10 percent or more.

On January 14, 2016, Defendant pled guilty to vehicular homicide. In exchange for his guilty plea, the state agreed to dismiss all other charges in the matter and not to file a habitual offender bill. The state and defense did not agree to a sentence, and the district court ordered a presentence investigation (“PSI”) report.

A sentencing hearing was held on May 11, 2016. Corporal Dianna Sanchez of the Shreveport Police Department testified that, at 2:14 p.m. on January 31, 2015, she was dispatched to investigate a car crash. She noted that she arrived at the scene approximately 40 minutes to an hour after the crash occurred and observed a vehicle on its rooftop in the intersection of Youree Drive and Herndon Avenue. She stated that she was aware that there was a victim suffering from serious, potentially life-threatening, injuries, and that, in such a case, the police department performs a |2mandatory blood draw from the driver of the vehicle. After speaking with several witnesses of the crash, it was determined that Defendant was the driver of the vehicle. Defendant’s blood was drawn, and a toxicology report stated that his blood alcohol content was 0.120.

Cpl. Sanchez testified that she interviewed Defendant after he waived his Miranda rights, and he stated that he was driving his wife to work when the crash occurred. He admitted that he purchased a pint of Jack Daniels that morning. She also testified that she spoke to Defendant’s friend who told her that Defendant was at his house between 12:00 p.m. and 1:00 p.m. on the day of the crash and that he witnessed Defendant drink a mixture of Paul Masson and Sprite. She stated that another police officer searched the hotel room where Defendant and his wife were staying and recovered an empty pint of Jack Daniels. The crash chip from Defendant’s vehicle was recovered, and it indicated that five seconds before the airbags deployed the vehicle was traveling 60 miles per hour.

Cpl. Sanchez stated that she set up an interview at the Gingerbread House for D.H.’s cousin, who witnessed the erash, and learned that D.H. and her cousin were standing with their bicycles near the intersection of Youree Drive and Herndon Avenue when her cousin saw Defendant’s car coming toward them. He was able to get out of the way of the vehicle, but D.H. was not.

Cpl. Sanchez also testified about crime scene photographs, including one that showed the handlebars of a child’s bicycle underneath the vehicle and a pool of blood underneath the bicycle from where D.H. was pulled out. She stated that D.H. passed away on February 2, 2015, and that an autopsy | ^report determined her cause of death was blunt force injuries from being struck as a pedestrian by a motor vehicle.

Cpl. Sanchez further testified that she requested a report on Defendant’s criminal history and learned that he had numerous prior arrests, including possession of a Schedule II, crack cocaine, in 1995; driving while intoxicated (“DWI”) in 1996; DWI and driving with a suspended license in 1997; a stop sign violation in 2005; domestic abuse battery in 2007; disturbing the peace in 2007; and a drug paraphernalia conviction in 2008.

Bradley K. Dean, a fire engineer and paramedic for the Shreveport Fire Department, testified that, on January 31, 2015, he was dispatched to an accident at Youree Drive and Herndon Avenue at 2:13 p.m. and arrived on the scene at 2:15 p.m. He observed a vehicle resting on its roof and extensive debris. He found D.H. on the ground and noted that she was completely unresponsive and had considerable amount of hemorrhaging in her mouth; agonal res-pirations, i.e., gasping to take a breath; and extensive bleeding from her right leg. When he and his partners rolled her onto her side to clear her airway, a pinkish substance came out of her ear, which indicated that she had a possible skull fracture. They put D.H. on a spine board and transported her to the ambulance to take her to the hospital.

Tequila Henderson testified that she is the mother of D.H. and read a statement she had prepared about the loss of her daughter. She noted that the death of D.H. caused both mental and physical pain for her family. D.H.’s aunt submitted a letter for the district court’s review.

James Stevenson, Defendant’s brother-in-law, stated that Defendant expressed remorse and was very apologetic about the accident. He asked the district court to “temper justice with mercy” in that Defendant’s intentions [4would never be to harm anyone. Elizabeth Bryant, Defendant’s sister, also asked for the court’s mercy, stating that Defendant had expressed remorse and is very saddened. Annie Presentine, Defendant’s wife, stated that he expresses remorse every day, and she asked that the district court have mercy on Defendant because “he’s very needed around the house” and is a good person. She also noted that they have an adult child with special needs. Defendant apologized to D.H.’s family.

After analyzing the La. C. Cr. P. art. 894.1 factors, the district court ordered Defendant to pay a fíne of $2,000 through inmate banking and sentenced him to 25 years at hard labor, with the first 3 years to be served without the benefit of probation, parole or suspension of sentence. The district court stated that this sentence was to run concurrently with any other sentence and noted credit for time served.

On May 18, 2016, Defendant filed a motion to reconsider sentence. He requested that the district court consider that he had no DWI convictions within the last ten years and that he expressed remorse for his actions.

On May 19, 2016, the district court signed a ruling denying Defendant’s motion to reconsider sentence, noting that, at the sentencing hearing, it provided detailed reasons for the sentence imposed and carefully and thoroughly considered and weighed the aggravating and mitigating circumstances of the case. The district court stated that it remained of the opinion that the sentence was reasonable in all aspects.

Defendant appeals.

J^DISCUSSION

Excessive Sentence

Defendant argues that the sentence imposed by the district court is unconstitutionally harsh and excessive in light of the facts and circumstances of the ease and his personal history. He states that he is 47 years old, has only one prior felony, has not had a felony or DWI conviction in nearly 20 years, did not flee the scene, pled guilty as charged, admitted his responsibility, was truly remorseful and has a family, including a special needs daughter, who needs him at home. He notes that his 25-year sentence is near the maximum sentence of 30 years and contends that he is not the worst of offenders.

The state argues that the 25-year sentence is not constitutionally excessive and that it is well within the statutory limits for the offense committed. It notes Defendant’s extensive criminal history, which includes convictions for possession of cocaine, DWI and consistent and repeated violations for driving with a suspended license throughout the past 30 years. It states that the district court reviewed the PSI report and all of the discovery, heard testimony from the families of the victim and Defendant and considered the appropriate factors. It argues that D.H. lost her life as a direct result of Defendant’s decision to operate a vehicle while under the influence of alcohol and that his remorse does not excuse his actions.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La. 1983). The trial court should consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981). The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2d Cir. 12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La. 5/16/03), 843 So.2d 1130.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const, art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La. 1980). 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. Id.

A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La. 1983); State v. Black, 28,100 (La.App. 2d Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 9/20/96), 679 So.2d 430. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, 03-3614 (La. 12/13/04), 893 So.2d 7; State v. Free, 46,894 (La.App. 2d Cir. 1/26/12), 86 So.3d 29.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Hogan, 47,993 (La.App. 2d Cir. 4/10/13), 113 So.3d 1196, writ denied, 13-0977 (La. 11/8/13), 126 So.3d 445.

La. R.S. 14:32.1(B) states in part: Whoever commits the crime of vehicular homicide shall be feed not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years. At least three years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

In the case sub judice, the district court complied with the requirements of La. C. Cr. P. art, 894.1 and considered aggravating and mitigating factors prior to imposing Defendant’s sentence. It found that there is an undue risk that, during the period of a suspended sentence or probation, Defendant will commit another crime, noting his multiple convictions for driving with a suspended license. It also found that Defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. It determined that a lesser sentence would deprecate the seriousness of Defendant’s crime, noting that Defendant, while thoroughly intoxicated, lost control of his vehicle while driving at 60 miles per hour, which caused the death of a child. It further noted that, although Defendant did not intend to injure D.H., his actions of drinking and then operating a motor vehicle “constitute a callous disregard for the safety of the men, women and children of this community.” It found that Defendant knowingly created a risk of Ldeath or great bodily harm to more than one person. It determined that the offense resulted in a significant permanent injury or significant economic loss to the victim and her family, noting that the loss of a seven-year-old child is the “most profound” injury. It found that Defendant used a dangerous weapon—a motor vehicle travelling at a fast rate of speed—to commit the offense. It also determined that the offense involved multiple victims, including D.H., everyone connected with D.H. and also Defendant’s own family. It noted that Defendant could not financially compensate D.H.’s family because he did not have liability insurance. In addition, it found that Defendant’s attempts to shift blame to his wife, first by identifying her as the driver and then stating that she distracted him while he was driving, were morally reprehensible. It also took issue with the fact that, when speaking to investigators for purposes of the PSI report, Defendant disputed how much his intoxication contributed to the crash.

The district court then discussed the possible mitigating factors and noted that Defendant did not have a recent history of DWI. It also found that Defendant’s family would be aggrieved by his incarceration. It stated that it would not impose the maximum sentence because Defendant pled guilty, which demonstrated his acceptance of responsibility and also spared the victim’s family the pain of reliving the event through a trial.

Defendant’s criminal history was also discussed by the district court. It noted Defendant’s history of cocaine abuse and DWI offenses in the 1990s. It emphasized that, from the early 1990s until as recently as 2014, | flDefendant had repeated instances of driving with a suspended license. His pattern of traffic-related violations demonstrates that it is not important to Defendant to be in compliance with the law or respectful of the safety of those around him.

Therefore, the district court adequately considered the facts of this case, the information in the PSI report and the applicable factors set forth in La. C. Cr. P. art. 894.1 when it sentenced Defendant to 25 years at hard labor, with the first 3 years to be served without the benefit of probation, parole or suspension of sentence.

Further, Defendant’s sentence, although near the statutory maximum, is not constitutionally excessive and is within the statutory range. After a morning of drinking alcohol, Defendant lost control of his vehicle, causing the vehicle to hit and kill a seven-year-old child who was waiting to cross the street on her bicycle. Considering the facts of this case and Defendant’s criminal history, the sentence imposed by the district court is not grossly out of proportion to the severity of the crime and does not shock the sense of justice. The district court did not abuse its discretion in imposing this sentence.

Accordingly, this assignment of error lacks merit.

Reconsider Sentence

Defendant, argues that the district court erred in denying his motion to reconsider sentence. The state argues that this assignment of error should be dismissed because it was not briefed on appeal.

All assignments of error and issues for review must be briefed. U.R.C.A. Rule 2-12.4(B)(4). The court may consider as abandoned any assignment of error or issue for reviéw which has not been briefed. Id. A hntnere statement of an assignment of error in a brief does not constitute briefing of the assignment. State v. Hight, 35,621 (La.App. 2d Cir. 3/1/02), 810 So.2d 1250, writ denied, 02-1181 (La. 11/22/02), 829 So.2d 1036. Defendant merely states this assignment of error and fails to provide any arguments in support of the assignment of error.

Accordingly, this assignment of error is deemed abandoned.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Defendant Randy Presentine.

AFFIRMED.

      . In addition, La. R.S. 14:32.1(B) states that the court shall require the offender to participate in a court-approved substance abuse program. In this case, the district court did not order Defendant to participate in such a program. Although this error renders Defendant's sentence illegally lenient, this court refrains from amending sentences or remanding for resentencing when the state does not object to the error. State v. Foster, 46,992 (La. App. 2d Cir. 2/29/12), 87 So.3d 220.

      . The district court did note, however, that Defendant was not financially supporting his family at the time of the crash and stated that his wife was the primary breadwinner and that his children received federal assistance.


author: GARRETT, J.'

text:
    STATE of Louisiana, Appellee v. Ernest Allen BOEHM, Jr., Appellant
    No. 51,229-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017

      RICHARD J. GALLOT, JR., Counsel for Appellant
    JOHN F.K. BELTON, District Attorney, LEWIS A. JONES, TRACY W. HOUCK, Assistant District Attorneys, Counsel for Appellee
    Before LOLLEY, PITMAN, and GARRETT, JJ.
   GARRETT, J.'

hThe defendant, Ernest Allen Boehm, Jr., pled guilty to 50 counts of molestation of a juvenile involving his two daughters. He was ordered to serve 30 years at hard labor on each count, with all of the sentences to be served concurrently. He now appeals his sentences as excessive. For the following reasons, we affirm the convictions, vacate the illegally lenient sentences, and remand for resentencing.

FACTS

Following a report of alleged sexual abuse made to law enforcement officers by a youth minister in June 2015, Boehm was arrested and confessed to the sexual activity discussed below. In July 2015, he was originally indicted by a Lincoln Parish grand jury for 25 counts of molestation of a juvenile and 25 counts of aggravated incest. He was represented by retained counsel and discovery was undertaken. Pursuant to plea negotiations, on October 20, 2015, Boehm was charged by bill of information with 50 counts of molestation of a juvenile, violations of La. R.S. 14:81.2. The offenses occurred from 2010 through June 24, 2015. Boehm was arraigned, fully advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and waived those rights. He was fully informed of the possible sentences for the offenses, and entered a plea of guilty as charged. No promises were made as to any sentences that might be imposed.

The factual basis for the pleas was given by the state. Boehm and his wife adopted two children when they were five and eight years old. When the children were 12 or 13 years old, Boehm began molesting them, and 1 .¿continued until they were 16 years old. Boehm admitted molesting each child at least 25 times. The state detailed the behavior admitted by Boehm that met the statutory definition of the offenses. The incidents included digital penetration, oral sexual intercourse, and vaginal sexual intercourse. Discovery conducted in the case was filed into the record. The trial court accepted the guilty pleas. The pending grand jury indictments were dismissed and a presentence investigation report (“PSI”) was ordered.

Boehm appeared before the court for sentencing on December 15, 2015. He confirmed receipt of his sex offender notification, as required by La. R.S. 15:542-543.1. The state recommended that Boehm receive a minimum of 20 years at hard labor on each count. Boehm’s attorney noted that there was no agreement as to the sentences to be imposed in this case. The trial court again informed Boehm of the applicable penalty for the offenses under La. R.S. 14:81.2(0(1), which provides in part:

Whoever commits the crime of molestation of a juvenile by violating the provisions of Paragraph (A)(1) of this Section, when the incidents of molestation recur during a period of more than one year, shall, on first conviction, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not less than five nor more than forty years, or both. At least five years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

The trial court stated that it carefully reviewed the PSI, as well as letters submitted concerning Boehm. According to the PSI, Boehm admitted that the molestation of the children began when they were under the age of R13, while the family lived in another state. The court considered the sentencing factors set forth in La. C. Cr. P. art. 894.1. It determined that Boehm was in need of correctional treatment best provided by commitment to an institution and that lesser sentences than those imposed would deprecate the heinous nature of the offenses. The trial court stated:

The offenses that you committed over a protracted period of time were a reprehensible violation of the most sacred responsibility a man can have to his family. You have robbed your victims of the trust and protection you owed to them. There can be no doubt that they will suffer grave psychological scars for many years to come, if not for their entire lifetimes.

The court noted that Boehm did not have a prior criminal record, confessed early in the case, and admitted his guilt without any guarantee of limitation of sentence. The court considered these factors as evidence of Boehm’s remorse. The trial court allowed Boehm to make a statement, in which he admitted the harm and grief he caused his family.

The trial court sentenced Boehm to serve 30 years at hard labor on each of the 50 counts of molestation of a juvenile, to be served concurrently. Boehm was properly informed of the delays for applying for post-conviction relief.

Boehm’s attorney objected to the sentences and gave notice of the intention to file a motion to reconsider the sentences. The motion was filed on December 17, 2015. It claimed that the sentences were not imposed in compliance with La. C. Cr. P. art. 894.1, and the 30-year sentences were excessive. A hearing on the motion was held on May 17, 2016. Boehm’s attorney pointed out that his client accepted responsibility for the crimes and argued that this fact should have been considered by the court in imposing sentence. He also noted that the Boehms had divorced since the sentencing.

14The trial court stated that it had considered imposing the sentences for the 25 counts dealing with the first victim consecutively with the 25 counts concerning the second victim. However, because Boehm pled guilty without an agreed-upon sentence, the court imposed the sentences concurrently, even though there were two different victims. The trial court denied the motion to reconsider the sentences. Boehm appealed.

EXCESSIVE SENTENCES

Boehm argues on appeal that the sentences imposed in this case are excessive and harsh, given the facts of this case, the defendant’s background, and a comparison with other cases. These arguments are without merit.

Legal Principles

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Shipp, 46,715 (La.App. 2 Cir. 11/2/11), 78 So.3d 805. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Mandigo, 48,801 (La. App. 2 Cir. 2/26/14), 136 So.3d 292, writ denied, 2014-0630 (La. 10/24/14), 151 So.3d 600. There is no requirement that specific matters be given any particular weight at | ¿sentencing. State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

Second, a sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Mandigo, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Jackson, supra; State v. Hollins, 50,069 (La.App. 2 Cir. 8/12/15), 174 So.3d 710.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Mandigo, supra. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, supra; State v. Hollins, supra.

The following factors are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime: the nature of the offense and the offender, a comparison of the punishment in this case with the sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions. State v. Fruge, 2014-1172 (La. 10/14/15), 179 So.3d 579.

While a comparison of sentences imposed for similar crimes may provide some insight, sentences must be individualized to the particular offender and to the particular offense committed. It is within the purview of |Rthe district court to particularize the sentence because the district court remains in the best position to assess the aggravating and mitigating circumstances presented by each case. State v. Fruge, supra. Therefore, the only relevant question on review is whether the court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Fruge, supra.

Discussion

In arguing that the sentences imposed were excessive, Boehm points out that he had no prior criminal record and expressed remorse for his actions. Boehm claims that the trial court failed to sufficiently consider his admission of guilt and expression of remorse. He also cites several other cases involving similar offenses in which a defendant was given a less severe sentence.

While the sentences imposed in the cases cited by Boehm’s attorney were less than those imposed in this matter, those cases are factually distinguishable. In State v. Ellis, 38,740 (La.App. 2 Cir. 8/18/04), 880 So.2d 214, the defendant was sentenced under a different portion of La. R.S. 14:81.2. In State v. Linder, 49,652 (La.App. 2 Cir. 4/8/15), 162 So.3d 1278, the defendant committed a single offense and also was sentenced under a different portion of the statute. In State v. Murray, 46,895 (La.App. 2 Cir. 1/25/12), 86 So.3d 35, the defendant was sentenced for cruelty to a juvenile, not molestation of a juvenile.

Our review of the record discloses no abuse of discretion regarding the length of the sentences imposed. The sentences were within statutory limits. The trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1, and considered the aggravating and mitigating circumstances in |7this case. The court noted that Boehm was a first felony offender. It considered the gravity of Boehm’s offenses and the impact his crimes had upon the victims and his family. The court reviewed letters submitted regarding Boehm, some urging leniency and some urging severe sentences. The trial court noted that Boehm pled guilty early in the process and expressed remorse for his offenses. Based upon that consideration, the trial court ordered that the sentences be served concurrently and not consecutively.

The sentences imposed here are not out of proportion to the seriousness of the offenses. Boehm repeatedly molested his children over a period of more than five years. Given the sheer number of offenses, the length of time over which the offenses occurred, and the impact on the victims, it is clear that the sentences imposed were tailored to the offender and the offenses. The sentences do not shock the sense of justice.

ERROR PATENT

We note as error patent that the trial court imposed illegally lenient sentences in this matter by failing to specify what portion of the sentences are to be served without benefit of parole, probation, or suspension of sentence, as required by La. R.S. 14:81.2. That statute provides that at least five years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence. This error is not automatically corrected under La. R.S. 15:301.1, because the penalty language of the statute gives the trial court discretion in determining the exact length of time that benefits are to be withheld. According to the jurisprudence, the sentences must be vacated and the case remanded to the trial court for resentencing in compliance with La. R.S. 14:81.2. See State v. Rose, 50,861 (La.App. 2 Cir. 9/28/16), 206 So.3d 1102; State v. Johnson, 50,248 (La.App. 2 Cir. 2/24/16), 188 So.3d 291; State v. Downs, 50,345 (La.App. 2 Cir. 1/13/16), 186 So.3d 207.

CONCLUSION

For the reasons stated above, we affirm the convictions of the defendant, Ernest Allen Boehm, Jr. His illegally lenient sentences are vacated and the case is remanded to the trial court for resentencing.

CONVICTIONS AFFIRMED. SENTENCES VACATED; REMANDED FOR RESENTENCING.

      . Boehm and his family moved to Lincoln Parish in 2010. Therefore, the bill of information charged only those offenses that occurred in Lincoln Parish. The record indicates that the conduct began while the parties were residing elsewhere.

      . This provision was previously contained in La. R.S. 14:81.2(D)(1). The statute was amended by La. Acts 2011, No. 67, to redes-ignate this section as La. R.S. 14:81.2(C)(1). The penalty was not changed.


author: COX, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Rashad Montreal TURNER, Defendant-Appellant
    No. 51,228-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JOHN FITZGERALD BELTON, District Attorney, Counsel for Appellee ■
    LAURIE LEE- WHITTEN JAMES, TRACY WAYNE HOUCK, Assistant District Attorneys
    Before MOORE, LOLLEY, and COX, JJ.,
   COX, J.

_JjThe defendant, Rashad Montreal Turner (“Turner”), was charged with resisting a police officer with force or violence. Following a jury trial, a unanimous six-person jury found Turner guilty of the responsive verdict of attempted resisting a police officer with force or violence, in violation of La. R.S. 14:27 and La. R.S. 14:108.2(A)(3). He was sentenced to serve one year at hard labor, suspended; two years’ supervised probation; and was given a $750.00 fine or six months in parish jail in default of payment. Turner appealed his conviction based on insufficiency of the evidence. For the reasons stated below, we affirm Turner’s conviction. However, we respectfully amend the portion of Turner’s sentence that states he will spend six months in parish jail in default of payment of the $750.00 fine since Turner was and is an indigent. Rather, that portion of the sentence shall state that the $750.00 fine shall be imposed as a condition of Turner’s probation. As amended, we affirm.

FACTS

On December 5, 2013, Sergeant Gary White (“Sergeant White”) and Officer Thomas Harmon (“Officer Harmon”), officers of the Grambling State University Police, were called to the Holland Hall dormitory. The call indicated that a woman, later identified as Equasia Gallow (“Ms. Gallow”), had been thrown out into the hall of the dormitory by her boyfriend and that she was naked. Sergeant White and Officer Harmon responded and found Ms. Gallow in distress and crying, and it appeared she had been scratched. Ms. Gal-low gave a statement to Sergeant White in which she stated that she and Turner, her boyfriend, were in his dorm room when they got into an argument over information he found on her cellphone. She stated that | ¿Turner threw her out of his dorm room without her pants on and then threw water in her face.

By this point, the officers had determined that Turner had left the dormitory, so they escorted Ms. Gallow and an eyewitness to the incident, Donathan Howard, to the university police station to get their statements. While Sergeant White took Ms. Gallow’s statement, Officer Harmon patrolled the area looking for Turner since the officers had been given a description of Turner and his vehicle. Officer Harmon eventually spotted Turner’s vehicle in a parking lot near the dormitory; both he and Sergeant White went into the building to locate Turner.

When the officers reached Turner’s dorm suite, they knocked on the door and identified themselves as the police. When the officers’ repeated knocking and announcements got no response, they had a resident assistant open the door to the suite. Once the officers entered the dorm suite, they again identified themselves and knocked on Turner’s bedroom door numerous times before Turner opened the door.

Sergeant White told Turner that he was under arrest for domestic abuse battery and read Turner his Miranda rights. Sergeant White then asked Turner to turn around and place his hands behind his back. After Sergeant White placed one cuff on Turner’s left arm, Turner jerked his right arm loose and refused to allow Sergeant White to cuff him. Sergeant White forced Turner onto the nearby bed, where he asked Turner multiple times to give him his right arm. Turner tucked his right arm underneath his chest |.and refused to release his arm. At this point, Officer Harmon stepped in, and the officers were able to successfully place both cuffs on Turner.

Both officers escorted Turner downstairs to the police vehicle. Once they had reached the vehicle, Turner refused to get in after several requests by Sergeant White. Sergeant White told Turner that if he did not cooperate, he would be placed into the vehicle; Turner complied.

Upon reaching the police station, Sergeant White attempted to get more information from Turner. When asked his middle name, Turner responded with an expletive. When asked his date of birth, Turner told Sergeant White that he did not have one. Turner eventually complied with Sergeant White, and Sergeant White was able to get the information he needed to complete his report.

Turner was subsequently charged with the felony offense of resisting a police officer with force or violence, in violation of La. R.S. 14:108.2(A)(3). The trial court found Turner to be indigent and appointed counsel to represent him.

On March 27, 2015, Turner appeared before the court and the state’s plea offer was read into the record. The state offered to allow Turner to plead guilty to the reduced misdemeanor charge of resisting an officer, with a six-month suspended sentence and one year of supervised probation. Turner confirmed to the court that his attorney had communicated the state’s plea offer to him, but he declined the offer and chose to proceed to trial.

At trial, Sergeant White testified that he was not injured by Turner and that he did not feel threatened by Turner’s actions. Sergeant White stated that he had a safety interest in cuffing Turner because the dorm room |4was small, and he was not sure what was located in the room that Turner could have grabbed. Sergeant White also testified that he believed Turner was trying to resist being handcuffed and not trying to injure him. He later conceded, however, that he did not actually know what Turner intended. Sergeant White agreed with the state’s argument that Turner had to know that the loose right hand cuff was attached to the cuff already on his left wrist when he jerked his arm free. Sergeant White stated that Turner’s snatching and whipping around of the loose cuff was also a concern because it could have been an attempt by Turner to injure him. Sergeant White testified that he knew of two instances where an officer was gruesomely injured with handcuffs.

Officer Harmon testified that Turner was twisting and flailing his left arm around in a dangerous manner. Officer Harmon conceded that Turner did not swing at Sergeant White or attack either of them. However, Officer Harmon believed Turner’s combativeness could have led to one or both of the officers being injured. He testified that Turner’s actions indicated that he did not want to be arrested or handcuffed and that this constituted resistance. Officer Harmon also testified that the metal handcuffs are dangerous because they are heavy and have a serrated edge, so swinging them around could cause an injury.

The trial court advised Turner of his right to remain silent and his right to testify; Turner chose to testify. Turner testified that he had obtained a degree in biology from GSU and that he was working to earn money to attend pharmacy school. He testified that he had never been handcuffed, arrested, or convicted of any crime.

jfiTurner testified that when he heard the officers knocking, he opened the door to find Officer Harmon, with a Taser in his hand, and Sergeant White, who told him to turn around. Turner stated that as Sergeant White pulled his left arm behind his back, Sergeant White threw him onto the bed and lay on top of him, pinning Turner’s right arm underneath him. Turner testified that he squirmed and wriggled to free his right arm, and Sergeant White then cuffed his right wrist. He testified that he never hit or attempted to hit Sergeant White, nor did he ever try to injure him. Turner did admit, however, that he was initially uncooperative in answering questions because he did not like the way he was being treated.

At the end of the trial, the jury was instructed on the elements of the charged offense, as well as the elements of the responsive verdict of attempted resisting a police officer with force or violence. The court advised the jury that, based on the jury’s finding of fact, the jury could find Turner guilty as charged, guilty of the responsive verdict of attempted resisting with force or violence, or not guilty. The jury returned the responsive verdict of guilty of attempted resisting with force or violence. Turner’s counsel requested to poll the jury, and the unanimous verdict was confirmed.

Turner was sentenced to the minimum of one year at hard labor, suspended, with supervised probation for two years, subject to the conditions of probation. The court imposed a fine of $750.00, plus all costs of the proceeding. In default of payment, Turner would spend an additional six 16months in the parish jail. The court ordered that the “unserved portion” of his jail sentence was suspended. The court also ordered Turner to spend 15 days in the parish detention center, subject to public works, but stated that this time could be served ’on the weekends. The defense advised the court that Turner now resides in Georgia. The judge ruled that Turner’s probation and parole could be transferred to Georgia as long as Turner made himself available for the proceedings on the misdemeanor charge of domestic abuse battery.

On September 22, 2015, Turner moved to appeal his conviction. The order was granted on April 6,2016.

LAW

The proper test for determining a claim of insufficiency of the evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard for appellate review for á sufficiency of the evidence claim is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied, 13-1798 (La. 2/14/14), 132 So.3d 410. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Crossley, supra; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the x-esolution of which depends upon a determination of the credibility of the witnesses, the matter is. one of the weight of the evidence, not its sufficiency. State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied, 12-2667 (La. 5/24/13), 116 So.3d 659; State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/6/09), 21 So.3d 299. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L.Ed.2d 62 (2000); State v. Woodard, 47,286 (La. App. 2 Cir. 10/3/12), 107 So.3d 70, writ denied, 12-2371 (La. 4/26/13), 112 So.3d 837; State v. Hill, supra.

IsTurner was charged with resisting a police officer with force or violence, as defined in La. R.S. 14:108.2(A)(3), which states:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
⅜ ⅜ ‡
(3) Injuring or attempting to injure a poliee officer engaged in the performance of his duties as a police officer.

Turner was convicted of the responsive verdict of attempted resisting a police officer with force or violence. Attempt is defined in La. R.S. 14:27 as follows:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Specific intent is defined in La. R.S. 14:10, which states, “Specific criminal intent is 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.” Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Jones, 10-0762 (La. 9/7/11), 74 So.3d.197. The state has the burden of proving that the offender had specific intent to commit the crime and that the offender committed or omitted an act for the purpose of accomplishing his object. State v. Prine, 44,230 (La. App. 2 Cir. 5/20/09), 13 So.3d 758.

|9The finder of fact determines whether the offender had specific intent to commit the crime and whether the offender acted toward committing the offense by considering the totality of the circumstances. State v. Jones, supra; State v, Prine, supra. In State v. Jones, supra at 202, the Louisiana Supreme Court stated:

The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted, and it is the intent to commit the crime, not the possibility of success, which determines whether the act or omission constitutes the crime of attempt.

The Court also noted that a “physical overt act is generally required to constitute an attempt for most crimes.” Id. Finally, the Court added that a person may be found guilty of attempt as a responsive verdict even though the evidence shows he committed the actual crime charged. Id.

DISCUSSION

On appeal, Turner argues that there was insufficient evidence to support the offense charged, as well as the jury’s verdict of attempted resisting an officer with force or violence, because there, was no evidence that Turner injured, or had the general or specific intent to injure, Sergeant White, as required by La. R.S. 14:108.2(A)(3) and La. R.S. 14:27. However, we believe that the evidence was sufficient to support the jury’s finding that Turner was guilty of attempted resisting a police officer with force or violence.

The first element that the state was required to prove under La. R.S. 14:108.2(A)(3) was that the victim in this case was a police officer. It is undisputed that Sergeant White and Officer Harmon were and are police Imofficers. Both officers testified that they were wearing attire that said “police” on the back, as well as hats with the poliee logo stitched on the front. Additionally, when the officers knocked on the door to Turner’s dorm suite, as well as when they knocked on Turner’s bedroom door, the officers announced themselves as the police. Upon entering Turner’s bedroom, Sergeant White stated that he and Officer Harmon were both officers of the Grambling State University Police Department. Based on this evidence, we believe that a jury could have reasonably concluded that both Sergeant White and Officer Harmon were police officers.

The second element that the state was required to prove under La. 14:108.2(A)(3) was that the defendant had reasonable grounds to believe that the victim was a police officer who was arresting, detaining, seizing property, serving process, or acting in the performance of his' official duty. It appears clear that Turner had reasonable grounds to believe Sergeant White and Officer Harmon were police officers who were arresting him or acting in the performance of their official duties. Once the officers entered Turner’s bedroom, Sergeant White told Turner that he was being placed under arrest for the alleged domestic battery against Ms. Gal-low, and he read Turner his Miranda rights. Thus, there can be no doubt that Turner had reasonable grounds to believe that Sergeant White and Officer Harmon were police officers acting in the performance of their official duties. A jury reasonably could have found that the state proved the second element based on the evidence and testimony presented.

The final element that the state was required to prove under La. R.S. 14:108.2(A)(3) was that the defendant injured or attempted to injure a police | nofficer engaged in the performance of his duties as a police officer. While Sergeant White was attempting to place Turner under arrest, Turner jerked away from Sergeant White. At this time, only Turner’s left arm had been handcuffed. Sergeant White gave Turner multiple opportunities to comply by asking Turner to give him his right arm. Turner refused, and continued to jerk away and struggle with Sergeant White, flailing his left arm in the air. Turner had an open, dangling handcuff attached to his left arm.

Officer Harmon described Turner as combative during the arrest, pulling away from Sergeant White so that he could not successfully be restrained. As noted before, Sergeant White is 6’5‘, 480 pounds. For Officer Harmon to have to step in to assist Sergeant White in successfully restraining Turner, it is apparent that Turner was using a great deal of force in resisting Sergeant White. Additionally, Turner knew that the open handcuff was attached to his left arm, and he continued to flail and throw his left arm around in the air while also refusing to give Sergeant White his right arm. It thus appears that a jury could have reasonably found that Turner was attempting to injure the officers with the open handcuff.

Although Turner did not strike either officer, it should be noted that injury is not a requirement for conviction of this charge. Neither officer was injured, but Sei-geant White testified that the dangling cuff could be used as a weapon, and he stated that he has seen two officers injured in the face as a result of a similar incident. Additionally, both officers testified that they were concerned for their safety while Turner was struggling with Sergeant White. The officers both stated that Turner’s flailing of his left arm with the open handcuff attached to it could have caused one or both officers serious 112injury. It is important to again note that Turner was fully aware there was a dangling, open handcuff attached to his left arm at this time, as adduced in testimony.

In State v. Musacchia, 13-169 (La. App. 5 Cir. 12/12/13), 131 So.3d 286, a case similar to this, the Fifth Circuit held that the evidence was sufficient to support both the charged offense of resisting an officer with force or violence, as well as the jury’s verdict finding the defendant guilty of the lesser and included grade of attempted resisting an officer with force or violence. The officer, in full uniform, was responding to a domestic disturbance call and asked the defendant what happened. Id. The defendant responded with “expletives, speaking with a belligerent, agitated tone, and took an aggressive stance” toward the officer. Musacchia, supra at 289. When the officer attempted to escort the defendant to a nearby vehicle, the defendant shoved the officer’s hand off of him, and took a swing at the officer. Id. After the officer attempted to secure the defendant and place him on the ground, a physical altercation ensued. Id. The altercation ended when a second officer intervened. Id.

Similar to the defendant in Musacchia, Turner continuously used expletives toward the officers and had an attitude. When asked his middle name, Turner responded with an expletive. Also, when Turner was asked his date of birth, he told the officers he did not have one. Turner did not provide the officers with important information that was needed to complete their report, which ultimately hindered their work. Additionally, Turner took an aggressive stance against Sergeant White when he stood stiffly straight in front of the door of the police vehicle and refused to get in.

11sAlthough Turner did not swing at either of the officers like the defendant in Musacchia, Turner did jerk his right hand away from Sergeant White while Sergeant White was attempting to place Turner under arrest. Turner continued to struggle with Sergeant White, and it was not until Officer Harmon stepped in that the officers were able to detain Turner. Also, while Turner was struggling to keep his right arm from Sergeant White, his left arm was flailing around with the open cuff attached to it. As stated earlier, this could have seriously injured either officer had one of them been hit.

Also similar to Musacchia, the trial judge in Turner’s case instructed the jury that if the state failed to prove the elements of the charged offense or of the lesser responsive verdict, it should return a verdict of not guilty. The trial judge in Musacchia instructed the jury in the same manner, and the court found that the trial judge “sufficiently informed the jury of its duty to acquit defendant if the evidence did not support each element of the charged offense of resisting a police officer with force or violence or the lesser responsive verdict of attempted resisting an officer with force or violence.” Musacchia, supra at 294. The jury in Turner’s case was thus adequately instructed and, if they did not believe Turner was guilty of either offense, they had the option to find him not guilty.

In another similar case, State v. Johnson, 47,632 (La. App. 2 Cir. 1/16/13), 109 So.3d 407, the officer testified that the defendant punched the officer in the stomach, was verbally aggressive and uncooperative, and failed to follow instructions. This Court found that the evidence was | sufficient to support the jury’s verdict of guilty of resisting an officer with force or violence. Id.

As stated earlier, Turner was verbally aggressive when he continued to use expletives toward the officers. Turner was also uncooperative in many ways. First, Turner did not open the door for Sergeant White and Officer Harmon when they arrived. After several minutes of knocking, the resident assistant had to be called to unlock the main entrance to the dorm suite. Additionally, Sergeant White testified that Turner had an attitude from the moment the officers entered his bedroom. Second, Turner continued to be uncooperative with the officers as Sergeant White repeated the same knock and announcement on Turner’s bedroom door, which was locked. Turner still did not open the door for several minutes. In fact, it was not until Sergeant White threatened to have the resident assistant unlock Turner’s bedroom door that Turner finally opened it.

Sergeant White testified at trial that the knocking and announcement were loud enough to be heard by Turner through the interior door. Officer Harmon stated that the knocking was so loud that residents from down the hall were poking their heads out of their dorm rooms to see what was going on. Although Turner resided in a dorm suite with other residents, the officers were calling Turner’s name as they knocked, thus there could have been no doubt that the officers were there for Turner. Turner was simply being uncooperative in not opening the door. Finally, after successfully handcuffing Turner, the officers escorted him downstairs to the police vehicle where Turner continued to be uncooperative. Officer Harmon | ¶ ¿testified that Turner kept trying to pull away from them and was being verbally abusive.

Turner also repeatedly failed to follow instructions. Upon reaching the police vehicle, Sergeant White instructed Turner to get in, but Turner refused. Turner stood stiffly straight and still in front of the vehicle door and would not bend over to get into the vehicle after being asked several times by Sergeant White to do so. Also, as noted earlier, Turner failed to follow instructions when Sergeant White repeatedly asked Turner to surrender his right arm and Turner refused.

The court in Musacchia, supra at 292, stated the following:

Because we find the state proved all necessary elements of the greater charged offense of resisting a police officer with force or violence, the evidence was then clearly sufficient to support the jury’s verdict of the lesser responsive offense of attempted resisting a police officer with force or violence. In cases where the evidence at trial supports the greater charged offense but the jury returns a lesser responsive verdict, the Louisiana Supreme Court has recognized that such a result recognizes the legitimacy of a “compromise” verdict.

Because we also believe that the state proved all necessary elements of the greater charged offense, it is clear that the evidence in this case is sufficient to support the jury’s verdict of the lesser responsive offense. We thus find that reasonable jurors, viewing the evidence in a light most favorable to the prosecution, could have concluded beyond a reasonable doubt that Turner committed the offense of attempted resisting a police officer with force or violence.

As part of Turner’s sentence, the trial court required Turner to pay a fine of $750.00 or, in default of payment, spend six months in the parish jail. An indigent defendant may not be incarcerated because he is unable to pay a 11 afine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La. 1991); State v. Kerrigan, 27,846 (La. App. 2 Cir. 04/03/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La. 1986); State v. Kerrigan, supra. This Court may choose to amend the defendant’s sentence. See State v. Tillman, 43,569 (La. App. 2 Cir. 10/22/08), 997 So.2d 144, 149.

The record shows that Turner was and is an indigent. The trial court determined that Turner was an indigent prior to trial. Turner was represented at trial by the Indigent Defender’s Office and on appeal by the Appellate Project. Louisiana Code of Civil Procedure article 895.1 states:

B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following: ***

Thus, this portion of Turner’s sentence shall be amended to state that the $750.00 fíne is imposed as a condition of his probation. As amended, we affirm the ruling and sentence of the trial court.

CONCLUSION

We find that the evidence was sufficient for a reasonable jury, viewing the evidence in a light most favorable to the prosecution, to find Turner guilty of attempted resisting an officer with force or violence. We respectfully amend the portion of Turner’s sentence which states that Turner shall pay a fine of $750.00 or spend six months in the parish jail in default of payment. Because it has been determined that Turner is an indigent, this |17portion of his sentence shall be amended to state that the fine of $750.00 is imposed as a condition of his probation. As amended, we affirm.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Sergeant White testified that he is six feet five inches tall, and weighs 480 pounds.

      . Officer Harmon testified that he did not have a Taser, but only a can of pepper spray, which he did not have out at that time.

      . Turner was ordered to have no contact with Ms. Gallow, to participate in a domestic abuse program, to work 12 eight-hour days of community service, and to pay a fine of $750.00.


author: MOORE, J.

text:
    Silas DEAN, Jr., and Priscilla D. Dean, Plaintiffs-Appellants v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee
    No. 51,243-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017.

      THE LAW FIRM OF EDDIE CLARK & ASSOCIATES, LLP, By: Eddie M. Clark, Counsel for Appellants
    DAVENPORT, FILES & KELLY, LLP, W. David Hammett, Counsel for Ap-pellee
    Before MOORE, PITMAN, and COX, JJ.
   MOORE, J.

h Silas Dean appeals a judgment that dismissed his claim against his uninsured/underinsured motorist (“UM”) carrier, State Farm, for failing to prove that the other driver was uninsured or underin-sured, as required by La. R.S. 22:1295(6). He also contests a partial summary judgment that dismissed his claim for damages and attorney fees arising from bad-faith adjusting of his UM claim, under La. R.S. 22:1973, 1892. Finally, he seeks an award of reasonable damages for his personal injuries. Finding no merit in any of his arguments, we affirm, but amend the judgment to state the prevailing and losing parties more precisely.

FACTUAL BACKGROUND

On July 11, 2012, Dean was driving his wife’s 2001 Lexus 300, which was insured (with UM coverage) by State Farm. He was going west on East Madison Avenue, in Bastrop, through the intersection at South Washington Street. He testified that he had the green light, but was struck by a southbound 2011 Ford Ranger driven by Robert McKellar and insured by Progressive Insurance Co. The impact spun the Lexus around, resulting in two impacts. Dean testified that he was “in a daze” after the collision until McKellar walked up to his window and denied that he (McKellar) ran a red light. Dean was positive that he had the green light.

Dean was taken to Morehouse General Hospital and, in the ensuing months, was treated by a chiropractor, a pain management specialist and a physical therapist; he was also examined by a neurosurgeon in Shreveport. He felt that the accident aggravated preexisting back and neck problems that he had been treating for years.

JjjPROCEDURAL HISTORY

Dean and his wife filed this suit against State Farm in August 2013. He alleged that Progressive was McKellar’s liability carrier, State Farm was his own UM carrier, and McKellar’s liability coverage was “insufficient to fully compensate petitioners for all” injuries and damage; hence, the UM claim. He also alleged that State Farm “arbitrarily, capriciously, and without cause refused to timely tender a reasonable and fair amount” under the UM policy, contrary to R.S. 22:1973 and 1892, entitling him to statutory penalties, damages and attorney fees.

State Farm made general denials, admitting that it had issued a UM policy to the Deans with a limit of $25,000 per person per accident. State Farm also asserted that Dean was comparatively negligent in the accident and had many preexisting injuries unrelated to the accident.

State Farm moved for partial summary judgment in October 2013 to dismiss the bad-faith adjusting claim. In a memo in support, State Farm recited that Dean made a claim against McKellar’s liability carrier, Progressive, which “paid its policy limit of $100,000 to plaintiff for settlement of plaintiffs injury claim.” State Farm showed that Dean had submitted medical bills of only $19,249.05 as a result of the accident, and argued that his remaining damages were not worth $100,000; hence, he could not prove bad faith just because he disagreed with State Farm’s assessment of his injury. In support, State Farm attached a copy of the Deans’ full release of all claims with indemnity (“the Settlement”) with Progressive. This recited a payment of $100,000 for “any and all claims, actions, causes of action, demands, rights, damages, costs” arising from the accident, but did not state that $100,000 was Progressive’s policy limit.

IsDean opposed the motion in February 2014, arguing that “adequate and/or meaningful discovery” had not yet taken place and a hearing would be premature. He asked for a continuance instead.

The court held a hearing on March 6, 2014. No transcript of this is in the record, but the minutes show that the district court denied Dean’s motion for continuance and granted State Farm’s motion for partial summary judgment.

Dean filed a motion in limine, in August 2015, to prohibit any mention at trial of, among other things, any benefits he might have received from a collateral source, and of the fact that he settled with Progressive for “its insured’s liability policy limits in exchange for a limited release.”

The court held a hearing on Dean’s motion in limine, and on several other motions, on August 20, 2015. The court voiced perplexity at Dean’s request: “How do you get to the court not knowing that it’s a UM claim[?] * * * You have to establish as an underlying basis that the policy limits which you’ve obtained are not sufficient?” Counsel replied, ‘Tour honor, that’s not what we have to do[,]” and, moments later, “The petition * * * states that the settlement limits were paid.” The court again advised that one of the elements of proof is that “there is not enough money from one source!.] You almost have to have this as an element of your case that these people are underinsured.” After several minutes of dialogue in this vein, the court denied Dean’s motion in limine.

The matter proceeded to trial in February 2016. Dean offered medical records and bills, totaling $24,119.90, and photos of the damaged Lexus. State Farm offered a copy of its UM policy, two medical depositions, and a copy of the Settlement. Regarding the Settlement, Dean’s counsel persisted Rthat it was inadmissible except to show “the policy limits for Progressive were fully exhausted.” State Farm agreed to stipulate how much Dean received from Progressive, but nothing more.

Dean himself was the only live witness, describing the accident, his course of treatment and his continued medical complaints. On cross-examination, he was unable to recall or explain medical records confirming very similar medical complaints before the accident. Dean also offered the deposition of Dr. John Ledbetter, a pain management specialist who treated him starting in December 2012, about five months after the accident. Counsel’s asso-cíate read the deposition out loud into the record. After this, both sides rested.

By post-trial brief, State Farm argued that Dean failed to prove that McKellar was UM, as required by R.S. 22:1295(6). Dean moved to strike State Farm’s brief, urging (among other things) that McKel-lar’s UM status was proved by the allegations of plaintiff’s petition. After a hearing on May 5,2016, a transcript of which is not in this record, the court denied Dean’s motion to strike.

On June 3, the court filed reasons for judgment finding that R.S. 22:1295(6) applied and that Dean had offered no evidence to establish a prima facie case that McKellar was UM. The judge cited this court’s application of the rule to similar facts in Luquette v. Allstate Ins. (Indem.) Co., 50,177 (La.App. 2 Cir. 8/12/15), 174 So.3d 736, writ denied, 2015-1641 (La. 10/30/15), 180 So.3d 300. The judge specifically rejected the argument that the plaintiffs own petition could establish an essential element of § 1295, reasoning that under La. C.C. art. 1853, a judicial confession constitutes full proof only against the party who made it, and noth against the other party. The reasons included decretal language but directed State Farm’s counsel to submit a written judgment in accord with the reasons.

Six days later, before final judgment was signed, Dean moved for the instant devolutive appeal. State Farm responded with a motion to enforce offer of judgment, under La. C. C. P. 970C, in effect to amend the reasons for judgment to cast Dean with all costs.

After a hearing, the district court denied State Farm’s motion to enforce the offer of judgment and rendered a final judgment dismissing Dean’s claims, with each party to bear its own costs.

DISCUSSION: PROOF OF UM STATUS

Dean has designated four assignments of error. His first assignment urges the trial court erred in concluding that the plaintiff was required to prove that the tortfeasor was UM because, owing to State Farm’s pretrial judicial admissions, this was simply not a contested issue at trial. He contends there is “no specific formula” for proving a tortfeasor’s UM status, and submits that any prima facie evidence will suffice, citing Gillmer v. Stuckey, 2009-0901 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, and Young v. Martinez, 98-674 (La. App. 5 Cir. 11/25/98), 722 So.2d 1143. He shows that the Settlement was entered in evidence, and asserts that State Farm called it a policy-limits settlement “in numerous pretrial pleadings.” He largues that these statements constituted a judicial confession, obviating his need to present evidence, under La. C.C. art. 1853 and C.T. Traina Inc. v. Sunshine Plaza Inc., 2003-1003 (La. 12/3/03), 861 So.2d 156. He contends that “throughout the entire course of the current litigation,” the parties were fully aware that the Settlement was for policy limits, and to allow State Farm to change its position late in the proceedings is “ambush.”

By his second assignment of error, Dean urges the trial court erred in finding the evidence of UM status to be insufficient to carry the plaintiffs burden of proof on the issue. He reiterates that the Settlement and State Farm’s four statements in memos provided sufficient proof of McKellar’s UM status.

In order for an insured to recover against his UM carrier, he must first prove the UM status of the offending motorist. Luquette v. Allstate Ins., supra; Lozano v. Brown, 10-489 (La.App. 5 Cir. 1/25/11), 60 So.3d 669. Proof of UM status is regulated by R.S. 22:1295, which provides, in pertinent part: .

(6) In any action to enforce a claim under the uninsured motorist provisions of an automobile liability policy the following shall be admissible as prima facie proof that the owner and operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident in question:
(a) The introduction of sworn notarized affidavits from the owner and the operator of the alleged uninsured vehicle attesting to their current addresses and declaring that they did not have automobile liability insurance in effect covering the vehicle in question on the date of the accident in question. * * *
|7(b) A sworn notarized affidavit by an official of the Department of Public Safety and Corrections * ⅜ *.
(c) Any admissible evidence showing that the owner and operator of the alleged uninsured vehicle was a nonresident or not a citizen of Louisiana on the date of the accident in question, or that the residency and citizenship of the owner or operator of the alleged uninsured vehicle is unknown, together with a sworn notarized affidavit by an official of the Department of Public Safety and Corrections to the effect that on the date of the accident in question, neither the owner nor the operator had in effect a policy of automobile liability insurance,
(d) The effect of the prima facie evidence referred to in Subparagraphs (a), (b), and (c) of this Paragraph is to shift the burden of proof from the party or parties alleging the uninsured status of the vehicle in question to their uninsured motorist insurer.

Dean does not contend that he offered any of the documents enumerated in § 1295 (6), and on close review, we find no such evidence in the record. The district court was not plainly wrong to find that Dean failed to meet his burden of proof under the statute.

In addition to the enumerated documents, Subparagraph (6)(c) permits the introduction of “any admissible evidence” to prove UM status. Campbell v. American Home Assur. Co., 260 La. 1047, 258 So.2d 81 (1972); Stephens v. King, 2016-376 (La.App. 3 Cir. 11/9/16), 205 So.3d 990. Ordinarily, the plaintiff can satisfy this by introducing the declarations page of the offending driver’s liability policy, showing the policy limits, and any evidence showing the plaintiffs damages exceeded that amount, Gillmer v. Stuckey, supra, Scherer v. Chaisson, 469 So.2d 510 (La. App. 3 Cir. 1985); Loupe v. Tillman, 367 So.2d 1289 (La. App. 4 Cir. 1979). Dean did not offer the declarations page or any portion of McKellar’s liability policy with Progressive expressing the policy limits.

|RAs noted, State Farm offered a copy of the Settlement, but this does not purport to state that the $100,000 paid by Progressive was the policy limit. Proof of a settlement with the offending driver’s liability carrier does not constitute proof that the offending driver’s coverage has been exhausted. Lozano v. Brown, supra. The evidence in this record is equivalent to the evidence in Lozano and does not satisfy the plaintiffs burden.

The plaintiff can also satisfy his burden under § 1295 (6)(c) by introducing the testimony or written statement of the offending driver admitting that he had no insurance. Campbell v. American Home Assur. Co., supra; Malloy v. Vanwinkle, 94-2060 (La.App. 4 Cir. 9/28/95), 662 So.2d 96; Releford, v. Doe, 618 So.2d 464 (La. App. 4 Cir. 1993); Fuller v. Moser, 539 So.2d 784 (La. App. 3 Cir. 1989); Schexnaider v. Rome, 485 So.2d 245 (La. App. 3 Cir. 1986). Dean did not offer any testimony or statement from McKellar.

Finally, the plaintiff can satisfy his burden under § 1295 (6)(c) by showing that his own UM carrier has judicially confessed liability. Young v. Martinez, supra; see also Finley v. “ABC” Ins. Co., 06-581 (La.App. 5 Cir. 12/27/06), 946 So.2d 330. Judicial confession is governed by La. C.C. art. 1853, which provides:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

|flA judicial confession is a party’s explicit admission of an adverse factual element. Cichirillo v. Avondale Indus. Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424; State v. Lamb, 31,919 (La.App. 2 Cir. 5/7/99), 732 So.2d 1270. A judicial confession cannot be implied. Yesterdays of Lake Charles Inc. v. Calcasieu Parish Sales & Use Tax Dept., 2015-1676 (La. 5/13/16), 190 So.3d 710; Hoffman v. Hoffman, 430 So.2d 149 (La. App. 2 Cir. 1983). Moreover, the other party must have believed the fact was no longer at issue or relied on it to his detriment. Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La. 1992); State v. Lamb, supra; Leday v. Safeway Ins. Co. of La., 2004-610 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084. The presence of consistent opposition to the allegedly confessed fact weighs against finding a confession. Leday v. Safeway Ins. Co., supra.

In its answer, State Farm generally denied Dean’s allegation that he received policy limits from Progressive, “for lack of information sufficient to justify a belief therein and in order to require strict proof thereof.” Later in its answer, State Farm asserted its right to reimbursement, credit or offset “[i]n the event plaintiffs’ claims exceed the underlying liability limit provided by Progressive[.]” In support of a motion for partial summary judgment, State Farm stated, “Progressive paid its policy limit of $100,000 to plaintiff for settlement of plaintiffs injury claims,” but this is in a paragraph that begins, “Plaintiff claims,” and the citation is to the plaintiffs petition. Later in the same document, State Farm asserted, “[I]t does not appear that plaintiffs injury claim exceeds coverage of the preceding policy (Progressive), and therefore no UM tender is due,” The other passages extracted from State Farm’s memos and cited by Dean as judicial confessions are under the same rubric of “plaintiff claims” and followed by|m arguments disputing UM status. In its pretrial statement, State Farm conceded that Dean settled with Progressive for $100,000 but listed, as a contested fact, “Whether any UM benefits are owed by defendant.” In short, State Farm’s pleadings and memos show a consistent opposition to the fact that is allegedly confessed.

More tellingly, at the hearing on Dean’s motion in limine, the district court repeatedly advised Dean’s counsel that evidence of Progressive’s coverage was an essential element of his case, and lack of it would be fatal. In light of these direct admonitions by the trial judge, counsel could not have reasonably believed the fact was no longer at issue or relied on it to his detriment.

Finally, there is no merit to the position advanced in Dean’s post-trial brief, and on appeal, that the allegation of UM status in the plaintiff’s petition constituted a judicial confession. A judicial confession is an express acknowledgment of an adverse fact. Cichirillo v. Avondale Indus., supra; City of Shreveport v. Noel Estate Inc., 41,148 (La.App. 2 Cir. 9/27/06), 941 So.2d 66, writ denied, 2006-2774 (La. 1/26/07), 948 So.2d 171; Leday v. Safeway Ins. Co., supra. With respect to Dean, McKellar’s UM status was not an adverse fact, but an essential element to be proved. The district court aptly noted that if every allegation in a pleading were sufficient to prove a fact, there would never be any need for a trial.

In short, the record fully supports the district court’s finding that Dean was required to prove McKellar’s UM status and that the trial evidence did not meet the standard of proof. The first two assignments of error lack merit.

I nB AD-FAITH CLAIMS ADJUSTING

By his third assignment of error, Dean urges the court erred in granting partial summary judgment on the issue of bad-faith adjusting at the outset of trial, without permitting discovery relating to the issue. He shows that the insurer owes a duty of good faith and fair dealing, La. R.S. 22:1973A, and is required to pay claims within 30 days of proof of loss, R.S. 22:1892A(1). The duty remains in effect even after suit is filed, Sher v. Lafayette Ins. Co., 2007-2441 (La. 4/8/2008), 988 So.2d 186. He shows that State Farm’s motion was filed on October 28, 2013, and granted on March 24, 2014; he urges this was before the “adequate discovery” he was entitled to conduct under La. C. C. P. art. 966A(3). He suggests that some evidence “might well have shown” that State Farm was arbitrary and capricious, before or after July 13, 2013.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for trial. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, and citations therein. A defendant’s motion for summary judgment may be filed at any time. La. C. C. P. art. 966A(1). After an opportunity for adequate discovery, the motion shall be granted if the motion, memorandum and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C. C. P. art. 966A(3). The procedure is favored and shall be construed to secure the just, speedy and inexpensive determination of actions. La. C. C. P. art. 966A(2). The burden of proof rests with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment,Jjgthen the mover need only point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of fact remain. La. C. C. P. art. 966D(1). If the plaintiff fails to produce such evidence, then summary judgment is proper. Schultz v. Guoth, supra.

There is no absolute right to delay an action on a motion for summary judgment until discovery is completed; the only requirement is that the parties get a fair opportunity to present their claims. Simoneaux v. E.I. du Pont de Nemours & Co., 483 So.2d 908 (La. 1986); Hardin Compounding Pharmacy LLC v. Progressive Bank, 48,397 (La. App. 2 Cir. 9/25/13), 125 So. 3d 493, 81 U.C.C. Rep. Serv. 2d 839, writ denied, 2013-2517 (La. 1/27/14), 131 So. 3d 60. The mere contention of an opponent that he lacks sufficient information to defend the motion and needs additional time to conduct discovery is insufficient to defeat the motion. Pouncy v. Winn-Dixie La., 15-189 (La. App. 5 Cir. 10/28/15), 178 So. 3d 603; Gorbach v. Tulane Univ. Med. Ctr., 2011-1575 (La. App. 4 Cir. 4/11/12), 89 So. 3d 429, writ denied, 2012-1063 (La. 6/22/12), 91 So. 3d 978. The trial court has the discretion to render a summary judgment or to require further discovery. Simoneaux v. E.I. du Pont, supra; Petch v. Humble, 41,301 (La. App. 2 Cir. 8/23/06), 939 So. 2d 499, writ denied, 2006-2482 (La. 12/15/06), 945 So. 2d 692.

This accident occurred on July 11, 2012; Dean filed suit, alleging bad-faith adjusting of the claim, on August 13, 2013; because of the 30-day adjusting period of R.S. 22:1892A(1), this implied that State Farm committed bad faith as of July 13, 2013. State Farm filed the instant motion, | ^seeking to dismiss the bad-faith adjusting claim on October 28, 2013, and the district court set the hearing for March 6, 2014. Dean filed a motion to continue on January 28, 2014, and an opposition on February 21, 2014; the hearing took place as scheduled on March 6. This timeline establishes that from the date Dean filed suit to the date of the hearing, nearly six months had elapsed. While this period.is not expansive, it does not strike us as an abuse of discretion, and it is comparable to the 2femonths found reasonable in Petch v. Humble, supra, the 4 months in Sibert v. National Oilwell Varco, 48,789 (La. App. 2 Cir. 2/26/14), 136 So. 3d 283, and the 5½ months in Williams v. A Day To Remember Invitations LLC, 06-757 (La. App. 5 Cir. 3/13/07), 956 So. 2d 30. We perceive no abuse of discretion here.

Moreover, State Farm disputed the bad-faith adjusting claim on grounds that Dean’s injuries did not exceed the $100,000 he already received from Progressive; in support, it offered Morehouse General records showing preexisting back and neck problems similar to those allegedly resulting from the collision with McKellar; Louisiana Pain Care and Wied Physical Therapy records showing that symptoms from the instant accident had largely subsided by mid-2013; and that Dean had elected not to have neck surgery. This evidence shows mainly a disagreement between the parties as to the value of the injuries, not a refusal to pay that is arbitrary, capricious or without probable cause, despite “satisfactory proofs of loss from the insured,” La. R.S. 22:1892A(1). Louisiana Bag Co. v. Audubon Indem. Co., 2008-0453 (La. 12/2/08), 999 So. 2d 1104; Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So. 3d 1104. Aside from the conclusory argument that “adequate and/or meaningful discovery has not taken place,” Dean suggests no particular document, deposition or other evidence that) 14 might create a genuine issue for trial. On de novo review, we find the district court did not err in granting the motion for partial summary judgment.

CONCLUSION

By his fourth assignment of error, Dean urges the district court erred in failing to award reasonable damages for his injuries; he suggests an award between $200,000 and $400,000, subject to credit for the $100,000 from the preceding policy. In light of the disposition of the other assignments of error, we pretermit any consideration of Dean’s damages.

On our own motion, we note that the judgment recites only that all claims of the plaintiffs, Silas Dean Jr. and Priscilla D. Dean, against the defendant, State Farm, are dismissed with prejudice, with each party bearing its own costs. A final judgment must be precise, definite and certain. Elston v. Montgomery, 46,262 (La. App. 2 Cir. 5/18/11), 70 So. 3d 824, writ denied, 2011-1292 (La. 9/23/11), 69 So. 3d 1165. In the interest of clarity, we amend the judgment to state the prevailing and losing party with specificity:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the defendant, State Farm Mutual Automobile Insurance Company, and against the plaintiffs, Silas Dean Jr. and Priscilla D. Dean, dismissing all claims of the plaintiffs with prejudice, with each side to bear its own costs.

Appellate costs are to be paid by the plaintiffs.

AMENDED AND, AS AMENDED, AFFIRMED.

      . In October 2013, State Farm had offered to settle the case for $10,000; Dean declined.

      . He specifically cites: (1) memo in support of motion for partial summary judgment regarding bad-faith adjusting of claims, October 28, 2013; (2) memo in support of motion for partial summary judgment regarding med-pay coverage, February 25, 2014; (3) opposition to plaintiffs' motion in limine, August 11, 2015; and (4) memo in opposition to plaintiffs’ motion for partial summary judgment regarding preexisting injuries and future medical expenses, also August 11, 2015.

      . He also refers to his own motion for new trial filed in the district court on October 20, 2015, and motion to supplement the record (with the Progressive declarations page), filed on November 4, 2016. As these came after the devolutive appeal was taken, June 6, 2016, the district court lacked jurisdiction to receive them, under La. C. C. P. art. 2088, and properly refused the filings. This court is limited to the record developed in the trial court and is prohibited from considering new evidence. Dupuy v. NMC Oper. Co., 2015-1754 (La. 3/15/16), 187 So.3d 436.

      . In fact, Dean’s original brief and reply brief to this court neither quote nor cite § 1295 (6)—a fairly stunning omission.

      . Finley held that an unconditional tender of UM benefits was an admission of liability. We note that State Farm's offer to settle with Dean for $10,000, extended in October 2013, was not unconditional, but was for the limited purpose of a “proceeding to determine costs pursuant to La. C. C. P. art. 970.”