author: THERIOT, J.

text:
    LOUISIANA BOARD OF ETHICS In the MATTER OF Donald VILLERE
    NO. 2015 CA 1939
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      Kathleen M. Allen, Tracy M. Barker, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Louisiana Board of Ethics

      Lawrence J. Centola, III, Jason Z. Landry, New Orleans, Louisiana, Counsel for Defendant/Appellee, Donald Villere
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

l2The plaintiff-appellant, the Louisiana Board of Ethics (“BOE”), appeals a final judgment rendered by the Louisiana Ethics Adjudicatory Board (“EAB”), granting a motion in limine and a motion for summary judgment in favor of the defendant-appellee, Donald Villere. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL BACKGROUND

This dispute arises from statements made by Mr. Villere during his campaign for the Office of Mayor of the City of Mandeville in March of 2010. Mr. Villere won the mayoral election of March 27, 2010 by a three-vote majority victory over his opponent, former Mandeville City Councilperson, Trilby Lenfant. On March 23 or 24, 2010, in the days immediately preceding the election, Mr. Villere distributed or caused to be distributed a written campaign flyer about Ms. Lenfant entitled “Ms. Lenfant claims to be a reformer. However, this Good Government Candidate has Numerous Serious Conflicts of Interests.”

The campaign flyer was mailed to approximately 4,000 residents in Mandeville and contained, inter alia, the following seven statements:

• On Ms. Lenfant’s 2009 personal finance disclosure report, she reports that her husband works for the same insurance company that provided the City’s insurance. And she VOTED THREE TIMES to give the contract to her husband’s company.
• Ms. Lenfant’s husband is an officer of The Preserve, LLC and in business with Rene Ferran. Ms. Lenfant has been the director, president of The Preserve Owners Association, Inc. Ms. Lenfant introduced and VOTED FOR legislation, Ordinance 05-05, authorizing the city to purchase property from none other than her husband’s partner in The Preserve, LLC, Rene Ferran.
• Again, as mayor pro tem, Ms. Len-fant VOTED FOR and signed legislation to rezone a lot, Ordinance 09-35, owned by her husband’s Ispartner, Rene Ferran, into two lots, increasing the amount of money they would make on the property.
• Ms. Lenfant’s house in The Preserve is appraised at nearly $560,000. However, her next-door neighbor’s house is for sale at $1.6 million. Lots in The Preserve sell for about $300,000, and the average home value ranges from $1.4 to $1.8 million.
• On Ms. Lenfant’s 2009 personal finance disclosure report, in addition to her personal property in The Preserve that gets the homestead exemption, Ms. Lenfant:
0 owns an additional 124 acres in The Sanctuary, but she’s only paying $2,307.02 in property taxes.
0 owns another 98 acres in The Sanctuary, but she’s only paying $157.41 in property taxes. In both cases, she is claiming a special exemption for a reduction in property taxes.
Is she really paying her fair share of property taxes or is she getting special treatment?
• After Hurricane Katrina, Ms. Len-fant took city-owned portable air conditioners and generators for her personal use. This city-owned property was not returned until instructed to do so by the legislative auditors — 4 YEARS LATER!
• It’s funny how Ms. Lenfant voted for a six-inch, fill-limit ordinance only AFTER she filled her personal property with six feet of fill.

Thereafter, on March 25, 2010, Mr. Vil-lere distributed or caused to be distributed a written email about Ms. Lenfant. The email contained the subject line “You Be the Judge,” and was entitled “The Truth Detector.” The email stated:

Dear Neighbor, My recent mailer detailing Ms. Lenfant’s highly questionable behaviors as your City Councilperson is based on extensively-researched and proven facts. Ms. Lenfant’s response offers an abundance of political cliches designed to deflect her responsibility for each of these truths. Her robo-call was full of political rhetoric and posturing. My opponent offers no reasonable response; she cries foul, but she gives no information for you the voter to consider. Every item in the mailer is public record and true.
14Once these facts were made known to me, I felt it my civic responsibility to make sure that you had all the facts before you voted. You be the judge on Saturday. You decide who will best serve you as Mayor of your city.
Sincerely, Donald Villere.

The next day, on March 26, 2010, the BOE received a confidential complaint alleging that Mr. Villere knowingly distributed campaign materials that contained false and/or misleading statements about Ms. Lenfant. The BOE investigated the allegedly false and/or misleading campaign statements over the course of approximately twelve months. During the investigative period, the BOE, through its agents and/or attorneys, deposed Mr. Villere; interviewed Mr. Villere’s paid political consultant, Debbie Smith; interviewed Ms. Lenfant and other interested persons, identified as Jay Lenfant, Randy Dixon, and David Glass; reviewed information contained on websites; and reviewed other relevant documents.

The results of the investigation were summarized in a confidential investigative summary, dated March 7, 2011, which was submitted to the BOE for its consideration and deliberation. On March 17, 2011, shortly before the tolling of the one-year prescriptive period detailed by La. R.S. 42:1141(C)(3)(c), by a majority vote of the members present at its meeting, the BOE voted to issue formal charges against Mr. Villere. The BOE alleged two counts of violations of La. R.S. 42:1130.4. The charges were filed with the Division of Administrative Law for the EAB and the case was assigned to EAB-Panel A.

| r,After filing formal charges against Mr. Villere, the BOE conducted pretrial discovery in preparation for the presentation of its case against him. In pertinent part, the BOE deposed Jerry Coogan, a Mandeville City Councilperson, on May 24, 2011, and accepted affidavits from Ms. Lenfant and John Lenfant, IV, dated February 5, 2014, which the BOE attached in support of its memorandum in opposition to Mr. Villere’s motion for summary judgment. In addition, the BOE deposed Mr. Villere for a second time on October 4,2013.

The record reflects that Mr. Villere was first deposed prior to the issuance of formal charges on March 3, 2011. Thereafter, on June 29, 2011, the BOE notified the Division of Administrative Law of its intent to depose Mr. Villere for a second time. The BOE stated that it sought to depose Mr. Villere in order to question him regarding newly discovered evidence appurtenant to his knowledge of the allegedly false campaign statements. Mr. Vil-lere filed a motion to quash the subpoena, arguing that he had previously been deposed. The EAB denied the motion to quash, and the denial of the motion came before this court through a supervisory writ application submitted by Mr. Villere.

In an unpublished opinion, this court denied the writ application and upheld the EAB’s denial of the motion to quash, reasoning that the BOE had proven good cause for its request for a second deposition. Villere v. Louisiana Bd. of Ethics, 11-1309 (La.App. 1 Cir. 3/30/12), 2012 WL 1079316, *4 (unpublished), writ denied, 12-0963 (La. 6/22/12), 91 So.3d 970. There, this court explained that the BOE sought to depose Mr. Villere based upon its acquisition of new information substantially related to the ultimate issue underlying the charges and found that a second deposition was | finecessary as it would lead to relevant discoverable information and was not unreasonably vexatious. Villere, 2012 WL 1079316 at *3.

In addition, during the pendency of the ethics proceedings against Mr. Villere, this court decided Ellis v. Louisiana Bd. of Ethics, 14-0112 (La.App. 1 Cir. 12/30/14), 168 So.3d 714, writ denied, 15-0208 (La. 4/17/15), 168 So.3d 400. Shortly thereafter, on January 27, 2015, Mr. Villere filed a motion in limine, seeking to preclude the BOE from using evidence obtained through discovery conducted after the issuance of formal charges, and a motion for summary judgment, seeking the dismissal of all charges against him. The BOE opposed the two motions.

On July 24, 2015, the EAB heard oral arguments on the motions, admitted documentary evidence, and took the matter under advisement. On September 15, 2015, the EAB issued a final judgment granting the motion in limine and the motion for summary judgment. The EAB ordered the exclusion of all evidence discovered by the BOE after March 17, 2011, and ordered the dismissal of all charges against Mr. Villere. The BOE now appeals,

ASSIGNMENTS OF ERROR

The BOE raises the following assignments of error:

1. The EAB erred as a matter of law in concluding that the BOE did not fully complete its investigation, since discovery was conducted following the filing of formal charges.
2. The EAB erred as a matter of law in granting the motion in limine concluding that the BOE is precluded from using any evidence discovered after the filing of formal charges.
3. The EAB erred as a matter of law in granting the motion in limine interpreting Ellis v. Louisiana Bd. of Ethics to conclude, as a matter of law, that the BOE is precluded from not only using affidavits 17obtained from its own witnesses in an opposition to a motion for summary disposition, but from conducting any discovery following the filing of formal charges.
4. The EAB erred as a matter of law in concluding that there is no genuine issue as to material fact that Mr. Villere acted with reckless disregard for the truth or that he possessed a high degree of awareness of the probable falsity of the campaign statements when he published and distributed a campaign flyer regarding Ms. Lenfant.
5. The EAB erred as a matter of law in concluding that the BOE did not prove that a genuine issue of material fact existed as to whether Mr. Villere published his campaign flyer regarding Ms. Lenfant with actual malice — reckless disregard for the truth and a high degree of awareness of the probable falsity of the statements — or whether he entertained serious doubts as to the truth of his publication.

STANDARD OF REVIEW

Louisiana Revised Statute 42:1143 provides that all proceedings conducted by the EAB shall be subject to and in accordance with the Louisiana Administrative Procedure Act (“APA”), La. R.S. 49:950, et seq. The APA specifies that judicial review shall be confined to the record as developed in the administrative proceedings. La. R.S. 49:964(F). We may reverse or modify the decision of the EAB only if the substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: 1) in violation of constitutional or statutory provisions; 2) in excess of the statutory authority of the agency; 3) made upon unlawful procedure; 4) affected by other error of law; 5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or 6) not supported and sustainable by a preponderance of the evidence. La. R.S. 49:964(G). However, we owe no deference to the legal findings of the EAB; rather, we review questions of law de novo and render a judgment based on the record. Louisiana Bd. of Ethics in re Great Southern Dredging, Inc., 15-0870 (La. App. 1 Cir. 5/27/16), 195 So.3d 631, 634.

DISCUSSION

The Legislature enacted the Code of Governmental Ethics (“Code of Ethics”) in order to establish ethical standards for the conduct of elected officials and state employees to protect against conflicts of interest between their private interests and the duties of their positions. Great Southern Dredging, Inc., 195 So.3d at 634 (citing La. R.S. 42:1101(B)). The BOE is statutorily authorized to “administer and enforce the provisions of [the Code of Ethics] and the rules, regulations, and orders issued [t]hereunder with respect to public employees and elected officials....” La. R.S. 42:1132(C). The BOE is authorized to “conduct private investigations in carrying out [its] responsibilities and powers.... ” La. R.S. 42:1134(C). Furthermore, the BOE is authorized to pursue formal charges through either public or private hearings against an individual or entity for alleged violations of the Code of Ethics. Ellis, 168 So.3d at 721 (citing La. R.S. 42:1132 and 1134).

The applicable version of La. R.S. 42:1141, prior to amendment and reenactment by La. Acts 2012, No. 608 § 1 (eff. June 7, 2012), is entitled “Procedure; adjudicatory board,” and details the procedures that govern the BOE’s investigation and pursuit of formal charges against persons or entities accused of violating the Code of Ethics. In pertinent part, the applicable version of La. R.S. 42:1141(C) states:

(1) Upon receiving a sworn complaint or voting to consider a matter as provided in Subsection B, a private investigation shall be conducted to elicit evidence upon which the panel as provided in this Section shall determine whether to recommend to the [BOE] that a public hearing be conducted or that a violation has not occurred. The accused and the complainant shall be given written notification of the commencement of the investigation not less than ten days prior to the date set for the | ¡¡commencement of the investigation. All determinations in this Subsection shall be by a majority vote of the panel. However, in cases where the panel consists of three members, all determinations of such a panel shall require a unanimous vote of the members of the panel.
(2) After the investigation has been completed, the [BOE] shall determine whether a public hearing should be conducted to receive evidence and to determine whether any violation of any provision of law within its jurisdiction has occurred. If a violation has not occurred, the defendant and the complainant shall be notified within ten days of the ruling.
(3)(a) If the [BOE] determines following an investigation that a public hearing should be conducted, the [BOE] shall issue charges. A public hearing shall be conducted to receive evidence relative to the facts alleged in the charges and to determine whether any violation of any provision of law within the jurisdiction of the [BOE] has occurred. The public hearing on such charges shall be conducted by the [EAB] in accordance with the [APA] and this Part.
(c) If the [BOE] does not issue charges within one year from the date upon which a sworn complaint is received or, if no sworn complaint was received, within one year from the date the [BOE] voted to consider the matter, the matter shall be dismissed.

In Ellis, 168 So.3d at 723-24, this court analyzed the statutory language of La. R.S. 42:1141(0(2) and held that the BOE must complete its investigation before filing formal charges against an individual accused of violating the Code of Ethics. There, it was explained that in order for the investigation to be complete, the BOE must possess evidentiary support to establish a prima facie case before filing formal charges. Ellis, 168 So.3d at 726. The court held that if the BOE files formal charges against an individual without first obtaining evidentiary support to establish a “simple prima facie case,” then the investigation is incomplete and the charges are subject to dismissal on an exception of prematurity or motion for summary | ¡¡¡judgment or similar pleading. Ellis, 168 So.3d at 726. Further, under the facts of that case, it was determined that the BOE had improperly filed charges against the respondent before completing its investigation and thus dismissed the formal charges as premature. Id.

Motion in Limine

In the instant case, Mr. Villere filed the underlying motion in limine subsequent to and based upon the decision in Ellis. Mr. Villere argued that in accordance with the decision in that case, the BOE was “precluded from using evidence it acquired after March 17, 2011 ... to prove that [Mr.] Villere violated La. R.S. 42:1130.4.” Following arguments on the motion, the EAB granted same, ordering the exclusion of all evidence obtained by the BOE after the filing of formal charges against Mr. Vil-lere, including, but not limited to, the deposition of Mr. Coogan, the affidavits submitted by Ms. Lenfant and Mr. Lenfant, and the second deposition of Mr. Villere. The EAB reasoned that because the BOE was required to complete its investigation prior to filing formal charges, it was precluded from using evidence obtained after the filing of formal charges in the prosecution of its case against Mr. Villere. The EAB further explained that because the BOE maintained its investigation was complete prior to filing formal charges against Mr. Villere, any evidence obtained thereafter would only be cumulative.

We find that the EAB erred, as a matter of law, in granting the motion in limine in its entirety, based upon the EAB’s erroneous interpretation of the controlling jurisprudence. The motion in li-mine was properly granted as it pertained to the motion for summary judgment on the prima facie case. However, we find the EAB erred in granting the motion in li-mine as it pertained to the motion for summary judgment on the merits.

|nIn accordance with the decision in Ellis, the BOE was required to complete its investigation concerning the allegedly false and/or misleading campaign statements before filing formal charges against Mr. Villere. However, the EAB failed to recognize that there is an important distinction between the process of investigation and the process of discovery. The prima facie case requirement does not, and cannot, obviate the BOE’s distinct right to conduct pretrial discovery in order to develop the evidence in preparation for the presentation of its case at trial.

The BOE is entitled to conduct pretrial discovery after the filing of formal charges in accordance with the provisions of the Louisiana Code of Civil Procedure in order to prepare for trial. See Ellis, 168 So.3d at 725 (“As for the issue of discovery, the [BOE] is correct that the Louisiana Code of Civil Procedure gives the [BOE] the right to conduct discovery in order to prepare for trial.”). The BOE’s right to conduct pretrial discovery after the filing of formal charges is also explicitly recognized by the Rules for the Board of Ethics, which provide:

A. Any public servant or other person who has been notified that he is to be the subject of a public hearing pursuant to the provisions of R.S. 42:1141(E), and the trial attorney and general counsel for the [BOE] shall be entitled to conduct discovery regarding any matter, not privileged, which is relevant to the pending public hearing. It is not grounds for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
B. Upon the filing of charges for violations of any law under the jurisdiction of the [BOE], the respondent and the [BOE], through its trial attorney(s) or general counsel, shall be granted the right of discovery....

| iaLa. Admin. Code tit. 52, pt. 1, § 1101 (emphasis added). See also Villere, 2012 WL 1079316 at *3 (noting, although the issue was not raised in the writ application, that the BOE had the authority to take the deposition of Mr. Villere at that stage of the proceedings, i.e., subsequent to the filing of formal charges and prior to the trial on the matter) (citing La. R.S. 42:1141(E)(2)(a) (prior to repeal by La. Acts 2012, No. 608, § 2); La. Admin Code tit. 52, pt. 1, § 1101(B) and (C) (prior to amendment by the Department of Civil Service, Board of Ethics, Louisiana Register 39:1418 (June 2013)).

Therefore, the BOE was entitled to conduct pretrial discovery after the filing of formal charges in preparation for the presentation of its case against Mr. Villere and was entitled to use evidence obtained through discovery in the prosecution of its case on the merits. Thus, regarding the motion for summary judgment on the merits, the EAB erred in granting the motion in limine ordering the unrestricted exclusion of all evidence obtained by the BOE through discovery conducted after the filing of formal charges against Mr. Villere on March 17, 2011, including, for example, the second deposition of Mr. Villere, which this court found to be requested for good cause in Villere, 2012 WL 1079316 at *4.

. Motion for Summary Judgment on the Prima Facie Case

Notwithstanding the fact that the EAB erred in granting the motion in limine in its entirety, we caution that the relevance of evidence obtained by the BOE after the filing of formal charges is still limited. Evidence obtained by the BOE through pretrial discovery, after the filing of formal charges, should not be considered in determining whether the BOE completed its investigation or possessed sufficient factual support to establish a prima facie case. Thus, it is appropriate for the EAB to grant the motion in limine |1sto exclude evidence obtained after the filing of formal charges at this juncture of the proceeding. Accordingly, in the context of the instant case, we turn to consider the related issue of whether the BOE properly completed its investigation 1 before filing formal charges against Mr. Villere, which issue was raised as one of the two bases in support of the motion for summary judgment.

The Rules for the Board of Ethics recognize the availability of the motion for summary judgment procedure in the context of ethics proceedings. See La. Admin Code tit. 52, pt. 1, § 1102(C) (“A motion for summary judgment may be filed by either the respondent or the trial attorney(s).”). Where the administrative tribunal dismisses charges through the granting of summary judgment, the appellate court reviews the motion for summary judgment in accordance with the rules governing summary judgment generally. See In re Fontenot, 14-0337 (La.App. 1 Cir. 12/30/14), 2014 WL 7455199, *1-2 (unpublished) (analyzing a motion for summary judgment in an ethics prqceeding under La. C.C.P. art. 966). See also Bless Home Health Agency v. Louisiana Dept. of Health and Hospitals, 99-0936 (La.App. 1 Cir. 6/22/00), 770 So.2d 780, 783 (recognizing in the broader context of the APA that appellate courts review the grant of summary judgment in the same manner as all motions for summary judgment).

| uLouisiana Code of Civil Procedure art. 966(B)(2) states that a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is' no genuine issue as to material fact, and that the movant is entitled to judgment as a matter of law. The summary judgment procedure is favored in law and is designed to secure the just, speedy, and inexpensive determination, of every action except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant .will not bear the burden of proof on the matter before the court on the motion for summary judgment, the movant need not negate all essential elements of the adverse party’s claim, action, or defense. Rather, the mov-ant must point out to the court that there is an absence of factual support for one or more essential elements to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish-that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2); Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76.

In order to determine whether the BOE properly completed its investigation before filing formal charges against Mr. Villere, it is first necessary for us to define the requisite prima facie case. Black’s Law Dictionary (10th ed. 2014) defines “prima facie” as that which is 11fi“[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true - on first examination, even though it make [sic] later be proved to be untrue....” Black’s Law Dictionary (10th ed. 2014) defines “prima facie case” as “[t]he establishment of a legally required rebuttable presumption[,] [and] ... [a] party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.”

In accordance with the jurisprudence and the plain language meaning of prima facie case, we find that the proper inquiry in these matters is whether the evidence in existence at the time of the filing of formal charges, viewed in -the aggregate, establishes that the BOE fully investigated the allegations and uncovered a factual basis sufficient to substantiate a probable violation of the Code of Ethics, notwithstanding that the presumption may later be proven to be untrue. If, on the other hand, the evidence establishes that the BOE did not uncover factual support to substantiate the allegations, but rather chose to file formal charges simply because prescription was accruing, then the charges are premature and subject to dismissal. See and compare Ellis, 168 So.3d at 724-26.

In this case, in support of the motion for summary judgment on the prima facie case requirement, Mr. Villere argued that the 11fiBOE did not have any evidence at the time of the filing of the formal charges against him tending to establish that he knew any of the campaign statements were false at the time of distribution. Mr. Villere pointed out that he had testified he did not believe any of the campaign statements were false at the time the statements were made. Mr. Vil-lere also argued the fact the BOE had requested a second deposition after filing formal charges proved that the BOE did not have any evidence at the time of the filing of the formal charges tending to establish that he knowingly distributed false information.

In opposition to the motion for summary judgment, the BOE argued, in pertinent part, that it had properly completed its investigation and uncovered factual support sufficient to establish a prima facie case before filing formal charges against Mr. Villere. The BOE attached various documentary evidence in support of its opposition to the motion for summary judgment relative to the issue of the prima facie case requirement, including, amongst other things, a copy of the confidential investigative summary prepared for its consideration.

The investigative summary is particularly germane in determining whether the BOE properly completed its investigation in this matter, since Mr. Villere judicially acknowledged that the BOE relied upon the investigative summary in voting to file formal charges against him. In addition, the investigative summary is significant because it analyzes the campaign statements contained within the campaign flyer and the campaign email; details the investigative efforts undertaken by the BOE, through its agents and/or attorneys, following the referral of the confidential complaint; and sets forth the factual basis underlying the BOE’s decision to file formal charges against Mr. Villere.

First, with respect to count one, the investigative summary analyzes the campaign statements contained within the campaign flyer. For example, the first bullet point of the campaign flyer, which was also submitted into evidence on the motion for summary judgment, states that Ms. Lenfant reported in her personal financial disclosure report that her husband worked for the same insurance company that provided the City of Mande-ville’s insurance and states that she voted three times to give the insurance contract |17to her husband’s company. The investigative summary concludes that this statement contains “demonstrably inaccurate” information. The investigative summary cites several sources of information in support of this finding, including an interview conducted with Mr. Lenfant; council meeting minutes from January of 2003, January of 2004, and January of 2005; online information and reporting concerning corporate mergers; intergovernmental memorandum and insurance quotes; and handwritten notes from Mr. Villere’s paid political consultant, Ms. Smith.

While the investigative summary does acknowledge that Mr. Villere testified he believed the campaign statements to be true at the time of publication, the investigative summary also points to the existence of contrary circumstantial evidence tending to establish that Mr. Villere knowingly distributed or caused to be distributed, with the intent of misleading the voters, the allegedly false information about Ms. Lenfant. Specifically, with respect to the statement concerning Ms. Lenfant’s voting record, the investigative summary states:

The city’s insurance in January 2003 and January 2004 was with a company, St. Paul, for which Mr. Lenfant did' not work. In April 2004, St. Paul merged with Travelers, Mr. Lenfant’s employer. In January 2005 the council voted to move the property and casualty insurance policy away from St. Paul and to Risk Management, Inc., and Hanover Insurance. Thus, the statement is false when it says that Ms. Lenfant voted three times to award the insurance contract to “her husband’s company”, because in each of the three votes the company receiving the contract was not Mr. Lenfant’s employer. The handwritten notes provided by Ms. Smith demonstrate that Mr. Villere’s campaign was diligently researching these facts, since they changed the number of votes from “four” to “three” in the final version.

Second, with respect to count two, the investigative summary analyzes the campaign statements within the campaign email. In the email, 11sMr. Villere purported to confirm the accuracy of the prior campaign statements and stated that the campaign statements were all true and a matter of public record. The investigative summary concludes that through his publication of the campaign email, Mr. Villere knowingly distributed false information, with the intent to mislead voters, about his opponent, Ms. Lenfant. For example, the investigative summaty notes that despite Mr. Villere’s representation that the prior campaign statements were all a matter of public record, he had been unable to provide substantiating documentation to support some of the campaign statements in response to a subpoena duces tecum and had instead testified that he relied upon his personal knowledge and observations in making such statements.

In sum, the evidence in the record establishes that, prior to filing formal charges against Mr. Villere, the BOE adequately investigated the allegations and uncovered factual support sufficient to establish a prima facie case that Mr. Villere violated the Code of Ethics through his initial publication of the campaign flyer and through his subsequent confirmation of the veracity of the prior statements and representation that the statements were a matter of public record. The fact that the BOE exercised its right to conduct pretrial discovery in preparation for the presentation of its case after the filing of formal charges does not alone prove that the BOE filed the charges to defeat prescription prior to completing its investigation.

Motion for Summary Judgment on the Merits

The second issue set forth in the motion for summary judgment concerns whether there were genuine issues of material fact regarding the alleged violations of La. R.S. 42:1130.4. Louisiana Revised Statute 42:1130.4 provides: “No candidate in an election shall, with the intent to mislead the voters, distribute or cause to be distributed any oral, visual, or 11swritten material containing any statement which he knows makes a false statement about another candidate in the election.”

In order to prove that a violation of La. R.S. 42:1130.4 has occurred, the BOE must establish: 1) that the alleged violator was a candidate in an election; 2) that the candidate distributed or caused to be disturbed any oral, visual, or written material; 3) that the distributed material contained any false statement about another candidate; 4) that the candidate knew the statement was false; and 5) that the candidate intended to mislead the voters through the use of the statement.

In this case, it is undisputed that Mr. Villere was a candidate in the mayoral election of March 27, 2010 and that he distributed or caused to be distributed the campaign statements contained within the written campaign flyer and follow-up email. Thus, in order to prove that Mr. Villere violated La. R.S. 42:1130.4, the BOE was required to prove that the written campaign materials contained false information about Ms. Lenfant, that Mr. Vil-lere knew that the campaign statements were false, and that Mr. Villere intended to mislead the voters through his publication of the campaign statements.

In support of the motion for summary judgment relative to the alleged violations of La. R.S. 42:1130.4, Mr. Villere argued that the BOE could not prove that any of the written campaign materials contained false statements about Ms. Lenfant. In the alternative, Mr. Villere argued that the BOE could not prove that he knew the statements were false or intended to mislead the voters through his publication of the campaign statements. In support of his motion for summary judgment on this issue, Mr. Villere submitted and cited his March 3, 2011 deposition, wherein he testified that he believed all of the campaign statements were true.

|2nIn opposition to the motion for summary judgment, the BOE argued, in pertinent part, that there were genuine issues of material fact remaining as to the question of whether Mr. Villere knowingly distributed or caused to be distributed, with the intent to mislead voters, false campaign statements about his opponent, Ms. Lenfant. In support of its opposition on this point, the BOE attached various documentary evidence, including transcripts of the first and second depositions of Mr. Villere, Ms. Lenfant’s affidavit, and a transcript of Mr. Coogan’s deposition.

Following the arguments of counsel and submission of evidence on the motion, the EAB found there were no genuine issues of material fact as to the alleged violations of La. R.S. 42:1130.4. The EAB reasoned that Mr. Villere was entitled to judgment as a matter of law because the BOE “[l]ack[ed] any evidence tending to prove [Mr. Villere’s] subjective state of mind,” and would not be able to prove that Mr. Villere “published the campaign statements with reckless disregard for the truth or with intent to mislead voters.” The EAB stressed that Mr. Villere testified that he believed the campaign statements were true at the time of publication, and the EAB noted that the sole evidence pertaining to Mr. Villere’s state of mind was his own sworn testimony.

Critically though, as explained above, in rendering judgment in favor of Mr. Villere on the motion for summary judgment on the merits, the EAB excluded consideration of all evidence obtained by the BOE through discovery conducted after the filing of formal charges. We find the EAB’s erroneous exclusion of this evidence to be significant, since the BOE was entitled to use evidence obtained through discovery in the prosecution of its case on the merits against Mr. Villere; moreover, the evidence helps to | ¾1 establish that there are genuine issues of material fact which preclude the granting of summary judgment.

First, with respect to count one, the evidence established that there are genuine issues of material fact regarding the falsity of several of the subject campaign statements within the campaign flyer. For example, in the written campaign flyer, Mr. Villere stated that Ms. Lenfant took city-owned portable air conditioners and generators for her personal use. In her affidavit, Ms. Lenfant acknowledged that the City of Mandeville had provided her with a generator to conduct official business after Hurricane Katrina. However, Ms. Lenfant also expressly stated that “[she] was never provided an air conditioning unit by the City of Mandeville.” Such conflicting testimony raises a question of fact that is to be resolved by the trier of fact.

Likewise, in his campaign flyer, Mr. Vil-lere stated that Ms. Lenfant’s home was appraised at nearly $560,000, whereas her “next-door neighbor’s house” was listed for sale at $1.6 million. In her affidavit, Ms. Lenfant stated that her home was located at 16 Preserve Lane, in The Preserve neighborhood, while the “next-door neighbor’s house” referenced in the campaign flyer was located at 52 Preserve Lane, in The Sanctuary neighborhood. Ms. Lenfant stated that the two neighborhoods were “separate and distinct” and were “physically separated ... by fencing, signage, landscaping, and an electronic entrance gate.” Ms. Lenfant stated that “[a]t least eight (8) unimproved lots and the aforementioned fencing, signage, landscaping, and an electronic entrance gate are between ... 16 Preserve Lane and 52 Preserve Lane.” It is for the trier of fact to determine what constitutes a “next-door neighbor’s house.”

Second, with respect to count two, the evidence establishes that there are genuine issues of material fact regarding the falsity of the campaign ^statements within the campaign email. In the email, Mr. Villere purported to confirm that the prior campaign statements were all true, extensively researched, and a matter of public record. Yet, the evidence submitted for purposes of the motion for summary judgment indicates that not all of the prior campaign statements were a matter of public record. For example, in the campaign flyer, Mr. Villere stated that Ms. Lenfant voted for a six-inch fill-limit ordinance after using six feet of fill on her personal property. The factual accuracy of this statement is disputed, based in part upon the limited application of the subject ordinance to certain structures. Still, it is dispositive for purposes of the motion for summary judgment relative to count two that, contrary to his representation in the email, Mr. Villere testified he based the statement concerning the amount of fill placed upon Ms. Lenfant’s property upon his own observation and “belief.”

Finally, as to both count one and count two, there are remaining genuine issues of material fact regarding the issues of knowledge and intent. Here, we note that, as a general rule, summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. See Greater Lafourche Port Comm’n v. James Const. Group., L.L.C., 11-1548 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88.

In the context of the instant ease, the EAB erred in finding that the sole evidence pertaining to Mr. Villere’s state of mind was his own sworn testimony, insofar as the issues of knowledge and intent may also be measured by objective indices and circumstantial evidence. Indeed, “[w]hen intent is disputed in a civil or criminal action, proof of intent or state of mind | ^is rarely established as a fact by direct evidence, but may be inferred from the facts surrounding the individual’s actions or other circumstances.” S.G. v. City of Monroe, 37,103 (La.App. 2 Cir. 4/11/03), 843 So.2d 657, 662 (emphasis added).

In conclusion, the record contains questions of fact as to whether the campaign statements contained false information about Ms. Lenfant, whether Mr. Villere knew the campaign statements were false, and whether Mr. Villere intended to mislead the voters through his publication of the campaign statements. Thus, the EAB erred in granting the motion for summary judgment based upon its determination that there were no genuine issues of material fact as to the alleged violations of La. R.S. 42:1130.4.

DECREE

For the foregoing reasons, we affirm the granting of the motion in limine as it pertains to the motion for summary judgment on the prima facie case and reverse the granting of the motion in limine as it pertains to the motion for summary judgment on the merits. The granting of the motion for summary judgment is reversed. We hereby remand this case to the Louisiana Ethics Adjudicatory Board for further proceedings in accordance with the pronouncements of this opinion. All costs of this appeal are assessed to Donald Villere.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

      . The confidential investigative summary submitted to the BOE for its consideration indicates that, amongst other things, during the investigative period the BOE reviewed documentation provided by counsel for Mr. Vil-lere, documentation from the Secretary of State of Louisiana, handwritten notes prepared by Ms. Smith during the campaign, and photographs depicting relevant properties at issue in the matter.

      . In count one, the BOE charged that Mr. Villere violated La. R.S. 42:1130.4 when he distributed or caused to be distributed, with the intent to mislead voters, the written campaign flyer which he knew contained false statements about his opponent, Ms. Lenfant. In count two, the BOE charged that Mr. Vil-lere violated La. R.S. 42:1130.4 when he distributed or caused to be distributed, with the intent to mislead voters, the written email which he knew contained false information about his opponent, Ms. Lenfant.

      . Mr. Villere styled his filing as a "Motion for Summary Disposition.” We interpret such motion as a motion for summary judgment. See Ellis, 168 So.3d at 718 ("[The respondent] filed a motion to stay discovery, as well as a motion for summary disposition (i.e„ summary judgment).... ”).

      . Black’s Law Dictionary (10th ed. 2014) defines discovery as "[t]he act or process of finding or learning something that was previously unknown[,]” and “[t]he pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.” In contrast, Black’s Law Dictionary (10th ed. 2014) defines investigation as "[t]he activity of trying to find out the truth about something, such as a crime, accident, or historical issue....”

      . Mr. Villere raised two grounds in support of his motion for summary judgment; first, he argued that the BOE did not complete its investigation before filing formal charges, and, second, he argued that there were no genuine issues of material fact as to the alleged violations of La. R.S. 42:1130.4. In ruling upon the motion for summary judgment, the EAB primarily focused its analysis on the issue of whether the BOE could satisfy its evidentiary burden of proof at trial. However, in the interest of justice and in light of the issues fully briefed on appeal, we find it appropriate to consider both grounds raised by Mr. Villere in support of his motion for summary judgment. See La. C.C.P. art. 966(F)(1) (prior to amendment by La. Acts 2015, No. 422 § 1 (eff. January 1, 2016)).

      . Louisiana Code of Civil Procedure art. 966 was amended and reenacted by La. Acts 2015, No. 422 § 1 (eff. January 1, 2016). The amended version of La. C.C.P. art. 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the act; therefore, we refer to the former version of the article in this opinion.

      7. Direct evidence of intent comes from the actor himself, who can admit or deny the alleged state of mind. City of Monroe, 843 So.2d at 662.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    STATE of Louisiana v. Ricky DUNN
    NO. 2015 KA 1972
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      Warren Montgomery, District Attorney, Jay Adair, Assistant District Attorney, Franklinton, Louisiana and Matthew Ca-ptan, Assistant District Attorney, Coving-ton, Louisiana, Attorneys for Appellee, State of Louisiana
    Gwendolyn K, Brown, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Ricky Dunn
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2The defendant, Ricky Dunn, appeals his conviction for armed robbery with a firearm and his sentence as a second-felony habitual offender of sixty years, plus an additional five year enhancement, all without the benefit of probation, parole, or suspension of sentence. We. affirm,

FACTS

On June 24, 2013, Kenneth Pigott Jr. was walking in a housing complex in Boga-lusa, talking on his cell phone, when a truck being driven around the complex attracted his attention. Shortly thereafter, he was approached by two armed men, one of whom, later identified as the defendant, pointed a gun at Pigott’s face and demanded that Pigott “give it up.” The other man, later identified as Nicholas Toliver, stood behind Pigott, pointed a gun at the back of his head, and said, “[W]e ain’t playing with you. This is a robbery. Give it up. Empty your pockets.” Pigott removed his pants and the robbers took his cell phone and about $60 in cash.

Shortly thereafter, Pigott spoke to a 911 operator and described the robbers and the truck. Law enforcement officers were dispatched and stopped the suspect vehicle, which was occupied by the driver, Key-bian Lewis, Nicholas Toliver, and the defendant. The three men were searched and taken into custody. The path traveled by the truck prior to the stop was searched and two loaded weapons, a book sack containing a third gun, and Pigott’s cell phone were found. Pigott later identified the defendant and Toliver as the robbers from two photographic lineups.

^DISCUSSION

On appeal, the defendant argues that the evidence'was insufficient to support his conviction, that his habitual offender adjudication is invalid, and that his sentence is excessive.

Sufficiency of Evidence

The defendant was convicted of armed robbery with a firearm. He does not challenge the fact that an armed robbery was committed, but argues that he did not commit it. He contends that the evidence was insufficient to support the conviction.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64A. When the dangerous weapon used to commit the robbery is a firearm, Louisiana Revised Statute 14:64.3 mandates that the offender be imprisoned at hard labor for an additional five year period.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends |4to prove ... must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; Oliphant, 133 So.3d at 1258. The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295, 2016 WL 314814 (La. 1/27/16), — So.3d, -, -. Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 14-1619 (La.App. 1 Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748. The weight to be given to evidence is not subject to appellate review; therefore, evidence will not be reweighed by an appellate court to overturn a fact finder’s determination of guilt. State v. Cobb, 13-1593 (La.App. 1 Cir. 3/27/14), 144 So.3d 17, 24.

When the defendant’s identity as the perpetrator of a crime is the key issue, the state is required to negate any reasonable probability of misidentifieation. State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 658; State v. Carter, 14-0742 (La.App. 1 Cir. 3/25/15), 167 So.3d 970, 976. Positive identification by only one witness is sufficient to support a conviction. Neal, 796 So.2d at 658; Carter, 167 So.3d at 976.

In the 911 call, Pigott described both robbers as being black, one being bald, short, and “kind of chubby,” and the other being tall, with “light” or “bright” skin, and “a little facial hair.” The bald man was wearing a gray sweater-type top, and the other man was wearing a camouflage jacket. Both men had guns, and they took his phone, money, cigarettes, and house keys.

|^Lieutenant Troy Tervalon of the Boga-lusa Police Department testified that he was dispatched to the robbery scene and was advised that the suspects were two black males in a black and gold truck, possibly a 2000 model Ford. Near the robbery scene, Lieutenant Tervalon spotted a dark maroon and gold Ford truck traveling very slowly, which appeared to be occupied by two black males. As the marked police unit and the truck passed each other, the driver of the truck made eye contact with Lieutenant Tervalon and displayed a startled reaction. The truck then sped away at a high rate of speed.

Lieutenant Tervalon turned around and pursued the truck. Upon catching up to the truck, he engaged his emergency lights, and the truck pulled over and stopped. At that time, a third person was also found in the truck. The occupants, Lewis, Toliver, and the defendant, were searched and placed in back of police units.

After seeing the truck, it was out of Lieutenant Tervalon’s sight for only a short distance. After the stop, Lieutenant Tervalon retraced the path that he had traveled, particularly the area where he lost sight of the truck, and found two loaded guns lying in the roadway, a book sack containing another gun and plastic zip ties, and two shotgun shells. In the same area, he found Pigott’s cell phone.

Within a few hours of the crime, Pigott gave a videotaped statement and identified the defendant and Toliver from photographic lineups. According to Lieutenant Wendell O’Berry of the Bogalusa Police Department, Pigott “almost immediately” picked out the defendant from the lineup. Pigott also identified the truck driven by Lewis as the same truck he saw shortly before and after the robbery. The truck was searched and $62 in cash and a camouflage hat matching the description of the hat worn by Toliver were found.

RAt trial, Pigott described how the two robbers approached him and, with guns held to his face and head, demanded that he turn over any property. He identified the defendant as the bald man who pointed a gun at his face, and Toliver as the lighter-skinned robber who held a gun to the back of his head. He testified that the defendant had a solid black .40 caliber handgun, and Pigott identified one of the recovered weapons, which matched that description, as the gun used by the defendant. Pigott was one hundred percent sure that the defendant and Toliver were the two men who robbed him. He attributed his description of the truck as being black and gold, , rather than maroon and gold, to the fact that it was dark at the time of the robbery. While he was not sure the truck was black, he was sure it had gold at the bottom and was a Ford F-150.

Pigott signed an affidavit retracting his initial identification of the robbers, but testified that Toliver’s girlfriend paid him $500 to sign it. In the affidavit, Pigott said he was unsure about his identification of the defendant and Toliver as the robbers, but that the detectives were “sure that these guys were the ones who robbed me.” According to the affidavit, the actual robbers were still “at large,” and Pigott had seen them riding around Bogalusa in a black F-150. Pigott’s affidavit concluded that the defendant, Toliver, and Lewis “are not the men who robbed me, I’m sure of it.” Pigott testified, however, that the affidavit was not true, and that he had planned to tear it up and “get a free $500.”

Testimony was presented relative to DNA profiles obtained from the three guns found by Lieutenant Tervalon. One gun, a .40 caliber handgun, had insufficient DNA to produce a valid profile. The second gun, a sawed-off shotgun, had a DNA mixture from at least three contributors, none of whom were the defendant, Toliver, or Lewis. The DNA profile from the third gun, a nine 17millimeter handgun, was consistent with being a mixture from at least two individuals, neither of whom were the defendant, Toliver, or Lewis.

The defendant argues that the only evidence connecting him to the crime was the testimony of the victim, who he maintains is “totally and completely unreliable.” According to the defendant, the victim “change[d] his story multiple times [and] even signed an affidavit declaring [the defendant] was absolutely not the man who robbed him.” The defendant also points to discrepancies between Pigott’s initial description of the robbers in the 911 call and the defendant’s actual appearance, and suggests that the discovery of the camouflage hat found in the truck could simply be “a coincidence since camo boonie hats are quite popular in Louisiana, or it could have simply been that Mr. Pigott was trying to set up [the defendant].” The defendant further contends that the DNA analysis presented by the state “conclusively proved” that neither his nor Toliver’s DNA was on the guns recovered by Lieutenant Tervalon.

The fact finder is free to accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Carter, 167 So.3d at 978; State v. Underdonk, 11-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, 376, writ denied, 12-0910 (La. 10/8/12), 98 So.3d 848. An appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Cobb, 13-1593 (La. App. 1 Cir. 3/27/14), 144 So.3d 17, 24; State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. In fact, an appellate court is constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

|RWe cannot say the determination of the jury in this case was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662; State v. Charles, 14-1411 (La.App. 1 Cir. 4/24/15), 171 So.3d 286, 289. Pigott identified the defendant as the bald man who pointed a gun at his race. While Pigott’s testimony was contradicted by his affidavit, he provided a plausible explanation for the affidavit. The testimony of the victim alone is sufficient to prove the elements of the offense. See State v. Orgeron, 512 So.2d 467, 469 (La. App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). A reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the fact finder. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). The fact that the record contains evidence in conflict with the testimony accepted by a fact finder does not render the evidence accepted by the fact finder insufficient. See State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985).

Viewing the evidence in this case in the light most favorable to the state, the evidence negates any reasonable probability of misidentiflcation and supports the finding of guilt. Any rational fact finder could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery with a firearm. This assignment of error is without merit.

Habitual Offender Adjudication

The defendant next argues that the evidence presented at the habitual offender adjudication was insufficient to establish that he was a second-felony habitual offender. Specifically, he argues that the state failed to carry its burden of [ 9proving his identity as the same person who committed the predicate offense and failed to negate the cleansing period. He argues that the state’s witness was not an expert in fingerprint analysis and lacked personal knowledge of the exact dates of time served by the defendant.

In a habitual offender proceeding, the state has the burden of proving that the defendant was convicted of a prior felony and that the ten-year cleansing period has not elapsed between the defendant’s release from custody on the prior offense and the commission of the new offense. See La. R.S. 15:529.1A-D; State v. Payton, 00-2899 (La. 3/15/02), 810 So.2d 1127, 1130; State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La. 1982); State v. Thomas, 05-2210 (La.App. 1 Cir. 6/9/06), 938 So.2d 168, 176, writ denied, 06-2403 (La. 4/27/07), 955 So.2d 683. Any competent evidence may be used to satisfy the state’s burden of proof. See Payton, 810 So.2d at 1130; State v. Moten, 510 So.2d 55, 63 (La. App. 1 Cir. 1987), writ denied, 514 So.2d 126 (La. 1987). Such evidence may include (1) testimony from witnesses, (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, (3) photographs in the duly authenticated record, or (4) evidence of identical driver’s license number, sex, race, and date of birth. Payton, 810 So.2d at 1130.

The state introduced a certified copy of records (the pen pack) maintained by the Department of Public Safety and Corrections and presented the testimony of the records custodian for the Department, Ella Peterson. Peterson confirmed that the pen pack identified the defendant by his date of birth, state identification number, social security number, race, and gender. The pen pack established that on July 14, 1994, the defendant was convicted of armed robbery in the Twenty-First Judicial District Court under docket number 67650. The pen pack includes a minute entry from that proceeding that reflects the conviction and the defendant’s | insentence to imprisonment at hard labor for fifteen years for the conviction. Ten years of his sentence were ordered to run concurrently with a sentence he was serving at the time of sentencing and five years of the sentence were ordered to run consecutively to the sentence the defendant was serving at the time of sentencing. The pen pack further established that the defendant remained incarcerated for that conviction until April 9, 2013.

The name, social security number, state identification number, and date of birth for the defendant in the record of the predicate conviction are the same as those listed in the bill of information for the defendant relative to the present offense. The evidence was sufficient to prove that the defendant in this case was the same person convicted of armed robbery in 1994 and that ten years did not elapse between the date of his release for that conviction and the date he committed the subject offense. The trial court correctly found that the state proved the elements necessary for application of the habitual offender statute.

Excessive Sentence

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

Louisiana Code of Criminal Procedure article 894.1 sets forth what must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that the guidelines were adequately considered. State v. Herrin, 562 So.2d 1, 11 (La. App. 1 Cir.), unit denied, 565 So.2d 942 (La. 1990). A review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1 Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. See State v. Lanclos, 419 So.2d 475, 478 (La. 1982).

Armed robbery carries a sentence of imprisonment at hard labor for not less than ten years nor more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64.B. As a second-felony habitual offender, the defendant’s mandatory sentence was not less than one-half the longest term nor more than twice the longest term prescribed for a first conviction. See La. R.S. 15:529.1A(1). Thus, the defendant’s sentencing exposure was forty-nine and one-half years to one hundred and ninety-eight years, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64B; La. R.S. 15:529.1A(1); State v. Bruins, 407 So.2d 685, 687 (La. 1981). He was sentenced to sixty years at hard labor, with an additional five-years imposed for the use of a firearm, all to be served without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64.3.

112Prior to imposition of sentence, two witnesses testified on the defendant’s behalf. Mercedes Fast testified that she had known the defendant for three years prior to sentencing. According to Fast, the defendant was an employee of a construction company that repaired her home. Afterward, the defendant continued working for Fast. She testified that the defendant had access to her home, and she trusted him completely. She further testified that the defendant was a “[w]onderful” worker and a “man of great integrity.” Marcus Bennett III testified that the defendant was an employee of his construction company. The defendant had access to tools and materials while working for Bennett, along with a key to the work shop, and nothing was ever taken. Bennett trusted the defendant and would hire him again.

The trial court adequately considered the criteria of Article 894.1 and did not abuse its discretion in imposing the sentence. The trial court noted that it was imposing the sentence in accordance with Article 894.1 and specifically stated that “to impose a lesser sentence for this offense would deprecate the seriousness of the offense.” See La. Code Crim. Pro. art. 894.1A(3). Given the defendant’s multiple convictions for armed robbery, a crime of violence, the sentence was not grossly disproportionate to the severity of the offense and, therefore, was not unconstitutionally excessive. This assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . Toliver was charged by the same bill of information, tried with the defendant, and found guilty as charged. His convictions and sentences were affirmed in a separate appeal. See State v. Toliver, 15-1959, 2016 WL 5342004 (La. App. 1 Cir. 9/19/16), 205 So.3d 948.


author: Judge Madeleine M. Landrieu

text:
    STATE of Louisiana IN the INTEREST OF R.C.
    NO. 2016-CA-0966
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 28, 2016

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Mary Murphy, LOUISIANA CENTER FOR CHILDREN’S RIGHTS, 1100-B Milton Street, New Orleans, LA 70122, COUNSEL FOR DEFENDANT/APPELLANT

      (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Madeleine M. Landrieu

_JjR.C. appeals the juvenile court’s disposition sentencing him to four years in the custody of the Office of Juvenile Justice (“OJJ”) upon his plea of guilty to the charge of aggravated battery. For the reasons that follow, we affirm. •

FACTS AND PROCEEDINGS BELOW

On October 22, 2015, R.C. was charged by delinquency petition with attempted second degree murder for an incident in which R.C., then thirteen years old, shot and wounded his father. The facts surrounding the incident are not clear. R.C.’s father testified that he was in bed sleeping when he heard several loud bangs like gunshots and realized he had actually been shot. He went into R.C.’s room to look for him and discovered that' R.C. was the shooter. According to the father, R.C. shot him in the chest and in the face before he (the father) was able to escape through the front door.

R.C. said that he had been sleeping when he was awakened by a loud noise around 11:30 p.m. and heard his father scream. R.C. kept a gun under his bed. R.C. said that he panicked’ and the gun went off, and he then saw that the front door was open and his father was running to the neighbor’s house across the^street. The State amended the charge from attempted second degree murder to aggravated battery, and R C. pled guilty. On July 29, 2016, after a disposition hearing, the juvenile court sentenced R.C. to serve four years at a secure facility in the custody of OJJ. R.C. now appeals that disposition, arguing that the sentence is excessive.

DISCUSSION

A juvenile has the same constitutional rights against excessive punishment as an adult. See La. Ch. C. art. 808; State in Interest of D.L.S., 30,322, p. 11 (La.App. 2 Cir. 1/21/98), 706 So.2d 187, 193. Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “[n]o law shall subject any person ... to cruel, excessive, or unusual punishment.” Although within the statutory limits, a sentence is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposéless and needless imposition of pain and suffering.” State v. Brogdon, 457 So.2d 616, 625 (La. 1984). A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. In addressing a constitutional excessiveness claim, the relevant issue is “not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Smith, 2001-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4.

When a juvenile appeals his disposition as being excessive, the appellate court must first review the record to determine whether the juvenile court has imposed the least restrictive disposition that is consistent with the circumstances of Rthe case, the child’s needs, and the best interest of society. See La. Ch. C. arts. 683 and 901; State ex rel D.M., 2002-2528, pp. 9-10 (La.App. 4 Cir. 7/2/03), 851 So.2d 1216, 1222. “Following that determination, the reviewing court Heed only explore for constitutional excessiveness in light of the circumstances of the case and the background of the juvenile.” Id., p. 10, 851 So.2d at 1222 (quoting State in interest of T.L., 28,564, p. 2 (La.App. 2 Cir. 5/8/96), 674 So.2d 1122, 1124.

The general guidelines for juvenile dispositions are provided in Article 901 of the Louisiana Children’s Code. In reviewing R.C.’s disposition, we must first determine whether the juvenile court took cognizance of these guidelines and whether the record reflects an adequate factual basis for the disposition imposed. Id. (citing State in Interest of T.L., 674 So.2d at 1122). Article 901(D) provides that “[i]n considering dis-positional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.” Article 901(C)(4) provides that commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate if “[t]he delinquent act involved the illegal carrying, use, or possession of a firearm.”

The maximum term of imprisonment for aggravated battery is ten years. La. R.S. 14:34(B). The Children’s Code limits the term of incarceration for a juvenile adjudicated delinquent to the date the child attains the age of twenty-one years. La. C.C. art. 898(E)(5). In the present case, R.C. was thirteen years old at the time of the commission of the offense. Thus, he faced a potential disposition term of eight years. The juvenile court sentenced R.C. to four years, which is well within the statutory limits.

|4R.C. argues that the juvenile court abused its discretion by sentencing him to the custody of OJJ rather than to home incarceration. He argues that the length of his sentence and his placement in secure care were punitive measures taken by the juvenile court due to the violent nature of his offense, and that the juvenile court did not follow the Article 901 guidelines. Specifically, R.C. argues that he should have been released into the custody of Renee Williams, a close family friend who is R.C.’s godmother.

Reviewing the record, we find that the juvenile court did not abuse its broad discretion in sentencing R.C. R.C. has a documented history of parental neglect and disruptive behavior that caused him to be shuttled back and forth between various family members since his mother’s incarceration when he was eight years old. R.C. shot his father four times in the head and chest under questionable circumstances. At the time of the disposition hearing, no family members were willing to take in R.C. because of negative experiences with him in the past. The presentence investigation report prepared by the OJJ recommended that R.C. be committed to a secure facility. Although his godmother, Ms. Williams, filed a motion expressing a willingness to take R.C., she did not testify, and the record shows that she has a special needs child residing in her home. It was appropriate for the juvenile court judge to consider whether placing R.C. in the Williams home might pose a risk to that child.

Two psychological assessments performed on R.C. approximately one year prior to the shooting revealed the doctors’ concerns about R.C.’s progressively antisocial attitudes and behavior. The Structured Assessment of Violence Risk in Youth (SAVRY) administered by OJJ found that R.C. presented a high risk for violence, as well as for non-violent and other delinquent re-offending. Dr. Mary 15Eeth Alvarez testified for the defense regarding her treatment of R.C. Although she stated that she did not believe R.C. was a danger to himself or others, she noted that R.C. had responded well to the structured environ-merit of the Youth Study Center. She testified that the security, stability and consistent consequences of this environment contrasted sharply with the housing instability, insecurity, lack of adult supervision and exposure to violence and inappropriate sexual content in R.C.’s past.

In committing R.C. to the custody of OJJ, the juvenile judge emphasized that the disposition may be revisited by her at any time. She also considered R.C.’s need for services that will be available to him while he remains in the custody of OJJ. Considering the record, we find no abuse of discretion in the juvenile court’s disposition. We also do not find that the sentence is constitutionally excessive. It it is not grossly out of proportion to the severity of the crime, nor a purposeless or needless imposition of pain and suffering.

CONCLUSION

Accordingly, the judgment of the juvenile court is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      . R.C. did not testify. His version of events was provided to the court through the testimony of Ms. Vera Seals, R.C.’s probation officer who conducted the predisposition investigation.


author: JAMES F. MCKAY III, CHIEF JUDGE LEDET, J.,

text:
    STATE of Louisiana IN the INTEREST OF R.M.
    NO. 2016-CA-0616
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 11, 2017

      LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA ANDRIEU, CHIEF OF APPEALS, ASSISTANT DISTRICT ATTORNEY, DONALD G. CASSELS III, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA
    TENEE FELIX, LOUISIANA CENTER FOR CHILDREN’S RIGHTS, 1100-B Milton Street, New Orleans, Louisiana 70122, COUNSEL FOR APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Rosemary Ledet)
   JAMES F. MCKAY III, CHIEF JUDGE

I,In this juvenile case involving the delinquency of a minor, the State appeals the trial court’s granting of a motion to dismiss after finding that the matter had not been brought to trial within the trial deadlines established by the Louisiana Children’s Code. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 13, 2015, R.M. was charged by petition with one count of possession with intent to distribute a counterfeit controlled dangerous substance, a felony violation under La. R.S. 40:971.1. The case was allotted to Section “F” of the Juvenile Court for the Parish of Orleans and set for a pre-trial conference on November 18, 2015. On November 18, 2015, the case was set for an answer hearing on November 19, 2015. On November 19, 2015, the answer hearing was reset to November 23, 2015. On November 23, 2015, R.M. appeared with counsel and entered a denial.

On December 4, 2015, R.M., through his counsel, filed a motion to challenge competency. On December 8, 2015, the trial court appointed a panel of |2doctors to evaluate R.M., stayed the proceedings pursuant to La. Ch. C. art. 832, and set the case for a competency hearing on January 27, 2016. On January 27,2016, the competency hearing was reset on the trial court’s motion to February 16, 2016. On February 16, 2016, the competency hearing was again reset on the trial court’s motion to March 2, 2016 because the juvenile had been arrested on a new charge and was detained at the Youth Study Center. On March 2, 2016, the competency hearing was reset on the trial court’s motion to March 14, 2016 because the doctors had not yet evaluated the juvenile. On March 14, 2016, the hearing was reset on the trial court’s motion to March 17, 2016, again because the doctors had not yet evaluated R.M. On March 17, 2016, the juvenile appeared to be found competent to proceed to trial.

The matter was set for trial on April 14, 2016. On April 14, 2016, the trial was continued to May 4, 2016 because there had not been service on the police officers involved in the case. On May 4, 2016, the State declared that it was not ready for trial because the police officers had still not been subpoenaed. R.M. then moved for dismissal, which was granted by the juvenile court. On August 13, 2016, the State filed a motion for appeal and designation of record.

DISCUSSION

On appeal, the State contends that the Juvenile Court erred by dismissing this case on the finding that the stay issued by operation of law under La. Ch. C. art. 832 unreasonably extended the prescriptive period for prosecution set forth Lunder La, Ch. C. art. 877, where the stay did not actually extend prosecution beyond the prescriptive period.

The Fourteenth Amendment to the United States Constitution and Article 1 Section 16 of the Louisiana Constitution guarantee their citizens the right to a speedy trial. For a juvenile in Louisiana, that right is further strengthened by La. Ch. C. art. 877. In pertinent part, that article states as follows:

B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

The time limits set forth in La. Ch. C. art. 877 are mandatory. See State In Interest of R.D.C., 632 So.2d 745, 749 (La. 1994); State ex rel. J.B., 2003-0587 (La.App. 4 Cir. 12/10/03), 863 So.2d 669, 671; State In Interest of F.M., 2012-1442 (La.App. 4 Cir. 6/5/13), 118 So.3d 1232, 1234. In order to extend the time limits, good cause must be shown and both the good cause and the extension, if granted, must occur before the deadline has expired. It is incumbent on the State to make a showing of good cause and obtain an extension before the period has run. State In Interest of R.D.C., 632 So.2d at 748. Article 877(D) does not allow the adjudication hearing to be set outside the mandatory period; rather, it allows the period to be extended. State ex rel. J.B., 863 So.2d at 671. The decision to grant an extension of time belongs to the Court. State In Interest of R.D.C., 632 So.2d at 749.

|4In the instant case, R.M. answered the petition on November 23, 2015. Although R.M. was in custody for fifty (50) days during the course of the proceedings, he was not in custody on this matter and thus his trial needed to be held within ninety (90) days of his appearance to answer the petition. See La. Ch. C. art. 877. Under article 877(B), the final day for R.M.’s trial to begin (the ninetieth day for timely prosecution) was February 21, 2016. This deadline was clearly noted in the juvenile court’s judgment from November 23, 2015. Due to the judge’s illness at the January 27, 2016 hearing date, the court made a single good cause finding to extend the trial deadline. However, at subsequent hearing dates, the State did not request or receive a good cause extension. Therefore, any proceeding after February 21, 2016 would violate the time limit mandated under article 877. Accordingly, the Juvenile Court did not err in granting R.M.’s motion to dismiss on May 4, 2016 (163 days after his appearance to answer the petition).

We also note that the stay pursuant to article 832 did not relieve the State of its duty to request and obtain a good cause extension before the article 877 mandatory time limit expired. This Court has found that a stay “cannot serve as a substitute for requesting and obtaining an extension for good cause.” State In Interest of F.M., 118 So.3d at 1234.

Finally, the trial court did not err in granting R.M.’s motion to dismiss because R.M.’s constitutional right to a speedy trial was violated. As the juvenile court noted in its judgment, “time passes faster for a youth than an adult,” and “[j]uvenile court proceedings are intended to afford swift resolution of alleged juvenile misconduct free of the lengthy delays that seem to ensnare adult criminal matters.” In order to determine if there has been a speedy trial violation, the Louisiana Supreme Court has adopted a four-part test set out by the United States | ^Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. James, 394 So.2d 1197 (La. 1981); State v. Reaves, 376 So.2d 136 (La. 1979). Under the Barker test, to determine whether or not there has been a speedy trial violation, the court considers: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In the instant case, these factors weigh heavily in favor of dismissal. First, the length of the delay in this case, from the filing of petition, was 174 days. (In juvenile court, the length of delay allotted to prosecution without good cause is 90 days. La. Ch. C. Art. 887. As such, the 174 day delay in a juvenile case is presumptively prejudicial). Second, the Louisiana Supreme Court has found that even where there does not appear to be a deliberate attempt to delay the trial, “responsibility for the repeated absences of the prosecution’s police officer witness must rest with the government, rather than with the defendant.” State v. Reaves, 376 So.2d at 138-39 (citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182. Third, the fact that R.M. does not appear to have asserted his right to a speedy trial until the filing of his motion to dismiss should not be weighed heavily because in juvenile court, La. Ch. C. art. 877 functions as a statutory speedy trial act. Fourth, the State, with no basis, asserts that R.M. is not prejudiced due to the delay. In weighing the factors and considering the i'elevant circumstances of this case, the juvenile court did not err in granting the motion to dismiss.

CONCLUSION

Based on the record before this Court and for the above and foregoing reasons, we affirm the juvenile court’s judgment which granted R.M.’s motion to |fldismiss for failure to bring to trial within the deadlines established by the Children’s Code.

AFFIRMED

LEDET, J., DISSENTS WITH REASONS

LEDET, J.,

DISSENTS WITH REASONS

IH would reverse the district court’s ruling granting R.M.’s motion to dismiss.

Relying on State in Interest of F.M., 12-1442 (La. App. 4 Cir. 6/5/13), 118 So.3d 1232, the majority holds that La. Ch.C. art. 832 did not relieve the State of its duty to obtain a good cause extension before the ninety-day time limit enunciated in La. Ch.C. art. 877(B) expired. F.M., however, is distinguishable from the instant case.

In F.M., the district court, using its discretion, stayed the delinquency proceedings due to outstanding arrest warrants for the minor victim and his guardian because of their failure to appear for trial. The defendant thereafter moved to dismiss the State’s petition for failure to timely prosecute. F.M., 12-1442 at p. 2, 118 So.3d at 1233. On the day the defendant’s motion to dismiss was scheduled to be heard, the State raised the issue of competency. Id. Furthermore, the State, as this court noted in F.M., raised the issue of the defendant’s competency after the time limit to commence prosecution had already expired. F.M. 12-1442, at p. 4, 118 So.3d at 1234.

In the instant matter, as the majority notes, the district court stayed the proceedings as pursuant to La. Ch.C. art. 832, which provides as follows:

A child’s mental incapacity to proceed ... may be raised at any time by the child, the district attorney, or the court. When the question 12of the child’s mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding, except the filing of a delinquency petition, until counsel is appointed and notified in accordance with Article 809(B) and the child is found to have the mental capacity to proceed.

Under Article 832, it is mandated that no further action be taken in a delinquency proceeding until after the juvenile is found to have the mental capacity to proceed, which shall be determined by the court after a contradictory hearing. See State ex rel. G.G., 09-1667, p. 6 (La. App. 4 Cir. 8/4/10), 45 So.3d 623, 626; State ex rel. L.A., 09-1029, p. 5 (La. App. 4 Cir. 12/9/09), 28 So.3d 515, 518.

R.M. filed a motion to challenge competency fifteen days after he answered the petition. On March 17, 2016, after several continuances on the district court’s own motions, the contradictory hearing to determine competency was held. R.M. was found competent to proceed. Given the Article 832 specifically mandates the suspension of proceedings until a determination of competency has been made, I would find that the time limit to commence prosecution did not expire. See State in Interest of D.M., 12-787, p. 6 (La. App. 5 Cir. 5/30/13), 119 So.3d 763, 767 (finding that the court’s motion to continue the adjudication hearing was “sufficient to support a finding of good cause as required by [La.] Ch.G. art. 877D.”); State in Interest of D.S., 14-1253 (La. App. 1 Cir. 12/23/14), 2014 WL 7331946, p.*2 (unpub.) (recognizing that La. Ch. C. art. 832 expressly provides for delays to the time limitations for adjudication).

For these reasons, I dissent.