author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Patrick G. LEBLANC, Appellant
    No. 51,645-KA
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    PATRICK G. LEBLANC, Pro Se
    DANIEL W. NEWELL, District Attorney, Homer, Counsel for Appellee
    TERESA CULPEPPER CARROLL, Assistant District Attorney, Jonesboro
    Before PITMAN, STONE, and GASKINS (Pro Tempore), JJ.
   STONE, J.

Pursuant to a plea agreement, Patrick G. LeBlanc pled guilty to distribution of methamphetamine and possession of marijuana, third offense. He was sentenced to 18 years' imprisonment and 2 years' imprisonment at hard labor, respectively. This appeal followed.

LeBlanc's appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging there are no nonfrivolous issues upon which to base an appeal. For the following reasons, the motion to withdraw is granted, and LeBlanc's convictions are affirmed. We affirm LeBlanc's sentence for possession of marijuana, third offense, and affirm as amended his sentence for distribution of methamphetamine.

FACTS

On or about January 14, 2015, the Jackson Parish Sheriff's Office conducted an undercover operation in which two confidential informants went to Patrick G. LeBlanc's ("LeBlanc") residence and purchased three grams of methamphetamine. After obtaining a search warrant, officers found synthetic marijuana inside the residence. LeBlanc was charged by bill of information with one count of distribution of methamphetamine in violation of La. R.S. 40:967(A)(1) and one count of possession of marijuana, third offense, in violation of La. R.S. 40:966(C). At his arraignment, LeBlanc pled not guilty to both charges and reserved his right to trial by jury.

On March 18, 2015, trial counsel filed a motion for the appointment of a sanity commission on behalf of LeBlanc. The trial court appointed Drs. George Seiden and James Pinkston to determine LeBlanc's mental capacity at the time of the offenses and his competence to stand trial. Both doctors concluded LeBlanc knew the difference between right and wrong at the time of the offenses and pronounced LeBlanc competent to proceed with trial. On October 6, 2015, a hearing was held and the doctors' reports were jointly filed. After considering the evidence presented, the trial court found Leblanc was competent to stand trial.

During the course of the proceedings, LeBlanc filed numerous pro se motions. On September 30, 2016, a hearing was held wherein LeBlanc argued a pro se motion related to the trial court's lack of jurisdiction. The trial court denied LeBlanc's motion and noted his objection for the record. Thereafter, LeBlanc entered into a "best interest" plea agreement with the state, pursuant to State v. Crosby , 338 So.2d 584 (La. 1976), reserving his right to appeal the trial court's denial of his pro se motion. LeBlanc agreed to plead guilty as charged to distribution of methamphetamine and possession of marijuana, third offense, with agreed upon sentences of 18 and 2 years' imprisonment at hard labor, respectively.

Prior to accepting his guilty plea, the trial court informed LeBlanc of his constitutional rights pursuant to Boykin v. Alabama , 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed. 2d 274 (1969), including his right against self-incrimination, his right to confront and cross-examine his accusers, and his right to a jury trial. LeBlanc stated he understood his rights and wished to waive them by pleading guilty. Notably, LeBlanc did not admit to the factual basis for the guilty plea but stated, after reviewing the evidence with his trial counsel, it was in his best interest to plead guilty. Thereafter, LeBlanc pled guilty as charged to distribution of methamphetamine and possession of marijuana, third offense, and was sentenced to 18 and 2 years' imprisonment at hard labor, respectively. Both sentences were to be served concurrently. On November 17, 2016, LeBlanc filed a pro se motion to reconsider his sentence, which was denied by the trial court.

On February 16, 2017, the trial court granted LeBlanc's motion for appeal and designation of the record. The Louisiana Appellate Project was appointed to represent LeBlanc on appeal. Upon lodging of this appeal, LeBlanc's appellate counsel filed a motion to withdraw, together with an Anders brief, alleging she could find no nonfrivolous issues to raise on appeal. See, Anders, supra ; State v. Jyles , 1996-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 1995-0981 (La. 04/28/95), 653 So.2d 1176 ; and State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). The appellate brief included a review of the procedural history of the case and stated that after a thorough review of all the pleadings filed in the trial court, the court proceedings, and all transcripts contained in the record, no nonfrivolous issues could be advanced for appellate review. Further, appellate counsel has verified that copies of the motion to withdraw and Anders brief have been properly mailed to LeBlanc, in accordance with Anders, Jyles, Mouton , and Benjamin.

LeBlanc was notified of his right to file a pro se brief on his own behalf. However, he failed to submit a brief.

DISCUSSION

After a thorough review of the record, we agree with appellate counsel that there are no nonfrivolous issues to be raised on appeal. LeBlanc was properly charged by an amended bill of information which was signed by an assistant district attorney. He was present in court and represented by counsel at all important stages of the proceedings. The trial court advised LeBlanc of the nature of the charges against him, the consequences of his guilty pleas, and the sentencing ranges he would have been exposed to had he not entered into the plea agreement. The record shows that prior to entering his guilty plea, LeBlanc was properly advised of his Boykin rights, understood the plea agreement, and voluntarily pled guilty because it was in his "best interest." The trial court sentenced LeBlanc in accordance with the plea agreement. Considering his criminal history, LeBlanc's sentences are not excessive.

ERROR PATENT

The trial court properly imposed LeBlanc's 2-year sentence for possession of marijuana, third offense, at hard labor. However, the trial court failed to state that LeBlanc's 18-year sentence for distribution of methamphetamine was at hard labor. At the time LeBlanc committed the offenses, La. R.S. 40:967(B)(1) provided that any person convicted of distribution of methamphetamine shall serve his or her sentence at hard labor. Furthermore, the plea agreement stated the 18-year sentence was to be served at hard labor. Accordingly, we amend LeBlanc's sentence for distribution of methamphetamine to reflect that it be served at hard labor. La. C. Cr. P. art. 882(A).

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and LeBlanc's convictions are affirmed. LeBlanc's sentence for possession of marijuana, third offense, is affirmed. His 18-year sentence for distribution of methamphetamine is amended to reflect that it be served at hard labor. As amended, the sentence is affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AFFIRMED; SENTENCE FOR POSSESSION OF

MARIJUANA, THIRD OFFENSE, AFFIRMED; SENTENCE FOR DISTRIBUTION OF METHAMPHETAMINE AFFIRMED AS AMENDED.

      The predicate offenses for the later charge included a conviction for possession of marijuana on January 18, 2005, Docket No. 38,388 in the 2nd JDC, and a conviction for possession of marijuana, second offense, on February 6, 2008, Docket No. 41,118, in the 2nd JDC.


source: Caselaw Access Project

author: BLEICH, J. (Ad Hoc )

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Roy Arlen VAN NORTRICK, Appellant
    No. 51,604-KA
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    ROY ARLEN VAN NORTRICK, Pro Se
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MONIQUE YVETTE METOYER, ERICA JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before COX, BLEICH (Ad Hoc ), and GASKINS (Pro Tempore ) JJ.
   BLEICH, J. (Ad Hoc )

This criminal appeal arises from the First Judicial District Court, Parish of Caddo. On January 28, 2016, following a jury trial, the defendant, Roy Arlen Van Nortrick, was convicted as charged of two counts of molestation of a juvenile, violations of La. R.S. 14:81.2. On June 1, 2016, Van Nortrick was sentenced to two consecutive 45-year sentences, with the first 25 years of each sentence to be served without the benefit of parole, probation, or suspension of sentence. For the following reasons, Van Nortrick's convictions and sentences are affirmed.

FACTS

In September, 2010, J.M. and her younger sister, R.M., went to live with their aunt, Shelly Clark, after being involved in a serious automobile accident which resulted in their mother's arrest and subsequent incarceration. J.M. suffered substantial injuries from the crash, including a fractured skull and a traumatic brain injury. As part of her rehabilitation, according to J.M. and Clark, J.M. was encouraged to keep a journal, which her aunt would read daily for accuracy. The journal was a means for J.M. to stimulate her memory, as well as practice her handwriting. On or about July 2, 2013, Clark discovered a troubling entry in J.M.'s journal detailing the sleeping arrangements in the home she had occupied with her parents, sister, brother, Van Nortrick, and his young son prior to the automobile accident. As a result of the journal entry, Clark took J.M. aside and asked her if she had ever been touched inappropriately by anyone. J.M. confided to her aunt that Van Nortrick had sexually molested both her and her sister, R.M., when he lived with their family in Mooringsport and Shreveport, Louisiana. When Clark spoke separately with R.M., she corroborated her sister's allegations that Van Nortrick touched her inappropriately.

On July 10, 2013, the sisters were individually interviewed at the Gingerbread House, a child advocacy center in Shreveport. Both gave detailed accounts of various sexual incidents with Van Nortrick occurring in 2009 and 2010.

Van Nortrick was arrested on November 18, 2013, in Michigan, where he was living at the time, and extradited to Shreveport. Upon arriving in Shreveport, Van Nortrick was immediately transported to a Caddo Parish Sheriff's Office and gave a statement to police. Initially, Van Nortrick denied any wrongdoing, but, after being confronted with details provided by J.M. and R.M. of specific incidents of sexual abuse by him, Van Nortrick admitted to several sexual encounters with both girls. A month later, Van Nortrick was charged by bill of information with two counts of molestation of a juvenile, violations of La. R.S 14:81.2. The bill specifically alleged that the victims, J.M. and R.M., were under the age of 13 at the time of the offenses.

The case proceeded to trial and on January 28, 2016, a unanimous jury returned a verdict finding Van Nortrick guilty as charged on both counts. His motion for post-verdict judgment of acquittal and a motion for new trial were both denied by the trial court prior to sentencing. On June 1, 2016, Van Nortrick was sentenced to 45 years at hard labor for each conviction, with the first 25 years of each sentence to be served without the benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to be served consecutively.

Van Nortrick subsequently filed a motion to reconsider sentence, arguing that his consecutive sentences were unconstitutionally excessive, especially in light of his poor health. The trial court denied his motion. Van Nortrick's motion for an out-of-time appeal was granted, and this appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In both a counseled and pro se assignment of error, Van Nortrick argues that the evidence presented was insufficient to convict him. Specifically, Van Nortrick challenges the accuracy of J.M.'s testimony given her traumatic brain injury. Further, he alleges that J.M. and R.M. held some animosity toward him because he had a sexual relationship with their mother when he lived with the family and took his son, J.M. and R.M.'s cousin, away from them when he moved out of state. In further support of his claim that the evidence was insufficient, Van Nortrick points to his trial testimony wherein he denied ever touching J.M. or R.M. inappropriately. We disagree and note the following evidence that was adduced at trial.

Clark, who identified Van Nortrick in open court and explained that she knew him because he had been married to her stepsister, testified that J.M. was prescribed to keep a journal in order to assist with the recuperation for her brain injury. Clark was instructed to read the journal for accuracy, and as a result she read J.M.'s entries regarding Van Nortrick's actions with both girls. Distressed, Clark spoke with the girls, who individually confirmed the allegations to Clark. As a result of the journal entries and the resultant conversations, on July 3, 2013-a day after learning of Van Nortrick's inappropriate contact with her nieces-Clark went to the Bossier Parish Sheriff's Office to report the incidents. Because the alleged crimes occurred in Caddo Parish, her report was forwarded to the Caddo Parish Sheriff's Office. Clark brought the girls to the Gingerbread House the following week to be interviewed.

According to Clark, at the time of trial J.M. was in high school and a good student-visual impairment was the only substantial impairment she continued to suffer as a result of the automobile accident. J.M. is completely blind in her left eye and has limited vision in her right eye.

Alex Person, a forensic interviewer at the Gingerbread House, also testified at trial. According to Person, she interviewed both J.M. and R.M. separately on July 10, 2013. Person explained that, as is the policy at the Gingerbread House, she asked both girls non-leading questions to gather information regarding any sexual abuse the children may have suffered. Person identified video recordings of the interviews. Person also identified notes she took during the interviews and anatomical drawings which were used by J.M. and R.M. during their respective interviews to indicate where they had been touched, or had touched another person, on the genitals.

The sisters' father, P.M., testified at trial as well. He stated that during 2009 and 2010, Van Nortrick and his young son were living in P.M.'s home, along with P.M.'s wife, his daughters, and his son. P.M. worked two jobs to support his family and explained that his wife, who was hospitalized for some time while Van Nortrick was living with the couple, was unable to keep a job. According to P.M., Van Nortrick exercised control or supervision over both R.M. and J.M. during various times. P.M. was unaware that Van Nortrick was sexually abusing his daughters, but suspected that Van Nortrick was engaged in a sexual relationship with his wife.

J.M. testified at trial that in 2009 and 2010, she was living with her parents, her sister, her brother, Van Nortrick, and his son in her parents' home. J.M. corroborated Clark's testimony that as part of her rehabilitation she wrote in a journal daily. J.M. identified entries from her journal in open court and recounted speaking with Clark about the fact that Van Nortrick had touched her and her sister inappropriately.

J.M. recalled going to the Gingerbread House and being interviewed, and her interview was then played in open court. In the video, J.M. stated that two men who had lived with her family, Mark Vincent and Van Nortrick, had "touched her in a way she wasn't supposed to be touched." J.M. stated that sometime in 2009 or 2010, when her family was living in Shreveport and Mooringsport, Nortrick "put his finger in me" and "tried to put his you know what in me." J.M. also stated that Notrick "tried to put his you know what in my butt" and wanted J.M. to "touch his you know what" but she refused. J.M. used anatomical drawings of a woman and a man to circle the body parts she identified as a "T.T." and a "you know what." Van Nortrick told J.M. not to tell anyone what he had done to her. J.M. explained that she witnessed Van Nortrick putting his finger in R.M.'s "T.T." and tried to put his penis in R.M.'s "T.T." and anus. J.M. believed that Van Nortrick was having sex with the girls' mother when he was living with them.

At trial, J.M. clarified that Vincent and Van Nortrick lived with her family at different times, and she clearly recalled the separate acts of abuse by the two men. J.M. testified that the acts of molestation by Van Nortrick always occurred in her brother's room while her father was at work, her brother was not home, and her mother was home, but asleep. J.M. explained that she and her sister, R.M., witnessed each other being sexually abused by Van Nortrick.

During cross-examination, J.M. conceded that at the time she wrote the journal entries about Van Nortrick she was having difficulty with her long-term and short-term memory and was having visions and hearing voices.

R.M. testified at trial that Van Nortrick lived with her, her sister, J.M., her brother, and parents. R.M. recalled telling Clark about how Van Nortrick touched her inappropriately and remembered her Gingerbread House interview. R.M. identified anatomical drawings she wrote on during her interview. The video recording of R.M.'s Gingerbread House interview also was played in open court. In the video, R.M. stated that Van Nortrick forced her and her sister, J.M., to get in the shower with him. He also forced R.M. to put her mouth on his "toy" or "thing" and put his finger in her "toy." In the video, R.M. recounted that Van Nortrick also touched R.M. on her "toy" with his tongue while he made R.M. put her mouth on his "thing." R.M. stated that Van Nortrick put his "toy" in her mouth, vagina, and anus. R.M. explained that Van Nortrick would achieve an orgasm during these incidents, and she and J.M. witnessed each other's abuse. R.M. recalled one specific incident where she was with Van Nortrick and her father fishing at a pond. She was cold and Van Nortrick offered to keep her warm; R.M. sat next to him and, under the cover of a blanket, Van Nortrick used his hand to touch R.M.'s vagina.

At trial, R.M. identified notes she had taken prior to her interview which described some of the acts committed by Van Nortrick. R.M. explained that she intended on bringing the notes to the interview "in case I forgot something." R.M. testified that the incidents with Van Nortrick occurred more than five times.

During cross-examination, R.M. stated that she was upset when Van Nortrick left Louisiana, because she missed his son, R.M.'s cousin. She admitted that she "probably" contacted Van Nortrick on social media and asked him to bring her cousin back to Louisiana.

Detective Jared Marshall, a youth services detective with the Caddo Parish Sheriff's Office, testified that he spoke with Clark after receiving her report from the Bossier Parish Sheriff's Office. Detective Marshall stated that at the time J.M. and R.M. were molested by Van Nortrick, approximately 2009 through 2010, J.M. would have been nine or ten years old and R.M. would have been seven or eight. Detective Marshall scheduled and observed J.M.'s and R.M.'s Gingerbread House interviews.

Detective Marshall identified a video recording of Van Nortrick's police interview which was then played for the jury. Prior to being interviewed, Van Nortrick was informed of and waived his Miranda rights. Van Nortrick initially denied any inappropriate conduct with either J.M. or R.M. In the interview, he confirmed that he lived with the girls and their family in their home in Shreveport and Mooringsport from around March, 2008, to January, 2010, and his description of the sleeping arrangements in the home was the same as those given by J.M. and R.M. Van Nortrick further explained that he would watch the girls at times, particularly when their mother was unable to do so, because she was abusing prescription pain medication. Eventually, when the interviewers confronted him with the allegations made by J.M. and R.M., Van Nortrick admitted to various incidents of inappropriate behavior with the girls. Specifically, he claimed that J.M. and R.M. jumped into the shower when he was showering, and he described slapping them on their bare behinds to get them to leave. Van Nortrick also eventually acknowledged he touched J.M.'s vagina with his hand, he had anal sex with J.M., and she performed oral sex on him. In the interview, Van Nortrick admitted to performing oral sex on R.M. and said that R.M. touched his penis with her hand. He also acknowledged to police that J.M. and R.M. had witnessed each other's abuse, and he achieved an orgasm as a result of some of the sexual acts.

Detective Marshall testified that much of what Van Nortrick stated during his interview corroborated details disclosed by J.M. and R.M. during their Gingerbread House interviews, including the sleeping arrangements in the home, the fact that J.M. and R.M. were in the shower with him more than once, and several of the incidents of sexual contact between Van Nortrick and the girls.

Van Nortrick opted to testify at his trial and denied touching either J.M. or R.M. inappropriately at any time. At trial, Van Nortrick testified to being diabetic and claimed he did not receive any of his prescribed insulin on the day of his statement. As such, Van Nortrick stated he suffered from "high sugar" and had no memory of his arrival in Shreveport or his statement to Detective Marshall. During cross-examination, Van Nortrick also claimed that he did not recall doing any of the things he said he did to J.M. or R.M. during his interview, although he confirmed that he occasionally supervised the girls when he lived with them.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing the sufficiency of the evidence first is because the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold , 603 So.2d 731 (La. 1992) ; State v. Cortez , 48,319 (La. App. 2 Cir. 08/07/13), 122 So.3d 588.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra ; State v. Tate , 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 2005-0477 (La. 02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (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. 02/25/09), 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913.

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. State v. Speed , 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/06/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette , 43,032 (La. App. 2 Cir. 02/13/08), 975 So.2d 753.

The testimony of the victim alone in a sexual assault case is sufficient to convince a reasonable factfinder beyond a reasonable doubt of a defendant's guilt. State v. Rives , 407 So.2d 1195 (La. 1981) ; State v. Wade , 39,797 (La. App. 2 Cir. 08/09/05), 908 So.2d 1220. Furthermore, such testimony alone is sufficient, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Wade, supra.

Louisiana R.S. 14:81.2 defines the crime of molestation of a juvenile as follows:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

The evidence adduced at Van Nortrick's trial was sufficient to support the jury's verdict, and each element of the crime of molestation of a juvenile was proven beyond a reasonable doubt. The jury heard the testimony of the victims, J.M. and R.M., as well as their Gingerbread House interviews that Van Nortrick engaged in various sexual acts with them when they were under the age of 13. Significantly, J.M.'s and R.M.'s statements and trial testimony were corroborative of each other and consistent with their claims that they witnessed each other's abuse. Clark testified that she read J.M.'s journal entries, which led to her suspicion of abuse. J.M.'s and R.M.'s father testified that Van Nortrick had the opportunity to exert control and/or supervision over the girls. Van Nortrick testified that when he was 35 and 36 years old, in 2009 and 2010, he lived with J.M. and R.M. and their parents. Van Nortrick also conceded at trial, as he had during his statement to police, that he exercised control or supervision over J.M. and R.M. when he lived with them. The jury's decision to accept J.M.'s and R.M.'s testimony as truthful and reject the defendant's self-serving trial testimony was reasonable and is entitled to great weight, especially considering Van Nortrick's corroboration of several of J.M.'s and R.M.'s claims of sexual abuse in his statement to police. Accordingly, Van Nortrick's assignment of error alleging insufficiency of the evidence lacks merit.

Defendant's Statement to Police

Van Nortrick also argues in a counseled and pro se assignment of error that the trial court erred in denying his motion to suppress and allowing the state to use his videotaped confession. Specifically, Van Nortrick alleges that he was unable to give a knowing and voluntary waiver of his Miranda rights, because he is diabetic and had not received his insulin as prescribed on the day of his interview with police. We disagree.

At the motion to suppress hearing, Caddo Parish Sheriff Sergeant Michael Middleton testified that on November 19, 2013, he transported Van Nortrick by plane from Michigan to Louisiana. Sergeant Middleton explained that Van Nortrick would have received breakfast before his flight and then lunch either during the flight or during a layover. Sergeant Middleton testified that Van Nortrick may have mentioned that he was diabetic or insulin dependent, but Sgt. Middleton did not know whether he received any insulin on the day he was extradited.

Detective Marshall testified at the hearing that Van Nortrick was transported directly from the airport to the Caddo Parish Sheriff's office on North Market Street upon his arrival in Shreveport. The interview began at approximately 7:00 p.m. or 8:00 p.m., and Van Nortrick was talkative and did not appear to be under the influence of alcohol or narcotics. According to Det. Marshall, Van Nortrick spoke normally and engaged in a conversation. During his interview, Van Nortrick appeared lucid, knew he was no longer in Michigan, and explained that he wanted to return to be with his young son. Detective Marshall denied threatening, coercing, or intimidating Van Nortrick into making a statement. Van Nortrick was offered, and accepted, coffee when he first arrived and sometime later during the interview. Detective Marshall read Van Nortrick his Miranda rights, which he waived verbally and by signing a waiver of rights. He appeared to understand the implication of his waiver. Detective Marshall stated that it was not until the end of the interview that Van Nortrick made mention of needing food, and at that point the interview ended and Van Nortrick was transported to the Caddo Correctional Center where food and medical treatment were available.

The trial court also reviewed a copy of Van Nortrick's recorded interview. The recording shows Van Nortrick being seated in a small room and given coffee. The video reflects Van Nortrick being read his Miranda rights, which he waived. In the video, Van Nortrick did not appear to be under the influence of any intoxicating substances; his speech was not slurred. Approximately 39 minutes into the interview, Van Nortrick mentioned in passing that he was diabetic; however, he did not request food or medical attention at that time. He answered Detective Marshall's questions with rational, clear, and detailed responses, initially denying any inappropriate behavior with J.M. or R.M. However, when presented with specific details provided by J.M. and R.M. regarding their relationship with Van Nortrick, he slowly began admitting to inappropriately touching the sisters. He was careful, at least at first, to deny more serious allegations, such as vaginal or anal intercourse.

Van Nortrick also testified at the suppression hearing and related that he has been a diabetic for 38½ years and must receive insulin injections 4 to 6 times a day to control his blood sugar. Van Nortrick claimed receiving his last insulin injection prior to his interview on the evening of November 18, 2013. He stated that he did not remember talking to Det. Marshall and the last memory he had of November 19, 2013, was being at the Houston airport. Van Nortrick stated that although some of the things he said during the interview were true, he never touched J.M. or R.M. inappropriately. Van Nortrick testified that when he does not receive his insulin injections, he suffers from memory loss and becomes unable to distinguish where he is or what he is saying.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills , 354 So.2d 186 (La. 1977) ; State v. Callier , 39,650 (La. App. 2 Cir. 07/27/05), 909 So.2d 23, writ denied , 2006-0308 (La. 09/01/06), 936 So.2d 196.

Before what purports to be a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451.

The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Glenn , 49,705 (La. App. 2 Cir. 02/26/15), 162 So.3d 525, 530.

The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court's conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Thibodeaux , 1998-1673 (La. 09/08/99), 750 So.2d 916, cert. denied , 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

In State v. Glenn, supra , the defendant claimed on appeal that his confession was involuntary and should have been suppressed at trial because he was intoxicated at the time he made his statement, and he had not received medical treatment for injuries sustained during his arrest. This court affirmed that defendant's convictions and sentences, explaining the relevant inquiry as follows:

The requirement that Miranda warnings be given does not dispense with a due process inquiry into the voluntariness of a confession. Assuming there has been no Miranda violation, only confessions procured by coercive official tactics should be excluded as involuntary. The accused's infirm mental condition by itself does not make the confession involuntary; coercive police activity is a necessary predicate to a finding that the confession is not voluntary and thus inadmissible.

State v. Glenn, supra , at 530 (citations omitted).

We do not believe the trial court erred in denying Van Nortrick's motion to suppress. It specifically noted that there was nothing in the recording to indicate to law enforcement that Van Nortrick needed medical treatment or was unable to understand his rights. In fact, the trial court commented that Van Notrick appeared lucid, conversational, and was oriented as to time and place. Furthermore, he gave coherent, detailed answers to Det. Marshall's questions, and seemed to possess enough awareness to deny serious allegations against his interest. The trial court also noted that Van Nortrick made several statements acknowledging the repercussions of his admissions, a fact which belied his claim that he was in an altered state of mind incapable of understanding his rights.

The video recording of Van Nortrick's statement indicates that he was advised of his Miranda rights, and he understood his rights and wished to waive them in order to speak with detectives. Detective Marshall testified that Van Nortrick was not threatened or coerced during the interview and spoke willingly with detectives. The video recording of the interview does not show any coercive police activity. The video recording shows that Van Nortrick appeared to be capable of understanding his rights: he was oriented as to time and place; knew the severity of the situation in which he found himself; and, had the mental acumen to avoid admission of more serious allegations. Accordingly, Van Nortrick's assignment of error alleging improper admission of his recorded statement is without merit.

Excessive Sentence

In his third and final assignment of error, Van Nortrick complains that his consecutive sentences are excessive, especially in light of the fact that he is a first offender. The trial court sentenced Van Nortrick to 45 years at hard labor for each conviction, with the first 25 years of each sentence to be served without the benefit of parole, probation, or suspension of sentence. Additionally, because his crimes involved separate victims, the trial court ordered the sentences to be served consecutive to one another.

The penalty for molestation of a juvenile, when the victim is under the age of 13, is imprisonment at hard labor for not less than 25 years nor more than 99 years, with at least 25 years of the sentence imposed without the benefit of parole, probation, or suspension of sentence. La. R. S. 14:81.2.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Mandigo , 48,801 (La. App. 2 Cir. 02/26/14), 136 So.3d 292, writ denied , 2014-0630 (La. 10/24/14), 151 So.3d 600. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and therefore, is given broad discretion in sentencing. State v. Zeigler , 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque , 46,515 (La. App. 2 Cir. 09/21/11), 73 So.3d 1021, writ denied , 2011-2347 (La. 03/09/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner , 46,688 (La. App. 2 Cir. 11/02/11), 77 So.3d 1052.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree , 46,686 (La. App. 2 Cir. 11/02/11), 77 So.3d 1047.

Louisiana C. Cr. P. art. 883 states that when two or more convictions arise from the same act or transaction, or constitute part of a common scheme or plan, the terms of the imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, the trial court is given the discretion to impose consecutive penalties in cases where the offender's past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker , 2000-3200 (La. 10/12/01), 799 So.2d 461 ; State v. McDuffey , 42,167 (La. App. 2 Cir. 06/20/07), 960 So.2d 1175, writ denied , 2007-1537 (La. 01/11/08), 972 So.2d 1163. The factors considered when determining whether to impose concurrent or consecutive sentences include: (1) the defendant's criminal history, (2) the gravity or dangerousness of the offense, (3) the viciousness of the crimes, (4) the harm done to the victims, (5) whether the defendant constitutes an unusual risk of danger to the public, (6) the potential for the defendant's rehabilitation, and (7) whether the defendant has received a benefit of a plea bargain. State v. McDuffey, supra , at 1181-82.

Furthermore, a trial court's failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support the consecutive sentences imposed. State v. Hampton , 38,017 (La. App. 2 Cir. 01/28/04), 865 So.2d 284, writs denied , 2004-0834 (La. 03/11/05), 896 So.2d 57, 2004-2380 (La. 06/03/05), 903 So.2d 452.

At Van Nortrick's sentencing hearing, the trial court noted that it had reviewed his presentence investigation report and the sentencing factors set forth in La. C. Cr. P. art. 894.1. The trial court specifically noted the following applicable aggravating factors regarding Van Nortrick: (1) his conduct in committing the offenses manifested deliberate cruelty to his victims; (2) his victims were especially vulnerable given their youthful age and family situation; (3) he used his position or status as his victims' caretaker to facilitate the commission of his crimes; and, (4) his victims suffered permanent psychological injury as a result of his actions. The trial court also noted that Van Nortrick had one previous conviction in Michigan, but that the crime was not similar in nature to his most recent offenses. Additionally, although the trial court considered the hardship faced by Van Nortrick's son due to his father's incarceration, the trial court noted that imposition of even the minimum sentences would cause Van Nortrick to be absent from his son's life during his childhood years.

The consecutive sentences imposed by the trial court in this case are not excessive. The trial court thoroughly discussed the applicable sentencing factors, including Van Nortrick's exploitation of his position of supervision and the irreparable harm done to his youthful and especially vulnerable victims. The relevant mitigating factors, such as his limited criminal history and the potential hardship faced by his son due to Van Nortrick's incarceration, were also considered by the trial court. As explained by the trial court, consecutive sentences were appropriate as the crimes involved two separate victims and separate acts.

Van Nortrick faced a 99-year sentence for each conviction. Over the course of more than a year, Van Nortrick, who acted as a caregiver to his victims, molested them on a regular basis. Given his deplorable and predatory behavior, the midrange sentences imposed by the trial court do not shock the sense of justice. Accordingly, Van Nortrick's assignment of error alleging that his sentences are excessive is without merit.

Error Patent

A review of the record reveals there is no showing that Van Nortrick waived the sentencing delay required by La. C. Cr. P. art. 873, which provides that:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In the case sub judice , Van Nortrick was sentenced immediately following the denial of his motion for new trial. There is no showing on the record that he waived the delay required by La. C. Cr. P. art. 873.

In State v. White , 404 So.2d 1202, 1204 (La. 1981), the Louisiana Supreme Court explained that the failure of a trial court to observe the delay, or obtain a waiver thereof, following the denial of a defendant's motion for a new trial may be harmless error:

Although C.Cr.P. Art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.

In State v. White, supra , the trial court noted that the defendant had ample time to argue his motion for new trial, that there was a substantial time period from the date of the defendant's conviction to the date of sentencing, and that there were "no indications that defendant's sentence was hurriedly imposed without due consideration." Id. at 1204.

However, in State v. Augustine , 555 So.2d 1331 (La. 1990), the Louisiana Supreme Court found the error to be reversible, vacated the defendant's sentence, and remanded the matter to the trial court for resentencing. In doing so, the court noted that the case was distinguishable from State v. White, supra , because the defendant was complaining about the error and also alleged that his sentence was excessive. The court further noted:

For all we know, a reimposition might result in a sentence less than 40 years for this man, who was 18 years old at the time of the offense, who robbed his victim with a racing starter's pistol, and who did not have any prior convictions at the time of the offense.

In State v. Kisack , 2016-0797 (La. 10/18/17), 236 So.3d 1201, 2017 WL 4681356, the La. Supreme Court, noting its disapproval of the appellate court's finding of an "implicit" waiver of the delay, reversed a defendant's habitual offender adjudication and remanded the case for further proceedings based, in part, on the trial court's failure to obtain a waiver of the delay provided in La. C. Cr. P. art. 873. In doing so, the court noted:

Nonetheless, an error in failing to observe the statutory sentencing delay may still be found harmless. Under the circumstances presented here, in which a defendant who faced a sentencing range of 20 years to life and received the maximum sentence authorized for a fourth-felony offender for possession of a contraband cell phone, it is difficult to conclude the error is harmless.

Unlike the defendants in State v. Augustine, supra , and State v. Kisack, supra , Van Nortrick does not complain about the error. Additionally, as was the case in State v. White, supra , a substantial amount of time passed from the date of Van Nortrick's conviction, January 28, 2016, to the date of his sentencing on June 1, 2016, and a presentence investigation report was prepared. The record also reveals that the trial court spent a significant amount of time enunciating the reasons for the sentences imposed prior to their imposition. Furthermore, although Van Nortrick complains that his sentences are excessive, he did not receive the maximum sentence for either of his convictions. Accordingly, the circumstances presented here indicate that the error was harmless.

CONCLUSION

Therefore, for the stated reasons, Roy Arlen Van Nortrick's convictions and sentences are affirmed.

AFFIRMED.


author: PETTIGREW, J. CRAIN, J., dissenting.

text:
    Calandra F. CARR Individually and Louis Carr on Behalf of Minor Children Louis Carr, Jr. and Ciara Carr v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, Anthony Amedee, Ohio Security Insurance Company, Geaux Clean Express Car Wash, and Allstate Property and Casualty Insurance Company
    NO. 2017 CA 0589
    Court of Appeal of Louisiana, First Circuit.
    March 14, 2018
    CHRIS P. KEYSER, ADRAS PAUL LaBORDE III, BATON ROUGE, LA, ATTORNEYS FOR PLAINTIFFS-APPELLANTS, CALANDRA F. CARR, LOUIS CARR AND MINOR CHILDREN, LOUIS CARR, JR. AND CIARA CARR
    KEITH S. GIARDINA, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, OHIO SECURITY INSURANCE CO.
    STACEY MOAK, BREANN CRANE, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES, LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY AND ANTHONY AMEDEE
    JEANNE P. HENDERSON BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    BEFORE: GUIDRY, PETTIGREW, McCLENDON, CRAIN, AND PENZATO, JJ.
   PETTIGREW, J.

In this case, plaintiffs challenge the trial court's January 6, 2017 judgment, dismissing their claims against defendant, Ohio Security Insurance Company ("Ohio Security"), with prejudice. For the reasons that follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This matter arises in connection with a lawsuit filed by plaintiffs, Calandra F. Carr, individually, and Louis Carr, on behalf of their minor children, Louis Carr, Jr. and Ciara Carr, against defendants, Anthony Amedee and Amedee's liability insurer, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"); Geaux Clean Express Car Wash ("Geaux Clean") and its insurer, Ohio Security; and Allstate Property and Casualty Insurance Company ("Allstate") as the Carrs' UM insurers. According to the petition, Calandra was operating her 2008 Chevrolet Uplander van, with her minor children as passengers, and traveling through Geaux Clean directly behind a 2013 Ford F150 driven by Jeffrey Dykes. Amedee's 2006 Nissan Titan pickup truck was directly in front of Dykes' truck in the car wash. Amedee's truck "suddenly and without warning move[d] backwards striking [the Dykes] vehicle ..., causing the Dykes vehicle to then strike the front of the Plaintiffs' vehicle, causing the collision as well as the Plaintiffs' injuries, damages, and losses complained of herein." Plaintiffs asserted that Amedee's failure to maintain proper control of his vehicle and his careless operation of his vehicle were the proximate causes of the collision. Plaintiffs further alleged numerous acts of fault, gross and wanton negligence, and lack of skill by Geaux Clean as the proximate cause of the collision, i.e., failing to properly maintain the car wash; careless operation of the car wash and its mechanical systems; and inadequate supervision, training, and management of the car wash and its employees.

In response to plaintiffs' claims, Ohio Security filed a motion for summary judgment, alleging that plaintiffs are incapable of proving that their injuries, damages, and losses complained of were caused by Geaux Clean's careless operation of the car wash or its mechanical system. Rather, Ohio Security argued that plaintiffs' injuries were caused entirely by Amedee's accidental gear movement or negligence. Thus, Ohio Security maintained it was entitled to summary judgment as a matter of law.

In support of its motion for summary judgment, Ohio Security offered excerpts of deposition testimony from Calandra; Amedee; Cameron Brown (a former employee of Geaux Clean); and Dykes. Plaintiffs filed a memorandum in opposition to the motion for summary judgment. Plaintiffs alleged that there were still many unresolved questions regarding Geaux Clean's liability and that the conflicting testimonies of Amedee and Dykes required a credibility determination that was improper on summary judgment. In support of their position, plaintiffs relied on the deposition testimony submitted by Ohio Security, in addition to deposition testimony submitted by Amedee and Farm Bureau in their opposition to the motion for summary judgment. Plaintiffs also offered the East Baton Rouge Sheriffs Office incident report prepared by Corporal Nicholas Tullier, which was struck as inappropriate summary judgment evidence by the trial court at the hearing below.

Following a hearing, the trial court found no genuine issues of material fact. A written judgment was subsequently signed by the trial court on January 6, 2017, granting summary judgment in favor of Ohio Security and dismissing plaintiffs' claims against it with prejudice. The instant appeal by plaintiffs followed, wherein plaintiffs alleged the trial court erred as follows:

1. The Trial Court erred by granting summary judgment because there is evidence that Geaux Clean carelessly operated the car wash and negligently trained and/or supervised its employees.
2. The Trial Court erred by granting summary judgment because Anthony Amedee and Jeffrey Dykes presented conflicting testimony regarding whether Amedee was in reverse when he entered the car wash.
3. The Trial Court erred by striking Corporal Tullier's report as inadmissible summary judgment evidence when it falls under an exception to rule against hearsay.[ ]

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116, p. 4 (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1). If, however, the movant fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the movant is not entitled to summary judgment. LeBlanc v. Bouchereau Oil Co., Inc., 2008-2064, p. 4 (La. App. 1 Cir. 5/8/09), 15 So.3d 152, 155, writ denied, 2009-1624 (La. 10/16/09), 19 So.3d 481.

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Bouquet v. Williams, 2016-0134, p. 5 (La. App. 1 Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 2016-2077, 20162082 (La. 1/9/17), 214 So.3d 870, 871. Thus, appellate courts ask the same questions that the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La. 7/5/94), 639 So.2d 730, 750.

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 3 (La. App. 1 Cir. 5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Ed.ucation Partners, Inc., 2008-0734, p. 10 (La. App. 1 Cir. 12/23/08), 5 So.3d 225, 232. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La. 2/29/00), 755 So.2d 226, 236. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 2000-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

Ohio Security filed the instant motion for summary judgment seeking dismissal from this action on the basis that plaintiffs' injuries, damages, and losses complained of were caused entirely by the negligence or accidental gear movement of Amedee, and nothing else. Ohio Security introduced excerpts from several depositions in support of its motion for summary judgment, arguing there was no evidence that Geaux Clean had operated the car wash or its mechanical system in a careless manner.

According to Amedee's deposition testimony, he did not believe his vehicle was in reverse when he entered the car wash, but rather thought it was in neutral. Amedee indicated that he could only "make an assumption"

that he "must have been in reverse." Amedee further testified that if he did in fact put his vehicle in reverse when he entered the car wash, it was done in error on his part, not willingly. Amedee did acknowledge that this was the first time he had been to Geaux Clean and that he had never been to a similar car wash. Rather, Amedee testified that he usually had his car washed at facilities where he would drop his vehicle off and wait for it to be washed.

Dykes, the driver of the vehicle directly behind Amedee in the car wash, testified that he was observing Amedee's vehicle in the car wash. He initially testified as follows:

I had mentioned to my wife that it looked like his reverse lights were on, but it was only the left reverse light. And then whenever they started to pull him through, I told her, you know, maybe it's just his parking light-I mean, his running light, or maybe there's a short in a wire or something like that, because obviously, it was pulling him forward, but the light was on ....

However, when questioned further, Dykes clarified that the left rear light "was always red" and that he "didn't see any variation in the light color." Dykes went on to testify about what happened next as he observed it:

Q. So at this point, you're watching him, and he goes in because the thing is pulling him through, correct?
A. Correct.
Q. At that point, I imagine you pulled up for you to be the next person to go through?
A. I kind of waited because of the light being on, and whenever he passed the attendant, the attendant looked down and saw that the light was on, and he tried to notify another attendant, and when he couldn't get his attention, he went in-I guess the car washes have a little sidewalk on the side of them. He went in there, and then he come back out, and then that's when I pulled forward. So, normally, you're probably 6 to 8 feet between rear bumper and front bumper on a vehicle when you go-pretty close. And this time, I was probably a car length and a half behind him, car length, car length and a half.
Q. Did you have any conversations with this attendant?
A, No.
Q. So these things that you were talking about, as far as the two attendants talking to each other, did you hear them saying anything?
A. I did not. I don't-he didn't really talk to him. He couldn't get the other one's attention. I just saw him trying to flag him down after he looked down at the light.
Q. It's pretty noisy right there?
A. Correct. And that's probably why he didn't hear him. Just guessing.

The only representative from Geaux Clean to testify was Brown, the site manager of the car wash at the time of the incident. According to Brown's deposition testimony, although he was not working at the time of the incident, he was called immediately to handle the situation and was one of the few people to actually see the security footage of what happened. Brown stated he could see all three of the vehicles in question being loaded into the car wash. And, as Amedee's vehicle entered the exit and the rollers were about to push the vehicle out of the car wash bay, Brown "saw the reverse lights [of Amedee's vehicle] come on." Brown indicated that the reverse lights were not on when Amedee entered the car wash. Brown described Amedee's vehicle as "coasting backwards" as its ball hitch impacted the Dykes' vehicle. This impact caused the Dykes' vehicle to jump the two rollers behind his vehicle, resulting in the collision with plaintiffs' vehicle.

Brown further testified regarding the operation of the car wash and the training of the attendants. With regard to the policies concerning the day-to-day operation of the car wash, Brown indicated that there was no written employee handbook, although he was in the process of trying to create one during his time at Geaux Clean. Rather, Brown stated that everything the attendants knew about the operation of the car wash and troubleshooting was from on-the-job training. When asked to describe how the car wash worked, Brown testified as follows:

Q. ... Can you just tell me generally how the car wash works like from the time a car pulled up, what goes on?
A. Okay. Once the car pays for their car wash at the pay station and that swing arm raises, they pass over-there is a magnetic strip embedded in the concrete that actually senses them drive over, so it enters their wash into the wash system. And when they pull up, the attendant loads them onto the conveyor rail. And we pull them up past a certain point to give enough space from where the actual rollers deploy that will push the car through the car wash.
So once we motion for them to stop, we have signs, you know, that instruct them to place their vehicle in neutral, foot off the brake and, I believe, windshield wipers was the other thing on the sign.... And the computer system will deploy two set[s] of rollers behind the rear tire and it begins pushing the vehicle through the car wash.
....
Like I said, the system sends two [sets of rollers] at a time so that in the event-like I said, there is no human error on the part of the car wash, the system is computerized. So in the event that the driver puts their foot on the brake, you know, has-something goes wrong and they jump that first roller, there is a second roller to continue pushing them to prevent from them making contact with the vehicle behind them. So it is kind of like a built in fail safe to keep the system moving, because the worst thing that can happen in the car wash is people stopping, because the system is moving and once things stop moving, it doesn't go well.
Q. Does the car wash-can it operate in reverse?
A. No.
Q. Okay. So the conveyor belts can't move backwards?
A. It has to go one way. And once it gets-those rollers get to the end of the tunnel, they flip underneath a steel plate and they just loop down and go back underneath the conveyor back to the end where they are sent back up.
....
Q. Now, about how much space did the attendants leave in between cars?
A. We tried to give about 10 feet, 8 to 10 feet.
Q. Now, is an attendant-are they looking to see that the drivers are obeying, that they are taking their hands off, and that they put their car in gear?
A. Generally, we can look inside there and we will make sure, you know. Because usually if something goes wrong, it will go wrong fairly soon within someone actually entering the wash bay, because we had a large problem with people leaving their vehicle in drive just as they began, just not thinking. So they will put their foot off of the brake and they would start idling forward. We would have to make sure they stop.
So, generally, they would look to make sure that that person did something with their gear shift, you know, that would tell us that they were following our directions.
Q. And if they observed someone going through the car wash in the wrong gear, for example, their brake lights are on or their reverse lights on, what would they do?
A. We have an emergency stop on the keypad. It is a control box right near where the windmaster sign is, right in front of it near the office window, and they hit that emergency stop and usually run into the tunnel to make sure that, you know, they don't impact somebody in front of them. We are hands on the window trying to make sure that they put it in neutral and make sure their foot is off the brake.
Q. And how did they know to do that, are they trained with those processes?
A. Generally, yes. We try to make sure that they do know how to troubleshoot. Because, like I said, dealing with vehicles in an automatic car wash setting, it leaves a lot that can happen. And, like I said, it is hard to blame, you know, if a woman is in a car and she has got three kids screaming in the backseat and she forgets to put her vehicle in neutral, it is life, it happens. So we try to make sure that they understand that there are times where ... you are going to have to-when you are on duty sending vehicles through the wash and it is your responsibility because when that person is [there] by themselves or with two people ... so they did understand that there were going to be times where they had to go in there and make sure people were doing what they were supposed to be doing, which is why we had that rule, especially if there were two people there, we had somebody walking cars through the tunnel almost constantly just to maintain, you know, visual contact to make sure they don't see brake lights in the tunnel, and so they can stop-stop things. We have another emergency stop inside the tunnel so they can stop things before something happens, which is ultimately our goal was to stop things before it becomes obvious.
....
Q. If an attendant saw a vehicle going in in the wrong gear and they didn't push the emergency stop, should they have allowed another vehicle to enter?
A. No.

Ohio Security argues on appeal that plaintiffs presented no evidence to support their claims against Geaux Clean. Ohio Security maintains that plaintiffs' case was based on nothing more than allegations and that plaintiffs "failed to submit any actual, competent, sworn testimony to establish that the employees were not properly trained, or that any vehicle entered the car wash in reverse or that any employee could have seen the Amedee vehicle move in reverse when it did." A review of the deposition testimony in the record clearly reveals otherwise.

Amedee has no idea how this accident happened. He knows of nothing that he did to actually cause his vehicle to go into reverse, but can only assume that he put his vehicle into reverse at some point. Dykes testified that he saw the left rear light of Amedee's vehicle illuminated red when it entered the car wash. Moreover, Dykes indicated that as Amedee's vehicle passed the car wash attendant, it appeared to him that the attendant noticed the light on Amedee's vehicle and tried to flag down another attendant, who was further into the car wash at the time, but to no avail. This testimony, coupled with Brown's testimony concerning how the attendants were trained to press the emergency stop button if they observed a vehicle going through the car wash in the wrong gear, demonstrates that this matter was not appropriate for summary judgment.

Based on our review of the record, it is apparent the trial court improperly weighed the evidence in finding Geaux Clean bore no fault for the cause of this accident. As previously indicated, any doubt as to a dispute regarding a material issue of fact must be resolved against granting a motion for summary judgment and in favor of a trial on the merits. See Willis, 2000-2507 at 2, 775 So.2d at 1050. Moreover, in deciding a motion for summary judgment, the trial court cannot make credibility determinations, evaluate testimony, or weigh evidence. See Smith, 93-2512 at 27, 639 So.2d at 751. In the instant case, the question is whether Geaux Clean failed to maintain the car wash, carelessly operated the car wash, or failed to adequately train and supervise its employees. The evidence before the trial court sufficiently raised genuine issues of material fact for the trier of fact to consider when determining whether the injuries suffered by plaintiffs were caused by any negligence on the part of Geaux Clean. These factual issues cannot be resolved without weighing the evidence and making credibility determinations, which are matters for the fact finder. In view of these unresolved issues of material fact, the trial court erred in granting summary judgment in favor of Geaux Clean, and the summary judgment must be reversed.

DECREE

For the above and foregoing reasons, we reverse the January 6, 2017 judgment rendered in favor of Ohio Security Insurance Company and remand for further proceedings consistent with this opinion. We assess all costs associated with this appeal against defendant, Ohio Security Insurance Company.

REVERSED AND REMANDED.

Penzato, J. concurs

Crain, J. dissents w/ assign reasons

Guidry, J. concurs

CRAIN, J., dissenting.

I find that Ohio Security met its burden of proof on the motion for summary judgment by establishing a lack of support for plaintiffs' claim that Geaux Clean caused the accident. The burden of proof then shifted to plaintiffs to produce factual support sufficient to establish the existence of a genuine issue of material fact or that Ohio Security was not entitled to judgment as a matter of law. Without establishing the materiality of the facts alleged to be in dispute, plaintiffs failed to carry their burden of proof. I would therefore affirm the judgment of the trial court.

      In opposition to the motion for summary judgment, Amedee and Farm Bureau introduced excerpts of deposition testimony from Amedee, Dykes, and Brown, some of which was repetitive of what was offered by Ohio Security.

      In addition to the appellate brief filed by plaintiffs in this matter, the other party defendants in this case-Allstate, and Amedee and Farm Bureau (collectively referred to here as "Farm Bureau")-also filed briefs with this court. However, these briefs were filed as appellee briefs, rather than appellant briefs. Nonetheless, Allstate and Farm Bureau both argue in brief that the trial court's judgment was in error and should be reversed, basically adopting the plaintiffs' argument on appeal. We note that as neither Allstate nor Farm Bureau has appealed or answered the appeal in this case, neither party is entitled to any relief on appeal. La. Code Civ. P. art. 2133 ; see Augustus v. St. Mary Parish School Bd., 95-2498, p. 16 (La. App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156.

      Because we are reversing the summary judgment rendered in this matter, we do not reach consideration of this issue on appeal.

      We note that at the time of the summary judgment hearing below, the security footage was no longer available because the building had been struck by lightning.