author: PETTIGREW, J.

text:
    STATE of Louisiana v. Jerry Christopher REED
    NO. 2016 KA 1201
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered April 12, 2017.

      HILLAR C. MOORE III, DISTRICT ATTORNEY, KORY J. TAUZIN, DYLAN C. ALGE, ASSISTANT DISTRICT, ATTORNEYS BATON ROUGE, LA, ATTORNEYS FOR STATE OF LOUISIANA
    FREDERICK KROENKE BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE JERRY REED
    BEFORE: PETTIGREW AND MCDONALD, JJ., AND CALLOWAY, J. Pro Tem.

      . Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

|2The defendant, Jerry Christopher Reed, was charged by bill of Information with simple burglary of an inhabited dwelling, in Violation of La. R.S. 14:62.2, and he pled not guilty. Subsequently, the trial court granted .the defendant’s motion to quash the bill of information based on untimely commencement of trial. The State now appeals, assigning error solely to the trial court’s ruling on the motion to quash. For the following reasons, we reverse the granting of the motion to quash and remand for further proceedings.

STATEMENT OF FACTS

The bill of information charged the defendant with committing the instant offense on or about August 28, 2008. Because the motion to quash was granted, there was no trial and, thus, the facts in the matter were not developed. Further, the facts of the offense are not pertinent to the issue raised on appeal.

MOTION TO QUASH

In its sole assignment of error, the State argues that the time limitation for commencement of trial was interrupted by the defendant’s failure to appear for trial on July 25, 2013, after having received actual notice thereof on April 4, 2013. The State further argues that the defendant’s subsequent motion to quash was premature. In support of its argument, the State relies upon La. Code Crim. P. art. 579(A)(3) and (C). The State contends that the defendant and his attorney did not provide notice to the trial court of the defendant’s whereabouts. The State argues that the interruption of prescription that occurred on July 25, 2013, continued until the defendant’s next court appearance on March 20, 2014, and that the State therefore had until March 20, 2016, to commence trial. The State challenges the trial court’s finding that the State should have known the defendant’s whereabouts and/or located the defendant on July 25, 2013, when the defendant failed to appear for trial due to his incarceration in another parish on an unrelated matter. The trial court thus found that the interruption of prescription ceased, and the time limitation for the commencement of trial began to run anew on July 25, 2013. Given that finding, the State argues that the pro se motion to quash filed on April 1, 2015, qualified as a preliminary plea, which pursuant to La. Code | sCrim. P. art. 580(A), suspended the running of the time limitation. The State concludes that under multiple scenarios, the time for the commencement of the defendant’s trial had not lapsed by the time he filed his pro se motion to quash, requiring reversal of the ruling by the trial court.

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo Standard of review. See State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501, 504.

Louisiana Code of Criminal Procedure article 578(A)(2) provides that a trial of noncapital felonies must be held within two years from the date of the institution of the prosecution. “Institution of prosecution” means the finding of an indictment, or, as in this case, the filing of a bill of information, or affidavit, which is designed to serve as the basis of a trial. La. Code Crim. P. art. 934(7); State v. Cotton, 2001-1781 (La.App. 1 Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La. 12/13/02), 831 So.2d 982. The period of time in which trial must commence established by Article 578 shall be interrupted if the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record. La. Code Crim. P. art. 579(A)(3). A motion to quash is the proper vehicle to assert that the time limitation for the commencement of trial has expired. La. Code Crim. P. art. 532(7). Upon expiration of this time period, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. La. Code Crim. P. art. 581. (This right of dismissal is waived unless the motion to quash is made prior to trial.)

When a defendant has brought an apparently meritorious motion to quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or a suspension of time such that prescription will not have tolled. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286; State v. Lathers, 2005-0786 (La.App. 1 Cir. 2/10/06), 924 So.2d 1038, 1043, writ denied, 2006-1036 (La. 11/3/06), 940 So.2d 659. ^Ordinarily, to satisfy its burden in establishing that an interruption or suspension of the prescriptive period has occurred, the State is required to “exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Chadbourne, 98-1998 (La. 1/8/99), 728 So.2d 832 (per curiam). However, the Louisiana Supreme Court in State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722 (per curiam), resolved a split among the circuits and firmly held that “La. C.Cr.P. art. 579(A)(3) does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice.” Romar, 985 So.2d at 726..

’The periods of limitation established' by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. La. Code Crim. P. art. 579(B). When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the State have less than one year after the ruling to commence the trial. La. Code Crim. P. art. 580(A). For purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial, including properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam). When the prescriptive period is suspended, the running of the time period resumes when the court rules on the motions. Lathers, 924 So.2d at 1043.

Herein, the defendant was charged with a noncapital felony, thus the State was’required to commence trial within two years of the date of the institution of the prosecution. The bill of information was filed on Ma;y 31, 2012, and the defendant’s motion' to quash based on prescription, which was apparently meritorious, was filed pro se on April 1, 2015, and by counsel on September 14, 2015. Prior to the filing'of the motion to quash, the defendant was transported from jail and appeared for a status hearing on April 4, 2013, during which he received actual notice of a court date set’for LJuly 25, 2013. As previously stated herein, despite having actual notice, the defendant did not appear on July 25, 2013. The deputy present in court on that date noted that the defendant was on the jail list but that he was not located in jail. The defense attorney indicated that the defendant had bonded out since his appearance on April 4, 2013. The trial court ordered that a bench warrant be issued. The bench warrant was recalled when the defendant appeared on March 20, 2014, and informed the trial court that he had been arrested on July 18, 2013, in West Baton Rouge Parish, where he was still being housed. ,

The issue presented herein is whether prescription was interrupted under • La. Code Crim. P. art. 579(A)(3) as a result of the defendant’s failure to appear pursuant to actual notice and, if so, whether the interruption rendered the defendant’s subsequent motion to quash premature.

The record reveals the following pertinent timeline:

• On May 31, 2012, the State filed the • bill of information instituting prosecution.
• On December 4, 2012, the defendant filed a motion for preliminary examination.
• Oh March 26, 2013, the trial court signed the State’s motion and order for return of accused (housed at Avo-yelles Correctional Center), to produce the defendant for the April 4, 2013 court date.
• On April 4, 2013, the defendant appeared for a reassigned status hearing and a hearing on the motion for preliminary examination. The trial court ruled on the motion for preliminary examination, finding probable cause to proceed to trial. The defendant received actual notice of a July 25, 2013 court date for motions and/or trial.
• On July 25, 2013, the defendant did not appear. The trial court ordered that a bench warrant be issued.
• On March 20, 2014, the defendant appeared, informing the trial court that he did not appear in July because he was arrested on a theft Charge on July 18, 2013, in West Baton Rouge Parish, where he was still housed at that time. The trial court recalled the bench warrant, and the matter was reassigned for motions on June 18, 2014.
• On June 18, 2014, the defendant appeared for the hearing on motions, at which time he received actual notice of a September 17, 2014 court date for a status hearing.
• On September 17, 2014, the defendant failed to appear; the clerk noted that he was not on the jail list. The trial court issued a bench warrant.
Is* On November 11, 2014, the defendant filed a pro se motion to enter a plea of guilty in absentia and resolution of detainer/attachment.
• On December 3, 2014, the defendant appeared in court, stated that he had been in jail at the Catahoula Correctional Center “since April.” The trial court recalled the bench warrant and a status conference was set for March 17, 2015.
• On March 17, 2015, the defendant appeared in court for the status conference. On joint motion of the State and the defense counsel, the matter was set for trial on September 14, 2016, and for pretrial conference on September 3, 2015.
• On April 1, 2015, the defendant filed a pro se motion to quash based on prescription and a separate pro se motion for bond reduction.
• On September 3, 2015, the defendant appeared for pretrial status conference on the instant Charge. Defendant was also arraigned on the new Charge of theft of goods. The trial court informed the State and the defense attorney of the defendant’s earlier filed pro se motion to quash. It was decided that the motion to quash would be taken up on the same date that was set for trial, September 14, 2015.
• On September 14, 2015, the defense attorney filed a counseled motion to quash on behalf of the defendant. The court noted that the motion seemed meritorious and re-set a hearing date thereon for December 8,2015.

A hearing on the motion to quash took place on December 8, 2015. At the hearing, Officer Troy Dickerson, the records officer at the West Baton Rouge Parish (WBRP) Sheriffs Office, testified that according to his records, the defendant was arrested and booked into WBRP prison on July 18, 2013, for a felony theft Charge that allegedly occurred that day. In arguing that the bill of information should be quashed, the defense attorney noted that it was filed more than three and one-half years prior, and the defendant was incarcerated at the time of the issuance of a bench warrant and could not get himself to court. The defense attorney argued that the time between the issuance of bench warrants and the recall of same should not extend the time limitation. The State argued that it had no idea where the defendant was on July 25, 2013, and it did not learn of his whereabouts until the WBRP prison transported him for his appearance on March 20, 2014. The State noted that prior to the July 25, 2013 court date, it filed a motion to transport the defendant from his last known place of | incarceration. The trial court took the matter under advisement, and subsequently granted the motion to quash with written reasons.

In its written reasons for the ruling, the trial court found that the defendant “acted in contumacious disregard for this court’s notice to appear on July 25, 2013, as he committed an intentional crime, which the State’s witness and ‘updated rap sheet’ show.” In addition to finding that the time period in which to commence trial was interrupted on July 25, 2013, when the defendant failed to appear, the trial court found that the “for cause” suspension necessarily and simultaneously ceased when the defendant failed to appear on that date. In ruling that the time limitation began to run anew from that date, the trial court stated the following:

However, the “cause” of the interruption, though contumacious, necessarily ended when Defendant failed to appear on July 25, 2013. Mr. Reed, now incarcerated, and presumed innocent, was not held in contempt for not appearing on July 25, 2013. He was incarcerated in West Baton Rouge and presumed innocent of any charges. Prescription began anew on that date because of the State’s evidence that Defendant pled guilty, showing he did willfully violate an order to appear.

The trial court additionally found that a subsequent “failure to appear” by the defendant on September 17, 2014, after having received actual notice of that court date on June 18, 2014, did not cause an interruption of prescription at all. On September 17, 2014, when the defendant failed to appear, the trial court ordered that a bench warrant be issued. Thereafter, the defendant appeared on December 3, 2015, and informed the trial court that he had been imprisoned in Catahoula Parish. The trial court recalled the bench warrant and did not hold the | ^defendant in contempt. In finding that the September 17, 2014 failure to appear did not cause another interruption, the trial court stated, “This literal ‘failure to appear’ was not ‘his’. It was the State’s.”

Regarding the actions taken by the defendant after he failed to appear in 2013, the trial court stated, “the Defendant’s actions, save the July 25, 2013 interruption, clearly reflect attempts to expedite, rather than hinder, the prosecution in this matter.” The trial court further noted that the defendant “was brought to the attention of ‘the authorities’, of both parishes, and the State,” and was therefore locatable in actuality, not just “in theory” (comparing the finding in Romar that the defendant therein was “at least in theory, locatable.” Romar, 985 So.2d at 727). Thus, the trial court ruled that the State had until July 25, 2015, to commence trial. The trial court found that the defendant’s pro se motion to quash filed on April 1, 2015, was not a preliminary plea that would further extend the time limitation.

Specifically finding that the pro se motion to quash was not proper and did not delay the trial, the trial court stated as follows:

It was on March 7, 2015 that this matter was first set for trial.[] On that date, the matter was set for a pre-trial status conference on September 3, 2015 and for trial on September 14, 2015. Mr. Reeds [sic] pro-se Motion entitled ‘Motion to Quash’, filed April 1, 2015, did not impact prescription, despite its title. The pro-se ‘Motion to Quash’ did not effect a delay of the trial date set on March 7, 2015.
It was another attempt to alert himself to the attention of the authorities and expedite the proceedings. What the defendant requested this Court Order in that improper “Motion”, was to be released from a bond Obligation. This is clarified by the State’s filing of a “Motion to Revoke/Increase the Bail” on August 21, 2015 and the Defendant’s actions in response to that Motion.

The trial court concluded that the case had prescribed by September 14, 2015, the previously scheduled trial date and the date on which the defense attorney filed the counseled motion to quash.

| qHerein, the State did not bear a duty under La. Code Crim. P. art. 578 to monitor the status of the defendant whose arrest report shows a very lengthy history of being arrested and released by various agencies in Louisiana. State v. Baptiste, 2008-2468 (La. 6/23/10), 38 So.3d 247 (per curiam). Thus, we agree with the trial court’s finding that an Interruption of the time limitation occurred before the expiration of the initial two-year limitation when the defendant failed to appear on July 25, 2013, pursuant to actual notice. Although the trial court found that the cause of interruption ceased on that date, in accordance with the Louisiana Supreme Court’s holdings in Baptiste and Romar, the State had two years from when it received actual notice of the defendant’s whereabouts to prosecute the defendant regardless of whether the defendant was locatable prior thereto. See Baptiste, 38 So.3d at 248; Romar, 985 So.2d at 727-28.

Nonetheless, even if we assume that the time limitation immediately began to run anew on the date the defendant failed to appear, the State had until July 25, 2015, to commence trial. With regard to the defendant’s pro se motion to quash filed April 1, 2015, prior to the expiration of the post-interruption two-year time period, we disagree with the trial court’s treatment of the motion. Lower courts must accept and consider pro se filings from represented defendants in a pre-ver-dict context whenever doing so Imwill not lead to confusion at trial. State v. Melon, 95-2209 (La. 9/22/95), 660 So.2d 466, 467.

As detailed above, the trial court considered the pro se motion as a motion to reduce or eliminate bond, as opposed to a motion to quash the bill of information, and found that it did not delay the trial. A motion to reduce bond is not a preliminary plea that operates to suspend the two-year time limitation where the motion does not concern evidentiary matters bearing on the offense and is unlikely to have caused any delay in the matter proceeding to trial. State v. Barnett, 50,213 La.App. 2 Cir. 8/12/15, 174 So.3d 748; State v. Bryant, 2011-1363 (La. App. 1 Cir. 02/10/12) (unpublished) (2012 WL 602426). In this case, the defendant filed a pro se motion to reduce bond simultaneous with the filing of the separate pro se motion to quash. The defendant’s pro se motion to quash is not only labeled as a motion to quash, the motion is in fact a proper motion to quash, which cites the applicable law regarding the time limitation for the commencement of trial and expiration thereof. The motion, in detail, specifically alleges that the time limitation for the commencement of trial has expired. Thus, considering that it would not lead to any danger of confusion, the trial court was required to consider the motion in its pre-verdict context and erred in disregarding the effect of the motion based on its plain language.

By its very terms, and as the Louisiana Supreme Court recognized in Brooks, Article 580 provides that a properly filed motion to quash is a preliminary plea that suspends the time periods set forth in Article 578. Herein, at the time the defendant properly filed his pro se motion to quash on April 1, 2015, the two-year time limitation for commencement of his trial had not yet expired. The pro se motion to quash further suspended the running of the period of limitation. Thus, the trial court erred in concluding otherwise and in dismissing the bill of information. For the reasons set forth above, we find the State’s' argument has merit and that the trial court abused its discretion in granting the motion to quash.

[^CONCLUSION

Accordingly, we vacate the quashing of the bill of information, reinstate the Charge against the defendant, and remand the case for further proceedings. Prescription will Start to toll again once the reversal of the trial court’s ruling becomes final. See State v. Brocato, 99-1620 (La.App. 4 Cir. 09/15/99), 744 So.2d 178, writ denied, 99-2943 (La. 12/17/99), 751 So.2d 888. The motions to quash the bill of information filed by the defendant, pro se and counseled, are denied, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Calloway, J. dissents.

      . The record is unclear as to whether the July 25, 2013 court date was set for pretrial motions and/or to commence trial.

      , Officer Dickerson testified that in that case, the defendant pled guilty to a misdemeanor offense on January 21, 2014, and remained imprisoned in WBRP until April 21, 2014, based on a parole violation.

      . The motion and order for return of accused in the instant record, signed by the trial court judge on March 26, 2013, states that the defendant was being housed in the Avoyelles Correctional Center at that time, and Orders the Department of Corrections to produce the defendant for the April 4, 2013 court date, on which the defendant appeared and received actual notice to appear in July. Based on the record, during the interim of actual notice in April, to the failure to appear on July 25, 2013, the defendant was released from Avo-yelles Correctional Center and was thereafter (on July 18, 2013) arrested and jailed in West Baton Rouge Parish.

      . We note that on June 18, 2014, the State indicated that it was ready to set the matter for trial, but was unopposed to the defense attorney’s request to set the next court date for status conference as opposed to trial.

      . While the trial court references March 7, 2015, the record reflects the trial date of September 14, 2015, was set on joint motion of the parties when the defendant appeared on March 17, 2015, for a reassigned status conference.

      . Although we fail to see the distinction made by the trial court between the defendant's failure to appear pursuant to actual notice on July 25, 2013, and his subsequent failure to appear pursuant to actual notice on September 17, 2014, we need not reach that issue herein as we find that the interruption that occurred on July 25, 2013, extended the time limitation for the commencement of trial such that it had not expired when the defendant filed a proper pro se motion to quash, further extending the time limitation.

      .On May 23, 2013, the legislature enacted Subpart C of Article 579, which became effective on August 1, 2013, after the instant Charge against the defendant was instituted. See 2013 La. Acts, No. 6, § 1, In concluding that prescription immediately began to run anew from the date of the defendant’s failure to appear on July 25, 2013, the trial court ruled that Subpart C is inapplicable to this case. Subpart C states that if the defendant fails to appear pursuant to any Provision of Article 579, and is subsequently arrested, the period of limitation shall not commence to run anew until the defendant appears in open court or the district attorney has notice of the defendant’s custodial location. It defines notice as follows: "[f]iling in the court record by either the defendant or his counsel advising the court of his incarceration with a copy provided to the district attorney and certification of notice provided to the district attorney.” La. Code Crim. P. art. 579(C)(1). Below and herein on appeal, the State cited State v. Stewart, 2015-0135 (La.App. 4 Cir. 9/9/15), 176 So.3d 465, 468-69, writ pending, 2015-1845 (La. 12/16/16), 211 So.3d 1164, 2016 WL 7638365, in arguing that Subpart C retroactively applies to the instant case. The trial court found Stewart distinguishable, and noted its disagreement with the Fourth Circuit’s interpretation and retroactive application of Subpart C. Because for reasons discussed herein, we disagree with the trial court’s treatment of the defendant's pro se motion to quash herein, there is no need for this court to determine whether the cause of interruption continued beyond the date of the defendant’s failure to appear. Thus, this court need not address the issue of the interpretation and application of Subpart C of Article 579 to the instant case.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Calvin ARRANT, Plaintiff-Appellee v. WAYNE ACREE PLS, INC., and Louisiana Workers’ Compensation Corporation, Defendant-Appellant
    No. 51,238-WCA
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2017

      JOHNSON, RAHMAN & THOMAS, By: Jeffrey J. Warrens, Counsel for Appellant
    STREET <& STREET, By: C. Daniel Street, Counsel for Appellee
    Before BROWN, DREW, and LOLLEY, JJ.
   DREW, J.

hln this workers’ compensation proceeding, the employer and its insurer appeal the award of attorney fees and the assessment of a penalty for its failure to approve a lumbar spine MRI recommended by the claimant’s physician. The claimant has answered the appeal, contending that the attorney fee awarded was abusively low, as well as to seek additional attorney fees for this appeal.

We amend the judgment to increase the attorney fee award to $7,500, and affirm the judgment as amended. We also award an additional attorney fee of $2,500 to claimant for work on this appeal.

FACTS

Calvin Arrant, who was employed by Wayne Aeree PLS, Inc., as a surveyor, was injured on June 30, 2012, when his work vehicle was struck by an 18-wheeler. Arrant testified that when he told Wayne Aeree after the accident that his back was hurting, Aeree said they would discuss it when Arrant returned to work following the weekend. Aeree denied that Arrant complained of injury after the accident. Arrant further testified that upon returning to work on Monday, he told Aeree that he would like to see a doctor and have his back examined, but Aeree replied that he did not have his insurance information. Aeree testified that Arrant did not start complaining about his back until August 1, 2012, and even then, he did not ask to see a doctor.

Arrant met with attorney Philip Deal on August 2, 2012. Arrant told Deal that his condition had worsened as he continued to work. Arrant reported that his lower back was hurting, he was beginning to have shooting pain down the back of his legs into his feet, and he had tingling all the way [¡.down to his toes. Based on Deal’s experience handling personal injury cases, he felt that Arrant’s complaints indicated a lumbar disc injury, and that Arrant needed to see a doctor and undergo a lumbar MRI to determine if he was experiencing nerve damage. Deal contacted the office of orthopedic surgeon Dr. Douglas Brown, and an appointment was scheduled for August 16.

Deal instructed Arrant on August 2 to tell Aeree that he had scheduled an appointment with Dr. Brown because his back was getting worse and he needed medical treatment, and that he needed the name of Acree’s workers’ comp insurer. Because Deal, Arrant, and Dr. Brown’s office were unsuccessful in obtaining the name of Acree’s workers’ comp insurer, Deal had to provide a $600 check to Dr. Brown in order for Arrant to be examined as scheduled. Arrant received a couple of injections from Dr. Brown during the August 16 examination. Dr. Brown also recommended a lumbar MRI because he suspected that Arrant had a lumbar disc injury.

LWCC, Acree’s insurer, denied the request for the lumbar MRI. On September 17, 2012, the medical director of the Office of Workers’ Compensation (“OWC”) reviewed the request and also denied it. Dr. Brown continued to see Arrant, who underwent a few weeks of physical therapy. Dr. Brown again requested a lumbar MRI, which was again denied by LWCC. The OWC medical director denied the second request on October 18, 2012. Deal paid $800 for the MRI to be performed because he remained concerned about possible nerve damage.

On May 1, 2013, Arrant filed a Form 1008 asserting that Aeree and LWCC had refused to provide a lumbar MRI and a left SI nerve block recommended by Dr. Brown. Arrant sought penalties and attorney fees. 1 Arrant filed two amended 1008s concerning his initial examination by Dr. Brown, the recommended MRI for which Deal had to pay $800, and examination by his neurosurgeon of choice, Dr. Bernie McHugh.

On July 2, 2013, LWCC and Aeree filed an answer asserting that Arrant did not need its approval to see Dr. Brown since he had the right to choose his treating physician without prior approval, that LWCC was not required to pay the $600 deposit for Dr. Brown, and it had paid for all of his authorized medical care.

On January 9, 2014, the date for a hearing on pending matters in the case, Aeree and LWCC filed the exception of peremption, or alternatively, prescription. They contended that the disputed claim for compensation, filed on May 1, 2013, was untimely since under the Utilization Review Procedures, Arrant had 15 days from the date that the medical director mailed his determination to file his disputed claim for compensation. The WCJ referred the exception to the merits.

On April" 30, 2014, the WCJ rendered judgment that: (1) LWCC timely paid for the initial examination 'by Dr. Brown; (2) the exception of prescription was granted because Arrant failed to timely file his appeal of the medical director’s- decision affirming .LWCC’s denial of authorization for-the lumbar MRI; and (3) LWCC 'gave timely authorization for Arrant to be examined by Dr. McHugh. .

Arrant appealed. While his appeal was pending, Arrant died, and his wife and two children were substituted as claimants.

This court affirmed the judgment. Regarding whether Arrant’s filing of the 1008 to review the medical director’s determination was timely, this court determined that the WCJ did not err in applying the 15-day period set Lout by the OWC director in Title 40, Part I, Chapter 27, Section 2715(B)(3)(f) of the Louisiana Administrative Code. Arrant v. Wayne Acree PLS, Inc., 49,698 (La.App. 2 Cir. 4/15/15), 164 So.3d 321.

The supreme court reversed and vacated that part of the judgment granting the exception of prescription, finding that the director lacked the authority to promulgate a rule that shortened the prescriptive period for appealing the medical director’s decision. The matter was remanded for the WCJ to consider the merits of Arrant’s claim that the medical director failed to properly apply the medical treatment guidelines when denying the lumbar MRI requested by Dr. Brown. Arrant v. Wayne Acree PLS, Inc., 2015-0905 (La. 1/27/16), 187 So.3d 417.

On remand, the WCJ concluded that there was sufficient evidence in the medical records to support granting the second MRI request. The WCJ reversed the decision of the director and awarded Arrant $800 as reimbursement for the MRI. It also awarded Arrant a penalty of $2,000 and an attorney fee of $5,000. Aeree and LWCC appealed the assessment of the penalty and award of attorney fees. Arrant answered the appeal seeking an increase in the attorney fee award as well as an additional attorney fed for this appeal.

DISCUSSION

Entitlement to penalties and attorney fees

La. R.S. 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer’s or insurer’s failure to authorize medical treatment. La. R.S. 23:1201(F)(2) states that this Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control,

|fiThe WCJ’s grant or denial of penalties and attorney fees under the workers’ compensation statute is subject to manifest error review. Thomas v. Browning-Ferris Inc., 2004-1584 (La. 2/25/05), 894 So.2d 1091; Tingle v. Page Boiler, Inc., 50,373 (La.App. 2 Cir. 1/13/16), 186 So.3d 220.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Koenig v. Christus Schumpert Health Sys., 44,244 (La.App. 2 Cir. 5/13/09), 12 So.3d 1037; Howard v. Holyfield Const., Inc., 38,728 (La.App. 2 Cir. 7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La. 1/7/05), 891 So.2d 684. Reasonably controverting a claim means that the employer or insurer has sufficient factual and medical information to reasonably counter that provided by the claimant. Maxwell v. Care Solutions, Inc., 50,088 (La.App. 2 Cir. 9/30/15), 179 So.3d 650, writ denied, 2015-1954 (La. 11/30/15), 184 So.3d 36; Massey v. Fresenius Med. Care Holding, 49,407 (La.App. 2 Cir. 11/19/14), 152 So.3d 1019, writ denied, 2014-2650 (La. 03/16/15), 160 So.3d 1290.

Arrant complained of low back and leg pain and tingling in his leg when he first met with Dr. Brown on August 16. Dr. Brown reviewed an X-ray of the lum-bosacral spine, but did not mention any perceived abnormality. Dr. Brown ordered four weeks of physical therapy, and administered two injections.

Dr. Katharine Rathburn, LWCC’s medical director, denied the first MRI request because: (1) there were no abnormal physical findings to be devaluated by MRI; (2) there was no report of any equivocal findings on X-ray to be evaluated by MRI; (3) Arrant was working and fit for duty, and there was no dysfunction to be evaluated by MRI; (4) Arrant was not a candidate for invasive treatment, so there was no indication that MRI findings would change the current plan of treatment; and (5) while Arrant was scheduled for physical therapy for rehabilitation, he had not received conservative treatment to date, so the MRI request was not based on failure to progress in therapy.

The rationale for the first denial by the OWC’s medical director was that only one record, dated August 16, 2012, had been submitted, and it showed a negative/normal lumbar exam, and normal strength and reflex, and no active therapy was noted. The director wrote that this documentation did not support an approval under the Medical Treatment Guidelines (“MTG”), and cited the guideline that while imaging studies are generally accepted, well-established and widely used diagnostic procedures, in the absence of myelo-pathy, progressive neurological changes or incapacitating pain, imaging is usually not appropriate until conservative therapy has been tried and failed.

Arrant was treated by Dr. Brown’s office next on September 7 and 25, 2012. Arrant reported that he was still having significant low back pain with radiculopa-thy down his legs and his buttocks. He also reported having left leg weakness. Knee jerk and ankle jerk reflexes were abnormal. Dr. Brown took Arrant off work for three months, and again requested an MRI.

In denying the second MRI request, Dr. Rathburn stated that it was being denied for the same reasons as the first because the additional visit did not provide documentation warranting her to change her decision. Dr. LRathburn noted: (1) there were no abnormal objective physical findings to be evaluated; (2) there was no equivocal finding on X-ray; (3) there was no dysfunction to be evaluated since Arrant worked three months on full duty following the accident; (4) Arrant was not a candidate for any invasive treatment, so pretreatment MRI was unnecessary; (5) there was no information about the physical therapy and its effect on pain and function; and (6) Arrant had been taken off work without justification because there was no dysfunction to justify limiting his work, and Dr. Brown failed to provide work limitations as required by the MTG when regular duty is not advised.

The rationale for the second denial by the OWC’s medical director was that notes from the September 25 office visit showed that Arrant had normal lumbosacral spine motion, negative SLR, normal motor exam, and had been taken off work without documentation or support. In addition, no results of active therapy intervention had been documented. Among the MTG provisions cited by the medical director again was:

Imaging studies are generally accepted, well-established and widely used diagnostic procedures. In the absence of myelopathy, progressive neurological changes or incapacitating pain, imaging is usually not appropriate until conservative therapy has been tried and failed.

Aeree and LWCC contend that the denial of the second MRI request was justified because Arrant presented no documentation showing that physical therapy had failed. However, the guidelines recommend that six to eight weeks of treatment are usually an adequate period of time before an imaging procedure is in order, but that clinicians should use judgment in this regard. Dr. Brown used his ¡¿judgment to again ask for a lumbar spine MRI after prescribing four weeks of physical therapy.

Arrant’s pain was worsening in the month that followed the accident, which prompted him to meet with Deal. Although he continued working after the accident and even after meeting with Dr. Brown on August 16, Dr. Brown eventually took Arrant off work.

Aeree and LWCC also contend that they could rely on the decision of the OWC medical director as a basis to deny the lumbar MRI. While this may be true for the first denial, Aeree and LWCC were not in possession of the October 2012 OWC determination when they denied the second MRI request. Moreover, Aeree and LWCC must rely on competent medical evidence when the decision was made to deny the second MRI request. See Ardoin v. Calcasieu Parish Sch. Bd., 2015-814 (La. App. 3 Cir. 2/3/16), 184 So.3d 896, writ denied, 2016-0641 (La. 5/27/16), 192 So.3d 738.

Aeree and LWCC did not appeal the WCJ’s decision to overturn the director’s decision that the lumbar MRI was not necessary under the MTG. Such a decision by the OWC medical director can be reversed only upon a showing by clear and convincing evidence that the decision was not in accordance with the MTG.

Based upon this record, we cannot conclude that the WCJ was manifestly erroneous in determining that Aeree and LWCC had not reasonably controverted the second MRI request.

Answer

Arrant contends that the $5,000 attorney fee award was abusively low in light of the extensive work performed by his attorney in handling the lumbar MRI issue. We agree with Arrant, although we note that the ^prescription issue was not the only issue before this court on the prior appeal. Accordingly, we increase the award to $7,500.

Arrant also seeks additional attorney fees for this appeal. It is within the appellate court’s discretion to award or increase attorney fees to a workers’ comp claimant for defending an unsuccessful appeal. Frith v. Riverwood, Inc., 2004-1086 (La. 1/19/05), 892 So.2d 7; Key v. Monroe City Sch. Bd., 45,096 (La.App. 2 Cir. 3/10/10), 32 So.3d 1144, 256 Ed. Law Rep. 504. We conclude that an additional award of $2,500 is appropriate to compensate Arrant’s counsel for work performed in connection with this appeal.

DECREE

We amend the judgment to increase the attorney fee award to $7,500. We also award additional attorney fees of $2,500 for this appeal. At Acree’s and LWCC’s costs, the judgment as amended is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

      . We note that the medical records were not part of the prior appeal record that was sent to this court as an exhibit with the current appeal, Nevertheless, both parties highlighted the relevant portions of Dr. Brown's records in their briefs as well as during their arguments before the WCJ at the hearing following remand.


author: Judge Roland L. Belsome

text:
    Kelli WILKERSON v. Denardo D. DUNHAM, DPM, and ABC Insurance Company
    NO. 2016-CA-1056
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 2017

      John D. Sileo, Casey W. Moll, LAW OFFICE OF JOHN D. SILEO, LLC, 320 North Carrolton Avenue, Suite 200, New Orleans, LA 70119, COUNSEL FOR MS. WILKERSON/APPELLANT
    Karen M. Dicke, LEWIS, BRISBOIS, BISGAARD & SMITH, L.L.P., 400 Poy-dras Street, Suite 1320, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE

      (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet)
   Judge Roland L. Belsome

Lin this medical malpractice case, Appellant, Kelli Wilkerson, appeals the judgment of the trial court, which sustained the exception of prescription filed by Dr. Denardo Dunham and dismissed Ms. Wilkerson’s claims with prejudice. For the reasons set forth herein, the trial court’s judgment is affirmed.

Statement of the Case

Ms. Wilkerson began treatment with Dr. Denardo Dunham in 2006 for a bunion on her right foot. Dr. Dunham performed three bunionectomy surgeries on Ms. Wilkerson between 2008 and 2010. Ms. Wilkerson continued to experience pain in her right foot following the surgeries. She scheduled appointments with a number of other podiatrists, who could not or would not treat her. She contacted Dr. Dunham again; howeyer, due to a leave of absence, he was unavailable to treat her. Dr. Dun-ham referred Ms. Wilkerson to Dr. Darren Vigee.

Ms. Wilkerson first visited Dr. Vigee in July 2011. At the appointment, Dr. Vigee took x-rays of Ms. Wilkerson’s right foot and advised her that too much bone had been shaved away during the bunionecto-my surgeries. In 2014, Dr. Vigee |aagain took x-rays of Ms. Wilkerson’s foot and reported similar findings. Dr. Vigee advised Ms. Wilkerson to follow up with Dr. Dunham since he performed the surgeries. Dr. Dunham informed her that the pain she was experiencing was a known complication with her procedure that would eventually heal, but advised her that another surgery could correct the complications she was having. He referred her .to an orthopedic surgeon who performed corrective surgery.

On October 23,2014, Ms. Wilkerson filed a medical malpractice complaint before the Patient Compensation Fund (“PCF”) against Dr. Vigee. She amended the complaint to substitute' Dr. Dunham as defendant on February 12, 2015, 'and amended her complaint again oh March 5,2015. Ms. Wilkerson filed suit in Civil District Court against Dr. Dunham on April 7, 2015, prior to the PCF issuing an opinion. She voluntarily dismissed Dr. Vigee from the PCF complaint on May 4,2015.

Dr. Dunham filed an exception of prescription, requesting that all claims be dismissed as untimely. The court granted the exception and entered judgment, dismissing all claims with prejudice. The medical review panel was subsequently dissolved and the claim was dismissed from the PCF. This appeal followed.

On appeal, Ms. Wilkerson claims that the district court erred in sustaining Dr. Dunham’s exception of prescription on two grounds. First, she argues that she had an ongoing doctor-patient relationship and/or ongoing treatment with Dr. |3Punham, which suspended the prescriptive period applicable to her claim. Second, she argues that she did not discover that she had a malpractice claim against Dr. Dunham until June 2014, and thus a year had 'not passed between her obtaining knowledge of a cause of action arising and her filing the malpractice claim.

Prescriptive Period for a Medical Malpractice Claim

Ordinarily, the moVant bears the burden of proof at trial of the peremptory exception of prescription. “However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed.”

La. R.S. 9:5628 sets forth the prescriptive period within which a party must bring a medical malpractice claim. It is a “hybrid statute, providing both a one-year prescriptive period, including an incorporation of. the discovery rule, and a three-year repose period; the latter repose rule acts to cut off the discovery rule incorporated into the former prescriptive period.” The statute “not only limits the time following discovery during which the plaintiff must institute his action, but also sets an outer or overall limitation, one based on the length of the period | .following the negligent act, beyond which the action is barred, regardless of subsequent discovery.”

In Campo v. Correa, the Louisiana Supreme Court made the following statement regarding prescription as to a medical malpractice claim:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. ... Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. ... The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.

Doctrine of Contra Non Valentum and Medical Malpractice Claims

In a medical malpractice case where damages are not immediately apparent, the doctrine of contra non valen-tum may allow a plaintiff to bring a claim after the prescriptive period has passed if one of four recognized categories applies. Ms. |fiWilkerson claims that two of those categories—the continuing treatment exception and the discovery rule—applied to suspend or to interrupt the running of prescription for her claim against Dr. Dun-ham.

Continuing Treatment Exception

Ms. Wilkerson maintains that the continuing treatment exception, which is the third recognized category of contra rum valentum, applied to suspend prescription for her medical malpractice claim against Dr. Dunham. She claims that she had an ongoing doctor-patient relationship, continuing treatment with Dr. Dunham from 2006 until June of 2014, or both. She further claims that Dr. Dunham’s reassurances that the pain she experienced after her surgeries was a normal, known complication prevented her from bringing a medical malpractice claim against him prior to June 2014.

In Carter v. Haygood, the Louisiana Supreme Court found that the continuing treatment exception of contra non va-lentum may be invoked to suspend the prescriptive period under La. R.S. 9:5628 where “an innocent plaintiff has been lulled into a course of inaction in the enforcement of his right by reason of some concealment or fraudulent conduct on the part of the defendant, or because of his failure to perform some legal duty whereby plaintiff has been kept in ignorance of his rights.” The Court further stated that prescription may be suspended or interrupted where the plaintiff has a continuing relationship with the physician because the plaintiff may be less inclined to sue where the doctor-patient ^relationship is ongoing. In order for the continuing treatment exception to prescription to apply to a medical malpractice claim, the plaintiff must establish “(1) a continuing treatment relationship with the physician, which is more than perfunctory, during which (2) the physician engaged in conduct which served to prevent the patient from availing herself of her cause of action, such as attempting to rectify an alleged act of malpractice.”

Regarding Ms. Wilkerson’s assertions that she had an ongoing doctor-patient relationship with Dr. Dunham, the record indicates that her treatment with Dr. Dun-ham did not continue past November 2010. Dr. Dunham performed the first bunionec-tomy surgery on July 11, 2008; the second surgery on April 7, 2009; and the third surgery on June 4, 2010. Ms. Wilkerson also visited Dr. Dunham on November 22, 2010, which was the second to last appointment she had with him; she went to see him one final time on June 10, 2014.

Following her November 2010 appointment with Dr. Dunham, Ms. Wilkerson continued to have pain in her foot and visited three different physicians. She testified that the other doctors either did not have the expertise to correct the prior surgeries or did not want to perform the corrective work. She further testified that she was told by at least one other physician that Dr. Dunham had shaved away so much of the bone in her right big toe that nothing could be done to correct the work.

[ 7After she could not find another physician to treat her, Ms. Wilkerson reached back out to Dr. Dunham to request a referral. Dr. Dunham referred her to Dr. Vigee, whom she began seeing in July 2011. At the July 29, 2011 appointment, Dr. Vigee took an x-ray of her right foot; and like the previous physician, he informed her that too much bone had been shaved away during her bunionectomy surgeries. He further diagnosed her with severe degenerative joint disease and avas-cular necrosis in her big toe. She continued treatment with Dr. Vigee for the next few years; and on July 9, 2014, he took additional x-rays that showed the same results as those taken in 2011. The next day, on July 10, 2014, Ms. Wilkerson visited Dr. Dunham again to consult with him regarding the x-ray results. Subsequently, Dr. Dunham recommended Ms. Wilkerson see an orthopedic surgeon if she wished to have any further corrective surgeries. He referred her to Dr. Laborde, who performed surgery on her right foot, removing a ligament from her leg and implanting it in her foot, which from all accounts alleviated the pain “tremendously.”

Ms. Wilkerson likens the facts of her case to those in another case, In re Noe, in which the Court found that prescription was suspended until the patient’s ongoing treatment relationship with her doctor terminated. In Noe, the patient received a steroid injection for sinus congestion on June 11, 2001. Within one week of the injection, “a reddish-purple knot developed at the site of the injection.” |sOn August 6, 2001, Mrs. Noe followed up with her doctor because she was suffering from pain, skin discoloration, and muscle atrophy at and surrounding the injection site; and he put her on a year-long, exercise-based recovery plan and informed her that the pain would resolve with time. On April 3, 2002, after Mrs. Noe’s pain had not alleviated, her doctor referred her to a neurologist and ordered a nerve conduction study and an MRI. The test results, received in May 2002, revealed that the injection had caused nerve damage.

Mrs. Noe filed a medical malpractice claim on March 12, 2003; and the defendant responded with an exception of prescription. The trial court granted the defendant’s exception of prescription on the basis that the claim was not brought within one year of the injection. On remand from the Louisiana Supreme Court, this Court reversed, finding that the continuing doctor-patient relationship coupled with his reassurances of recovery and his treatment plan “thwarted Ms. Noe’s inclination to bring suit and prevented the claim from prescribing.” The Louisiana Supreme Court affirmed, the decision, concluding that the doctor-patient relationship continued until at least April 3, 2002, the last time the patient saw her doctor when he referred her for the MRI; and thus that was the date prescription began to run.

In this case, unlike in Noe, the evidence does not support Ms. Wilkerson’s claim that the continuing treatment exception applied to suspend the running of | (prescription. The record does not indicate that her relationship with Dr. Dunham was continuous for the purposes of this exception to prescription. Rather, the record is clear that Ms. Wilkerson’s ongoing treatment relationship with Dr. Dunham did not continue past her November 2010 follow-up appointment. Instead, she began a new treatment relationship with Dr. Vigee in July 2011. Further, beyond a few assurances that Ms. Wilkerson’s pain from the surgeries was a normal complication that would abate with time, there is no indication in the record that Dr. Dunham engaged in conduct that prevented Ms. Wilkerson from bringing a claim against him. Therefore, the continuing treatment exception of contra non valentum did not serve to suspend the running of prescription for Ms. Wilkerson’s medical malpractice claim against Dr. Dunham.

Discovery Rule

Ms. Wilkerson also argues that the discovery rule of contra non valentum applied to suspend the running of prescription; however, the record does not support this contention. The discovery rule, which is encompassed in the fourth category of contra non valentum, provides that “prescription does not begin to run until plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant.”

The record indicates that Ms. Wilkerson received knowledge of the excessive removal of bone in her right foot by at least July 29, 2011 when Dr. Vigee x-rayed her foot. Yet, her complaints regarding the procedures were not | infiled until October 23, 2014, over three years after she learned of the issues with her surgeries and over four years after the last surgery performed by Dr. Dunham, Therefore, the discovery rule of contra non valentum did not serve to suspend prescription under these circumstances.

Conclusion

For these reasons, we affirm the trial court’s judgment granting the peremptory exception of prescription and dismissing of Ms. Wilkerson’s claims against Dr. Dun-ham.

AFFIRMED

      . When she initially substituted Dr. Dunham for Dr. Vigee, Ms, Wilkerson incorrectly identified him as Dr. Leonardo Dunham. She corrected his name to Dr. Denardo Dunham in the second amendment to the complaint.

      . Campo v. Correa, 2001-2707, p. 7 (La. 6/21/02), 828 So.2d 502, 508.

      . Id. (citing Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La. 1993)).

      . La. R.S. 9:5628(A) provides:
      A. No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

      . In re Med. Review Panel for Claim of Moses, 2000-2643, p. 9 (La. 5/25/01), 788 So.2d 1173, 1179.

      . Id., quoting 1 David W. Louissell & Harold Williams, Medical Malpractice ¶ 13.02[2][b] at 13-40 (1999).

      . Campo v. Correa, 2001-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502, 510-11 (citations omitted).

      . In re Noe, 2004-0760 (La.App. 4 Cir. 8/3/05), 916 So.2d 1138, 1141-42, writ granted sub nom. In re Med. Review Panel Proceedings of Noe, 2005-2275 (La. 4/17/06), 926 So.2d 497, and aff'd in part, rev'd in part, 2005-2275 (La. 5/22/07), 958 So.2d 617. The four categories of contra non valentum that have been recognized include:
      1. Where some legal cause prevented the court or their officers from taking cognizance of or acting on the plaintiff’s action;
      2. Where there was some condition coupled with a contract or connected with the proceeding which prevented the creditor from suing or acting;
      3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
      4.Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

      . Carter v. Haygood, 2004-0646, p. 12 (La. 1/19/05), 892 So.2d 1261, 1269 (citing Crump v. Sabine River Authority, 98-2326, p. 13 (La. 6/29/99), 737 So.2d 720, 730).

      . Id.

      . Id., p. 15, 892 So.2d at 1271.

      . The record indicates that between August 2, 2011, and June 7, 2012, Dr. Dunham took a leave of absence from practicing medicine.

      . Dr. Laborde’s first name is not included in the record.

      . In re Noe, 2005-2275 (La. 5/22/07), 958 So.2d 617.

      . In re Noe, 2004-0760, pp. 1-2 (La.App. 4 Cir. 8/3/05), 916 So.2d 1138, 1140, writ granted sub nom. In re Med. Review Panel Proceedings of Noe, 2005-2275 (La. 4/17/06), 926 So.2d 497, and aff'd in part, rev’d in part, 2005-2275 (La. 5/22/07), 958 So.2d 617.

      . Id., p. 7, 916 So.2d at 1143.

      . Fontenot v. ABC Ins. Co., 95-1707, p. 8 (La. 6/7/96), 674 So.2d 960, 964.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Hank Allen MORAN aka-Hank Moran
    16-868
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2017

      Earl B. Taylor, District Attorney—27th Judicial District, Jennifer Ardoin, Alisa Ardoin Gothreaux, Assistant District Attorneys—27th Judicial District, P. 0. Drawer 1968, Opelousas, LA 70571, Telephone: (337) 948-0551, COUNSEL FOR: Plaintiff/Appellee—State of Louisiana
    Annette Fuller Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, Telephone: (337) 436-2900, COUNSEL FOR: Defendant/Appellant—Hank Allen Moran aka—Hank Moran, Hank Allen Moran, Louisiana State Prison, Falcon III, Angola, LA 70712
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

|! Defendant Hank Moran appeals his jury conviction for the first degree murder of his wife, Constance Moran. Before she was killed, Ms. Moran called police to report Mr. Moran had choked her. Officers responded and returned to the home after they were unable to locate Mr. Moran at a local park he frequented. When an officer returned, he found Mr. Moran crouching over his wife’s body as blood seeped from her. Mr. Moran was charged with first degree murder pursuant to La.R.S. M^iKAX^Xa). The State argued he killed his wife to prevent her from testifying about the domestic violence incident. On appeal, he argues the evidence did not support a guilty verdict and the trial court admitted inadmissible statements that require reversal of the verdict.

We affirm the trial court’s rulings and the jury’s guilty verdict.

I.

ISSUES

We must decide:

1. whether the trial court erred in denying Mr. Moran’s Motion to Suppress statements he made after his arrest but prior to being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and La.Const. art. 1 § 13;
\,2. whether the trial court erred in denying Mr. Moran’s Motion in Li-mine and allowing statements made by Ms. Moran, who was unavailable to testify as she was deceased, in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and
3. whether there is sufficient evidence to support a guilty verdict of first degree murder pursuant to La.R.S. 14:30(A)(9)(a).

II.

FACTS AND PROCEDURAL HISTORY

Officers responded to a 911 call from Ms. Moran who reported that her husband had choked her. Officer Morris Leday encountered Ms. Moran about a half block from her house. Ms. Moran gave a written statement and orally told the officer her husband had threatened to kill her and himself if she told police he choked her. Additional officers arrived and searched the home for Mr. Moran to no avail. Officers then traveled to a local park to search for Mr. Moran based on Ms. Moran’s information that he often went there. Before doing so, officers secured the home, searched around the property and under the home, and told Ms. Moran to remain inside with the doors locked. Unable to locate Mr. Moran at the park, officers returned to the home.

When Officer Leday returned, he noticed the back door had been forced open. Upon entering the home, Officer Leday heard “thrashing” sounds coming from the bedroom. He went to the living room and observed Mr. Moran crouched over Ms. Moran with blood on the floor and her body. Officer Leday identified himself, demanded Mr. Moran to raise his hands, and ordered him to drop the knife. Mr. Moran dropped the knife after being ordered four times. He then grabbed a bottle of pills and swallowed a handful.

IsWhile being escorted out of the home, he stated, “I bet now she’ll listen.” Later, while being examined by paramedics he told Officer Leday, “I did what I had to do, I did the job right, huh, officer? Did I do the job right officer?” Mr. Moran was transported to the Special Operations building for interrogation. As the interrogation room was being prepared, Officer Leday waited in the lobby area with Mr. Moran, who had not been given Miranda warnings yet. While waiting, Mr. Moran made statements to Officer Leday admitting to the killing, describing his method, and expressing the gratification he received from killing his wife. Mr. Moran stated, “[t]he last thing she told me was that she loved me. I looked at her straight in the eyes and I said, ‘I love you too, baby,’ then I jugged her straight down in her esophagus.”

Mr. Moran was charged with first degree murder. He filed a number of motions to strike statements he gave Officer Leday before he was mirandized and to suppress Ms. Moran’s written and oral statements. A jury found him guilty of first degree murder, and he was sentenced to life in prison at hard labor. Mr. Moran now appeals the guilty verdict and the , trial court’s admission of the statements.

III.

LAW AND DISCUSSION

A. Whether there is sufficient evidence to support a guilty verdict of first degree murder pursuant to La.R.S. 14:30(A)(9)(a).

We will discuss assignment of error number three first since Mr. Moran asserts that the evidence was insufficient to sustain the guilty verdict. Generally, when a sufficiency of the evidence allegation is raised on appeal the allegation is addressed first because if the allegation has merit, a defendant could | ¿obtain an acquittal of the conviction which could render the remaining allegations of errors moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); State v. Hearold, 603 So.2d 731 (La.1992).

Mr. Moran argues the State failed to prove beyond a reasonable doubt that he killed his wife with the specific intent to make her unavailable to testify against him regarding the domestic violence incident. He also argues he did not act with specific intent because he was intoxicated when he killed his wife.

The State maintains the jury concluded beyond a reasonable doubt Mr. Moran killed to prevent his wife from cooperating with the domestic abuse investigation. It argues Mr. Moran’s threat to kill her if she called the police supports the jury’s finding. Moreover, voluntary intoxication does not excuse the crime. Further, the jury listened to the evidence presented and determined that Mr. Moran was not intoxicated and acted with specific intent to kill his wife.

When .the issue of. sufficiency, of evidence is raised on appeal,- the critical inquiry of the- reviewing court 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, 443 U.S. 307, 99, S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Review of the sufficiency of the evidence as a matter, of the Due Process Clause under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), encompasses all of the evidence introduced at trial, inadmissible as well as admissible. See State v. Hearold, 603 So.2d 731, 734 (La.1992) (“[W]hen the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error-to determine whether the accused is entitled to a new trial ... but is not ^entitled to an acquittal even if the admissible evidence, considered alone, was insufficient.”) (citing Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)).

State v. Bolden, 11-2435, p. 2 (La. 10/26/12), 108 So.3d 1159, 1161.

In order for us to affirm a conviction, the record must reflect that the State has satisfied its burden of proving all the elements of the alleged crime beyond a reasonable doubt.

The State charged Mr. Moran with first degree murder pursuant to La.R.S.' 14:30(A)(9)(a). This statute mandates that first degree murder is the killing of a human being “[w]hen the offender has specific intent to kill or to inflict great bodily harm upon a victim who was á witness to a crime or was a member of the immediate family of a witness to a crime committed on a prior occasion[.]” La.R.S. 14:30(A)(9). And, “[t]he killing was committed for the purpose of preventing or influencing the victim’s testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced!.]” La. R.S. 1480(A)(9)(a).

The State must also prove that Mr. Moran acted with specific intent. “Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” State v. Carroll, 95-859, p. 3 (La.App. 3 Cir. 1/31/96), 670 So.2d 286, 288 (citing La.R.S. 14:10(1)). “Specific criminal intent ... need not be proven as fact, but may be inferred from the circumstances present in the case and from the action of the defendant.” Id. at 289. The severity of the attack on the victim is an indicator of the defendant’s specific intent to kill. State v. Myers, 584 So.2d 242 (La. App. 5 Cir.), writ denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992); State v. Segura, 464 So.2d 1116 (La.App. 3 Cir.), writ denied, 468 So.2d 1203 (La.1985).

Here, Officer Leday observed Mr. Moran standing over Ms. Moran with a knife in his hand. He confessed to stabbing his wife to death. At trial, testimony established Ms. Moran was stabbed twenty-one times near the neck and upper body. The physical evidence and circumstances indicate Mr. Moran had specific intent to kill his wife. Additionally, there is no direct evidence via medical reports or testimony from treating paramedics that Mr. Moran was intoxicated when he killed. In fact, the treating paramedic testified Mr. Moran was alert, oriented, and stable when she evaluated him.

Further, the jury heard Officer Leda/s testimony that Ms. Moran told him Mr. Moran threatened to kill her if she reported the choking incident to the police. This statement coupled with Mr. Moran killing her immediately after Officer Leday left was sufficient for the jury to conclude reasonably that Mr. Moran killed with specific intent to prevent her testimony regarding his domestic abuse. The fact that Mr. Moran did not have a charge pending for domestic battery is immaterial. As noted above, the statute states, “in any criminal action or proceedings ivhether or not such action or proceedings had been commenced[.]” La.R.S. 14:30(A)(9)(a)(emphasis added). Accordingly, there was sufficient evidence to support a guilty verdict of first degree murder pursuant to La.R.S. 14:30(A)(9)(a).

|7B. Whether the trial court erred in denying Mr. Moran’s Motion to Suppress statements he made after his arrest but prior to being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and La.Const. art. 1 § 13.

Mr. Moran made two statements to Officer Leday that are at issue. Mr. Moran made the first statement as the paramedics were evaluating him. He made the second as he was waiting to be interrogated in the lobby area of the Special Operations building. Officer Leday admitted that Mr. Moran was not advised of his rights until he entered the interrogation room, which occurred after the statements were made. The trial court determined the statements were admissible because Mr. Moran made them voluntarily and spontaneously and not in response to police questioning.

Mr. Moran maintains the statements were inadmissible because he gave them before he was advised of his rights. Mr. Moran contends La.Const. aft. 1 § 13 requires Miranda warnings to be given at the time of arrest, not just when custodial interrogation occurs. Thus, he should have been advised of his rights at the scene, when he was arrested and exigent circumstances no longer existed. He further asserts that the trial court admitting these statements was not harmless error. He contends that without the statements the jury could have concluded reasonably that the murder was committed in sudden passion, which would support the responsive verdict of manslaughter.

| ^Conversely, the State posits the statements were admissible under Miranda and La.Const. art. 1 § 13 because they were not the result of interrogation but were volunteered freely. It notes that Mr. Moran made the statement without questioning by law enforcement or anyone else.

When deciding the admissibility of a confession, the trial court must consider the totality of the circumstances. A showing of voluntariness must be analyzed on a case-by-case basis with regard to the facts and circumstances of each case. State v. Verret, 06-1337 (La.App. 1 Cir. 3/23/07), 960 So.2d 208. On appeal, a trial court’s ruling regarding the admissibility and voluntary nature of a confession is given great weight and will not be distributed unless not supported by the evidence. Id.

Jurisprudence teaches that statements made after a defendant is taken into custody are admissible if the statements were spontaneous, voluntary, and not a result of police questioning or compelling influences. Before the State may introduce what purports to be a confession, it must affirmatively show the confessional statement “was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” La.R.S. 15:451; La. Code Crim.P, art. 703(D); see also State v. Coleman, 07-794 (La.App. 3 Cir. 2/6/08), 976 So.2d 268. “[Spontaneous and voluntary statements not made as a result of police interrogation or compelling influence are admissible in the absence of Miranda warnings even if the accused is in custody.” State v. Foret, 96-281, p. 29 (La. App. 5 Cir. 11/14/96), 685 So.2d 210, 222 (citing State v. Thompson, 399 So.2d 1161 (La.1981)).

Here, it is clear Mr. Moran was in custody as the suspected killer when he made the statements. He was arrested at the scene after Officer Leday ^observed him standing over his wife’s bloody body with a knife in his hand. Thus, the issue is whether Mr. Moran offered his statements spontaneously and voluntarily, or whether police questioning triggered him, which would have entitled him to advisement of his Miranda rights. We will address the statements separately.

Mr. Moran made his first statement while being treated by the paramedics. After the paramedics determined Ms. Moran was deceased, Officer Leday asked them to examine Mr. Moran because he had ingested an undetermined amount of pills.'- Considering Officer Leday observed Mr. Moran standing over his bloodied wife with a knife in his hand, there was no rash to interrogate Mr. Moran to determine who the killer was in this case. Officer Leday’s first' concern was the victim, contacting' an ambulance, and''Mr. Moran’s health. It would have been an improper time to give Miranda warnings to someone who had taken an unknown quantity of unidentified pills.

The two paramedics testified they heard Mr. Moran ask Officer Leday if he killed his wife successfully. They also attested that Officer Leday was not questioning Mr. Moran when he made the statement. Mr. Moran did not offer any evidence that he made the statements in response to police questioning. We conclude this statement was purely voluntary and not given in response to interrogation or compelling influences. Accordingly, we affirm the trial court’s ruling to admit the statement he made at the scene.

Mr. Moran made the second statement while waiting to be interrogated at the Special Operations building. Detective Kelly Sam testified at the suppression hearing that he left the scene in his patrol car at the same time Officer Leday left with Mr. Moran. Because it was early in the morning, the hoSpecial Operations building had to *be Opened and prepared for an interrogation. As Officer Leday Sat in the lobby with Mr. Moran, Detective Sam overheard a portion of Mr. Moran’s statement- regarding ' hiding under the house, kicking the door in, and stabbing his wife. The detective stated no one was questioning Mr. Moran when he made these statements. Mr. Moran described to the officer how he looked his wife in her eyes, told her he loved her, then “jugged” her. According to Officers Leday and Sam, the only person speaking at this time was Mr. Moran. The evidence leads us to conclude that the statement was purely voluntary and. spontaneous, and not in response to police questioning. We find the trial court did not err in admitting neither statement at issue.

C. Whether the trial court erred in denying Mr. Moran’s Motion in Li-mine and allowing statements made by Ms. Moran, who was unavailable to testify as she was deceased, in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Mr. Moran next claims that the trial court erred by admitting statements that Ms. Moran made to the police. Ms. Moran told Officer Leday that her husband choked her and threatened to kill her and himself if she told the police. She also made a written statement with the same information. The trial court determined the statement were admissible under the forfeiture by wrongdoing hearsay exception pursuant to La.Code Evid. art. 804(B)(7). ,It reasoned that Mr. Moran killed his wife to render her unavailable to testify against him about the choking incident.

|nMr. Moran argues pursuant to Crawford, 541 U.S. 36, 124 S.Ct. 1354, the statements were hearsay and testimonial and should have been excluded as Ms. Moran was unavailable. He argues that the trial court erred in its ruling because the State failed to prove Mr. Moran killed his wife with intent to make her unavailable to testify against him. Further, to use the forfeiture by wrongdoing hearsay exception, Mr. Moran argues there must be a case pending against him and evidence he killed to prevent testimony at the pending trial. He also notes he attempted suicide after he killed his wife. This is evidence, he argues, of his intent to kill himself, instead of facing trial for battering his wife.

In opposition, the State admits that the statements are testimonial hearsay; however, they are admissible under the forfeiture by wrongdoing exception. The State cites Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), for the proposition that the exception applies when the killing occurred either to prevent a victim of domestic abuse from reporting the crime, or to prevent the victim from cooperating in the criminal investigation. It posits that Mr. Moran fulfilled his promise to kill his wife if she called the police. Consequently, his intent to prevent her from cooperating with a criminal investigation into the choking incident was clear.

United States Constitution Amendment VI and La.Const. art. 1 § 16 guarantee an accused person in a criminal prosecution the right to confront the witnesses against him. See also State v. Harris, 13-133 (La. App. 3 Cir. 12/11/13), 156 So.3d 694. In Crawford, 541 U.S. 36, 124 S.Ct. 1354, the United States Supreme Court restricted the admissibility of testimonial statements as evidence at a criminal trial ] iawhen the declarant is unavailable, unless the accused had a prior opportunity to cross-examine the declarant. However, Crawford recognized exceptions to the right of confrontation, including the doctrine of forfeiture by wrongdoing. See id. at 62, 124 S.Ct. 1354 (“For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.”).

The forfeiture by wrongdoing exception to the hearsay rule is codified in La.Code Evid. art. 804(B)(7)(a), which is modeled after Federal Rule of Evidence 804(b)(6). Under this article,“[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, - and did, procure the unavailability of the declarant as a witness,” is an exception to hearsay. La.Code Evid. art. 804(B)(7)(a). Further, under La.Code Evid. art. 804(B)(7)(b), “[a] party seeking to introduce statements under the forfeiture by wrongdoing hearsay exception shall establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.”

The United States Supreme Court further examined the relationship between the Confrontation Clause and the forfeiture by wrongdoing doctrine in Giles, 554 U.S. 353, 128 S.Ct. 2678, There, a defendant shot arid killed his ex-girlfriend. Weeks before the shooting, officers responded to a domestic violence report concerning the two. Prosecutors sought to admit statements from the victim that the defendant punched and threatened to .kill her. The trial court admitted the statements during the murder trial. The defendant appealed his conviction. During this time, the Supreme Court decided Crawford, 541 U.S. 36, 124 S.Ct. 1354. In response, the California Supreme Court affirmed the conviction under the forfeiture by wrongdoing | ^doctrine. It determined that the defendant had forfeited his right to confront the victim because he committed the murder that made the victim unavailable.

The United States Supreme Court reversed and determined that the California Supreme Court found incorrectly that the intent of the defendant was irrelevant to its application of the forfeiture doctrine. The Supreme Court wrote “[t]he manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.” Giles, 554 U.S. at 361, 128 S.Ct. 2678. Further, if the “evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusato-rial statements by the victim—the testimony was excluded unless it was confronted or fell within the dying-declarations exception.” Id. at 361-62, 128 S.Ct. 2678.

Mr. Moran’s intent is established by his words and actions before and after the killing. After Mr. Moran choked his wife, he threatened to kill her and himself if she reported him to the police. Ms. Moran called 911 and told the dispatcher Mr. Moran choked and threatened her. Ms. Moran also stated that Mr. Moran overheard her talking to the dispatcher, opened the door, and threatened her again. He then hid under the house as officers arrived and attempted to secure the home, waited until the officers left, kicked in the door, and fulfilled his promise to kill his wife.

Mr. Moran’s arguments that he did not kill his wife with the intent to make her unavailable to testify are unconvincing. First, the language of La.Code Evid. art. 804(B)(7) does not mandate that there must be a case pending against Mr. Moran at the time of the killing to utilize the forfeiture by wrongdoing provision. Additionally, the facts of Giles, 554 U.S. at 353, 128 S.Ct. 2678, does not indicate there was a charge pending for the prior domestic abuse allegation or any other criminal act where the victim was expected to testify-

Second, Mr. Moran taking an unknown quantity of pills is indicative of his state of mind immediately after he killed his wife and not his intent before and during the killing. Mr. Moran said he was going to kill his wife if she reported him to the police. She reported him; he killed her. His actions are coupled with his words after the killing. As Officer Leday escorted Mr. Moran out of the bedroom, he stated, “I bet now she’ll listen.” He also told the officer, “I warned that bitch not to tell the fucking cops on me. She called the cops on me. I waited under the house ’till y’ all left, then I knocked the door, and commenced to jugging her."

Based on the foregoing, we find no error in the trial court’s ruling. The record evidence establishes Mr. Moran killed his wife with intent to make her unavailable to testify against him regarding the domestic violence incident. Accordingly, we affirm the trial court’s ruling on this issue.

IV.

CONCLUSION

For the reasons stated, we affirm the trial court’s rulings and Hank Allen Moran’s conviction for first degree murder pursuant to La.R.S. 14:30(A)(9)(a).

AFFIRMED.

      . Louisiana Revised Statutes 14:30(A)(9)(a) states:
      A. First degree murder is the killing of a human being:
      (9) When the offender has specific intent to kill or to inflict great bodily harm upon a victim who was a witness to a crime ... on a prior occasion and:
      (a) The killing was committed for the purpose of preventing or influencing the victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced!)]

      . Mr. Moran stated, "I did what I had to do. I did the job right, huh, officer? Did I do the job right officer?”

      . He stated, "I always wanted to kill somebody. I warned that bitch not to tell the fucking cops on me. She called the cops on me. I waited under the house 'til y’all left, then I kicked the door, and commenced to jugging her.” He further stated, "[t]he last thing she told me was that she loved me. I looked at her straight in the eyes and I said, 1 love you too, baby,’ then I jugged her straight down in her esophagus. She yap, yap, yap her mouth all night, and I was tired of it.” He also said, “I was trying to sleep, and I just couldn’t take it anymore. I just fucking snap [sic], I just couldn't take it anymore, and I can’t wait to kill again. It's kind of gratifying, believe it or not.’’

      . The court stated, “[fit appears that the defendant, at least as this point in time, made ■ good on the threat he made, As a result, I think he's forfeited his right to complain that he cannot confront the witness[.]”

      . Crawford established that testimonial statements made by unavailable witnesses violated the accused’s Sixth Amendment right to confront the witness, unless the accused had an opportunity to cross-examine the witness.


author: LEE, C.J.,

text:
    Amy Lynette Bolen BUTLER, Appellant v. Stephen Bradley BUTLER, Appellee
    NO. 2015-CA-01558-COA
    Court of Appeals of Mississippi.
    05/02/2017

      MONROE COUNTY CHANCERY COURT, C. MICHAEL MALSKI, J.
    ATTORNEY FOR APPELLANT: CARRIE A. JOURDAN
    ATTORNEY FOR APPELLEE: CANDACE COOPER BLALOCK
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶1. In this appeal, we must determine whether the chancellor erred in (1) modifying the child-visitation order and (2) declining to modify the child-custody arrangement. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Stephen Bradley Butler and Amy Lynette Bolen Butler were married in 2006. The couple had one daughter, A.B,, born in 2008. On July 28, 2010, the chancery court entered a final judgment of divorce between Stephen and Amy on the ground of irreconcilable differences. The judgment provided that Stephen and Amy would share joint legal custody of A.B., and that Amy would have full physical care, custody, and control of A.B. The judgment incorporated a detailed visitation schedule for Stephen, which specified times, dates, holidays, and birthdays that Stephen would spend with A.B. The schedule allowed Stephen supervised visitation, which would eventually progress to unsupervised visitation.

¶3. At the time the divorce decree was entered, Stephen had a pending DUI charge. As a result, the visitation schedule placed certain restrictions on Stephen’s ability to drive A.B. and have overnight visits at his home. These restrictions .were set to expire on specified dates. The pending DUI charge was later dismissed on appeal. However, Stephen received a second DUI charge after the divorce. This second DUI triggered a provision in the visitation agreement that again restricted Stephen’s ability to drive and have overnight visits with A.B. until further order of the court.

¶4. On December 15, 2014, Stephen filed a complaint for modification and petition for contempt against Amy, claiming that Amy willfully and contumaciously refused to comply with the visitation schedule. Stephen requested his visitation be set forth specifically and that Amy be prohibited from interfering with his relationship with A.B. Amy counterclaimed, seeking sole legal and physical custody of A.B. and modification of Stephen’s visitation to supervised-only visits with A.B. Amy further petitioned the court to hold Stephen in contempt and to increase Stephen’s child-support obligations.

¶5. On June 5, 2015, trial commenced in chancery court. At trial, Amy testified that Stephen failed to request 75 percent of his scheduled visitations. Stephen testified that his lack of visitation was due, in part, to changes in his work schedule. Amy testified that she worried about Stephen’s ability to care for A.B. in light of her medical condition. She testified that A.B. suffered from asthma and severe allergies, which required her to have an EpiPen and inhaler at all times. -However, Amy admitted A.B. was still able to participate in a number of outdoor sports, including basketball and soccer, and never had to use the EpiPen. Specifically, Amy testified that she was concerned about Stephen’s drinking, smoking, and mental, illnesses— depression and bipolar disorder.

¶6. Stephen testified that Amy interfered with his relationship with A.B. by attending his scheduled visits and by blocking his phone number from A.B,’s cell phone. He testified that when A.B. would visit with him, Amy would text A.B. in the middle of the visit with messages such as, “Yay ...[,] only [two] more hours to go.” About a year prior to the hearing, Stephen testified that he noticed A.B.’s behavior toward him changing. While A.B. used to be happy to see him, she was now cold and indifferent. Concerning his alcohol use, Stephen testified that he successfully completed two rehabilitation programs—seven weeks’ inpatient and twelve weeks’ outpatient—and had been sober for two years. He then testified that approximately two or three times a month, he would drink a twenty-four-ounce can of beer. Stephen testified, however, that he had never consumed alcohol or smoked cigarettes around Á.B. In response to Amy’s ■ concerns about his alleged mental illnesses, Stephen testified that he was never diagnosed as bipolar, though he had taken antidepressants in the past and was currently taking an anxiety medication Hiá depression and anxiety were diagnosed‘before his marriage to Amy.

¶7. At the conclusion of the trial, the chancellor rendered an opinion from the bench. With regard to visitation, the. chancellor awarded Stephen the same rights he was given in the divorce decree. Accordingly, the chancellor removed all supervision requirements, allowing Stephen to drive A.B. and have overnight visits with A.B. at his home. The provision restricting driving and overnight visits if Stephen received another DUI remained in effect. Additionally, the chancellor denied Amy’s motion seeking sole legal and physical custody of A.B. Amy now appeals.

STANDARD OP REVIEW

¶8. In child-custody-modification cases, we will uphold the decision of the chancellor unless he was manifestly wrong or clearly erroneous, abused his discretion, or applied an erroneous legal standard. Dupree v. Pafford, 200 So.3d 1092, 1094 (¶ 4) (Miss. Ct. App. 2016) (citing Pearson v. Pearson, 121 So.3d 266, 268 (¶ 6) (Miss. Ct. App. 2013)). The chancellor’s findings of fact will not be set aside on appeal if they are supported by substantial credible evidence. Carter v. Carter, 204 So.3d 747, 756 (¶ 37) (Miss. 2016) (citing Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)). We review issues of law de novo. Branch v. Branch, 174 So.3d 932, 938 (¶ 9) (Miss. Ct. App. 2015) (citing Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss. Ct. App. 2009)).

¶9. Regarding visitation, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child. Adams v. Rice, 196 So.3d 1086, 1089 (¶ 9) (Miss Ct. App. 2016) (citing Ellis v. Ellis, 840 So.2d 806, 812 (¶ 24) (Miss. Ct. App. 2003)). The chancellor has the responsibility to evaluate the credibility of witnesses and evidence, and on review, “[w]e will not arbitrarily substitute our judgment for that of the chancellor^] who is in the best position to evaluate all factors relating to the best interest of the child.” Brooks v. Brooks, 76 So.3d 215, 217 (¶ 5) (Miss. Ct. App. 2011) (citing Mosley v. Mosley, 784 So.2d 901, 905-06 (¶ 15) (Miss. 2001)).

DISCUSSION

I. Custody

¶10. Amy argues that the chancellor erred by denying her motion to modify the custody agreement to award her sole legal and physical custody of A.B. Specifically, she asserts both parties had stipulated that a material change of circumstances had occurred, and thus the chancellor erred when he found otherwise.

¶11. To obtain a change in custody, the moving party must prove by a preponderance of the evidence that (1) a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) the change adversely affects the child, and (3) the child’s best interests mandate a change in custody. Moreland v. Spears, 187 So.3d 661, 663 (¶ 5) (Miss. Ct. App. 2016) (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss. 2003)). To determine whether a material change in circumstances has occurred, the court must consider the “totality of the circumstances.” Id. at 664 (¶ 6) (citing Mabus, 847 So.2d at 818 (¶ 8)). Even where the chancellor finds a material change in circumstances has occurred, the chancellor must still additionally determine that the change has adversely affected the child and that a modification of custody is in that child’s best interest. Curry v. McDaniel, 37 So.3d 1225, 1229 (¶ 8) (Miss. Ct. App. 2010) (citing Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984)). “[T]he best interest and welfare of the child are the [principal] considerations.” Id. “It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is [a] sufficient basis to seriously consider the drastic legal action of changing custody.” Campbell v. Watts, 192 So.3d 317, 322 (¶ 19) (Miss. Ct. App. 2015) (quoting Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss. 1983)).

¶12. During trial, the chancellor found that no material change in circumstances had occurred to justify modification of the custody arrangement. Amy argues that her inability to cooperate with Stephen constituted a material change in circumstances. This Court has never held that the mere inability of divorced parents to cooperate with one another constitutes a material change in circumstances. In Lipsey v. Lipsey, 755 So.2d 564, 566 (¶ 7) (Miss. Ct. App. 2000), this Court reversed a trial court’s decision to modify custody when that decision was based on nothing more than the parties’ inability to cooperate with one another. “In light of the ... cases where much more severe acts were found not to constitute material changes in circumstances, we would be remiss to say that the law warranted a change in custody here.” Id. “This Court does not find lack of cooperation to be a pinnacle that warrants a reconsideration of custody[.]” Id. at 567 (¶ 9). This issue is without merit.

II. Visitation

¶13. Amy argues that the chancellor erred by awarding Stephen unsupervised visitation with A.B. To modify a visitation order, “it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the [child].” Culberson v. Culberson, 196 So.3d 1062, 1066 (¶14) (Miss. Ct. App. 2016) (quoting Ellis, 840 So.2d at 812 (¶ 25)).

¶14. There was substantial credible evidence that the visitation schedule was not working. At trial, both Stephen and Amy acknowledged that there had been numerous problems with visitation. Stephen’s work schedule changed immediately following the entry of the divorce decree, which interfered with his ability to visit with A.B. on the weekends. Additionally, Stephen’s second DUI occurred shortly after the divorce decree, and consequently restricted his ability to pick up A.B. and have overnight visits with her. According to Amy, Stephen failed to request 75 percent of his scheduled visitations. Amy admitted that she did not feel comfortable leaving A.B. with Stephen and that she prevented A.B. from spending Christmas with him. Stephen was not able to see A.B. until the following March.

1115. As this Court has previously explained:

With visitation, as in all matters relating to a minor child, the primary consideration is the best interest of the child. We start from the presumption that where possible, that best interest is served by maintaining a viable relationship with both parents. Therefore, the goal in establishing visitation is to encourage and forge as strong of a bond as possible between the child and the non-custodial parent and between the child and the custodial parent under the least disruptive circumstances.

Strange v. Strange, 43 So.3d 1169, 1173 (¶ 14) (Miss. Ct. App. 2010). Here, as discussed, Stephen’s visitation rights were restricted due to his second DUI. The record demonstrates that the modification simply reinstated Stephen’s original visitation rights—the rights he would have enjoyed had he not received a second DUI. The provision triggered by Stephen’s second DUI also stated that the restrictions would remain in effect until further order of the court. The modification here is just that: further order of the court. The chancellor considered that Stephen had successfully completed rehab and had not received a DUI in over four years, and that A.B.’s medical condition had improved. These findings were supported by the substantial credible evidence. Because the prior -visitation schedule was not working, and given the presumption that a child’s best interest is served by the maintenance of a relationship with both parents, the chancellor did not err in modifying the visitation schedule.

¶16. THE JUDGMENT OP THE MONROE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . We have used initials to protect the privacy of the child.

      . Stephen’s father, Dexter Butler, testified at trial that Stephen’s home was not clean. As a result, the chancellor required all of Stephen’s overnight visits to occur at Butler’s home until Butler found Stephen’s home suitable for A.B.