author: STONE, J.

text:
    Glenn Allen CHESNEY, et al., Plaintiffs-Appellants v. ENTERGY LOUISIANA, L.L.C., et al., Defendants-Appellees
    No. 51,718-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017.
    LAW OFFICE OF ANTHONY J. BRUSCATO, APLC, Monroe, By: Anthony J. Bruscato, Counsel for Appellants Glenn A. Chesney and Cindy Chesney
    TAYLOR, WELLANS, POLITZ, DUHE, APLC, By: Terri M. Collins, Baton Rouge, By: Charles J. Duhe, Jr., Counsel for Appellant Waste Management of Louisiana, L.L.C.
    DEGAN, BLANCHARD & NASH, Baton Rouge, By: Eric D. Burt, Counsel for Appellee Copeland Electric Company, L.L.C.
    Before PITMAN, STONE, and BLEICH (Pro Tempore), JJ.
   STONE, J.

Glenn and Cindy Chesney, along with Waste Management of Louisiana, L.L.C., appeal the trial court's ruling granting summary judgment in favor of Copeland Electric Company, L.L.C., and dismissing the Chesneys' action. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 31, 2010, Glenn Chesney ("Chesney") arrived at the Magnolia Landfill ("the landfill") hauling a removable trash container on a 10-wheel flatbed truck owned by his employer, Waste Management of Louisiana, L.L.C ("Waste Management"). Due to a power outage, the weigh scale at the landfill was not working, and truck drivers had to wait in line for the scale to reopen. While waiting in the line of trucks that had formed along the entrance road on the landfill property, Chesney decided to untarp his load so he could unload faster once he got to the front of the line.

Chesney's truck was equipped with an automatic tarp system that covered his container during transport. The tarp system was attached to the truck with movable mechanical arms. During operation of the system, the arms extended vertically 17 feet 12 inches above the ground. After Chesney activated the mechanical arms to lift the tarp, the arms extended into the air and came into contact with an uninsulated overhead power line. Contemporaneously, electricity was restored to the power lines, and electricity flowed through the truck and electrocuted Chesney. The electrical shock caused Chesney to suffer severe injuries.

On August 31, 2011, Chesney and his wife, Cindy Chesney (collectively referred to as "Plaintiffs"), filed suit against Copeland Electric Company, L.L.C. ("Copeland") and Entergy Electric Company ("Entergy"). In their petition, Plaintiffs identified Copeland as the electrical contractor who installed the power lines. According to Plaintiffs, the overhead power lines, designed and installed in 1994, had an initial clearance of 20 feet above the ground. However, due to the passage of time, the power lines began to sag downward and at the time of the accident were only 13.5 to 15 feet above the ground at their lowest point. Plaintiffs claimed Copeland negligently caused Chesney's injuries for the following reasons: 1) Copeland installed and maintained defectively designed and/or manufactured overhead power lines; 2) Copeland installed and maintained power lines too close to the ground and to traversing traffic, trucks, workers, and equipment; 3) Copeland failed to raise and/or relocate the power lines when it knew or should have known of the characteristics of truck traffic at the landfill; 4) Copeland failed to properly inspect the overhead power lines; 5) Copeland failed to adequately warn Waste Management of the dangers associated with the ultrahazardous overhead power lines, either at the time of construction or thereafter; 6) Copeland failed to warn of the consequences of contact with the high voltage line; and 7) Copeland failed to take any reasonable steps to eliminate, minimize, or warn of the danger.

On September 26, 2011, Waste Management intervened in the suit to recover worker's compensation payments it made to Chesney as a result of the accident. Thereafter, Copeland filed an exception of peremption arguing Plaintiffs' claims should be dismissed pursuant to La. R.S. 9:2772 (" Section 9:2772"), which provides a 10-year peremptive period for actions related to construction of an improvement to immovable property. Copeland asserted it was hired by Waste Management to design and construct the overhead electrical lines in the early 1990s. The structure was completed in 1994. Copeland argued that since more than 10 years had elapsed since the system's construction, Plaintiffs' cause of action was barred by peremption. In opposition to Copeland's exception, Plaintiffs argued that some of the wrongful acts they complained of were considered "post-construction negligence" and were outside the scope of the peremption statute.

The trial court agreed with Copeland and found Plaintiffs' construction-related claims were perempted by Section 9:2772. Additionally, as to Plaintiffs' remaining claims for post-construction negligence, the trial court found Plaintiffs failed to establish Copeland owed a duty to Waste Management or its employees, except for limited matters that Copeland was hired to do over the intervening years. The trial court sustained Copeland's exception of peremption and dismissed Plaintiffs' action.

On appeal, this Court affirmed the trial court's finding that Plaintiffs' construction related claims are perempted by Section 9:2772. However, this Court concluded the trial court improperly dismissed Plaintiffs' post-construction negligence claims under the procedural posture of an exception of peremption when summary judgment was the appropriate vehicle to adjudicate those issues. Chesney v. Entergy La., L.L.C. , 49,816 (La. App. 2 Cir. 05/27/15), 166 So.3d 1204. The matter was remanded for further proceedings on the post-construction negligence claims.

Following remand, Copeland moved for summary judgment. Copeland claimed the undisputed facts demonstrated Plaintiffs would not be able to prove Copeland owed them or Waste Management a duty to discover, protect against, or warn of the allegedly hazardous power line. In response, both Plaintiffs and Waste Management argued an electrical professional, like Copeland, has a legal duty to report any electrical hazard that it observes on a customer's premises, even where there is no explicit contract to do so.

After considering the law and evidence, the trial court granted summary judgment, finding Copeland owed no duty to inspect, notify, and/or warn Waste Management of a potentially hazardous condition as it related to the overhead power lines. The trial court dismissed Plaintiffs' and Waste Management's claims and made the following observations in its oral reasons for judgment:

Copeland installed the system back in the early 1990s, designed and installed the system. The system, once it was installed, it was turned over to the ownership of Waste Management. It appears from the facts and the argument that Copeland [sic ] was the [sic ] electrical contractor for Waste Management and, when there were issues related to electrical problems on the premises, Copeland was the company that was called and they came through there on average of roughly four times a year, according to the facts of this case. But there was no special relationship with Waste Management. They were called upon to come out to address electrical issues from time to time but had no special relationship to the extent that they owed a heightened duty to [Waste Management] and persons using the facility there to inspect and warn of a dangerous condition. And given the facts of this case, we're talking only about less than a five percent deviation from the code requirement and the alleged height at the time of the incident; a very small deviation.

The trial court noted that placing a duty on Copeland to inspect and/or notify Waste Management of potential hazardous conditions would be a violation of public policy. Plaintiffs and Waste Management now appeal.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau , 2007-1726 (La. 02/26/08), 977 So.2d 880 ; Driver Pipeline Co., Inc. v. Cadeville Gas Storage, L.L.C. , 49,375 (La. App. 2 Cir. 10/01/14), 150 So.3d 492, writ denied , 2014-2304 (La. 01/23/15), 159 So.3d 1058. On appeal, a trial court's ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago , 03-1424 (La. 04/14/04), 870 So.2d 1002 ; Henderson v. Union Pac. R.R. , 41,596 (La. App. 2 Cir. 11/15/06), 942 So.2d 1259. Appellate courts review summary judgments under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs of La. State Univ. , 591 So.2d 342 (La. 1991) ; Lewis v. Coleman , 48,173 (La. App. 2 Cir. 06/26/13), 118 So.3d 492, writ denied , 13-1993 (La. 11/15/13), 125 So.3d 1108 ; Grant v. Sneed , 49,511 (La. App. 2 Cir. 11/19/14), 155 So.3d 61.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially ensure or preclude recovery, affect a litigant's ultimate success or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512 (La. 07/05/94), 639 So.2d 730 ; Estate of Levitz v. Broadway , 37,246 (La. App. 2 Cir. 05/14/03), 847 So.2d 170. La. C.C.P. art. 966(D)(1) provides the general rule concerning the burden of proof for summary judgment and states in pertinent part as follows:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party "may not rest on the mere allegations or denials of his pleading," but his response, by affidavits or other proper summary judgment evidence, "must set forth specific facts showing that there is a genuine issue for trial." If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

In conducting our de novo review, we consider all reasonable inferences to be drawn from the record in the light most favorable to the nonmovant. Hines v. Garrett, 04-0806 (La. 06/25/04), 876 So.2d 764.

Liability for negligence is determined by applying the duty/risk analysis. McGuire v. New Orleans City Park Imp. Ass'n, 2002-1401 (La. 01/14/03), 835 So.2d 416. The plaintiff must prove the defendant's conduct was the cause-in-fact of his harm, the defendant owed a duty of care, the defendant breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Id. ; Pitre v. Louisiana Tech Univ., 95-1466 (La. 05/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).

Whether a duty exists is a question of law; the inquiry is whether any statutory or judicial law supports the plaintiff's claim that the defendant owed him a duty. Rando v. Anco Insulations, Inc., 2008-1163 (La. 05/22/09), 16 So.3d 1065 ; Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 03/10/06), 923 So.2d 627.

In Hagood v. Brakefield, 35,570 (La. App. 2 Cir. 01/23/02), 805 So.2d 1230, writ denied , 2002-0557 (La. 04/26/02), 815 So.2d 90, this Court discussed liability for damage caused by defective things. La. C.C. 2317 and 2317.1 state:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

This, however, is to be understood with the following modifications.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

Enacted in 1996, La. C.C. art. 2317.1 effectively negated the concept of "strict liability" for defective things and prescribed a negligence standard based on the owner or custodian's knowledge or constructive knowledge of a defect. However, the article 2317.1 requirement of constructive knowledge imposed a reasonable duty to discover apparent defects in things under the defendant's garde . Hagood, supra. To determine whether a defendant had garde or custody over a thing, a court must consider whether the defendant had the right of direction or control over the thing and what, if any, benefit the defendant derived from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La. 1991).

Actions under La. C.C. art. 2317.1 require proof that the thing was in the defendant's custody, the thing contained a defect which presented an unreasonable risk of harm to others, this defective condition caused the damage, and the defendant knew or should have known of the defect. Odom v. Siegel, 48,757 (La. App. 2 Cir. 01/15/14), 130 So.3d 1024 ; Johnson v. Super 8 Lodge-Shreveport, 47,081 (La. App. 2 Cir. 04/25/12), 92 So.3d 519.

The sole issue before this Court is whether Copeland owed Waste Management a duty to inspect the electrical power lines or notify Waste Management of any hazardous condition posed by the power lines after their initial installation. In support of their argument that Copeland owed Waste Management a duty to discover and warn of dangers posed by a low hanging power line, Plaintiffs set forth five points.

First, Plaintiffs allege Copeland owed Waste Management a duty because of the special relationship created when Copeland became an approved vendor for Waste Management's electrical services. Plaintiffs insist Copeland had an ongoing relationship with Waste Management and was Waste Management's "go-to" electrical company for several years immediately prior to, and at the time of, Chesney's injury.

Second, Plaintiffs argue Copeland owed a duty because of the frequency with which Copeland provided Waste Management with services. Plaintiffs assert that during the time period leading up to Chesney's injury, Copeland personnel visited the landfill to perform electrical work an average of 4 times per year. Plaintiffs claim that during these periodic visits, Copeland should have noticed the low hanging power line and its potential to injure someone.

Third, Plaintiffs argue Copeland owed a duty because of the seriousness of the hazard. The electrical line involved in Chesney's injury was an uninsulated high voltage line. According to Plaintiffs, all electrical personnel who were deposed acknowledged that, when such a line sags down over a road, it presents a serious hazard to those using the road.

Fourth, Plaintiffs argue Copeland owed a duty because of the predictability of the hazard. Plaintiffs contend that all of the electrical professionals deposed agreed that overhead electrical power lines have a tendency to sag down due to the passage of time. Therefore, Plaintiffs argue that, to an electrical professional, it is predictable and foreseeable that a line that has been in place for many years will gradually sag. Plaintiffs argue Copeland personnel, knowing the age of the line, would know the line was likely to sag, even if they never looked at it.

Fifth, Plaintiffs argue Copeland owed a duty because of the custom and practice of electrical professionals in that industry. According to Plaintiffs, electrical professionals who observe an electrical hazard on a customer's property will typically report the hazard to the customer; this is true even if the hazard is posed by something other than the specific piece of electrical equipment the contractor is hired to work on at the time. Furthermore, Plaintiffs assert since electricians are trained and licensed professionals who possess specialized knowledge and expertise, non-expert customers reasonably rely on them to advise on what they should know about their electrical systems. This includes identification of hazards that are apparent to the electrician because of his specialized knowledge, but may not necessarily be apparent to the customer.

Plaintiffs submitted the partial deposition of a Copeland employee, Kevin Tarver ("Tarver"), who admitted that if he noticed a sagging power line on a customer's premises, he would report it to his supervisor. Plaintiffs also cited a portion of Seth Copeland's ("Seth") deposition. Seth, who is the Safety Director for Copeland, confirmed that Copeland had performed numerous jobs at the landfill for Waste Management.

Moreover, Plaintiffs attached the supplemental affidavit of Brian Duff ("Duff"), Waste Management's manager between 2007 and 2010. In his affidavit, Duff describes how the approved vendor system works and the process by which Copeland Electric became an approved vendor for Waste Management. Duff indicated the relationship between Waste Management and its approved vendors is an ongoing, mutually beneficial relationship, and the vendors understood this. Duff stated Copeland was one of Waste Management's approved vendors and Copeland did almost all of the electrical work at the landfill during the years immediately prior to Chesney's accident.

Conversely, Copeland contends that since the line's completion in 1994, Waste Management has owned and retained exclusive custody and control of the entire overhead power system, including the overhead power line in question. Copeland asserts it has only performed electrical work at the landfill when hired by Waste Management to do so, and then only on an "as needed" basis.

Copeland also argues there is no evidence to support a finding that Copeland and Waste Management shared any "recognized relationship" that would give rise to an affirmative duty to warn of the alleged hazard, or that Copeland ever voluntarily assumed a duty to provide for workplace safety at the landfill. According to Copeland, a vendor and vendee is not akin to the type of fiduciary or confidential relationship that is required to impose an affirmative duty under Louisiana law.

In support of its summary judgment, Copeland submitted the deposition of co-owner Michael Copeland ("Michael"), a licensed electrical contractor. In his deposition, Michael testified that Waste Management contracted with Copeland to install the overhead power line involved in Chesney's accident in the early 1990s. At the time of its completion, the power line complied with industry standards that it be at least 18 feet 6 inches above the ground. Michael stated that at some point around 1998 or 1999, he recalls the road underneath the power line being changed from gravel to concrete which could have contributed to a shorter distance between the line and the road over the years. However, Michael attested that he never noticed a sag over the concrete road that appeared to be hazardous or in noncompliance with the industry standard. Notwithstanding, Michael stated it had never been Copeland's policy, custom, or practice to report hazardous conditions to Waste Management if it became aware of such. According to Michael, Copeland only inspected for and/or reported hazardous conditions to Waste Management when the condition was in connection with a task that Copeland was actually working on at the time.

Michael declared that after Copeland installed the overhead power line, the line became the property and obligation of Waste Management. Michael stated Waste Management never entered into an agreement with Copeland wherein Copeland would periodically come to the landfill to inspect the lines or inform Waste Management of any required maintenance or repairs. Moreover, Michael stated Waste Management had never requested that Copeland perform a safety check of any of Waste Management's power lines. Michael insisted if Waste Management had contracted with Copeland to periodically come to the landfill to inspect the electrical installations, Copeland could have and would have accommodated Waste Management.

A de novo review of the record reveals Copeland did not have a duty to inspect and/or notify Waste Management or Plaintiffs of a potentially hazardous condition as it relates to the overhead power lines. After Copeland installed the power lines, the power lines became the property of Waste Management. At all times prior to Chesney's accident, Waste Management retained custody and control of the power lines. The record does not suggest Waste Management ever contracted with Copeland to periodically inspect or maintain any of the overhead power lines after the lines' initial installation. Likewise, the record is devoid of any evidence indicating Waste Management requested or authorized Copeland to perform any work or services involved in adjusting the height of any of the overhead power lines subsequent to the lines' construction. Louisiana law does not impose upon Copeland a preexisting, affirmative duty to discover and warn of a hazard simply because its employees passed beneath the power line when they entered the landfill to perform entirely unrelated electrical work. Furthermore, there is no evidence that Copeland voluntarily undertook any such duty through a special relationship or otherwise.

Plaintiffs have failed to produce factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial with regard to Copeland's duty to them or Waste Management. Consequently, there is no genuine issue of material fact, and the trial court properly granted summary judgment with regard to the duty issue.

CONCLUSION

For the foregoing reasons, the trial court's judgment granting summary judgment in favor of Copeland is affirmed. Costs of this appeal are assessed to Plaintiffs.

AFFIRMED.

      In their original petition, Plaintiffs named Entergy Louisiana, L.L.C.; Entergy Arkansas, Inc.; and Entergy Gulf States, Louisiana, L.L.C. On June 4, 2014, Plaintiffs dismissed their claims against Entergy in a joint motion to dismiss with prejudice.

      At the time of Chesney's accident, the National Electric Code ("the NEC") required that the power line have a minimum clearance of 18 feet 6 inches between its lowest point and the road.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James STEWART, Appellant
    No. 51,705-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    ANNETTE FULLER ROACH, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY JAN JOHNSON, JASON WAYNE WALTMAN, JOSHUA K. WILLIAMS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, STONE, and COX, JJ.
   STONE, J.

The defendant, James Stewart, was charged with aggravated flight from an officer, in violation of La. R.S. 14:108.1. Following a jury trial, Stewart was found guilty as charged and sentenced to serve five years at hard labor. Stewart now appeals his conviction and sentence, alleging the evidence was insufficient to support a conviction and his sentence is excessive. For the following reasons, we affirm the conviction and sentence.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

James Stewart ("Stewart") was arrested on May 16, 2016 and charged with aggravated flight from an officer in violation of La. R.S. 14:108.1. After a trial by jury, Stewart was found guilty as charged by a 10-2 vote. The trial court sentenced Stewart to the statutory maximum penalty of five years at hard labor.

Stewart's appointed counsel filed a motion to reconsider sentence claiming the evidence was insufficient to justify imposing the maximum sentence. The trial court denied the motion. Thereafter, Stewart filed a pro se motion to reconsider sentence, which the trial court also denied. Stewart now appeals.

DISCUSSION

Sufficiency of Evidence

On appeal, Stewart does not dispute that he was guilty of flight from an officer or the issue of identity, but instead focuses on the evidence to support the aggravated aspect of the charged offense. Stewart argues the state failed to prove beyond a reasonable doubt that a minimum of two of the aggravating factors listed in La. R.S. 14:108.1(D) applied to his case.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010) ; State v. Hill , 42,025 (La. App. 2 Cir. 05/09/07), 956 So.2d 758, writ denied , 07-1209 (La. 12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact such as a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; Lilly, supra ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 12-2658 (La. 05/17/13), 117 So.3d 918. The trier of fact is charged with weighing the credibility of this evidence and on review, the Jackson standard is applied, giving great deference to the fact finder's conclusions. State v. Hill , 47,568 (La. App. 2 Cir. 09/26/12), 106 So.3d 617.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 12-2667 (La. 05/24/13), 116 So.3d 659 ; State v. Speed , 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/06/09), 21 So.3d 299. The trier of fact is charged to make credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Woodard , 47,286 (La. App. 2 Cir. 10/03/12), 107 So.3d 70, writ denied , 12-2371 (La. 04/26/13), 112 So.3d 837.

La. R.S. 14:108.1 provides, in pertinent part, the following regarding aggravated flight from an officer:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
* * * *
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.

During jury trial, the state presented testimony from one witness, Officer Derek Snyder of the Shreveport Police Department. Officer Snyder testified that on May 2, 2016, at around 12:40 a.m., he was patrolling Pines Road in a marked Shreveport Police vehicle when he pulled up behind a red Toyota Corolla at a traffic light. The license plate, though visible, was difficult to read. Officer Snyder decided to check the validity of the license plate using his computer system. A check of the plate revealed it was registered to a Buick Century, and the plate had previously been cancelled. Officer Snyder initiated a traffic stop by activating his lights and siren. The driver of the Toyota proceeded through the traffic light and turned right onto a residential street. The driver pulled into a driveway and appeared to be stopping. However, the driver instead reversed out of the driveway and drove forward into the front yard to get around Officer Snyder's police unit. As the driver was pulling around Officer Snyder's unit, Officer Snyder opened his door and gave the driver a verbal directive to stop. Officer Snyder recalled clearly seeing Stewart driving the Toyota.

Officer Snyder testified Stewart ignored his command to stop the Toyota, sped down the residential street, and turned south onto Pines Road. Officer Snyder pursued the fleeing Toyota. He stated the posted speed limit in that area was 45 mph, and he had to travel 90 mph to catch up with the vehicle. Officer Snyder testified he chased the Toyota along Pines Road, over a railroad track, and through a four-way stop sign where Pines Road intersects with Flournoy-Lucas Road. He further testified the Toyota briefly crossed over the double-yellow line on the road and into the opposite lane of traffic. According to Officer Snyder, Stewart eventually lost control of the vehicle in a curve. The Toyota again crossed the yellow line into the other lane of traffic and came to a stop in the grass on the opposite side of the road. Stewart and the passenger, Michael Traylor ("Traylor"), fled the scene on foot. Officer Snyder was able to capture Traylor, but Stewart disappeared into the woods.

Officer Snyder testified that after he arrested Traylor, he conducted a search of the Toyota. Inside the Toyota, he found a picture ID bearing a photo resembling the person Officer Snyder saw driving the Toyota, the name "James Stewart," and an address of 3415 Fulton Street. Officer Snyder attempted to locate Stewart at the Fulton address but was unsuccessful. An arrest warrant was prepared for Stewart, and he was later apprehended. In open court, Officer Snyder identified Stewart as the same person driving the Toyota as well as the person pictured on the ID found inside the Toyota.

Officer Snyder testified Stewart committed the following violations: switched license plates; traveled at a high rate of speed in a residential area with no regard for life or property; ran a four-way stop sign; and crossed the double-yellow line of a divided roadway into the other lane of traffic. Officer Snyder also stated that during the pursuit there were no collisions, injuries, or damage to property, and no vehicles were forced off the road.

In its oral reasons for sentencing, the trial court considered the factors outlined in La. C. Cr. P. art. 894.1. The trial court found an undue risk that Stewart would commit another crime if sentenced to probation or a suspended sentence. Additionally, the trial court determined Stewart was in need of correctional treatment by commitment to an institution, and any lesser sentence would deprecate the seriousness of the offense.

As aggravating factors, the trial court noted Stewart's prior conviction for the same offense in which Stewart received only a one-year suspended sentence with one year of supervised probation. The trial court commented that Stewart apparently learned nothing from the "gift" of probation in which he received. Additionally, the trial court observed that in committing the current offense, Stewart knowingly created a risk of death or great bodily harm to more than one person, namely, Traylor, Officer Snyder, and himself. The trial court found that Stewart's actions and repeated offenses demonstrated he had no respect for police or law enforcement. Finally, the trial court determined no mitigating factors applied in this case.

Stewart insists the more serious aggravated offense is not warranted because he did not injure anyone, did not collide with any other vehicles or force any vehicles off the road, and did not cause any property damage. However, this Court has previously explained that the factors required to establish human life was endangered, in support of an aggravated flight from an officer conviction, are not based upon actual personal injuries, property damage, or vehicle collisions. Rather, the factors focus on the harm the offender creates toward the public and the law enforcement officer attempting to make the stop.

In State v. Gilbert , 49,039 (La. App. 2 Cir. 04/09/14), 136 So.3d 995, this Court found the evidence sufficient to support a conviction for aggravated flight from an officer where the defendant drove at speeds exceeding 80 mph and ran a red traffic light in order to evade an outstanding arrest warrant for resisting an officer and misrepresentation during booking. The vehicle the defendant was driving was stolen and contained a stolen handgun and a small amount of marijuana. While there were no other vehicle collisions, personal injuries, or property damage, this Court noted the defendant endangered the lives of his passengers, the pursuing officers, and the citizens.

Likewise, in State v. Scroggins , 49,194 (La. App. 2 Cir. 08/13/14), 147 So.3d 276, this Court upheld the defendant's conviction for aggravated flight from an officer, even though the defendant did not cause any collisions, personal injuries, or property damage, where the defendant placed the public and the pursuing police officer in harm's way by recklessly driving 66-99 mph in a 45 mph zone, crossing the median in a no passing zone, and running a traffic light.

In the matter sub judice , Stewart recklessly drove his vehicle at high speeds through a densely-populated area, over a railroad track, and through a four-way stop sign. The posted speed limit was 45 mph, and Officer Snyder testified he had to drive at least 90 mph just to keep up with Stewart. The audio and video recording of the event recorded on Officer Snyder's police unit was admitted into evidence and played for the jury. In the video, Stewart's face is clearly visible as he ignores Officer Snyder's verbal command to stop and continues driving. As Officer Snyder immediately pursues Stewart back onto Pines Road, the red Toyota is visible at quite a distance, corroborating Officer Snyder's testimony that Stewart was traveling at a high rate of speed in the 45 mph zone. The video shows that, despite Officer Snyder traveling at 90 mph, Stewart maintained a comfortable distance ahead of the officer. Stewart undoubtedly could not have maintained that distance had he slowed down at the railroad tracks or come to a complete stop at the four-way stop sign. The evidence was sufficient to prove Stewart committed the following aggravated circumstances: 1) traveled in excess of 25 mph over the speed limit in violation of La. R.S. 14:108.1(D)(3) ; 2) failed to obey a stop sign in violation of La. R.S. 14:108.1(D)(5) ; 3) crossed the median in a no-passing zone, into the opposite lane of traffic, in order to pass another vehicle driving South on Pines Road, in violation of La. R.S. 14:108.1(D)(4) ; and 4) lost control of the vehicle in a turn, which resulted in him driving off the roadway, in violation of La. R.S. 14:108.1(D)(1).

In viewing the totality of the evidence in a light most favorable to the prosecution, we opine that any rational trier of fact could have found the essential elements of aggravated flight from an officer proven beyond a reasonable doubt.

Constitutionally Excessive Sentence

Stewart argues the five-year maximum sentence is constitutionally excessive in light of the facts of his case. Though Stewart acknowledges he has prior felony convictions, including one for aggravated flight from an officer, he asserts the offenses are all minor. He insists that he is not the worst offender and his conduct did not constitute the worst offense.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy , 39,233 (La. App. 2 Cir. 01/26/05), 892 So.2d 710 ; State v. Young , 46,575 (La. App. 2 Cir. 09/21/11), 73 So.3d 473, writ denied , 11-2304 (La. 03/09/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler , 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque , 46,515 (La. App. 2 Cir. 09/21/11), 73 So.3d 1021, writ denied , 11-2347 (La. 03/09/12), 84 So.3d 551.

Where the defendant's motion to reconsider sentence alleges mere excessiveness of sentence, on appeal, the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Boyd , 46,321 (La. App. 2d Cir. 09/21/11), 72 So.3d 952. A sentence can be constitutionally excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that when viewed in light of the harm done to society, it shocks the sense of justice or, it serves no purpose other than to needlessly inflict pain and suffering. State v. Fatheree , 46,686 (La. App. 2 Cir. 11/02/11), 77 So.3d 1047 ; State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Livingston, 39,390 (La. App. 2 Cir. 04/06/05), 899 So.2d 733 ; State v. White , 37,815 (La. App. 2 Cir. 12/17/03), 862 So.2d 1123.

The defendant's personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton , 46,607 (La. App. 2 Cir. 09/21/11), 73 So.3d 503, writ denied , 11-2288 (La. 03/30/12), 85 So.3d 113 ; State v. Caldwell , 46,645 (La. App. 2 Cir. 09/21/11), 74 So.3d 248, writ denied , 11-2348 (La. 04/27/12), 86 So.3d 625. Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor , 41,898 (La. App. 2 Cir. 04/04/07), 954 So.2d 804.

La. R.S. 14:108.1(E)(1) provides that the penalty for committing aggravated flight from an officer shall be imprisonment at hard labor for not more than five years and an optional fine of no more than $2,000.

Under the circumstances of this case, we find no showing that the trial court abused its discretion in imposing the five-year maximum sentence. The sentence was within the statutory guidelines and the trial court articulated detailed reasons supporting the imposed sentence. Stewart had three prior convictions, including one for the same offense, and was granted the benefit of a suspended sentence and probation in each. As the trial court noted, despite the trial court's prior leniency in sentencing in those matters, Stewart continues to disregard law enforcement and place human lives in mortal danger. Furthermore, Stewart did not show any remorse or take responsibility for his crime and continued to downgrade the nature of his prior criminal activity as minor. Despite the absence of injury and damage, Stewart's actions presented undue risk of harm to human life including his own, Officer Snyder's, Traylor's, and any other driver present on the road that night. Accordingly, the imposed sentence is not grossly disproportionate to the severity of the danger caused by Stewart's actions, does not shock the sense of justice, and is not constitutionally excessive.

CONCLUSION

For the foregoing reasons, Stewart's conviction and sentence are affirmed.

AFFIRMED.

      Stewart was also ordered to pay $250 to the indigent defender's office and all court costs.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Troy STEPHENSON, Appellant
    No. 51,696-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017.
    LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, TRENEISHA HILL, JASON WALTMAN, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and BLEICH (Pro Tempore ), JJ.
   GARRETT, J.

The defendant, Troy Stephenson, was convicted of sexual battery of the teenage daughter of his live-in girlfriend. The trial court sentenced him to 10 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appeals, contending that the evidence was insufficient. We affirm the defendant's conviction and sentence.

FACTS

On May 23, 2009, 12-year-old J.B. reported to relatives that a man had grabbed her and touched her breasts, stomach, and vagina at a family party. The Shreveport Police Department ("SPD") was called, and the defendant, a family friend, was arrested. However, the case was eventually closed due to lack of cooperation by J.B.'s family.

On May 28, 2015, the mother of 17-year-old C.H. reported to the police that her daughter had just informed her that the defendant, the mother's live-in boyfriend, had engaged in sexually inappropriate behavior with the girl on several occasions. The defendant was arrested and charged with sexual battery. After the investigating detective learned of the prior incident involving J.B., the defendant was additionally charged with one count of indecent behavior with a juvenile under the age of 13.

On January 10, 2017, the defendant was tried on both charges. The jury acquitted him of the indecent behavior charge involving J.B., but convicted him of the sexual battery of C.H. A motion for post-verdict judgment of acquittal was denied. The trial court sentenced the defendant to 10 years at hard labor without the benefit of parole, probation or suspension of sentence. A motion to reconsider sentence was denied.

The defendant appeals, asserting insufficient evidence to convict him of the charge of sexual battery.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a 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 v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robinson , supra .

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Mitchell , 50,188 (La. App. 2 Cir. 11/18/15), 181 So.3d 800, writ denied , 2015-2356 (La. 1/9/17), 214 So.3d 863. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Mitchell , supra ; State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Crossley , 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied , 2013-1798 (La. 2/14/14), 132 So.3d 410 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson , 47,913 (La. App. 2 Cir. 4/10/13), 113 So.3d 1209.

The testimony of the victim alone in a sexual assault case is sufficient to convince a reasonable fact finder beyond a reasonable doubt of a defendant's guilt. State v. Rives , 407 So.2d 1195 (La. 1981) ; State v. Sanderson , 49,957 (La. App. 2 Cir. 7/22/15), 174 So.3d 149 ; State v. Wade , 39,797 (La. App. 2 Cir. 8/9/05), 908 So.2d 1220, writs denied , 2006-0109, 2006-0148 (La. 6/2/06), 929 So.2d 1251. Furthermore, such testimony alone is sufficient, even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Wade , supra .

In pertinent part, La. R.S. 14:43.1 provides:

A. Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, ... when any of the following occur:
(1) The offender acts without the consent of the victim.

Testimony

In her trial testimony, C.H. recounted a series of sexually inappropriate incidents involving the defendant that occurred during the approximately two-month period that they lived in the same house. They all occurred at night while her mother, a personal sitter, was at work, and her two younger sisters were in their bedroom. During the first incident, which occurred in the kitchen, the defendant engaged C.H. in a conversation about sex. He showed her how to use a condom, first by putting it on a banana, then on a wrench he produced from under the kitchen sink. He then encouraged the girl to masturbate with the condom-covered tool. In an attempt to "wave the conversation away," C.H. accepted the tool but excused herself to go take her shower and get ready for bed. While she was showering, the defendant entered the bathroom uninvited. After a brief conversation, he peeked behind the shower curtain at her and asked if he could shower with her. She told him to get out. She did not tell anyone about the incident.

The next time C.H. was alone with him, she was washing dishes in the kitchen. During a discussion about exercising and gyms, she indicated that she wanted to exercise to improve her health. The defendant offered to help her train. They did sit-ups and squats on opposite sides of the bedroom he shared with her mother. After a few days, the defendant moved over to the side of the room where she was exercising. He held her feet down while she did sit-ups. On one occasion, while holding her feet down, he told C.H. that she never smelled bad, and then put his head near her crotch and sniffed. Although shocked and uncomfortable, C.H. said nothing. On another occasion, when she was doing squats, the defendant came up behind her close enough for her to feel that he had an erection. Disgusted, she told him it was late and she had school in the morning.

After that, she skipped exercising for several days until the defendant noticed and wanted to resume. After an exercise session, the defendant said he wanted to give her a massage so she would not be sore from the workout. C.H. testified that she was afraid to refuse. The defendant asked her to remove her gym shorts, leaving her clothed in her underwear and a shirt. He instructed the teenager to lie on her back on the bottom of the bed and rubbed baby oil on her thighs, legs and feet. He then asked her to roll over on her stomach. He proceeded to work his way up her legs. He massaged her buttocks and put his fingertip between her inner thighs before touching her "private area." Shocked, she told him he could stop, got up, and said good night. After that, she stopped exercising and talked to the defendant less often.

The final incident occurred when the defendant "really wanted" C.H. to watch a movie with him in the bedroom he shared with her mother. Although she initially watched the movie while seated at the end of the bed, he encouraged her to get under the covers, like him, so she would not be cold. At first, they merely talked about the movie. He then began to move closer to her, told her to be still, and put his hand on her shoulder. C.H. said she was afraid to move. The defendant first rubbed his fingertips on her leg, then went through her gym shorts and put his finger in her vagina. He moved his finger in and out, asking her if she felt that. Scared, C.H. said nothing. But she jumped out of the bed and went back to her bedroom. She never went in the defendant and her mother's bedroom again.

C.H. candidly admitted that she never really liked anyone her mother dated, including the defendant. After her family first moved in with him, her mother encouraged her to "lighten up" and not be "so mean" to the defendant. To please her mother, C.H. made an effort to talk to the defendant more often. When asked why she did not tell her mother about the defendant's inappropriate behavior sooner, C.H. explained that she did not want to ruin her mother's relationship with the defendant because he made her mother happy. She believed that if she kept "waving" off the defendant's behavior, it would stop. When her mother told her that they were going to move out of the house, C.H. thought she could avoid upsetting her mother by never telling her what had happened. However, when the defendant's daughter subsequently informed her that her mother was reconsidering moving out, C.H. realized that she had to tell her. Just before her mother was due to leave for work, C.H. texted her to come to her bedroom. After she revealed what the defendant had done to her, her mother began to cry and told her that she knew she was telling the truth. After showing her daughter an open condom she had found in her own closet, she looked under the kitchen sink and found a tool similar to the one C.H. described. Her mother then gathered up all three of her daughters, as well as the defendant's teenaged daughter, and took them to her place of employment. She called the police from there.

T.W., C.H.'s mother, testified that her daughter had described three incidents to her when telling her about the defendant's actions. One occurred in the kitchen when C.H. was talking to him and she noticed that he was fondling himself. Another involved him rubbing and smelling C.H. while exercising and saying he was glad she took a bath. The third involved him picking C.H. up while she was washing dishes. Although T.W. did not initially mention in her testimony the incident in the kitchen with the condom and the tool, she later indicated that C.H. told her about it and described finding objects that corroborated the girl's account. The condom wrapper her daughter described was for the same sort of condom that T.W. and the defendant used. A few days after C.H. made her revelations, T.W. asked her for a more detailed description of the tool. They eventually found the tool, but T.W. testified that she threw it away. T.W. also stated that she obtained a restraining order against the defendant, which forced him to move out of the house they were renting together. After he left the house, C.H. disclosed more details to her, including instances when he would come into a room where she was and would "shake hisself." He would put his hand in his clothes and wiggle "his private" around. C.H. told her mother that she tried to ignore him. T.W. admitted that, at some point, she had noticed that C.H. didn't want to be in the same room as the defendant.

Detective Deandre Belle, who was assigned to the SPD sex crimes unit, testified that he followed up on the initial report made by T.W. He contacted them on June 1, 2015, and interviewed them the following day. C.H. recounted the incident where the defendant tried to talk to her in the kitchen about sex. She told him that she then went to shower and that the defendant came in the bathroom, pulled back the shower curtain, and saw her naked. According to the detective, she told him that she would do sit-ups in her room and that the defendant asked her to come in his bedroom for a massage. She told him that the defendant rubbed her leg, then went underneath her shorts, and put his finger in her vagina.

Discussion

The defendant contends that inconsistencies surrounding C.H.'s testimony mean that she merely "made up" the incidents because she did not like him and did not want her mother to stay with him. As a result, he argues that there was one reasonable theory that should have precluded the jury from finding him guilty and, as a result, this court should reverse his conviction.

Review of the evidence in the light most favorable to the state supports the sexual battery conviction. If believed, C.H.'s testimony alone supports the verdict. The jury was free to weigh the evidence and make a credibility determination about C.H's claims after considering any inconsistencies in her testimony regarding when the illegal touching occurred. Great deference is given to a jury's decision to accept or reject the testimony of a witness in whole or in part, and this court will not reevaluate the credibility of witnesses or reweigh the evidence.

C.H. reported multiple incidents occurring over a period spanning almost two months, a factor which could have contributed to some confusion on her part as to details and timing. Due to defense counsel's thorough cross-examinations, the jury was well aware of the inconsistencies between C.H.'s testimony detailing the defendant's sexually inappropriate actions against her and the testimony of her mother and the investigating detective recalling her descriptions of those events to them. The jury could have reasonably believed that C.H. did not provide her mother with full disclosure of the events in order to protect her. These inconsistencies are not sufficient to warrant the rejection of C.H's testimony as competent evidence of the defendant's guilt. See State v. Berry , 51,213 (La. App. 2 Cir. 5/17/17), 221 So.3d 967 ; State v. Joyner , 50,740 (La. App. 2 Cir. 6/22/16), 197 So.3d 724, writ denied , 2016-1493 (La. 6/16/17), 219 So.3d 1111.

Despite any inconsistencies in C.H's reports regarding the timing of the events, she consistently reported to the detective that the defendant touched and even digitally penetrated her vagina with his fingers. Evidence that the defendant touched and digitally penetrated C.H.'s vagina is sufficient proof that he was guilty of the crime of sexual battery. State v. Ordonez , 16-619 (La. App. 5 Cir. 3/15/17), 215 So.3d 473 ; State v. Gonzalez , 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227 ; State v. Perkins , 11-162 (La. App. 5 Cir. 12/28/11), 83 So.3d 250.

Consequently, after viewing the evidence in the light most favorable to the prosecution, we find that C.H.'s testimony that the defendant committed a sexual battery on her was sufficient to support the defendant's conviction. This assignment of error lacks merit.

ERROR PATENT

The minute entry for the defendant's sentencing states that he was "FOUND GUILTY OF COUNT #1 INDECENT BEHAVIOR WITH JUVENILES." However, the defendant was found guilty of Count 1, which was sexual battery, and acquitted of Count 2, which was indecent behavior with a juvenile under the age of 13. Accordingly, we direct the trial court to correct the minutes to accurately reflect the offense for which the defendant was sentenced.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

      The victims in this matter will be referred to by their initials for confidentiality purposes in accordance with La. R.S. 46:1844(W).

      This conversation occurred immediately after the defendant discussed chores with C.H. and her sisters and told them that he wanted to be a father figure to them. After the younger girls left the kitchen, the defendant began talking to C.H. about her father, who was incarcerated. He then began questioning C.H. about her sexual experiences.

      In her testimony, the mother clarified that she felt C.H. was "mean" to the defendant because she would not talk to him when he attempted to engage her in conversation.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Frederick THOMPSON, Jr., Appellant
    No. 51,674-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017.
    IBRAHIM & ASSOCIATES, LLC, New Orleans, LA, By: Mummi S. Ibrahim, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, LAURA W. FULCO, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and MOORE, JJ.
   MOORE, J.

Frederick Thompson Jr. appeals a judgment that resentenced him to life imprisonment at hard labor, with the benefit of parole eligibility, for a homicide committed in 1992, when he was 17 years old. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On the afternoon of September 20, 1992, Steven Potter was emptying trash into a Dumpster on Norris Ferry Road, in Caddo Parish. Someone came up behind him, shot him in the back of the head with a .38 caliber revolver, dragged his body to a nearby road, and drove off in his car. The next day, police spotted Thompson riding around in Potter's car. They stopped and questioned him, and, based on information he provided, arrested him and two accomplices for the first degree murder of Potter. At the time of the crime, Thompson was 17 years old.

The state indicted Thompson for first degree murder. He initially pled not guilty, but when the state filed notice of intent to seek the death penalty, he entered a best-interest plea of guilty without capital punishment, pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In September 1993, the district court sentenced him to the mandatory life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Thompson did not appeal.

Nearly 20 years later, the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Thompson filed a motion to correct an illegal sentence, pursuant to Miller , in October 2012.

Four years later, the United States Supreme Court held that Miller applied retroactively. Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Thompson filed an amended motion to correct an illegal sentence, pursuant to Montgomery , in April 2016.

Thompson proceeded to a hearing on his motions on September 26, 2016. The state did not express intent to make a showing, pursuant to La. C. Cr. P. art. 878.1B, that Thompson was a rare juvenile offender whose crime reflects irrevocable corruption. The district court resentenced him to life imprisonment with the possibility of parole, pursuant to La. R.S. 15:574.4E.

Thompson filed an application for supervisory review, which this court granted as a timely motion for appeal. Through counsel, Thompson has designated three assignments of error; he has also filed a pro se brief.

DISCUSSION

Denial of Resentencing Hearing

By his first assignment of error, Thompson urges the court erred in resentencing him to life with parole, pursuant to R.S. 15:574E, without holding a resentencing rehearing, pursuant to Miller v. Alabama , supra , to determine the appropriate sentence for a person who was unconstitutionally sentenced to die in prison as a child, thereby denying individualized sentencing and an opportunity to develop a record for alternative sentencing under State v. Dorthey , 623 So.2d 1276 (La. 1993), and State v. Fobbs , 99-1024 (La. 9/24/99), 744 So.2d 1274.

The contention that Thompson is entitled to a full hearing on resentencing is without merit. In Montgomery v. Louisiana , supra , the U.S. Supreme Court stated:

Miller' s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. * * * Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Id. at 736 (emphasis added, citations omitted).

In short, eligibility for parole is the sole question to be answered in a Miller hearing. State v. Keith , 51,389 (La. App. 2 Cir. 6/21/17), 223 So.3d 767 ; State v. Shaw , 51,325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607 ; State v. Sumler , 51,324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503. In furtherance of Miller' s mandate, the Louisiana legislature in 2013 enacted La. C. Cr. P. art. 878.1 and R.S. 15:574E. Article 878.1 required a trial court to conduct a hearing before imposing a life without parole sentence on a juvenile murder defendant:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

If the trial court imposes a life sentence with parole eligibility, R.S. 15:574.4E provided the conditions, including serving 35 years of the sentence imposed, before the defendant could apply to the parole board for parole consideration.

In the instant case, the state did not attempt to show that Thompson was the worst of offenders. He received the substantive benefit of Miller and Montgomery , supra , and the due process of La. C. Cr. P. 878.1 and R.S. 15:574.4. A full resentencing hearing was not required, as no amount of mitigating evidence would warrant any lesser sentence than he has already received, the most lenient sentence available to him under the current law. The claim to relitigate the entire sentence is completely groundless. Montgomery v. Louisiana , supra ; State v. Keith , supra . This assignment of error lacks merit.

Constitutionality of R.S. 15:574.4E

By his second assignment of error, Thompson urges that R.S. 15:574.4E, as applied, resulted in an illegal sentence that did not meet the mandates of Miller and Montgomery , supra . The argument is premised on a theory extracted from State v. Craig , 340 So.2d 191 (La. 1976) : at the time of the offense, 1992, the only available sentence for first degree murder was death or life without parole; however, if that sentence was found to be unconstitutional, the defendant could be sentenced only to the next lesser-included and responsive verdict, manslaughter, which carried a maximum of 21 years. From this premise, he argues, the 2013 enactment of R.S. 15:574.4Eincreased his maximum exposure by setting a minimum sentence of life with parole. This, he concludes, offends the constitutional protection against ex post facto laws, Rogers v. Tennessee , 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) ; State ex rel. Olivieri v. State , 2000-0172 (La. 2/21/01), 779 So.2d 735.

Thompson's reliance on State v. Craig , supra , is misplaced. Following the U.S. Supreme Court's decision in Selman v. Louisiana , 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which struck down Louisiana's then-mandatory death penalty for aggravated rape, the Louisiana Supreme Court held in Craig that defendants convicted of aggravated rape would be resentenced to the maximum term of imprisonment at the time of the offense for the next available responsive verdict, attempted aggravated rape. More recently, however, the same court has expressly declined to apply the Craig formula of "next available responsive verdict" in the context of aggravated rape committed when the offender was a juvenile. State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939, fn. 3. Tellingly, the court has never applied Craig to homicide sentences affected by Miller v. Alabama and Montgomery v. Louisiana , supra , and this court (and others) have explicitly refused to do so. State v. Keith , supra ; State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358. There is no merit to the argument that Miller and Montgomery effectively reduced Thompson's sentencing exposure to the maximum for manslaughter, 40 years.

The claim that R.S. 15:574.4E, as applied, creates an ex post facto violation is equally flawed. A law which "does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed" survives an ex post facto attack. Collins v. Youngblood , 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ; State v. Holloway , 2015-1233 (La. 10/19/16), 217 So.3d 343 ; State ex rel. Olivieri v. State , supra . Section 574.4 E neither criminalized any previously innocent conduct, increased any criminal penalty, nor deprived the accused of any defense. Using this intuitive analysis, the courts have explicitly rejected the argument that Sec. 574.4 E is unconstitutional. State v. Fletcher , 49,903 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 2014-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015) ; State v. Keith , supra ; State v. Plater , supra ; State v. Graham , supra ; State v. Doise , 2015-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied , 2016-0546 (La. 3/13/17), 216 So.3d 808.

Thompson also contends that Sec. 574.4 E is unconstitutional because it permits the court to impose an arbitrary, excessive sentence. In support, he cites an unpublished Florida district court case and an Iowa Supreme Court case, State v. Lyle , 854 N.W.2d 378 (Iowa 2014). We find these cases unpersuasive, in light of the Supreme Court's holding in Montgomery that a state may "remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Sec. 574.4 E's scheme of allowing a district court to resentence a juvenile homicide defendant to life with the benefit of parole, and setting a specific term (now 25 years) before the defendant may apply for parole, does no violence to Miller and Montgomery . This assignment of error lacks merit.

Claim for an Individualized Sentence

By his third assignment of error, Thompson urges the court erred in finding that State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, precluded the trier of fact from considering an individualized sentence, particularly a term of years, for people who were unconstitutionally sentenced to die in prison as children. In support, he reiterates that he was entitled to the Craig formula of "next available responsive verdict," or a sentencing range of 2 to 40 years, an argument that lacks merit. He further argues that even if R.S. 15:574.4E authorizes life with eligibility for parole after a certain number of years, the trial court still may impose a lesser, determinate sentence, of a specific number of years. He contends that "courts across the state of Louisiana have resentenced Miller defendants to a term of years." In support, he cites State v. Tate , 2012-2763 (La. 11/5/13), 130 So.3d 829, and an unpublished district court case from Franklin Parish. He suggests that the district court abused its discretion in not sentencing him to a specific term.

We are constrained to point out that State v. Tate , supra , was abrogated by the U.S. Supreme Court in Montgomery v. Louisiana , 136 S.Ct. at 732-735, as this court recognized in State v. Shaw , supra . Although we understand the rationale of Tate , we cannot consider it valid authority.

In general, a district court has discretion to find that a mandatory minimum sentence may indeed be excessive for a given offense and offender. State v. Dorthey , supra . However, in the context of a Miller hearing, the only question for the court is eligibility for parole. State v. Keith , supra ; State v. Shaw , supra ; State v. Sumler , supra . Thompson received the most lenient sentence available under the current law, and the state was not required to relitigate the entire sentence. This assignment of error lacks merit.

CONCLUSION

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Frederick Thompson Jr.'s sentence of life imprisonment at hard labor, with eligibility for parole, is affirmed.

AFFIRMED .

      Art. 878.1 was subsequently amended by 2017 La. Acts No. 277, § 2, effective August 1, 2017, to restate that the "sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility[,]" among other minor changes.

      R.S. 15:574.4 was subsequently amended by 2017 La. Acts No. 277, § 1, effective August 1, 2017, to reduce the required time to 25 years.

      The date of the offense is incorrectly stated as 1983 in the counseled brief.

      Approximately one month before the instant offense, the legislature raised the maximum sentence for manslaughter from 21 to 40 years. 1992 La. Acts No. 306, effective August 21, 1992.