text:
    STATE of Louisiana, Appellee v. Bruce Wayne DUFFY, Appellant
    No. 51,734-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018 Rehearing Denied February 22, 2018
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, Counsel for Appellant
    BRUCE WAYNE DUFFY, Pro Se
    JAMES E. STEWART, SR., District Attorney, MEKISHA S. CREAL, SENAE D. HALL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and GASKINS (Pro Tempore ), JJ.
   WILLIAMS, J.

The defendant, Bruce Wayne Duffy, was charged by bill of information with issuing worthless checks in an amount of $1,500 or more, a violation of La. R.S. 14:71. After a jury trial, the defendant was found guilty as charged. Defendant was sentenced to serve 4 years at hard labor, suspended, and was placed on supervised probation for three years, with conditions including the payment of a $200 fine and restitution. Defendant appeals his conviction. For the following reasons, we affirm.

FACTS

The record shows that in 2010 defendant received money from an inheritance and opened a savings and checking account with Pelican State Credit Union ("Pelican"). Defendant then obtained a line of credit at Sam's Town Casino in the amount of $20,000 that was payable from his Pelican checking account. The line of credit allowed defendant to sign markers to gamble.

On February 22, 2011, defendant signed three markers for a total of $20,000. On that date, defendant's checking account contained $10,418. When defendant did not pay the markers within 30 days, the casino submitted the markers to Pelican for payment. The markers were returned unpaid and the casino then sent a demand letter warning defendant that if the debt was not paid, the matter would be sent to the district attorney's office for prosecution.

Defendant was arrested and charged with issuing worthless checks. Following a jury trial, defendant was found guilty as charged. The trial court denied the defendant's motions for new trial and for post-verdict judgment of acquittal. Defendant was sentenced to serve 4 years at hard labor, suspended, with three years of supervised probation. Defendant was ordered to pay a $200 fine and restitution of $20,000 to Sam's Town Casino. The defendant's motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

The defendant contends the evidence presented was insufficient to support the conviction of issuing worthless checks. Defendant argues the state failed to prove that he had the intent to defraud the casino at the time he signed the markers.

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 , 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. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 2008-0499 (La. 11/14/08), 996 So.2d 1086. 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. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717.

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 the jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Casaday , 49,679 (La. App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 2015-0607 (La. 2/5/16), 186 So.3d 1162.

Issuing worthless checks is the issuing, in exchange for anything of value, with intent to defraud, of any check, draft or order for the payment of money upon any bank, knowing at the time of issuing that the offender has not sufficient credit with the bank for the payment of such check, draft or order in full upon its presentation. La. R.S. 14:71(A)(1). The offender's failure to pay a check, draft or order within 10 days after notice of its nonpayment has been sent by certified mail to the issuer shall be presumptive evidence of his intent to defraud. La. R.S. 14:71(A)(2).

Thus, under La. R.S. 14:71, to obtain a conviction for issuing a worthless check, the state is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which the check is drawn has insufficient funds with the financial institution to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud. State v. Davis , 48,777 (La. App. 2 Cir. 2/26/14), 134 So.3d 1257, writ denied , 2014-0483 (La. 10/3/14), 149 So.3d 793.

The proper inquiry under La. R.S. 14:71(A) is whether a defendant knew that he had not sufficient credit with the bank, not whether his actual monetary balance was sufficient to cover a check, draft or order for payment issued by him. State v. Davis, supra ; State v. Bond , 584 So.2d 1212 (La. App. 2 Cir. 1991).

Intent is a question of fact to be decided by the trier of fact. It need not be proven as a fact, but may be inferred from the circumstances. State v. Washington , 29,784 (La. App. 2 Cir. 9/26/97), 700 So.2d 1068.

Subparagraph A(2) of La. R.S. 14:71 creates a statutory rebuttable presumption of the issuer's intent to defraud when the offender fails to pay the amount of the worthless check within 10 days of the receipt of notification by certified mail of nonpayment of the check, sent to the address shown on the check or the address shown in the records of the bank on which the check was drawn. State v. Mosby , 42,519 (La. App. 2 Cir. 5/18/07), 956 So.2d 843 ; Washington, supra. The presumption, however, is not absolute. The presumption does not relieve the state of its burden of proving beyond a reasonable doubt the "intent" element, which is subject to the presumption, and the "knowledge" element, which is not subject to the presumption. State v. Davis, supra ; State v. Bond, supra.

At trial in the present case, Mark Breaux, the credit manager at Sam's Town Casino, testified that after getting credit approval from the casino, a person can go to the gaming table and request a marker; the person then signs the marker and is given chips to gamble. Breaux stated that markers are similar to a signature loan or an IOU, and are styled as checks. He explained that if the marker is not paid within 30 days, the casino will present the marker for payment from the person's bank account, which was provided during the application process. Breaux testified that in June 2010, defendant applied for credit with Sam's Town and the casino then reviewed his credit, banking, and gaming reports. Breaux stated that defendant was approved for a $20,000 line of credit and on several subsequent occasions he utilized the line of credit to gamble and paid off the markers.

Breaux testified that on February 22, 2011, defendant signed three markers, in the amounts of $5,000, $5,000, and $10,000. Breaux stated the markers were not paid within 30 days and were submitted for payment from defendant's bank account on March 24, 2011. Breaux testified the markers were returned unpaid because the defendant's bank account had been closed. Breaux stated he then sent a certified letter, dated May 24, 2011, notifying defendant that he had 10 days to pay the markers totaling $20,000 or the matter would be referred to the Caddo Parish District Attorney's Office for prosecution. Breaux testified that he did not receive any communication from defendant regarding payment or his ability to pay, and the matter was forwarded to the district attorney.

Shamita Demery, the member service representative at Pelican State Credit Union, testified regarding the amount of money in defendant's checking and savings accounts before and after the markers were signed. Demery stated that on February 22, 2011, the date defendant signed the markers at Sam's Town Casino, he had $10,418.37 in his checking account. Demery testified that on February 28, 2011, defendant withdrew all of the money from his checking account ($9,879.10), leaving a zero balance.

The defendant testified that after receiving an inheritance in 2010, he gambled often using markers and he repaid the markers. He admitted that on February 22, 2011, he signed three markers at Sam's Town Casino for $20,000 and lost the money gambling. Defendant stated that when he went to the bank on February 28, 2011, he withdrew all of his money. Defendant testified that he knew he had to pay the money back, and that he always intended on repaying Sam's Town, but he could not because he ran out of money. He stated that he never contacted Sam's Town to set up a payment agreement. Defendant claimed that he was forced to file for bankruptcy because of his casino debts and medical bills. He stated that none of his creditors appeared at the creditors meeting, and his debts were discharged.

The defense introduced documents from the federal bankruptcy proceedings into evidence. The documents show that defendant filed for bankruptcy on March 18, 2011, and was granted a discharge on July 11, 2011.

In his brief, defense counsel contends the evidence is insufficient to prove that defendant possessed the requisite intent to defraud the casino at the time he signed the markers. As to the issue of intent, the evidence was sufficient to establish the rebuttable presumption provided for in La. R.S. 14:71(A)(2). Breaux testified that he sent a certified letter on May 24, 2011, notifying defendant that he had 10 days to pay the markers. Defendant signed the green return card, indicating that he received the letter, but never paid the markers. This constitutes presumptive evidence of defendant's intent to defraud the casino. This presumption was further supported by evidence that on February 22, 2011, the date he signed the markers totaling $20,000, defendant's account contained only $10,418.37.

Defendant failed to rebut the presumption of his intent to defraud the casino. At trial, the defendant mainly relied on his past history of paying the casino markers and never having an NSF check. However, the situation in this case can be distinguished from that of Davis , in which this court reversed a conviction of issuing worthless checks for failure to pay markers, finding the state did not prove intent to defraud where Davis remained in contact with the credit department of the casino, attempted to satisfy the markers by selling assets, and made a partial payment on the debt. Here, the jury reasonably rejected defendant's testimony that he had intended to repay the casino based upon the evidence that a short time after he signed the markers, defendant withdrew the remaining money from his checking account. Moreover, he failed to contact the casino to make arrangements for payment of the debt after receiving notice, and then filed for bankruptcy.

When considered in a light most favorable to the prosecution, the evidence was sufficient for the jury to reasonably conclude beyond a reasonable doubt that defendant was guilty of issuing worthless checks. This assignment of error is without merit.

In his pro se brief, the defendant contends the evidence was insufficient to support his conviction. He argues that there was no evidence of intent to defraud because all allegations regarding his intent to defraud the casino should have been presented at the bankruptcy court, but the casino failed to appear at the creditor hearing to object to the discharge of his debt. Defendant also appears to argue that the trial court did not have authority to order restitution of his debt that was discharged in bankruptcy.

The defendant's arguments lack merit. The instant criminal prosecution is separate and distinct from the bankruptcy proceedings. The fact that defendant's debt has been discharged in bankruptcy proceedings does not preclude the institution of state criminal proceedings against him, as criminal prosecutions are exempt from the automatic stay imposed upon the filing of a bankruptcy petition. 11 U.S.C. § 362(b)(1) (the filing of a bankruptcy petition does not operate as a stay "of the commencement or continuation of a criminal action or proceeding against the debtor"); Gatheright v. Clark , 680 Fed. Appx. 297 (5th Cir. 2017) ; United States v. Carson , 669 F.2d 216 (5th Cir. 1982) (a bankruptcy discharge does not limit a district court's power to order restitution as a condition of probation); In re Gruntz , 202 F.3d 1074 (9th Cir. 2000) (noting that the plain language of 11 U.S.C. § 362 makes no exception for prosecutorial motive, and that even criminal prosecutions with the underlying purpose of debt collection are exempt from the automatic stay). Further, under La. R.S. 14:71(G), the trial court was required to order defendant to pay $20,000 in restitution to Sam's Town Casino as part of his sentence.

In his brief, defendant states four additional pro se assignments of error: the state failed to provide him with adequate representation; the trial court failed to conduct a Faretta colloquy before trial regarding defendant's representation of himself; trial counsel failed to raise defendant's prior request to represent himself as grounds for a new trial; and trial counsel failed to include the trial proceedings containing defendant's representation request as part of the appellate record.

Pursuant to U.R.C.A. Rule 2-12.4, all assignments of error and issues for review must be briefed, and the appellate court may consider as abandoned any assignment of error or issue for review which has not been briefed. A mere statement of an assignment of error in a brief does not constitute briefing of the assignment.

State v. Free , 48,260 (La. App. 2 Cir. 11/20/13), 127 So.3d 956, writs denied , 2013-2978 (La. 5/30/14), 140 So.3d 1174, 2014-0039 (La. 9/19/14), 148 So.3d 944.

We note that defendant's pro se brief merely lists the above additional assignments and contains only conclusory allegations. Defendant fails to provide any factual references, arguments, or legal authority to support his claims. Because defendant failed to properly brief these assignments of error, these issues are deemed to be abandoned.

Nevertheless, even if considered, the assignments lack merit. As to defendant's alleged requests to represent himself, there is no indication in the record that he ever filed a motion requesting to represent himself in this case. At the hearing on December 7, 2016, at which the trial court denied defendant's post-trial motions, he made an oral motion to represent himself in a separate case. The trial court granted that motion.

Further, regarding the defendant's claim that the appellate record is not complete because it lacks "records" pertaining to his request to represent himself, we note that this court previously denied defendant's motion to supplement the appellate record. State v. Duffy , 51,734 (La. App. 2 Cir.8/9/17). Defendant had requested supplementation of the record to include transcripts from the proceedings of June 15, 2015 and July 11, 2016. According to the district court minutes, on June 15, 2015, the case was merely continued with no other proceedings occurring on that date. Additionally, that portion of the July 11, 2016 transcript that was not included in the appeal record is the voir dire of prospective jurors. This court denied defendant's motion because he failed to specify any errors which occurred at those hearings sufficient to justify supplementing the appellate record. To the extent that defendant alleges his trial counsel was ineffective, that issue may be raised in an application for post-conviction relief.

Based upon this record, the defendant's assignments of error lack merit. We have reviewed the record for error patent and found none.

CONCLUSION

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

AFFIRMED.

APPLICATION FOR REHEARING

BEFORE WILLIAMS, MOORE, GARRETT, STEPHENS and GASKINS, JJ.

Rehearing denied.


source: Caselaw Access Project

author: BLEICH, J. (Ad Hoc )

license: Public Domain

text:
    Gaitano MILAZZO, et al., Plaintiffs-Appellants v. Douglas Randall HARVEY, Defendant-Appellee
    No. 51,653-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellants
    DAVENPORT, FILES & KELLY, LLP, By: Martin Shane Craighead, Monroe, Counsel for Appellee
    Before WILLIAMS, GARRETT, and BLEICH (Ad Hoc ), JJ.
   BLEICH, J. (Ad Hoc )

This action arises as the result of personal property damage, and other contractual issues, caused when plaintiffs' leased residence flooded. Plaintiffs appeal a summary judgment granted in favor of the defendant landlord. Finding that material issues of fact remain, we reverse and remand.

FACTS

On December 29, 2015, Gaitano Milazzo leased an unfurnished residence from Douglas Randall Harvey ("Harvey"), the owner of the house located on Auburn Avenue in Monroe, Louisiana. The lease was for a period of two years, beginning January 3, 2016. Milazzo, his wife Pamela, and members of his immediate and extended family (collectively "Milazzo"), also resided in the residence. On the evening of March 8, 2016, rain began to fall in the Monroe area, and in the early morning hours of March 9, 2016, the rental house experienced flooding that caused Milazzo to notify Harvey and immediately evacuate. By 7:00 a.m., Harvey visited the house when the rain subsided and the flood waters had receded, to allegedly photograph damage caused to the residence by the flooding. The rain began to fall again and continued for the following two days. Eventually the house flooded a second time with approximately 11 inches of rain. The total four-day rain event caused historic flooding in the Monroe area, known as the "thousand year flood."

On April 14, 2016, Milazzo filed suit against Harvey and his public liability insurer, Shelter Mutual Insurance Company ("Shelter"), seeking personal property loss damages on the grounds that Harvey breached the lessor's warranties of habitability and peaceful possession by failing to disclose that the residence was flood prone. Milazzo also raised claims of breach of the lease obligation by Harvey for his unauthorized entry into the home to take photographs, Harvey's bad faith for failure to disclose the defects at the time of leasing and unfair trade practices. Milazzo sought refund of all payments made in connection with the residence, compensation for out-of-pocket expenses and for loss of use and time, inconvenience, aggravation, mental distress and attorney fees.

On September 22, 2016, Harvey and Shelter moved for summary judgment on the grounds that Milazzo's damage was caused by an act of God or force majeure (the "thousand year flood") which precluded any recovery. Harvey conceded that an issue of fact remained as to whether Milazzo should have been informed of previous flooding claims made in connection with the house, but argued that this fact was not material because the historic flood caused Milazzo's damage. Several documents were submitted by Harvey in support of summary judgment. Those included the affidavit of Archie Neal Brown, Director of the Ouachita Parish Office of Homeland Security and Emergency Preparedness at the time of the flooding event. Brown attested to the fact that approximately 5,250 structures in Ouachita Parish, including residences and businesses, sustained water intrusion and/or flooding during the flood events of March 8-11, 2016. Brown averred that many of the structures were not in flood zones and that much of the area would not have been adversely affected by a one hundred year flood event.

Certified copies of four reports generated from the United States Department of Commerce, National Oceanic & Atmospheric Administration, showing a total four-day rain fall amount of 20.67 inches at the Monroe Regional Airport, were submitted in support of summary judgment. Those documents confirm that a little more than six inches of rain fell at the airport from 6:00 p.m. on March 8, 2016, until 1:00 a.m. on March 9, 2016, and that by 2:00 a.m., that amount increased to more than seven inches.

Harvey also submitted portions of the depositions of Gaitano and Pamela Milazzo which confirmed that on March 8, 2016, at approximately 10:00 p.m., there was no water in the house. By 1:30 a.m., the following morning, however, water was above foot level in the residence. At some point prior to that time, Milazzo's daughter discovered water in the kitchen which she attributed to dishwasher overflow. Gaitano Milazzo returned to the residence at approximately 10:00 a.m. the following morning to discover eight to ten inches of rain in the house and his furniture "destroyed."

The portion of Harvey's deposition offered in support of summary judgment confirmed that he visited the house at 7:00 a.m. on March 9, 2016, when the water had receded, but the floors remained wet. According to Harvey, 11 inches of water eventually invaded the house a second time.

Harvey's affidavit was also submitted and showed he purchased the home in December of 2014 and lived in it for 12 months. Harvey claimed that the extent of his direct knowledge regarding any water intrusion events included information he received in connection with the house closing, when he was provided a flood loss history showing "prior flood claims" in September 1978, May 1989 and April 27, 2011. A copy of the "National Flood Insurance Program Property Loss History," documenting the prior flood claims, was referenced and attached to Harvey's affidavit. Harvey also submitted a letter from his counsel evidencing his partial reimbursement of the March 2016 rent to Milazzo.

Milazzo opposed the summary judgment, arguing that the flood summaries confirmed that only 6.08 inches of rain had fallen when the house experienced near ankle-deep flooding. Thus, Milazzo contended that factual support existed to show that the initial rain, and not the entire rain event, was sufficient to cause flooding and damage to his property and that Harvey had failed to show that the property damage resulted from an unusual rainfall.

In opposition to the summary judgment, Milazzo submitted the affidavit of Charles Westrom, a 14-year employee of the City of Monroe Public Works Department who supervised the drainage pump stations for the city. Westrom possessed personal knowledge of flood events in Monroe as well as the location of flood-prone areas. Westrom attested to the fact that the location of Milazzo's house was "highly flood prone" and confirmed that when substantial rain fell, the area flooded. Westrom affirmed that the area had flooded numerous times without a "thousand year" flood, and he had personal knowledge that homes in this area had flooded "about three times in the past two years." Photographs taken "along Auburn Avenue," following the March 2016 flooding were attached to his affidavit and referenced by Westrom. The photographs depict sandbags in front of Milazzo's residence and destroyed household furnishings placed on the street for disposal in front of the Milazzo home and other homes in the area.

Milazzo also provided the affidavit of James Scalia who lived "four doors down" from Milazzo's house and confirmed that the area is highly flood prone. Scalia stated that his house had flooded four times in 15 years and verified that when his house flooded, Milazzo's house also flooded. Scalia attested to the fact that he could see Milazzo's house "from the street," and "a water mark on the house after it recedes," as well as the "flood-damaged belongings piled in front of the house," after "every flood." Scalia averred that the fact that the area is flood prone is "well known to people who have resided or owned property in this area for any length of time," and estimated that the Milazzo's house flooded "in response to a rainfall of approximately" four inches, an amount that was not unusual rainfall for the area.

The hearing on the motion for summary judgment took place on December 14, 2016. In written reasons, the trial court granted Harvey's summary judgment finding that the fact that Milazzo was never advised that the house flooded in past years did not "negate" the fact that the "million year" rainfall that the City of Monroe experienced was an "Act of God," which "overshadowed any perceived negligence on the part of the Landlord." A signed final judgment followed on June 13, 2017, dismissing Milazzo's claims without prejudice.

This appeal by Milazzo followed.

DISCUSSION

Summary Judgment

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So.3d 791.

The 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. Schultz v. Guoth , 2010-0343 (La. 01/19/11), 57 So.3d 1002 ; Samaha v. Rau , 2007-1726 (La. 02/26/08), 977 So.2d 880 ; Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 05/17/17), 223 So.3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So.3d 1230.

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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 if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans , 2012-2742 (La. 01/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014) ; Chanler, supra. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Chanler, supra. Whether a fact is "material" for purposes of summary judgment is determined in light of the substantive law applicable to the particular case. Franklin v. Dick , 51,479 (La. App. 2 Cir. 06/21/17), 224 So.3d 1130.

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 is to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966 (D)(1).

An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967 (B) ; Larson v. XYZ Ins. Co. , 2016-0745 (La. 05/03/17), 226 So.3d 412.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Wells v. Town of Delhi , 51,222 (La. App. 2 Cir. 04/05/17), 216 So.3d 1095, writ denied , 2017-0753 (La. 09/22/17), 227 So.3d 821. Summary judgment is particularly inappropriate when the imposition of a statutory penalty depends on a finding that the litigant acted in bad faith or his conduct was arbitrary, capricious or without probable cause. Merwin v. Spears , 2012-0946 (La. 06/22/12), 90 So.3d 1041.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966 (F).

Act of God

The term "force majeure " means a superior or irresistible force. The concept of "force majeure " is similar to the common law concept of "act of God" which has been defined as a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ. Saden v. Kirby , 1994-0854 (La. 09/05/95), 660 So.2d 423.

When a "force majeure " or "act of God" combines or concurs with the conduct of a defendant to produce an injury, the defendant may be held liable for any damage that would not have occurred but for its own conduct or omission. Id.

Lessor's Liability

The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. La. C.C. art. 2696. This warranty also encompasses vices or defects that are not known to the lessor. La. C.C. art. 2697. Thus, the lessor is essentially strictly liable for vices and defects that cause harm to his lessee. Wells v. Norris , 46,458 (La. App. 2 Cir. 08/10/11), 71 So.3d 1165, writ denied , 2011-1949 (La. 11/18/11), 75 So.3d 465 ; Parker v. Oakleigh Apartments, LLC , 2013-0618 (La. App. 1 Cir. 12/27/13), writ denied , 2014-0197 (La. 04/04/14), 135 So.3d 1182 ; Johnson v. Thomas , 2013-0081 (La. App. 1 Cir. 12/27/13), 137 So.3d 632.

To prevail on a strict liability claim under La. C.C. art. 2696, the plaintiff must prove that the defendant had custody of the thing causing the injury; that it contained a defect, that is, a condition creating an unreasonable risk of harm; and that the defective condition caused plaintiff's injury. Wells, supra ; Johnson, supra ; Parker , supra. The lessor's liability is based on his status as landlord, not his personal fault; therefore, his lack of knowledge regarding the defect is inconsequential. Id.

The potentiality for flooding has been held to be a defect against which the lessor warrants. Volkswagen of Am., Inc. v. Robertson , 433 F.Supp. 164 (E.D. La. 1977). Susceptibility to flooding means a propensity, proneness or predisposition to flood under normal conditions and is also a redhibitory vice or defect. Smith v. Kennedy , 392 So.2d 177 (La. App. 2 Cir. 1980) ; Davis v. Davis , 353 So.2d 1060 (La. App. 2 Cir. 1977), writ denied , 355 So.2d 549 (La. 1978) ; Brannon v. Boe , 569 So.2d 1086 (La. App. 3 Cir. 1990) ; Braydon v. Melancon , 462 So.2d 262 (La. App. 1 Cir. 1984) ; Ford v. Broussard , 248 So.2d 629 (La. App. 3 Cir. 1971).

On appeal, Milazzo initially argues that the trial court erred in granting summary judgment based upon act of God. For the following reasons, we find merit to this argument.

Because the sole basis underlying the subject motion for summary judgment was force majeure or act of God, Harvey was required to carry his initial burden as mover to show that the act of God was sufficient in and of itself to preclude Milazzo's recovery. The undisputed evidence shows that on the days of March 8-11, 2016, the City of Monroe experienced an extraordinary "thousand year flood" event that may certainly be characterized as a force majeure or act of God. Nevertheless, as presented by the record before this Court, we find that proof of these facts alone is insufficient to defeat Milazzo's stated claims for damages. Adequate factual support exists to establish that the Milazzo residence first experienced flooding prior to 1:30 a.m. on March 9, 2016, when Milazzo's daughter discovered water on the floor and less than six inches of rain had fallen in the area. The submissions also establish that the water rose to near ankle-deep when Milazzo discovered the flooding and between six and seven inches of rain was documented in the vicinity. Most persuasive to this analysis, however, is Harvey's testimony which establishes that this flooding had receded by 7:00 a.m. and his failure to dispute the allegations that he photographed damage that had been caused to the home by that initial flood event. We find that as they relate to the residence in question, the documents submitted in support of and opposition to the summary judgment are sufficient to establish that during the catastrophic rain event, Milazzo's residence was damaged by an initial flood event caused by only a small portion of the total four-day rain amount. Thus, although this initial rainfall amount was included in the total catastrophic event rain calculations, we find these facts sufficient to preclude the granting of summary judgment solely on the grounds of the entire March 2016 catastrophic rain event. When combined with the statements of individuals who had personal knowledge that the house flooded during ordinary rain events in the three preceding years, these facts provide sufficient factual support to raise genuine issues of material fact regarding whether the residence was flood prone under ordinary rain conditions such that Milazzo's damages were partly or totally caused by a warranty defect in the premises. Likewise, these circumstances are sufficient to raise genuine issues of material fact relating to Harvey's bad faith in failing to inform Milazzo of prior flooding events and Shelter's liability for penalties and attorney fees for failing to timely pay claims.

For these reasons, we find that the trial court erroneously granted summary judgment in favor of Harvey on the grounds of force majeure or act of God. The trial court's ruling is hereby reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to Harvey.

REVERSED AND REMANDED.

      Those family members included the Milazzo's daughter and granddaughter, mother/mother-in-law and three foster children.

      Milazzo sought penalties and attorney fees for Shelter's arbitrary, capricious, unreasonable and without probable cause failure to timely initiate and/or pay a property damage claim.

      Milazzo also argued that movers' exhibits were irrelevant because they related to rainfall after 1:30 a.m. on March 11, 2016, when the house had already flooded. Milazzo additionally complained that Brown offered expert testimony without qualifying as an expert and that the flood insurance records failed to establish that the house flooded on only three occasions prior to the date Milazzo purchased it or that the house did not flood after the date of Harvey's purchase.

      Our reversal of the summary judgment moots Milazzo's remaining assignments of error.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Johnny Lee YOUNG, Jr., Appellant
    No. 51,711-KA
    Court of Appeal of Louisiana, Second Circuit.
    January 18, 2018
    LOUISIANA APPELLATE PROJECT, Peggy J. Sullivan, Counsel for Appellant
    JOHNNY LEE YOUNG, JR., Pro Se
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, EDWIN L. BLEWER, III, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, GARRETT, and STONE, JJ.
   BROWN, C.J.

Defendant, Johnny Lee Young, Jr., was charged with the forcible rape ( La. R.S. 14:43 ) of K.C. that occurred on September 7, 2014. At arraignment, Young pled not guilty. Several pretrial motions were filed, including a pro se motion to suppress certain text messages and a phone call recording between defendant and K.C. That same day, the trial court granted defendant's oral motion to represent himself with standby counsel. The trial court denied defendant's motion to suppress after a hearing on December 1, 2015.

After a jury trial, Young was found guilty of the responsive verdict of attempted simple rape ( La. R.S. 14:43, 14:27 ). Defendant was adjudicated a second-felony habitual offender and sentenced to 30 years at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court additionally ordered defendant to pay court costs, or in lieu of payment, serve 90 days in the parish jail, to run concurrently with any other sentence. Defendant filed a motion to reconsider sentence, which was denied. On appeal, Young challenges the excessive nature of his sentence. Defendant also filed a pro se brief challenging the sufficiency of the evidence, certain alleged Fourth Amendment violations, and admission at trial of certain text messages sent by defendant to K.C. and a recorded phone conversation between defendant and K.C. We affirm the conviction and sentence.

FACTS/PROCEDURAL HISTORY

At trial, the state called six witnesses. Shreveport Police Officer Darrion Jackson testified that at 6:00 p.m. on September 7, 2014, he was dispatched to an apartment complex located at 2420 Leslie Street in Shreveport, Louisiana, in response to a report of an alleged rape. Upon arriving at the complex, Officer Jackson made contact with the victim, who appeared very distraught, was shaking, and kept fumbling with the tissues in her hand. She attempted to explain to Officer Jackson what happened but couldn't stop crying. Eventually, K.C. disclosed to Officer Jackson that the rape had occurred the previous night, after she attended a party at her upstairs neighbor's apartment. She stated that she consumed alcohol at the party, returned to her own apartment, and went to bed. Between 12:30 a.m. and 1:00 a.m. on September 7, 2014, she was wakened by defendant, who was lying on top of her. K.C. was weak from the alcohol and asked defendant how he got in the apartment. Defendant's response was, "[d]on't worry about it." The victim told Officer Jackson that she yelled for her oldest son, who was in the apartment with her two other children, but Young got off of her and locked her bedroom door. K.C. attempted to stand and leave the room, but defendant grabbed her arm and threw her back onto the bed and proceeded to vaginally rape her. K.C. identified her rapist as Young, a former boyfriend.

Officer Jackson contacted detectives with the Shreveport Police Department's sex crimes division and brought K.C. to Willis-Knighton Hospital for a rape kit to be collected. Officer Jackson further testified that he collected as evidence K.C.'s underwear, which she was wearing prior to the attack, as well as her robe and white top. The case was then taken over by detectives with the sex crimes division, concluding Officer Jackson's involvement in the matter.

Michael Jones of the sex crimes division testified that he was the investigating detective in the instant case. He first made contact with K.C. at the hospital while she was being examined. Like Officer Jackson, Detective Jones observed that the victim was crying, lying in the fetal position on the hospital bed, and visibly shaking. K.C. related to Det. Jones what she had previously told Officer Jackson

A Sexual Assault Nurse Examiner ("SANE"), Melanie Hubbard, was called to the hospital to collect and obtain the rape kit, or Personal Evidence Recovery Kit ("PERK"), which consisted of collecting DNA samples and documenting K.C.'s physical condition. Det. Jones testified that Ms. Hubbard gave him the PERK kit, and he delivered the kit to the crime lab for analysis. According to Det. Jones, the crime lab analysis found no DNA in the samples recovered from K.C.

Det. Jones testified that on September 8, 2014, he took K.C.'s children, a 14-year-old daughter and two younger sons, to be interviewed by a trained forensic interviewer at the Gingerbread House; he monitored the interview through a closed-circuit television system. A videotape of the interview was admitted into evidence.

In the interview, K.C.'s teenage daughter stated that, on the night in question, her mother returned from the party and went to bed. The teen recalled later hearing a knock at the door, which her 8-year-old brother answered, admitting defendant into the apartment. The daughter stated that she was in her room when defendant entered the apartment, but a few minutes later, defendant knocked on her bedroom door and told her that her mother wanted to borrow her fan. She brought the fan to her mother's bedroom and left. Defendant then shut the bedroom door behind her. About 10 minutes later, her mother came out of her room, crying. The daughter noted that defendant had already left. The teenager identified defendant as the "man who cuts her brothers' hair," and noted that he used to spend the night. The two sons were also interviewed; however, they were unable to provide additional information.

K.C. informed Det. Jones that defendant had attempted to contact her by phone, and Det. Jones testified that he advised K.C. to text Young and inform him that she was upset and ask him why he raped her. K.C. communicated with defendant via text message, then provided a copy of the messages to Det. Jones. Det. Jones testified that he also advised K.C. to speak to defendant and record the conversation. K.C. initiated the telephone call, which lasted approximately nine minutes. During the call, defendant offered to pay for K.C.'s counseling and stated, "[K.C.], I'm sorry for raping you." After the call, Det. Jones obtained an arrest warrant and arrested defendant.

Melanie Hubbard, the nurse who performed the PERK exam on K.C., testified that she examined the victim at 8:00 p.m. on September 7, 2014, approximately 21 hours after the alleged rape occurred. Ms. Hubbard testified that evidence, such as DNA samples, can be lost if the victim is not examined immediately after a rape. Ms. Hubbard stated that K.C. had urinated several times since the incident and was also on her menstrual cycle, which can explain why no DNA was found on the samples taken during the exam. Ms. Hubbard also noted that although no bruising was found on K.C.'s body during the examination, this was not uncommon in rape cases.

K.C. testified that she was sexually abused as a child and suffered from bipolar disorder. K.C. stated that after graduating from high school, she became a paralegal, but had difficulty holding a job because of her bipolar disorder. During this time, K.C. was diagnosed with fibromyalgia, which is a condition in the nervous system that causes widespread pain. K.C. stated that she began drinking and smoking marijuana, and attempted suicide several times. K.C. testified that she and her three children moved to Shreveport to live with her father, and it was in Shreveport that K.C. was diagnosed with bipolar disorder and began receiving treatment. Around this time, K.C. developed a casual sexual relationship with Young, who cut her children's hair. The relationship lasted two years and ended in May of 2014, several months prior to the incident.

K.C. testified that on the night of September 6, 2014, she attended her neighbor's party and had a couple of alcoholic beverages. During the party, K.C. became tired and returned to her apartment. She put on a black nightgown and took a sleeping pill. K.C. stated that her sons were watching television in her bedroom, and her daughter was in her own room. After she took the pill, K.C. fell asleep with her sons still in her bedroom. K.C. testified that sometime later, she woke up and felt something very heavy on her; it was Young. As K.C. attempted to push Young away, she realized that her youngest son was still in her bedroom because she heard Young instruct the young boy to leave the room. K.C. stated that she instinctively called out for her daughter, but then feared that Young might hurt her daughter too if she attempted to help her, so K.C. lied and stated that she was hot and needed a fan. K.C. heard her daughter bring the fan to K.C.'s bedroom. Young took the fan from her daughter, who went back to her own room, and locked the bedroom door. K.C. tried to get off the bed, but Young pushed her back down and vaginally raped her. K.C. recalled Young leaving shortly afterward, and she passed out until the next morning.

K.C. testified that the morning after the rape, she woke up to find her underwear on the floor. She put on clean panties and sat at the picnic table in front of her apartment. K.C. stated that she kept calling the police department and hanging up until her neighbor, Sheva, came to check on her at 4:30 p.m. At that time, K.C. told Sheva that Young had raped her. K.C. stated that she also spoke to her other neighbor, Caroline Young, who told K.C. to call the police.

K.C. testified that Young called her repeatedly after the incident, and after she informed Det. Jones of the calls, he instructed her to text and call Young. K.C. testified that the number she called was the same number she had used to contact Young while they were dating, and she recognized Young's voice during the recorded phone call.

Caroline Young testified that she lives in the same apartment complex as K.C. and confirmed that she was the one who instructed K.C. to call the police.

Joseph Jones, M.D., testified that he has been treating K.C. for fibromyalgia and osteoarthritis since May of 2014. Dr. Jones stated that he prescribed K.C. several medications, including sleeping pills, as part of her treatment. K.C. had an appointment with Dr. Jones on September 11, 2014, and informed him that she had recently been sexually assaulted. Dr. Jones noted that on previous visits, K.C. had appeared "very bubbly," but on this occasion, K.C. was withdrawn and anxious. At the appointment, K.C. complained of severe nightmares and reliving events, so Dr. Jones recommended counseling and noted that K.C. presented symptoms of post-traumatic stress disorder, which she had not displayed prior to the incident.

Following Dr. Jones' testimony, the state rested. The defense did not call any witnesses and also rested. After deliberation, the jury found Young guilty of the responsive verdict of attempted simple rape. That same day, the state filed a second-felony habitual offender bill. On August 9, 2016, Young filed a motion for post-verdict judgment of acquittal, which was denied. Young was adjudicated a second-felony habitual offender and, on January 31, 2017, he was sentenced to 30 years at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court also ordered Young to pay court costs or, in default thereof, serve 90 days in the parish jail.

On February 2, 2017, Young filed a motion to reconsider sentence, which was denied by the trial court on February 3, 2017.

The instant appeal followed.

DISCUSSION

As both assignments of error challenge the credibility of the evidence as well as its sufficiency, they are addressed together. Young urges that the evidence against him is fabricated, and the jury erred in finding K.C., a woman suffering from severe bipolar and anxiety disorders, to be a credible witness. Young also argues that the conflicting statements from K.C.'s children in their Gingerbread House interviews create reasonable doubt as to the identity of the victim's attacker.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence 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 , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 01/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. 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 , 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So.3d 297.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Demery , 49,732 (La. App. 2 Cir. 05/20/15), 165 So.3d 1175, writ denied , 15-1072 (La. 10/17/16), 207 So.3d 1067. A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Demery, supra.

At the time of the offense, La. R.S. 14:43 provided, in pertinent part:

(A). Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity.

Additionally, La. R.S. 14:27(A) provided:

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

There is sufficient evidence to support Young's conviction of attempted simple rape. The state was required to prove beyond a reasonable doubt that Young attempted to have sexual intercourse with K.C. without her consent while she was incapable of resisting due to intoxication.

Young clearly stated during his recorded phone conversation with K.C. that he was sorry for raping her, and he would pay for her to receive counseling. Young's identity as K.C.'s rapist is corroborated by K.C.'s own testimony and her daughter's Gingerbread House interview, both identifying Young as the man who came to their apartment.

The testimony also demonstrated that K.C. consumed at least 1½ alcoholic beverages at the party, became tipsy, and compounded her intoxicated state by taking a prescribed sleeping pill before going to bed. Due to her consumption of alcohol and the sleeping pill, K.C. was unable to effectively resist Young. K.C.'s testimony further established that the sexual intercourse was without her consent, and all of the witnesses testified that after the incident, K.C. was in a heightened emotional state and appeared to have suffered some emotional trauma. Although the PERK test ultimately did not reveal DNA evidence or bruising, Ms. Hubbard testified that the amount of time that passed between the assault and the examination, 21 hours, coupled with K.C. using the restroom several times, likely contributed to a lack of DNA evidence being found on the samples taken from the exam. Ms. Hubbard further noted that a lack of bruising is not uncommon in sexual assault cases.

The jury's verdict of guilty of the responsive charge of attempted simple rape is supported by the evidence. Additionally, Young's allegations of fabricated evidence are unsubstantiated. As the jury's decision was reasonably based on a credibility call, it will not be disturbed on appeal. These assignments lack merit.

Young also argues that the trial court erred in admitting into evidence text messages he sent to K.C., as well as a recorded telephone conversation between himself and K.C. According to defendant, the police coerced K.C. into entrapping defendant by soliciting a confession, thereby violating his Fourth Amendment right against unlawful searches and seizures and the Louisiana Electronic Surveillance Act. La. R.S. 15:1301, et seq.

Motion to Suppress

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson , 02-0333 (La. 04/09/03), 842 So.2d 330 ; State v. Tatum , 466 So.2d 29 (La. 1985) ; State v. Ledford , 40,318 (La. App. 2 Cir. 10/28/05), 914 So.2d 1168.

When the legality of a search or seizure is placed at issue by a motion to suppress evidence, the state bears the burden of proving the admissibility of any evidence seized without a warrant.

La. C. Cr. P. art. 703(D). Trial courts are vested with great discretion when ruling on a motion to suppress, and the ruling of a trial judge on the motion to suppress will not be disturbed absent an abuse of that discretion. State v. K.C. , 14-0402 (La. 02/26/16), 188 So.3d 174, cert. denied , --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016).

In Louisiana, "[a]ny person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court." La. Const. art. I, § 5. Thus, "[t]here is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person's constitutional rights." State v. Jackson , 09-1983 (La. 07/06/10), 42 So.3d 368, citing State v. Owen , 453 So.2d 1202 (La. 1984). However, La. Const. art. I, § 5 presupposes that "there must be an invasion of someone's rights to privacy before there can be an unreasonable search." State v. Perry , 502 So.2d 543 (La. 1986), cert. denied , 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). The test of when that intrusion occurs as a matter of the Louisiana Constitution is identical to the Fourth Amendment standard, i.e., the person must possess an objectively reasonable expectation of privacy in the area. Id. The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Jackson, supra ; State v. Freeman , 50,282 (La. App. 2 Cir. 04/13/16), 194 So.3d 1, writ denied , 16-0927 (La. 05/01/17), 220 So.3d 743.

Electronic Surveillance

It is well settled in Louisiana that the use of electronic surveillance equipment to secretly record a conversation with the consent of one of the parties to the conversation does not "invade the privacy" of the parties in the conversation within the meaning of both the state and federal constitutions, and therefore the warrant requirement does not attach. La. R.S. 15:1301, et seq. ; State v. Caldwell , 616 So.2d 713 (La. App. 3 Cir. 1993), writ granted on other grounds, cause remanded , 620 So.2d 859 (La. 1993), citing State v. Reeves , 427 So.2d 403 (La. 1982) ; State v. Marks , 503 So.2d 32 (La. App. 1 Cir. 1986), writ denied , 506 So.2d 110 (La. 1987) ; State v. Serigny , 481 So.2d 659 (La. App. 1 Cir. 1985), writ denied , 484 So.2d 667 (La. 1986).

State v. Reeves, supra , is the seminal case on electronic surveillance wherein the Louisiana Supreme Court determined that warrantless recording of a conversation to which one party consents does not invade the subject's privacy in violation of La. Const. art. I, § 5. The supreme court explained:

Society seeks to foster truth, not to suppress it. The presence of the electronic transmitter has but one effect. Instead of the informant committing the conversation to memory, a machine tapes each and every sentence of the communication. The machine notes the inflection of the voices and the context in which remarks are made. If the defendant speaks innocently, his own words will exculpate him. However, if he implicates himself, the recordings prevent him from denying his participation in the conversation. Surely, society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question.

State v. Reeves, 427 So.2d at 418. Reeves involved a private person working for the government who recorded a conversation (audio only) with a co-worker.

In State v. Farris, 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, writ denied , 17-0070 (La. 10/09/17), 227 So.3d 828, this Court extended State v. Reeves, supra, and found that a defendant has no reasonable expectation of privacy as to a murder victim's cell phone; therefore, there was no invasion of the defendant's privacy when the police officer conducted a warrantless search of the victim's cell phone and discovered threatening text messages sent to the victim from the defendant.

Excessive Sentence

Young argues that his sentence is unconstitutionally excessive as he only has one prior felony, he did not use a dangerous weapon during the commission of the offense, and he did not threaten K.C. with harm. According to defendant, his 30-year at hard labor sentence, is tantamount to a life sentence as he will not be eligible for parole until he is 74 years old. Defendant also argues that his previous conviction of indecent behavior with a juvenile, wherein he pled guilty for sending lewd and lascivious letters to a juvenile in state detention, is an atypical circumstance, as he never touched the juvenile and this conviction should not be held against him. Finally, defendant argues that he has rehabilitative potential as he previously served nine years in the military and received an honorable discharge.

The district court is granted wide discretion when imposing a sentence within the minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows that the district court abused its discretion. 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 ; State v. Hardy , 39,233 (La. App. 2 Cir. 01/26/05), 892 So.2d 710. A district judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, consequently, 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 district 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.

A defendant adjudicated a second-felony habitual offender, whose second felony and prior felony are sex offenses as defined by La. R.S. 15:541, shall be imprisoned at hard labor for a determinate term of not less than two-thirds of the longest possible sentence for the conviction and not more than three times the longest possible sentence prescribed for a first conviction, without the benefit of probation, parole, or suspension of sentence. La. R.S. 15:529.1(A)(2)(a). At the time of Young's offense, the punishment for attempted simple rape was not more than 12½ years imprisonment, with or without hard labor, and without the benefit of probation, parole, or suspension of sentence. Therefore, in accordance with La. R.S. 15:529.1, as a second-felony habitual offender, with both felonies being sex offenses, defendant faced a minimum sentence of 8¼ years and maximum sentence of 37½ years at hard labor, without the benefit of probation, parole, and suspension of sentence.

As a second-felony habitual offender, defendant's sentence of 30 years at hard labor, imposed without the benefit of probation, parole, or suspension of sentence, is not excessive. Prior to sentencing defendant, the trial court took into consideration his previous conviction for indecent behavior with a juvenile, his new charge of forcible rape was a crime of violence, and the fact that defendant was on felony probation as the time of the instant offense.

The trial court also examined defendant's knowledge of K.C.'s sexual abuse as a child, and defendant's statement to the court, detailing mitigating circumstances.

While defendant did not threaten K.C. with a dangerous weapon, he still assaulted her in her home where her children were present. He was also aware of her history of having been sexually abused as a child and having made multiple suicide attempts, and he ignored them for his own purposes. In the recorded phone call between defendant and K.C., Young initially appeared to show remorse for his actions, but negated this by abruptly telling K.C. that he had to finish repairing a car and would talk to her later. Defendant's behavior demonstrates a reckless disregard for the feelings of others, and as such, his sentence does not shock the conscience.

Lastly, as noted by the state, defendant's argument that the trial court erroneously considered his prior conviction is without merit. Prior to attacking K.C., defendant wrote sexually graphic letters to a juvenile in a detention facility and subsequently pled guilty to indecent behavior with a juvenile. Defendant's argument essentially asks this Court to discount his prior conviction when considering the fairness of his current sentence because "it was not as bad as it could have been." This Court will not reward criminal behavior and sanction a more lenient sentence on the grounds that the crime could always have been worse. Furthermore, it would negate the entire purpose of sentencing defendant as a habitual offender if the trial court did not consider his underlying felony.

Because the sentence imposed by the trial court is well within the proper range and does not shock the sense of justice, this assignment is without merit.

CONCLUSION

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

      Page 297 of the record states that Officer Jackson collected a "white top"; however, during cross-examination, Officer Jackson refers to a "white towel" and a "black night gown," not a "robe."

      On cross-examination, Officer Jackson also stated that a Sergeant Hill was one of the investigating officers at the crime scene; Sgt. Hill took photos of a brown top bed sheet, a red bottom bed sheet, and noted that the victim's underwear and night gown were located in the laundry hamper.

      Det. Jones noted that K.C. sent the text messages with her daughter's phone as her own phone was not working. During Det. Jones' testimony, photographs of the text messages, State's Exhibits Nos. 2 through 10, were admitted into evidence and published to the jury. Defendant did not object to the admission of these text messages into evidence. In the text messages he sent, defendant never denied raping K.C. and apologized for his actions.

      A recording of the phone call, State's Exhibit No. 11, was admitted into evidence without objection.

      Hubbard was accepted as an expert in the field of sexual assault evidence collection.

      It is unclear from the record whether Caroline is Young's mother. Ms. Young refers to him as "my boy" once; however, she never stated that he was her son.

      Young's appellate counsel originally included the trial court's denial of Young's September 29, 2015, pro se motion to suppress as an assignment of error. Counsel stated:
      Counsel for Mr. Young does not desire to abandon argument on this issue at this time. However, the transcript of the hearing on this motion has not been included in the record on appeal. A motion to supplement the record has been filed in this matter and a motion for leave of court to supplement the brief after a review of the transcript accompanies this brief.
      A transcript of the hearing was supplemented to the record, but on August 18, 2017, counsel filed a letter with this Court, stating she will no longer be filing a supplemental brief addressing the motion to suppress claim.

      The trial court ordered defendant to pay court costs or serve 90 days in the parish jail which was to run concurrently with any other sentence. Thus, this issue is moot.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Jeremy LEWIS, Appellant
    No. 51,735-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 31, 2018.
    LOUISIANA APPELLANT PROJECT By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY JAN JOHNSON, WILLIAM C. GASKINS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, STONE and BLEICH (Ad Hoc), JJ.
   STONE, J.

A jury convicted Jeremy Lewis of attempted monetary instrument abuse in violation of La. R.S. 14:27 and 14:72.2 and attempted possession with intent to distribute synthetic cannabinoids in violation of La. R.S. 14:27 and 40:966(A)(1). He was adjudicated a second-felony habitual offender and sentenced to 71/2 years at hard labor for each conviction. The trial court ordered the sentences to run concurrently and without benefit of probation or suspension of sentence. Additionally, Lewis was ordered to pay a $2,000 fine for each conviction. For the following reasons, Lewis' convictions are affirmed and his sentences are amended to omit the fines. As amended, his sentences are affirmed.

FACTS

On September 30, 2015, police officers executed a warrant for the arrest of Jeremy Lewis ("Lewis") regarding a parole violation at 2010 Hawkins Street in Shreveport, Louisiana. Lewis' grandmother directed the officers to a bedroom where Lewis was sleeping. On the nightstand next to the bed, the officers observed synthetic marijuana in a bowl. The search of Lewis' bedroom yielded additional synthetic marijuana in 38 individually sealed bags, $400 in counterfeit money, $96 in real money, and a ledger containing the names of 17 people who allegedly owed Lewis various amounts of money.

Lewis was charged with monetary instrument abuse and possession with intent to distribute synthetic cannabinoids. On November 17, 2016, a jury found Lewis guilty of the responsive verdicts of attempted monetary instrument abuse and attempted possession with intent to distribute synthetic cannabinoids. The trial court denied Lewis' motions for a new trial and a post-verdict judgment of acquittal.

Thereafter, the state filed a habitual offender bill of information using Lewis' 2005 conviction for armed robbery. On January 30, 2017, Lewis was adjudicated a second-felony habitual offender and later sentenced to 71/2 years at hard labor for each conviction. The trial court ordered the sentences to run concurrently and without benefit of probation or suspension of sentence. Additionally, Lewis was ordered to pay a $2,000 fine for each conviction.

On February 22, 2017, Lewis' trial counsel filed a motion for appeal which was later granted. Thereafter, on March 1, 2017, Lewis filed a pro se motion to reconsider sentence, arguing that he was improperly adjudicated a second-felony habitual offender. It does not appear from the record that the trial court ruled on the pro se motion. On appeal, Lewis argues his habitual offender sentences are unconstitutionally excessive and an exploitation of the habitual offender law.

DISCUSSION

Lewis timely filed his pro se motion to reconsider sentence within 30 days following the imposition of his sentences. La. C. Cr. P. art. 881.1(A)(1). Yet, there is no indication from the record that the trial court ever ruled on the motion.

The trial court retains jurisdiction to rule on a motion to reconsider sentence, and a defendant is within his rights to provoke same, even after an order of appeal is entered. State v. Larkins , 51,540 (La. App. 2 Cir. 09/27/17), 243 So.3d 1220, 2017 WL 4273711 ; see also La. C. Cr. P. arts. 881.1(C) and 916(3). Accordingly, we shall limit our review of Lewis' sentences to constitutional excessiveness. Notably, Lewis' motion raised claims related only to his adjudication as a habitual offender, not the excessiveness of his sentences. No provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court's failure to rule on a motion to reconsider sentence. Should the trial court later rule upon Lewis' motion to reconsider sentence, he may seek appellate review of the decision pursuant to La. C. Cr. P. art. 914(B)(2). Larkins, supra ; State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, writ denied , 17-0070 (La. 10/09/17), 227 So.3d 828.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Davis , 50,149 (La. App. 2 Cir. 11/18/15), 181 So.3d 200 ; State v. Smith , 50,342 (La. App. 2 Cir. 01/13/16), 184 So.3d 241.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 01/15/02), 805 So.2d 166 ; Smith , supra.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228 ; State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795.

In Dorthey , supra, and State v. Johnson , 97-1906 (La. 03/04/98), 709 So.2d 672, the Louisiana Supreme Court addressed the issue of mandatory sentences in the context of the habitual offender law. In Dorthey , the Supreme Court held that a trial court must reduce a defendant's sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the habitual offender law "makes no measurable contribution to acceptable goals of punishment," or is nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime."

Because the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. Dorthey , supra ; Johnson , supra ;

State v. Burks , 47,587 (La. App. 2 Cir. 01/16/13), 108 So.3d 820, writ denied , 13-0424 (La. 07/31/13), 118 So.3d 1116. As such, a sentencing judge must always start with the presumption that a mandatory minimum sentence under the habitual offender law is constitutional. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Id. ; State v. Thomas , 50,898 (La. App. 2 Cir. 11/16/16), 209 So.3d 234.

Lewis contends his sentences are grossly disproportionate to his convictions for nonviolent offenses. Lewis asserts his sentences constitute a misuse of the habitual offender law, citing the dissent of Chief Justice Bernette Johnson and the concurrence of Justice Scott Crichton in State v. Guidry , 16-1412 (La. 03/15/17), 221 So.3d 815.

In Guidry , the Supreme Court held that the trial court may not allow a jury to be informed of the possible sentence should the defendant be convicted and his sentence enhanced under the habitual offender law. Both Chief Justice Johnson and Justice Crichton expressed their views that the "abusive frequency with which a de minimis number of jurisdictions invoke habitual offender laws against nonviolent actors appears to do little to protect the people of Louisiana, and depletes the already scarce fiscal resources of this state." They proclaimed "the imposition of life sentences on nonviolent offenders at a certain point lacks any meaningful social value and may constitute aberrant cruelty." Justice Crichton asserted his belief that "we have arrived at a moment where this Court should examine whether or not the abuse of habitual offender laws by a handful of jurisdictions violates these constitutional prerogatives," noting that the appropriate remedy for curbing such abuse lies with the trial court and the use of downward departures permitted by Dorthey, supra .

The commentary of Chief Justice Johnson and Justice Crichton concerning the abuse of habitual offender laws warrants reflection by a criminal justice system committed to reform. As expressed by Chief Justice Johnson, district attorneys around the state have unfairly used the threat of enhanced punishment to extract guilty pleas from offenders, a practice which arguably calls into question the voluntariness of such pleas. While the use of the habitual offender laws to achieve lengthy sentences for non-violent offenses may violate the constitutional prohibition on excessive punishment, we do not find the instant case presents us with such a violation.

In Guidry , the defendant faced a possible sentence of life imprisonment as a fourth-felony habitual offender under La. R.S. 15:529.1. The defendant was charged with numerous nonviolent offenses, most notably, possession with intent to distribute heroin, which carried the highest sentence: 10 to 50 years at hard labor, La. R.S. 40:966(B)(1). The defendant unsuccessfully sought the right to inform the jury that his sentencing exposure would increase to life imprisonment if convicted and later adjudicated a habitual offender. In her dissent, Chief Justice Johnson indicated she would feel a "sense of shock and dismay if the defendant [in Guidry ] is ultimately sentenced to life as a habitual offender for a narcotics offense." Guidry, supra at 828.

In the instant matter, we find Lewis' sentences were "meaningfully tailored" to his culpability. Due to his adjudication as a second-felony habitual offender, Lewis' sentencing exposure for attempted monetary instrument abuse was 21/2 years to 10 years at hard labor without the benefit of probation or suspension of sentence; his sentencing exposure for attempted possession with intent to distribute synthetic cannabinoids was 71/2 years to 30 years at hard labor without the benefit of probation or suspension of sentence. See La. R.S. 14:27(D)(3), 14:72.2(A), 40:966(B)(3), and 15:529.1(A)(1). The trial court sentenced Lewis to 71/2 years at hard labor on each count to be served concurrently. Lewis received the mandatory minimum sentence for attempted possession with intent to distribute synthetic cannabinoids, and the sentence is presumed constitutional by Louisiana jurisprudence. Dorthey, supra . In order to rebut the presumption, Lewis had to convince the trial court that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to his culpability.

In arguing his sentences are unconstitutionally excessive, Lewis primarily cites the nonviolent nature of his offenses. Lewis claims that no person was physically injured, threatened, or put at risk by his actions. Notably, Lewis' assertions were expressly considered by the trial court. While cognizant that Lewis was on parole for a crime of violence at the time he committed the instant offenses, the trial court emphasized the instant offenses were not crimes of violence. Moreover, Louisiana jurisprudence holds that a defendant cannot rely solely upon the nonviolent nature of his crimes to rebut the presumption of constitutionality. See Johnson , supra ; Burks , supra ; State v. Fisher , 50,301 (La. App. 2 Cir. 12/30/15), 185 So.3d 842, 845, writ denied , 16-0228 (La. 02/03/17), 215 So.3d 687 ("The lack of violence cannot be the only reason, or even the main reason for declaring such a sentence excessive").

Despite the nonviolent nature of his crimes, Lewis fails to demonstrate he is an exceptional candidate deserving of a downward deviation from the mandatory minimum sentence. Unlike the defendant in Guidry , who would face 50 years to life for various nonviolent offenses, Lewis' sentence is only 71/2 years with the opportunity for early release. Furthermore, although Lewis' sentence for attempted monetary instrument abuse is in the upper range of the maximum penalty for such offense, it cannot be deemed unconstitutional under the circumstances of this case. Accordingly, considering his previous conviction for armed robbery, Lewis' sentences do not shock the sense of justice.

ERROR PATENT

In sentencing Lewis as a habitual offender, the trial court imposed a $2,000 fine for each conviction. Although the underlying statutes providing the basis for Lewis' convictions authorize the imposition of a fine, see La. R.S. 14:72.2(A) and 40:966(B)(3), the habitual offender statute, La. R.S. 15:529.1, does not. State v. Dickerson , 584 So.2d 1140 (La. 1991). Because the trial court was without authority to impose the $2,000 fines on Lewis after his habitual offender adjudication, we amend his sentences to omit the fines. See State v. Cross , 46,996 (La. App. 2 Cir. 02/29/12), 91 So.3d 995, 1002.

CONCLUSION

For the above reasons, the convictions of Jeremy Lewis are affirmed. Lewis' sentences are amended to omit the $2,000 fines and, as amended, affirmed.

CONVICTIONS AFFIRMED; SENTENCES AMENDED AND, AS AMENDED, AFFIRMED.

BROWN, C. J., concurs in the results.

BLEICH, J. (Ad Hoc), concurs in the results.