text:
    STATE of Louisiana, Appellee v. Calvin BREAKFIELD, Appellant.
    No. 44,605-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Calvin Breakfield, Pro Se.
    Peggy Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Charles R. Scott, II, District Attorney, for Appellee.
    Catherine M. Estopinal, Laura Owen Wingate Fuleo, Jacob P. Broussard, Assistant District Attorneys.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| tThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Calvin Breakfield, was convicted of aggravated rape, a violation of La. R.S. 14:42. He was sentenced to imprisonment at hard labor for life, without the possibility of parole, probation or suspension of sentence. The defendant now appeals. For the following reasons, the defendant’s conviction and sentence are affirmed, as amended, and the case is remanded for instructions to the defendant pursuant to La. R.S. 15:543.

Facts

In the early afternoon hours of Sunday, May 5, 2007, the victim, A.H., was outside her home in Shreveport, Louisiana. At the time she was 83 years old. A young black male, later identified as Calvin Breakfield, came out of A.H.’s next-door neighbor’s garage and asked to use A.H.’s bathroom-she refused. Breakfield then told A.H. that her neighbor was his grandmother and asked if he could use A.H.’s phone to call his grandmother. A.H. agreed to bring her phone to Breakfield so that he could make the telephone call, but told him that he could not come into the house.

After A.H. entered her house, Break-field followed her in, knocked her down, and kicked her. When A.H. attempted to get up, Breakfield hit her. A.H. later testified that “it was just anger on his face.... I knew if I said another word, he would have killed me.” The defendant ripped A.H.’s clothes off, including the chain around her neck. He then dragged A.H. down the hallway, through her own blood, to her bedroom.

| gAfter dragging A.H. to the bedroom, Breakfield lay on top of her and attempted to rape her, but because A.H. had a prolapsed bladder, Breakfield was unable to fully penetrate her vaginally. He then turned A.H. over onto her stomach and sodomized her. A.H. then felt what she believed to be Breakfield urinating on her.

Breakfield demanded money from A.H. and broke a bank found on the floor, which held some change. A.H. then lost consciousness. When she awoke, Breakfield was gone, and she was able to make her way to the telephone and call for help. The officer responding to the scene found A.H. in her house, naked and covered in blood.

A.H. was transported to the hospital. The coroner for Caddo Parish, Dr. Mairus McFarland, conducted an examination of A.H. after emergency personnel had ensured that her condition had stabilized. A.H. was anxious, tearful and trembling. A.H.’s eyes were swollen shut from the blows to her face by Breakfield; she had sustained fractures of her left eye and nose, as well as a severe laceration to her left hand, pneumothorax and multiple rib fractures. A.H. had also sustained a laceration to the surface of her prolapsed bladder. A.H.’s anus exhibited bruising, redness, abrasions and swelling; these injuries rendered a “typical” examination, including the collection of possible biological material, too painful. A sterile swab of the area around A.H.’s anus, however, later revealed DNA consistent with the defendant’s reference sample. A.H.’s physical recuperation in the hospital lasted for six days.

| ^Breakfield was arrested on May 8, 2007. While in the presence of Officer Paul Robinson of the Shreveport Police Department and while changing into a jumpsuit so that his clothes could be seized, Breakfield began muttering to himself. He stated that he knew he should not have taken “the X” because then he never would have gone to the lady’s house; rung the doorbell; asked her to use the phone; beat her and dragged her down the hallway; “stuck it to her”; or, “shot it on her back.” All of these comments were apparently freely made to himself in the presence of Off. Robinson.

On May 15, 2007, the defendant was charged with the aggravated rape of A.H. Prior to trial, the state filed a notice of its intent to use other crimes evidence, citing its purpose as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” After a brief hearing, the trial court denied Breakfield’s motion in limine, which requested exclusion of the other crimes evidence.

|4A sanity commission was ordered by the trial court, and at the conclusion of a hearing on the matter, Breakfield was found to be competent to proceed. On November 6, 2008, after a jury trial, Breakfield was found guilty as charged. He was sentenced to life imprisonment without possibility of parole, probation, or suspension of sentence; additionally, the trial court sentenced Breakfield to a concurrent sentence of 30 days in the parish jail, in lieu of court costs. Breakfield filed motions for new trial, for post-verdict judgment of acquittal, and to reconsider sentence-all of which were denied. This appeal ensued.

Discussion

Sufficiency of the Evidence

In his first assignment of error, Breakfield argues that the evidence at trial was not sufficient to support a conviction of aggravated rape. Specifically, he argues that, because of A.H.’s medical condition, it would not have been possible for him to have penetrated A.H. vaginally. Furthermore, Breakfield argues that, because A.H. was in pain after the attack, the anal examination could not be completed. He also attacks the credibility of A.H.’s testimony because she was “in pain and clearly confused.”

“Rape” is defined as “the act of anal, oral, or vaginal sexual intercourse with a male or female person without the person’s lawful consent.” La. R.S. 14:41. Additionally, “[ejmission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” Id. (emphasis added).

| BLouisiana R.S. 14:42, in pertinent part, defines aggravated rape as:

[A] rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.01/09/08), 974 So.2d 181, urrit 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.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.01/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.02/25/09), 3 |fiSo.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

An appellate court reviewing the sufficiency of the evidence 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 circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App. 2d Cir.06/29/05), 907 So.2d 232, unit denied, 2006-2514 (La.05/04/07), 956 So.2d 607.

In this case, all of the elements of aggravated rape were supported by A.H.’s testimony at the trial. She described how Breakfield attempted to penetrate her vaginally, but when he was unable to, he turned her over and sodomized her. The medical examination following the attack supported her testimony-she sustained a laceration which would be consistent with a vaginal penetration. Although Break-field argues that A.H.’s prolapsed bladder prevented vaginal penetration, the law provides that any penetration, however slight, is sufficient to complete the crime. See State v. Self, 1998-39 (La.App. 3rd Cir.08/19/98), 719 So.2d 100, writ denied, 1998-2454 (La.01/08/99), 734 So.2d 1229. Further, A.H.’s testimony that Breakfield sodomized her is also supported by the forensic examination, which revealed trauma to her body in that area. Additionally, Breakfield’s DNA was recovered from the area surrounding A.H.’s anus. A.H.’s 17testimony, and the brutality of the attack, were also evidenced by the crime scene itself, further proving the elements necessary for aggravated rape and supporting Breakfield’s conviction.

Finally, any minor inconsistencies in the testimony adduced at trial go to the weight of the evidence, not its sufficiency. This court must afford great deference to the fact-finder’s decisions in this regard. When viewed in the light most favorable to the prosecution, the facts established by the evidence in this case are sufficient for a reasonable juror to have concluded beyond a reasonable doubt that the defendant was guilty of every essential element of aggravated rape. Accordingly, we conclude that this assignment is without merit.

Other Crimes Evidence

In his second assignment of error, Breakfield maintains that the trial court erred in allowing testimony of other crimes evidence relative to an incident involving another elderly victim, R.R. First, he argues that the record does not reflect that a hearing was conducted as to the admissibility of other crimes evidence. In addition, he states that at trial the state failed to show by clear and convincing evidence that R.R. had been the victim of a sexual assault. Breakfield asserts that the evidence did not tend to show motive, intent, preparation, plan or any other purpose which was listed by the state in its notice. Finally, he also argues that there was no evidence of a sexual assault in the other case, and that the prejudicial nature of the evidence outweighed its probative value. We disagree.

| ^Generally, evidence of other acts of misconduct is inadmissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973).

Evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La. App. 2d Cir.04/19/06), 929 So.2d 789.

Upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B). Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.05/15/01), 803 So.2d 933, cert denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002).

|¡,A trial judge is vested with wide discretion in determining relevance of evidence; his ruling on the admissibility of other crimes evidence will not be overturned absent a clear showing of abuse of discretion. State v. Scales, 1993-2003 (La.05/22/95), 655 So.2d 1326, cert denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Cooks, 36,613 (La.App. 2d Cir.12/04/02), 833 So.2d 1034. For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence (1) that the other acts or crimes occurred and were committed by the defendant, (2) demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404 B(l) (motive, intent, knowledge, identity, absence of mistake or accident), and (3) show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, supra.

The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Roberson, supra; State v. Gatti, 39,833 (La.App. 2d Cir.10/13/05), 914 So.2d 74, unit denied, 2005-2394 (La.04/17/06), 926 So.2d 511.

In this case, the testimony adduced at trial shows that the prior act allegedly committed by Breakfield did constitute sexually assaultive behavior. R.R. had been beaten; her shorts were pulled down; and her attacker exposed his penis. Whether a rape occurred is not clear; R.R. lost consciousness, and the sexual assault examination did not conclusively establish that penetration had occurred. Article 412 does not require that the other act have been an identical act, however; it merely requires that the [ mprevious act have been sexually assaultive, and that any prejudicial effect be outweighed by its probative value.

The probative value of evidence of Breakfield’s alleged previous act was great. Both victims were elderly widows who lived alone. Both victims lived within a few miles of Breakfield. Both victims were outside their residences when Break-field rode by on his bicycle, and he requested to use the telephone on each occasion. After gaining entry to both victims’ homes, Breakfield brutally assaulted each victim and sexually assaulted each one. The similarity of the acts was highly probative in the context of proof of Break-field’s modus operandi and criminal intent.

Even if the prior act was not sexually assaultive, it was admissible under La. C.E. art. 404, pursuant to State v. Prieur, supra. The state provided the court and the defendant with the requisite notice of its intent to use evidence of Breakfield’s prior acts. The trial court conducted a brief hearing, stating that the evidence of the prior crime “falls within the line of Article 412.2,” also opining that the probative value of the evidence would outweigh any prejudicial effect. There was sufficient evidence to support a finding by a jury, by a preponderance of the evidence, that Breakfield committed the previous act. The acts were almost identical; the defendant’s fingerprint and partial palm print had been obtained at the previous crime scene. The state therefore met its burden of proof pursuant to La. C.E. art. 1104; State v. Prieur, supra. The jury was given a limiting instruction.

Finally, even if admission of the evidence by the trial court had been in error, any such error was harmless. Because of the overwhelming weight |n of the evidence against Breakfield here, particularly the DNA evidence, the verdict in this case was surely unattributable to the admission of the evidence. The outcome would surely have been the same regardless of the admission of such evidence. So considering, we conclude that this assignment is without merit.

Sentencing

As stated the trial court sentenced Breakfield to life imprisonment without possibility of parole, probation, or suspension of sentence along with a concurrent sentence of 30 days in the parish jail, in lieu of court costs. The trial court erred in imposing default time for failure to pay the court costs. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Tillman, 43,569 (La. App. 2d Cir.10/22/08), 997 So.2d 144. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Brovm, 43,458 (La.App. 2d Cir.09/24/08), 996 So.2d 461. The record shows that Breakfield was and is an indigent. He was represented at trial and on appeal by the indigent defenders’ office. At the time of trial, he was 17 years old and had an eighth grade education. There is no indication that he had ever been employed, and he had limited family connections. Therefore, because Breakfield was apparently indigent and unable to pay the fine, the portion of the sentence imposing additional jail time for failure to pay the fine is vacated.

I ^Additionally, the trial court failed to inform Breakfield of the sex offender notification and registration requirement as required under La. R.S. 15:543. His conviction of aggravated rape, a violation of La. R.S. 14:42 and a “sex offense” under La. R.S. 15:541(14.1), requires that Break-field be subjected to the sex offender notification and registration requirements under Louisiana’s sex offender laws. La. R.S. 15:542. Additionally, La. R.S. 15:543 requires that the trial court notify a defendant convicted of a sex offense in writing, using the form contained in La. R.S. 15:543.1, of the registration and notification requirements. It further requires that such notice be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and that an entry be made in the court minutes stating that the written notification was provided. The record does not indicate that Breakfield was provided with any judgment and sentence form, or orally informed by the trial court of his registration requirements at his conviction and sentencing. As a result, remand is required for the purpose of providing the appropriate written notice to the defendant of the sex offender registration requirements. State v. Scott, 42,997 (La. App. 2d Cir.02/13/08), 975 So.2d 782.

Conclusion

For the foregoing reasons, the conviction and sentence, as amended, of Calvin Breakfield are affirmed. The case is remanded to the trial court for the purpose of providing the appropriate written notice to the defendant of the sex offender registration requirements.

AFFIRMED AS AMENDED AND REMANDED.

      . While investigating the attack on A.H., detectives recalled another similar attack, which had occurred 2 years earlier and had remained unsolved. In that case, the victim was also a widow over 80 years old. The previous victim lived within a 4-mile radius of the defendant and A.H.
      On the afternoon of July 19, 2005, after attending church, the earlier victim, R.R., was outside with her dog. A young male rode by on a bicycle and waved. After R.R. waved back, the young man returned to R.R.'s driveway and asked to use R.R.'s phone to call his sister. R.R. told the young man to come to the door, so that she could let him use the receiver of the phone, which was on a long cord. He appeared to attempt to make a call, which was not answered. The young man then asked R.R. if he could use her bathroom; R.R. agreed. When the man returned from the bathroom, he approached R.R. from behind and began to choke her. The young man beat her, pulling her shorts down and exposing his penis. R.R. passed out then regained consciousness to find the attacker gone.
      A fingerprint was obtained from R.R.’s phone, and a partial palm print was found in the bathroom. At that time the defendant's fingerprints were not in the Automated Fingerprint Identification System (AFIS), which is a statewide database of prints of job applicants and arrestees, collected over many years. Two years later, as a result of the rape of A.H., the fingerprint and palm print obtained from R.R.’s crime scene were matched to Breakfield.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James BOUDREAUX, Appellant.
    No. 44,502-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    James Boudreaux Pro Se.

      Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

| defendant, James Boudreaux, appeals his second sentence imposed following his plea of guilty on 14 charges of video voyeurism. We affirm.

FACTS AND SENTENCING BACKGROUND

Defendant was charged with 14 counts of video voyeurism. Pursuant to a plea agreement, Defendant pled guilty to those charges and was sentenced to serve 14 consecutive sentences of 4 years, for a total term of 56 years’ imprisonment, at hard labor without benefits. Defendant appealed and this court found Defendant’s sentence to be constitutionally excessive. State v. Boudreaux, 41,660 (La.App. 2d Cir.12/13/06), 945 So.2d 898, writ denied, 07-0058 (La.11/2/07), 966 So.2d 591. The sentence was reversed and the case was remanded for resentencing. Id. On re-sentencing, the trial judge imposed three consecutive sentences of 5 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence on counts 3, 9 and 12. On the remaining 11 counts, the trial judge imposed concurrent sentences of 3 years’ imprisonment at hard labor without benefits. Defendant received a total sentence of 15 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant was also fined $2,500 and, in default, 9 months or in lieu of jail time, 400 hours of community service.

Defendant filed two pro se motions to reconsider sentence, both of which were denied as untimely, and this appeal ensued. Counsel for Defendant on appeal asserts that the sentence imposed is constitutionally excessive. Defendant has filed a pro se brief alleging that the trial court erred in imposing consecutive sentences as there was no factual basis for the | sentences, that the sentences are constitutionally excessive and that the trial court erred by increasing his sentence on three of the counts against him.

DISCUSSION

Counsel for Defendant argues that the consecutive sentences imposed in this instance are excessive in that Defendant’s actions formed a part of a single scheme or plan. Defendant, pro se, also contends that his sentence is constitutionally excessive as the punishment is grossly disproportionate to the offenses. In addition, Defendant argues that the record does not support a factual basis for the imposition of consecutive sentences. In response, the State supports the sentence, emphasizing that Defendant is a third-felony offender who received a great benefit through a generous plea agreement that allowed him to be spared sentencing as a habitual offender. We agree.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, un~it denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. lístate v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

[ /The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), unit denied, 521 So.2d 1168 (La.1988). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App. 2d Cir.8/15/07), 962 So.2d 1126.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Boudreaux, supra; State v. Mitchell, 37,916 (La.App. 2d Cir.3/3/04), 869 So.2d 276, writ denied, 04-0797 (La.9/24/04), 882 So.2d 1168, cert, denied, 543 U.S. 1068, 125 S.Ct. 905,160 L.Ed.2d 801 (2005).

| Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert, denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir. 1986), writ denied, 496 So.2d 355 (La. 1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir. 1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir. 1983), writ denied, 435 So.2d 433 (La. 1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the potential for the defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (LaApp. 2d Cir.1987); and whether the defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

Absent a defendant’s assertion that he was falsely or mistakenly charged with an offense, the sentencing court may consider a dismissed charge as part of the defendant’s criminal history, even when the dismissal forms part of the plea agreement. State v. Pamilton, 43,112 (LaApp. 2d Cir.3/19/08), 979 So.2d 648, writ denied, 08-1381 (La.2/13/09), 999 So.2d 1145, citing State v. Cook, 466 So.2d 40 (LaApp. 2d Cir.1985); State v. Daley, 459 So.2d 66 (LaApp. 2d Cir.1984), writ denied, 462 So.2d 1264 (La.1985).

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in | ^potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,-239 (LaApp. 2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (LaApp. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (LaApp. 2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (LaApp. 2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, 43,350 (La. App. 2d Cir.8/13/08), 989 So.2d 267; State v. Shumaker, supra.

A substantial advantage obtained by means of a plea bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the most serious offense originally charged, is a legitimate consideration in sentencing. State v. Burgess, 42,310 (LaApp. 2d Cir.9/12/07), 965 So.2d 621; State v. Ross, 35,552 (La.App. 2d Cir.2/27/02), 811 So.2d 176.

During the sentencing hearing, the trial judge noted several factors that were considered in determining Defendant’s sentence. The court indicated that the factors considered in the earlier sentencing were to be adopted by reference. The trial judge further noted that Defendant would be classified as a second-felony offender for habitual offender purposes had he been charged as a multiple offender. The trial judge also noted that 17Pefendant was charged with committing crimes against only one victim, when, in fact, there were multiple victims. The trial judge indicated that he considered the fact that Defendant received the benefit of a plea bargain and that there were other video tapes that were not viewed and that could have led to additional charges against him.

In finding that consecutive sentences were warranted for 3 of the 14 counts to which Defendant pled guilty, the trial court found as to count 3 that there were at least eight nude images contained in the tape that related to this count. With regard to count 9, the trial judge opined that this count was “especially heinous” as Defendant was seen placing the victim’s panties up to his nose while he masturbated. The trial judge found that this act was evidence of Defendant’s lustful disposition towards his stepdaughter. As to count 12, the trial judge found that there were two or more images involving a separate victim. The court also opined that Defendant’s actions were not part of a single offense or occurrence.

The trial judge also stated that he considered the victim’s impact statement wherein she indicated that her trust had been destroyed because of the actions of Defendant. Based on his review of the tapes created by Defendant, the trial judge concluded that there were approximately 32 separate images that had not been charged. Defendant’s remorse, as well as his acceptance of responsibility for the crime, evidenced by his guilty plea, were also factors the trial judge reviewed. The court noted that Defendant’s explanation for placement of the video camera as a security 1^measure did not seem plausible and security of the home could have been accomplished by placement of the cameras in an alternate location.

Defendant’s prior criminal history, as well as his work history, were also reviewed by the court. The trial judge noted that Defendant had an excellent work history and that he had come from “a good family.”

We conclude that the sentences imposed are not constitutionally excessive. The imposition of consecutive sentences for 3 of the 14 counts was well within the discretion of the trial judge. The trial judge considered the appropriate factors in determining these sentences. The court also reviewed the gravity or dangerousness of the offense opining that the potential for harm based on a responsive or retaliatory reaction to Defendant and others existed as a result of the video tapes being made. The trial judge indicated that he believed Defendant’s actions were heinous in that he perpetrated the crimes against a family member and that the harm done to the victim was readily apparent in that she had to alter her life plans because of the embarrassment caused by the incident.

We further find that the trial court clearly articulated his reasons for the imposition of the consecutive sentences in this instance. The sentences imposed are within the statutory limits, and Defendant’s sentencing exposure was substantially reduced as a result of his plea agreement.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, James Boudreaux, is affirmed.

AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Anthony Mark MANDIGO, Appellant.
    No. 44,698-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 30, 2009. '
    Rehearing Denied Oct. 22, 2009.

      Lawrence M. Johnson, for Appellant.
    Charles R. Scott, District Attorney, Catherine M. Estopinal, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

h The defendant, Anthony Mark Mandi-go, was convicted of possession of a Schedule II controlled dangerous substance in excess of 28 grams but less than 200 grams, which is a violation of La. R.S. 40:967(F)(l)(a). He was subsequently adjudicated as a fourth felony offender and sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction and sentence.

FACTS

On March 25, 2008, the Shreveport Police Department (“SPD”) and the Caddo Parish Sheriffs Office (“CPSO”) were conducting a narcotics investigation based on information supplied by a confidential informant (“Cl”). This Cl, whom the agencies had used in the past, had previously provided accurate and reliable information. The Cl had made contact with the defendant and had arranged to buy 62 grams of crack cocaine. The defendant instructed the Cl to pick up the crack cocaine at the Ashton Pines Apartments in Shreveport, Louisiana. Law enforcement instructed the Cl to change the location to the parking lot of the Circle K located near West 70th Street and Pines Road because it would be less dangerous for the agents to conduct surveillance on that location. While the Cl was waiting in the parking lot, he was contacted by the defendant via cellphone and told to meet the defendant at a Walgreens parking lot, which was approximately a half block away from the Circle K.

The Cl drove to the Walgreens parking lot and sat in his vehicle. A narcotics agent with the CPSO, Sean McCollough, was already in the 12parking lot conducting surveillance. The defendant arrived at the Walgreens parking lot with his 11-year-old daughter as a passenger in the vehicle. He was driving around the parking lot when the agent in charge of the investigation, L.J. Scott, ordered a “take-down.” Agent McCollough then positioned his truck to block the defendant’s vehicle, exited his truck wearing a vest with “sheriffs office” written across his chest and back. His M-16 rifle was in a ready position. He identified himself as a member of the sheriffs office and ordered the defendant to get out of the vehicle. Instead of exiting his vehicle, the defendant accelerated toward the agent. Remembering that the child was in the front seat of the car, Agent McCollough lowered his rifle and shot one of the vehicle’s tires out.

The defendant then backed up and turned his vehicle to effectuate an escape. At this point, Agents L.J. Scott and Darren Marshall had arrived at the parking lot and began to follow the defendant’s vehicle. While doing so, they noticed the defendant slow down next to a dumpster and throw something out of the driver’s side window. The object flew over the dumpster and landed on the ground. Agent Scott retrieved the item, while the defendant was apprehended by other law enforcement personnel arriving on the scene. The item thrown from the vehicle was later identified as a clear plastic bag containing approximately 62 grams of crack cocaine.

Subsequent to the defendant’s arrest, officers went to the apartment at Ashton Pines from which the defendant had left to meet the Cl. At the apartment, the defendant’s girlfriend answered the door and allegedly gave verbal and written consent for officers to conduct a search. During the | o.search, the officers allegedly discovered and seized additional cocaine measuring in excess of 400 grams and materials believed to be used in the production of crack cocaine including a measuring cup containing water and crack cocaine and scales.

As a result of the arrest and subsequent search of the apartment, the defendant was charged by bill of information with one count of possession of a Schedule II controlled dangerous substance in excess of 28 grams but less than 200 grams in violation of La. R.S. 40:967(F)(l)(a), one count of possession of a Schedule II controlled dangerous substance in excess of 400 grams in violation of La. R.S. 40:967(F)(l)(c), and one count of manufacture of a Schedule II controlled dangerous substance in violation of La. R.S. 40:967(A)(1). On April 10, 2008, counsel for the defendant filed a motion for discovery and production of documents. On July 28, 2008, the state filed its response to the defendant’s discovery requests containing a certificate signed by the assistant district attorney indicating that a copy of the response had been “forwarded to attorney for the defendant” that same date.

The matter came for jury trial on August 18, 2008, at which time the counsel for the defendant answered “ready for trial” and then indicated to the court that the defendant would be waiving his right to a jury trial. On the morning of August 28, 2008, the matter was called for bench trial, the counsel for the defendant made an oral motion for a continuance on the basis that he had never received discovery responses from the state. The state objected to the continuance on the basis that the state had responded to I.,discovery on July 28, 2008, and that the defense made no mention of the state’s alleged failure to respond when it answered ready for trial 10 days earlier. In addressing the state’s contention, counsel for the defendant indicated that he had answered ready in error and reiterated that he had not received the discovery responses. The court, having listened to the transcripts from the proceedings of August 18, 2008, denied the continuance finding that the defendant had answered ready for trial on that day. The defense’s objection to the ruling was noted for the record.

Counsel for the defendant was then allowed to make an in-court filing of a motion to suppress the drugs seized in the Walgreens parking lot, but also the items seized from defendant’s apartment where a consensual search took place. The state requested and was allowed to try the motion to suppress and go to trial solely on count one charged in the bill of information, the charge of possession of a Schedule II controlled dangerous substance in excess of 28 grams but less than 200 grams, in violation of La. R.S. 40:967(F)(l)(a).

The trial judge found the defendant guilty as charged on one count of possession of a Schedule II controlled dangerous substance in an amount exceeding 28 grams but less than 200 grams, which is a violation of La. R.S. 40:967 F(1)(A). The state filed a habitual offender bill charging the defendant as a fourth felony offender. The defendant filed a motion for new trial on the basis that trial court erred in both denying the motion to suppress and in denying the defense a continuance when the state had allegedly failed to provide responses to the defense’s discovery requests. The motion for |Bnew trial was denied and after all evidence was adduced, the defendant was adjudicated a fourth felony offender. The defendant was sentenced on November 5, 2008, to life imprisonment without the benefit of parole, probation or suspension of sentence. A subsequent motion to reconsider sentence was denied. The instant appeal followed.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he asserts that trial court erred in denying his motion for a continuance. The defendant contends that he requested the continuance because he had not been furnished with any discovery material after filing the appropriate motion. More specifically, the defendant argues that the trial court’s denial of the motion for a continuance was an abuse of discretion because a continuance would not have inconvenienced the witnesses or attorneys and that the denial specifically prejudiced the defendant because the instant conviction led to his fourth felony offender adjudication and mandatory life sentence.

The state, on the other hand, argues that the defendant counsel’s answering “ready for trial” 10 days before the bench trial was held, his failure to complain at any point in the interim about not receiving discovery, and the fact that its discovery responses were filed in the record on July 28, 2008, all east doubt on the merits of the last-minute request for a continuance. Furthermore, the state argues that the defendant’s allegation that a continuance would not have caused any inconvenience is conclusory and unsupported by facts and that the defendant has also failed to allege any specific prejudice arising from the denial of the continuance.

|fiLa. C. Cr. P. art. 707 reads:

A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

However, under extenuating circumstances, an oral motion is sufficient. State v. Bullard, 29,662 (La.App.2d Cir.9/24/97), 700 So.2d 1051. The grant or denial of a motion for continuance or a motion for recess is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. State v. Morris, 43,522 (La.App. 2 Cir. 9/17/08), 996 So.2d 306. The decision whether to grant or deny a motion to continue depends on the circumstances of each particular ease. State v. Commodore, 2000-0076 (La.App. 4 Cir. 11/21/00), 774 So.2d 318. Where the circumstances that allegedly make the continuance necessary arise unexpectedly, and the defendant has no opportunity to prepare a written motion, the trial judge’s denial of the defendant’s motion for a continuance is properly reviewable on appeal. State v. Parsley, 369 So.2d 1292 (La.1979).

Even when an abuse of discretion is shown, this court typically declines to reverse a conviction based on the denial of a continuance absent a showing of specific prejudice. State v. Brooks, 40,186 (La.App. 2 Cir. 10/26/05), 914 So.2d 110. The specific prejudice requirement may be disregarded only where the time allowed defense counsel to prepare is so minimal that the fairness of the proceeding becomes questionable. State v. | 7Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 1996-2303 (La.1/31/97), 687 So.2d 402.

In the instant case, the record does not indicate that the circumstances allegedly giving rise to the motion occurred unexpectedly so as to have prevented defense counsel from preparing a motion. However, in the interest of judicial economy, the merits of defendant’s claim are addressed below.

On July 28, 2008, the state’s discovery responses were filed and the state certified that same had been forwarded to defense counsel. Defense counsel answered ready for trial on August 18, 2008. The trial court reasonably treated this as an acknowledgment that defense counsel had received any and all information to which he was entitled from the state in order to prepare a defense. The approximate three-week span that the state’s responses were in the record prior to the first trial setting when the counsel for the defendant answered ready for trial is an adequate amount of time for the defendant’s counsel to prepare a defense.

Even if the defendant’s counsel erroneously answered that he was ready for trial, he had an additional 10 days in which to discover his error and raise the issue with the trial court and/or the state. Unfortunately, the record gives no indication that he did. Furthermore, if he had examined the suit record, he would have been able to review the state’s discovery responses that he claimed he had not received.

There is no showing of any specific prejudice, either in the motion for continuance or in the brief, which may have resulted from the lack of |Rdiscovery. There is no indication as to what defense, if any, could have been set forth if additional time had been granted. Under these circumstances we cannot conclude that the trial judge abused his discretion, nor that defendant was so prejudiced by the denial as to require a reversal of the conviction.

This assignment is therefore without merit.

CONCLUSION

Accordingly, for the reasons assigned, we affirm the defendant’s conviction and sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.


author: WILLIAMS, J.

text:
    Albertine K. HUNTER, Plaintiff-Appellee, v. James Edwin HUNTER, Defendant-Appellant.
    No. 44,703-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 30, 2009.

      Stephen A. Jefferson, Monroe, for Appellant.
    James A. Hobbs, Calhoun, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

11Defendant, James Edwin Hunter, appeals a trial court’s finding that plaintiff, Albertine K. Hunter, was free from fault in the dissolution of their marriage. The court ordered Mr. Hunter to pay final periodic spousal support in the amount of $400 per month and arrearages for unpaid interim support in the amount of $49,410. For the reasons set forth herein, we affirm.

FACTS

James and Albertine Hunter were married on November 10, 1984 and physically separated on April 14, 2006. On May 9, 2006, Mrs. Hunter filed a petition for divorce, requesting interim spousal support and, following the divorce, final periodic support.

A hearing officer conference was held on August 14, 2006. The hearing officer issued a recommendation to the court that Mr. Hunter pay Mrs. Hunter interim spousal support in the amount of $1,490 per month, retroactive to May 9, 2006, the date of judicial demand. On August 6, 2008, Mrs. Hunter filed a motion for rule to make the interim support judgment ex-ecutory and for contempt. Following Mr. Hunter’s objection to the hearing officer’s recommendation, a trial was held on September 14, 2006. At the conclusion of the trial, the court implemented the hearing officer’s recommendation.

A judgment of divorce was granted on September 8, 2008. On December 4, 2008, a hearing was held with regard to final periodic spousal support and the unpaid interim support. The court found that Mrs. Hunter 12was not at fault in the dissolution of the marriage and awarded her final periodic support in the amount of $400 per month. The court stated:

Expressly noting that this Court finds Plaintiff in need and Defendant being possessed of the ability to pay, the focus turns to “fault....” While the thrust of Defendant’s argument centers around Plaintiffs fussing or nagging, such position, today, cannot overcome Plaintiffs request for relief. On the showing made, Defendant’s “nagging position” does not rise to the level of the type of conduct contemplated by state law which would constitute “fault.” Further, Defendant’s position relative to Plaintiffs “debt causing actions and/or inactions,” does not rise to the level of the type of conduct contemplated by state law which would constitute “fault.”

The trial court also entered a judgment against Mr. Hunter in the amount of $49,410 “for past due interim support through December 8, 2008, together with legal interest on each installment from due date until paid.” Mr. Hunter appeals.

DISCUSSION

In his first assignment, Mr. Hunter contends the trial court erred in finding that Mrs. Hunter was free from fault in the dissolution of the marriage. Mr. Hunter argues that the testimony proved that Mrs. Hunter was clearly at fault in causing the breakup of the marriage.

Fault

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. LSA-C.C. art. 111. When a spouse has not been at fault and is in need of | ¡¡support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support. LSA-C.C. art. 112.

Fault is a threshold issue in a claim for spousal support. Walker v. Walker, 41,573 (La.App.2d Cir.11/1/06), 942 So.2d 605; Hutson v. Hutson, 39,901 (La.App.2d Cir.8/9/05), 908 So.2d 1231. Since the statutory law no longer specifies the type of fault which would constitute grounds to deny final periodic spousal support, legal fault must be determined according to the prior jurisprudential criteria. See Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359; see also LSA-C.C. art. Ill, Revision Comments-1997, comment (c).

The word “fault” contemplates conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties and responsibilities. A spouse is not deprived of spousal support after divorce simply because he or she was not totally blameless in the marital discord. Pearce v. Pearce, 348 So.2d 75 (La.1977); Hutson, supra.

Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Walker, supra; Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853, writ denied, 2000-3089 (La.1/5/01), 778 So.2d 1142. Legal fault includes, but is not limited to, habitual intemperance or excesses, cruel treatment or outrages and abandonment. Id. Mere bickering and fussing do not constitute cruel treatment for purposes of denying alimony. To prove cruel treatment, a party needs to show a continued pattern of mental harassment, nagging and griping by one spouse directed at the other so as to |4make the marriage insupportable. Walker, supra; Lyons, supra. The burden of proof is upon the claimant. Id.

The trial court has immense discretion in matters regarding the determination of fault for purposes of precluding final periodic support. The trial court’s findings of fact on the issue of fault will not be disturbed unless manifestly erroneous. Walker, supra; Roan v. Roan, 38,-383 (La.App.2d Cir.4/14/04), 870 So.2d 626. The factfinder has a right to accept or reject, in whole or in part, the testimony of any witness. Mizell v. Mizell, 37,004 (La.App.2d Cir.3/7/03), 839 So.2d 1222, citing Walden v. Walden, 2000-2911 (La.App. 1st Cir.8/14/02), 835 So.2d 513.

In the instant case, Mrs. Hunter testified at length about the state of her health and the amount of debt she and Mr. Hunter accumulated during their marriage. She testified that she and Mr. Hunter had numerous financial and credit problems during their marriage and had sought bankruptcy protection on two occasions. Mrs. Hunter also testified that she had left Mr. Hunter on at least one occasion prior to filing the petition for divorce “because of his temper and fit throwing.” She testified that she stayed away approximately six or seven weeks and she “thought that maybe if I left for a little while things would get better.” Mrs. Hunter testified that she filed the petition for divorce because Mr. Hunter told her he wanted a divorce because “he just wasn’t happy.” She denied being at fault in the dissolution of the marriage, stating, “I was a very good wife.”

Mr. Hunter testified with regard to Mrs. Hunter’s conduct during the marriage. He testified that Mrs. Hunter had borrowed money and received Rcredit cards without his knowledge on several occasions; she failed to pay the mortgage on their house on at least one occasion while they were in Chapter 13 bankruptcy, causing an increase in the monthly payment to the bankruptcy trastee; she was arrested for shoplifting on one occasion; she had poor housekeeping habits. Mr. Hunter also testified that Mrs. Hunter’s act of leaving him on the one prior occasion had nothing to do with his temper. He stated that she left “because she knew the marriage had been failing for a while, and ... we just [were not] getting along good.... ” Mr. Hunter further testified that the issues with bankruptcy and credit problems played “a big part” in the dissolution of the marriage.

While it appears that Mrs. Hunter was not totally blameless in the dissolution of the marriage, we find that the trial court did not commit manifest error in finding that Mrs. Hunter’s actions did not constitute fault. Mr. Hunter testified with regard to his dissatisfaction with Mrs. Hunter’s conduct throughout the marriage, primarily concerning the way she handled financial and credit issues. It is clear that the couple’s finances were in disarray — they had filed for bankruptcy protection at least twice during then* marriage and at least one vehicle had been repossessed by a creditor. Mrs. Hunter testified that Mr. Hunter asked for a divorce because “he just wasn’t happy;” Mr. Hunter testified that the credit problems contributed to the breakup of the marriage; however, there was no indication that Mrs. Hunter’s alleged misconduct or behavior with regard to the couple’s financial. affairs provided an independent contributory or primary cause of the breakup of the marriage. Mr. Hunter clearly stated that he and Mrs. |(iHunter just were not “getting along good [sic].” Therefore, we find no error in the trial court’s determination that Mrs. Hunter met her burden of proving that she was not at fault in the dissolution of the marriage.

Arrearages

Mr. Hunter also contends the court erred in concluding that Mrs. Hunter was entitled to past due interim spousal support in the amount of $49,410. He alleges that he and Mrs. Hunter had entered into an agreement to modify the trial court’s interim support judgment.

An alimony or child support judgment remains in effect until the party liable has it modified or terminated by the court. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Mizell, supra. The policy reason behind this rale is obvious: the law does not want to encourage those owing alimony or child support to become involved in “self-help” by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order. Mizell, supra, citing Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir.1983).

There is an exception to this general rule when the evidence shows the parties have expressly agreed to waive or otherwise modify the court-ordered payments. Id. Mere acquiescence in the obli-gor’s failure to pay the full amount of support does not constitute a waiver. Id.; Weldon v. Weldon, 98-1173 (La.App. 3d Cir.2/3/99), 737 So.2d 812. The burden of proof of the existence of the agreement is on the party seeking to modify the obligation under the judgment. Mizell, supra, citing Gomez v. Gomez, 421 |7So.2d 426 (La.App. 1st Cir.1982).

In the instant case, as stated above, on October 6, 2006, the court ordered Mr. Hunter to pay Mrs. Hunter interim spousal support in the amount of $1,490 per month, retroactive to the date of judicial demand. Mrs. Hunter testified that Mr. Hunter paid her $100 per week from October 2006 until September 2007. On August 6, 2008, Mrs. Hunter filed a rule to make the judgment for the unpaid interim spousal support executory. Mr. Hunter never sought a modification of the interim spousal support award.

Mr. Hunter testified that he and Mrs. Hunter discussed the court’s order and “she admitted that I couldn’t come up with that amount....” Mr. Hunter testified that he and Mrs. Hunter agreed that he would pay her $100 per week “plus her auto insurance, the house insurance, her health insurance, [and] the bankruptcy note.... ” Mr. Hunter also testified that he agreed to postpone the date of the finalization of the divorce so that Mrs. Hunter could keep her health insurance until she completed some pending medical treatments. Mr. Hunter stated that he thought that if he kept his part of the agreement, he would not have to pay interim spousal support or arrearages.

Mrs. Hunter denied entering into an agreement with Mr. Hunter to modify the payments owed under the trial court’s judgment. She testified that after the interim spousal support was ordered, Mr. Hunter began paying her $100 per week. Mrs. Hunter testified that she accepted the payments because Mr. Hunter told her that he could not afford to pay any more and ls“$100 a week was better than nothing.” Mrs. Hunter also testified that she and Mr. Hunter agreed, through their attorneys, to continue the divorce hearing because she had been diagnosed with breast cancer and would no longer have health insurance once the divorce became final. Mrs. Hunter further stated that she had not previously instituted a claim against Mr. Hunter for non-payment of interim spousal support because she was afraid of him because he came to her house and threatened her, saying “I will see you dead before you get a dime.”

After hearing the testimony, the trial court found that the parties had not entered into an agreement to reduce the interim spousal support payments. The court stated, “[W]e’ve heard nothing in my view that would justify not paying the arrears. In other words, ... he should [have] paid it and that’s just the way it is.”

After a careful review of the record, we conclude that there was no evidence presented to substantiate Mr. Hunter’s contention that he and Mrs. Hunter had entered into an agreement to modify the support payments. The trial court was in the best position to judge the credibility of the witnesses and to accept or reject their testimony. Both parties testified that they agreed, through their attorneys, to continue the finalization of the divorce so that Mrs. Hunter could complete her cancer treatment and surgeries. At no time did Mr. Hunter seek to obtain a written agreement or to formally modify the judgment. We find no manifest error in the trial court’s findings.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s judgment, | ¡¡ordering James Edwin Hunter to pay final periodic support in the amount of $400 per month. We also affirm the court’s assessment of arrearages for unpaid interim periodic support in the amount of $49,410. Costs of this appeal are assessed to the defendant, James Edwin Hunter.

AFFIRMED.

      . Mrs. Hunter apparently abandoned the contempt claim. Counsel for Mrs. Hunter stated in open court, “[W]e agreed to forfeit — not hold him in contempt.”

      . The testimony revealed that Mrs. Hunter was diagnosed with breast cancer around the time the petition for divorce was filed and she underwent several surgeries.


author: McKAY, Judge.

text:
    STATE of Louisiana v. Lawrence S. DAVIS, Jr.
    No. 2009-KA-0053.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.
    Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Andrew M. Pickett, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appellant, State of Louisiana.
    Michael H. Idoyaga, Louisiana Appellate Project New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR.).
   McKAY, Judge.

| STATEMENT OF THE CASE

The defendant, Lawrence S. Davis, was arrested on December 4, 2004 and was charged by a bill of information on December 29, 2004, with one count of possession of crack cocaine in violation of La. R.S. 40:967(C)(2). On January 5, 2005, he appeared before the district court and entered a plea of not guilty. On February 16, 2005, pursuant to motion hearings the district court denied the defendant’s motion to suppress evidence and found probable cause to bind him over for trial. The defendant was released on his own recognizance (“ROR”) subject to intensive probation with drug testing. On March 23, 2005, the defendant appeared for trial but the trial was continued in oral motion by the State to April 25, 2005. On April 25, 2005, the defendant appeared for trial; the court reset the trial date to June 8, 2005. On June 8, 2005, the court was closed and the matter was reset for June 29, 2005. On that date the defendant was ordered by the district court to enter a drug rehabilitation program monitored by Intensive Probation. A pre-trial conference was scheduled for August 29, 2005. On that date Hurricane 12Katrina struck the City of New Orleans, causing significant damage to both the City and Orleans Parish Criminal District Court. This event temporarily brought the criminal justice system to an unprecedented halt. On June 1, 2006, the Orleans Parish Criminal Court reopened and the first jury trial was held on June 5, 2006, The next setting in the case sub judice was a pre-trial conference on January 24, 2007 which was reset to January 25, 2007. This conference was reset by the district court as the defendant had not been served. Notices were sent to the defendant and his surety. On February 7, 2007, the district court cancelled the pretrial conference and reset the matter to February 28, 2007. The defendant failed to appear in court that day and the district court issued an alias capias for his arrest in the amount of $50,000, and the State’s request to forfeit the defendant’s bond was granted. The defendant was arrested on the capius on April 29, 2008. A status hearing was set for May 8, 2008. On that date the defendant was again released to intensive probation and an evidentiary hearing set for May 16, 2008. On May 16, 2008, trial was set for July 10, 2008. On June 25, 2008, a mental competency (“lunacy”) hearing was set for July 1, 2008. On that date the defendant did not appear in court and the defense counsel file a motion to quash the bill of information based on La. C. Cr. P. art. 578(A)(2), failure to prosecute timely. The “lunacy” hearing and hearing on the open motion to quash was reset for July 15, 2008. The defendant orally motioned for a continuance which was granted, and the matter was continued to July 22, 2008. The lunacy hearing was also reset for that date. On July 22, 2008, the trial court granted the defendant’s | ..¡motion to quash the bill of information. The State filed this appeal seeking a reversal of the district court’s ruling.

FACTS

The underlying facts of this case are not pertinent to this appeal. The issues are purely procedural in nature.

ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENTS OF ERROR

The state argues that the district court abused its discretion in granting the defendant’s motion to quash the bill of information based on the expiration of the period of limitations.

DISCUSSION

The State argues that although La. C. Cr. P. art. 578 requires the State to bring a defendant to trial within two years of the institution of proceeding in non-capital felony offenses, the time limitation was interrupted and cites the following statutes:

La.C.Cr.P. art. 578. General rule
A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
B. The offense charged shall determine the applicable limitation.

I/The state correctly notes that the provisions of the general rule cited above are subject to “interruption and suspension.” La.C.Cr.Pr. art. 579, relative to interruption of the time limitations upon the commencement of trial, provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(2) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In State v. Rome, 630 So.2d 1284 (La.1994), the Supreme Court explained the mechanics of interruption and suspension as follows:

An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if the defendant “cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim. Proc. Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La.Code Crim. Proc. Ann. art. 580.

Rome, 630 So.2d at 1287.

|sIn State v. Brazile, 2006-1611 (La. App. 4 Cir. 5/30/07), 960 So.2d 333, this Court recognized that Hurricane Katrina, which struck New Orleans on August 29, 2005, constituted a cause beyond the control of the State that prevented it from trying the defendant according to the terms of Article 578. This put the Criminal District Court for the Parish of Orleans, where the defendant’s prosecution was then pending, out of operation. The Brazile court held that the two-year limitation for commencement of trial under La.C.Cr.P. art. 578(A)(2) was interrupted by Hurricane Katrina and commenced to run anew at some point thereafter, “once the causes preventing the State from trying the defendant were removed and the court reconvened.”

Brazile, 2006-1611, p. 4, 960 So.2d at 336.

Later in State v. Hamilton, 2007-0581 (La.App. 4 Cir. 3/5/08), 980 So.2d 147, 152, this Court revisited the Katrina interruption issue, and resolved it by setting the effective date of the end of interruption and the resetting of the start of time limitations as follows:

Nevertheless, rather than engage in hairsplitting analysis and essentially swearing contests which pit judges, prosecutors, defense attorneys and jury commissioners against each other, in an effort to determine the possible date on which a jury trial could have been conducted in the Orleans Parish Criminal District Court, the better course of conduct would be to establish a date which takes into account the circumstances present at the Criminal District Court. That date we find to be June 5, 2006, the day on which the first criminal jury trial actually occurred after Hurricane Katrina. Therefore, we find the interruption caused by Hurricane Katrina ceased to exist at that time and the State of Louisiana had one year or until June 5, 2007 to bring Ms. Hamilton to trial. See La. C.Cr.P. art. 583.

Hamilton, 2007-0581, p. 7-8, 980 So.2d at 151-152.

| fiMost recently, in State of Louisiana v. Romar, 2007-2140 (La.7/1/08), 985 So.2d 722, the defendant, who was wanted on outstanding warrant for third offense of operating a motor vehicle while intoxicated, reappeared in court eight years later, following his arrest on another charge of operating a motor vehicle while intoxicated and execution of the open attachment for him issued. The defendant moved to quash on grounds that the time limits for bringing the case to trial had expired. The Twenty-Second Judicial District Court granted the motion and the State appealed. The First Circuit affirmed, and the state sought writs. The issue before the Supreme Court was to what extent the State should be held responsible for failing to make a showing of having made a good faith effort to locate the defendant. The Louisiana State Supreme Court held that:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequences, since 1984, is the interruption of the time limits placed on trial.

Romar, 2007-2140, pp. 7-8, 985 So.2d at 727.

Thus, the Supreme Court held that the two-year time limit for prosecution of non-capital felony cases following Katrina remains interrupted if the defendant failed to appear at any proceeding pursuant to actual notice; furthermore, this statute did not impose on the state the affirmative duty to search for defendant who had failed to appear for trial after receiving actual notice, even though the state 17ostensibly could have found defendant when he renewed his driver’s license with his new address and paid utilities.

In the instant case, the defendant’s motion to quash must fall in light of the rulings in Hamilton and Romar. The time began running once again on June 5, 2006, not as the resumption of a suspended time period but as the beginning of a new two year period during which prosecution may go forward against the defendant. Furthermore, it appears as per Romar that the state is relieved of the responsibility of locating defendants who have already been arraigned and are aware of the open charges against them, especially in cases such as the one before this Court, where the defendant has been placed on pretrial probation and thus has the burden of keeping his probation officer and the court aware of any change of address.

Although the defendant is correct in asserting that the Louisiana Supreme Court has placed a heavy burden upon the State to justify an apparent untimely commencement of trial, State v. Rome, this Court has made it clear that the effects of Hurricane Katrina and its aftermath were of sufficient breath and impact to satisfy that burden.

At the last setting in the instant matter and prior to Hurricane Katrina, on June 29, 2005, the defendant was notified in open court of his obligation to be present at a pre-trial conference that was scheduled the day the hurricane made landfall. At the first setting post Katrina, on January 24, 2007, a pre-trial conference was reset for the next day. On that date notices were sent to both the defendant and his surety at the addresses on record with the district court apprising them of the February 7, 2007 pretrial conference. Although this conference was subsequently cancelled and again reset to February 28, 2007, the defendant was once again | ^noticed at the address that he had previously been successfully served. Yet, the defendant failed to appear resulting in the issuance of a capius.

The defendant did not appear in Criminal District Court again until May 8, 2008, due to being arrested on an outstanding capius. This two-and-a-half year gap, under Article 579, represents a new interruption attributable to the defendant, and the prescription began to run anew on that date.

It is abundantly clear that the defendant was aware that he was the subject of a criminal prosecution on August 29, 2005. Moreover, he had been released by the district court to intensive probation twice, most recently on June 29, 2005. The defendant had an affirmative duty to inform the district court of a change of address for subpoena purposes. See La.C.Cr.P. art. 322.

Based on applicable jurisprudence and the facts of this case, the State has demonstrated valid grounds for interruption under Article 579. A new prescriptive period began to run on May 8, 2008, and the State, therefore, has until May 8, 2010, to bring the defendant to trial in this matter. The July 10, 2008 trial date initially set fell well within this period, and the trial court abused its discretion in granting the defendant’s premature motion to quash.

CONCLUSION

Based on the above and foregoing we reverse the judgment of the trial court, reinstate the defendant’s charges and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: JAMES F. McKAY III, Judge.

text:
    Joseph LEJEUNE, et al. v. Lucien GIOE, et al.; Cynthia Self Poolson, et al. v. Lucien Gioe, Individually, Gioe’s Truck Service and Demolishing, Lou Gioe’s Truck Service, Inc., Crescent Environmental Service, Inc., River Parish Disposal, Inc., St. Bernard Parish Government and United National Insurance Company.
    Nos. 2008-CA-1452, 2008-CA-1453.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.

      Jerald N. Andry, Jr., Jeanne Andry Landry, Andry & Andry, L.L.C., New Orleans, Louisiana, for Plaintiffs/Appellees.
    Anthony J. Milazzo, Jr., Hebbler & Gior-dano, L.L.C., Metairie, Louisiana, for Defendant/Appellant, River Parish Disposal, Inc.
    G. Frederick Seemann, Law Office of G. Frederick Seemann, Attorney at Law, L.L.C., Lafayette, Louisiana, for Defendants/Appellants, Lou Gioe’s Truck Service, Inc., Lou Gioe, individually and d/b/a Gioe’s Truck Service and Demolition.
    Stephen M. Gele’, Kelly O. Thibeaux, Ungarino & Eckert, L.L.C., Metairie, Louisiana, for Defendant/Appellant, Crescent Environmental Services, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

hln this case, the defendants appeal the trial court’s certification of a class action lawsuit arising out of a fire at a landfill site in St. Bernard Parish. We affirm.

FACTS AND PROCEDURAL HISTORY

On the night of September 4, 2000, a fire began at a landfill in St. Bernard Parish operated by Gioe’s Truck Service, Inc. d/b/a Gioe’s Truck Service and Demolition (Gioe’s). The fire was not fully extinguished until September 29, 2000. A number of residents of St. Bernard Parish allege that they were adversely affected by smoke and haze caused by the fire.

On August 31, 2001, Joseph LeJeune and others filed a petition for a putative class action lawsuit on behalf of themselves and all of those persons similarly situated who were residents of and/or were present in the Parish of St. Bernard and who had sustained physical, mental and/or emotional injuries, fright, inconvenience, personal and medical expenses, interruption of or intrusion into their personal and/or professional lives as a direct consequence of the fire | .¿occurring at the Gioe site. The named defendants in the lawsuit were Lu-den Gioe, Lou Gioe’s Truck Service, Inc., and United National Insurance Company (United National).

Prior to the filing of the LeJeune lawsuit, on August 29, 2001, Cynthia Self Poolson and others filed a lawsuit on behalf of certain residents of St. Bernard Parish who sustained damages as a result of the aforementioned fire. The named defendants in the Poolson lawsuit were Mr. Gioe, Gioe’s Truck Service and Demolition, Lou Gioe’s Truck Service, Inc., River Parish Disposal, Inc. (River Parish), Crescent Environmental Services, Inc. (Crescent), the St. Bernard Parish Government, and United National.

On January 8, 2002, the Poolson and LeJeune lawsuits were consolidated. On January 24, 2002, the attorney for the Poolson plaintiffs filed a motion and order to dismiss River Parish. This motion was granted by Judge Kirk Vaughn that same day. On March 13, 2002, the attorney for the Poolson plaintiffs filed a motion and order to dismiss Crescent. That motion was granted by Judge Vaughn on March 14, 2002. On March 28, 2003, the LeJeune plaintiffs filed a first supplemental and amending petition, naming River Parish and Crescent as well as J & A Mereaux, Inc., Arlene Soper Mereaux, the St. Bernard Parish Government and the St. Bernard Parish Fire Department as defendants. J & A Mereaux and Arlene Soper Mereaux were later dismissed without prejudice from the lawsuit.

On January 16, 2002, the Lejeune plaintiffs filed a motion for class certification pursuant to La. C.C.P. art. 592(A)(1). The class certification hearing |awas held before Judge Robert Buckley on April 23 through April 25, 2007. Prior to the hearing, the trial court granted the plaintiffs’ oral motion to substitute Jane Marengo, Stacey Lovell, Ramona Fleetwood and Kerry Liuzza as class representatives in place of the original class representatives. At the close of the hearing, the St. Bernard Parish Government and St. Bernard Parish Fire Department were dismissed from the suit by a directed verdict.

On July 18, 2008, the trial court rendered a judgment against Gioe’s, River Parish and Crescent, certifying a class. The class was defined by the court as follows:

“Residents, property owners, business owners and employees living, working, or actually residing within an area covering both sides of any named street bounded on the east by Volpe Drive, to the west by the Gueringer Canal, to the south by St. Bernard Highway, and to the north by the Gioe landfill site, who sustained property damages and/or personal injury damages between the dates of September 4, 2000 and September 29, 2000 as a result of the emissions produced by the Gioe landfill fire.”

Gioe’s, River Parish, and Crescent now appeal the trial court’s granting of the class certification.

DISCUSSION

On appeal, the issue before this Court is whether the trial court properly found that the claims of the plaintiffs met the prerequisites of La. C.C.P. art. 591 and should proceed as a class action.

La. C.C.P. art. 591(A) sets forth the elements requisite to certification of a class action and provides the following:

|4A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

La. C.C.P. art. 591(A).

There is no magic number that will satisfy the numerosity requirement for class certification. Billieson v. City of New Orleans, 98-1232, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 154. For the numerosity requirement to be met, it must be shown that the class is so numerous that joinder is impractical, but at the same time, it is a definable group of aggrieved persons. Cotton v. Gaylord Container, 96-1958 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768. In the instant case, Dr. Erno Sajo, an expert in the fields of atmospheric dispersion modeling, health physics, aerosol physics and thermal hydraulics, testified as to potential downwind areas impacted by the Gioe fire. Dr. Sajo used his expertise, along with a review of eyewitness testimony, meteorological data, and photographic images of the fire’s smoke plume to determine that the plume traveled almost horizontally in a N-NE to SSW direction with very little vertical dissolution. This dispersion carried the plume over large residential areas. Furthermore, Erica Curóle, a legal assistant to plaintiffs’ counsel, testified that she handled the claims forms and client database and that she received and processed between 300 and 400 claims. Considering the expert testimony of Dr. Sajo and the number of claims processed | sby plaintiffs’ counsel, it is evident that joinder of all members would be impracticable. Accordingly, the numerosity requirement is met.

The second prerequisite to class certification is that there are questions of law or fact common to the class. La. C.C.P. art. 591(A)(2). The test of commonality is not a demanding one. Rapp v. Iberia Parish School Bd., 2005-833, p. 9 (La.App. 3 Cir. 3/1/06), 926 So.2d 30, 37. It requires only that there be at least one issue of law or fact, the resolution of which will affect all or a significant number of putative class members. Id. (citing Duhe v. Texaco, Inc., 99-2002, p. 12 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078). In the instant case, the plaintiffs are individuals who are alleging damages from a single source (smoke and toxic emissions from the fire at the Gioe landfill). Liability for the alleged damages will be the same for all plaintiffs, although the damages themselves may vary as to each plaintiff. When the only differences between claims are differences of degree and amount and nature of claims is so similar as to be “almost identical” and emanate from the “same common source,” commonality is present. Martello v. City of Ferriday, 2001-1240, p. 13 (La.App. 3 Cir. 3/6/02), 813 So.2d 467, 478. Accordingly, the commonality requirement is met in the instant case.

In the instant case, the claims or defenses of the representative parties are typical of the claims or defenses of the class. The claims of the class representatives all arise out of exposure to smoke and toxic emissions from the fire at the Gioe landfill site in September of 2000. The class representatives are all present or former residents of the same geographical area by which the class is presumptively defined and the relief which they seek, compensatory damages for their injuries, is sought by all members of the class. “Typicality is satisfied if the claims of the class representatives arise out of the same event, practice, or course | ñof conduct that gives rise to the claims of the other class members and those claims are based on the same legal theory.” Singleton v. Northfield Ins. Co., 2001-0447, p. 12 (La. App. 1 Cir. 5/15/02), 826 So.2d 55, 63. (citing Duhe, 99-2002 at p. 13, 779 So.2d at 1079. Accordingly, the typicality requirement is met.

In the instant case, the representative parties will fairly and adequately protect the interests of the class. The trial court heard testimony from the proposed class representatives: Ramona Fleetwood, Jane Marengo, Stacey Lovell, and Kerry Liuzza. All four testified as to their geographical locations at the time of the fire and the effects that it had on their health, property and mental well-being. The trial court found that their experiences and resulting damages were similar enough to one another and would therefore be similar to other potential class members. The court stated that this would allow for adequate representation of all class members. We find no error in this finding.

The final prerequisite under La. C.C.P. art. 591(A) is that the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine for constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257, p. 9 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 502. In the instant case, the trial court established a geographic boundary; the trial court included as class members: residents, property owners, business owners, and employees living, working or actually residing in the geographic area who sustained property damage and/or personal injury damages between the dates of September 4, 2000 and September 29, 2000 as a result of the emissions produced by the Gioe landfill fire. Clearly, the class in the instant case was defined objectively in terms of ascertainable criteria.

|7In addition to the five requirements of La. C.C.P. art. 591(A), at least one requisite for class certification under La. C.C.P. art. 591(B) must also be met. In the instant case, the trial court found that the requirements of La. C.C.P. art. 591(B)(3) were met. La. C.C.P. art. 591(B)(3) provides:

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation;

La. C.C.P. art. 591(B)(3).

In the instant case, considering the number of potential plaintiffs and the nature of their claims, a class action would best serve the interests of the plaintiffs to see that their legal rights and the relief demanded are addressed without prejudicing the defendants. In the class action context, the trial court will be better able to determine the significance of the individual claims and the consequences of imposing liability on the defendants and it is more likely to arrive at a just conclusion. The mere fact that there may be varying degrees of damages or that each class member must ultimately prove their right to recover does not preclude class certification in this case. See Davis v. American Home Products Corp., 2002-0942, 2002-0943, 2002-0944, p. 9 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 251. | Accordingly, we find no error in the trial court’s finding that the requirements of La. C.C.P. art. 591(B)(3) were met.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s certification of a class action in this case.

AFFIRMED.

      . On May 14, 2007, the LeJeune plaintiffs filed a motion and order for leave of court to amend class action petition for damages, confirming the court's allowance of substitution of class representatives. This order was signed by Judge Buckley on November 7, 2007.