author: Savoie, Judge.

text:
    STATE of Louisiana v. Robert Earl SANDERS
    16-470
    Court of Appeal of Louisiana, Third Circuit.
    12/7/2016

      Phillip Terrell, District Attorney, Nuraa V. Metoyer, III, Assistant District Attorney, Ninth Judicial District Court, Parish of Rapides, State of Louisiana, P. 0. Box 1472, Alexandria, LA 71309, (318) 473-6650, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR APPELLANT: Robert Earl Sanders
    Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.
   Savoie, Judge.

1 defendant, Robert Earl Sanders, was charged by bill of information with one count of second degree kidnapping, one count of second degree battery, and three counts of domestic abuse aggravated assault. Defendant was convicted by a unanimous jury for each of the charged offenses. The court sentenced Defendant to fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence for second degree kidnapping, six years at hard labor for second degree battery, and four years at hard labor without the benefit of parole, probation, or suspension of sentence for each count of domestic abuse aggravated assault.

Defendant is before this court appealing his conviction and sentence. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) alleging the record contains no non-frivolous issues for appeal; thus, he requests this court grant his accompanying motion to withdraw. Defendant has filed a pro se brief. For the following reasons, we affirm Defendant’s convictions and sentences and grant appellate counsel’s motion to withdraw.

FACTS:

Lisa Elliott, Defendant’s girlfriend, testified that after work on July 17, 2014, she and her boss, Mike Smith, were sitting in his kitchen drinking beer when Defendant rode over on his bicycle to get his house key and cell phone. Ms. Elliot and Defendant had been living together for approximately two years, and Defendant did not like her associating with Mr. Smith. After Mr. Smith gave Defendant the items he wanted, Ms. Elliott remembered she had Defendant’s phone charger. She went out of the door to hand it to him. When she did, Defendant grabbed her, picked her up by the scruff of her neck, and threw her |2down the stairs of the second story garage apartment. Ms. Elliott testified that the fall did not hurt her.

Ms. Elliott further testified that, as she subsequently walked down the driveway, Defendant took her by the arm and escorted her back to his apartment against her will. He then held a metal meat skewer to her temple and told her “if the police come knocking on the door ... I’m gonna go to jail ’cause I’m gonna juke you.” Ms. Elliott begged him not to hurt her. As she hovered against the bathroom door, Defendant sprayed her hair, face, and clothes with lighter fluid and “made like he was gonna set [her] afire.” He told her that he was not going to kill her, but he was going to make her look like a mummy. Defendant then sat down on a chair near Ms. Elliot and “kept smacking” her on the top of the head with the flat side of the blade of a long-bladed kitchen knife and twice kicked her in the head with the side of his foot. At some point, Defendant opened the door of the apartment and told Ms. Elliott that she could leave, but she was afraid to, perceiving this as a test of her loyalty to him.

After attempting to “talk him down” and convince him that she was still his “girl,” Ms. Elliott returned with Defendant to Mr. Smith’s house to retrieve his bicycle. While there, she saw some people she knew. Fearing she was about to be “really hurt” by Defendant, she tried to get in the car with them. They thought she was kidding, and Defendant heard her, so she started back to Defendant’s apartment with him. Defendant was not holding onto her, but he told her to pick up the pace when she attempted to lag behind to see if any cars drove by.

At one point, Ms. Elliot began to yell for help, which resulted in Defendant grabbing her and throwing her to the ground. Her head hit the street, causing a “really bad head injury.” Dazed, Ms. Elliott was led back to the apartment by | ..¡Defendant. When she was in a lighted area, Ms. Elliott saw that she was soaked in blood, and she observed “spongy bits of tissue” in her scalp wound. Defendant poured lighter fluid into her head wound, and he then made Ms. Elliott wash dishes. Ms. Elliot told Defendant she needed to go to the hospital because she was losing so much blood. With each plea for help, Defendant slapped her in the face.

Finally, being unable to continue standing, Ms. Elliott lay down on the kitchen floor where she stayed for a couple of hours. Ms. Elliot testified she was prevented from leaving because Defendant had moved furniture against the door and because Defendant was lying down in a room where he could watch her. At one point, it appeared Defendant was asleep, but Ms. Elliot was afraid to leave because “he’s very fast[,]” and any attempt to move the blockade “woulda made all kinda racket.”

Ms. Elliott went and asked Defendant to help her, and he let her lay down in the bed with a towel on her head. Afraid Defendant would be angry if she got blood on the bed, Ms. Elliott got on the floor at the foot of the bed. A few hours later, Defendant got her up and helped her clean up her hair and skin. She then slept for a little while before Defendant woke her up and made her clean the bathroom. She rested a little while longer before he woke her up and told her she could leave if she wanted.

According to Ms. Elliott, Defendant seemed regretful, and he asked her why she made him have to hurt her, and why she made him so crazy. He then gave her some of his clothes to wear and she left. Ms. Elliott went to Mr. Smith’s apartment, and they contacted her mother who came to get her. Since her head wound was over twenty-four hours old, she did not think it could be stitched, so |4she and her mother left the emergency room, which was full of other people waiting to be seen.

Ms. Elliott’s mother contacted authorities. They took pictures of Ms. Elliott’s injuries and later took her statement. Five months later, police arrested Defendant. Prior to the arrest, Ms. Elliott and Defendant were again living together. At trial, Ms. Elliot explained that they were attempting to reconcile and overcome this event.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find three errors patent.

First, for second degree battery, Defendant was sentenced to serve six years at hard labor. At the time of the commission of the offense, second degree battery carried a penalty of a fine of not more than $2,000.00, or imprisonment with or without hard labor for not more than five years, or both. La.R.S. 14:34.1. Although the statute was amended to allow for a sentence of up to eight years, this provision was not in effect at the time of the commission of the offense. “A defendant must be sentenced according to the sentencing provision in effect at the time of the commission of the offense.” State v. Sugasti, 01-3407, p. 4 (La. 6/21/02), 820 So.2d 518, 520 (citing State v. Narcisse, 426 So.2d 118 (La.1983)). Thus, Defendant received an illegally excessive sentence for second degree battery. Accordingly, we vacate Defendant’s sentence for this conviction and remand the case for resentencing by the trial court.

Next, domestic abuse aggravated assault, a violation of La.R.S. 14:37.7, carries a sentence of hard labor for not less than one year nor more than five years. |BWhile the term of Defendant’s four year sentence on each count is legal, the trial court’s denial of benefits is not. At sentencing, the judge stated “those are to be without benefit and with a permanent protective order.” Accordingly, we amend these three sentences to strike the denial of the benefits of parole, probation, or suspension of sentence. The trial court is instructed to make an entry in the court minutes reflecting this amendment.

Finally, the record does not indicate that the trial court advised Defendant of the prescriptive period for fifing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 930.8 at resentencing.

ANDERS ANALYSIS:

Pursuant to Anders, Defendant’s appellate counsel filed a brief stating that he made a conscientious and thorough review of the trial court record and could find no non-frivolous errors on appeal. Thus, he seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court wifi order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

| 6Id. at 531.

While it is not necessary for Defendant’s appellate counsel to “catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit[,]” counsel’s Anders brief must “ ‘assure the court that the indigent defendant’s constitutional rights have not been violated.’ McCoy [v. Court of Appeals of Wisconsin, 486 U.S. [429] at 442, 108 S.Ct. [1895] at 1903, 100 L.Ed.2d 440 [ (1988) ].” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241. Counsel must fully discuss and analyze the trial record and consider “whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the [trier of fact] for its consideration.” Id. Thus, counsel’s An-ders brief must review the procedural history and the evidence presented at.trial and provide “a detailed and reviewable assessment for both the defendant and the appellate court of whether the 'appeal is worth pursuing in the first place.” State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177.

In his Anders brief, appellate counsel summarized the pertinent testimony presented at trial to support his assertion that the State presented sufficient evidence to establish each element of the, charges against Defendant. Despite the victim’s admission at trial that she lied at the preliminary examination, or alternatively, was lying at trial, counsel notes that the jury was free to accept or reject in whole or in part any portion of a witness’s testimony. Counsel also details some objections made at trial, and, although he contends some of the rulings were legally incorrect, he suggests that admission of the contested evidence was harmless error.

|7Next, counsel suggests that the patent error which occurred in trying Defendant for second degree battery before a jury of more than six persons was waived. Finally, counsel contends that the sentences imposed on Defendant were not excessive. Accordingly, counsel asserts that his review of the record supports no non-frivolous issues to raise on appeal. We find counsel’s brief complies with the requirements set forth in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 and State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and Benjamin, 573 So.2d 528, this court has performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts, and has confirmed the statements made by appellate counsel. Defendant was properly charged in the bill of information and was present and represented by counsel at all crucial stages of the proceedings. Contrary to counsel’s assertion, Defendant was correctly tried by a jury of twelve. See La.Code Crim.P. art. 493.2, The verdicts were correct, and the legality of the sentences was addressed above. In reviewing the transcripts to determine if any ruling provides an arguable basis for appeal, we note there were a number of objections by defense counsel, some of which were mentioned by counsel in his brief; however, none of the rulings support a non-frivolous issue to raise on appeal, as suggested by counsel.

Pro se brief:

Defendant filed a document in this court requesting that he be allowed to file a supplemental pro se brief once he received a copy of the appellate record. He stated that he wished to review the appellate record so that he could exercise his constitutional right to judicial review based upon a complete record of all evidence. The record was forwarded to Defendant, and he was given until August 31, 2016, | Rto file a supplemental brief. No brief was received. Thus, we have reviewed the vague allegations made by Defendant, which were never fully developed via supplemental brief.

First, Defendant complains of the inconsistency in the victim’s testimony at the preliminary examination and the trial. Also, he notes that the police report indicates the victim’s injury was a “minor injury,” but the victim testified that the injury was much more serious. The inconsistency in the victim’s testimony and the extent of her injuries were all brought out at trial and were therefore placed before the jury for its consideration. “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La. 4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Thus, the jury was free to accept or reject the victim’s testimony, and they resolved the credibility determination in favor of the victim. Thus, we find these claims have no merit.

Next, Defendant claims Detective Painter lied regarding previous charges against Defendant. Detective Painter testified at trial, and again, the jury was free to accept or reject her testimony. This claim has no merit.

Defendant also appears to claim that his attorney was ineffective in failing to show him Detective Painter’s affidavit until after trial and also in failing to do anything to help Defendant with his case. In State v. Mitchell, 13-426, pp. 27-29 (La.App. 3 Cir. 11/6/13), 125 So.3d 586, 604-05, writ denied, 14-102 (La. 6/20/14), 141 So.3d 807, this court stated:

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record | ^contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461. State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701.
... Decisions relating to investigation, preparation, and strategy require an ev-identiary hearing and cannot possibly be reviewed on appeal. Only in an eviden-tiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, the defendant’s claims of ineffective assistance of counsel will be relegated to post-conviction relief.

Similarly, the ineffective assistance of counsel claims raised by Defendant in this case are relegated to post-conviction relief.

Finally, Defendant claims his request for a copy of the trial transcript from the trial court was unanswered, and he requests that the trial transcript be “released” to him. This court provided Defendant with a copy of the appellate record which contains a copy of the trial transcript. Accordingly, this claim is misguided.

Finding no non-frivolous issues and no merit to the pro se assignments of error raised by Defendant, we grant counsel’s motion to withdraw.

DECREE:

Defendant’s convictions are affirmed. His sentence for second degree battery is vacated, and the case is remanded for re-sentencing for this conviction. At the re-sentencing proceeding, the trial court is directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.9. Each of Defendant’s sentences for domestic abuse aggravated assault is amended to delete the denial of the benefit of | inparole, probation, or suspension of sentence. The trial court is instructed to make an entry in the court minutes reflecting this amendment. Defendant’s sentence for second degree kidnapping is affirmed, and his sentences on each count of domestic abuse aggravated assault are affirmed as amended.

CONVICTIONS AFFIRMED. SECOND DEGREE BATTERY SENTENCE VACATED. REMANDED FOR RESEN-TENCING WITH INSTRUCTIONS. DOMESTIC ABUSE AGGRAVATED ASSAULT SENTENCES AMENDED. SECOND DEGREE KIDNAPPING SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James J. FLOURNOY
    16-397
    Court of Appeal of Louisiana, Third Circuit.
    12/7/2016

      Paula C. Marx, Louisiana Appellate Project, Post Office Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: James J. Flournoy
    James P. Lemoine, District Attorney, Post Office Box 309, Colfax, LA 71417-0309, (318) 627-3205, COUNSEL FOR APPELLEE: State of Louisiana
    James D. White, Jr., Assistant District Attorney, 200 Main Street Colfax, LA 71417, (318) 627-2971, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
   AMY, Judge.

b Following a traffic stop that resulted in the discovery of methamphetamine, paraphernalia, and weapons, the State charged the defendant with one count of possession with intent to distribute a Schedule II controlled dangerous substance and one count of illegal carrying of weapons while in possession of a controlled dangerous substance. The defendant entered a Crosby plea to the possession with intent to distribute charge, reserving his right to challenge the denial of a motion to suppress on appeal. See State v. Crosby, 338 So.2d 584 (La.1976). The trial court imposed a sentence of ten years at hard labor. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, around midnight on August 6, 2015, Officer Normand Walker, Jr., then a deputy for the Grant Parish Sheriffs Office, was on patrol when he noticed that one of the taillights and the license plate light were out on a green Chevrolet Z-71 truck travelling on Dyson Creek Road. Officer Walker testified that he initiated a traffic stop with the driver of the truck, James J. Flournoy, while simultaneously requesting backup from Corporal William McClung, a K-9 officer with the Grant Parish Sheriffs Office, due to the late hour of the stop. The record indicates that Corporal McClung arrived at the scene less than two minutes after the initiation of the stop.

Officer Walker testified that after making contact with the defendant, he requested dispatch to check for outstanding warrants against the defendant in the local and surrounding parishes. While waiting for the results of the warrant check, laOfficer Walker allegedly informed the defendant of the reason for the stop and, per the defendant’s request, showed him the broken lights. Dispatch subsequently informed Officer Walker that the defendant had no outstanding warrants. Officer Walker further testified that Corporal McClung arrived at the scene before he began to write a citation to the defendant. Corporal McClung explained that upon arriving at the scene, he saw the defendant’s name on his driver’s license and recalled that, prior to the night of the stop, narcotics detectives with the Grant Parish Sheriffs Office advised him of having acquired “intel” that the defendant was possibly trafficking methamphetamine in a green Chevrolet pickup truck in the Dyson Creek area.

Officer Walker stated that while speaking with the defendant, he noticed that the defendant appeared “real jiggery [sic] and nervous,” that the defendant “would not make eye contact” with him, and that the defendant was “sweating profusely[,]” such that sweat was “pouring off of his mouth, head[,] and face, [and] his shirt was soaking wet.” Corporal McClung also stated that the defendant’s “shirt was wet, visibly wet. He did have perspiration on his forehead and around his cheek area.” When asked on direct examination if the defendant was exhibiting signs “typical or consistent” with what he had seen in the past of “persons who were under the influence of ... narcotics,” Office Walker responded, “Yes, sir, definitely.” Officer Walker’s testimony indicates that he then asked the defendant “if he had anything illegal in the truck ... as far as any kind of drugs or weapons” and that the defendant replied that he did not. Officer Walker then asked the defendant for his consent to search the vehicle, which the defendant refused.

Officer Walker further testified that the defendant “kept wanting to put his hands in his pockets” and that he “told him on two (2) or three (3) occasions to | stake his hands out of his pocket.” Corporal McClung described the same behavior, explaining that after he arrived on the scene, he also asked the defendant to remove his hands from his pockets and told him to keep them out. Shortly thereafter, according to the officers, the defendant again placed his hands back into his pockets, at which time Officer Walker placed the defendant in handcuffs, advised him of his Miranda rights, and informed him “he was just being detained at that time and not arrested.” Officer Walker testified that “based on his actions,” he placed the defendant in handcuffs for “[o]fficer safety.” Corporal McClung explained that the defendant was detained for “his lack of ... following verbal commands” and “putting his hands in his pockets.”

Corporal McClung testified that after the defendant was placed in handcuffs, he deployed his dog, which gave a positive alert to the passenger’s side of the defendant’s vehicle. Officer Walker then searched the defendant’s vehicle, finding four plastic baggies containing methamphetamine, two loaded .45 caliber handguns, two unused glass pipes, three used glass pipes, digital scales, unused baggies, a blue straw with white residue inside of it, and a few cotton swabs with white residue on them.

On November 19, 2015, the State filed a bill of information charging the defendant with one count of possession with intent to distribute a Schedule II controlled dangerous substance (methamphetamine), in violation of La.R.S. 40:967(A)(1), and one count of illegal carrying of weapons while in possession of a controlled dangerous substance, in violation of La.R.S. 14:95(E). The defendant filed a Motion to Suppress Evidence on February 18, 2016, arguing that the search of the defendant’s vehicle was “not based on any probable cause ... nor [was] it based on any exceptions to the warrant requirements ... and [was] therefore an | ¿unreasonable and invalid search.” A hearing on the motion was held the following day, at which the two officers testified. The trial court denied the motion at the conclusion of the hearing, finding no “violation that would warrant a suppression.”

On February 22, 2016, the defendant entered a Crosby plea to the possession with intent to distribute charge, reserving his right to appeal the trial court’s denial of the motion to suppress. See Crosby, 338 So.2d 584. The weapons charge was dismissed pursuant to the defendant’s guilty plea. The defendant received a sentence of ten years at hard labor to run concurrently with a ten-year sentence he received by pleading guilty to a charge of possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1, from trial court docket number 16-180.

The defendant appeals, assigning as error that:

I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. On review, we find no errors patent.

Denial of Motion to Suppress

In his sole assignment of error, the defendant challenges the denial of his motion to suppress. The defendant contends that “Officer Walker improperly elevated the investigatory stop in this case to an arrest by putting [the defendant] in handcuffs, having him lean against the patrol car, and advising him of his Miranda rights.” The defendant argues both that “the warrant-less search occurred after an invalid arrest, prior to deployment of a drug sniffing dog[,]” and that “[t]here were | Bno exigent circumstances requiring the. warrantless search once [the defendant] was out of the truck in handcuffs.” Thus, the contraband seized from his truck “should have been suppressed as ‘fruit of the poisonous tree.’ Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”

A trial court’s ruling on a motion to suppress “must be afforded great weight and will not be set aside unless there is an abuse of discretion.” State v. Thompson, 11-915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563. In Thompson, the supreme court explained this standard of review as follows:

The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” [State v. ] Wells, 2008-2262, p. 4 [ (La.7/6/10) ]; 45 So.3d [577,] 580; State v. Hunt, 2009-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La.3/8/02), 811 So.2d 875.

Id.

Regarding its conclusion that the search was valid, the trial court stated the following in its ruling at the hearing on the motion to suppress:

There is no testimony that indicates that this stop was delayed beyond what was necessary to check warrants, which the officers are entitled to do[.] ... During that window of time, which the officer were [sic] permitted to be doing those things, the dog detected, then you have got probable cause.
[W]hen the dog detected, based upon the nervousness, sweating, there is probable cause. With the vehicle parked on the side of the road[,] I think it falls within the exigent circumstances as defined by the United States Supreme Court.
I will be honest, Mr. Wilson. The only problem I saw with the stop or the only ... thing that concerned me about the stop was placing [the defendant] in handcuffs and reading him his rights[,] but I |fido not know if that necessarily led to a constitutional violation that led to the discovery of evidence. It was the dog and the search that led to the discovery of evidence.

Upon reviewing the record and the relevant jurisprudence, we find no abuse of discretion in the trial court’s ruling.

We first consider whether Officer Walker had “reasonable cause to stop the defendant’s vehicle.” State v. Washington, 96-656, p. 7 (La.App. 3 Cir. 1/15/97), 687 So.2d 575, 579. According to La.Code Crim.P. art. 215.1(A), “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” Moreover, “[a]n individual cannot be stopped in his automobile by a police officer, without a warrant, unless the officer had a reasonable suspicion that the individual has committed, or is about to commit, a criminal offense, including the violation of a traffic regulation.” State v. Fisher, 94-603, p. 5 (La.App. 3 Cir. 11/2/94), 649 So.2d 604, 607, writ denied, 94-2930 (La. 4/7/95), 652 So.2d 1344. Given that the evidence is not contradicted that the defendant’s taillight and license plate light were broken on the night of the stop, in violation of La.R.S. 32:304(A) and La. R.S. 32:304(C), we find that the record supports the ruling that Officer Walker had reasonable cause to make the stop.

Neither do we find indication in the record that the defendant was detained “for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” La.Code Crim.P. art. 215.1(D). In Washington, 687 So.2d 575, officers performed a warrantless search of the defendant’s vehicle after a dog alerted to the presence of drugs in the |7vehicle. In finding that the search was valid, a panel of this court stated that “the canine unit arrived on the scene immediately as it was acting as backup for [the patrolling officer], and thus, there was no lengthy detention of the defendant while waiting for a canine unit to arrive.” Id. at 580. As in Washington, the K-9 officer in the instant case quickly arrived on the scene as backup. Notably, according to Officer Walker’s testimony, he had not even begun to write a citation for the defendant’s traffic violations prior to Corporal McClung’s arrival. Accordingly, the defendant was not detained for an unreasonably lengthy period of time before the dog was deployed.

Further, while the defendant was placed in handcuffs and advised of his Miranda rights, the circumstances of this case indicate that the detainment of the defendant for the officer’s safety did not constitute an arrest. In State v. Duke, 12-2677 (La. 12/10/13), 130 So.3d 880, officers approached a parked vehicle on suspicion that the inhabitants were engaged in methamphetamine trafficking, ordered the inhabitants out of the vehicle, placed the defendant in handcuffs, and searched the vehicle, finding contraband. The first circuit initially found that the officers “lacked probable cause to arrest [the] defendant[,]” and “[t]hus, the search of the vehicle could not be rationalized as incident to a lawful arrest[.]” Id. at 884-85. However, in reversing that ruling, the supreme court explained that “given the particular association of methamphetamine production and guns,” the officer’s “decision to handcuff [the] defendant for the duration of the stop was justified for officer safety and did not convert the encounter from a Terry stop to an arrest” and that the search of the vehicle was justified as “a protective search of the vehicle.” Id. at 886-87.

8Furthermore, in State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128, writ denied, 13-1926 (La. 4/17/14), 138 So.3d 618, the officers handcuffed the defendant citing officer safety, as the stop occurred at nighttime in a “high crime area[,]” the defendant was “dressed in a suspicious manner,” and, like the defendant in the instant case, “he was putting his hands in his pocket.” Id. at 136. Also similar to the instant case, the officers also “told [the] defendant that he was not under arrest, but was being detained for questioning.” Id. Regarding whether this constituted an arrest, the fifth circuit stated the following:

Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. State v. Morton, 08-164, p. 7 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657. There is no question that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. Morton, 08-164 at 7-8, 993 So.2d at 657. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Id.
Therefore, when the State seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. Morton, 08-164 at 8, 993 So.2d at 657. Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. Id. “[A]n officer’s handcuffing a suspect is a reasonable method of ensuring officer safety.” State v. Jones, 11-8, p. 11 (La.App. 5 Cir. 11/15/11), 78 So.3d 274, 282, writ denied, 11-2781 (La.4/13/12), 85 So.3d 1246.
In the instant ease, it does not-appear that the officers had the intent to impose an extended restraint on defendant’s liberty, since they told defendant that he was not under arrest, but was being detained for questioning. Additionally, the stop occurred in a high crime area at approximately 7:45 p.m. Defendant was dressed in a suspicious manner, which included a “full face mask,” and he was putting his hands in his pocket. Corporal Amadeo testified that he did not know if defendant was armed, and Sergeant Roy Jacob testified at trial that defendant was a “pretty big fellow.” At some point, the ^officers noticed the large bulge in defendant’s front pants pocket. In light of the circumstances, we find that the officers were justified in handcuffing defendant as a safety precaution, and that those actions did not rise to the level of an arrest.

Id. (footnote omitted).

Similarly, in this case, the trial court was made aware of various factors supporting its findings as to both the reasonableness of the stop and the reasonableness of the scope of that stop. Notably, the stop occurred at a late hour, and, according to the officers’ testimony, the defendant failed to keep his hands out of his pockets as instructed. Corporal McClung had prior knowledge that the defendant may be trafficking methamphetamine, an activity which, as discussed above, is associated with the possession of firearms. Additionally, according to Officer Walker’s testimony, the. defendant’s behavior was consistent with that of an individual under the influence of narcotics. Thus, the officers were justified in handcuffing the defendant for then- safety, such that handcuffing him did not convert the stop into an arrest.

Additionally, we find no merit in the defendant’s suggestion that the officer’s advising him of his Miranda rights elevated the stop into an arrest. In Thompson, 93 So.3d at 570, the supreme court stated as follows:

We' do not find that the nature of the investigatory stop was turned into an arrest when [the officer] read the detained men their constitutional rights. [The officer] testified the standard operating procedure was to Mirandize all persons detained or arrested. We find this procedure comports with La. Const, art. 1, § 13. In addition, we cannot fault the officer for providing Thompson with greater protection than he might otherwise have had in an investigatory stop.

Moreover, in another State v. Lewis, 15-773 (La.App. 4 Cir. 2/3/16), 187 So.3d 24, after the defendant placed his hands in his pockets after repeatedly being asked not to do so, the officer handcuffed him, advised him of his Miranda rights, Imand informed him that he was under a narcotics investigation. Relying on Thompson, the fourth circuit held that informing the defendant of his rights did not convert the stop into an arrest, stating the following:

Here, [the officer] testified that he handcuffed Mr. Lewis only after he repeatedly tried to put his hand into his coin pocket, despite the detective’s orders not to do so, and after the detective noticed a piece of sandwich bag sticking out of the top of that pocket. Given these circumstances, [the officer] was justified in handcuffing Mr. Lewis at that point. In addition, as in Thompson, [the officer’s] advising Mr. Lewis of his Miranda rights and that he was under investigation for a possible drug violation did not elevate the stop to an arrest.

Id. at 33. We find the facts in Lewis similar to those of the instant case as, in both cases, the defendants repeatedly reached into their pockets during an investigative stop. We note too that in this case, the officers’ testimony indicates that the defendant had the benefit of being informed that he was not being arrested, but merely detained.

Accordingly, we find no merit in the contention that the officers converted the stop into an unlawful arrest either by handcuffing the defendant or by reading the defendant his Miranda rights. Thus, the ensuing search was not performed incident to an unlawful arrest.

Additionally, the trial court further observed that once the dog alerted, the officers had probable cause to search the vehicle. It is well-settled that deploying a drug dog is not a “search” within the meaning of the Fourth Amendment, but a positive alert from a drug-sniffing dog provides probable cause to perform a warrant-less search. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also State v. Lopez, 00-562 (La. 10/30/00), 772 So.2d 90. Additionally, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle ^without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). See also State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011) (wherein a panel of this court declined to determine that a handcuffed defendant was under arrest, finding instead that a warrantless search of his vehicle was permissible under the automobile exception).

Similarly, in this case, we find that the record supports the trial court’s decision that the search of the defendant’s vehicle was performed pursuant to the automobile exception to warrantless searches. The above jurisprudence indicates that the officers had probable cause to search the vehicle after the dog alerted to the presence of narcotics within the vehicle, and the defendant’s vehicle was readily mobile.

For these reasons, we find no abuse of discretion in the trial court’s denial of the motion to suppress. The defendant’s sole assignment of error lacks merit.

DECREE

For the foregoing reasons, the conviction of the defendant, James J. Flournoy, is affirmed.

AFFIRMED.

      . At the time of his testimony at the hearing on the motion to suppress, Officer Walker was employed by the Pollock Police Department.

      . In its brief, defense counsel notes that the conviction and sentence for the defendant’s felon in possession of a firearm charge "are not subject of this appeal [sic].”


author: KEATY, Judge.

text:
    SUCCESSION OF Audrey Mae Johnson TYLER
    16-175
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered 12/07/2016

      Larry B. Minton, Attorney at Law, 711 Washington Street, Post Office Box 13320, Alexandria, Louisiana 71315-3320, (318) 487-0115, Counsel for Appellant: Deborah Marie Esteen
    Christopher K. LaCour, Attorney at Law, 3717 Government Street, Suite 11, Alexandria, Louisiana 71302, (318) 487-0210, Counsel for Appellee: Jernell Groves

      Court composed of James T. Genovese, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

| ¶Appellant, Deborah Marie Esteen, appeals the trial court’s judgment in favor of Appellee, Jernell Groves. For the following reasons, the trial court’s judgment is affirmed with respect to the distribution of the funds on deposit in the registry of the court and amended with respect to its allocation.

FACTS & PROCEDURAL HISTORY

This matter involves the Succession of Audrey Mae Johnson Tyler. Audrey married Alvin Owen Tyler on June 9, 1956, in New Orleans. Four children were born of this marriage: Gregory 0. Tyler, Dwain A, Tyler, Leslie Tyler Williams, and Melissa Tyler Chambers. This was the second marriage for both Audrey and Alvin. Deborah is Audrey’s child of her first marriage, and Jernell is the child of Alvin’s first marriage.

During their marriage, Alvin was a musician and earned income from music royalties. The royalties, therefore, became community property. Following Alvin’s death on April 3, 1998, Audrey lived in the family home in New Orleans until 2005, when Hurricane Katrina destroyed it. She moved to Alexandria, and the destroyed home was purchased by the Road Home Corporation under a grant. In order to complete the transaction, Alvin’s succession was opened on November 19, 2008. Audrey, Gregory, Dwain, Leslie, Melissa, and Jernell were joint petitioners therein. The family home was listed as a community asset in Alvin’s succession. In the Judgment of Possession, Audrey was recognized as owner in her own right of an undivided one-half interest in the home. Alvin’s children, Gregory, Dwain, Leslie, Melissa, and Jernell, were recognized as his heirs.

LThe Road Home Corporation purchased the property for $106,374.00. Alvin’s one-half share of the proceeds was $53,187.00, which was divided equally between his five children, i.e., $10,637.40 per child, after Audrey relinquished her usu-fruct over Alvin’s share of the house proceeds. There was no evidence indicating what Audrey did with her one-half share of the proceeds.

During their marriage, Audrey and Alvin maintained a joint bank account with The Fidelity Homestead Association (joint Fidelity account). Audrey was employed by the City of New Orleans during their marriage. When she retired, she received a monthly pension from the New Orleans Municipal Employees Retirement System as well as her Social Security benefits. She also received Alvin’s music royalties. These funds were apparently commingled in various bank accounts over time. The testimony in the record does not provide any explanation as to what happened to those funds.

Audrey died on May 14, 2011. Audrey’s succession was opened on March 22, 2012, in Rapides Parish, by attorney James Rex Fail’, Jr., on behalf of Leslie Tyler Williams as administratrix. A Judgment of Possession was signed on March 23, 2012. A dispute arose regarding the proposed distributions of the assets, prompting a “Petition To Deposit Succession Proceeds In Concursus Proceeding” to be filed on June 29, 2012, on behalf of the heirs, which included Gregory, Dwain, Leslie, Melissa, and Deborah. The petition was filed by attorney Jeffery H. Thomas, who represented James Rex Fair, Jr., as the petitioner. The deposited funds totaled $475,232.93. At issue herein is the division of the remaining principal amount of $470,861.78.

On October 7, 2013, before any succession funds were distributed, Jernell filed a petition to reopen Audrey’s succession. Therein, Jernell alleged thatjs unnamed assets listed in the concursus proceeding were not Audrey’s separate assets, but remained community assets owned by Alvin and Audrey. She stated that if the assets were community property, she should be included in the distribution. Audrey’s succession was reopened pursuant to a consent judgment signed on December 2, 2013. After the November 5, 2014 trial, the trial court ruled in favor of Jer-nell, found that the funds on deposit in the trial court’s registry were community property, and ordered payment from the funds in the following percentages to: Jer-nell, 10%; Deborah, 10%; Gregory, 20%; Dwain, 20%; Leslie, 20%; and Melissa, 20%. A Judgment was signed on August 1, 2015, and Deborah appealed.

On appeal, Deborah asserts the following assignments of error:

I. The trial court erred as a matter of law in failing to hold Jernell Groves, the petitioner in this case, to her burden of proving that the assets contained in the Succession of Audrey Mae Johnson Tyler were community property.
II. The trial court erred as a matter of law in holding that all of the assets contained in the Succession of Audrey Mae Johnson Tyler were presumed to be community property due to commingling, based only upon hearsay evidence, even though the community property regime had been terminated many years before.

DISCUSSION

I. Burden of Proof

In her -first assignment of error, Deborah contends that the trial court erred as a matter of law in failing' to hold Jernell to her burden -of proving that the assets contained in Audrey’s succession were community property. She alleges that Jernell, as the mover in this matter, had the burden of proving, by a preponderance of the evidence, that certain assets contained in Audrey’s succession belonged to the former community estate between Audrey and Alvin.

|4In opposition, Jernell concedes that she was the moving party, She contends, however, that Deborah had the burden of proving the separate nature of the property brought into the property regime.

In this case, Jernell argued in her petition to reopen Audrey’s succession that some, if not all, of the property was community .since it was earned during Audrey and Alvin’s marriage. A consent judgment reopening Audrey’s succession was signed by the trial court on-December 2, 2013. The trial court held that Deborah had the burden of proving at trial the separate nature of the property contained in Audrey’s succession in order to overcome the community property presumption pursuant to La.Civ.Code art. 2340.

In Louisiana, “[t]he legal regime of community property, is terminated by the death ... of a spouse[;]” La.Civ.Code art. 2356. Therefore, upon Alvin’s death in 1998 and termination of community, Alvin’s undivided one-half interest in the former community estate was transferred to his five children, subject to the legal usufruct of Audrey. La.Ciy.Code art. 890.- In addition, at Alvin’s death, Audrey maintained ownership of her undivided one-half interest in the former community property. La. Civ.Code art. 2336.

Then, at Audrey’s death, her five children inherited her undivided one-half interest in the former community estate and any income derived from it. La.Civ.Code art. 888. In addition, Audrey’s usufruct over Alvin’s undivided one-half interest in the former community estate terminated at Audrey’s death, entitling Alvin’s five children to an accounting and the return of their undivided one-half interest in any former community assets, as well as their undivided one-half interest in any income derived from former community assets. La.Civ.Code arts. 890 and 535-549.

IsAs such, there is no presumption in this case that the funds in Audrey’s possession at her death, fourteen years following Alvin’s death, were either former community assets or income derived from community assets. The trial court committed legal error in imposing the presumption of community since the community property regime terminated in 1998. Errors and questions of law are to be reviewed under the de novo standard of review. Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36. Using the de novo standard of review, we will identify what assets comprised the former community estate, and the extent of which those assets comprised the funds in Audrey’s possession at her death.

II. Classification of Assets

There is no evidence tracing the source of the funds deposited into the registry of the trial court other than that they were in Audrey’s possession at her death. With the exception of Audrey’s separate interest in 50% of the Road Home proceeds, however, we find there is sufficient evidence establishing that the funds in the trial court’s registry were either part of the former community estate or income derived from the former community assets.

A. $10,000.00 & Joint Fidelity Account

It is undisputed that Audrey and Alvin maintained a joint Fidelity account which contained $71,970.29 on the date of his death. It is also undisputed that a balance of $59,166.42 remained following deductions alleged to have been made for Alvin’s funeral costs, and that a lump sum payment of $10,000.00 was distributed to Alvin’s five heirs and Deborah in 2006. The issue is whether the lump sum payment originated from the joint Fidelity account or another account. Jernell claims that the lump sum payment originated from a different account and that an additional $71,970.29 in community property funds remains unaccounted |fifor and undistributed. Deborah contends that the lump sum was paid from the joint Fidelity account and distributed to the hems in 2006.

At trial, Dwain testified on Jernell’s behalf. On direct examination, he recalled receiving a $10,000.00 check from Audrey in 2006. Dwain stated that the money came from funds left by Alvin upon his death. He remembered that prior to Alvin’s death, his father said that he “had put aside I think seventy thousand dollars ... to be ... disbursed between his ... six children.” Dwain could not remember which account the money came from. He stated that his parents maintained a joint Fidelity account, “but they also both had separate accounts.” Dwain did not recall the amount of money remaining in the joint Fidelity account at the time of Alvin’s death, although he did not dispute that $71,970.29 remained. When asked whether Audrey closed all of her accounts with Fidelity or whether she always maintained an account with Fidelity, Dwain responded: “[A]s far as I know of she always had one.” Dwain testified that he did not know where Alvin stored the $71,970.29. On cross-examination, Dwain stated that each heir received $10,000.00 in 2006. On direct examination and cross-examination on rebuttal, Dwain could not definitively say whether the lump sum paid in 2006 came from the joint Fidelity account.

Jernell also testified at trial. On direct examination, she agreed with Dwain that she received $10,000.00 from Audrey in 2006. She stated that her sister, Melissa, informed her about the money while Alvin was in the hospital. Jernell could not recall whether the money came from the joint Fidelity account or another account.

Melissa testified on Deborah’s behalf. On direct examination, Melissa stated that she was the administratrix of Audrey’s estate. She testified that Alvin |7and Audrey maintained a joint Fidelity account although she was unaware of whether they had separate accounts. Melissa stated: “There was a joint account[,] and there was an account that was just my mother’s, uh, checking account.” When Melissa was asked “what went into that account[,]” she responded that it contained Audrey’s Social Security and retirement benefits, along with “ ... disability retirement then [sic] my father was alive.” Melissa stated that when Alvin died, the joint Fidelity account contained $71,970.29. She testified that $10,000.00 and $2,803.87 was thereafter deducted from that account to pay for Alvin’s funeral and for the opening and closing of his grave respectively. Deborah’s counsel noted that the remaining balance of $59,166.42 was less than the $60,000.00 needed for Audrey to disburse $10,000.00 to the six children. When asked to explain this discrepancy, Melissa revealed that Audrey wrote the lump sum checks from the joint Fidelity account with the remaining money coming from Audrey’s funds.

On cross-examination, Melissa again said that the lump sum came from the joint Fidelity account. When asked, “if she paid out the [joint Fidelity] account, how is it that at the time of her death she still had a savings account with Fidelity in the amount of a hundred and twenty-one thousand if she paid out sixty from that account?” Melissa responded that Audrey was receiving music royalties from Broadcast Music, Inc. (BMI) and the American Federation of Musicians. According to Melissa’s testimony, Audrey also received money from pensions, Social Security, and deductibles from annuities. Melissa could not prove from which fund the lump sum was paid. Melissa agreed that Dwain took care of Audrey following Alvin’s death. When asked whether Melissa doubted Dwain’s testimony that their parents maintained separate accounts, she said: “If there is a | Sseparate account, it would be in my father’s name.” Melissa did not have personal knowledge as to where or what account Audrey drew the funds for the 2006 lump sum payment.

Based on the above, we find that the former community estate included the joint Fidelity account with a balance of $71,970.29. Even though a lump sum payment of $10,000.00 was disbursed to each of Alvin and Audrey’s four children as well as to each of their separate children in 2006, it remains unclear as to the source of the money, i.e., from the joint Fidelity account or a separate account.

B. Retirement

Audrey’s retirement benefits were another issue discussed at trial. In Louisiana, “a former spouse is entitled to a pro rata share of the retirement benefits of a member spouse to the extent the retirement benefits were attributable to the former community.” Bordes v. Bordes, 98-1004, p. 3 (La. 4/13/99), 730 So.2d 443, 445. On the other hand, disability benefits under a policy purchased with community funds are generally considered separate property. Id. Social Security disability benefits are also considered separate property. Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. Deborah’s counsel argued at trial that Audrey’s retirement benefits were disability benefits and, therefore, separate property.

In support, Melissa testified on direct examination that Audrey worked for the City of New Orleans. Melissa said that Audrey retired in the late 1980s or early 1990s after she was hit and injured by a city van. She indicated that as a result, Audrey began receiving monthly disability retirement benefits in the amount of $342.00, which payments ceased upon her death.

|3On cross-examination, Melissa agreed that Audrey retired before Alvin died and that she received retirement benefits before his death. Melissa, however, was unable to specify whether her retirement benefits were considered disability benefits, based upon the following colloquy:

Q. Okay. And you, you’re- calling- the retirement disability retirement, but do you have any documentation to show that that retirement is due to disability or that she just (interrupted)!?]
A. It’s, it’s from her employment.
Q.-Okay. During the marriage?
A. During the marriage.
Q. So wouldn’t that make her retirement community property?
A. I believe it was community property but I also believe that it was, um, deposited into that seventy-one thousand dollar account.

This confusion was compounded by Melissa’s testimony that Audrey received “her pension from her job” and “disability from Social Security.” Melissa, however, had no documentation showing that Audrey’s retirement resulted from a disability. She further testified that Audrey deposited her Social Security and retirement checks in her separate Fidelity checking account,

Jernell testified that Audrey worked for the City of New Orleans during the marriage and retired before Alvin died. She stated that any retirement Audrey earned was earned during the marriage. Dwain testified that he cared for Audrey from 2000 to 2011. He was unsure whether Audrey was receiving retirement funds from her job. Dwain stated, however, that Audrey was receiving Social Security disability benefits. When asked whether he “[c]ould ... say whether or not the retirement was just that her receiving her retirement benefit!,]” he responded that he “ha[d] no knowledge to that.”

| inThere is no indication in the record as to whether the benefits' are retirement pension or disability benefits. The documents indicate that the benefits began following Alvin’s death given the January 1, 2000 start date. However, Melissa testified that Audrey was receiving her “retirement benefits” before he died. Accordingly, it is reasonable to find that Audrey’s retirement pension was earned during the marriage and was not disability benefits. During Audrey’s lifetime, she was paid at least $57,500.00 from her retirement account. It is unclear what happened to these funds, but they were formerly community property.

Social Security benefits were another issue at trial. Generally, Social Security payments are considered separate property. See Young, 931 So.2d 541. Melissa, who testified on behalf of Deborah, stated that Audrey’s Social Security payments were directly deposited into Audrey’s Fidelity checking account. Deborah did not provide any., other evidence or additional witness testimony that would have identified the source of the funds. This includes, but is not limited to, evidence showing when Audrey started receiving Social Security benefits and the amount she received over her lifetime. The Social Security funds have been commingled to such an extent that it is impossible to trace its origin. The Social Security benefits are, therefore, part of the former community property.

C. Music Royalties

At trial, it was stipulated that Alvin was a successful musician who wrote, played, and recorded music. It was further stipulated that he received royalties from his music. Melissa testified on cross-examination that in 2006, Audrey’s separate Fidelity savings account had double the money because she was receiving music royalties from the American Federation of Musicians Pension Fund in the amount of $61.65 per month. However, more information is needed to determine Inthe separate nature of any music benefits, such as when Audrey began receiving the benefits and what account(s) it was deposited into. The music royalties are, therefore, part of the former community property.

D. Funeral Amounts

At trial, it was stipulated that Audrey and Alvin maintained a joint Fidelity account containing $71,970.29. After Alvin’s death, two deductions were made totaling $12,803.87. The issue at trial was whether those deductions would be Alvin’s separate debts that would come out of that account and not be part of Audrey’s estate.

In support, Deborah’s counsel introduced into evidence the joint Fidelity account passbook which shows credits and debits. Melissa testified that $10,000.00 was deducted on April 8, 1998, to pay for Alvin’s funeral. She stated that an additional $2,803.87 was deducted on May 26, 1998, for the opening and closing of Alvin’s grave. The passbook shows these deductions. Deborah provided no documentary evidence, however, specifically showing that these deductions related to Alvin’s funeral expenses. Thus, the trial court was not bound to consider the alleged funeral expenses of Alvin when calculating what Audrey’s estate owed to Jernell.

II. Distribution

Pursuant to the above evidence, at Alvin’s death, the former community estate included: (1) the community home, (2) the joint Fidelity account, (3) Audrey’s retirement benefits, and (4) Alvin’s royalties. There was no evidence that Audrey had any separate assets at Alvin’s death. There was also no evidence suggesting that, after Alvin’s death, Audrey received any income other than that [ ^deriving from Audrey’s retirement benefits and Alvin’s royalties, both of which were former community assets.

Upon Audrey’s death and termination of the usufruct, Alvin’s five children obtained full ownership of Alvin’s undivided one-half interest in both the former community estate and income derived from the former community assets. Similarly, Audrey’s five children inherited Audrey’s undivided one-half interest.

With respect to the Road Home proceeds, Audrey gave up her usufructu-ary interest in Alvin’s 50% interest in those proceeds and distributed that interest equally among Alvin’s five children. There is no indication that she spent her 50% ownership interest in those funds pri- or to her death. Therefore, Audrey’s five children would each be entitled to 20% of Audrey’s $53,187.00 from the sale of the community home.

The distribution of the $470,861.78 in the trial court’s registry is as follows: Gregory, Dwain, Leslie, and Melissa each receive $94,172.34; Deborah receives $52,404.87; and Jernell receives $41,767.47, based on the following: Audrey’s five children, Gregory, Dwain, Leslie, Melissa, and Deborah, each receive 20% of Audrey’s $53,187.00 interest in Road Home proceeds, i.e., $10,637.40 each. As to the remaining $417,674.78 in the trial court’s registry after subtracting the Road Home proceeds, Audrey’s five children receive 20% of Audrey’s one-half interest in that amount, or $41,767.47 each. In addition, Alvin’s five children, Gregory, Dwain, Leslie, Melissa, and Jernell, receive 20% of Alvin’s one-half interest, over which Audrey was the usufructuary prior to her death, or $41,767.47 each.

III. Hearsay

In her second assignment of error, Deborah contends that the trial court erred as a matter of law in holding that all of the assets contained in Audrey’s succession 1were presumed to be community property due to commingling, based only upon hearsay evidence, even though the community property regime had been terminated many years before.

This court in Taunton v. Cane Air, Inc., 405 So.2d 624, 626 (La.App. 3 Cir. 1981), discussed hearsay evidence as follows:

It is well settled that failure to object to hearsay or secondary evidence when admitted at trial constitutes a waiver of the right to object to its admissibility and that such evidence may then be considered and given probative effect. The aggrieved party may not subsequently on appeal urge that such evidence was not actually admissible.

In this case, both Jernell’s counsel and Deborah’s counsel elicited hearsay testimony from the witnesses who testified. Neither Jernell’s counsel nor Deborah’s counsel raised any hearsay objections. Thus, Deborah’s counsel “may not subsequently on appeal urge that such evidence was not actually admissible.” Taunton, 405 So.2d at 626. Deborah’s second assignment of error, therefore, is without merit.

DECREE

The tidal court’s judgment in favor of Appellee, Jernell Groves, is amended with respect to the distribution of the $470,861.78 in the trial court’s registry in that the allocation of the funds shall be as follows: Gregory, Dwain, Leslie, and Melissa each receive $94,172.34; Deborah receives $52,404.87; and Jernell receives $41,767.47. The judgment is affirmed as amended. All costs associated with this appeal shall be assessed equally between Appellant, Deborah Marie Esteen, and Ap-pellee, Jernell Groves.

AFFIRMED AS AMENDED.