author: B.L. THOMAS, J. BILBREY, J.,

text:
    Thomas BROOKIE, Appellant, v. WINN-DIXIE STORES, INC. and The Lewis Bear Company, Appellees.
    CASE NO. 1D16-1285
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017

      Harold R. Mardenborough, Jr. and C. Brian Davidson of Perry & Young, P.A., Panama City, for Appellant.
    Robert C. Palmer, III of Wade, Palmer & Shoemaker, P.A., Pensacola; Randall G. Rogers and Kathryn L. Ender of Cole Scott & Kissane, Pensacola, for Appellee Winn-Dixie Stores, Inc.
    Charles Wiggins of Beggs & Lane, RLLP, Pensacola, for Appellee The Lewis Bear Company.
   B.L. THOMAS, J.

In this premises-liability case we address the issue of whether summary judgment may be granted when the injured party observed the condition but failed to step around the easily avoidable obstacle. We hold that the trial court properly granted summary judgment, because as a matter of law Appellees owed no duty to warn Appellant, and properly discharged their duty to exercise ordinary care to maintain the premises in a reasonably safe condition.

Appellant went to Winn-Dixie to make a purchase and get empty boxes. During his visit, Appellant made a total of four trips into and out of the store. On the first trip, Appellant made his purchase and took it to his car; he then made three more trips into Winn-Dixie to obtain empty boxes, returning them to his car. During this time, a Lewis Bear employee was delivering a shipment of beer. The beer was stacked approximately five feet high on a pallet between Winn-Dixie’s entrance and exit doors, and an empty pallet was sitting on the pallet jack’s prongs to the right of the exit. On Appellant’s third trip exiting the store, he saw the empty pallet, but tripped and fell over it, suffering injuries as a result. Appellant sued Appellees for negligently failing to warn of the dangerous condition and negligently failing to make the sidewalk safe to walk across.

During discovery, Appellant produced an affidavit from his expert averring that Appellees created an unsafe condition, and Appellees offered video surveillance still-shots from footage of the events. In his deposition, Appellant testified that he did not notice the empty pallet until his third trip, claiming that he tripped over the prongs protruding from underneath the pallet, as opposed to the pallet itself. After hearing arguments, the trial court granted summary judgment in favor of Appellees, finding Appellees owed no duty to warn Appellant of the pallet or the prongs, because Appellant was aware of the condition. The court further found the condition to have been so open, obvious, and ordinary that it was inherently not dangerous as a matter of law, absolving Appellees of liability.

In a premises-liability decision upholding summary judgment for the landowner, the Florida Supreme Court recognized more than a half-century ago that a

business invitee is entitled to expect that the proprietor will take reasonable care to discover the actual condition of the premises and either make them safe or warn [the invitee] of dangerous conditions, it is equally well settled that the proprietor has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

Earley v. Morrison Cafeteria Co. of Orlando, 61 So.2d 477, 478 (Fla. 1952) (emphasis added). This court has also held that “there is no duty to warn against an open and obvious condition which is not inherently dangerous.” Ramsey v. Home Depot U.S.A., Inc., 124 So.3d 415, 417 (Fla. 1st DCA 2013). As premises-liability law developed post-Earley, lower-court decisions have recognized that a business owner owes two “separate and distinct” duties to business invitees: “1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.” Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 865 (Fla. 3d DCA 2011).

As noted in Rocamonde:

The granting of summary judgment is subject to de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000). The appellate court is required to ‘consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.’ Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009), quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). In negligence suits particularly, ‘summary judgments should be cautiously granted.’ Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). ‘If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.’ Id. (citing Williams v. Lake City, 62 So.2d 732 (Fla. 1953)). Summary judgment should not be granted ‘unless the facts are so' crystallized that nothing remains but questions of law.’ Id. (citing Shaffran v. Holness, 93 So.2d 94 (Fla. 1957)).

Id. at 864-865.

In Rocamonde, the Third District held that summary judgment based on Earley was improper where “‘it is the dangerous condition of an object which must be open and obvious, not simply the object itself.’ ” Id. (quoting Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 555 (Fla. 3d DCA 2000)). The Third District also noted that, although a property owner may comply with the duty to warn of an open and obvious condition, this “does not necessarily mean the landowner has satisfied the duty to maintain the premises in a reasonably safe condition[.]” (Emphasis added.) Id. at 864. Obviously, in some cases, a property owner may in fact comply with both duties when an open and obvious condition does not trigger a duty to warn and the condition itself does not violate a property owner’s duty to maintain the premises in a reasonably safe condition. We hold here that Appellees did not violate any legal duty to Appellant, who observed the condition but was injured by failing to use due care for "his own safety, when a reasonable person could have easily avoided the obstacle and thereby prevented injury.

Here, Appellant admitted that he saw the empty pallet when he exited the store and took four more steps before tripping over it. The surveillance video footage conclusively refutes Appellant’s allegation that he tripped over the prongs, as he tripped over the pallet itself, but we note that the trial court found Appellant’s claim regarding the prongs to be immaterial, and we agree with the trial court, which ruled “the [Appellant] changed course and walked so as to avoid the [pallet] on three other occasions during the surveillance video, twice prior to his fall and once again a few minutes afterward. The Court concludes that no genuine issue of fact exists regarding whether the condition causing [Appellant’s] fall was open and obvious.” (Emphasis added.)

Therefore, the facts are sufficiently crystallized here so that the issue on appeal is purely a question of law: Did Appellees violate either a duty to warn of a dangerous condition or a duty to maintain the premises in a reasonably safe condition, when Appellant previously observed an open and obvious condition, not inherently dangerous, and walked into the object causing his own injury.

First, we hold that Appellees owed no duty to warn Appellant of the open and obvious condition, because Appellees’ knowledge of the condition was not “superior” to Appellant’s. Hunt v. Slippery Dip of Jacksonville, Inc., 453 So.2d 139, 139 (Fla. 1st DCA 1984) (holding that “defendant’s knowledge of a danger must be superior to that of a business invitee ... to create a duty on the part of the defendant to warn.”); see also McAllister v. Robbins, 542 So.2d 470, 470 (Fla. 1st DCA 1989) (affirming summary judgment where there was “no question of duty to warn, since plaintiffs knowledge was equal with that of the defendants”); Ball v. Ates, 369 So.2d 1023 (Fla. 1st DCA 1979) (citing Vt. Mut. Ins. Co. v. Conway, 358 So.2d 123, 124 (Fla. 1st DCA 1978), and affirming grant of directed verdict for defendant, stating “rule is that a defendant’s knowledge of danger must be superior to that of a business invitee in order to create a duty to warn of dangers unknown to the plaintiff.”). Appellant knew the location of the pallet, having seen it twice earlier, before the accident. Thus, Appellees had no greater knowledge of the condition than Appellant, and therefore, had no duty to warn Appellant of its presence.

Second, we must address whether Appellees breached their duty to exercise ordinary care in maintaining the walkway in a reasonably safe condition for its intended use. Denson v. SM-Planters Walk Apartments, 183 So.3d 1048, 1050-51 (Fla. 1st DCA 2015). In Denson, this court acknowledged that a landowner has two distinct duties to business invitees: the duty to warn of latent, dangerous conditions, and the duty to maintain the premises in a reasonably safe condition. Id. In Dampier v. Morgan Tire & Auto, LLC, as discussed in Denson, the Fifth District discussed the applicable legal principles:

Nonetheless, some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition. See, e.g., Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983) (holding difference in floor levels is not inherently dangerous condition, even in dim lighting, so as to constitute failure to use due care for safety of person invited to premises). Other conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. See, e.g., Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla. 1986). The rale applied in these circumstances is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness. Id.; Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So.2d 1233, 1234 (Fla. 5th DCA 2006).

82 So.3d 204, 206 (Fla. 5th DCA 2012) (emphasis added). Thus, there are two types of obvious conditions that will not constitute a breach of a duty to maintain premises in a reasonably safe condition, to wit: 1) where the condition is so “open and obvious and not inherently dangerous”; or 2) where the condition may be dangerous, but is “so open and obvious that an invitee may be reasonably expected to discover them to protect himself.” Id. Thus, while many decisions speak of the duty to warn and the duty to maintain premises in a reasonably safe condition as separate and distinct duties, for analytical purposes the duties are not mutually exclusive, as the open and obvious nature of a condition may preclude a finding of a breach of either duty, as a matter of law.

In Denson, this court reversed summary judgment because material facts remained in dispute as to whether the landowner properly mixed a non-skid additive to outdoor-concrete paint. 183 So.3d at 1051-52. But here, we hold that under these facts, Appellees did not breach their duty to exercise ordinary care to maintain the premises in a reasonably safe condition, for either of two reasons: first, that the condition so open and obvious and not inherently dangerous, or second, assuming arguendo that the pallet’s location was dangerous, it was so open and obvious, and previously observed by Appellant, that Ap-pellees could reasonably expect Appellant to protect himself from the purported danger.

Addressing the first possible reason in determining whether Appellees are absolved of any liability of then- duty to maintain the premises in a reasonably safe condition, we hold that the pallet’s location was open and obvious and not inherently dangerous. There are times when conditions are so common, or so innocuous in our everyday life, that they do not impose liability on the landowner. Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. 5th DCA 1990) (holding that condition was “so open and obvious, so common and so ordinarily innocuous” that it was not dangerous as a matter of law where plaintiff tripped over joint in gas station parking lot where concrete met asphalt); Aventura Mall Venture v. Olson, 561 So.2d 319, 321 (Fla. 3d DCA 1990) (agreeing with Fifth District’s holding in Ferguson and affirming summary judgment on same grounds when plaintiff tripped over sidewalk curb); Ramsey, 124 So.3d at 419 (affirming summary judgment where plaintiff tripped over wheel stop in center of parking space that complied with ADA regulations).

In McAllister, the plaintiff hurt his foot “when he caught his heel on one of a number of concrete blocks marking the property line of the Wisteria Bar.” 542 So.2d at 470. The plaintiff acknowledged that “he knew the line of blocks existed before the accident” and on the night of the accident “he saw the blocks and ‘was trying to step over the blocks’ when his heel caught.” Id. This court affirmed the grant of summary judgment, discussing in detail the applicable legal principles, noting that the plaintiff “saw and knew about the blocks at the time of the accident, and there was no question of duty to warn, since plaintiffs knowledge was equal with that of the defendants.” Id. at 471 (emphasis in original). While the court noted that the blocks were present for 17 years and no one had previously injured themselves, the court focused primarily on the fact that the plaintiff had seen the blocks before he injured himself. Further, this court emphasized that “a person is not required to take measures to avoid a danger which the circumstances as known to him do not suggest as likely to happen. Previous decisions have held that protruding, uneven bricks bordering a tree did not constitute a dangerous condition ... even though the area ... was one in which young children played.” Id. (citation omitted). Thus, McAl-lister provides authority for our holding here.

In Miranda v. Home Depot U.S.A., Inc., the plaintiff, in attempting to reach a planter on a display shelf which was blocked by a ladder, “projected her head and shoulders and upper torso through the ladder,” and after standing up, hit a cross bar on the ladder and injured her right eye, leading to her suit against Home Depot. 604 So.2d 1237, 1238 (Fla. 3d DCA 1992). In moving for summary judgment, Home Depot argued that “there was no breach of reasonable care and that the presence of the ladder was open and obvious, making .Miranda’s conduct the sole proximate cause of the accident.” Id. (emphasis added). The Third District affirmed the trial court’s grant of summary final judgment. Id. The Third District noted Miranda’s argument that “ladders on the store’s selling floor represent an unreasonable risk of harm to customers and thus the relative negligence of the parties .. creates a question of fact precluding summary judgment.” Id The court rejected this argument, distinguishing Nichols v. Home Depot, Inc., 541 So.2d 639 (Fla. 3d DCA 1989), where a patron climbed a ladder in the store and fell off the ladder, noting that in Nichols, the court recognized a duty based on the “foreseeable risk of harm ... that ‘customers, inexperienced in scaling ladders and unknowledgeable about the weights of items in the overhead areas’ ” would potentially harm themselves by attempting to use the ladders when store assistance was not available. Miranda, 604 So.2d at 1238. But the court, relying on Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983), reiterated that only those injuries “ ‘such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act’ ” are entitled to compensation based on a violation of a legally-imposed duty to maintain the premises in a safe condition. Id. (emphasis in original).

This is closely comparable to the facts here: Appellant’s action of walking right into the pallet, not an inherently dangerous condition and one that he had previously and contemporaneously observed twice before, was the sole proximate cause of his injuries. It is neither “probable nor foreseeable” that someone seeing a pallet on the ground, and having passed by it twice before, would fail to avoid the open and obvious condition. The standard must be based on an objective evaluation, understanding that every case will involve an accident, which cannot by itself mandate that summary judgment never be granted in cases involving open and obvious conditions.

We would also hold here that even if the pallet’s location was inherently dangerous, which it was not, that summary judgment was properly granted, because Appellant saw the allegedly dangerous condition, which was so open and obvious, that he could be “ ‘reasonably expected to discover [the pallet] and to protect himself.’ ” Denson, 183 So.3d at 1051 (quoting Dampier, 82 So.3d at 206). As we discussed above, the Florida Supreme Court held that a “proprietor has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.” Earley, 61 So.2d at 478. Here, this is precisely the case, as Appellant saw the purportedly dangerous condition but failed in the “ordinary use of his own senses” to avoid the observed condition.

To reverse the summary judgment here would make business owners universal insurers. Business owners receive shipments of products every day, which must be stored somewhere before final placement, and if a customer sees the placement of the products but trips and falls over them, the customer, or invitee, has violated his own duty to exercise reasonable care for his own safety. Here, as the trial court stated in its order granting summary judgment, one of the Appellees was delivering merchandise to the other Appellee, “a practice that is necessary in everyday life in our society. ... The condition in this case was a large pallet ... that invitees walked by rather than walking into, as [Appellant] unfortunately did on his third of four exits from the store. The Court concludes that the condition in this case was not inherently dangerous,” We agree.

And we do not think that Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), requires us to reverse, because there, an injured party slipped on a piece of discolored banana on the floor that was unseen by the plaintiff. The supreme court noted that “[t]he existence of a transitory foreign substance on the floor is not a safe condition.” Id. at 330. The court went on to hold that

the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebut-table presumption that the premises owner did not maintain the premises in a reasonably safe condition.

Id. at 331. A pallet used for unloading goods is not a “foreign substance,” but a legitimate aspect of a retail-business economy. Furthermore, the Owens court did not overrule its earlier announced principle in Earley, and that court has long held that other courts are not to assume that the supreme court overrules itself sub si-lentio. Arsali v. Chase Home Fin. LLC, 121 So.3d 511, 516 (Fla. 2013) (“[W]e did not intentionally overrule our previous decision ... sub silentio, because this Court does not engage in such practices.”); Puryear v. State, 810 So.2d 901, 905-06 (Fla. 2002) (“We take this opportunity to expressly state that this Court does not intentionally overrule itself sub silentio”).

We also think our decision in Lomack v. Mowrey, 14 So.3d 1090, 1092 (Fla. 1st DCA 2009), is not to the contrary, as the exposed and “loose wires” there created a hazard, and it was not clear from our decision whether the landowner-in Mowrey complied with the duty to warn the plaintiff of the hazard. Id. We think the hazard in Mowrey is qualitatively different than the temporary placement of a pallet outside a store’s exit.

The ultimate question is “whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact that it was open and obvious.” Moultrie v. Consolidated Stores Int’l Corp., 764 So.2d 637, 640 (Fla. 1st DCA 2000). In Moultrie, this court properly reversed summary judgment where, unlike here, the invitee did not see the empty pallet left unmarked in the store aisle, and she fell over the pallet while looking upward in another direction and backing up, tripping over the pallet. Thus, “the height of the pallet was such that it might not fall within the line of vision of adult invitees who entered ... to purchase items placed on counters and shelves.” Id. at 639-640. This court concluded by holding that the case “does not present a condition which was so open and obvious and ordinary that it could be held as a matter of law that the pallet did not constitute a foreseeable risk of harm to individuals ....” Id. Here, Appellant actually observed the pallet’s location; thus, even assuming the pallet created a dangerous condition, Appellant had a duty to avoid the previously observed pallet, which he did twice before he fell.

In another example, in Burton v. MDC PGA Plaza Corp., 78 So.3d 732 (Fla. 4th DCA 2012), the Fourth District reversed summary judgment where the plaintiff stepped in a pothole on the defendant’s property. Although the plaintiff was aware of the “glaringly” open and obvious hazard, and had “ ‘knowledge equal to or superior to that of the landowner,’ ” the court correctly noted that a “pothole is not a natural condition, nor does it create a reasonable risk of harm. A pothole forms when a landowner fails to maintain the property .... ” Id. at 733, 735. Thus, “the defendants’ duty to maintain the premises in a reasonably safe condition was not discharged by the plaintiffs knowledge of the pothole before she fell.” Id. at 735.

But the court in Burton also acknowledged the decision in Arnoul v. Busch Entertainment Corp., 2008 WL 4525106 *3-4 (M.D. Fla. Oct. 6, 2008), where the Middle District granted summary judgment where the plaintiffs injuries were caused by his own “failure to take precautions.” In Arnoul, the court relied on this court’s decision in McAllister for the proposition that that “ ‘some injury-causing conditions are so open and obvious that they can be held as a matter of law not to give rise to liability as dangerous conditions.’ ” Id. at *2 (quoting Taylor v. Universal City Prop. Mgmt., 779 So.2d 621, 622 (Fla. 5th DCA2001) and citing McAllister and Crawford v. Miller, 542 So.2d 1050, 1051 (Fla. 3d DCA 1989), for the proposition that “where a plaintiff had knowledge of a protrusion onto a walkway, the premises was not in an unreasonably dangerous condition, since the plaintiffs injuries could have been avoided by her taking due care to avoid them”). The Ar-noul court noted that the landowner must protect business invitees from potential dangers by “repairing broken stairway handrails, removing slippery substances on stairways, and lighting dark objects that may be hard to see at nighttime, for example.” Id. (footnotes omitted). None of those hazards were present here. But where the condition at issue is open and obvious, it is

only when a landowner should anticipate that people will choose to negotiate obvious hazards and thereby injure themselves, despite their awareness of the danger, is the landowner responsible for injury resulting from an obvious condition. Such anticipation should occur, for example, when avoiding the hazard would be impossible or highly inconvenient.

Id. (emphasis added) (citation omitted). Thus, the corollary proposition is trae as well:

If the obviousness of the condition would lead a reasonable person to believe that the danger will be avoided, the condition is not unreasonably dangerous, and the landowner is not liable.... So, merely being on another’s property when injured by such conditions does not automatically allow a person to shift the fault for accidents caused by his own negligence.

Id. at *3 (emphasis added). Or as stated in Crawford, “The mere occurrence of an accident does not, without more, give rise to an inference of negligence.” 542 So.2d at 1051. We concur with this correct legal and logical analysis, which aligns with our analysis and holding in McAllister.

To reverse the summary judgment here would make all landowners subject to a jury trial when a business invitee, by his own negligence, unnecessarily trips on an open and obvious condition, of which he is aware, when no reasonable person would injure himself by such negligence. The facts of Arnoul are closely similar with the facts here: Despite seeing the branch over a busy sidewalk at Busch Gardens, Arnoul argued that he was distracted by his granddaughter and the “amount of pedestrian activity and the flashy displays and award-winning landscaping [all] designed to lure pedestrians’ eyes away from the path in front of them [and] make it likely that pedestrians [would] not notice the branch and [would] walk into it .... ” Ar-noul, 2008 WL 4525106 at *3. Here, Appellant’s argument is that, although he knew of the pallet on the ground several feet in front of the exit door, he was distracted while carrying empty boxes and tripped over it. Like here, the Arnoul court rejected the plaintiffs argument for two reasons: First, the plaintiff knew of the branch over the walkway, and second, to hold the property owner liable for breach of a duty to maintain reasonably safe premises in such a scenario would mean adopting a universal rule finding premises liability in all cases, as there are “no premises safe enough to entirely foreclose the risk that a guest might injure himself during an inattentive moment.” Id.

It would defy common sense and any valid notion of a rational allocation of risk in everyday life to make all businesses everywhere liable for unreasonable inattentiveness of invitees. As concisely noted by the Arnoul court, this court too “is not prepared to dispense with the duty of care owed to one’s self, the exercise of which others are entitled to depend upon.” Id.

A premises owner operating a lawful business benefits society, and part of the burden of a viable commercial enterprise often requires the receipt and stocking of goods and products. The law provides protection to premises owners from unjustified and costly litigation, when any reasonably attentive invitee who saw an open and obvious conditkm—such as a pallet partially blocking a walkway—would act in his or her own interest in personal safety, and by the use of ordinary common sense, avoid the observed transitory item. Arnoul, 2008 WL 4525106 at *4; Earley, 61 So.2d at 478; Ramsey, 124 So.3d at 417; McAllister, 542 So.2d at 470; Ferguson, 556 So.2d at 1208. Appellees were under no duty to warn Appellant of the open and obvious pallet, where Appellant’s knowledge of the pallet was equal to or superior to Appellees’ knowledge. Furthermore, Appellees did not fail to maintain the premises in a safe condition where Appellant saw the pallet, which was not inherently dangerous, or if considered dangerous, was readily avoidable, had Appellant engaged in the “ordinary use of his own senses.” Earley, 61 So.2d at 478. The legal duty of premises owners owed to business invitees is based on logic, common sense, and human experience, and in this case the trial court correctly granted summary judgment, because Appellees did not breach any duty owed to Appellant, as a matter of law.

Contrary to the dissenting opinion, we plainly do not hold that Appellees owed Appellant no duty to maintain their premises in a reasonably safe condition. Rather, we follow precedent to hold that Appellees complied with their duty to maintain the premises in a reasonably safe condition by exercising ordinary care in accepting delivery of an inventory shipment which, as the trial court correctly noted, is an ordinary feature, of everyday life. Appellees could not reasonably have anticipated that Appellant would trip over the pallet he had previously observed and safely walked around twice before the accident.

AFFIRMED.

OSTERHAUS, J., CONCURS; BILBREY, J., CONCURRING IN PART AND DISSENTING IN PART.

BILBREY, J.,

concurring in part and dissenting in part.

As the majority opinion correctly notes, a business owner owes two “separate and distinct” duties to business invitees. (Maj. Op. 1130-31). See also Grimes v. Family Dollar Stores of Florida, Inc., 194 So.3d 424 (Fla. 3d DCA 2016). I agree that the presence of the pallets and pallet jack was open and obvious such that there was no duty- to warn, since they were not inherently dangerous. See Upton v. Rouse’s Enterprise, LLC, 186 So.3d 1195, 1202 (La. Ct. App. 2016) (explaining “a pallet does not inherently pose an unreasonable risk of harm.”). I therefore agree that summary judgment was appropriately granted as to the Appellees’ duty to warn Appellant of objects he already knew or should have known about. However, I believe questions of fact should have precluded entry of summary judgment on the issue of whether Appellees used “ordinary care to maintain [the] premises in a reasonably safe condition,” when a full pallet, empty pallet, arid pallet jack were positioned in close proximity to the only means of entering and existing the premises and in the pathway to the parking lot. See Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 865 (Fla. 3d DCA 2011); see also Lynch v. Brown, 489 So.2d 65, 67 (Fla. 1st DCA 1986) (holding “a plaintiffs knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.”). I would therefore reverse the grant of summary judgment as to the Appellee’s duty to maintain the premises in a reasonably safe condition and remand the case to the trial court for further proceedings.

Here, the Appellees’ motions for summary judgment recognized that there were two separate duties alleged and therefore two issues for the trial court’s consideration. The trial court’s order granting summary judgment also recognized the two duties and thoroughly analyzed the duty to warn, Appellant’s knowledge of the hazard, and the fact that the pallets and jack were not inherently dangerous. But the trial court’s order did not explain why the Ap-pellees did not owe Appellant a duty to maintain the premises in a reasonably safe condition. We are left with a review of the record to determine as a matter of law whether no material issues of fact exist such that summary judgment was appropriate as to Appellees’ duty to maintain the premises. See Fla. R. Civ. P. 1.510; Lomack v. Mowrey, 14 So.3d 1090 (Fla. 1st DCA 2009).

In opposition to the motions for summary judgment, Appellant submitted the affidavit of Jeremy Cummings, Ph.D., as expert opinion in the areas of human factors, biomechanics, and biomedicine. Dr. Cummings’ affidavit stated that the pallet was not in a reasonably safe location and that it was reasonable to anticipate that Appellant’s attention could have been diverted when Appellant tripped. Deposition testimony of Appellees’ employees showed that the pallets were placed as they were so that the beer on the pallets could be monitored to prevent theft. Appellant contended that a safer location for the pallets would have been next to the entry door against the wall of the premises.

In the past, this court has looked to the Restatement (Second) of Torts section 343A in analyzing legal principles of premises liability. Lynch, 489 So.2d at 66; Ahl v. Stone Southwest, Inc., 666 So.2d 922 (Fla. 1st DCA 1995); Moultrie v. Consol. Stores Int’l Corp., 764 So.2d 637 (Fla. 1st DCA 2000). Subsection (1) of section 343A states, “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Comment f to this subsection states:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. ... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

The Restatement comments are consistent with Florida law that even when there is an open and obvious hazard, “liability can still attach when the landowner or possessor should have anticipated the possibility of injury resulting from the hazard.” Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 123 (Fla. 2d DCA 2015). In Cook, the court reversed a grant of summary judgment where the plaintiff had tripped over an obvious pipe in a walkway. Id. The court in Cook noted “while injuries caused by a condition that is not ‘dangerous’ do not give rise to liability due to failure to maintain the premises in a reasonably safe condition ... whether the exposed pipe was a ‘dangerous condition’ in the context of foreseeability is a question to be answered by the jury.” Id. (citations omitted). Applying Coók and the various eases it cites, thé determination here of whether the pallets and pallet jack were a “dangerous condition” such that Appellees should have anticipated the possibility of Appellant’s injury is a question of fact for the jury.

I believe the situation here is similar to other cases where a material issue of fact as to the possessor of the premises’ duty to maintain the premises remained when a customer tripped on an open , and obvious object. See De Cruz-Haymer v. Festival Food Market, Inc., 117 So.3d 885 (Fla. 4th DCA 2013) (open and obvious rumbled door mat); Skala v. Lyon Heritage Corp., 127 So.3d 814 (Fla. 2d DCA 2013) (obvious construction debris); Burton v. MDC PGA Plaza Corp., 78 So.3d 732 (Fla. 4th DCA 2012) (pothole known to plaintiff); Taylor v. Tolbert Enters. Inc., 439 So.2d 991 (Fla. 1st DCA 1983) (sand and water accumulated on. steps and walkway known to plaintiff). In all of these cases summary judgment was reversed because material issues of fact remained regarding the possessor’s duty to maintain the premises in a reasonably safe condition.

The majority attempts to distinguish our decision in Lomack, but I respectfully fail see to how it differs. Like here, the trial court’s order in Lomack was “grounded on a finding that appellees had no duty to warn” but did not analyze the duty to maintain the premises. 14 So.3d at 1092. We reversed the summary judgment for the landowners in Lomack noting that “an invitee’s knowledge of a danger is normally not a complete bar to recovery, but rather triggers the application of comparative negligence principles.” Id. I fail to see how the exposed computer cable in an office which the appellant in Lomack had traversed at least a hundred times would implicate a duty to maintain a premises but pallets temporarily placed adjacent to the entry and exit of a premises, and between the premises and its parking lot, do not.

I do not believe that Appellees have carried their burden to show no disputed issues of material fact remain for summary judgment on the issue of their duty to maintain the premises. For the above reasons, I respectfully dissent from the portion of the majority opinion which holds Appellees had no duty to maintain the premises. I would remand the case back to the trial court for further proceedings.

      . Appellant tripped over the empty pallet or tips of the pallet jack while exiting the premises for a third time, this time with an armful of boxes which obstructed his vision.

      . Appellant would still need to prove that Appellees “had actual or constructive notice of the dangerous condition.” Grimes, 194 So.3d at 427 (citing Schaap v. Publix Supermarkets, Inc., 579 So.2d 831, 834 (Fla. 1st DCA 1991)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph FARLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3491
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017.
    Flem K. Whited, III, and Kayla R. Hathaway, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joseph Farley appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm in all respects except for the summary denial of Ground Six. We reverse and remand for further proceedings on that ground for the reasons that follow.

Farley pled guilty to two counts of DUI manslaughter and his judgment and sentence were affirmed on direct appeal in Farley v. State, 151 So.3d 1234 (Fla. 1st DCA 2014) (unpublished table opinion). In May 2016, Farley filed a timely rule 3.850 motion containing 16 “grounds” for relief, all of which alleged claims of ineffective assistance of trial counsel. The postconviction court summarily denied the motion, finding all of the claims to be legally insufficient and/or refuted by the record. This timely appeal followed.

In Ground Six of the motion, Farley alleged that his trial counsel’s performance was deficient because he told Farley that all of the discovery materials pertaining to his blood draw had been received and contained nothing beneficial to the defense when, in fact, several discovery requests were still awaiting a response. Farley further alleged that but for this deficient performance he would not have entered a negotiated plea and instead would have insisted on going to trial.

This claim is facially sufficient, see Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999), and as the State concedes, it is not refuted by the record excerpts attached to the postconviction court’s order. The motion for discovery attached to the order refutes any suggestion that trial counsel failed to pursue discovery pertaining to Farley’s blood draw, but it does not refute the claim alleged in Ground Six that counsel’s misrepresentation that all of the discovery responses had been received and were not beneficial to the defense induced Farley to enter a plea.

Accordingly, we reverse the summary denial of Ground Six and remand for the postconviction court to either attach portions of the record refuting the claim of ineffective assistance of counsel alleged in that ground or to hold an evidentiary hearing on that ground. In all other respects we affirm the postconviction court’s order.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


text:
    STATE of Florida; The Florida Department of Health; John H. Armstrong, M.D., in His Official Capacity as Secretary of Health for the State of Florida; The Florida Board of Medicine; James Orr, M.D., in His Official Capacity as Chair of the Florida Board of Medicine; The Florida Board of Osteopathic Medicine; Anna Hayden, D.O., in Her Official Capacity as Chair of the Florida Board of Osteopathic Medicine; The Florida Agency for Health Care Administration; and Elizabeth Dudek, in Her Official Capacity as Secretary of The Florida Agency for Health Care Administration, Appellants, v. GAINESVILLE WOMAN CARE LLC, et al., Appellees.
    CASE NO. 1D15-3048
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Pamela Jo Bondi, Attorney General; Denise M. Harle, Deputy Solicitor General; and Blaine Winship, Special Counsel, Tallahassee, for Appellants.
    Richard E. Johnson of the Law Office of Richard E, Johnson, Tallahassee; Benjamin James Stevenson, American Civil Liberties Union Foundation of Florida, Pensacola; Nancy Abudu, American Civil Liberties Union Foundation of Florida, Miami; Jennifer Lee, Susan Talcott Camp, and Julia Kaye, American CM Liberties Union Foundation, New York, New York, pro hac vice, for Appellee Gainesville Woman Care, LLC; Autumn Katz and Tiseme Zegeye, Center for Reproductive Rights, New York, New York, pro hac vice, for Appellee Medical Students for Choice.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

The 2015 amendment to Florida’s informed consent law for termination of pregnancies, section 390.0111(3)(a) of the Florida Statutes, created a 24-hour waiting period. We previously reversed the trial court’s temporary injunction against implementation of the amendment, because we found the injunction order deficient both factually and legally. State v. Gainesville Woman Care LLC, 187 So.3d 279 (Fla. 1st DCA 2016). The Florida Supreme Court quashed that decision, remanding “with instructions that the temporary injunction and accompanying stay ... remain in effect pending a hearing on Petitioners’ request for a permanent injunction.” Gainesville Woman Care, LLC v. State, 42 Fla. L. Weekly S183a, 210 So.3d 1243, 2017 WL 633772 (Fla. Feb. 16, 2017). We therefore remand this matter to the trial court for further proceedings as directed by the supreme court.

B.L. THOMAS and KELSEY, JJ., and STONE, WILLIAM F., Associate Judge, CONCUR.


text:
    Christopher BACHMAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5522
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Rachael E. Bushey of O’Brien Hatfield, PA, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 28, 2015, final order on defendant’s amended motion for postconviction relief issued in Okaloosa County Circuit Court case number 2008-CF-2832. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    WELLS FARGO BANK, N.A., Appellant, v. Derrick R. SPENCE, et al., Appellees.
    No. 3D15-1409
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.
    Carlton Fields Jorden Burt, P.A., and Michael K. Winston, and Dean A. Morande (West Palm Beach), for appellant.
    Dennis A. Donet, P.A., and Dennis A. Donet, for appellees.
    Before LOGUE, SCALES and LUCK, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Wells Fargo Bank, N.A., the plaintiff below, appeals the trial court’s order granting final summary judgment in favor of the defendants below, Derrick R. Spence and Helen Spence, and dismissing the instant mortgage foreclosure action. The trial court found that the action was barred by-the statute of limitations.

Based upon the record before us and the Spences’ commendable confession of error, we reverse the final order of dismissal and remand the case to the trial court for further proceedings. See Bartram v. U.S. Bank Nat’l Ass’n, Nos. SC14-1265, SC14-1266, SC14-1305, 211 So.3d 1009, 2016 WL 6538647 (Fla. Nov. 3, 2016); Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc).

Reversed and remanded.


author: PER CURIAM:

text:
    STATE EX REL. Carl A. DUPERON v. STATE of Louisiana
    No. 2015-KH-2154
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. Art. 930.4 and within the limitations period as set out in La.C.Cr.P. Art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. Art. 930;4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. Art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

| ¡Attachment

_k


author: PER CURIAM HUGHES, J., WEIMER, J.,

text:
    STATE of Louisiana v. Alizera SADEGHI
    NO. 2017-KD-0462
    Supreme Court of Louisiana.
    03/19/2017
   PER CURIAM

11 Writ Granted. The trial court erred by not granting the State’s request for a subpoena duces tecum. With the consent of the victim, the State’s subpoena duces te-cum seeks the victim’s medical records from the victim’s health care provider. A patient, including a patient’s representative, see La. R.S. 44:17(A)(4), has an absolute right to obtain a copy of his or her medical records from his or her health care provider. See La. R.S. 40:1165.1(A)(1). Further, upon reasonable grounds, the State can request the trial court to order a subpoena duces tecum. See La. C.Cr.P. Art. 66(A). Because the trial court stated it would issue a subpoena duces tecum only for the date listed in the indictment, the trial court abused its discretion upon finding reasonable grounds for some, but not all, of the requested medical documents. We therefore order the trial court to issue the State’s subpoena duces tecum for any and all certified medical records, including all photographs, pertaining to the treatment of Patient K.H, the victim in Count 6 of the indictment, in the custody of The Center for Aesthetics and Plastic Surgery.

WEIMER, J., dissents and assigns reasons.

HUGHES, J.,

concurs, but believes the return should be made in open court pursuant to Code of Criminal Procedure article 732.

WEIMER, J.,

dissenting.

I would deny the writ, believing the trial court did not abuse its discretion given the facts and circumstances outlined in the hearing.


text:
    IN RE: Robert R. EARLE
    NO. 2017-OB-0415
    Supreme Court of Louisiana.
    03/22/2017
   ORDER

| ¶ Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Robert R. Earle, Louisiana Bar Roll number 14241, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


author: Hughes, J.,

text:
    Kerry KIRBY and Lori Kirby, individually and on behalf of their minor children, A.C. Kirby, Heidi Mayeaux, Kerry Kirby, Jr., and Hanna Kirby v. Mike ASHFORD, Exide Technologies, Inc., and ABC Man. Co.
    NO. 2017-C-152
    Supreme Court of Louisiana.
    03/24/2017
    JOHNSON C.J., would grant.
    HUGHES, J., dissents and assigns reasons.
    GENOVESE, J., would grant.
   Hughes, J.,

dissents and would grant the writ.

11 The Employer’s Liability Exclusion is not ambiguous. But neither is the Contractual Liability Exclusion. One provides coverage, one does not. The policy therefore is ambiguous as a whole.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-9711
    NO. 2017-BA-0254
    Supreme Court of Louisiana.
    03/24/2017
   BAR ADMISSIONS PROCEEDING

PER CURIAM

| petitioner’s current application makes no showing of any significant change in circumstances since his prior applications were denied in 2007 and 2008. In the absence of any compelling new evidence or changed circumstances, this court will not reconsider a decision denying admission to the bar. See In re: Jordan, 00-3006 (La. 12/15/00), 775 So.2d 1065 (explaining that an applicant who seeks to reapply after being denied admission must produce new evidence or show changed circumstances).

Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate a significant change in circumstances, and in no event until at least two years have passed from the date of this judgment.

ADMISSION DENIED.


text:
    STATE of Louisiana and The Vermilion Parish School Board v. The LOUISIANA LAND AND EXPLORATION COMPANY, et al.
    NO. 2016-CC-2279
    Supreme Court of Louisiana.
    03/24/2017
   The Vermilion Parish School Board; Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. D, No. 82162; to the Court of Appeal, Third Circuit, no. CW 16-00914

| denied.

GENOVESE, J., additionally concurs and assigns reasons.


text:
    STATE EX REL. Brooks Christopher FORD v. STATE of Louisiana
    No. 2015-KH-2125
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr,P. art. 930.8. Notably, the Legislature in |⅞2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review, The district court is ordered to record a minute entry consistent with this per curiam.

| ¡Attachment


text:
    STATE EX REL. Jerry BUTLER v. STATE of Louisiana
    No. 2015-KH-2124
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La, 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

Relator has now fully litigated at least two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La. C.CrJP. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral | review. The District Court is ordered to record a minute entry consistent with this per curiam.

| ^Attachment


text:
    STATE EX REL. Harold REED, Jr. v. STATE of Louisiana
    No. 2015-KH-2101
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art, 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment


text:
    STATE EX REL. Wardell J. STEVENS v. STATE of Louisiana
    No. 2015-KH-2086
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

11 Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Raymond MCGARY v. STATE of Louisiana
    No. 2015-KH-2085
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

j denied. Relator fails to show entitlement to DNA testing. La.C.Cr.P. art. 926.1. Relator’s claim that he received ineffective assistance of counsel was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. Regardless, relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated five applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr,P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kenneth T. ROBERTS, Jr. v. STATE of Louisiana
    No. 2015-KH-2053
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

| denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. In addition, relator’s claims regarding the denial of a continuance and the improper questioning of a juror were addressed on appeal. See La.C.Cr.P. art. 930.4(A); see also State v. Roberts, 12-1555 (La.App. 1 Cir. 4/26/13), 116 So.3d 754.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Barney Noel HOLT, III v. STATE of Louisiana
    No. 2015-KH-1862
    Supreme Court of Louisiana.
    03/24/2017
   PER CURIAM:

11 Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his | ¿right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

| ^Attachment


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Jermaine CARTER
    NO. 2016-KP-1631
    Supreme Court of Louisiana.
    03/24/2017
    CRICHTON, J., additionally concurs and assigns reasons'.
   CRICHTON, J.,

additionally concurs and assigns reasons:

|,I agree with this Court’s denial of the writ application by the State of Louisiana and write separately to highlight the district court’s excellent analysis of this post-conviction matter and thorough reasons for judgment. See May 19, 2016 Judgment, State v. Carter, (No. 2012-CR-14) (attached hereto). As recognized by Judge Mary Becnel, the right to counsel is fundamental and constitutional; it assigns fairness and legitimacy to our adversarial process. But in this case, Judge Becnel found that the defendant showed a reasonable probability that counsel’s errors upset that adversarial balance between prosecution and defense, causing the verdict to be unreliable.

This Court receives many collateral actions alleging ineffective assistance of counsel. For the Court—these are serious; and for the counsel involved—these are embarrassing. After a thorough review of these claims, most are denied. However, in my view, this case presents a near textbook example of a valid claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984) because the defendant established that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced him to such an extent the trial was rendered unfair and the verdict suspect. Because of the deficient ^representation by counsel, I cannot trust the validity of the jury’s verdict. And, in my view, the defendant is entitled to a new trial.

[{¡Attachment


text:
    IN RE: John Arthur BRITTAIN
    NO. 2017-B-0493
    Supreme Court of Louisiana.
    03/29/2017
   ORDER

11 Considering the Joint Petition for Interim Suspension filed by respondent, John Arthur Brittain, and the Office of Disciplinary Counsel,

IT IS ORDERED that John Arthur Brittain, Louisiana Bar Roll number 240B5, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: Judge Madeleine M. Landrieu

text:
    STATE of Louisiana IN the INTEREST OF S.K State of Louisiana in the Interest of S.K.
    NO. 2016-CA-0998, NO. 2016-C-1004
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017
    Katherine M. Dowling, STATE OF LOUISIANA, Department of Children and Family Services, 1450 Poydras Street, Suite 1600, New Orleans, LA 70112, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Robert Craig Stern, KILLEEN & STERN, PC, 400 Poydras Street, Suite 1710, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT

      (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Madeleine M. Landrieu

_JjS.IL appeals the juvenile court’s denial of her motion to correct the central registry maintained by the Department of Children and Family Services (“the Department”). For the reasons that follow, we reverse.

FACTS AND PROCEEDINGS BELOW

Article 616 of the Louisiana Children’s Code provides that the Department “shall maintain a central registry of all reports of abuse and neglect.” In February, 2016, the Department received a “referral” concerning S.K., a teacher at a day care facility. A subsequent investigation conducted by the Department validated a finding of “sexual exploitation, pornography” against S.K. This finding was based upon the Department learning that S.K. had taken a cell phone photograph of a four-year-old male student while he was masturbating under a blanket at nap time, and had texted the photograph to her co-teacher, who was in the teacher’s lounge on a break. S.K. acknowledged having taken the photograph but explained that she took it and sent it to her co-teacher seeking direction from her co-teacher as to how Uto handle the situation. S.K. further explained that it was impossible to tell what the child was doing from looking at the photograph.

Following an investigation by the Department, the validated finding of “sexual exploitation, pornography” against S.K. was recorded in the Department’s central registry. Objecting to that finding, S.K. filed a motion to correct the registry in juvenile court pursuant to Louisiana Children’s Code article 616.1, which provides, in pertinent part:

A. When a report alleging abuse or neglect is recorded as justified by the department in the central registry but when no petition is subsequently filed alleging that the child is in need of care, the individual who is the subject of the finding may file a written motion seeking correction of that entry and all related department records in the court exercising juvenile jurisdiction in the parish in which the finding was made.
B. Prior to the hearing, the motion shall be served on the department and the district attorney.
C. If neither the department nor the district attorney files a written objection, the court may enter an order in accordance with Paragraph
D. If after a contradictory hearing with the department and the district attorney the court finds that the report was not justified, in accordance with Article 615(B)(4) or (5), and correction of the record is not contrary to the best interest of the child, it may order the department to correct the central registry entry. If the central registry entry is ordered to be corrected, the department and any law enforcement offices having any record of the report shall be ordered to correct those records and any other records, notations, or references thereto, and the court shall order the department and other custodians of such records to file a sworn affidavit to the effect that their records have been corrected. The affidavit of the department shall also attest to the correction of the central registry entry.

The juvenile court heard the motion on August 4, 2016, and denied it from the bench, signing a written judgment to that effect the same day. S.K. filed both the instant appeal and a writ application challenging the ' trial court’s ruling, which 1 shave been consolidated in this court. As the ruling is a final judgment, we have appellate jurisdiction. See La. Ch. C. art. 330.

ISSUE

S.K. argues that the juvenile court erred by finding that the photograph at issue constituted pornography and/or that her conduct constituted exploitation of the child in question.

DISCUSSION OF THE EVIDENCE

The only two witnesses to testify at the hearing were S.K. and child welfare specialist, Alesia -Allen, who investigated the matter for the Department.

S. K. testified that she had been teaching in the early childhood area for sixteen years, and had been at this particular day care center for seven years. She admitted that she had taken a photograph of her student while he was masturbating under a blanket during nap time. She knew what the child was doing because of the sounds he was making and the movement of his hands, although she stated it would have been as impossible to tell what the child was doing from looking at the photograph itself. Only the child’s head was visible in the photograph; the blanket was pulled up to his neck. This particular child had exhibited this same behavior before. S.K. previously had discussed this behavior with the director of the day care center, as well as with her co-teacher, and the child’s parents. S.K. testified that the policy of the daycare center was for the teacher to allow the child to finish the behavior, not to embarrass the child, and to be discrete.

S.K. testified that her class was composed of eighteen children, ranging in age from three and one-half years to five years old, all of whom slept close | .(together on the floor during nap time. On the day in question, for the first time, the child began making grunting sounds, which attracted the attention of three little girls who were on the floor near him. The three little girls, who were awake and “interested,” were whispering and looking to S.K for guidance. S.K. testified that she took the picture because “it showed the proximity of the kids who were awake next to him.” She sent the picture to her co-teacher, B.L., with a text saying “What should I do now he’s making noises?” Because S.K. never received a response to her text, she handled the situation by turning on the lights and ending nap time earlier than usual.

S.K. testified that the sole reason she sent the, picture was to get direction as to what to do. S.K. testified that she did not expect anyone other than B.L. and perhaps the director to see the picture, and she did not show it or send it to anyone other than B.L. She had never imitated the noises the child was making or mocked him to other teachers. She believed that B.L. had shown the picture to other teachers, who had then “discussed it with everyone.” After the incident, the director called S.K. to her office, told her she should not have taken the picture, "and asked her to delete it, which S.K. did.

Ms. Allen testified that her job was to investigate allegations of child abuse and neglect. Although during her testimony Ms. Allen was questioned about, and periodically referred to, various forms and documents in the Department’s file, 1 Bsuch as the initial referral and the Department’s final report, none of these documents were introduced into evidence, and therefore are not part of the record on appeal.

According to Ms. Allen, the Department’s investigation was prompted by a written referral initiated by A.U., another teacher at the day care facility. During the investigation, Ms. Allen interviewed S.K., B.L., A.U., C.M. (another teacher), and the director of the day care center. Ms. Allen testified that the referral had mentioned a photograph and a video, but she determined through her investigation that there was never a video. As for the photograph, Ms. Allen testified that she never saw it because it had been deleted by the time of her investigation. S.K. never denied taking the photograph. S.K. offered her phone to Ms. Allen, and Ms. Allen had the police attempt to recover the photograph, but the attempt was unsuccessful.

Ms. Allen said that A.U. had also made allegations that S.K. had mocked the child in front of her and C.M. by imitating the noises made by the child, but C.M. had denied any knowledge of this happening. Ms. Allen had no information to confirm that S.K. had shown or sent the photograph in question to anyone other than her co-teacher, or that S.K. had asked her co-teacher to do so. Ms. Allen had no information that S.K’s motive in taking or sending the photograph was anything other than to seek direction. She had no information indicating that the child’s parents were unsatisfied with the manner in which S.K. had handled the situation. The director of the day care center confirmed to Ms. Allen that she had tasked S.K. to delete the photograph but had not taken any disciplinary action against S.K. Ms. Allen testified that she had validated the finding against S.K. because S.K. “reported that she actually did take the picture and that it was taken.”

Based upon this evidence, the juvenile court judge declined to order correction of the central registry, stating: “I don’t see a reason for doing it.”

DISCUSSION OF THE APPLICABLE LAW

Louisiana Children’s Code article 616, which provides for the creation of a central registry, appears in Title VI of the Code, governing “Children in Need of Care.” Article 616 states that “[t]he purpose of this central registry, among other uses, is to provide information of past reports of child abuse or neglect of children to assist in the proper evaluation of current reports of abuse or neglect which may include a pattern of incidents.” Article 603, the “Definitions” provision of Title VI, defines “abuse” and “neglect” as follows:

(2) “Abuse” means any one of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child:
(a) The infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.
(b) The exploitation or overwork of a child by a parent or any other person, including but not limited to commercial sexual exploitation of the child.
(c) The involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent, caretaker, or any other person of the child’s involvement in any of the following:
(i) Any sexual act with any other person.
(ii) Pornographic displays.
(iii) Any sexual activity constituting a crime under the laws of this state.
(d) A coerced abortion conducted upon a child.
* * *
(18) “Neglect” means the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of |7the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired....

Although there is no written documentation in the record, according to the testimony at trial, the validated finding against S.K. was “sexual exploitation, pornography.” The Children’s Code contains no definition of “sexual exploitation” or “pornography.” The Louisiana criminal law, at La. R.S. 14:81.1B (8), defines “[pjornography involving juveniles” as “any photograph, videotape, film, or other reproduction, whether electronic or otherwise, of any sexual performance involving a child under the age of seventeen.” That statute’s definition of “sexual performance” includes “masturbation.” La. R.S. 14:81.1 B (10). Because the Department’s central registry records incidents of abuse or neglect, it follows that a “validated finding” entered into the registry must reference conduct that constitutes abuse or neglect of a child.

On appeal, S.K. argues that her conduct did not constitute abuse, neglect or sexual exploitation of the child in question, and that the photograph she took was not pornography because it showed only a child covered by a blanket and did not depict what the child was doing. We agree that the evidence adduced at trial does not support a finding of abuse, neglect, or sexual exploitation of the child. We also agree that the photograph taken by S.K., as described by her (which no one from the Department ever saw and which is not in evidence), did not constitute pornography.

Article 616.1, pursuant to which this action to correct the central registry was brought, does not address which party has the burden of proof in such an action or what that burden is. We are not aware of any jurisprudence addressing the appropriate burden of proof. At a minimum, however, the Department should | shave to provide sufficient evidence to make out a prima facie case supporting the finding of abuse or neglect that it has validated, before the burden shifts to the individual who is challenging the finding to refute that evidence. In the case before us, the Department introduced no documentary evidence supporting its finding. Moreover, the testimony of Ms. Allen does not support a finding of abuse, neglect or exploitation of the child. Ms. Allen testified that she validated the finding because S.K. admitted to having taken the picture in question. Ms. Allen never saw the photograph. Ms. Allen did not explain why the photograph, as described by S.K., constituted pornography. The record does not reflect that the trial court conducted any analysis to determine whether the photograph was pornography. This case involves a photograph of a young boy covered to his neck by a blanket. In our view, to be pornographic, a photograph must be readily recognizable as such by the person viewing it. As a former United States Supreme Court justice famously remarked about pornography, “I know it when I see it.” Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).

In the absence of any evidence that the photograph taken by S.K. was pornographic, or that her conduct constituted abuse, neglect or exploitation of the child in question, the trial court erred by denying S.K’s motion to correct the central registry. Therefore, we reverse the trial court’s judgment and order that the central registry be corrected in accordance with this disposition.

REVERSED AND RENDERED

      . No petition was subsequently filed alleging the child to be in need of care.

      . Due to the sensitive nature of this matter, initials are used to protect the identity of all involved.

      . The record reflects that Ms. Allen used these documents during her testimony; presumably to refresh her memory.

      . Ms. Allen could not explain why even after she had confirmed there was no video, she had continued to refer to a video in her report.

      . Ms. Allen did not inquire as to the relationship between A.U. and S.K.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Angelo L. STEWARD, Appellant
    No. 51,006-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      LOUISIANA APPELLATE PROJECT By: George D. Ross, Counsel for Appellant
    JULIE C. JONES, District Attorney, J. CHRIS GUILLET, Assistant District Attorney, Counsel for Appellee
    Before BROWN, MOORE and PITMAN, JJ.
   MOORE, J.

11Angelo L. Steward appeals his convictions and sentences on one count of attempted aggravated rape and one count of indecent behavior with juveniles. Finding a fatal defect in the aggravated rape prosecution, we vacate that conviction and sentence and remand for further proceedings. For the reasons expressed, we affirm the conviction and sentence for indecent behavior with juveniles, but remand for compliance with sex offender registration and notification requirements.

The Aggravated Rape Prosecution

The state charged Steward by bill of information with one count each of aggravated rape, indecent behavior with juveniles and second degree sexual battery. The state later amended the bill to drop the charge of second degree sexual battery, and proceeded to trial before a 12-member jury. After deliberating 4 ½ hours, the jury returned a responsive verdict of guilty of attempted aggravated rape and guilty as charged of indecent behavior with juveniles.

By his first assignment of error, Steward urges the conviction for attempted aggravated rape should be reversed and vacated as the original charge, aggravated rape, was improperly instituted by bill of information rather than by indictment. The state concedes this error, but suggests that Steward’s failure to assert it prior to appeal should constitute a waiver.

The Louisiana Constitution guarantees that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. La. Const. Art. I, § 15. The Code of ^Criminal Procedure likewise provides that prosecution for an offense punishable by death or by life imprisonment shall be instituted by grand jury indictment. La. C. Cr. P. art. 382 A. Aggravated rape carried a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:42D(1). Prosecution for aggravated rape, therefore, could be instituted only by grand jury indictment, not by bill of information. State v. Donahue, 355 So.2d 247 (La. 1978); State v. Ruple, 437 So.2d 873 (La. App. 2 Cir. 1983); State v. Underdonk, 2011-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, writ denied, 2012-0910 (La. 10/8/12), 98 So.3d 848. This is a fatal error which may not be waived by the defendant or cured by a responsive verdict of a lesser included offense which could have been charged by bill of information. State v. Stevenson, 334 So.2d 195 (La. 1976); State v. Ruple, supra; State v. Underdonk, supra.

Under the circumstances, this court is required to vacate the conviction and sentence for attempted aggravated rape. We remand the case to the district court for further proceedings.

Indecent Behavior with Juveniles— Factual Background

In 2013, 8-year-old SG was living with her mother, CG, and her stepfather, Chris Steward, in Natchitoches. In late July of that year, SG told her grandmother that Chris had touched her inappropriately. The grandmother reported this to Natchi-toches police; Sgt. Jessica Williams referred SG to Project Celebration, a child advocacy center in Many. The executive director, Mitzi Harris, arranged a videotaped forensic interview of SG on July 31, 2013. Ms. Harris testified at trial that the person who factually conducted the interview, a Ms. Goins, was a licensed forensic interviewer and that other protocols were observed.

During the interview, SG spontaneously reported that her stepfather’s brother, Angelo Steward, the defendant, had molested her earlier, when he was babysitting her in Coushatta, where the family previously lived. On the video, SG stated that Uncle Angelo “put his pee pee in my pee pee and my butt,” put his “pee pee in my mouth,” “white stuff came out,” “told me to lick it” and then to “go brush my teeth”; he then told her not to tell this to anybody or else he would go to jail. SG also stated that he showed her a cell phone picture of a girl who had “spit on a boy pee pee.” A CD of the interview was played for the jury and placed in evidence.

At trial, in October 2015, SG took the stand, corroborating her Project Celebration interview. She testified that her Uncle Angelo “put his private part in my private part,” “put his private part in my butt,” and “told me to suck his private part and white stuff came out,” all in the living room of the house in Coushatta, and with one or both of them in various stages of undress. She also testified that he showed her, on his phone, “a video of a girl sucking a boy private part.”

CG, the victim’s mother, testified that she and Chris had got married in 2007 and lived in Coushatta until 2012; while they lived there, Angelo Steward often stayed with them and would babysit SG when she and Chris were at work. This ended after her mother (SG’s grandmother) moved in with them, “before Christmas of 2010.”

The state charged Steward with indecent behavior with juveniles for showing SG the video depicting lewd and lascivious conduct “on or about December 12, 2012.” A court-ordered psychosocial report found Steward |4had major depressive disorder, cannabis dependence, specific learning disorder and borderline intelligence; a separate psychological evaluation confirmed these findings but recommended that Steward was competent to proceed to trial. As noted, the jury unanimously found him guilty of attempted aggravated rape and guilty as charged of indecent behavior with juveniles. He filed a motion for post verdict judgment of acquittal, which the district court denied. The court later sentenced him to concurrent terms of 30 years and 5 years at hard labor for the respective offenses. He filed a motion for reconsideration of sentence, which was also denied. He now appeals, raising four assignments of error with respect to the indecent behavior conviction.

Discussion: Improper Joinder

By his second assignment of error, Steward urges his conviction for indecent behavior with juveniles should be reversed as the evidence of the aggravated rape so infected the otherwise properly charged yet jointly tried offense of indecent behavior with juveniles as to require reversal of the conviction. He contends that the two crimes did not arise out of the same transaction and the facts as to each would not have been admissible at separate trials of the other; thus, they should not have been joined for trial. He concludes that the evidence of the aggravated rape resulted in inherent prejudice on the charge of indecent behavior with juveniles.

Two or more offenses may be charged in the same indictment or bill of information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or|B are based on the same act or transactions connected together constituting parts of a common scheme or plan, provided that the offenses joined must be triable by the same mode of trial. La. C. Cr. P. art. 493. In determining whether joinder will be prejudicial, the court should consider whether (1) the jury will be confused by the various counts, (2) the jury will be able to segregate the various charges and evidence, (3) the defendant will be confounded in presenting his various defenses, (4) the crimes charged will be used by the jury to infer a criminal disposition, and (5) especially considering the nature of the charges, the charging of several crimes will make the jury hostile. State v. Deruise, 1998-0541 (La. 4/3/01), 802 So.2d 1224; State v. York, 48,230 (La.App. 2 Cir. 8/7/13), 121 So.3d 1226, writ denied, 2013-2154 (La. 3/21/14), 135 So.3d 617.

The objection of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment or information. La. C. Cr. P. art. 495. Misjoinder is not considered a jurisdictional defect and does not constitute a denial of due process; thus, it may be waived by failure to assert the motion to quash. State v. Mallett, 357 So.2d 1105 (La. 1978); State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, writ denied, 2012-0279 (La. 6/15/12), 90 So.3d 1059.

Steward filed no motion to quash the bill of information on grounds of mis-joinder; the objection is therefore waived. La. C. C. P. art. 495. Moreover, the record does not show he suffered undue prejudice because of the joinder; the offenses involved the same victim and were of a same or similar character. The prosecutor and the district court repeatedly stated during trial that the acts of vaginal, anal and oral sex related to aggravated rape, while the act of showing the victim a “dirty movie” related to indecent |fibehavior with juveniles. The evidence was not complex, and the responsive verdict to the rape charge shows the jury could differentiate the evidence. This assignment of error lacks merit.

Sufficiency of Evidence

By his fifth and sixth assignments of error, Steward urges the evidence at trial was not sufficient to support a conviction of indecent behavior with juveniles. He argues that not only did SG’s age and suggestibility make her testimony suspect, but the state offered no corroborating evidence, such as proof that he even owned a cell phone or that it had videos on it, or proof of his cell phone records. He contends that on her unsupported testimony, the evidence was insufficient.

The state counters that the testimony of one credible witness is sufficient to support the conviction.

The standard of 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bryant, 2012-233 (La. 10/16/12), 101 So.3d 429. This standard, now legislatively embodied in La. C. Or. 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. Robertson, 2014-0945 (La. 6/30/15), 172 So.3d 616; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Kelly, 2015-0484 (La. 6/29/16), 195 So.3d 449; State v. Taylor, 47,400 (La.App. 2 Cir. 7/18/12), 103 So.3d 405, writ denied, 2012-1898 (La. 3/8/13), 109 So.3d 355. 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. Robinson, 2002-1869 (La. 4/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004); State v. Freeman, 50,282 (La.App. 2 Cir. 4/13/16), 194 So.3d 1. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Reed, 2014-1980 (La. 9/7/16), 200 So.3d 291; State v. Kidd, 45,638 (La.App. 2 Cir. 11/3/10), 55 So.3d 90. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence. State v. Joyner, 50,740 (La.App. 2 Cir. 6/22/16), 197 So.3d 724, and citations therein; State v. Johnson, 96-0950 (La.App. 4 Cir. 8/20/97), 706 So.2d 468, writ denied, 98-0617 (La. 7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999). This is equally applicable to the testimony of sexual assault victims. State v. Joyner, supra; State v. Seaton, 47,741 (La.App. 2 Cir. 4/10/13), 112 So.3d 1011, writ denied, 2013-1056 (La. 11/15/13), 125 So.3d 1102.

La. R.S. 14:81 A defines indecent behavior with juveniles, in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: * * *
(2) The transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

IsSG candidly testified that Steward showed her a video on his phone of a woman performing oral sex on a man; this echoed her statements in the Project Celebration interview. Also, she never said it was anyone other than Steward (“Uncle Angelo”) who did this. If believed by the trier of fact, this testimony was sufficient to prove the requisite fact. SG’s mother testified that Steward was babysitting her while the family lived in Coushatta, when no other adults were in the house; this corroborated the time, place and opportunity for the act. The mother also confirmed that the babysitting halted, when the grandmother moved in with them, in late 2010. At that time, SG was six years old; although no witness testified as to Steward’s .age, matters of record (the bill of information and the psychologists’ reports) show that he was born in 1988 and would have been 22 at the time of the offense, thus establishing the age difference.

Despite the absence of scientific evidence, the jury could reasonably-credit the victim’s testimony, corroborated by her forensic interview and the testimony of her mother. This evidence supports every element of the offense of indecent behavior with juveniles, beyond a reasonable doubt. These assignments of error lack merit.

Excessive Sentence

By his final assignment of error, Steward urges the court erred in imposing an unconstitutionally harsh and excessive sentence for indecent behavior with juveniles. He concedes that, the court complied with La. C. Cr. P. art. 894.1 with respect to the sentence for attempted aggravated rape, but argues that the court articulated no factual basis for the five-year sentence for indecent behavior with juveniles.

| ¡¡The state responds that on the facts presented, five years was not excessive for this offense and offender, and not disproportionate to sentences for similar offenses, such as State v. Albarado, 2003-2504 (La.App. 1 Cir. 6/25/04), 878 So.2d 849, writ denied, 2004-2231 (La. 1/28/05), 893 So.2d 70, and State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, writ denied, 2001-2965 (La. 10/14/02), 827 So.2d 414, in which first-felony offenders received seven-year sentences.

Appellate review of sentences for exces-siveness, is a two-pronged analysis. First, the record must show the trial court took into consideration the aggravating and mitigating circumstances of La. C. Cr. P. art. 894.1, but recitation of the statutory factors is not required if the record as a whole reflects adequate consideration. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Wynne, 47,625 (La.App. 2 Cir. 1/16/13), 108 So.3d 864. Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Shoupe, 46,395 (La.App. 2 Cir. 6/22/11), 71 So.3d 508, writ denied, 2011-1634 (La. 1/13/12), 77 So.3d 950. A sentence is deemed 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, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Shoupe, supra.

The sentence range for indecent behavior with juveniles, when the victim is under the age of 13 and the offender is 17 or older, is not less than 2 nor more 'than 25 years at hard labor, including at least two years without benefit of parole, probation or' suspension of sentence. La. R.S. 14:81H(2).

ImAt the sentence hearing, the district court admitted the court-ordered psychosocial evaluation, psychologist’s report and the presentence investigation report. Although the court recited certain sentencing factors (deliberate cruelty to the victim, offender’s knowledge of the victim’s vulnerability, use of position or status to facilitate the offense) in support of the attempted aggravated rape sentence, it is clear from context that the court utilized these same factors in support of the indecent behavior with juveniles sentence. On this record, we find adequate compliance with Art. 894.1 and an adequate factual basis for sentence. Moreover, the lower-end sentence for this offense does not shock our sense of justice. This assignment of error lacks merit.

Errors Patent

Our review of the record pursuant to La. C. Cr. P. art. 920(2) reveals two sentencing errors. First, the district court imposed a sentence under R.S. 14:81H(2) without designating that at least two of the years were without benefits. The sentence is illegally lenient, but because the state has not objected, no action is necessary by this court. State v. Kelly, supra.

Second, the offense of conviction is defined as a sex offense, La. R.S, 15:541(24)(a), requiring sex offender registration and notification under La. R.S. 15:543. Nothing in the record, however, shows that Steward received this information. The matter is therefore remanded to the district court so the requisite notice can be provided to Steward and proof of notice can be placed in the record. State v. Wilson, 50,418 (La.App, 2 Cir. 4/6/16), 189 So.3d 513; State v. Scott, 42,997 (La.App. 2 Cir. 2/13/08), 975 So.2d 782.

| nConclusion

For the reasons expressed, the conviction and sentence for attempted aggravated rape is vacated and the case remanded to the district court for further proceedings. The conviction and sentence for indecent behavior with juveniles is affirmed, but the matter is remanded to the district court for compliance with La. R.S. 15:543.

VACATED IN PART AND REMANDED; AFFIRMED IN PART AND REMANDED.

      . The offense of aggravated rape has since been renamed first degree rape, pursuant to 2015 La. Acts Nos. 184, 256 (eff. August 1, 2015), with no change in the elements of the offense or the penalty. La. R.S. 14:42.

      . Four of his assignments address the aggravated rape conviction, which this court has vacated.