text:
    H&E EQUIPMENT SERVICES, INC. v. SUGAR & POWER INTERNATIONAL, LLC and Jorge H. Campos
    NO. 2016 CA 1070
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 17, 2017

      Carroll Devillier Jr., Danielle L. Borel, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, H&E Equipment Services, Inc.
    Robert W. Fenet, F. Jonathan Rice, Baton Rouge, Louisiana, Attorneys for Defendants/Appellants, Sugar & Power International, LLC and Jorge H. Campos
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

I ¡.The defendants appeal a summary judgment awarding recovery to the plaintiff for damages to a piece of equipment that was the object of a lease between the parties. We affirm.

FACTS AND PROCEDURAL HISTORY

H&E Equipment Services, Inc. and Sugar & Power International, LLC (SPI) entered a written rental agreement whereby H&E leased constniction equipment to SPI. The leased equipment included a large crane that was subsequently damaged in an accident that occurred while SPI was using the equipment during the term of the lease. The cost to repair the damage to the crane totaled $147,376.85. Under the terms of the rental agreement, SPI is responsible for any damage to the equipment, and the cost to repair any such damage is considered additional rent owed by the lessee. When SPI refused to pay the repair costs, H&E filed the present suit against SPI and one of its principals, Jorge H. Campos, who signed a personal guarantee securing any indebtedness of SPI under the lease.

After SPI and Campos filed a general denial, H&E moved for summary judgment for the full amount of the repair costs, plus interest, and attorney fees. In support of the motion, H&E submitted the rental agreement for the crane, a credit application containing the personal guarantee signed by Campos, and affidavits by a representative of H&E who, in addition to confirming the rental agreement and credit application, attested that the crane was damaged during the term of the lease and that the cost to repair the damage was $147,376.85. H&E also submitted an affidavit signed by its counsel attesting to the attorney fees and costs incurred in pursuit of the claim.

In response to the motion, the defendants did not dispute that the crane was damaged in an accident that occurred while SPI was using the equipment during lathe lease. Nor did they offer any evidence contradicting or otherwise contesting the amount of the repair costs. Instead, they argued that the damages to the equipment would have been covered by insurance if an employee of H&E had correctly conveyed certain information about the crane to SPI’s insurance agent. According to an affidavit signed by Campos, SPI’s insurance agent initially provided H&E with a certificate of insurance that misidentified the additional insured (as being someone other than SPI) and the policy period. An employee of H&E then purportedly agreed to communicate directly with the agent to provide the correct information necessary to obtain proper coverage for the crane. Possession of the crane was thereafter transferred to SPI, and it heard nothing more about the matter until after the accident, when it was notified that the claim for damages to the crane was denied because the certificate of insurance did not have the correct serial number and description for the crane. SPI argued that H&E “created the debt” by failing to convey the correct information to the insurance agent to facilitate coverage for the crane.

The trial court granted the motion for summary judgment and, in written reasons, explained:

The plaintiff seeks relief pursuant to the written rental contract between the parties and based upon the law and evidence, there is no genuine issue of material fact in dispute that would deprive the plaintiff of the relief sought in [its] motion for summary judgment ....
The subject of plaintiffs motion is the obligations of the parties pursuant to the terms of the written rental contract and whether the plaintiff or some other third party may or may not be responsible for proper insurance is irrelevant to the determination of contractual liability, which has been proven by the evidence submitted in connection with plaintiffs motion.

The trial court signed a judgment in favor of.H&E awarding damages against SPI and Campos, in solido, in the principal amount of $147,376.85, plus interest | totaling $18,388.04 with juridical interest thereafter, attorney fees in the amount of $10,491.00, and all costs of the proceeding. SPI and Campos appeal.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

Contracts have the effect of law between the parties. La. Civ. Code art. 1983. Although summary judgment is generally not appropriate to establish the intent of contracting parties, where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. Claitor v. Brooks, 13-0178 (La.App. 1 Cir. 12/27/13), 137 So.3d 638, 644-45, writ denied, 14-0198 (La. 4/4/14), 135 So.3d 1182. Under those circumstances, the interpretation of the contract is a matter of j filaw and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La. 5/22/07), 956 So.2d 583, 590; Claitor, 137 So.3d at 644-45.

SPI does not dispute that under the terms of the rental agreement, it is responsible for damage to the crane resulting from any accidents during the term of the lease. In that regard, the agreement provides:

Lessee is responsible for ... all damage other than normal wear and tear. Any damage to the Equipment for any reason will be charged to Lessee .... Lessee will notify Lessor immediately of any accidents, failures, or breakdowns concerning the Equipment. All repairs to the Equipment shall be done by Lessor and Lessee expressly agrees only Lessor is authorized to repair, modify, adjust or service the Equipment during the term of the lease. The cost of all repairs outside of normal wear and tear shall be borne by Lessee, and shall be considered additional rent owed by Lessee.

The undisputed evidence establishes that the crane was damaged in an accident that occurred while SPI was leasing the equipment. The evidence likewise establishes, without contradiction, that the cost to repair the damage was $147,376.85. The foregoing establishes, as a matter of law, that SPI is indebted to H&E for the full amount claimed in the motion.

SPI, however, asserts on appeal that the trial court erred in finding no genuine issues of material fact “concerning H&E’s liability for creating the debt,” According to SPI, H&E bears some responsibility for the indebtedness because of the purported failure of H&E’s employee to provide the correct information to SPI’s insurance agent to secure insurance coverage for the crane. SPI does not contend that this alleged miscommunication was a breach of the rental agreement, as the lease does not require H&E to procure insurance coverage on the crane. Instead, SPI generally alludes to the equitable doctrine of “clean hands” and Louisiana’s law on detrimental reliance as support for its argument that the actions of H&E’s employee preclude a summary judgment concerning SPI’s liability for the repair costs.

| (¡The equitable doctrine of clean hands, sometimes referred to as “unclean hands,” mandates that “[h]e who comes into a court of equity must come with clean hands.” Cimarex Energy Co. v. Mauboules, 09-1170 (La. 4/9/10), 40 So.3d 931, 945 (quoting City of New Orleans v. Levy, 233 La. 844, 865-66, 98 So.2d 210, 218 (1957)). A party has “unclean hands” if he engaged in reprehensible conduct, an illegal or immoral act, or a course of conduct naturally calculated, if not deliberately intended, to cause the very conditions that led the other party to seek equitable relief. See Bossier Parish School Board v. Pioneer Credit Recovery, Inc., 49,525 (La.App. 2 Cir. 1/14/15), 161 So.3d 1007. The law is clear, however, that courts may resort to equity only when “no rule for a particular situation can be derived from legislation or custom.” See La. Civ. Code art. 4. The existence of positive law on the subject precludes the application of equitable concepts. See Wier v. Glassell, 216 La. 828, 848, 44 So.2d 882, 889 (1950); Bossier Parish School Board, 161 So.3d at 1009.

Here, H&E is not seeking a remedy in equity; rather its recovery is based upon the law of contract. Furthermore, the alleged miscommunication concerning the crane’s insurance coverage does not rise to the level of an illegal or immoral act that would support the application of the clean hands doctrine. For these reasons, the doctrine of clean hands does not preclude a summary judgment in favor of H&E.

The doctrine of detrimental reliance, sometimes referred to as promissory or equitable estoppel, is codified in Louisiana Civil Code article 1967, which provides in relevant part:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. |7ReIiance on a gratuitous promise made without required formalities is not reasonable.

Under this article, a promise becomes an enforceable obligation when it is made in a manner that induces the other party to rely on it to his detriment. La. Civ. Code art. 1967, comment (d).

We initially note that SPI did not plead detrimental reliance in its answer, nor has it asserted such a claim in a recon-ventional demand against H&E. SPI merely argues on appeal that it reasonably relied on H&E’s employee to provide SPI’s insurance agent with the necessary information to obtain insurance coverage for the crane. However, SPI’s purported reliance on H&E’s employee to finalize the insurance did not cause the damage to the crane. The damage was caused by an accident that occurred while SPI was using the crane during the lease. That damage, under the terms of the rental agreement, created SPI’s liability for the repair costs.

H&E was not obligated under the lease to obtain insurance for the crane. Any claim of detrimental reliance, which is based upon the purported promise of H&E’s employee to obtain the insurance, arises outside the context of the rental agreement and does not relieve SPI of its obligations under the agreement. While any such insurance, if procured, may have provided an additional source of payment for the repair costs, SPI nevertheless remains liable to H&E under the terms of the rental agreement for the cost to repair the damage that SPI caused to the crane. Regardless of whether the crane was insured or not insured, SPI is contractually liable for the repair costs.

| ^Furthermore, as previously recognized, SPI has not filed a claim against H&E. Unless and until such a claim has been judicially asserted and liquidated, it cannot be used as a credit or set-off against SPI’s liability to H&E under the rental agreement. Under Louisiana Civil Code article 1893, set-off or “compensation” takes place by operation of law “when two persons owe to each other sums of money or quantities of fungible things identical in kind, and these sums or quantities are liquidated and presently due.” A claim is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards. American Bank v. Saxena, 553 So.2d 836, 844 (La. 1989). We express no opinion as to the merits of any detrimental reliance claim that SPI may have against H&E; we merely recognize that no such claim has been filed or liquidated. Therefore, any issues of fact concerning such a claim are not material to this proceeding and do not preclude the granting of summary judgment to H&E.

In its remaining assignments of error, SPI asserts that the trial court erred in holding that the rental agreement was an open account and in awarding attorney fees. While the trial court stated in its reasons for judgment that H&E alleged the defendants owed it money on an open account, the trial court did not expressly hold that the agreement constituted an open account. More importantly, we find that the classification of the transaction as an open account is not necessary to support the award of attorney fees. The rental agreement provides that SPI, as lessee, shall be liable for all costs and fees, including attorney fees, incurred by H&E in pursuit of any amounts due under the agreement. Attorney fees are recoverable when specifically authorized by a contract. See State, Department of Transportation and Development v. Wagner, 10-0050 (La. 5/28/10), 38 So.3d 240, 241; Terrebonne Parish Port Commission v. Eagle Dry Dock & Marine Repairs, L.L.C., 14-0010, 2015 WL 4094331 (La. App. 1 Cir. 7/7/15). Therefore, the trial court did not err in awarding attorney fees to H&E. These assignments of error have no merit.

In its brief filed with this court, H&E requested an award of additional attorney fees for work performed by its counsel on appeal. Louisiana Code Civil Procedure article 2133 requires an appel-lee to answer an appeal whenever it demands damages against the appellant. H&E did not file an answer to this appeal. Although it raised the issue in brief, the brief was not filed within fifteen days of the return day or lodging of the record, as required for an answer. See La. Civ. Code art. 2133A. Therefore, H&E is not entitled to an increase in attorney fees for defending this appeal. See Brown v. Harmony, L.L.C., 05-0747 (La.App. 1 Cir. 3/24/06), 934 So.2d 99, 101-02; Allstate Insurance Company v. Reid, 04-1620 (La.App. 1 Cir. 11/30/05), 934 So.2d 56, 64, writ denied, 06-2099 (La. 11/17/06), 942 So.2d 534.

CONCLUSION

The summary judgment in favor of H&E Equipment Services, Inc. is affirmed. All costs of this appeal are assessed to Sugar & Power International, LLC and Jorge H. Campos.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. Because the present motion was pending on the effective date of the Act, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . The record reflects that SPI filed a separate proceeding against numerous other parties, including employees of H&E and several insurance agencies and insurers. The record also reflects that SPI filed a motion seeking leave to file a supplemental and amending answer in this proceeding, but the trial court denied the motion. On appeal, SPI does not assign any error to the denial of that motion, or otherwise seek review or modification of that order.

      . SPI and Campos also argue that the trial court erred in denying their motion to continue; however, because the appellants did not assign any error to the denial of the continuance, any potential issues related to that ruling are considered abandoned. See Uniform Rules—Courts of Appeal, Rules 1-3 and 2-12.4; Jones v. Black, 13-1889 (La.App. 1 Cir. 5/2/14), 145 So.3d 402, 417 n.3, writ denied, 14-1116 (La. 9/19/14), 148 So.3d 954.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Yvette PERRY v. STATE of Louisiana, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al.
    16-857
    Court of Appeal of Louisiana, Third Circuit.
    March 8, 2017

      Celia M. Williams-Alexander, Louisiana Department of Children and Family Services, Bureau of General Counsel, 627 North Fourth Street, Fourth Floor, Baton Rouge, LA 70802, COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana, Department of Children and Family Services
    Yvette Perry, In Proper Person, 941 Lucille St., Natchitoches, LA 71457, (318) 332-4450, PRO SE
    Court composed of Billy H. Ezell, Shannon J. Gremillion, and David E. Chatelain, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

l,The plaintiff, Yvette Perry, appeals the trial court’s judgment terminating her Supplemental Nutrition Assistance Program (SNAP) benefits. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Perry’s SNAP benefits were terminated by the Louisiana Department of Children and Family Services (DCFS) for three months because she failed to reactivate her Helping Individuals Reach Employment (HIRE) account online. Following a hearing, the administrative law judge (ALJ) found that Perry failed to comply with DCFS’s work registration requirements by June 15, 2015, and affirmed DCFS’s closure of her SNAP ease. Perry petitioned for judicial review in January 2016. Following a May 2016 hearing, the trial court affirmed the ALJ’s decision. Perry now appeals.

ASSIGMENTS OF ERROR

Perry argues the trial court:

1. erred as a matter of law in failing to apply the provisions of La.R.S. 49:964(G)(1) regarding DCFS failure to timely serve adverse notice in compliance to federal regulations,
2. erred as a matter of law because the untimely fair hearing was over ninety (90) days late and failed to conform to federal regulations.
3. erred in [jfailing to address issues of due process violations and
4. erred by failing to reverse the administrative law judge’s decision on the grounds that the decision was arbitrary and an unwarranted exercise of discretion.
5. erred by failing to reinstate SNAP benefits and award damages for civil rights violations.

^DISCUSSION

When reviewing an administrative final decision, the district court functions as an appellate court and reviews the administrative decisions according to La.R.S. 49:964, which regulates the review of administrative procedure. Louisiana Revised Statutes 49:964(G) provides that the district court may reverse or modify the administrative agency’s findings only if the appellant’s rights:

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Thus, the district court determines if substantial rights of the appellant have been prejudiced in one of the above described ways. The ALJ’s findings of fact are due deference by the trial court. CHL Enters., LLC v. State, Dep’t of Revenue, 09-487 (La.App. 3 Cir. 11/4/09), 23 So.3d 1000, writ denied, 09-2613 (La. 2/12/10), 27 So.3d 848. We review the district court’s findings of fact using the manifest error standard of review. Id, Thus, if reasonable support in the record ^exists for the findings, we will not reverse the trial court’s ruling unless it is clearly wrong. Id.; Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

The ALJ found that DCFS proved by a preponderance of the evidence that its closure of Perry’s SNAP case was proper. The ALJ made the following findings of fact:

Yvette P. Perry submitted a redeter-mination application for SNAP benefits April 12, 2015. Ms. Perry was interviewed April 22, 2015, classified as a mandatory work eligible participant and required to register for work with LWC. The Department sent Ms. Perry a Client Contact Letter April 23, 2015, requesting additional verification. A SNAP 4RW Notice was mailed to Ms. Perry May 18, 2015, advising her to complete her work registration with LWC by May 29, 2015.
On June 1, 2015, the Department’s analyst checked the LWC HIRE screen which showed Ms. Perry last exited her HIRE account December 26, 2008. Ms. Perry’s SNAP case was placed in Active Closure status and adverse notice was mailed to her June 2, 2015. The adverse notice advised Ms. Perry that the sanction would be removed if she reactivated her HIRE account by June 15, 2015. The Department’s analyst checked the LWC HIRE screen June 15th and 16th; the LWC HIRE screens continued to show Ms. Perry last exited her HIRE account December 26, 2008. Ms. Perry did not comply by the June 15th deadline and her SNAP case closed. Ms. Perry activated her HIRE account June 19, 2015.

(Footnotes omitted).

The district court adopted the findings of the ALJ and further stated:

Perry was given proper notice to register with the Louisiana Workforce Commission (LWC) and create or reactivate a HIRE account by May 31, 2015. No proof was presented that Yvette P. Perry registered with LWC to reactive[ate] her HIRE account timely. Her account was not reactivated until June 19, 2015.

The following testimony was adduced at the November 2015 telephone hearing before the AL J.

Sharita Thibodeaux, DCFS worker, testified that Perry, as a single, unemployed, and not disabled person, was required to reactivate her HIRE account) 4 online via the Louisiana Workforce Commission (LWC) website. Thibodeaux said that she explained the registration requirement to Perry at the time of her April 22, 2015 redetermination interview to continue her benefits. Thibodeaux further said that an “18-C Notice” (client contact letter) was mailed to Perry on April 23, 2015, which indicated that, by May 31, 2015, she needed to create a HIRE account or reactivate it by conducting a job search; otherwise her case would be sanctioned, and she would not receive her benefits for three months. Another document entitled a “SNAP 4RW” (Work Registration Requirement), was mailed to Perry on May 18, 2015, giving detailed information on how to login to the LWC website and create or reactivate a HIRE account. It further set forth the penalty of termination of benefits for three months if Perry failed to register by May 29, 2015.

Thibodeaux testified that she checked the LWC website on June 1, 2015, noting that Perry’s last login to the website was December 26, 2008. Thibodeaux then discussed various forms used by DCFS, which were submitted into evidence. DCFS placed her case in active closure status and a “13-A Notice” (notice of adverse action) was created on June 1, 2015, and mailed June 2, 2015, according to Thi-bodeaux. This notice gave Perry another chance to activate her account by June 15, 2015, simply by searching for a job on the website and calling DCFS to let them know she had completed this action. The form clearly states that Perry’s SNAP case will be closed on June 15, 2015, if she does not login into the LWC website and reactivate her HIRE account.

Thibodeaux testified that she again checked the LWC website on June 15, 2015; which still revealed a last login date by Perry of December 26, 2008. Thibo-deaux then called Perry, but there was no answer. Thibodeaux’s record^ indicate that Perry called the call center on June 15, 2015. Thibodeaux returned the call on June 16, 2015, but again there was no answer.

On June 17, 2015, Thibodeaux manually mailed an “18-C Notice” along with the screen printouts from the LWC website for the dates of June 1, June 15, and June 16, 2015. Perry called the call center on June 19, 2015. Thibodeaux returned the call the same day at which time Perry requested a fair hearing. Thibodeaux said that Perry submitted a fair hearing request on June 29, 2015.

Perry testified that she registered on May 30, 2015, but that she had no proof of that. She further stated that the June 2, 2015 letter notifying her of the closure date was not mailed until June 10, 2015, and that it was not received by her until June 13, 2015, giving her only one business day to respond. Perry claimed “I have ten days to respond to an adverse letter, so my rights were taken from me,” relying on the Code of Federal Regulations, Title 7, Sub-chapter C, part 273.15. Perry submitted photographs of an envelope with a postmark of June 10, 2016.

Perry was questioned by Marilyn Martin, a supervisor at DCFS, regarding her claim that she logged in on May 30, 2015. Perry said that she “knew from the day that you did my reconsideration hearing [April 2015] on the phone that I had to sign up for work.”

Martin testified that the envelope submitted into evidence by Perry was not the type of envelope used by DCFS and that the notices are automatically generated and mailed by the mail room the day after they are completed by the workers in the computer system. Thibodeaux said that the only letter she personally mailed was the one with the screen printouts from June 1, 15, and 16, 2015. Martin further testified that all mail sent from the office used 48 cents postage rather than the 39 cents shown on the envelope submitted into evidence by |c,Perry. She further said that DCFS does not use two-window envelopes like the type submitted by Perry; she said that the return address of DCFS is pre-printed, and the window is only used for the client’s name. Martin further testified that Perry’s three-month sanction ended in September 2015, at which time Perry could reapply for benefits, but she declined. At the conclusion of the hearing, the ALJ scheduled another hearing to allow the parties to submit additional evidence. The follow-up telephone hearing occurred on December 2, 2015; however, no new issues were raised.

On May 2, 2016, the trial court’s hearing elicited testimony reiterating what had already been stated. Perry, admitting that she knew she had to register by May 30, 2015, again argued that she was not timely notified that she was to register by June 15, 2015. Perry stated:

What I do disagree with is the fact that the letter they’d sent me telling me about the adverse letter that my case was going to be closed was not in compliance with Title 7, under 273, which affords me 10 days from the mailing date to get that letter. They mailed the letter out'on the 10th. And my closing date was, was the 15th. It came over the weekend, on the 13th. So, I had 2 days, and not 10 days as federal statute affords me the opportunity to have. I did not have those 10 days. So, that’s really what this case really came down to.

Perry further stated:

So, I don’t argue ... Judge, I don’t disagree with they had ... they had a right to close my case. But, they didn’t do it according to federal guidelines. As they say, I didn’t do it according to federal guidelines with signing up for work. They did not do it according to federal guidelines in closing my uh ... my case.

The district court reviewed the ALJ’s proceedings and found Perry failed to meet the May 30, 2015 deadline to register with HIRE in order to continue receiving her SNAP benefits. Our review of the record supports this finding. Perry relies on 7 C.F.R. §.273.13 which states:

|7the notice of adverse action shall be considered timely if the advance notice period conforms to that period of time defined by the State agency as an adequate notice ... provided that the period includes at least 10 days from the date the notice mailed to the date upon which the action becomes effective.

Perry’s SNAP benefits were scheduled to cease on May 30, 2015, pursuant to notice sent on April 23, 2015, but she was given extra time by DCFS. There is no dispute that Perry had notice in April that she had to reactive her HIRE account on the LWC website. Accordingly, Perry admitted that she knew she was required to register and failed to do so by the deadline of May 30, 2015. We are unable to determine why Perry did not login to a website and reactivate her account when it is clear she spent a significant amount of time drafting legal documents and appellate briefs. DCFS’s extremely de minimus requirement that one login to a website in order to keep receiving benefits is the most trivial of burdens placed on SNAP recipients.

Although Perry focuses on the June 15, 2015 deadline and steadfastly argues that she only received notice on June 13, 2015, we find that fact immaterial. It is undisputed that Perry knew she had to register by May 30, 2015, received notice of said fact, and failed to do so. The June 15, 2015 deadline was merely a final gratuitous extension by DCFS to give Perry another chance to log in to the website and reactivate her account. Accordingly, there is no manifest error in either the ALJ’s finding or the district court’s finding that DCFS met its burden of proving by a preponderance of the evidence that Perry’s SNAP benefits were properly terminated.

Perry’s second prong of her argument relies on the untimely scheduling of her appeal of DCFS’s termination of her benefits. Perry requested the hearing on 18June 24, 2015, and the hearing was held on November 12, 2015. Perry’s argument appears to be that the delay in the scheduling should retroactively waive her failure to timely register/login to her HIRE account. We find this argument mooted by our above finding. Further, the trial court found Perry’s rights were not prejudiced by the delay, and we find Perry’s arguments in this regard without merit.

CONCLUSION

The judgment of the trial court finding that the plaintiff-appellant, Yvette Perry’s, SNAP benefits were properly terminated by the defendant-appellee, the State of Louisiana, Department of Children and Family Services, is affirmed. All costs of this appeal are assessed to Yvette Perry.

AFFIRMED.

      . SNAP benefits are often referred to as “food stamps.”

      . 7 C.F.R. § 273.15(1) is part of the chapter regulating the food stamp distribution program and requires that state agencies provide a fair hearing within sixty days of the request for a hearing.


author: GRAVOIS, J.

text:
    STATE of Louisiana v. Jessie HAVIES
    NO. 16-KA-635
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      Paul D. Connick, Jr., Terry M. Bou-dreaux, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA

      Holli A. Herrle-Castillo, COUNSEL FOR DEFENDANT/APPELLANT, JESSIE HAVIES
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

| defendant, Jessie Havies, appeals his conviction of one count of aggravated battery, a violation of La. R.S. 14:34. On appeal, he argues that the evidence was insufficient to convict him, asserting that he was acting in self-defense. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On December 22, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jessie Ha-vies, with one count of aggravated battery, in violation of La. R.S. 14:34. Defendant pled not guilty at his arraignment on December 23, 2014.

Trial commenced on April 26, 2016 before a six-person jury, and on April 27, 2016, the jury found defendant guilty as charged. Sentencing was set on May 9, 2016. That day, defendant filed a motion for a new trial, which was denied in open court. After waiving sentencing delays, defendant was sentenced to ten years imprisonment at hard labor. After sentencing, the trial court denied defendant’s motion for reconsideration of his sentence. Defendant then filed a motion for an appeal, which was granted in open court.

Also on May 9, 2016, after defendant’s appeal was granted, the State filed a habitual offender bill of information against defendant, alleging that he was a third felony offender, to which defendant stipulated. The trial judge then vacated defendant’s previously imposed sentence and resen-tenced defendant under the habitual offender statute to twelve years imprisonment at hard labor without the benefit of probation or suspension of sentence.

FACTS

Deputy Brent Baldasaro of the Jefferson Parish Sheriffs Office testified that on August 14, 2014, he was patrolling in the Woodmere Subdivision in Harvey, Louisiana, when he was dispatched to a residence located at 2636 Max Drive in I ¿response to a report of an aggravated battery by cutting. When he arrived at the residence, Deputy Baldasaro encountered a man on the driveway by the name of “Johnny Pearson” who said that he was the victim’s uncle. The man advised Deputy Baldasaro that he did not witness the stabbing, but said that his nephew, Byron Lemon, was injured and was inside of the residence. Deputy Baldasaro observed blood splatter on the driveway, and upon entering the residence, saw more blood splatter in the kitchen. Byron was sitting in the kitchen with a bloody t-shirt pressed to his abdomen. Byron told Deputy Balda-saro that he had been stabbed. Deputy Baldasaro observed that Byron had a puncture wound to his abdomen and EMS was called. When questioned about how he was stabbed, Byron told Deputy Baldasaro that he was walking home when he was approached by “an unidentified black male with dreadlocks wearing black shorts and a white t-shirt” who produced a knife and stabbed him. He also told Deputy Baldasa-ro that he previously had an altercation with the man who stabbed him.

Lorenzo Lemon, the victim’s brother, testified that on August 14, 2014, he asked his mother for some money for cigarettes. She responded that Byron had just walked to the store down the street from their home on Max Drive. Lorenzo started walking to the store to catch up with Byron, when Lorenzo was approached by defendant, who asked him for a cigarette. Lorenzo responded that he did not have any. Additionally, Lorenzo told defendant that he would appreciate it if “he wouldn’t walk through [his] momma’s backyard.” Lorenzo then walked to the store, where he met up with Byron and his friend, a man whom he knew as “Mississippi.” Later, when he, Byron, and “Mississippi” were walking home from the store, defendant “was waiting for [them] to come back.” Byron and defendant then got into an argument. Lorenzo testified that defendant was alone when he had Rencountered him earlier, but had five or six people with him when they encountered him on the way back home from the store. Defendant was antagonizing Byron, saying “come on, let’s fight.”

Lorenzo testified that he pushed his brother to keep him walking and tried to deescalate the situation, but Byron pushed past Lorenzo and “ran up on” defendant. Defendant then pulled out a knife and stabbed Byron in his stomach. Lorenzo described the knife as a “fold-up” type knife and indicated that it was about the length of his hand. He testified that one of defendant’s friends in the crowd gave it to defendant. Also, Lorenzo indicated that after Byron was stabbed, Byron ran away and defendant ran after him, swinging the knife. Lorenzo testified that Byron was not armed with any weapon. After the fight, Lorenzo went back to the house, where his brother was sitting in the kitchen and called 9-1-1. He waited for the police to come, but then he left to find defendant. Later, Lorenzo identified defendant in a photographic lineup as “the one that stabbed [his] brother.”

Deputy Miguel Dukes with the Jefferson Parish Sheriffs Office testified that he responded to a call of an aggravated battery by cutting on August 14, 2014 on Max Drive. When he arrived, he spoke with Deputy Baldasaro, who gave him the description of the possible suspect. Looking for someone matching that description, he canvassed the area and encountered Lorenzo Lemon. Lorenzo pointed to another man, indicating that the man had been involved in the altercation. Specifically, Lorenzo stated that the man, later identified as Terry Antoine, gave defendant the knife used in the stabbing. Deputy Dukes handcuffed both Lorenzo and Mr. Antoine and transported them back to the Detective Bureau. After speaking with them, he was able to develop defendant as the suspect, as they both indicated that he was the one who had stabbed Byron Lemon.

Terry Antoine also testified regarding the events leading up to the stabbing of Byron Lemon on August 14, 2014. He testified that he was outside near 14 defendant, when “three dudes ... had some words with [defendant]” about “going in their yard.” He recalled that one of them, wearing camouflage shorts, was the one that told defendant about the issue with their yard; however, after “a few more words,” they continued walking down the road. Mr. Antoine testified that when the “three dudes” came back, “they had some more words,” but they kept walking, and defendant followed them. At one point, the two men, the one in camouflage shorts and the victim, faced defendant, and Mr. Antoine described that “they got about inches in front of each other, and before you know it, someone was stabbed.” He also testified that nobody “threw a punch.” On cross-examination, Mr. Antoine said that the Lemon brothers were taunting defendant to fight.

Byron Lemon also testified about the events of August 14,2014. He testified that he and his brother Lorenzo were walking to the store down the street, when Lorenzo spotted defendant and told Byron that he was the one that had been cutting through their backyard. On the way back from the store, Byron approached defendant and spoke with him about his displeasure at defendant’s trespassing through his mother’s backyard. He described that they started “fussing,” but then the arguing escalated to “bad-bad.” Byron also said that defendant followed them as they were walking back home; additionally, defendant had about four people with him at that time. He testified that after he and defendant started arguing, it was his intention to fight, so he put up his fists to fight. Byron testified that Lorenzo was behind him telling him not to fight. He described that he put up his fists, but then defendant “just came in, and he just stabbed” him. He testified that he started running, but defendant was chasing him, still armed with the knife. Byron made it back to his house, EMS was called, and he was brought to the hospital, where he had surgery on his liver and remained for a few days.

| (¡Defendant testified and gave his version of the events of August 14, 2014. He denied encountering the Lemon brothers twice that day as they went to and from the store. He testified that he was sitting outside of a friend’s apartment complex by himself when Byron and Lorenzo approached him. He described that Lorenzo was the one that initially spoke to him about the issue of his passing through their mother’s backyard. However, he indicated to them that he was not in fact passing through their mother’s yard, but instead was passing through their neighbor’s yard. Defendant testified that Lorenzo “took off, and he swung” at defendant, and Byron jumped in to help his brother. He related that Lorenzo tried to hit him in the head with a bottle but missed. Defendant testified that he grabbed his work knife that he kept clipped to his belt and stabbed Byron in his stomach. He related that while people may have come outside to witness the fight, he was by himself, with Lorenzo and Byron fighting him. Defendant claimed that the two brothers “jumped him,” that one was trying to hurt him with a bottle, and that the only thing he could use in his defense was his pocket knife. He indicated that he feared for his safety and using his knife was the only way he could escape them.

ASSIGNMENT OF ERROR

Sufficiency of the evidence

In his only assignment of error, defendant argues that the evidence was insufficient to uphold his conviction. He contends that the victim and his brother were the aggressors and that he acted in self-defense, using reasonable force necessary to ward off his attackers. He does not contest that the State proved the essential elements of the offense, nor does he contest that the State proved his identification as the perpetrator, but instead asserts that he proved by a preponderance of the evidence that the stabbing was committed in self-defense. Because defendant acted in self-defense and used reasonable force to defend Lhimself, he asserts that the jury should have returned a verdict of not guilty; therefore, he argues that this Court should reverse his conviction.

The State responds that it presented sufficient evidence to support the charge of aggravated battery. It contends that its presentation of three eyewitnesses and two detectives led the jury to rationally conclude that it met its burden to support defendant’s conviction of aggravated battery. Moreover, while defendant testified and presented his version of the events, the State contends that the jury obviously found issue with the credibility of his testimony and his argument of self-defense.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-0953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La, 1/7/11), 52 So.3d 885.

The directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-0717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. This deference to the fact finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any |7rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-0020 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. State v. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-0085 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-0915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745.

Defendant was convicted of aggravated battery, in violation of La. R.S. 14:34. To support a conviction of aggravated battery, the State must prove: (1) the defendant intentionally used force or violence against the victim; (2) the force or violence was inflicted with a dangerous weapon; and (3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. La. R.S. 14:34; State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La. 5/7/99), 741 So.2d 28. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3).

In the present case, defendant does not challenge the essential statutory elements of the offense, nor does he contest his identification as the perpetrator. Rather, he maintains that he proved by a -preponderance of the evidence that the 18stabbing was done in self-defense, and therefore, the jury should have found him not guilty.

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A). The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21. When self-defense or the defense of another is claimed by the defendant in a non-homicide case, the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. State v. Bannister, 11-602 (La.App. 5 Cir. 2/14/12), 88 So.3d 628, 635, writ denied, 12-628 (La. 6/15/12), 90 So.3d 1060.

In the present case, the jury was presented with conflicting testimony regarding the circumstances of the stabbing. According to Lorenzo and Byron Lemon, while they argued with defendant regarding his alleged trespassing on their mother’s yard, it was defendant who followed them as they were walking away, and who goaded Byron into a fist fight. Moreover, their testimony and Mr. Antoine’s testimony were consistent in that defendant stabbed Byron before he was able to deliver a blow to defendant. Testimony also established that Byron did not have a weapon and was unarmed when defendant used his pocket knife to stab him in the stomach. Also after Byron was stabbed, testimony showed that defendant chased after him, still swinging the knife.

bln contrast to the testimony presented by the State, defendant presented his own version of the events. According to defendant, he was by himself when the Lemon brothers “jumped him,” using a bottle as a weapon. During his testimony, defendant maintained that he was just trying to defend himself from the two brothers and that he stabbed Byron only as a means of protecting himself.

After listening to this conflicting evidence, the jury found defendant guilty of aggravated battery. By returning the guilty verdict, the jury obviously rejected defendant’s account of the events that led up to the stabbing of Byron Lemon. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443; State v Falcon, 06-798 (La.App. 5 Cir. 3/13/07), 956 So.2d 650, 657.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we that find that a rational trier of fact could have determined that defendant did not prove by a preponderance of the evidence that the stabbing was done in self-defense. The jury heard testimony that defendant was the initial aggressor, and could have also concluded that the force he used was unreasonable or unnecessary to stop the offense against him. Accordingly, this assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). No errors patent were found.

CONCLUSION

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

AFFIRMED

      . Deputy Baldasaro later testified that the man who identified himself as the victim’s uncle was not in fact named "Johnny Pearson" and that he did not learn his real name. Later testimony revealed that the man was actually Harry Bridgewater, the victim's uncle.

      . Byron was not with Lorenzo at that time.

      . The testimony at trial established that Lorenzo was wearing camouflage shorts at the time of this incident.

      . The jury was instructed to consider the statutory elements of self-defense.


author: MURPHY, J.

text:
    STATE of Louisiana v. Landis CAMP
    NO. 16-KA-651
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, LANDIS CAMP, Bruce G. Whittaker
    DEFENDANT/APPELLANT, LAN-DIS CAMP, In Proper Person
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   MURPHY, J.

| defendant, Landis Camp, appeals his conviction for possession of cocaine. For the reasons that follow, we affirm defendant’s conviction, amend his sentence in part, and affirm the sentence as amended. We further grant appellate counsel’s motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On November 18, 2015, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant with possession of cocaine, in violation of La. R.S. 40:967.C. Defendant pled not guilty at his arraignment on November 19, 2015. Defendant’s motion to suppress evidence was denied on February 24, 2016, On March 23, 2016, defendant pled guilty as charged after being advised of his Boykin rights, and he was sentenced to five years at hard labor. The State thereafter filed a multiple offender bill of information that alleged defendant was a second felony offender. On March 23, 2016, defendant stipulated to the multiple bill, his original sentence was vacated, and he was resentenced to seven and one-half years at hard labor without benefit of probation or suspension of sentence. Defendant’s sentence was ordered to be served concurrently with his sentence in Twenty-Fourth Judicial District Court case number 15-7241. Defendant was granted an out-of-time appeal on July 28, 2016, and the instant appeal follows.

FACTS

Because defendant’s conviction was the result of a guilty plea, the underlying facts of the matter were not fully developed at trial. However, at the time of defendant’s guilty plea, the State provided the factual basis that on October 29, 2015, defendant violated La. R.S. 40:967.C by knowingly or intentionally possessing a controlled dangerous substance, specifically cocaine, in Jefferson Parish.

\?ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (internal citation omitted).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the |strial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel indicates that defendant pled guilty pursuant to a counseled plea agreement and did not reserve the right to seek review of any of the trial court’s rulings under State v. Crosby. Defense counsel also concludes that the record shows defendant was legally competent in his mental capacity throughout the proceedings. Counsel concludes that the plea bargain was advantageous to defendant, and that the trial court’s colloquy was thorough and complete. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of his brief.

The State asserts that the record shows that prior to defendant’s guilty plea, the district court fully explained to him the rights he was waiving, and defendant haffirmed his understanding. Further, defendant was informed of his right to appeal. The State concludes, therefore, that defendant’s conviction and sentence should be affirmed and that appellate counsel should be allowed to withdraw.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

With respect to both defendant’s guilty plea and his stipulation to the multiple offender bill of information, the record shows that defendant was present, represented by counsel, and properly advised of his rights. Prior to accepting defendant’s guilty plea to possession of cocaine, the trial court entered into a colloquy with defendant wherein the court advised defendant of his BoyMn rights and asked defendant if he understood that he was waiving those rights by pleading guilty. With regard to defendant’s multiple offender rights, the waiver of rights form, in conjunction with the colloquy, indicates that defendant understood that by stipulating to the allegations in the multiple bill, he was giving up his right to plead “not guilty,” his right to a hearing, and his right to remain silent. Defendant was advised of the original and enhanced sentences he would receive if he pled guilty. Defendant’s sentence was in the statutory range for a violation of La. R.S. 40:967.0, as was his sentence as a second felony offender. Furthermore, La. C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Defendant was also properly advised of the time limitations for filing post-conviction relief.

In his pro se brief, defendant asserts that the State failed to present evidence of probable cause at his motion for preliminary examination. As previously noted, defendant did not preserve his right to challenge the trial court’s ruling on this motion pursuant to State v. Crosby, supra, as part of his guilty plea. Nevertheless, |fithe argument lacks merit and is directly contradicted by the record. The minute entry of February 24, 2016, indicates that the State presented evidence at the preliminary examination consisting of a DVD of “Dash and Body Camera Footage,” as well as the testimony of Officer Leroy Victoriano of the Westwego Police Department.

In his supplemental brief, defendant also makes general non-specific references to other potential complaints. All specifications or assignments of error must be briefed pursuant to Uniform Rules, Courts of Appeal, Rule 2-12.4, and the appellate court may consider abandoned any specification or assignment of error that has not been briefed. State v. Caulfield, 10-769 (La.App. 5 Cir. 5/24/11), 67 So.3d 600, 608, writ denied, 11-1395 (La. 3/30/12), 85 So.3d 107. Defendant has effectively failed to brief these potential grievances, and thus, we consider them abandoned.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence and grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals one error in this case which requires correction.

When sentencing defendant as a second felony offender, the trial court ordered him to pay “the fines and fees set forth on the felony schedule of fines and fees.” However, the habitual offender statute, La. R.S. 15:529.1, does not authorize |fithe imposition of a fine. State v. Dickerson, 584 So.2d 1140 (La. 1991). Accordingly, we amend defendant’s enhanced sentence to delete the fine, and as amended, affirm defendant’s habitual offender sentence. State v. Mendez, 13-909 (La.App. 5 Cir. 4/23/14), 140 So.3d 284, 293, writ denied, 14-1085 (La. 1/9/15), 157 So.3d 596.

DECREE

Accordingly, for the reasons provided herein, defendant’s conviction is affirmed and his sentence is affirmed as amended. Appellate counsel’s motion to withdraw as attorney of record is hereby granted.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED

      . Boykin v. Alabama, 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).

      . Defendant’s appeal from the convictions and sentences in that case is also presently pending before this Court.

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      .The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . 338 So.2d 584 (La. 1976).

      . Nevertheless, defendant's guilty plea waived his right to challenge his competency on appeal. See State v. Lyons, 13-180, p. 17 (La.App. 5 Cir. 10/9/13), 128 So.3d 407, 415.

      , Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed- and that he had until January 13, 2017, to file a pro se supplemental brief. Defendant filed pro se briefs on January 24, 2017, and January 27, 2017.

      . Boykin v. Alabama, supra.


author: CHEHARDY, C.J.

text:
    BISSO AND MILLER, LLC v. Charles E. MARSALA
    NO. 16-CA-585
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, BISSO AND MILLER, LLC, Stanley C. Kottemann, Jr.
    DEFENDANT/APPELLANT, CHARLES E. MARSALA, In Proper Person
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   CHEHARDY, C.J.

11 Defendant, Charles E. Marsala, appeals a May 27,2016 judgment against him in favor of plaintiff, Bisso and Miller, LLC, in the amount of $5,430 for unpaid legal fees. For the reasons that follow, we affirm this judgment.

FACTS AND PROCEDURAL HISTORY

Sometime in late 2013, Mr. Marsala was seeking legal services for assistance in recouping losses from a failed business venture when he came into contact with Bisso and Miller, LLC, (“B & M”). Years earlier, Mr. Marsala had invested in a restaurant franchise with a close friend, Jerry Mayo, and an acquaintance, Jay Lanners. Following the venture’s failure, Mr. Marsala sued Mayo and Lanners for fraud, breach of fiduciary duty, and contribution; he also sued the company to recover an unspecified amount due under a promissory note. The matter was ultimately litigated in federal court in 2007. Although a partial summary judgment was rendered against Mr. Marsala, his claims of breach of fiduciary duty still remained viable. See Marsala v. Mayo, 2007 WL 3245434, 2007 U.S. Dist. LEXIS 81550 (E.D. La. Nov. 2, 2007). But soon thereafter, Mr. Marsala advised the court that the parties had settled and he moved to dismiss his remaining claims without prejudice. The matter was dismissed without prejudice to the parties’ rights to move to reopen the case if the settlement was not consummated within a reasonable time. See Marsala v. Mayo, 2013 U.S. Dist. LEXIS 186455 (E.D. La. Nov. 8, 2013). More than five years later, Mr. Marsala moved to reopen the case, which the district court denied as untimely and which the United States Fifth Circuit Court of Appeals affirmed. See Marsala v. Mayo, 551 Fed.Appx. 181 (5th Cir. 2014).

It was around this time and under these circumstances that Mr. Marsala came into contact with B & M. On December 18, 2013, Mr. Marsala submitted a general description of his case to LegalMatch, a lawyer referral service. |aLegalMatch distributes these case submissions to attorneys, who can respond to the prospective client if they are interested in the case. On December 20, 2013, Regel Bisso of B & M responded to Mr. Marsala with the following message: “You are talking about a lot of money and events that occurred years ago. I cannot say whether you have a valid cause of action, but I am willing to meet with you to discuss it. Please give me a call and we can schedule an appointment.” This message also included such details as Mr. Bisso’s hourly rate, $200, and that he requires a $500 retainer fee before beginning work. Mr. Marsala replied that he wanted to meet with Mr. Bisso to discuss the matter further. After this discussion, Mr. Marsala retained Mr. Bisso, who began work on the case.

Both Mr. Bisso and his law partner, Robert Miller, worked on Mr. Marsala’s case. Mr. Bisso described the case as having two phases. The first was determining whether the case could be reopened in federal court. After reviewing and. researching the matter, it was determined it could not. The second phase of Mr. Marsala’s case, Mr. Bisso explained, was the filing of new claims against old and new defendants. After reviewing and researching this matter, it was also determined that Mr. Marsala did not have any viable courses of action.

The investigation and research of the two phases of Mr. Marsala’s case spanned many months. During this time, Mr. Marsala, who is not a lawyer, was conducting his own independent research and was relentlessly suggesting new legal theories to the attorneys, who explored each theory to no avail. Finally, it was in or around July of 2014, after exploring all options, including those suggested by Mr. Marsala, that Mr. Bisso and Mr. Miller advised Mr. Marsala of their opinion that he had no viable cause of action, and recommended that he proceed no further with the case. But Mr. Marsala was adamant in proceeding, prompting B & M to withdraw as counsel of record, rather than file, in their opinion, frivolous pleadings. Mr. Marsala proceeded pro se thereafter, but wished to | ¡¡continue receiving legal advice from B & M, to which they assented, so long as they were not official counsel of record. Mr. Marsala agreed and continued to be billed by B & M.

Mr. Bisso explained that his law office operates on billable hours where monthly invoices are submitted to clients that itemize the services provided, the date of the services, the amount of time for each service, and the fees charged for the services. According to the invoices introduced into evidence, B & M rendered services for Mr. Marsala between January 2014 and January 2015. During this period, Mr. Marsala submitted two payments: $4,000 on February 20, 2014 and $1,700 on July 8, 2014. The invoices reflect that services were last rendered for Mr. Marsala on January 2, 2015, bringing his outstanding balance to $5,430. He was invoiced on February 2, 2015 for this balance, and received his last invoice on May 8, 2015, reflecting his balance due as $5,430. Thereafter, on May 21, 2015, B & M filed suit on an open account in the First Parish Court of Jefferson, seeking to recover this unpaid balance.

At the conclusion of a bench trial on April 26,2016, the court ruled in favor of B & M. In the written judgment that followed on May 27, 2016, the court rendered judgment in favor of B & M and against Mr. Marsala in the amount of $5,430, with legal interest from date of judicial demand, reasonable attorney’s fees of 25% of the principal and interest, and all costs of the proceedings. In its reasons for judgment, the court explained its ruling:

Plaintiffs presented credible evidence that they provided legal advice and services that justified their claim for the unpaid balance on defendant’s invoices. Both Regal [sic] Bisso and Robert Miller testified that the billed time entries on the unpaid invoices represented work performed on behalf of defendant, Mr. Marsala.
Defendant’s testimony that the services he received were not adequate was not supported by any independent legal expert. Further, the eventual outcome or resolution of the matters for which defendant sought legal counsel has no direct bearing on the legal services provided to defendant.

J^DISCUSSION

In this appeal, Mr. Marsala appears to seek review of the trial court’s May 27, 2016 judgment. His pro se brief, however, obfuscates the sole issue before this Court: whether the trial court erred in concluding that B & M succeeded in its action on an open account under La. R.S. 9:2781. Mr. Marsala’s brief presents a lengthy and desultory discussion of various inapposite matters with scant argument on the ruling at issue. Yet, at various points throughout his brief, Mr. Marsala asserts that the trial court erred in concluding B & M presented a preponderance of the evidence in support of its claim. We construe this argument as his briefed assignment of error.

Pursuant to La. R.S. 9:2781, an “open account” is any account for which a part or all of the balance is past due, whether it reflects one or more transactions and whether at the time of contracting the parties expected future transactions. The statute expressly provides that an “open account” includes debts incurred for legal services. La. R.S. 9:2781(D).

In order to sustain an action on an open account, a creditor bears the burden of proving the demand by a preponderance of the evidence. Ochsner Clinic Found. v. Arguello, 11-326 (La.App. 5 Cir. 11/29/11), 80 So.3d 622, 625. In order to prove an open account, the creditor must first prove the account by showing that it was kept in the course of business and by introducing supporting testimony regarding its accuracy. Id. Once the creditor has established a prima facie case, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Id. The amount of an open account is a question of fact which may not be disturbed on appeal absent manifest error. Chrysler Fin. Co., L.L.C. v. Gene Ducote Auto., L.L.C., 04-1223 (La.App. 5 Cir. 3/1/05), 900 So.2d 119, 121.

Under this standard of review, a court of appeal may not set aside a finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). This manifest error-clearly wrong standard of review is based upon a recognition of the trier-of-fact’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, as well as the proper allocation of trial and appellate functions between the respective courts, Prejeant v. Gray Ins. Co., 15-87 (La.App. 5 Cir. 9/23/15), 176 So.3d 704, 708-09. Therefore, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. at 709. In order to reverse a finding of fact, the appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding, and (2) determine that the record establishes the finding is clearly wrong or manifestly erroneous. Id.

Here, B & M met its initial burden of proving the account was kept in the ordinary course of business with testimony and documentation introduced into evidence. Mr. Bisso testified that his law office operates on the basis of billable hours at an hourly rate of $200, invoicing clients on a monthly basis. To corroborate this, he introduced the invoices billing Mr. Marsala, which detailed the services provided, the date of the services, the amount of time for each service, and the fees charged for those services. Mr. Marsala even acknowledged that “the math is correct” on the invoices. Mr. Bisso and Mr. Miller also offered testimony identifying the invoices and explaining the fees reflected on the invoices were incurred for services rendered in their representation of Mr. Marsala.

liAVe find Mr. Bisso’s and Mr. Miller’s testimony with the supporting documentation was sufficient to establish a prima facie case of an open account and to shift the burden to Mr. Marsala to prove the inaccuracy of the account or to prove that he was entitled to certain credits. In his-effort to discharge this burden, Mr. Marsala offered circuitous testimony ranging from unsupported assertions that B & M did not perform the services reflected on the invoices to complaints about counsel’s performance. Nevertheless, Mr. Marsala notably conceded that B & M rendered legal services to him: “I’m not saying that they didn’t spend time on the case.” He merely found the amount of time spent on the case objectionable: “six months is just unacceptable.” Other than conclusory assertions, Mr. Marsala offered no evidence to refute Mr. Bisso’s and Mr. Miller’s testimony or to demonstrate that the invoices were inaccurate.

After considering the testimony of Mr. Bisso and Mr. Miller, with the corroborating documentation, and the unsubstantiated assertions of Mr. Marsala, the trial court found that B & M had established by a preponderance of the evidence that Mr. Marsala maintained an open account with B <& M with an unpaid balance of $5,430. Upon our review of the testimony and evidence presented at trial, we conclude that the record contains a reasonable factual basis for this finding and does not establish that it was clearly wrong. The trial court did not manifestly err in its judgment of May 27,2016.

DECREE

For the foregoing reasons, we affirm the May 27, 2016 judgment of the First Parish Court of Jefferson.

AFFIRMED

      . "All assignments of error and issues for review must be briefed." Rule 2-12.4(B)(4), Uniform Rules of Louisiana Courts of Appeal.


text:
    STATE of Louisiana v. Freddy ORDONEZ
    NO. 16-KA-619
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, J. Philip Prescott, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT, FREDDY ORDONEZ, Bruce G. Whittaker
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   CHEHARDY, C.J.

| defendant, Freddy Ordonez, appeals his conviction and sentence for sexual battery. For the reasons that follow, we affirm defendant’s conviction, amend his sentence, affirm the sentence as amended, and remand the matter.

PROCEDURAL HISTORY

On January 22, 2007, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant with one count of sexual battery of a juvenile, a violation of La. R.S. 14:43.1. The State, unable to locate the victim, dismissed the prosecution on February 9, 2009. The State reinstated the prosecution on July 23, 2013, which defendant challenged as a violation of his right to a speedy trial. The district court agreed and quashed the bill of information on January 21, 2014. On the State’s appeal, however, this Court reversed and remanded the matter. See State v. Ordonez, 14-186 (La.App. 5 Cir. 9/24/14), 151 So.3d 94.

Following a two-day jury trial, a six-person jury returned a verdict of guilty as charged on January 22, 2015. Defendant filed a post-verdict judgment of acquittal that the court denied. On April 20, 2015, defendant was sentenced to four years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, with credit for time served. Defendant was further ordered to serve one year of probation following completion of his four-year sentence, with the condition of undergoing mental health counseling for sexual abuse. On June 30, 2016, defendant moved for an out-of-time appeal, which the district court granted on July 6,2016.

FACTS

In May of 2006, M.K., the victim in this case, was eleven years old and resided in LaPlace, Louisiana. Like any eleven-year-old girl, M.K. attended |aschool, played sports, listened to music, and hung out with her friends. She especially spent a lot of time with her “best friend,” Stephanie Ordonez, the daughter of defendant. M.K. was at Stephanie’s house every day after school, on the weekends, and spent the night there “all the time.” It was “like [her] second home.”

M.K. testified that on the afternoon of May 17, 2006, while Stephanie was at dance class with her mother, M.K. was studying in Stephanie’s bedroom. Defendant was in the house along with Stephanie’s aunt and Stephanie’s three-yéar-old niece. As M.K. lay on the bed reviewing her note cards, defendant was coming in and out of the room, returning to a computer in the corner. At some point he stopped, stood near M.K., staring, and told her, ‘You have beautiful legs,” He then sat down on the bed next to her and began touching her legs. Without her permission, he moved his hand underneath the skort of her school uniform and touched her vagina with his fingers. M.K. “freaked out,” ran downstairs, and locked herself in the room with the three-year-old. Shortly thereafter, she exited the room and asked for the phone. As defendant handed her the phone, he told her, “Don’t tell anybody because I could get in trouble.” M.K. assured him she wouldn’t and called her mother, who told her that her father was coming to pick her up. Moments later, Stephanie returned home and M.K. told her what had happened. Stephanie, in turn, told her mother, who confronted defendant. Defendant dropped to his knees apologizing to M.K.

When M.K’s father arrived to pick her up, she ran out the door, “bawling” and told her father what had happened. He called the police. A patrol officer responded and transported defendant to the detective bureau, where Lieutenant Freddie Young of the St. John the Baptist Parish Sheriffs Office interviewed him. Before speaking with defendant, Lt. Young spoke with M.K. in the presence of her |sfather. According to Lt. Young, M.K. explained that Stephanie’s mother and Stephanie were at Wal-Mart while she was alone in Stephanie’s bedroom. M.K. recounted to the officer that defendant entered the room, did something on the computer, and then remarked that she had pretty legs, sat down next to her, put his hand under her school uniform, and touched her vagina. M.K. further explained to Lt. Young that she told Stephanie what had happened as soon as she returned home and that Stephanie told her mom, who confronted defendant. She stated that defendant got on his knees, apologized, and begged her not to tell anyone.

Lieutenant Young then interviewed defendant, who was advised of his Miranda rights and agreed to answer questions. According to Lt. Young, defendant explained that he was in Stephanie’s bedroom trying to use the computer when he noticed that the room was warm and that M.K’s forehead was red. He touched her forehead, touched her leg, turned on the fan, and left the room.

Stephanie, her mother, and her aunt all testified at trial that the air conditioning did not work properly and that the house, especially upstairs, was often uncomfortably warm. They all stated that it was hot in the house on the afternoon of May 17, 2006.

Stephanie testified that when she arrived back home with her mother from dance class and Wal-Mart that afternoon, she found M.K. playing with her niece and joined them. Initially, M.K, was not crying, but after about ten minutes, Stephanie noticed M.K. tearing up. M.K. told Stephanie that defendant had tried to touch her thighs, which caused Stephanie to cry and tell her mother.

Similarly, Norvia Ordonez, Stephanie’s mother, testified that on the afternoon of May 17, 2006, she left home to pick up Stephanie from dance school and to stop at Wal-Mart. She returned approximately twenty or thirty minutes later to find M.K. playing with Ms. Ordonez’s three-year-old granddaughter. Ms. UOrdonez did not observe M.K. to be upset or crying. A short time later, however, both Stephanie and M.K. came to her crying. Stephanie relayed what M.K. had told her, prompting Ms. Ordonez to become “hysterical” and confront defendant.

On the other hand, Stephanie’s aunt, Lydia Valasquez, testified that she did not see M.K. crying at any point that day. Ms. Valasquez recounted that she went into Stephanie’s bedroom that afternoon, M.K. was on the bed, it was hot, and defendant was reaching up to the ceiling fan. M.K. then went downstairs to play with the three-year-old. M.K. seemed normal to Ms. Valasquez.

Defendant took the stand and testified in his defense. He explained that when he arrived home on the afternoon of May 17, 2006, his sister-in-law, his granddaughter, and M.K. were in the house. His wife had just left to pick up Stephanie. He checked his mail, and had received a bill that he intended to pay online. He wanted to print the receipt so he went upstairs to use the printer in Stephanie’s bedroom. M.K. was on the bed. While trying to get the printer to work, defendant noticed that M.K. was “very, very red” and that the room was “very hot.” Defendant touched M.K.’s forehead and her knee and told her, “You have pretty red legs.” He stood on the bed to turn on the ceiling fan and was stepping down when his sister-in-law came into the room. He left the room and proceeded downstairs. Soon thereafter his wife and daughter returned home. He then heard his wife screaming and was confronted with the allegation that he had inappropriately touched M.K. He denied it.

In rebuttal, M.K. testified that that she did not feel hot that day and that defendant did not touch her forehead or her knee to check her temperature.

DISCUSSION

In defendant’s sole assignment of error on appeal, he argues that the evidence was insufficient to support his conviction of sexual battery.

| ¿¡Sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 17, writ denied, 11-282 (La. 6/17/11), 63 So.3d 1039. Here, defendant filed a motion for post-verdict judgment of acquittal in which he argued the evidence was insufficient to support the guilty verdict. The district court denied this motion. Accordingly, this assignment of error is properly before us on appeal.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885.

This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. This deference to the fact finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational Rtrier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ, denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745. Moreover, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. State v. Bruce, 14-877 (La.App. 5 Cir. 3/25/15), 169 So.3d 671, 675, writ denied, 15-833 (La. 3/4/16), 187 So.3d 1007.

In the instant case, defendant was charged with and convicted of sexual battery. At the time of the offense in May 2006, La. R.S. 14:43.1 defined sexual battery, in pertinent part, as:

A... .the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]

M.K. testified that she was eleven years old on May 17, 2006 and the record reflects defendant’s date of birth is May 30, 1959, making him 46 years old at the 17time of the offense. M.K. testified that defendant touched her vagina with his fingers on May 17, 2006.

Defendant argues that M.K.’s testimony was insufficient to support his conviction because it was uncorroborated, was contradicted by other testimonial evidence, and was internally inconsistent. We are not persuaded by this argument.

First, the testimony of a victim need not be corroborated to support a conviction. Indeed, it is well-settled that a victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Bruce, supra. Second, testimony need not be uncontradicted to support a conviction. The resolution of conflicting or contradictory testimony is one of the fundamental tasks for the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See Bailey, supra. And third, the alleged inconsistencies in M.K.’s version of events do not render her testimony insufficient to support defendant’s conviction.

Defendant contends that M.K.’s version of events is inconsistent with the evidence that: (1) defendant allowed M.K. to use the phone to contact her mother after the incident, (2) an adult female (ie., Lydia Yalasquez) was present in the residence at the time of the incident, (3) defendant was aware M.K.’s parents would soon arrive to pick her up, and (4) defendant was aware his wife and daughter would soon arrive home.

These four points are not irreconcilably inconsistent with M.K’s testimony that defendant touched her vagina. They may be reasons to doubt her version of events, and so bear upon her credibility. But the jury made its credibility determination when it returned a guilty verdict, evidently finding M.K.’s version more credible than defendant’s. And this Court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Accordingly, we conclude) s that M.K’s testimony that defendant touched her vagina with his fingers was sufficient tó convince a rational trier of fact beyond a reasonable doubt that defendant was guilty of sexual battery. See State v. Gonzalez, 15-26 (La.App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233, writ denied, 15-1771 (La. 9/23/16), 2016 La. LEXIS 1955 (finding the victim’s testimony that the defendant touched her vagina with his fingers was sufficient to support the defendant’s sexual battery conviction); State v. Perkins, 11-162 (La.App. 5 Cir. 12/28/11), 83 So.3d 250, 257 (same).

This assignment of error is without merit. -

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Upon review, we find a portion of defendant’s sentence is illegal.

Under the law in éffect' at the time of the offense, a person convicted of sexual battery was not eligible for probation: La. R.S. 14:43.1 imposed a penalty of “imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” (Emphasis added). Accordingly, defendant’s one year of probation following completion of his four-year sentence at hard labor is illegal.

, Pursuant to our authority in La. C.Cr.P. art. 882(A), we amend defendant’s sentence to delete this one year of probation. In all other respects, we affirm defendant’s sentence. We remand the case for the district court to amend the commitment to correctly reflect the sentence as amended and affirmed herein. Furthermore,, the Clerk of Court for the 40th Judicial District Court is ordered to transmit the original of the amended commitment to the officer in charge of theR institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, defendant’s conviction is affirmed. Defendant’s sentence is amended and affirmed as, amended. The case is remanded for the district court to amend the commitment to correctly reflect the sentence as amended and affirmed herein.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; REMANDED

      . The victim’s initials, as well as the initials of the victim’s family members, are used under the authority of La. R.S. 46:1844(W)(3) to conceal the identity of a crime victim who is a minor or a victim of a sex offense.

      . M.K. explained that a skort is a pair of shorts that resembles a skirt.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . La. C.Cr.P. art. 882(A) provides: “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”


author: Judge Madeleine M. Landrieu

text:
    Rachael JOHNSON v. M. Suzanne “Suzy” MONTERO
    NO. 2017-C-0274
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2017

      Scott R. Bickford, Spencer R. Doody, MARTZELL, BICKFORD AND CENTO-LA, 338 Lafayette Street, New Orleans, LA 70130, COUNSEL FOR RELATOR
    James M. Williams, CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM, & HAYES, LLP, One Galleria Blvd., Suite 1100, Metairie, LA 70001, COUNSEL FOR RESPONDENT
    (Court composed of Judge Madeleine M. Landrieu, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Madeleine M. Landrieu

|/The relator, Ms. Montero, seeks review of the trial court’s March 24, 2017 granting of a preliminary injunction enjoining her from ‘publishing, posting, distributing or any way making the false statements currently contained in her campaign materials.” For the reasons that follow, we grant the writ application and vacate the trial court’s judgment.

The granting of a preliminary injunction is reviewable by appeal. See La. C.C.P. art. 3612B. This court rarely, if ever, considers a writ application taken from a final, appealable judgment. However, given the exigent circumstances posed by the pending election in this matter, we exercise our discretionary, supervisory jurisdiction to consider the issue at this time even though we would also have appellate jurisdiction. As this court has stated:

Although the granting of the preliminary injunction is an appealable judgment, it does not preclude a litigant’s timely and proper resort to our discretionary plenary supervisory power. See La. Const, art. V, § 10; La. C.C.P. art. 2201.

First Bank & Trust v. Duwell, 011-0104, p. 3, n.5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18. We note that, in this matter, which involved a single hearing in the district court, the entire record that would be before us on appeal has been submitted with the writ application. Additionally, the writ application was filed within the fifteen-day time period allowed for taking an appeal of a preliminary injunction. See La. C.C.P. art. 3612; First Bank & Trust v. Duwell, supra.

The trial court’s injunction operates as a prior restraint on political speech. Therefore, the injunction must not only comply with the applicable Louisiana statutes, but also must not infringe upon the constitutional protection afforded to such speech. In State v. Burgess, 543 So.2d 1332 (La. 1989), the Louisiana Supreme Court held:

The standard for constitutionally protected false speech in the context of public figures was given in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In that case, the Court held the Constitution prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct “unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Although this standard was applied in the context of civil defamation suits, it is clear the standard defines the parameters of protected speech involving public figures.

Id. at 1335 (Emphasis supplied).

Here, there are two applicable statutes. La. 42:1130.4 provides:

No candidate in an election shall, with the intent to mislead the voters, distribute or cause to be distributed any oral, visual, or written material containing any statement which he knows makes a false statement about another candidate in the election.

La. R.S. 18:1463C(1) provides:

|3C.(1) No person shall cause to be distributed, or transmitted, any oral, visual, or written material containing any statement which he knows or should be reasonably expected to know makes a false statement about a candidate for election in a primary or general election or about a proposition to be submitted to the voters.

The trial court’s judgment merely enjoins “false” statements, without specifying what those statements are. In that respect the judgment is overly broad and vague. Moreover, the trial court made no finding of knowing falsehood—either that the relator knew the statements to be false, should have reasonably been expected to know, or distributed them with the intent to mislead the voters—which are elements necessary for a violation of these statutes.

More importantly, the transcript of the hearing reflects that the trial court never considered whether any statements in relator’s campaign materials were made with malice, the absence of which renders any prohibition of them to be unconstitutional. In Guste v. Connick, 515 So.2d 436, 437-8 (La. 1987), the Louisiana Supreme Court stated:

In a case of this kind, courts do not concern themselves with the truth or validity of the publication. An injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on first amendment rights. Organization For A Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).

In Guste, the trial court enjoined a candidate from airing a television advertisement which the court found to be false. The appellate court denied writs, and the Louisiana Supreme Court reversed, vacating the injunction as unconstitutional because there was no finding of malice. The Supreme Court held:

|4In the instant case, without passing upon the truth or validity of the TV advertisement, we And the preliminary injunction violated Mr. Connick’s rights of freedom of speech under the first amendment. Mr. Guste did not carry his heavy burden of showing justification for the imposition of such a restraint. We have discovered no cases nor have any been pointed out to us where an injunction has been issued restraining the publication of statements made during a political campaign regarding the official conduct of a public officer on the ground that the statement was not wholly true or was presented in a deceptive manner.

The trial court in the case before us did not consider whether Ms. Montero acted with malice. Absent a finding of malice, the injunction cannot withstand constitutional scrutiny.

For these reasons, we grant the writ application and vacate the preliminary injunction. The relator’s motion seeking a stay of the trial court’s judgment is denied as moot.

WRIT GRANTED; JUDGMENT VACATED; STAY DENIED

      . La. Const. Art. V, § 10(a) provides, in pertinent part, that a court of appeal "has supervisory jurisdiction over cases which arise within its circuit.” La. C.C.P. art. 2201 provides: "Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”

      . In compliance with our order, the trial court issued a per curiam in which the statements are identified. However, it is well-settled that a trial court’s “oral or written reasons for judgment form no part of the judgment and that appellate courts review judgments, not reasons for judgment.” Wooley v. Lucksinger, 09-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572.