text:
    STATE of Louisiana IN the INTEREST OF D.L.P.
    NO. 2017 KJ 1148
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Hillar C. Moore, III, District Attorney, Dale R. Lee, Otha Curtis Nelson, Jr., Assistant District Attorneys, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, State of Louisiana
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, Attorney for Defendant-Appellant, D.L.P.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

The juvenile, D.L.P., was charged by juvenile petition with armed robbery, a violation of La. R.S. 14:64 (count 2); and simple battery, a violation of La. R.S. 14:35 (count 3). She denied the allegations and, following an adjudication hearing, was adjudicated a delinquent for the charged offenses. For count 2, the judge ordered the juvenile to be committed to the custody of the Department of Public Safety and Corrections for two years without benefit of parole, probation, or suspension of sentence; for count 3, the judge ordered the juvenile to be committed to the custody of the Department of Public Safety and Corrections for six months. The judge ordered the terms of commitment to run concurrently. D.L.P. now appeals, designating one assignment of error.

FACTS

On December 9, 2016, M.W. got off his school bus and walked to his home on Wright Drive in Baton Rouge. He did not have his house keys, so he called his mother, then sat under his carport and waited. Two people, whom M.W. had never seen, approached M.W., whom M.W. later identified as North Banks Middle School students D.C. and D.L.P. D.C. asked to use M.W.'s cell phone. M.W. said he would not give D.C. his phone but he would make the call for him (D.C.). Twice, D.C. gave numbers to M.W., which he called but no one answered. After a few more words were exchanged, D.C. pulled a gun and told M.W. to give him his phone. When M.W. refused, D.L.P. attacked him. D.L.P. hit M.W. on the head, knocking him to the ground. D.L.P. then grabbed the phone from M.W.'s hand, and D.C. and D.L.P. ran off. Later that same day, M.W. identified the two people that robbed him by viewing pictures of them on their Instagram accounts.

D.L.P. did not testify.

ASSIGNMENT OF ERROR

In her sole assignment of error, D.L.P. argues there was insufficient evidence to adjudicate her delinquent for the offenses of armed robbery and simple battery. Specifically, D.L.P. contends the State failed to prove her identity as one of the perpetrators.

In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch. Code art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T. , 95-2187 (La. App. 1st Cir. 6/28/96), 677 So.2d 1071, 1074.

In State in Interest of Giangrosso , 385 So.2d 471, 476 (La. App. 1st Cir. 1980), affirmed, 395 So.2d 709 (La. 1981), we stated:

In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974; see State in Interest of Batiste , 367 So.2d 784 (La. 1979). We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt.

Thereafter, in State in Interest of Giangrosso , 395 So.2d 709, 714 (La. 1981), the supreme court affirmed this court, concluding that a rational trier of fact could have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State in Interest of Batiste , 367 So.2d 784 (La. 1979). See In Interest of L.C. , 96-2511 (La. App. 1st Cir. 6/20/97), 696 So.2d 668, 669-70.

Accordingly, on appeal the standard of review for the sufficiency of evidence, enunciated in Jackson v. Virginia , i.e., viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt, is applicable to delinquency cases. See La. Code Crim. P. art. 821. Where the issue is the defendant's identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. See State v. Jones , 94-1098 (La. App. 1st Cir. 6/23/95), 658 So.2d 307, 311, writ denied, 95-2280 (La. 1/12/96), 666 So.2d 320. Positive identification by only one witness may be sufficient to support the defendant's conviction. State v. Andrews , 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 453. Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M. , 97-0628 (La. App. 1st Cir. 11/7/97), 704 So.2d 786, 789-90.

D.L.P. argues in brief that the State failed to prove her identity as one of the perpetrators of the armed robbery and her identity as the perpetrator, in particular, of the simple battery. According to D.L.P., M.W.'s identification of her was not based on his observations at the time of the armed robbery and battery, but rather on information he obtained through social media after the crimes. D.L.P. further points out that M.W. thought it was two males who had robbed him; when M.W. saw a posting on Instagram, however, he "changed his mind" about the identification of one of the perpetrators. D.L.P. suggests that M.W.'s identification at the adjudication hearing was based on the Instagram posting rather than on his memory and observations at the time of the robbery.

D.L.P.'s assertions notwithstanding, M.W.'s identification of her as one of the perpetrators was, indeed, based on his observations of her at the time of the robbery. It is true that M.W. told the first deputy at the scene that two black males had robbed him; it is also true that M.W. had never before seen the two people that robbed him. These two observations, however, do not change the fact that M.W. got what appeared to be a very good view of D.L.P. as she robbed and hit him.

Moments before the armed robbery, the juvenile and/or D.C. (co-defendant) told M.W. that J.M. (whom M.W. had known) had just stepped into M.W.'s house to retrieve something that he (J.M.) had left there yesterday. M.W. said that this was not true. The juvenile and D.C. then turned away and whispered to each other. When they turned back toward M.W., D.C. pulled a gun from his jacket, pointed the gun at M.W.'s chest, and told him to give them his phone. When M.W. refused to give them his phone, the juvenile attacked M.W. and tried to get his phone. M.W. pushed the juvenile off of him. The juvenile then told D.C., "Shoot him, shoot him." The juvenile again attacked M.W. She hit M.W. on the back of the head, knocking him to the ground. The juvenile took M.W.'s phone from his hand, and the two perpetrators ran off.

Detective Steven Gallo, with the East Baton Rouge Sheriff's Office, was assigned M.W.'s case. Based on initial information and the report of the deputy (who had arrived at M. W.'s home shortly after the robbery), Detective Gallo thought he was looking for two males. After M.W. and his family, however, began investigating on their own, M.W. realized the juvenile was a female.

M.W. also knew J.M. (whom M.W. had gone to school with), the person mentioned just prior to the robbery as having gone inside M.W.'s home. Very shortly after being robbed, M.W. called J.M., who appeared to identify the perpetrators. Because of hearsay issues, M.W. was not permitted to testify as to what J.M. told him. M.W.'s father called J.M.'s mother, who in turn spoke to her son about the robbery. According to M.W.'s father, who testified at the adjudication hearing, J.M. provided "all the information, their names, their social media, and everything."

Based on what J.M. had told M.W., M.W. pulled up the juvenile's Instagram account. This was only a couple of hours after the robbery. When he saw a picture of the juvenile on that account, M.W. recognized her as one of the people who had robbed him; and he recognized the juvenile, particularly, as the one who had attacked and struck him, and taken his phone. M.W. then identified the juvenile at the adjudication hearing as the person he saw on the Instagram account and as the person who robbed him.

During the robbery, D.C. was wearing a North Banks Middle School (North Banks) jacket. M.W. mentioned someone he knew at that school, and D.C. responded that he knew that person and that they had a class together. When Detective Gallo showed M.W. pictures of all the male students at North Banks, M.W. told the detective that D.C. looked like the person who robbed him. The juvenile also attended North Banks. M.W. also looked at D.C.'s Instagram account, where he saw a picture of D.C. and the juvenile together.

While M.W. got a clear look at the juvenile's face during the robbery, he saw only part of D.C.'s face because he had his jacket hood on, and the hood was cinched around his face via the drawstring. M.W. testified at the adjudication hearing on direct examination that, while the juvenile also had a hood on, the hood was not tied up; as such, he "could see her full face." Later, on cross-examination, M.W. testified that during the robbery, the juvenile's "face was fully shown." Detective Gallo testified that he made initial contact with the juvenile at her school and that, in his opinion, it appeared the juvenile could be mistaken for a male.

On the same day the phone was stolen, M.W.'s mother used a "Find My Phone" app on her own iPhone to see if they could track the location of M.W.'s phone. At about 6:30 that same night, the app indicated that M.W.'s phone was at the home address of the juvenile. M.W.'s phone was never found.

For all of the foregoing reasons, it is clear the State proved that D.L.P. was a principal to the robbery of M.W. and, further, D.L.P. was the person who attacked M.W. and took his phone. The trier of fact, in this case, the juvenile court, is charged with making credibility determinations. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State ex rel. T.C. , 2009-1669 (La. App. 4th Cir. 2/16/11), 60 So.3d 1260, 1263. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Id.See Tibbs v. Florida , 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. T.C. , 60 So.3d at 1263. A trier of fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. Id.See State v. Vessell , 450 So.2d 938, 943 (La. 1984). In the absence of internal contradictions and irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trial court, is sufficient to support a conviction. State ex rel. D.J. , 2000-1592 (La. App. 5th Cir. 3/28/01), 783 So.2d 558, 562.

In adjudicating D.L.P. delinquent, the judge, as the rational trier of fact, clearly accepted the testimony of the State's witnesses and found that the essential elements of armed robbery and simple battery were proven beyond a reasonable doubt, and that it was proven beyond a reasonable doubt that D.L.P. was a principal to both of those offenses. After a thorough review of the record, we find the evidence supports the judge's adjudications. Additionally, after undertaking the mandated review of the law and facts in a juvenile proceeding, we cannot conclude that the judge's findings were manifestly erroneous or clearly wrong in its adjudications of delinquency based on the commission of armed robbery and simple battery.

The assignment of error is without merit.

ADJUDICATIONS AND DISPOSITIONS AFFIRMED.

      Count 1 was armed robbery of a different victim. When that victim did not show up at the adjudication hearing, the State dismissed that count. The court nevertheless referred to the remaining counts as counts 2 and 3, respectively.

      The victim is referred to by his initials. See La. R.S. 46:1844(W).

      In the absence of specific procedures provided by the Louisiana Children's Code, the court shall proceed in accordance with the Louisiana Code of Criminal Procedure. See La. Ch. Code art. 803.


source: Caselaw Access Project

author: McDONALD, J.

license: Public Domain

text:
    STATE of Louisiana v. Charles Douglas CHANDLER II
    2017 KA 0962
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Richard Allen Spears, New Iberia, Louisiana, Attorney for Defendant/Appellant Charles Douglas Chandler II
    M. Bofill Duhe, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, Franklin, Louisiana, Attorneys for Appellee State of Louisiana
    BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
   McDONALD, J.

The defendant, Charles Douglas Chandler II, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1 (count one), and by bill of information with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1 (count two). The defendant pled not guilty on both counts. A jury later found him guilty as charged on both counts. On count one, the trial court granted the defendant's motion for post verdict judgment of acquittal and modified the conviction to guilty of the responsive offense of manslaughter, a violation of LSA-R.S. 14:31. The trial court granted the State's motion to delay sentencing pending appeal. The State appealed, assigning error to the trial court's ruling on the motion for post verdict judgment of acquittal. In an unpublished opinion, this Court reversed the trial court's ruling modifying the verdict on count one, reinstated the original conviction on count one, and remanded for sentencing on both convictions. The Supreme Court denied the defendant's writ application. State v. Chandler , 15-1493 (La. App. 1 Cir. 2/24/16), 2016 WL 759165 (unpublished), writ denied , 16-0561 (La. 3/31/17), 217 So.3d 359 ( Chandler I ) .

On remand, the trial court sentenced the defendant to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on count one, and to 18 years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on count two. The defendant now appeals, assigning error to the sufficiency of evidence on count one. For the following reasons, we affirm the conviction on count one and the sentences on both counts.

STATEMENT OF FACTS

On April 28, 2013, between 11:00 p.m. and midnight, three gunshots were fired on Columbus Avenue in Bayou Vista, Louisiana. The gunshots were heard by bystanders and area residents, including Gwendolyn Landry Hidalgo, who called 911 immediately after hearing the gunshots. Officers of the St. Mary Parish Sheriff's Office (SMPSO) responded to the scene of the shooting at 1220 Columbus Avenue. Fifteen to twenty people were at the scene when the police arrived, and the scene was in disarray. SMPSO Patrol Lieutenant Jeremy Green arrived around 10 to 15 minutes after the gunshots were reported. He secured the scene and summoned medical personnel for Wade Blackburn, Jr., the victim. When the police arrived, the victim was lying unresponsive in the carport. Efforts to revive the victim were unsuccessful, and he was pronounced dead at the scene, having suffered a fatal contact gunshot wound to his abdomen. Lt. Green located a spent shell casing at the scene. According to Tammy James, the owner of the residence where the shooting occurred, the defendant showed up at her residence that night looking for the victim, and the three shots were fired after the defendant and the victim began tussling over the gun. Fragments from the first gunshot grazed Ms. James's stomach, fragments from the second shot hit her daughter, and the third shot struck the victim. The defendant fled from the scene after the shots were fired.

Unbeknownst to Craig Corbett Nini, sometime after the shooting, the defendant hid in the backseat of Mr. Nini's truck, which was parked in Bayou Vista at the time. After Mr. Nini started his truck and pulled off, the defendant made his presence known and instructed Mr. Nini to continue driving. Tyler Emmanuel Brewer, who had ridden with Mr. Nini to Bayou Vista, was sitting outside and saw the defendant when he ran and jumped into the back of Mr. Nini's truck. Moments later, Mr. Brewer observed the police pursuing the defendant and told them that he was in the back of the truck. Shortly after Mr. Nini drove off, the police swarmed the vehicle and apprehended the defendant.

While executing a search warrant for the defendant's residence at 149 Sun Road, the police located the gun used in the shooting, a Glock 30 .45 caliber semi-automatic pistol, under the TV stand in the defendant's bedroom. When recovered, the gun had several rounds in the magazine and a spent cartridge in the chamber.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the jury's verdict on count one is not rational. He argues that the witnesses' testimony establishes that the fatal shooting occurred during a struggle for the murder weapon and is inconclusive as to what happened when the three shots were fired. Thus, the defendant contends that the record lacks evidence that he intended to kill the victim. He does not contest the conviction on count two. In response, the State, in pertinent part, argues that the defendant cannot raise sufficiency of the evidence on the issue of his specific intent to kill or inflict serious bodily harm, since that issue was disposed of in the previous appeal of this case, Chandler I. As discussed below, we find that the State's response has merit.

The law of the case doctrine embodies the rule that an appellate court ordinarily will not reconsider its own rulings on a subsequent appeal in the same case. The reasons for the law of the case doctrine are to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and, to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Barringer v. Robertson , 15-0698 (La. App. 1 Cir. 12/2/15), 216 So.3d 919, 924-25, writ denied , 16-0010 (La. 2/26/16), 187 So.3d 1004 ; see Day v. Campbell-Grosjean Roofing & Sheet Metal Corp. , 260 La. 325, 330, 256 So.2d 105, 107 (1971). The doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. State v. Cox , 11-0789 (La. App. 1 Cir. 5/23/12), 2012 WL 1900539 at *3 (unpublished), writ denied , 12-1675 (La. 2/22/13), 108 So.3d 763. The law of the case doctrine is not an inflexible law, thus appellate courts are not absolutely bound by it and may exercise discretion in its application. The doctrine is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Further, the doctrine applies only against those who were parties to the case when the earlier decision was rendered and who thus have had their day in court. Barringer , 216 So.3d at 925.

In Chandler I , this Court thoroughly analyzed the issue raised by the defendant in this appeal and there is no new evidence to warrant reconsideration. In Chandler I , the State contended that the jury made a reasonable factual inference that the defendant had specific intent to kill in this case and the trial court should not have disturbed that finding. 2016 WL 759165 at *2. The defendant filed a brief in response wherein he addressed the State's appeal.

In Chandler I , this Court stated:

Although the witnesses testified that there was a struggle when the victim tried to prevent the shooting, the witnesses were consistent that the defendant had his finger on the trigger before the shots were fired. Further, the bulk of the testimony supported a finding that the shooting was intentional and that the defendant was in control of the weapon when he fired three shots. 2016 WL 759165 at *8.

The testimony was consistent that the victim and the defendant argued over the defendant pointing the gun at the victim, who tried to push the gun away, and that the defendant maintained possession of the gun. The Chandler I court concluded:

The jury's apparent inference of specific intent to kill was reasonable based on the circumstances presented. Based on our careful review, we are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder. [Footnote omitted.] Id.

The Chandler I court then reversed the trial court's ruling modifying the verdict on count one to manslaughter, reinstated the original conviction of second degree murder, and remanded the case for sentencing based on the jury's verdict. Id. The Louisiana Supreme Court denied the defendant's writ application seeking further review. Based on our review of the record, as well as the applicable law, there is no indication this Court committed palpable error in Chandler I , nor is there any indication that if the law of the case were applied in this instance, manifest injustice would occur. Thus, we decline to reverse our previous ruling in Chandler I.

PATENT ERROR REVIEW

This Court routinely reviews the record for patent errors pursuant to LSA-C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record here, we have found no reversible errors. However, we note that in sentencing the defendant on the conviction of possession of a firearm or carrying a concealed weapon by a convicted felon, count two, the trial judge did not impose the mandatory fine of not less than $1,000 nor more than $5,000. See LSA-R.S. 14:95.1B. The trial court's failure to impose the fine certainly is not inherently prejudicial to the defendant. As such, we decline to correct the illegally lenient sentence. See State v. Price , 05-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-125(en banc) , writ denied , 07-0130 (La. 2/22/08), 976 So.2d 1277.

CONVICTION ON COUNT ONE AFFIRMED; SENTENCES ON BOTH COUNTS AFFIRMED.

      An additional shell casing was located at the scene. The parties entered into a joint stipulation regarding the testimony of Mark Kurowski, an expert in forensic firearms analysis. The parties stipulated that, if called to testify, Mr. Kurowski would testify that the shell casings in evidence and the bullet removed from the victim's body had the same class characteristics; that he could identify the shell casings as having been fired from the semi-automatic pistol; however, that it was not possible to identify or eliminate the bullet as having been fired from the semi-automatic pistol.


author: WELCH, J.

text:
    STATE of Louisiana v. Desmond Herbert COUSIN
    NUMBER 2017 KA 1135
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Warren L. Montgomery, D.A., Matthew Caplan, A.D.A., Covington, LA, Attorneys for Appellee State of Louisiana
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, Attorney for Appellant/Defendant-Desmond Herbert Cousin
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

The defendant, Desmond Herbert Cousin, was charged by bill of information with bank fraud, a violation of La. R.S. 14:71.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The defendant was sentenced to six years imprisonment at hard labor. The State filed a habitual offender bill of information. The defendant admitted to the allegations in the bill, and the trial court adjudicated him a third-felony habitual offender. The trial court vacated the six-year sentence and resentenced the defendant to eight years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating three assignments of error. For the following reasons, we affirm the conviction, we vacate the habitual offender adjudication and enhanced sentence, we reinstate the original six-year sentence and we remand to the trial court.

FACTS

On September 22, 2016, the defendant went to the Capital One Bank in Mandeville on La. Highway 22. He handed a check to teller Geraldine Johnson and asked her to cash it. The check was ostensibly a company check from Select Stone, LLC, a wholesale distributor of home improvement items including stone slabs, marble, and granite. The check was made payable to the defendant for the amount of $1,929.00. The defendant was not a customer with the bank. Geraldine took the defendant's identification and noticed that he had a Berwick, Louisiana home address. She also noticed there was something a "little bit off" with the check, such as the different sized fonts between the defendant's typed name and the amount of the check in typed words.

Geraldine took the defendant's I.D. and the check, told the defendant she needed to verify the check, and went to her supervisor's office. At that point, the defendant asked for his identification and the check back. Geraldine assured the defendant that she would be back shortly. Geraldine pulled the account number of Select Stone, LLC and called Melissa Capello, the company's office manager. Geraldine gave Melissa all of the information, and Melissa confirmed that the check the defendant gave her was not a Select Stone, LLC check, the defendant was not one of their employees, and she had never heard of him. Melissa told Geraldine it was a fraudulent check and to call the police, which she did. While Geraldine was on the phone with the 911 dispatch, the defendant again attempted to get his I.D. and check back. When Geraldine did not return these items, the defendant left without them, and was apprehended by the police just outside of the bank.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In his first and second assignments of error, the defendant argues the evidence was insufficient to support the conviction for bank fraud. Specifically, the defendant contends the State failed to prove he had the intent to commit bank fraud. As such, the trial court erred in denying the motion for postverdict judgment of acquittal.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. C.Cr.P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall , 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in La. C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno , 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

Under La. R.S. 14:71.1, bank fraud is defined in pertinent part as follows:

A. Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
(1) To defraud a financial institution.
(2) To obtain any of the monies, funds, credits, assets, securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises.

Bank fraud is a specific intent crime. See State v. Cunningham , 46,664 (La. App. 2nd Cir. 11/2/11), 77 So.3d 477, 481. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan , 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham , 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue , 484 So.2d 889, 892 (La. App. 1st Cir. 1986).

In State v. Forbs, 2007-1007 (La. App. 4th Cir. 4/23/08), 983 So.2d 954, 957, the court noted that La. R.S. 14:71.1 is similar to the federal crime of bank fraud, 18 U.S.C. § 1344, and that the intent necessary to sustain a conviction under § 1344 is the intent to deceive a bank in order to obtain money or other property. Further, specific intent is established "by the existence of a scheme which was 'reasonably calculated to deceive persons of ordinary prudence and comprehension,' and this intention is shown by examining the scheme itself." Id. ,citing United States v. Green , 745 F.2d 1205, 1207 (9th Cir. 1984), cert. denied, 474 U.S. 925, 106 S.Ct. 259, 88 L.Ed.2d 266 (1985) ; see also Cunningham , 77 So.3d at 481.

In his brief, the defendant notes the fact that the check was fraudulent was not challenged. Instead, he argues the State failed to prove he intentionally defrauded the bank or that he knew the check was stolen. The defendant suggests the State presented no evidence of "a scheme or artifice to defraud" because he presented only a single check to the bank. The defendant suggests that he mistakenly believed that the check was legitimately issued to him. The defendant further suggests that his "strange" or "odd" behavior after Geraldine took his check and I.D. to further investigate the matter did not prove he had the intent to defraud the bank. Finally, the defendant suggests that the defense offered a hypothesis of innocence that raised reasonable doubt; that is, according to the defendant, the defendant had done some work for a man named Travis Davis, and Travis was the person who had paid the defendant with that fraudulent check.

The check the defendant tried to cash was made out to him for the amount of $1,929.00. The drawer of the check is Select Stone, LLC. On the "PAY TO THE ORDER OF" line, the defendant's name is typed in block letters, that is, "DESMOND H COUSIN." On the right side of the check, there is a dollar sign next to a rectangular box. Inside that box is the numerical amount to be paid. The check is signed by "Melissa K Capella." The color of the fraudulent check is a light purple.

Geraldine Johnson, the teller at Capital One Bank who handled the defendant's check, testified about some of the issues with the check that caused her concern. She noted that the font of the defendant's blocked name was different from the font used for the written numerical amount ("ONE-THOUSAND NINE-HUNDRED-TWENTY-NINE"). She noticed that the defendant's name, as well as his name and address at the bottom of the check (also in all caps), was in bold font as compared to the written numerical amount. Geraldine also discovered the defendant did not have an account with Capital One Bank. Because of this, she needed two forms of identification. Geraldine became further alarmed when she realized that Select Stone, LLC was a Baton Rouge business, yet the defendant's identification indicated that he was from Berwick, Louisiana. Geraldine explained at trial that based on her training, it was a "red flag" that the defendant's personal address, the location of the payor bank (Mandeville), and the place of business writing the check, were in three different locations.

Melissa Capello, the office manager and bookkeeper for Select Stone, LLC, testified that her company has only two locations, in Baton Rouge and Broussard. Her company had a total of fifteen employees and she knew them all. Other than an out-of-state employee who lived in New Jersey, Melissa was the only person authorized to sign company checks. She also noted that they do not handwrite checks; rather all the company checks are computer-generated and printed out. When Geraldine contacted Melissa to ask her about the check the defendant was attempting to cash, Melissa attempted to look up this check by check number, the payee, and the amount. Melissa had never heard of the defendant, as an employee or otherwise. Her company had never issued a check to the defendant; nor did she have a record of that check number or amount. Melissa also noted at trial the names of the payees on their business checks are not in all caps. She also noted that on the fraudulent check, the routing number was below the bottom line of the check, whereas the routing number on an authentic business check is above the bottom line of the check. Melissa pointed out that on her business checks, there is no box for the numerical amount after the dollar sign, as there was on the fraudulent check. Melissa also testified that her last name ends in an "O"; on the fraudulent check, however, her name is spelled "Capella." Finally, Melissa testified that she was the only person who ordered checks, and that she would not order purple checks.

When Geraldine became alarmed that the defendant's check might be fraudulent, she took the check and the defendant's I.D., told the defendant she would be right back, and started toward the office of her line supervisor. The defendant told her that he wanted his check and I.D. back. She kept the items, told the defendant it would be "okay," and went to her supervisor's office. She called Melissa Capello, who confirmed the check was fraudulent; Melissa then told Geraldine to call the police. Geraldine testified that, while she was in the office, she saw the defendant with a cell phone by his ear and "pacing back-and-forth." Geraldine called 911 and provided a description of the defendant to the dispatcher. The defendant came to the office Geraldine was in, knocked on the window, and told her he had to leave and that he wanted his check and I.D. back. Geraldine kept the check and I.D. while her boss tried to stall the defendant and keep him in the bank until the police arrived. Moments later, the defendant left the bank without his check and I.D. Geraldine testified that while she was still on the phone with 911, the dispatcher told her that the police had "nabbed" the defendant outside.

Officer Stephen Tarzia, with the Mandeville Police Department, was one of the officers who assisted in apprehending the defendant. Officer Tarzia testified at trial that after reading the defendant his Miranda rights, the defendant, he inquired about the defendant's vehicle because the police would have to secure the vehicle. The defendant informed Officer Tarzia that there was no vehicle because he had hitch-hiked to Mandeville from Slidell.

Based on the foregoing, any rational juror could have found the defendant had the specific intent to defraud the bank. The defendant had no account with Capital One Bank in Mandeville and nevertheless hitch-hiked from Slidell to cash a check with an out-of-place routing number and the misspelled name of the person authorized to sign the check. Based on the defendant's behavior inside the bank, it could have been reasonably inferred that the defendant knew he was trying to cash a fraudulent check and that the employees at the bank had discovered the fraudulence. When Geraldine took the check and I.D. to verify the information, the defendant immediately wanted the check and I.D. returned to him. When asked if this request concerned her, Geraldine testified, "Yes because usually people want their money, you know if it's a good check." When Geraldine went to the office, it was clear the defendant was becoming more agitated when he approached the office, knocked on the office window, and again demanded the return of the check and I.D. Finally, without ever having gotten his I.D. back, the defendant left the bank.

The defendant in brief suggests that he worked for someone named Travis Davis, that Travis paid him with this check, and that, as such, the defendant could not have known that the check was fraudulent. This hypothesis, however, was not established in any way at trial. The defendant did not testify and no other evidence, in any form, was offered to suggest that the defendant worked for a "Travis Davis" and was given a check by Travis. The only time during the State's case-in-chief that the name "Travis Davis" was mentioned was through questioning by defense counsel and in closing argument. Specifically, during the cross-examination of Melissa Capello, the following exchange took place:

Q. You don't know this man? You don't know Mr. Cousin?
A. No. I do not.
Q. And you don't know Travis Davis?
A. No. I do not.
Q. And your partner, the other manager, doesn't know Travis Davis?
A. No, sir.
Q. How did Travis, let's just for the sake of argument, let's just say there is a Travis Davis out there, okay. And that Travis Davis got hold of one of these checks. How would he do that?
A. There are mail boxes. There is any number of ways that-

During the cross-examination of Geraldine Johnson, the following exchange took place:

Q. Do you guys have a detail police officer there at the bank, ever?
A. No. We do not.
Q. Did you overhear any conversation of Mr. Cousin and the police? Did you overhear specifically, did you ever hear Mr. Cousin telling the police, hey, I got this check from a guy named Doug, or Gary or Greg or Travis, I got this check from a guy and there he goes in a red dually?
A. No, but I mean if it is written to him why would he get it from someone else.
Q. We will figure that out. That's for them to decide....

In the defendant's case-in-chief, defense counsel attempted to establish a connection between Travis Davis and the defendant to no avail. The defendant's sole witness was Warren Fitzgerald, a former police officer who presently worked for the St. Tammany Parish District Attorney's Office as an Investigator. Fitzgerald's testimony established that defense counsel had given the prosecutor in this case the phone number of Travis Davis a week prior to trial. Fitzgerald called the number, which was a Georgia phone number. The man who answered the call identified himself as Travis Davis. According to Fitzgerald, Travis told him that he had never heard of Select Stone, LLC and that he (Travis) had no idea who the defendant was.

In closing argument, defense counsel stated the following regarding Travis Davis:

Another reasonable hypothesis is one that we have tried to bring out that the man did work, was paid for that work with that check by Travis Davis, who of course knows nothing about Desmond, knows nothing about him.
The phone number, the phone number that he was on, the person he was on the phone with on September 22nd in the bank, that's where that number came from that the District Attorney's Investigator looked up, Travis Davis, oh, I have never heard of him.

Accordingly, there was no evidence introduced at trial that showed the defendant worked for Travis Davis and was paid with a Select Stone, LLC company check. In any event, whatever hypotheses of innocence the defense managed to get across at trial, the jury rejected it. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten , 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence that he tried to cash a check that he had worked for, and knew nothing about the check being a fake or forgery.

The jury heard the testimony, viewed the evidence presented at trial, and found the defendant guilty as charged. See Id. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of bank fraud. See State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam ). Accordingly, the trial court did not err in denying the motion for postverdict judgment of acquittal.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues that the trial court erred in adjudicating him a habitual offender. Specifically, the defendant contends the habitual sentencing was in error because he was denied the right to be tried, or to validly waive his right to be tried, as to the truth and validity of the charges pled in the habitual offender bill. The defendant further contends the trial court failed to inform him of his right to remain silent.

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony, the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction. La. R.S. 15:529.1(D)(1)(a). After a habitual offender bill of information is filed, the court in which the subsequent conviction was had shall cause the person to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law, and shall also require the offender to say whether the allegations are true. Id. The statute further implicitly provides that the court should advise the defendant of his right to remain silent. State v. Griffin , 525 So.2d 705, 706 (La. App. 1st Cir. 1988).

The defendant argues in brief that even if a defendant stipulates to the charges in a habitual offender bill of information, the trial court is still nevertheless required to advise the defendant of his statutory rights and his right to remain silent. Despite the defendant stipulating to the charges and admitting to the allegations, he contends in brief that his rights were violated because at the habitual offender hearing, the State did not offer any evidence to support the charges. The defendant further contends that at the hearing, the trial court "shunned" the defendant's objections, informing him it would be sentencing him "regardless of his protestations" based upon the representations of his attorney and the right of the State to bring the charges.

After the defendant was sentenced for the instant conviction of bank fraud, the State informed the trial court that it had filed a multiple offender bill of information, alleging the defendant was a third-felony habitual offender. Defense counsel, David Craig, waived the reading of the habitual offender bill of information and denied the charges. At the habitual offender hearing, Craig informed the trial court that he had reviewed the multiple offender bill of information with his client (the defendant). Craig noted the bill listed his present conviction of bank fraud and two previous convictions, one for possession of a Schedule II drug and one for aggravated burglary (two counts). Craig informed the trial court that the defendant admitted to the allegations; he further stated that the defendant is "in fact one in the same person that pled guilty to those prior crimes and was found guilty here." The trial court adjudicated the defendant a third-felony habitual offender, but deferred sentencing to a later date.

The defendant then expressed, it appears, some confusion about how the sentencing worked, particularly in light of the six-year sentence he had just received for the bank fraud conviction. The trial court explained that the present proceeding was based on a habitual offender bill of information and that it would be setting a sentencing date. The following exchange then took place between the defendant and the trial court:

BY MR. COUSIN:
Right, but see that's the thing, like far as the these [sic] two charge[s], yes, I pled guilty to them because of the fact that my counsel doing the same thing I am hearing here. You got to take this deal or they do this that and the other. You know. I am like, I'm trying to see what I am against. I understand, yea, I went to trial, they found me guilty. You know what I am saying.
BY THE COURT:
We will deal with this another date. We are coming back on May 31st. We will deal with the sentencing on the multiple bill. That's where we are.

Based on the foregoing, we find the record indicates the defendant was merely confused about how sentencing worked under a habitual offender scheme and that he was, despite the defendant's assertion in brief, not shunned in any way by the trial court. We also find that despite the defendant's assertions, he was made aware of the specific allegations in the habitual offender bill of information and of his right to a formal hearing, as required under La. R.S. 15:529.1(D)(1)(a). That is, at the habitual offender hearing, defendant's own counsel (Craig), listed in open court and in the defendant's presence, the defendant's prior convictions. At sentencing for the underlying conviction, prior to the habitual offender hearing, after defense counsel waived the reading of the habitual offender bill of information, the trial court stated: "With that we will set a hearing. It needs to be at least fifteen (15) days from today's date."

We agree with the defendant, however, that he was never informed by the trial court of his right to remain silent. The State in brief concedes this point and agrees it is reversible error. Generally, the failure of the trial court to advise a defendant of his right to a hearing and his right to remain silent is not considered reversible error where the State has offered competent evidence of the defendant's status as a habitual offender at a hearing. State v. Bell , 2003-217 (La. App. 5th Cir. 5/28/03), 848 So.2d 87, 90. When the defendant's guilt, however, is proven by his own stipulation or admission without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. Id. The language of the Habitual Offender Law must be strictly construed. In this regard, an implicit and integral aspect of the requirements of La. R.S. 15:529.1 is the court's duty to inform the defendant of his right to remain silent. State v. Gonsoulin , 2003-2473 (La. App. 1st Cir. 6/25/04), 886 So.2d 499, 501 (en banc ), writ denied, 2004-1917 (La. 12/10/04), 888 So.2d 835.

In this case, while the defendant stipulated to his prior convictions and his identity, the State offered no competent evidence of the defendant's status as a habitual offender at the hearing. The State, in fact, offered no evidence at all. Accordingly, there was no proof introduced of the defendant's identity as to the alleged predicate offenses. The admission by the defendant without prior advisement of his right to remain silent and in the absence of any documentary proof by the State requires reversal of the habitual offender finding. See State v. Delaney , 42,990 (La. App. 2nd Cir. 2/13/08), 975 So.2d 789, 799-800. Cf. State v. Cook , 2011-2223 (La. 3/23/12), 82 So.3d 1239 (per curiam ) (where the Louisiana Supreme Court found that the trial court adjudicated the defendant as a habitual offender on the basis of not only his stipulation, but also the documentary evidence introduced by the State at the hearing).

For the foregoing reasons, the defendant's habitual offender adjudication and enhanced sentence are vacated. The defendant's original sentence of six years at hard labor is reinstated, and the matter is remanded to the trial court for further proceedings.

CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND ENHANCED SENTENCE VACATED, AND ORIGINAL SENTENCE REINSTATED; REMANDED TO TRIAL COURT.

      The defendant has prior convictions for possession of a Schedule II drug and aggravated burglary.

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

      The defendant is not protected by principles of double jeopardy from being tried again under the Habitual Offender Law. State v. Young , 99-1310 (La. App. 1st Cir. 4/17/00), 769 So.2d 12, 14.


author: PENZATO, J.

text:
    STATE of Louisiana v. Maurice BANKS
    2017 KA 0943, 2017 KA 0944
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 21, 2017
    Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, LA, Attorneys for Appellee, State of Louisiana.
    Bertha M. Hillman Louisiana Appellate Project Covington, Louisiana, Attorney for Defendant/Appellant, Maurice Banks.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

The defendant, Maurice Banks, was charged by bill of information with obscenity, a violation of La. R.S. 14:106. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The State filed a habitual offender bill of information. At a hearing on the matter, the defendant was adjudicated a fourth-or-subsequent-felony habitual offender and sentenced to thirty years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals asserting one assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.

FACTS

The defendant was an inmate at Terrebonne Parish Criminal Justice Complex (Ashland Jail). The inmates were housed in pods. Each pod had eight dorms, and each dorm had eight cells. The dorms were secured, not with bars, but with clear security glass. On June 28, 2016, the defendant was in his cell (in the "Charlie" pod). D.B., an EMT for Ashland Jail, was passing out medications to inmates that day. D.B. testified at trial that as she approached the hatch hole (where medications were dispensed) to the defendant's dorm, she saw the defendant masturbating. D.B. informed the deputy who was making the rounds with her that the defendant was exposing himself. By the time the deputy approached to see inside the defendant's cell, the defendant covered himself with a sheet so that he could not be seen. A surveillance video at the jail captured the defendant's actions and was introduced at trial.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the evidence was not sufficient to support the conviction of obscenity.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno , 2001-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statute 14:106 provides in pertinent part:

A. The crime of obscenity is the intentional:
(1) Exposure of the genitals ... in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

D.B. testified at trial that as she went to deliver medications to the defendant's dorm, she saw the defendant sitting on his bunk in his cell, leaning back and masturbating. While he masturbated, according to D.B., the defendant made eye contact with her. When asked how this made her feel, D.B. stated it made her feel "disrespected."

The defendant suggests in brief that D.B. did not actually see what she claimed to have seen. According to the defendant, the surveillance video shows him in his cell, but "it does not show his penis." Further, according to the defendant, it is not even clear he made eye contact with D.B. because "when the defense attorney looked behind her during her trial testimony, she mistakenly believed he was looking at her."

Regarding the above-mentioned "eye contact" issue, defense counsel opened his cross-examination of D.B. as follows:

Q. [D.B.], what am I looking at right now?
A. I'm sorry.
Q. What am I looking at right now?
A. Me.
Q. I'm looking at the thing right behind you....

It would seem the jury dismissed this ploy of defense counsel and chose, instead, to believe the testimony of D.B. In any event, a victim's direct eye contact with a defendant is not required to prove the offense of obscenity. A defendant's exposing his genitals in an open place with the intent to arouse his own sexual desire is all that is required. See State v. Walters , 440 So.2d 115, 121 (La. 1983) (the statute requires the State to prove the offender acted with a specific intent to arouse sexual desire, either of the actor or of the viewer); State v. Strong , 446 So.2d 506, 507 (La. App. 4 Cir. 1984).

The defendant is correct that the surveillance video does not show his penis. The assistant warden at Ashland Jail testified that the camera is approximately forty feet from the defendant's cell. The door to the defendant's cell is open, but there is a privacy curtain pulled across and partially covering the entrance to the door. At the beginning of the video, the defendant is sitting on his bunk, and his head can be seen above the top of the curtain; his right arm can be seen moving vigorously back and forth. Minutes later, toward the end of the video, the defendant can be seen moving to his right on his bunk. The defendant, at this point, is sitting in the space between the end of the curtain and the door jamb where he is clearly visible. While the graininess of the video does not permit the viewer to see the defendant's penis, the defendant clearly has his hand inside his shorts and appears to be masturbating. The lack of focus or sharpness of the surveillance video notwithstanding, D.B. made it clear in her testimony that she observed that the defendant had his penis in his hand and that he was masturbating. As noted, it is clear the jury chose to believe D.B.'s version of events, which established that she witnessed the defendant exposing his genitals. The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron , 512 So.2d 467, 469 (La. App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). See also State v. Magee , 517 So.2d 464, 466 (La. App. 1 Cir. 1987).

The defendant argues in brief that State v. Holmes , 2003-177 (La. App. 3 Cir. 2/18/04), 866 So.2d 406, is "factually similar" to the instant matter. In Holmes , the third circuit reversed the defendant's conviction for obscenity, wherein he was seen masturbating in the shower. The defendant suggests herein that he had a greater expectation of privacy in his cell than he would have had in the prison shower. The Holmes case is readily distinguishable from the case at hand. The defendant in the instant matter was in his cell, with the cell door open; he could easily be seen by anyone who looked in his cell or walked past it. In Holmes , 866 So.2d at 408, the third circuit found:

Obviously, there are no visitors in prison showers, and it cannot be reasonably held to be a "place open to the public view" as the statute provides. It is true a prisoner's expectation of privacy, to a large extent, must give way to the immediacy of his imprisoned circumstances and the security measures which must be put in play to assure the orderly conduct of daily life in such a confined environment. Still, a "prison shower" heretofore has been regarded as one of the few places a prisoner is permitted to attend to his "private needs" except for minimal security monitoring by authorized prison personnel.

More importantly, as noted in Holmes , 866 So.2d at 407, the statute the defendant was charged under in 2001 had defined obscenity as, "Exposure of the genitals ... in any public place or place open to the public view , with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive." Shortly after the time of the offense, the obscenity statute was amended to include the language "or in any prison or jail" following the "in any public place or place open to the public view" language. Application of this new "prison or jail" language to the defendant's case in Holmes was considered an impermissible ex post facto application of the law. That is, the conduct for which this defendant was charged did not amount to obscenity under the previous law, resulting in a reversal of the defendant's conviction and sentence. Id. at 407-08.

The jury heard the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty as charged. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor , 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt, State v. Moten , 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence, which was that his genitals were not exposed and he was not masturbating in his cell while D.B. was passing out medications. See Moten , 510 So.2d at 61.

After a thorough review of the record, we find the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of obscenity. See State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417 (per curiam).

The assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      The defendant had previous convictions for possession of cocaine; aggravated flight from an officer (two counts); illegal use of a weapon; and battery of a correctional facility employee.

      Victims of sex offenses are referred to by their initials. See La. R.S. 46:1844(W).


text:
    Stanley JAMES v. Rosalind WARREN
    2017 CA 0757
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Timothy C. Ellender, Jr., Houma, Louisiana, Attorney for Plaintiff/Appellee, Stanley James
    Rosalind Warren, Address Confidential, Defendant/Appellant, In Proper Person
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ
   PENZATO, J.

This is an appeal from a judgment dismissing Ms. Warren's petition for protection from abuse. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

At the time of the confrontation that forms the underlying basis for this appeal, plaintiff, Stanley James, had been married to Mary White James, mother of defendant, Rosalind Warren, for approximately fifteen years. Mrs. James was diagnosed with cancer, and Ms. Warren had been living in her mother and step-father's home for about three months, with Mrs. James's permission, to assist in caring for Mrs. James.

On December 7, 2016, plaintiff, Stanley James, filed a petition for protection from abuse alleging that Ms. Warren had abused him by pushing him, spitting in his face, and threatening to hurt him. A temporary restraining order was issued prohibiting Ms. Warren from, among other things, abusing, harassing, or contacting Mr. James, and from coming within 100 yards of his residence, and a show cause order was set to determine whether a protective order should be issued. On December 12, 2016, Ms. Warren filed a petition for protection from abuse in reconvention, alleging that Mr. James had threatened her with bodily harm and that he may "snap" and kill both Ms. Warren and Mrs. James. Ms. Warren's petition was set for hearing at the same time as the hearing on Mr. James's petition. At the hearing on January 3, 2017 , the trial court found that neither party was entitled to a protective order, and rendered judgment dismissing with prejudice Ms. Warren's petition for protection from abuse based upon her failure to prove the allegations contained in her petition.

Ms. Warren appeals, essentially challenging the trial court's judgment that she failed to prove the allegations contained in her petition by the appropriate standard.

LAW AND DISCUSSION

Pursuant to the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq. , upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). If a temporary restraining order is granted without notice, the matter shall be set within twenty-one days for a rule to show cause why a protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B). If no temporary restraining order has been granted, the court shall issue a rule to show cause why a protective order should not be issued, and set the rule for hearing within ten days from the date of service of the petition, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(D).

"Domestic abuse" is defined in the Domestic Abuse Assistance Statute as including, but not limited to, "physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." La. R.S. 46:2132(3). However, family arguments that do not rise to the threshold of physical or sexual abuse or violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Statute. Rouyea v. Rouyea, 2000-2613 (La. App. 1 Cir. 3/28/01), 808 So.2d 558, 561.

A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Id. Additionally, the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error. Ruiz v. Ruiz, 2005-175 (La. App. 5 Cir. 7/26/05), 910 So.2d 443, 445.

Mr. James, Ms. Warren, and Mrs. James testified at the January 3, 2017 hearing. Ms. Warren testified that on the morning of December 2, 2016, she heard Mr. James arguing with Mrs. James. She stated that she told Mr. James that he should not be arguing with Mrs. James, who had just had surgery, and that Mr. James told her that it was none of her business. The following morning, December 3, 2016, she woke up and went into the kitchen when Mr. James "started in on [her]" and told her that he wanted her out of the house. She testified that he "got in [her] face and was pointing in [her] face." Ms. Warren acknowledged that Mr. James never threatened to hit her, did not assault her, touch her, threaten to touch her, or threaten to harm her. She stated that "his physical aggression towards [her] was perceived by [her] as a threat." Ms. Warren further testified that after the incident she stayed at the house another day or two, but Mr. James was making it uncomfortable to be there. To avoid any further confrontation, she left.

Mr. James testified that on the morning at issue, he was talking to Mrs. James in the kitchen when Ms. Warren approached him with an "attitude". He put his hand out and he told her to "holdup right there", and that this was none of her business. According to Mr. James, Ms. Warren came close to him and pushed his hand away, and "rubbed her chest against [his] chest and was this close in [his] space." He testified that Ms. Warren was pushing him, and that he looked at her and walked away, took a shower, and went and filed the restraining order. He further testified that he did not hit or threaten physical harm against either Ms. Warren or Mrs. James.

Mrs. James testified that Mr. James did not want Ms. Warren in the house. With regard to the above-related incident, Mrs. James stated that she was in the kitchen mopping when Mr. James came into the kitchen "fuss[ing], and complaining." She did not observe Ms. Warren harm Mr. James, "[n]ot even in words."

At the end of the hearing, the trial court denied the requests for protective orders. The trial court found that the issue involved Mr. James wanting Ms. Warren out of his house, and Ms. Warren refusing to leave, and that neither party proved that they were entitled to a protective order.

If the fact finder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Allen v. Allen, 2008-2181 (La. App. 1 Cir. 5/8/09), 2009 WL 1271879, *3 (unpublished). After a thorough review of the record as a whole, including Ms. Warren's admission that Mr. James never threatened to hit or harm her, and did not in fact assault or touch her, we find no error in the trial court's conclusion that Ms. Warren failed to prove the allegations of abuse. Accordingly, we find that there was no abuse of the trial court's discretion in dismissing with prejudice Ms. Warren's petition for a protective order.

CONCLUSION

For the foregoing reasons, the January 3, 2017 judgment of the trial court is affirmed. Costs of this appeal are assessed against Rosalind Warren.

AFFIRMED.

      The petition incorrectly referred to Ms. Warren as Rozalyn Owen Williams. When the error was called to the attention of the trial court, the record was corrected to indicate that Rozalyn Williams was also known as Rosalind Warren.

      The matter originally came for hearing on December 19, 2016. Following the testimony of Ms. Warren, Mr. James requested a continuance for an opportunity to hire an attorney, which request was granted by the trial court.

      The trial court also signed a judgment dismissing Mr. James' petition for the same reason. This judgment is not the subject of the instant appeal.


author: McCLENDON, J.

text:
    Jeremy STRICKLAND v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2017 CA 0829
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Jeremy Strickland, Angie, Louisiana Plaintiff/Appellant, In Proper Person
    Debra A. Rutledge, Baton Rouge, Louisiana Defendant/Appellee, Louisiana Department of Public Safety And Corrections
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

Jeremy Strickland, an inmate in the custody of the Department of Public Safety and Corrections ("the Department"), who is housed at Rayburn Correctional Center, appeals the district court's dismissal of his petition for judicial review challenging the Department's calculation of his sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 12, 2016, Mr. Strickland initiated a complaint under the Louisiana Corrections Administrative Remedy Procedure Act ("CARP"), LSA-R.S. 15:1171, et seq. , asserting that the Department had miscalculated his sentence. Specifically, Mr. Strickland notes that the Twenty-First Judicial District Court judgment containing his sentence ordered the multiple sentences to run "concurrent and coterminous."

Mr. Strickland avers that the Department failed to recognize the term "coterminous" in calculating his sentence. Mr. Strickland's request for relief was denied in both the first and second steps.

Mr. Strickland then sought review in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Following a hearing on January 17, 2017, a Commissioner issued a report recommending that the district court deny Mr. Strickland's request for relief, reasoning, in part:

The Department is charged with carrying out the sentence imposed by the Court. The Judge sentenced [Mr. Strickland] to 40 years on each forcible rape charge for which he was convicted. At that time the Judge ordered that those sentences were to run concurrent, the Court also ordered [Mr. Strickland] to serve 40 years with the Department, and Mr. Thiel, [Mr. Strickland's] attorney, agreed.
It is clear that [Mr. Strickland] was sentenced to many terms of confinement, running concurrent, but also that he was sentenced to serve 40 years with the Department, and that is the controlling sentence. [Footnote omitted.]

The district court, after considering the Commissioner's report, the administrative record, and Mr. Strickland's traversal, affirmed the Department's decision and dismissed the matter with prejudice.

Mr. Strickland has appealed, asserting that the district court erred by not ordering the Department to carry out the sentences imposed by the sentencing judge.

DISCUSSION

Mr. Strickland notes that it is well settled that the determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence, is made by the trial judge, not the defendant's custodian. The custodian's obligation is to see that the sentence imposed is the sentence served. Blair v. Stalder, 99-1860 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, 139. Thus, the Department is charged with the responsibility of complying with any conditions placed on a sentence by the trial judge. Id.

Mr. Strickland contends that the district court erroneously and unlawfully denied him the coterminous designation of his sentence. Moreover, he asserts that neither the Department nor the Nineteenth Judicial District Court had authority to remove such designation insofar as he had been sentenced by the Twenty-First Judicial District Court. Mr. Strickland contends the Nineteenth Judicial District Court erred in failing to order the Department to comply with the sentencing order of the Twenty-First Judicial District Court. Alternatively, Mr. Strickland contends that this matter should be remanded to the Twenty-First Judicial District Court to resolve the issue of his sentences and how they should be served.

We recognize that there is a difference between concurrent and conterminous sentences. Concurrent sentences are when "[t]wo or more sentences of jail time [are] to be served simultaneously." Black's Law Dictionary 1569 (10th ed. 2014). That does not mean that the sentences will end at the same time. Brown v. Parker, 771 F.3d 1270, 1272 (10th Cir. 2014). When the sentences are to end at the same time, the second one is called "coterminous." Id. Although unclear from his appellant's brief, Mr. Strickland seemingly posits that the release should occur when his shortest sentence of all his concurrent felony sentences has been completed, or after serving his 10-year sentence for unauthorized use of a motor vehicle.

We note that some states authorize coterminous sentences in at least some circumstances. See Brown, 771 F.3d at 1273. In Brown, however, the federal court recognized that the state of Oklahoma did not authorize coterminous sentences. Rather, the court noted that Oklahoma district courts, pursuant to their statutory authority, can make sentences either concurrent or consecutive. Id. Accordingly, the federal court indicated it could disregard an order that the sentences be coterminous or re-characterize the sentences in a way that would conform to Oklahoma law. Id. ; see also Carroll v. Alabama Dept. of Corrections, 167 So.3d 376, 378 (Ala.Crim.App. 2014) ("Thus, because an Alabama court does not have the legal authority to sentence a defendant to 'coterminous' sentences, the [district court's] order purporting to do so was a nullity.").

Similarly, Louisiana law statutorily authorizes concurrent and consecutive sentences, but does not provide for coterminous sentences. Specifically, LSA-C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Moreover, the Louisiana Supreme Court has never authorized coterminous sentences. Further, in an earlier denial of a writ application wherein Mr. Strickland sought to withdraw his prior pleas, this court stated, in part:

It is unfortunate that the trial court repeated the term coterminous, which [Mr. Strickland's] attorney mentioned first, when imposing relator's sentences. Nevertheless, a review of the entire guilty plea transcript makes it absolutely clear that in exchange for [Mr. Strickland's] no contest pleas, [Mr. Strickland] would be sentenced to a total of forty years imprisonment at hard labor for the numerous offenses. The guilty plea transcript further reflects that defense counsel advised [Mr. Strickland] that if he were eligible for good time, the shortest sentence he would serve in prison would be thirty-four years. For these reasons, this Court finds that [Mr. Strickland's] no contest pleas were not induced by a plea bargain which promised that [Mr. Strickland] would be released upon completion of his shortest sentence.

See State v. Strickland, 15-1137 (La.App. 1 Cir. 9/8/15)(unpublished writ action), writ denied, 15-1843 (La. 10/10/16), 207 So.3d 402. Considering the above, we cannot conclude that the Department's calculations were improper. Mr. Strickland's assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the district court's judgment dismissing Mr. Strickland's petition for judicial review is affirmed. Costs of this appeal are assessed against the plaintiff, Jeremy Strickland.

AFFIRMED.

      On October 22, 2001, Mr. Strickland pled no contest to two counts of forcible rape, two counts of aggravated oral sexual battery, two counts of second degree kidnapping, false impersonation of a police officer, aggravated criminal damage to property, and two counts of solicitation of murder. He also pled guilty to two separate counts of misdemeanor theft, unauthorized use of a motor vehicle, three counts of simple burglary of an inhabited dwelling, and issuing worthless checks. For each count of forcible rape, the court sentenced Mr. Strickland to forty years at hard labor without benefit of parole during the first two years. For each count of oral sexual battery, the court sentenced Mr. Strickland to fifteen years imprisonment at hard labor. For each count of aggravated kidnapping, the court sentenced Mr. Strickland to forty years imprisonment at hard labor "at least two years of the sentence imposed shall be without benefit of parole." For false impersonation of a police officer, the court sentenced Mr. Strickland to ninety days in jail. For aggravated criminal damage to property, the court sentenced relator to fifteen years imprisonment at hard labor. For each count of solicitation of murder, the court sentenced relator to ten years imprisonment at hard labor. For each count of misdemeanor theft, the court sentenced relator to six months in jail. For unauthorized use of a motor vehicle, the court sentenced relator to ten years imprisonment at hard labor. For each count of simple burglary of an inhabited dwelling, the court sentenced relator to twelve years imprisonment at hard labor "at least one year" should be without benefit of parole. For issuing worthless checks, the court sentenced Mr. Strickland to six months in parish prison.

      The office of commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. LSA-R.S. 13:713(A). The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(C)(5) ; see Martinez v. Tanner, 11-0692 (La.App. 1 Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied, 11-2732 (La. 7/27/12), 93 So.3d 597.

      See 16 Fla. Prac., Sentencing § 159, Sentencing Options-Coterminous sentencing (2017-2018 ed.), wherein the commentator explained coterminous sentences as follows:
      Courts and prosecutors should be aware that, where a defendant is being sentenced to periods of incarceration for multiple offenses, language in the plea agreement [or] in the judge's sentencing order that the sentences shall be coterminous means that all sentences will end simultaneously with the shortest sentence, even if the intent of the court (and the prosecutor) was otherwise and even if the court sentenced the defendant to longer minimum mandatory sentences. If, for example, a defendant is sentenced simultaneously to a three-year minimum mandatory sentence for one count, a concurrent five-year Prison Releasee Reoffender sentence for another count, and a 10-year habitual offender sentence for a third count, and the plea agreement or sentencing order agreed to by the parties provides that all sentences shall be coterminous, the defendant's sentences will end upon completion of the three-year minimum mandatory sentence of the first count. Thus the language of cotermination will trump all other provisions as to sentence length in the absence of fraud, even if the insertion of such language is the result of mistake or misapprehension on the part of the court or the prosecutor.

      22 Okl.St.Ann. § 976 provides:
      If the defendant has been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses. Provided, that the sentencing judge shall, at all times, have the discretion to enter a sentence concurrent with any other sentence.

      Moreover, the Alabama court noted that if a court imposes an unlawful sentence, such a challenge must be brought in the court that rendered the sentence rather than through a petition for a writ of habeas corpus filed in another court. Carroll, 167 So.3d at 378.


text:
    Thelma CRYER, individually and on behalf of her Deceased Father, John D. Cryer, Sr. v. TANGI PINES NURSING CENTER, et al.
    2017 CA 0697
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 21, 2017
    Willie Johnson, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Thelma Cryer
    Douglas R. Kraus, New Orleans, Louisiana, Attorney for Defendants/Appellees, Tangi Pines Nursing Center, And Rebecca Moore, RN
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ. PENZATO, JJ.
   PENZATO, J.

This is an appeal from a trial court judgment granting a motion for summary judgment in favor of the defendants/appellees. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

This case involves a medical malpractice claim arising from the death of John D. Cryer, Sr. on October 13, 2012, at North Oaks Health System. His daughter, Thelma Cryer, individually and on behalf of her deceased father, filed a petition for damages against Tangi Pines Nursing Center, LLC, and Rebecca Moore, Nursing Director of Tangi Pines Nursing Center. Plaintiff's petition alleged that prior to his death, Mr. Cryer resided at Tangi Pines Nursing Center. According to the petition, at Ms. Cryer's insistence, Mr. Cryer was transferred to Hood Memorial Hospital, and ultimately North Oaks Health System. At North Oaks, Mr. Cryer was diagnosed with severe dehydration, malnutrition, a urinary tract infection, and was suffering from sores, all of which plaintiff attributed to the lack of care Mr. Cryer received from Tangi Pines Nursing Center and Rebecca Moore.

Tangi Pines Nursing Center and Nurse Moore ("Defendants") filed a motion for summary judgment asserting that plaintiff had no expert to support her medical malpractice claims and was therefore unable to satisfy her burden under La. R.S. 9:2794, on either breach of the standard of care or causation. The record does not contain a copy of plaintiff's opposition nor a transcript of the November 21, 2016 hearing on the motion for summary judgment. Included in the record is an affidavit of Ronald Andrews, M.D., filed on November 21, 2016. However, the court minutes from the November 21, 2016 hearing date do not reflect that the affidavit was filed in connection therewith, or admitted as an exhibit at the hearing. After considering the law, evidence, and oral arguments of counsel, the trial court signed a final judgment on December 8, 2016, granting defendants' motion for summary judgment, and dismissing defendants, with prejudice, from the litigation.

Plaintiff filed a motion for new trial and sought to introduce a supplemental affidavit of Dr. Andrews. Defendants opposed the motion for new trial and moved to strike the amended affidavit of Dr. Andrews. The motion for new trial came for hearing on February 21, 2017, at which time the trial court indicated that it had reviewed Dr. Andrews' supplemental affidavit and found that it did not comply with La. R.S. 9:2794 in that it failed to establish a breach of the standard of care, and was therefore insufficient. The trial court denied the motion for new trial, and signed a judgment in accordance therewith on March 6, 2017. Thereafter, plaintiff filed a motion for appeal from the March 6, 2017 judgment, contending that the trial court erred by granting defendants' motion for summary judgment and denying plaintiff's motion for new trial, by finding that neither the original nor the supplement affidavit of plaintiff's expert, Dr. Andrews, comports with the formal requirements of La. R.S. 9:2794.

LAW AND DISCUSSION

At the outset, we note that in plaintiff's motion for appeal, she appeals the denial of the motion for new trial, rather than the granting of defendants' motion for summary judgment. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Byrd v. Pulmonary Care Specialists, Inc. , 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 195. In this case, it is clear from the sole assignment of error that plaintiff sought to appeal from the final judgment that granted summary judgment in favor of defendants and dismissed them from the litigation. Plaintiff's mistake in listing the date of the wrong judgment in her motion for appeal is insufficient grounds for the dismissal of the appeal, particularly since appeals are favored and will be dismissed only when the grounds are free from doubt. Id. Thus, the merits of the final judgment of December 8, 2016, granting defendants' motion for summary judgment, are properly before us.

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2).

The burden of proof is on the mover. La. Code Civ. Pro. art. 966D(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. Succession of Hickman v. State Through Bd. of Supervisors of Louisiana State Univ. Agricultural and Mechanical College , 2016-1069 (La. App. 1 Cir. 4/12/17), 217 So.3d 1240, 1244.

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. Reynolds v. Bordelon , 2014-2371 (La. 6/30/15), 172 So.3d 607, 610. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Succession of Hickman , 217 So.3d at 1244.

The motion for summary judgment at issue herein arises in the context of a suit for medical malpractice. To establish a claim for medical malpractice, a plaintiff has the burden of proving: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794 ; Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Id. at 1006-07.

In support of their motion for summary judgment, defendants submitted plaintiff's medical review panel request, an unsigned copy of the medical review panel's opinion and reasons, plaintiff's petition for damages, defendants' interrogatories and requests for production of documents to plaintiff, and plaintiff's supplemental discovery response dated May 19, 2016 identifying Dr. Ronald Andrews as a medical expert .

In this appeal, defendants assert that they have presented sufficient evidence to support a prima facie case for summary judgment with the testimony of their own experts, in the form of the medical review panel's expert opinion. Thus, they contend that the burden of proof shifted to plaintiff pursuant to La. Code Civ. Pro. art. 966. They further argue that Schultz , 57 So.3d 1002, is binding, and that the trial court is "not free to simply disregard [defendants']

unopposed expert medical evidence." Id. at 1009.

We find Schultz distinguishable in the instant case. In Schultz , the defendant/mover introduced in support of its motion for summary judgment the unanimous opinion of the medical review panel, which concluded that the defendant/mover did not fail to meet the applicable standard of care, as well as an affidavit of a member of the panel who clearly stated that the defendant/mover did not breach the applicable standard of care. Id. at 1007. Thus, upon review of the motion for summary judgment, the opinion of the medical review panel, and the affidavit of the member of the medical review panel, the Louisiana Supreme Court was convinced that the defendant/mover was entitled to summary judgment. Id. at 1008. In contrast, in the instant case, defendants placed into evidence an unsigned copy of the medical review panel's opinion as support for their motion for summary judgment.

Louisiana Code of Civil Procedure article 966A(4) provides that the only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. Louisiana Code of Civil Procedure article 966D(2) further provides that the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. In this case, we note that plaintiff did not object to the introduction of the unsigned copy of the medical review panel's opinion. We further note that this unsigned document does not fall within any of the categories set forth in La. Code Civ. Pro. art. 966A(4) nor does it comply with the requirements of La. R.S. 40:1231.8G which states that the expert opinions of the medical review panel "...shall be in writing and signed by the panelists." A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Unifund CCR Partners v. Perkins , 2012-1851 (La. App. 1 Cir. 9/25/13), 134 So.3d 626, 632. This court has previously held that the uncertified and unsupported opinion of the medical review panel was insufficient under La. Code Civ. Pro. arts. 966 and 967 to serve as evidence properly considered on a motion for summary judgment. Simmons v. Berry , 98-0660 (La. App. 1 Cir. 12/22/00), 779 So.2d 910, 916. We find that in this case, the unsigned , uncertified and unsupported opinion of the medical review panel has no evidentiary value, and should be considered by the court in support of the motion for summary judgment as nothing more than an unsigned draft. Moreover, as noted above, the May 26, 2016 discovery responses relied upon by defendants in support of their motion for summary judgment were not attached to their memorandum nor were they introduced into evidence.

With regard to the mover's initial burden of proof in a motion for summary judgment, in Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880, 885, the Louisiana Supreme Court, quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) specifically stated that the party seeking summary judgment:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

In this case, we find that defendants failed to file any relevant documents which had evidentiary value in support of their motion for summary judgment. Thus, we find that defendants failed to meet their initial burden of proof, and that the burden never shifted to plaintiff to show support for her claim. See La. Code Civ. Pro. art. 966D(1); Coleman v. St. Tammany Parish School Board , 2008-1979 (La. App. 1 Cir. 5/8/09), 13 So.3d 644 (mover who did not submit any supporting documentation to show that supervision exercised by school officials was reasonable did not meet its burden of proof); Pugh v. St. Tammany Parish School Board , 2007-1856 (La. App. 1 Cir. 8/21/08), 994 So.2d 95, writ denied, 2008-2316 (La. 11/21/08), 996 So.2d 1113 (mover failed to meet its initial burden of proof by merely relying on a portion of the pleadings without identifying other parts of the record or submitting proof to support its motion). Therefore, we find that the trial court erred in granting the motion for summary judgment.

CONCLUSION

For the foregoing reasons, we reverse the December 8, 2016 judgment of the trial court granting defendants' motion for summary judgment and dismissing defendants from the litigation, and remand for further proceedings in accordance herewith. Costs of this appeal are assessed to defendants, Tangi Pines Nursing Center, LLC, and Rebecca Moore.

DECEMBER 8, 2016 JUDGMENT REVERSED; CASE REMANDED.

      Dr. Nicholas Stevens, Medical Director of Tangi Pines Nursing Center, and Gaylin Mull, Assistant Nursing Director of Tangi Pines Nursing Center, were also named as defendants in the petition. However, those claims are not before us in the present appeal.

      The record does not contain Dr. Andrews' supplemental affidavit.

      In their memorandum in support of their motion for summary judgment, defendants reference and cite from supplemental responses dated May 26, 2016. However, these referenced responses were not attached to defendants' memorandum nor are they contained in the record.

      Comment (c) of La. C.C.P. Art. 966 states that "[a]n opinion of the medical review panel cannot be filed in support of or in opposition to the motion unless it is properly authenticated and attached to the affidavit or deposition,"