author: BLEICH, J. (Pro Tempore)

text:
    STATE of Louisiana, Plaintiff-Appellee v. Lawrence ROGERS, Defendant-Appellant
    No. 51,449-JAC
    Court of Appeal of Louisiana, Second Circuit.
    June 21, 2017
    STEWART & STEWART, By: Jonathan M. Stewart, Counsel for Appellant
    DANIEL W. NEWELL, District Attorney, TERESA CULPEPPER CARROLL, Assistant District Attorney, Counsel' for Appellee
    Before WILLIAMS, PITMAN, and BLEICH (Pro Tempore), JJ.
   BLEICH, J. (Pro Tempore)

| iThis appeal arises from the Second Judicial District Court for the Parish of Jackson, State of Louisiana, wherein the trial court ordered Lawrence Rogers to submit to DNA testing in connection with Tiffany Thompson’s petition to establish paternity of her minor child. For the following reasons, we affirm the judgment of the trial court.

FACTS

On January 8, 2016, the Jackson Parish District Attorney’s Office filed an action to establish paternity in accordance with La. R.S. 46:236, et seq. It requested Lawrence Rogers submit to blood testing in order to confirm if he is the biological father of Tiffany Thompson’s son, T.A.T., born March 29, 2006. In the supporting paternity affidavit, Thompson averred the following: she told Rogers he was the father of the child; the’ child resembled Rogers; no other man was listed as the father on the child’s birth certificate; and, she had not had sexual intercourse with any man other than Rogers during the time 30 days before or after conception.

On February 26, 2016, the parties came before a Jackson Parish hearing officer. Rogers refused DNA testing and requested a show cause hearing, which immediately followed. During the hearing, Thompson stated that she was working for Rogers and engaging in a sexual relationship with him when she became pregnant. Although Rogers corroborated that Thompson worked for him in 2006, he denied ever having sexual intercourse with her. In support of her claim that T.A.T. resembles Rogers, two recent photographs of the child were entered into evidence without objection. At the conclusion of the hearing, the matter was taken under advisement and | Peach party was given seven days to submit memoranda containing any additional arguments or evidence.

After considering the testimony and supplemental memoranda, the hearing officer issued an order for Rogers to submit to DNA testing on one of two dates in April 2016, In response, Rogers filed a notice of his intention to seek a supervisory writ and emergency stay of the proceeding. The trial court granted Rogers’ request, and this Court declined to consider the writ. Subsequently, the trial court issued a final judgment incorporating the hearing officer’s recommendations and requiring Rogers submit to DNA testing in September 2016. Rogers filed this suspen-sive appeal.

DISCUSSION

In his appeal, Rogers urges a single assignment of error. He argues the trial court erred in finding the state presented sufficient evidence to establish a reasonable possibility of paternity, because it based its decision solely on the uncorroborated testimony of Thompson. Rogers further argues that an order requiring DNA testing is a search and seizure under the Fourth Amendment of the United States Constitution and violates his constitutional right to privacy. Additionally, Rogers argues that since the state failed to produce the only witness mentioned by Thompson who might corroborate her story, he is entitled to a presumption that the witness’s testimony would be adverse to the state. We disagree.

The Uniform Act on Blood Tests to Determine Paternity (La, R.S. 9:396, et seq.) provides that in any civil action in which paternity is a relevant fact, the trial court may order the mother, child, and alleged father |sto submit to the collection and testing of blood or tissue samples. La. R.S. 9:396(A)(1). When a party to a contested paternity action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the trial court can determine whether there is sufficient evidence to establish a prima facie case warranting the issuance of a court order for blood testing. In the Interest of the Minor Child, J.M., 590 So.2d 565 (La. 1991); State, Dep’t of Soc. Servs., Office of Family Support v. Williams, 605 So.2d 7 (La. App. 2 Cir. 1992). In the show cause hearing, before an order for blood testing is issued, the moving party must show that there is a reasonable possibility of paternity. In Interest of J.M., supra. If any party refuses to submit to such tests, the trial court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require. La. R.S. 9:396(A)(2).

In State v. Williams, supra, a petition filed on behalf of the minor child alleged Williams was the child’s biological father. In his answer, Williams admitted to engaging in sexual intercourse with the mother on two occasions, but denied paternity and refused to voluntarily submit to blood testing. At that show cause hearing, the state presented a friend of the mother who testified she had knowledge of the relationship between Williams and the mother, and witnessed Williams take her on dates and pick her up from work. The trial court ruled the state failed to establish a prima facie case warranting the issuance of an order for blood testing based on the fact that the mother’s husband was listed as the presumptive father on the child’s birth certificate, and the mother admitted to other sexual partners around the time she became pregnant. The state appealed, and the Williams court reversed the trial court, finding the concept of dual paternity allows for La suit against an alleged biological father even if the legal father is already providing support. Further, the state successfully proved a reasonable possibility of paternity based on the testimony; therefore, the trial court’s judgment was vacated, and Williams was ordered to submit to blood testing. Id. at 9.

In State v. Smith, 605 So.2d 222 (La. App. 2 Cir. 1992), a petition to establish paternity was filed. The mother claimed Smith was the father, although Smith denied ever having sexual intercourse with the mother. Nonetheless, the trial court ordered Smith to submit to blood testing. On appeal, Smith argued that an unfavorable inference should result from the state’s failure to call witnesses to substantiate the mother’s claim. The Smith court stated:

We recognize that as a general rule the failure to produce a witness who has special knowledge essential to a party’s cause, when such a witness is available and under a party’s control, raises a presumption that the witness’s testimony would be detrimental to that party’s cause. However, in this case certain individuals to whom [the mother] referred in her testimony did not have knowledge essential to the state’s case. They were not witnesses to the actual sexual relationship between [the mother] and Mr. Smith. Furthermore, the record does not indicate that these individuals were more available to the state than to Mr. Smith, and there is no indication that any of these individuals were under the state’s control. Accordingly, no unfavorable inference attached in this case.

State v. Smith, supra at 225. (Internal citations omitted.)

Here, Rogers argues that in order to prove a reasonable possibility of paternity, the state must have some corroborating evidence beyond Thompson’s claim that he is the father. Thus, we are called to determine if a mother’s allegations of a sexual relationship, without some corroboration, can establish a reasonable possibility of paternity.

I ^During the show cause hearing, Thompson testified that she worked for Rogers on and off again at the Church’s Chicken in Grambling, Louisiana, beginning around 2002 and ending after she became pregnant.' She testified the relationship did not become sexual until 2005, and it lasted about a year. She explained Rogers would make her work schedule and would schedule her off on certain days. On those days, he would come to her apartment where she lived alone with her other child, then two years old.

Thompson. also testified she kept ■ the sexual relationship a secret, because Rogers was married and also her employer. Although her family asked in the past, Thompson stated she never told them who the child’s father was. On cross-examination, Thompson admitted that she dated a police officer, but clarified she was not having a sexual relationship with anyone but Rogers when she became pregnant. When asked if she ever told anyone else Rogers was the father, Thompson stated that about five years after T.A.T, was born, while showing photos of her children, she told a woman named Barbara that' Rogers was the father. Thompson stated Barbara worked at Rogers’ convenience store adjacent to Church’s Chicken, but she did not know Barbara’s last name or if she still worked for Rogers.

Thompson also .testified she told. Rogers in his office at Church’s Chicken that she was pregnant with his child. After he brushed her off, Thompson stated she quit working for him. She also testified that after the birth of her child she attempted to establish a relationship between T.A.T. and Rogers, but gave no further details, Thompson stated she now seeks to establish paternity, .because T.A.T. is asking questions about his father.'

|flRogers testified that Thompson worked for him for three years, including 2005, but denied ever having sexual intercourse With her. He testified to having contact with Thompson a couple of times after she discontinued her employment with him, but stated she never told him he was T.A.T.’s father. Rogers testified as following concerning why he refuses to voluntarily submit to DNA testing:

Q: Mr. Rogers, if you’re so certain that you have never had sex with Ms. Thompson, why won’t you just agree to a DNA test?
A: Because I’ll be agreeing to it that I cheated on my wife. I mean, if I start doing that I got a lady in my place of business now, she’s pregnant. She might want me to do a DNA test.
Q: But if you’re not the father, and the DNA tést comes back negative. How does that impact your marriage?
A: Because if that when he take DNA tests it just assumes that I had sex with her. Okay. If everyone is wanting me to take DNA , tests that’s assuming that they are accusing me of haying sex with them.

Rogers maintains Barbara should have been called as a witness to corroborate Thompson’s testimony that, she told her T.A.T.’s father was Rogers. Further, Rogers argues since the state failed to produce Barbara as a witness, he- is entitled to a presumption that, her testimony would be adverse to the state. In State v. Smith, supra, an analogous argument was made by the alleged father, Smith. In that matter, Smith, like Rogers, denied ever having sexual intercourse with, the mother. In Smith, the state presented only one witness to corroborate the mother’s accusation, and on appeal, the Smith court found that testimony “added little because the [witness] was unaware that [the mother] was seeing Mr. Smith until after [the mother] became pregnant.”

17Here, Barbara’s testimony is clearly irrelevant to prove sexual intercourse occurred between Rogers and Thompson, because there was no assertion by either Rogers or Thompson that Barbara had any knowledge of the relationship. Further, there is no indication that Barbara or any other person possessed knowledge essential to the state’s case, witnessed the actual sexual relationship between Rogers and Thompson, or was any more available to the state than to Rogers. Accordingly, Rogers is not entitled to a presumption against the state based on the fact it supplied no witnesses to corroborate Thompson’s claim.

Moreover, Thompson’s testimony offers a plausible explanation as to why no such witnesses are available. The relationship was kept secret. Rogers denies Thompson’s account of the events and argues the order for DNA testing—the only available means of potentially solving this controversy—violates his constitutional rights. The reasoning offered by Rogers in defense of his right to privacy is far less important than the state’s compelling interest in caring for children and establishing paternity. This argument completely lacks merit considering the Louisiana Supreme Court has already conclusively resolved the question of whether or not the taking of a blood sample pursuant to La. R.S. 9:363 et seq. is a justified invasion of privacy or an unreasonable search and seizure. See In Interest of J.M., supra. Furthermore, Rogers was afforded a show cause hearing in accordance with due process. Id. Additionally, Rogers argues that submitting to DNA testing in response to Thompson’s claim might result in other women accusing him of being the father of their children and requesting DNA tests. Obviously this self-serving assertion is contrary to the state’s interest in caring for children and establishing paternity.

|RThe record establishes that: (1) no father was listed on the birth certificate for T.A.T.; (2) Thompson testified she engaged in a sexual relationship with Rogers regularly for about a year around the time she became pregnant with T.A.T.; (3) Thompson kept her sexual relationship with Rogers a secret because, not only was he married, but he was also her employer; (4) Thompson testified that T.A.T. looks like Rogers, and supplied photos as evidence; (5) Rogers admitted that Thompson worked for him around the time she became pregnant; (6) Rogers denies any kind of sexual relationship with Thompson; and, (7) Rogers denies Thompson ever told him she was pregnant with his child.

After reviewing the record and based on the reasons set forth herein, trial court was not manifestly erroneous in ordering Rogers to submit to DNA testing considering it was proven that Rogers was Thompson’s employer, did control her work schedule, and did have some kind of relationship with her around the time she became pregnant. Additionally, considering Rogers is married, it was not unreasonable for the trial court to base its ruling on Thompson’s .testimony that the relationship was kept secret. Thus, Rogers’ assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court ordering Lawrence Rogers to submit to the drawing of DNA samples for examination of inherited characteristics. The costs of this appeal are cast to Lawrence Rogers.

AFFIRMED.

      . The writ application, 53,120-JWC, was not considered because it did not contain a judgment signed by the trial court. U.R.C.A. Rule 4-5.

      . No other paternity suits have been, filed alleging any other man is T.A.T.’s father.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John Lee BASS, Appellant
    No. 51,411-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017
    DOUGLAS L. HARVILLE, Louisiana Appellate Project Counsel for Appellant
    ROBERT S. TEW, District Attorney, STEPHEN T. SYLVESTER, JOHN GATES SPIRES, Assistant District Attorneys Counsel for Appellee
    Before BROWN, PITMAN, and COX, JJ.
   BROWN, C.J.

| defendant, John Lee Bass, was charged by bill of information with forcible rape, in violation of La. R.S. 14:42.1. The charge was amended thereafter when defendant was charged by grand jury indictment with aggravated rape, in violation of La. R.S. 14:42. After a jury trial, defendant was found guilty of the responsive verdict of forcible rape. He was sentenced to 40 years at hard labor and ordered to register as a sex offender. On appeal, defendant challenges the sufficiency of the evidence and contends that his sentence is excessive. We affirm defendant’s conviction, amend defendant’s sentence to include the restriction of benefits for the first two years, and, as amended, affirm, and remand with instructions.

FACTS

On May 22,2014, defendant was charged by bill of information with forcible rape of L.R. on the Jackson Park trail in More-house Parish. At arraignment, defendant pled not guilty. On January 27, 2015, the state filed a grand jury indictment, which amended the charge to aggravated rape. Defendant entered a plea of not guilty on January 29, 2015.

On December 7, 2015, defendant’s trial commenced. At trial, the state called six witnesses. The state’s first witness was defendant’s brother, John Willie Bass, who testified that he was charged as a co-defendant for the rape of L.R. John Willie testified that he pled guilty to forcible rape in exchange for a 20-year sentencing cap. John Willie asserted that although he pled guilty, he “did not admit to rapin’ nobody” and only pled guilty on the advice of his lawyer. John Willie admitted that he knew L.R., but denied 12that she attended a party at his parents’ home prior to her assault. John Willie also stated that, when he was questioned by police, he told them that he had consensual sex with L.R. bn several occasions, including the day of the alleged rape. According to John Willie, he and several of his “home boys,” Leroy and “Zem,” had sex with L.R. that day.

The factual basis that was read during John Willie’s guilty plea colloquy was played off the record and outside of the presence of the jury. Once the jury returned to the courtroom, John Willie testified that the factual basis, read at his guilty plea, did not accurately portray what occurred on the night of the alleged rape. John Willie further stated that when he pled guilty, he was simply acknowledging that he understood the factual basis, not admitting that it was an accurate representation of what occurred. A copy of the minutes stating that John Willie was sentenced to 20 years for the rape of L.R. was admitted into evidence.

On cross-examination, John Willie testified that neither he nor defendant was with L.R. when she was allegedly raped. He further stated that he only pled guilty because he was told by his counsel that he would receive ten years in' jail, which would supposedly “run concurrent with [John Willie’s] parole time,” and that “the deal didn’t go through.” He testified that this ten-year sentence was why he pled guilty to forcible rape. John Willie then stated he did not understand the charges to which he pled guilty. John Willie also admitted to being a convicted felon.

Rosheka Johnson testified next. Ms. Johnson stated that she encountered L.R. shortly after the alleged rape. L.R. was walking up the road toward her. Ms. Johnson. could see that L.R. was crying and shaking. L.R. appeared to have been in a struggle; she had grass in her hair and was Invisibly upset. Ms. Johnson testified that she asked L.R. what was wrong, and L.R. told her that she had been raped. Ms. Johnson called the police and waited with L.R. until the officers arrived.

L.R. testified that she was raped by defendant and his brother, John Willie, on April 26, 2014, L.R. stated that she attended a party at defendant’s parents’ home the evening she was attacked. At the party, L.R. drank about a 12-pack of beer and then argued with defendant’s cousin, “Punkin.” After the argument, around 11:30 p.m., L.R. testified that she left the party alone arid began walking home through Jackson Park. According to L.R., she was wearing a t-shirt, underwear, and blue jean shorts that evening. As she walked through the park, L.R. heard a noise behind her. The noise came closer, frightening L.R., and she began to run. As L.R. was running, she heard a voice behind her say, “I told you don’t run. I told you don’t run,” Someone then grabbed L.R.’s shirt and hair from behind and threw her to the ground. L.R. testified that she was lying on her stomach, but. she managed to see the faces of her assailants, whom she identified as John Willie and defendant. L.R. also testified that she fought John Willie and defendant, telling them to stop, but neither did.

L.R. then testified that while defendant attempted to force his penis into her mouth, a third person, J.D., came upon the scene and said, “[n]o, that’s wrong.” But, instead of helping her, J.D. left the scene, and the assault continued. L.R. stated that defendant held her down while John Willie took off her shorts and raped her. During the attack, L.R. heard defendant cheer John Willie on, and defendant stated that “I want some of that too.” When John Willie finished raping L.R., he switched positions with his brother and held L.R. down as defendant raped her. After defendant Lfinished, the brothers switched positions again, and John Willie raped L.R. a second time. When the attack ended, L.R. testified that she struggled to gather her belongings, and defendant and John Willie left her lying on the ground. L.R. walked toward the street, where she encountered Rosheka Johnson, She told' Ms. Johnson that she had been raped by John Willie and defendant. L.R. further testified that she never had’sexual relations with either man before, and she did not have sex with anyone else on the day of her attack. During her testimony, L.R. showed the jury the pair of shorts she was wearing the night of the attack and stated that defendant and John Willie broke the shorts’ zipper as they were removing them.

On cross-examination, L.R. denied having either consensual oral or vaginal sex with defendant on thé day she was attacked. L.R. also denied ever accusing anyone else of raping her. L.R. stated that she had lived with John Willie and defendant’s parents for approximately two years prior to the attack, but neither brother lived in the home at the same time as L.R. She also testified that right after the attack, she did not use the restroom or do anything to alter the condition of her vaginal area. Finally, L.R, stated that after the- attack, she could not locate her underwear.

Captain Keesonyá Lynch, an officer with the Bastrop Police Department, testified that on April 26, 2014, she was dispatched to 501 Jackson Street concerning an alleged assault. Upon arriving at the scene, |sCpt. Lynch made contact with L.R. and observed that she appeared to have been in an altercation. According to Cpt. Lynch, L.R.’s hair was “all over her head,” her shirt was torn, and L.R.’s shorts were ripped open at the waist. Cpt. Lynch noted that L.R. was not wearing underwear, and she appeared to be shaken up. Cpt. Lynch testified.that L.R. admitted to' being sexually assaulted by defendant and John Willie. Cpt. Lynch also testified that she arrested John Willie and defendant shortly after meeting with' L.R. Finally, Cpt. Lynch noted that she was not present when the rape kit was collected, and she sent her report to Cpt. Anthony Evans. A photograph of the Jackson Park trail was admitted during Cpt. Lynch’s testimony.

Captain Anthony Evans, another officer with the Bastrop Police Department, testified next. Cpt. Evans testified that he was the chief of detectives in April of 2014. Cpt. Evans stated that on April 26, 2014, he received a call concerning a sexual assault and first encountered defendant and John Willie at the police station. Cpt. Evans testified that he advised defendant of his Miranda rights,' and defendant indicated that he understood his rights. Defendant did not appear to be intoxicated or under the influence of drugs when he signed the rights waiver form, which was admitted into evidence. Both Cpt. Evans and Cpt. Lynch were present during defendant’s interview, which took place on April 27, 2014, between 12:53 and 1:01 a.m. A recording of defendant’s interview was then played for the jury. During the interrogation, defendant first denied having sex with L.R. However, after Cpt. Evans indicated that a DNA swab would be-taken from him as part of L.R.’s rape kit, defendant claimed to have had consensual sex with L.R. | fin his bedroom during the party around 11:00 p.m. on April 26, 2014. The other party guests were in the living room playing cards, according to defendant. He indicated that he and L.R. have had a casual sexual relationship since 2008. Defendant testified that L.R. was extremely intoxicated at the party. According to defendant, she drank about “six or seven cases” of beer. When asked about the number of people at the party, defendant stated that only six people were present.

Cpt. Evans testified that on the day after the attack, he took L.R. to the crime scene, and she pointed out where on the trail the rape occurred. They tried to locate her missing underwear, but were unable to do so. Crime scene pictures taken by Cpt. Evans were admitted into evidence and published to the jury. Cpt. Evans also testified that he collected the rape kit, DNA swabs from John Willie and defendant, L.R.’s shorts, and L.R.’s blood samples and delivered them to the crime lab for testing. These items were also admitted into evidence during Cpt. Evans’ testimony.

Katie Traweek, a forensic DNA analyst with the North Louisiana Crime Lab, testified that she served as the primary analyst in defendant’s case. Traweek stated that she conducted DNA testing on the following items submitted for testing: a physical recovery kit from L.R., which contained swabs taken from different parts of L.R.’s body, a pair of shorts, a blue bra, a reference sample from John Willie, another reference sample from defendant, blood samples and a urine sample from L.R. After analyzing the evidence, Traweek testified that defendant’s DNA was found on L.R.’s external genitalia swab. She also stated that defendant was excluded as a donor of the DNA from four of the six swabs. Traw-eek’s report, which detailed her findings, was admitted into evidence.

|7The state rested after Traweek’s testimony, and for their first witness, the defense recalled Cpt. Lynch, who testified that no official photo lineup was conducted during the investigation. According to Cpt. Lynch, L.R. was shown photos of only defendant and John Willie because she had clearly identified the two men as her attackers, having known them for years.

Next, Angela Brantley, defendant’s cousin, testified that she was present at the party on the night L.R. was attacked. Angela claimed that she witnessed L.R. and defendant having sex in the bathroom. Angela further testified that the activity-appeared to be consensual but noted that L.R. appeared to be intoxicated. On cross-examination, Angela stated that she never told this story to the police.

Glenda Brantley, defendant’s older sister, testified that she was also present at the party, having arrived at her parents’ home around 1:30 p.m. on April 26, 2014. According to Glenda, when she got to her parents’ house, she went to the back bedroom to put her purse on the bed and witnessed L.R. performing oral sex on defendant. Later, Glenda saw L.R. leave the bedroom and said that.L.R. appeared to be intoxicated. Glenda testified that she told L.R. to go home. L.R. fell on the grass in the front yard as she was leaving the party. Glenda further testified that Bass left that party at some point, but returned to the party prior to approximately 1:30 a.m. on April 27, 2014.

Annie Bass (“Annie”), Bass’ mother, testified next. Annie testified that she was present at the party the night of the alleged rape. Annie stated that L.R. was drinking heavily and appeared very intoxicated while at the | «party. Annie further noted that, at some point, Glenda, not Angela, told Annie that Bass and L.R. were having sex in the bathroom.

Defendant testified that he and L.R. engaged in consensual oral and vaginal sex on the night of April 26, 2014. Defendant denied raping L.R. When asked why he never told the police that Glenda and Angela supposedly walked in on him and L.R. at various times in the evening, defendant stated that he didn’t know, “you should ask [Glenda and Angela].”

The defense rested after defendant’s testimony. The state • then recalled Cpt. Evans, who testified that defendant never told the officer that defendant and L.R. had engaged in oral sex at the party. Cpt. Evans further stated that defendant admitted to having sex with L.R. in the bedroom, not the bathroom, during the party at his parents’ house.

On December 10, 2015, the jury found defendant guilty of the responsive verdict of forcible rape. On January 26, 2016, defendant was sentenced to 40 years at hard labor and was ordered to register as a sex offender. A motion to reconsider sentence filed by defendant was denied by the trial court.

The instant appeal followed.

DISCUSSION

Sufficiency of the Evidence

According to defendant, the evidence was insufficient to sustain his conviction for forcible rape. Defendant urges that the testimony of his cousin Angela and sister Glenda, who claimed to have witnessed him and L.R. engaging in various sexual acts prior to the alleged rape, coupled with ] phis own testimony, contradicts L.R.’s testimony that she did not have sex with defendant at the party. Defendant argues that the consensual sex at the party on April 26, 2014, explains the presence of defendant’s DNA on L.R.’s external genitalia.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such eases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,-786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/06/09), 21 So.3d 299.

| inThe appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court affords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La. App. 2 Cir. 05/09/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

La. R.S. 14:42.1 provides in pertinent part:

A. Forcible rape is rape committed when anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
(2) When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.

When the defendant asserts that he was not the perpetrator, or remains silent, the state bears the burden of negating any reasonable probability of misidentification. State v. Powell, 27,959 (La. App. 2 Cir. 04/12/96), 677 So.2d 1008, writ denied, 96-1807 (La. 02/21/97), 688 So.2d 520; State v. Mickens, 31,737 (La. App. 2 Cir. 03/31/99), 731 So.2d 463, writ denied, 99-1078 (La. 09/24/99), 747 So.2d 1118. It is the province of the jury to resolve conflicting inferences from the evidence. State v. Mickens, supra; State v. Free, 26,267 (La. App. 2 Cir. 09/21/94), 643 So.2d 767, writ denied, 94-2846 (La. 03/10/95), 650 So.2d 1175. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony lnof one witness—if believed by the trier of fact—is sufficient to support for a requisite factual conclusion. State v. Jones, 34,863 (La. App. 2 Cir. 08/22/01), 794 So.2d 107, writ denied, 01-2648 (La. 8/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. Mickens, supra. This is equally applicable to the testimony of sexual assault victims. Id.; State v. Rives, 407 So.2d 1195 (La. 1981); State v. Thomas, 30,490 (La. App. 2 Cir. 04/08/98), 711 So.2d 808, writ denied, 99-0331 (La. 07/02/99), 747 So.2d 8.

There was sufficient direct and circumstantial evidence to support defendant’s conviction of forcible rape.

L.R. testified that she was tackled by defendant and his brother John Willie while walking home from the party at their parents’ home. L.R. repeatedly testified that she did not willingly have sex with defendant and his brother. Instead, L.R. stated that she tried to fight back, but she was physically held down by both brothers during the rape. L.R.’s intoxicated state, the only thing upon which all witnesses agreed, also prevented her from fighting back. L.R. was very clear about what occurred the night of her rape, and her physical state, particularly the grass in her hair and her torn shirt and shorts, together with the DNA evidence, further support L.R.’s testimony. According to Cpts. Lynch and Evans, L.R. clearly identified defendant and John Willie as her rapists. L.R.’s testimony is sufficient to establish the requisite elements of forcible rape, i.e., that defendant engaged in anal, oral or vaginal intercourse without the victim’s consent when she was either physically prevented from fighting back or too intoxicated to resist.

| ^Moreover, defendant admitted to having both vaginal and oral, sexual intercourse with L.R. on April 26, 2014, and his DNA was located on one of the swabs taken from L.R. during the investigation. Of" course, defendant did not admit to having sex with L.R. until after the -police informed him that L.R.’s rape kit would be tested for DNA.

Ultimately, it was the jury’s decision to discredit the testimony provided" by defendant and his relatives, Angela and Glenda, suggesting that L.R.—although extremely intoxicated—was a willing participant in an alleged sexual act that occurred prior to that attack in Jackson Park. The jury’s decision was based on a credibility call, and will not be disturbed on appeal. This assignment is without merit. ’

Excessiveness of Sentence

Defendant argues that trial court abused its discretion by imposing a 40-year sentence.

The district court is granted wide discretion when imposing a sentence within the minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the district court abused its discretion. State v. Young, 46,575 (La. App. 2 Cir. 09/21/11), 73 So.3d 473, writ denied, 11-2304 (La. 03/09/12), 84 So.3d 550; State v. Hardy, 39,233 (La. App. 2 Cir. 01/26/05), 892 So.2d 710. A district judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, consequently, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875, The reviewing court does not determine whether another sentence would have been more appropriate, but whether the district court abused its discretion. State v. Esque, 46,515 (La. App. 2 Cir. 09/21/11), 73 So.3d 1021, writ denied, 11-2347 (La. 03/09/12), 84 So.3d 551.

.. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith 01-2574 (La. 01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Shoupe, 46,395 (La. App. 2 Cir. 06/22/11), 71 So.3d 508, writ denied, 11-1634 (La. 01/13/12), 77 So.3d 950. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 01/15/02), 805 So.2d 166; State v. Shoupe, supra. To constitute an excessive sentence, a court must find that the sentence makes no reasonable contribution to acceptable penal goals. State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262.

At the time of defendant’s offense, the penalty for forcible rape was imprisonment at hard labor for not less than five years nor more than 40 years, with at least two years of the sentence imposed without the benefit of probation, parole, or suspension of sentence.

The trial court considered the violent nature of the offense and considered the following to be aggravating factors. There were two attackers chasing and subduing one victim. The perpetrators then grabbed their victim by the neck and held her down before ripping her clothes. Defendant’s 40-year sentence is within the sentencing range and, given the nature of this case, does not shock the sense of justice. This assignment also lacks merit.

]^Error Patent Review

When sentencing defendant for forcible rape, the trial court failed to state that the first two years of his sentence shall be imposed without benefits. Failure to include the required statutory restrictions of a sentence is self-correcting on review, eliminating the need to remand for a ministerial correction of the illegally lenient sentence. La. R.S, 15:301.1(A); State v. Nelson, 47,637 (La. App. 2 Cir. 01/16/13), 109 So.3d 413. We therefore amend defendant’s sentence to reflect that the first two years are to be served without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:42.1(B). The trial court minutes are also to be amended to reflect this change.

A review of the record reveals that the trial judge did not properly inform defendant of the mandatory sex offender registration and notification requirements set forth in La, R.S. 15:540 et seq. Forcible rape is defined as a sex offense under La. R.S. 15:541. La R.S. 15:543 requires that the district court notify a defendant convicted of a sex offense, in writing (see La. R.S. 15:543.1), of the registration and notification requirements and that an entry be made in the court minutes, stating that the written notification was provided to the defendant.

While the minutes state that defendant was ordered to register as a sex offender, it appears that the judge did not provide defendant with written notification of the sex offender requirements. There is no indication in the record as to whether defendant is aware of the sex offender registration requirements for forcible rape. Therefore, we will remand this matter to the district court for the purpose of providing the appropriate written notice to defendant of the sex offender registration requirements and for the filing of h ¿written proof of such notice into the record of the proceedings. State v. Wilson, 50,418 (La. App. 2 Cir. 04/06/16), 189 So.3d 513, writ denied, 16-0793 (La. 04/13/17), 218 So.3d 629, 2017 WL 1534863; State v. Scott, 42,997 (La. App. 2 Cir. 02/13/08), 975 So.2d 782.

CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed. Defendant’s sentence is amended to include the restriction of benefits and, as amended, it is affirmed. The matter is remanded to the trial court with instructions to provide the defendant with appropriate written notice of his sex offender obligations in compliance with La. R.S. 15:543 and to file written proof thereof in the record.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED, AFFIRMED; REMANDED.

      . As of August 1, 2015, forcible rape is referred to as second degree rape.

      . Defense counsel asked L.R. whether she ever accused Lowden Minnieweather, Jerry Renwick, or Gary Panley of raping her on previous occasions. Defense counsel attempted (unsuccessfully, since there were no police reports to support this assertion) to establish that L.R. had a history of accusing people of rape. At no point during this case, however, did L.R, accuse anyone else of committing the instant crime.

      . Captain Lynch was a sergeant with the police department at the time of the incident.

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

      . Defendant was in police custody at the time Glenda claimed to have seen him at the party.

      . The trial court did not order that a pre-sentence investigation be conducted prior to defendant’s sentencing.


text:
    Curtis BRICE, Plaintiff-Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Old Republic Insurance Company, Defendants-Appellants
    No. 51,393-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      LEWIS, BRISBOIS, BISGAARD & SMITH, LLP, By: Maureen 0. Sullivan, Jean Ann Billeaud, Jenna Harris, Counsel for Appellant, Old Republic Ins. Co.
    ALL AMERICAN LAW FIRM OF LA, LLC, By: Wade T. Visconte Counsel for Appellee
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   BROWN, C.J.

liOn October 4, 2009, plaintiff, Curtis Brice, was operating a vehicle owned by his employer, Baxter International, Inc., and was acting in the course and scope of his employment when he was involved in an automobile accident. Subsequently, plaintiff filed suit against Baxter’s liability insurer, Old Republic Insurance Co. Baxter had rejected uninsured/underinsured coverage except for “Economic Only” loss up to $100,000 per accident or occurrence. Plaintiff filed a motion for partial summary judgment. The sole issue was the validity of the selection of “Economic Only” UM/ UIM coverage. The trial court granted the motion, finding that the UM/UIM selection form Baxter completed was invalid, and thus, plaintiff was entitled to full ($5 million) liability coverage. Baxter has appealed. Finding that the UM form is valid, we reverse.

FACTS

On October 4, 2009, plaintiff, Curtis Brice, was driving on Lee Drive in Baton Rouge when he was rear-ended by a vehicle owned and driven by Justin Golden. At the time of the collision, Brice was acting in the course and scope of his employment as a senior regional sales manager for Baxter, a multinational pharmaceutical company. Additionally, Baxter owned the vehicle that Brice was operating.

As a result of the collision, Brice suffered injuries to his hip, neck, and right shoulder. Plaintiff started receiving workers’ compensation benefits thereafter. He attempted to return to work but was terminated from his | {.employment by Baxter. At some point after the wreck, Golden’s automobile insurer, U.S. Agencies Casualty Insurance Company, paid plaintiff its full policy limit of $10,000.

On May 11, 2010, Brice had surgery to address his right shoulder AC joint synovi-tis, right shoulder impingement syndrome, and right shoulder labral tear. He also underwent arthroscopy and a “partial removal” of his right “collarbone.” Plaintiff asserts that his injuries and the continuing pain have rendered him “totally disabled,” making it impossible for him to secure gainful employment.

On September -28, 2011, plaintiff filed suit against State Farm Mutual Automobile Insurance Co., his own insurer, and Old Republic, Baxter’s commercial automobile liability insurer.

The record reflects prior to the October 4, 2009, collision, ■ Old Republic issued a commercial automobile liability policy to Baxter with $5 million liability limits for the policy period May 1, 2008, through May 1, 2009. This policy was renewed for May 1, 2009, through May 1, 2010. Old Republic does not dispute that all premiums were paid prior to the collision.

On August 30, 2012, plaintiff filed a motion for summary judgment. Brice argued that since Baxter was covered for liability purposes, he was also an insured for UM coverage as a matter of law unless the UM coverage was validity rejected by his employer. Plaintiff asserted that on March 12, 2009, an employee of Baxter, Marie Kup-ferschmid, executed three UM | .¡forms “UA 182e” for Category 1 through Category 3 Motor Vehicles. However, Brice asserted: (1) the UM rejection forms do not identify Baxter as the named insured; (2) the forms do not distinguish whether Kup-ferschmid executed them as the “legal representative” or “named insured;” and (3) none of the UM rejection forms identified as “UA 182e” had Policy No. MWTB20158 listed on them at the time of execution. Plaintiff argued that the UM rejection forms were not properly executed as required by the Louisiana Supreme Court in Duncan v. U.S.A.A. Insurance Co., 06-0363 (La. 11/29/06), 950 So.2d 544. According to plaintiff, the Old Republic policy provides full UM limits of $5,000,000 for bodily and economic damages.

In reply, Old Republic, citing Bulletin 08-05 issued by the Commissioner of Insurance, argued that the current UM/UIM coverage form does not require a policy number. Old Republic asserted that it satisfied all of the other requirements of Duncan, and Kupferschmid signed the rejection form in her capacity as a duly authorized representative of Baxter. Old Republic further argued that waivers are presumptively valid.

On March 20, 2013, plaintiff and State Farm filed a joint order to dismiss with reservation of rights. Brice sought to dismiss, with prejudice, all of the rights, claims, and demands against State Farm, and reserve all of the aforementioned against Old Republic. Subsequently, the trial court granted this motion.

|4On March 24, 2016, Brice filed the instant motion for partial summary judgment. On May 23,2016, the trial court held a hearing, and on June 27, 2016, the trial court gave oral reasons for judgment in support of its ruling granting plaintiffs motion. A written judgment followed on August 15, 2016. The trial court ruled that Old Republic’s “Category 1” UM selection form for the 2009-2010 policy period was invalid and thus the policy had $5 million in bodily injury UM limits on the day of plaintiffs 2009 accident.

Old Republic has appealed from this adverse judgment.

DISCUSSION

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. Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La. 07/02/12), 94 So.3d 750; Rain and Hail, L.L.C. v. Davis, 49,813 (La. App. 2 Cir. 05/20/15), 165 So.3d 1204; Monroe Surgical Hospital, LLC v. St. Francis Medical Center, Inc., 49,600 (La. App. 2 Cir. 08/21/14), 147 So.3d 1234, writ denied, 14-1991 (La. 11/21/14), 160 So.3d 975.

Because the insurer bears the burden of proving a valid rejection of UM coverage or selection of lower limits, when plaintiff sought summary judgment in this case, he did not bear the burden of proving that the UM rejection form at issue is invalid. Gray v. American National Property & Casualty Co., 07-1670 (La. 02/26/08), 977 So.2d 839. Thus, Brice was not required to negate all essential elements of Old Republic’s claim, action, or defense, but'rather to point out to the court that there is an absence of factual ^support for one or more elements essential to Old Republic’s claim, action, or defense. La. C.C.P. art. 966(C); Gray, supra.

La. R.S. 22:1295 governs UM coverage in Louisiana. It provides, in pertinent part as follows:

(l)(a)(i) No automobile liability, insurance covering liability arising out of the ownership, maintenance, or usé of any motor vehicle shall be delivered or- issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section....
(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the | fisame named insured by the same insurer or any of its affiliates. .'..

Since the purpose of this statute is to provide recovery for automobile victims injured by an uninsured motorist, UM coverage will be read into any automobile policy unless validity rejected. Duncan, supra; Gray, supra. The statutes providing for UM coverage in the absence of a valid rejection or selection of lower limits must be liberally construed, while the statutory exceptions to UM coverage must be strictly construed. Id. Any exclusion from coverage must be clear and unmistakable. Id. The insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Id.

In Duncan, 950 So.2d at 551, the supreme court reviewed the form created by the commissioner of insurance for waiver of UM coverage and laid out six tasks which are required to successfully complete the waiver form:

[Essentially, the prescribed form involves six tasks:]

(1) initialing the selection or rejection of coverage chosen;
(2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident;
(3) printing the name of the named insured or legal representative;
(4) signing the name of the named insured or legal representative;
(5) filling in the policy number; and
(6) filling in the date.

In August of 2008, the Commissioner of Insurance issued Bulletin No. 08-02 with a revised UM form. It is this UM form that Baxter purported to complete. One of the purposes of Bulletin 08-02 was to provide guidance on what constitutes a “properly completed” UM form. Notably, Bulletin 08-02 removed the Duncan requirement (# 5) that the policy number be filled in on |7the UM form. However, Bulletin 08-02 provided that the following tasks must be completed by the insured:

1) His/Her signature;
2) His/Her printed name to identify his/ her signature;
3) The date the form is completed; and
4) Initials to select/reject UMBI coverage prior to signing the form.

Bulletin 08-02 also states that “if the insured selects lower limits (available in options 1 and 3 of the revised UM form) the exact amount of coverage must be printed on the appropriate line on the revised UM form prior to the insured signing the form.”

In Gray, supra, the supreme court held that a UM form was not valid when it was initialed and signed in blank by a representative of the insured and subsequently completed and backdated by an insurance agency employee who then sent the form to the insured. The court noted that the Duncan tasks must be completed prior to the signature. Id.

In support of plaintiffs motion for summary judgment, he attached the depositions of Peggy Vogel and Marie Kupfer-schmid.

In Vogel’s deposition, she stated that in 2009, she was a senior account specialist for AON Risk Services, Inc. In 2009, AON was acting in a brokerage capacity for Baxter in procuring commercial auto insurance. In discussing her involvement with the 2009 policy, Vogel stated that the policy would first go to AON before being submitted to Baxter. Prior to submitting the policy to Baxter, Vogel would meet with “someone” at|sBaxter to discuss what type of coverages the company would want on a yearly basis. Vogel testified that for the 2009 policy, she filled in “$100,000” for “Economic Only” UM coverage and printed the name “Marie Kupferschmid” on all three UM forms. Vogel could not recall whether Kupferschmid gave her the specific authority to write $100,000 or print Kupferschmid’s name on the form. When asked why she did this, Vogel stated that she “did it as an administrative assistance to the client,” and that she wrote down $100,000 because that is what Baxter had selected in previous years. Vogel stated that Baxter makes the ultimate decision on insurance and UM coverage in every state.

In Kupferschmid’s deposition, she stated that in 2009, she was the casualty insurance manager for Baxter, and her duties included acquiring and coordinating insurance. She testified that in 2009, AON was Baxter’s broker of record, which meant that AON had the authority to go out to insurance companies to obtain quotes and procure insurance. Kupferschmid stated that in April 2008, she sent Vogel an email giving AON the authority to “bind coverage” to Baxter. In 2009, Baxter’s risk management department made the decision regarding UM coverage. Kupfer-schmid testified that, as part of her duties, she was authorized to make that decision. In 2009, Kupferschmid would generally receive UM forms from all 50 states at one time. For the Louisiana 2009 policy, her hand-printed name and the hand-printed “$100,000” for “Economic Only” coverage was already placed on the UM form when she received it. However, Kupferschmid stated that it was typical that AON would put this on the form. She also confirmed that the UM forms from other states contained markings that were not her own. ^However, Kupferschmid stated that she read the 2009 policy before signing it, and she selected the $100,000 for “Economic Only” UM coverage.

Old Republic does not dispute that for the 2009 UM form, Kupferschmid did not print her name or write in $100,000 “Economic Only” UM coverage. Old Republic concedes that these notations were instead completed by Vogel. Nevertheless, Old Republic argues that since Kupfer-schmid received, read, and signed the 2009 UM forms, they are valid. We agree.

Despite plaintiffs arguments, we note that Bulletin 08-02 does not explicitly state that the blank in which the amount of UM coverage must be completed must be filled in by the insured if the insured selects lower limits. It merely requires that the insured make the selection, which Kupfer-schmid did by initialing and signing the form. Thus, Vogel’s action in inserting the $100,000 ¡amount does not run afoul of Bulletin 08-02. Further, Bulletin 08-02 does not require the insured to physically type or print their name on the form, only that the name of said insured is on the form. See Ponce v. Welch, 15-669 (La. App. 5 Cir. 03/16/16), 191 So.3d 73, writ denied, 16-00720 (La. 06/03/16), 192 So.3d 751.

In Lynch v. Kennard, 09-282 (La. 05/15/09), 12 So.3d 944, the plaintiff argued that a UM selection form was invalid because the insured’s secretary, not the insured himself, wrote the date on his UM selection form. The Louisiana Supreme Court found that the insured’s waiver of UM coverage was valid, noting that the form, on its face, was “properlyl in completed,” and that a properly completed, and signed form creates a rebuttable presumption that the insured knowingly rejected UM coverage. The court noted that the UM rejection form was signed by the named insured, and the blank next to the option for rejecting UM coverage was initialed by the insured. The court also mentioned that the insured’s name and the policy number were typed oh the form, not written by the insured himself, but the form was found to be valid nonetheless.

Here, Kupferschmid complied with three of the requirements, when she made her signature, dated the form, and initialed her selection for UM coverage.

In this case, Kupferschmid received all of the UM forms from the different states at once. Despite the fact that several of the forms, including the Louisiana 2009 UM form, already had markings on them when she received the forms, these markings were read and authorized by Baxter.

Baxter complied with the Duncan tasks and Bulletin 08-02 because the selection of $100,000 “Economic Only” coverage and Kupferschmid’s printed name appeared on the 2009 UM form when Kupfershcmid initialed and signed it. Kupferschmid made her signature, dated the form, and initialed her selection for UM coverage. Thus, we find that the 2009 UM form was properly completed and valid. o

CONCLUSION

The judgment of the trial court granting summary judgment is REVERSED, and this matter is REMANDED for further proceedings. Costs of this appeal are assessed against plaintiff.

      . This was plaintiffs second MSJ. After his first MSJ was denied, plaintiff unsuccessfully took writs to this court.

      . Old Republic is also Baxter’s workers’ compensation insurer.

      . Category 2 vehicles refer to motor vehicles with a gross vehicle weight over 20,000 and up to 50,000 pounds. Category 3 vehicles refer to motor vehicles with a gross vehicle weight over 50,000 pounds.

      . La. R.S. 22:860 was redesignated by the legislature as La. R.S, 22:1295 by Act 415 of the 2008 Louisiana Legislative Session, effective January 1, 2009. This act made no substantive changes to the provision. See Duncan, supra, for a detailed legislative history of the statute.

      . In addition to these depositions, plaintiff also attached or adopted by reference a cover letter dated 3/10/09 from AON 1o Old Republic, an affidavit of plaintiff, plaintiff’s first set of discovery to Old Republic, Old Republic's response to plaintiff's requests for admissions, Old Republic’s answers to plaintiff’s first set of discovery, including supplemental responses to request for admissions, Old Republic’s responses to second set of discovery, and a copy of relevant portion of the Old Republic policy.

      . In Ponce, supra, the UM form contained the typed name of the insured. The Fifth Circuit held that the UM form was valid even though someone other than the insured typed or printed her name.


author: DREW, J.

text:
    Betty Brown TRICHELL, Plaintiff-Appellant v. Billie Ray MAZA, Defendant-Appellee
    No. 51,408-CA
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2017

      ROUNTREE LAW OFFICES By: James A. Rountree, Michael G. Renneisen, Counsel for Appellant
    LAW OFFICE OF AMADO LEIJA By: Amado Leija, Mario Leija, Counsel for Appellee
    Before DREW, PITMAN, and GARRETT, JJ.
   DREW, J.

|, Plaintiff, Betty Brown Trichell (“Mrs. Trichell”), appeals from a judgment dismissing her action to reform a 2007 deed of sale of immovable property. We affirm.

FACTS

In 2007, Bill Maza owned a three-bedroom, two-bath home in Columbia, Louisiana, on the Ouachita River. Maza also owned the lot next door, upon which stood a workshop structure connected to the main house by a makeshift walkway.

Mrs. Trichell and her late husband, Ted, were friends with Mr. Maza and negotiated with him to buy the property for $140,000. According to Betty, “He [Bill] told us a hundred and ten for the house and thirty thousand for the building and the lot.” An employee at Betty and Ted’s mortgage company prepared a purchase agreement on July 30, 2007, which provides, in part:

The terms are property located @ 1373 Belle Cote Road, Ouachita Parish, Columbia, LA 71418
Property consists of 2 lots facing river— home is frame construction—3 bedroom 2 bath $110,000. Property has building on lot which is also framed. 1 acre lot + building $30,000. Total $140,000

This document has blanks at the bottom for the name and signature of the seller and purchaser. The blank for the seller is filled in with the handwritten printed (not cursive) name “Billie R Maza.” The blanks for the purchasers are filled in with the handwritten printed (not cursive) names “Ted W Trichell” and “Betty R Brown.” Next to the printed names of the ^[¿purchasers, .Mr. Trichell and Ms. Brown signed the document in cursive writing. However, there is no signature (cursive or otherwise) next to Mr. Maza’s name, and Betty said that he was not present when this document was prepared. Attached to this purchase agreement is a map that shows some 18 lots along the river, including the two lots at issue in this case.

On September 17,2007, Ted Trichell and Betty Brown signed all pages of a pre-printed three-page “Residential Agreement to Purchase and Sell” form that described the property on the first page as:

Property is to be sold and purchased, subject to title and zoning restrictions, servitudes of record, laws and/or ordinances affecting the property, for the sum of Home $110,000 Building lot $30,000 dollars. [$140,000]

On the third page, the document also describes the property in part as:

Includes 1 acre lot with workshop facing river adjoining house—see appraisal

All three pages of this document bear the handwritten initials “BRM” above the blank labeled “Seller’s Initials,” and the initials are dated 9/17/07. According to the plaintiff, this document was filled out and signed by Betty and Ted, and then “I [Betty] took it to Bill, he read it, said okay, he signed each page, initialed each page.” This document also contains the following clause:

LOAN APPLICATION: ... The Buyer also agrees to provide written proof to the seller of loan pre-approval including verification of credit, employment, & funds to close, by 10/17/2007 (date), or this agreement shall be void-able at the seller’s option.

Attached to this form agreement is another preprinted form with three parts. The top part is captioned “Seller’s Response to Buyer’s Offer.” This portion has a variety of options for the seller to respond to the buyer’s offer, including acceptance, rejection, and counteroffer sections. This part is blank | ¡¡(no option is checked) except for the signature of Billie Ray Maza along with Maza’s phone number and the date, 9/17/07. The center section, “Buyer’s Response to Seller’s Counter Offer,” is blank and unsigned by any party. The third part of the document, “Seller’s Response to Counter Offer,” is blank except for the signature of Billie R. Maza and the date.

The plaintiff explained that Mr. Maza gave Ted and her the legal descriptions of the two lots, and said that she faxed the descriptions to her mortgage company. She offered as evidence a fax cover sheet from October 19, 2007, referring to two attached legal descriptions; the cover sheet indicates that “Exhibit A is coirect” but says “Exhibit B—we are purchasing 1 acre of this property with workshop. Thanks, Betty.” Exhibit B on the following page refers to a 15.65-acre tract fronting the Ouachita River, but there is a sketch next to that legal description that depicts a nearly rectangular lot fronting 61.05 feet on the river. Betty explained that the handwriting was hers and included the information she received about the lots from Mr. Maza. She also testified that during the negotiations, she and Ted walked off the property with the defendant and that the property was bounded by survey stakes that Mr. Maza identified as the boundary markers.

As part of the mortgage process, an appraisal of the property was done, which included photos. The photos included the shop building next to the house and show the walkway between the two structures. Betty admitted she did not see the appraisal until after the closing. Because the property was in a flood zone, a flood elevation certificate was required for the mortgage, and Mr. Maza paid $400 to have that prepared. The comments section indicates, in part, “Single story outbuilding on piles has floor of 77.16 ft.” The photos attached also show the outbuilding.

|4On November 1, 2007, by authentic act, Ted and Betty as buyers and Mr. Maza, by power of attorney to Gloria Cashion as seller, executed a, cash sale deed for the property; the sale price was $145,000. That deed referred to an attached legal description of the property being sold, and this description included only the 0.48 acre-tract that included the main house; it did not mention the property next door or the shop. Likewise, the power of attorney gave Ms. Cashion authority to sell only the same 0.48 acre-tract described in the attached legal description. Betty reported that the first time she saw the documents was at the closing when they were being passed around for signature. She admitted that she did not read the deed or the power of attorney.

For many years, Betty and Ted occupied all of the property including the lot and the shed next to the house. However, the buyers paid the property taxes on the house only;. Mr. Maza continued to pay the property taxes for the adjacent lot and outbuilding. Betty said that Mr. Maza also stored some things in the outbuilding. She also admitted that Mr. Maza receives mail at 1375 Belle Cote Road, the address adjacent to the main house, and she said that he “probably assigned that as his address.”

Ted died in January 2015. In February, Betty encountered some people parked in front of the property looking for Mr. Maza, and then a few days later, Betty discovered some items missing from the outbuilding. She then called Mr. Maza, who admitted that he had been in the building. When she challenged why he had been there, she said that he told her “you don’t know what you bought, that’s mine.”

|fiMrs. Trichell had a survey done of the lot next door; that survey shows that the lot is 0.3 acres. She testified that later that month, Mr. Maza was conciliatory and offered to reconcile the situation if she would pay the property taxes he had paid, along with part of the water bill. She agreed to pay the taxes but not the water bill. The next day, Mr. Maza told Mrs. Trichell that he had changed his mind and was unwilling to deal with her about the property.

One of Mrs. Trichell’s friends and neighbors, Sheri Piercy, testified as well. Ms. Piercy grew up on Belle Cote Road at a home next to Mr. Maza’s property, and was the prior occupant of the home the Trichells bought in 2006 and 2007, renting it from Mr. Maza. Ms. Piercy testified that Mr. Maza had offered to sell the house and adjacent lot including the shop to the Pier-cys for $140,000. She admitted that she was $10,000 behind on her rent to Mr. Maza when she moved out of the home.

Mr. Maza testified that he never agreed to sell the house and the adjoining lot to the Piercys or the Trichells for $140,000. He explained that his signature on the September 17, 2007, “Residential Agreement to Purchase and Sell” was placed on the document before the “lot and building” description was added. Mr. Maza said that he had agreed to sell the Trichells only the house, not the lot next door. He suggested that the plaintiff wrote in the “lot and building” description after he (Mr. Maza) signed it. He said that he would never have agreed to sell the lot with the shop because that property provided the only right of way to get to the adjoining 15 acres that he owned, and was “functional” to him. Mr. Maza gave his version of what happened when he walked the property with the Trichells:

| fiThe stakes we were looking for were the stakes of the old lot and where the house there on on [sic] 4 acres. Those stakes we was looking for them. His daddy used to own that lot. That’s the lot he bought. He understood what he bought. And we—I never did find those stakes until she got it surveyed here a while back.

Mr. Maza admitted that the electricity for the shop building came from a connection to the main house and that the Tric-hells had been paying the electric bill, but explained that the only electrical equipment on the adjacent lot was a freezer kept in the shop building. He said that he stored woodworking materials in the shop building until he built another shop on other property that he owned, and he also continued to keep lumber under the shop building until the area flooded.

At the end of the plaintiffs case, the defendant moved for a directed verdict, which the trial judge granted. Among other things, the trial judge expressed that signatures are not mere ornaments: “if it is overturnable simply because you say I didn’t read it and I didn’t inspect it, then it would open up a floodgate for everybody in the world to come in and overturn something simply because they said they didn’t read it.” The trial court concluded by finding that the plaintiff failed to carry her burden of proof. Plaintiff now appeals.

DISCUSSION

On appeal, Mrs. Trichell argues that the trial court erred in rejecting, or refusing to consider, evidence that mutual error led to the transfer- of only the house in the 2007 deed. She argues:

• The district court seemed to believe that Mr. and Mrs. Trichell were negligent in failing to detect the error in the legal description; and
!?• The district court erred by ignoring evidence of mutual error in the 2007 deed.

Mrs. Trichell cites several items of evidence in her favor, including:

• The July 2007 “Agreement to Purchase” plainly states the property to be sold included “2 lots facing river” and separately priced the properties for a total of $140,000.
• The buildings were connected by a walkway shown in photos from both the 2007 appraisal and 2007 flood elevation certificate, both of which included the shop building/lot.
• The electricity for the shop building came from the house.
• The September 17, 2007, “Residential -Agreement, to Purchase and Sell,” initialed by Maza on all three pages, specifies that the property being sold was “Home $110,000 Building 4- Lot $30,000 ... $140,000” and “Includes 1 acre lot with workshop facing river adjoining house—see appraisal.”
• Mrs. Trichell testified -that this agreement represented the deal that she and her late husband made with Mr. Maza.
• Mr. Maza’s “surprising” claim that this agreement had been altered after he signed it.
• Exhibit 3, the “description that Bill had given us for the property, and the lot, the house and the lot.”
• The surveyor stakes on the lots that all parties observed in 2007.
• The Trichells’ undisturbed use of the property for many years prior to Ted Trichell’s death.
• Mr. Maza’s initial admission that he realized that there had been a mistake and agreement, later withdrawn,- to. transfer the adjoining lot/ shop to her if she would pay the taxes and water bill. . . .
• Mr. Maza’s alleged agreement to sell th^ adjoining lot/shop building along with the house to the Piercys for $140,000.

Based upon all of this, Mrs. Trichell argues that the September 17, 2007, agreement represented the actual deal made by the parties and that the legal description attached to the deed, which is far more difficult for a layman to read, does not.

| «The motion for involuntary dismissal is defined by La. C.C.P. art. 1672 B;

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the évidence.

This court recently explained the procedure for involuntary dismissal in Town of Arcadia v. Arcadia Chamber of Commerce, 50,564 (La. App. 2 Cir. 4/13/2016), 195 So.3d 23:

A motion for involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based on a preponderance of the evidence.... Proof by a preponderance means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not.... The plaintiff opposing a motion for involuntary dismissal is entitled to no special inferences in his favor .... The appellate court will not reverse an involuntary dismissal in the absence of manifest or legal error.

Citations omitted.

In Peironnet v. Matador Resources Co., 2012-2292 (La. 6/28/13), 144 So.3d 791, the Supreme Court discussed, at length, the law of error as it relates to reformation and rescission of contracts. In the course of that discussion, the Court cited a portion of a law review article from Professor Litvinoff, which we repeat here:

When a contract is reduced to writing, an error may occur in the drafting of the instrument so that the written text does not reflect the true intention 'of the parties, When such is the case, upon proof that the error is mutual, that is, that neither party intended the contract to be as reflected in the writing, the court may decree the reformation of the written instrument, rather than the rescission of the contract, so that the writing, once reformed, will express the parties’ true intention.
Ijn the view expressed by Louisiana courts, an action to reform a written instrument is an equitable remedy, and it lies only to correct errors in a written instrument that does not express the true agreement of the parties.
An action to reform a written instrument is a personal action, even when applied to real estate, and the burden of establishing the mutual error by clear and convincing proof rests on the party seeking reformation.

Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 45-46 (1989) (footnotes omitted). See also, Matthews v. Duke, 48,887 (La. App. 2 Cir. 5/23/14), 141 So.3d 346, writ denied, 2014-1541 (La. 10/24/14), 151 So.3d 607; M.R. Building Corp. v. Bayou Utilities, Inc., 25,759 (La. App. 2 Cir. 5/4/1994), 637 So.2d 614.

In this case, the plaintiff argues that the parties were in mutual error about the object of the sale, that she was not in unilateral error, and that the deed should be reformed to reflect the parties’ true intent. In M.R. Building, supra, this court explained:

A mutual mistake is a mistake shared by both parties to the instrument at the time of reducing their agreement to writing, and the mistake is mutual if the contract has been written in terms which violate the understanding of both parties; that is, if it appears that both have done what neither intended.

After a close examination of the testimony and the documentary evidence, we find no error in the trial court’s conclusion that the plaintiff simply failed to carry her burden of proving by clear and convincing evidence that the deed should be reformed due to error. This real estate transaction was handled with less formality than most such transactions, and that lack of formality makes the evidence about the object of the sale equivocal at best. The July 2007 purchase agreement clearly describes the property to be sold as “2 lots facing river” and includes both the house and the shop lot. However, the record does not reflect that Mr. Maza ever saw | inthat agreement; he certainly did not sign it. This is some evidence that the buyers were in unilateral error about the object of the sale, but it provides no evidence that Mr. Maza knew or should have known of the buyers’ belief or error.

What we consider the plaintiffs best evidence is the September 17, 2007, “Residential Agreement to Purchase and Sell,” which stipulates in two different places that the object of the sale was both the house and the shop/lot and which is initialed on all three pages by Mr. Maza. Here, the testimony is directly contradictory; Mrs. Trichell argues that Mr. Maza had the opportunity to read the completed document before initialing it while Mr. Maza argues that the document he initialed did not include the language about the adjacent building and lot. The choice between those two versions is essentially a credibility call, but we again observe that (1) the earlier (July 2007) purchase agreement was evidently never presented to Mr. Maza, and (2) the preprinted “Seller’s Response to Buyer’s Offer” and “Seller’s Response to Counter Offer” were both signed by Mr. Maza on September 17, 2007, with absolutely no information on the rest of that form to indicate the object of the sale, the scope of his acceptance or the price. Finally, we observe that the “Residential Agreement to Purchase and Sell” expired by its terms on October 17, 2007, prior to the closing on the property. This document supplies some evidence that the buyers believed they were buying the house and adjacent loVshop, but given Mr. Maza’s testimony, it does not prove by clear and convincing evidence that he knew or should have known of the buyers’ belief.

Cumulatively, the rest of the evidence supplied simply fails to show either that (1) both parties were in error, or (2) Mr. Maza knew or should In have known that the buyers were in error about the object of the sale. The record reflects that Mr. Maza continued to pay the property taxes on the contested lot after the sale and the trial court was well within its discretion to accept Maza’s testimony that he would not have sold the adjoining lot for the plausible reason that selling the lot would cause him to lose his right of way to- the adjacent property he owned. Sadly, this unfortunate situation could have been avoided with the employment of the usual formality for real estate transactions that clearly defines the scope of what is to be sold. As it stands, the plaintiff simply failed to carry her burden of proving reformation-worthy error by the heightened clear and convincing evidence standard.

DECREE

At appellant’s cost, the judgment below is AFFIRMED.

      . Through the record, Mr. Maza’s name appears as Bill, Billy,'and Billie. In the opinion, he will be referenced as Mr. Maza.

      . Betty and Ted were unmarried in 2007; her maiden name was Betty Brown.

      . Mr. Maza was not present at the closing; Ms. Cashion is his sister.

      . Although counsel asked for a directed verdict, this relief is not available in a bench trial. The trial judge properly interpreted it as a motion for involuntary dismissal, La. C.C.P. art. 1672 B.