source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Curtis CHELEY
    17-696 consolidated with 17-538
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Curtis Cheley
    Hon. Asa Allen Skinner, Thirtieth Judicial District Attorney, Terry W. Lambright, First Assistant District Attorney, P. O. Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

For the reasons expressed in State v. Cheley , 17-538 (La.App. 3 Cir. __/__/__), 237 So.3d 58, Defendant's conviction is affirmed, his sentence is vacated, and the matter remanded to the trial court for an evidentiary hearing on whether Defendant's prior guilty plea for possession of cocaine was informed and voluntary, and for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.


author: KEATY, Judge.

text:
    CATAHOULA LAKE INVESTMENTS, LLC v. HUNT OIL COMPANY, et al.
    CW 2017-649
    Court of Appeal of Louisiana, Third Circuit.
    January 10, 2018
    Gladstone N. Jones, III, Bernard E. Boudreaux, Jr., Kevin E. Huddell, Eberhard D. Garrison, H. S. Bartlett, III, Emma Elizabeth Daschbach, John T. Arnold, Lindsay E. Reeves, Jones, Swanson, Huddell & Garrison, LLC, 601 Poydras Street, Suite 2655, New Orleans, Louisiana 70130, (504) 523-2500, Counsel for Plaintiff/Relator: Catahoula Lake Investments, LLC
    Jennifer Jones, Jones Law Firm, Post Office Box 1550, Cameron, Louisiana 70631, (337) 775-5714, Counsel for Plaintiff/Relator: Catahoula Lake Investments, LLC
    William Michael Adams, Paul M. Adkins, Stacey Denise Williams, Brian C. Flanagan, Blanchard, Walker, O'Quin, P. O. Drawer 1126, Shreveport, LA 71163-1126, (318) 221-6858, Counsel for Defendant/Respondent: Petro-Hunt, LLC
    Jamie D. Rhymes, April L. Rolen-Ogden, Hunter A. Chauvin, Liskow & Lewis, Post Office Box 52008, Lafayette, Louisiana 70505-2008, (337) 232-7424, Counsel for Defendant/Respondent: XH, LLC
    Joseph I. Giarrusso, III, Liskow & Lewis, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139, (504) 581-7979, Counsel for Defendant/Respondent: XH, LLC
    Michael P. Cash, Liskow & Lewis, 1001 Fannin Street, Suite 1800, Houston, Texas 77002, (713) 651-2900, Counsel for Defendant/Respondent: XH, LLC
    Matthew Joseph Randazzo, III, Christopher B. Bailey, Charles W. Montz, Jr., Jackson D. Logan, III, Randazzo, Giglio & Bailey, LLC, P. O. Box 51347, Lafayette, LA 70505, (337) 291-4900, Counsel for Defendant/Respondent: Kingfisher Resources, Inc.
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

Plaintiff-Relator, Catahoula Lake Investments, LLC, seeks supervisory writs from a judgment which granted, in part, an exception of no right of action filed by Defendants-Respondents, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C. In Docket Number 17-651 with this court, Defendants-Relators, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C., seek supervisory writs from the same judgment which denied, in part, their exception of no right of action.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed suit against Defendants claiming that their operations on Plaintiff's property under mineral leases and a mineral servitude caused damage to the property. Defendants filed exceptions of no right of action, asserting that because all mineral operations had ceased prior to Plaintiff's purchase of the subject property, the subsequent purchaser doctrine prohibited Plaintiff from recovering against Defendants since Plaintiff's contract purchasing the property did not expressly pass the seller's personal rights of action to Plaintiff. The trial court granted the exception of no right of action in part, stating:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Exceptions of No Right of Action filed by Defendants are hereby GRANTED IN PART and DENIED IN PART . In particular, those exceptions are GRANTED as to the pre-acquisition damages claims made against Defendants by the Plaintiff, and those claims are dismissed. Defendants' exceptions are DENIED as to plaintiff's post-purchase claims for regulatory mediation pursuant to Louisiana Revised Statute[s] 30:29 (Act 312).

Ordinarily, we would deny Plaintiff's writ application as the judgment at issue dismisses portions of Plaintiff's claims and, therefore, falls under La.Code Civ.P. art. 1915(B). As such, Plaintiff could obtain review of the judgment by having the trial court designate the partial judgment as final and immediately appealable. However, in this instance, Defendant has filed a writ application seeking the granting of the remainder of their exception of no right of action. Plaintiff's opposition to Defendants' writ application is based on the same arguments made in support of Plaintiff's writ application. Thus, in ruling on Defendant's properly-filed writ application, we will necessarily need to address whether Plaintiff's arguments are meritorious. Therefore, judicial efficiency mediates toward considering the merits of both writ applications at this time.

STANDARD OF REVIEW

"The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Hood v. Cotter , 2008-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court's ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person.
The determination whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review.

Eagle Pipe , 79 So.3d at 255-56 (citations omitted).

DISCUSSION

Plaintiff contends that the trial court was incorrect in finding that the contract by which Plaintiff obtained ownership of the property did not also transfer the seller's personal rights to sue Defendants to demand restitution for damages caused to the property prior to when Plaintiff obtained ownership. Plaintiff submits that such incorrect finding led the trial court to wrongfully conclude that the subsequent purchaser doctrine was inapplicable to its claims. Alternatively, Plaintiff argues that the obligations arising from a mineral servitude provide an independent basis for seeking damages from the servitude owner that are not subject to the limitations arising from the obligations established by the mineral leases.

Plaintiff and Defendants do not contest that the statutory laws of this state provide that in order for a vendee to obtain the personal rights of action belonging to its vendor, the contract must expressly provide that the vendor is assigning these personal rights to the vendee. Where the parties disagree, however, is whether the original transfer of the property to Plaintiff from its vendor, Red Mountain Timberco III, LLC, in 2007 included this express provision. That contract provides, in pertinent part (emphasis added):

Vendor is selling the Property "AS IS, WHERE IS" without any warranties whatsoever as to fitness or condition, whether expressed or implied, and Vendee expressly waives the warranty of fitness and the guarantee against hidden or latent vices (defects in the Property sold which render it useless or render its use so inconvenient or imperfect the Vendee would not have purchased it had he known of the vice or defect) provided by law in Louisiana, more specifically, that warranty imposed by Louisiana Civil Code 2520 et seq [.] with respect to Vendor's warranty against latent or hidden defects of the Property sold, or any other applicable law, not even for a return of the purchase price. Vendee forfeits the right to avoid the sale or reduce the purchase price on account of some hidden or latent vice or defect in the Property sold. Vendor expressly subrogates Vendee to all rights, claims and causes of action Vendor may have arising from or relating to any hidden or latent defects in the Property . This provision has been called to the attention of the Vendee and fully explained to the Vendee, and the Vendee acknowledges that he has read and understands this waiver of all express or implied warranties and accepts the Property without any express or implied warranties.

The trial court's written reasons in this matter provide as follows:

The instant parcel of property is the subject of a long line of title between Bodcaw Corporation, International Paper, Inc., its several affiliated companies and Red Mountain Timber Company prior to CLI acquiring ownership of the impacted property. Throughout the early chain of title between Bodcaw and International Paper until the final transfer to Sustainable Forests, language appeared in the acts of conveyance that conceivably could have transferred the litigious rights to their successor in interest. However, in the transfer between Sustainable Forests and Red Mountain Timber Company, no such language exists. The only language found is the broad, general, and "non-explicit" language as follows:
Vendor expressly subrogates Vendee to all rights, claims and causes of action Vendor may have arising from or relating to any hidden or latent defects in the Property.
While this language would seem broad enough to transfer "any" cause of action to a Vendee, it is this breadth that the Court believes is its death knell. Application of this language to "any" right leads to absurd consequences, such as claims for the destruction of structures or the unauthorized cutting of timber. The lack of specificity does not indicate to third parties that the personal right to sue for environmental damages caused by oil and gas operations was transferred to Red Mountain Timber.
This same broad general language appears in the original deed from Red Mountain Timber Company and CLI. However, this Court finds it interesting and persuasive that the parties to this instrument (presumably CLI) caused to be executed in July, 2010, a document entitled "Ratification and Clarification" to the August 27, 2007 deed, specifically explaining the subrogation and transfer language to include:
all rights to seek damages to cleanup and or restore all soils, surface waters and ground waters where oilfield waste, pollutants, contaminants, or products were stored or disposed of or where such oilfield substances are or may be found on or in the Property .... Also conveyed was the right for recovery of any damages resulting from the storage, disposal or presence of oilfield related substances on the Property conveyed.
Even if this language is accepted as being the true intent between Red Mountain Timber Company and CLI, no such language is evident providing the intentions of the parties in the deed between Sustainable Forests and Red Mountain Timber Company. Obviously, this ratification and clarification cannot operate retroactively to provide and (sic) interpretation of the rights transferred in the act of conveyance entered between Sustainable Forests and Red Mountain Timber Company.
Thus, regardless of what CLI and Red Mountain Timber Company understood was transferred in their act of conveyance, no evidence is presented that clarifies what Sustainable Forests intended to transfer to Red Mountain Timber Company. As a result, since Red Mountain Timber Company never had the right to sue for damages related to oil and gas operations, it is axiomatic that it cannot transfer to CLI those rights which it did not possess. Since the plaintiff is not asserting a real right, but rather a personal right for pre-acquisition damages, the court finds that the subsequent purchaser doctrine is applicable to the instant litigation. As a result, the Exceptions of No Right of Action filed by defendant[s] is granted as to the pre-acquisition damages, and plaintiff's petition is dismissed as to those claims.

Defendants cite three Louisiana Supreme Court cases in support of the trial court's reasoning on this point: Eagle Pipe , 79 So.3d 246 ; Bradford v. Richard , 46 La.Ann. 1530, 16 So. 487 (1894) ; and Matthews v. Alsworth , 45 La. Ann. 465, 12 So. 518 (1893). In Eagle Pipe , 79 So.3d at 281, the contract at issue was quoted as follows:

... [the sellers] do by these presents sell, transfer and deliver, with full guarantee of title and free from all encumbrances, and with full subrogation to all their rights and action of warranty against previous owners ...

The supreme court found that this provision did not transfer the sellers' personal rights of action to the purchaser; therefore, the court held that the subsequent purchaser doctrine acted to bar the plaintiff's claims for hidden environmental damage to the subject property which had occurred prior to the plaintiff's purchase of the land. However, in reaching this conclusion, the Eagle Pipe court noted:

We find these provisions are substantially similar to those found in Prados [v. South Central Bell Tel. Co. , 329 So.2d 744 (La.1975) (on rehearing) ], in which we stated the subrogation clause in the act of sale was directed to the rights and actions of warranty against previous owners, and not an express assignment or subrogation of personal rights to the new owner.

Id. Because the provision in the contract at issue herein is significantly different from the one in Eagle Pipe , we agree with Plaintiff's contention that Eagle Pipe does not dictate the result in this matter.

In Bradford , 16 So. at 487, the purchaser of land filed suit against a defendant who had allegedly "cut from said land a large number of cypress trees, and made the same into boards and shingles, staves and wood" prior to the plaintiff's purchase of the land. The plaintiff "allege[d] that said staves now are, and always have been, the sole, lawful property of [the plaintiff], and that he is entitled to recover possession of the same, or the value thereof, with full damages for their conversion." Id. In support of his subrogation argument, the plaintiff relied upon the following contractual provision in the purchase agreement, " 'With full substitution and subrogation in and to all the rights and actions of warranty which said board has or may have against all preceding owners and vendors, and to all other rights and actions against all other persons.' " Id. at 488. The supreme court held that this language was too ambiguous to be construed as having conveyed to the purchaser the personal rights belonging to the seller. Furthermore, the court noted that the plaintiff had paid less for the property because of the claimed damages as he was suing the defendant for damages totaling almost three times more than what he had paid for the property. As such, we conclude that Bradford is factually distinguishable from this case.

In Matthews , 12 So. at 518, the plaintiff, who purchased property subject to an existing lease, sued the defendant/lessee "for a dissolution of the lease for alleged violation, for compensation for diminution in the value of the plantation, and for the rent of the year 1891." The property had been sold to the plaintiff in January 1892 "free from incumbrances, 'except the lease to the defendant of October, 1890.' " Id. The act of sale in which the plaintiff acquired the property provided:

"Said lease and all the aforesaid conveyors' rights in, to, or under the same are transferred hereby, and simultaneously herewith, to the conveyee herein. This conveyance is made with complete transfer and subrogation of all rights and all actions of warranty or otherwise against all former claimants, proprietors, tenants, or warrantors of the property herein conveyed."

Id. The supreme court held that the above provision did not transfer to the plaintiff the seller's personal right to recoup against the defendant for damages caused by the defendant's actions under the prior lease that had terminated before the sale of the property to the plaintiff. Discussing Matthews , the Eagle Pipe court, 79 So.3d at 266, noted:

The personal right of the owner to sue for damages was not explicitly assigned in the act of sale, and additionally was not an accessory right which passed with the title without description of, or reference to, the claim. In the act of sale, the property was specifically described, and there was no mention of a claim for damages. ... Matthews reinforces the proposition that personal rights of the former owner do not pass with the property in an act of sale unless specifically assigned or subrogated to the new owner.

We conclude that Matthews is also distinguishable from this matter.

The contractual provision at issue herein reads, "Vendor expressly subrogates Vendee to all rights, claims and causes of action Vendor may have arising from or relating to any hidden or latent defects in the Property." The supreme court's opinion in Eagle Pipe , 79 So.3d 246, extended the application of the subsequent purchaser doctrine, which previously had been limited to overt or obvious damage to property, to hidden or latent defects in property. Thus, we view the use of the terms "hidden or latent defects" as an intentional attempt by the parties to this contract to protect the purchaser of this property by transferring any rights the seller might have against a third party for "hidden or latent" damages to the property, the very damages at issue in this case. Thus, we find merit to Plaintiff's logic that the paragraph of the contract where this provision is found indicates that, in exchange for passing these rights on to the purchaser, the seller was obtaining the purchaser's waiver of any right to seek rescission of the sale or a diminution in the price paid for the property for these same hidden or latent defects.

As quoted above, the trial court's written reasons indicate why it reached the conclusion that the contract did not subrogate Plaintiff to the seller's rights to sue for property damages caused prior to Plaintiff's ownership:

Application of this language to "any" right leads to absurd consequences, such as claims for the destruction of structures or the unauthorized cutting of timber. The lack of specificity does not indicate to third parties that the personal right to sue for environmental damages caused by oil and gas operations was transferred to Red Mountain Timber.[ ]

We disagree with that rationale because the examples given by the trial court, i.e., "destruction of structures" on the property or "unauthorized cutting of timber" from the property, would have been open and obvious at the time that those damages occurred and the rights of the seller to sue a third party for those damages would not have been passed on to the purchaser under this provision which was limited to "hidden or latent defects." Thus, those types of damages are the very type of open and obvious damages for which the subsequent purchaser doctrine was created, i.e., the purchaser of property from which structures or timber has been removed is going to reduce the amount that the purchaser is willing to pay to the seller for the property, and permitting the purchaser then to recover against the third party that removed the structures or timber will result in the purchaser receiving a windfall at the seller's expense. Additionally, the damage sustained by the seller from the open and obvious damage to the property is realized in the reduced price that the seller must take from a willing buyer for the property. Thus, we conclude that the trial court's erroneous examples provide the clearest explanation for why the contractual provision in the instant case is legally distinguishable from the earlier cases applying the subsequent purchaser doctrine.

After having performed a de novo review, we find that the contract at issue operated to subrogate Plaintiff to the seller's personal rights to seek damages for all hidden, latent defects in the property caused by Defendants. Accordingly, the trial court erred in granting, in part, Defendants' exception of no right of action.

DECREE

The writ application filed by Plaintiff-Relator, Catahoula Lake Investments, LLC is granted and made peremptory. We reverse the portion of the trial court judgment which granted, in part, the exception of no right of action filed by Defendants-Respondents, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C., reinstate all of Plaintiff-Relator's claims against Defendants-Respondents and remand this matter to the trial court. All costs associated with this matter are assessed against Defendants-Respondents, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C.

WRIT GRANTED AND MADE PEREMPTORY. JUDGMENT REVERSED IN PART AND RENDERED.

      In its written reasons for ruling, the trial court noted that "the parties stipulated for purposes of the hearing on the exceptions, that all oil and gas activity ceased on the property in question no later than 1992, when CLI's predecessor in title owned the property."

      The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.
      Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 8 (La. 10/25/11), 79 So.3d 246, 256-57.

      The contract by which Red Mountain obtained ownership from its vendor, Sustainable Forests, LLC, is substantially the same as that in the contract between Plaintiff and Red Mountain. Additionally, there is a second contract between Plaintiff and Red Mountain that was executed in 2011, several years after the original contract. However, Defendants do not raise any issue as to the contracts transferring ownership to the other ancestors in title as they apparently acquiesce in the finding that those contracts did successfully transfer the personal rights of the vendors to the vendees.
      Similarly, the contract by which Red Mountain obtained ownership of the property from Sustainable Forests in 2006 provided (emphasis added):
      Vendor is selling the Premises without any warranties whatsoever as to fitness or condition, whether expressed or implied, and Vendee expressly waives the warranty of fitness and the guarantee against hidden or latent vices (defects in the Premises sold which render it useless or render its use so inconvenient or imperfect the Vendee would not have purchased it had he known of the vice or defect) under Louisiana Civil Code Article 2475 et seq., and more specifically, that warranty imposed by Louisiana Civil Code Articles 2520 through 2548, inclusive, with respect to Vendor's warranty against latent or hidden defects of the Premises sold, or any other applicable law, not even for a return of the purchase price. Vendee forfeits the right to avoid the sale or reduce the purchase price on account of some hidden or latent vice or defect in the Premises sold. Vendor expressly subrogates Vendee to all rights, claims and causes of action Vendor may have arising from or relating to any hidden or latent defects in the Premises. This provision has been called to the attention of the Vendee and fully explained to the Vendee, and the Vendee acknowledges that he has read and understands this waiver of all express or implied warranties and accepts the Premises without any express or implied warranties.

      In its petition for damages, Plaintiff sought, among other things, compensatory, punitive, and stigma damages and remediation of its property which was allegedly contaminated by Defendants' oil and gas operations.

      While the trial court was discussing the provision in the contract between Sustainable Forests and Red Mountain whereby the latter obtained ownership of the property which it would then later sell to Plaintiff herein, we note that the language of that prior contract is identical to the language in the contract between Red Mountain and Plaintiff.


text:
    CATAHOULA LAKE INVESTMENTS, LLC v. HUNT OIL COMPANY, et al.
    CW 2017-651
    Court of Appeal of Louisiana, Third Circuit.
    January 10, 2018
    Gladstone N. Jones, III, Bernard E. Boudreaux, Jr., Kevin E. Huddell, Eberhard D. Garrison, H. S. Bartlett, III, Emma Elizabeth Daschbach, John T. Arnold, Lindsay E. Reeves, Jones, Swanson, Huddell & Garrison, LLC, 601 Poydras Street, Suite 2655, New Orleans, Louisiana 70130, (504) 523-2500, Counsel for Plaintiff/Relator: Catahoula Lake Investments, LLC
    Jennifer Jones, Jones Law Firm, Post Office Box 1550, Cameron, Louisiana 70631, (337) 775-5714, Counsel for Plaintiff/Relator: Catahoula Lake Investments, LLC
    William Michael Adams, Paul M. Adkins, Stacey Denise Williams, Brian C. Flanagan, Blanchard, Walker, O'Quin, P.O. Drawer 1126, Shreveport, LA 71163-1126, (318) 221-6858, Counsel for Defendant/Respondent: Petro-Hunt, LLC
    Jamie D. Rhymes, April L. Rolen-Ogden, Hunter A. Chauvin, Liskow & Lewis, Post Office Box 52008, Lafayette, Louisiana 70505-2008, (337) 232-7424, Counsel for Defendant/Respondent: XH, LLC
    Joseph I. Giarrusso, III, Liskow & Lewis, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139, (504) 581-7979, Counsel for Defendant/Respondent: XH, LLC
    Michael P. Cash, Liskow & Lewis, 1001 Fannin Street, Suite 1800, Houston, Texas 77002, (713) 651-2900, Counsel for Defendant/Respondent: XH, LLC
    Matthew Joseph Randazzo, III, Christopher B. Bailey, Charles W. Montz, Jr., Jackson D. Logan, III, Randazzo, Giglio & Bailey, LLC, P.O. Box 51347, Lafayette, LA 70505, (337) 291-4900, Counsel for Defendant/Respondent: Kingfisher Resources, Inc.
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

Defendants-Relators, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C., seek supervisory writs from a judgment which denied, in part, their exception of no right of action filed against Plaintiff-Respondent, Catahoula Lake Investments, LLC. In Docket Number 17-649 with this court, Plaintiff-Relator, Catahoula Lake Investments, LLC, seeks supervisory writs from the same judgment which granted, in part, the exception of no right of action filed by Defendants-Respondents, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C.

In view of our decision rendered today in Catahoula Lake Investments, LLC v. Hunt Oil Co. , 17-649 (La.App. 3 Cir. __/__/__), 237 So.3d 585, 2018 WL 1079585, wherein we granted and made peremptory the writ, thereby reversing the portion of the trial court judgment which granted, in part, the exception of no right of action filed by Defendants-Respondents, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C., and reinstated all of Plaintiff-Relator's claims against Defendants-Respondents, this writ is now moot.

DECREE

For the reasons assigned, this writ is denied as moot. All costs associated with this matter are assessed against Defendants-Relators, XH, LLC; Kingfisher Resources, Inc.; and Petro-Hunt, L.L.C.

WRIT DENIED AS MOOT.


author: KYZAR, Judge.

text:
    Linda MOUTON v. AAA COOPER TRANSPORTATION, et al.
    Cory Mouton v. AAA Cooper Transportation, et al.
    2017-666 c/w 2017-667
    Court of Appeal of Louisiana, Third Circuit.
    January 10, 2018
    David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, LLC, Post Office Box 80098, Lafayette, Louisiana 70598-0098, Counsel for Plaintiffs/Appellees: Linda Mouton and Corey Mouton
    S. Daniel Meeks, Nicholas J. Lorosso, Phyllis E. Glazer, Kristen E. Meeks, Meeks & Associates, LLC, 3401 West Esplanade Avenue, South, Suite 3, Metairie, Louisiana 70002, Counsel for Defendants/Appellants: AAA Cooper Transportation, Inc.; Arthur Huguley; and Ace American Insurance Company
    Michael J. Remondet, Jr., Michael R. Guidry, Scott F. Higgins, Jeansonne and Remondet, Post Office Box 91350, Lafayette, LA 70509, Counsel for Intervenor/Appellee: T.K. Stanley, Inc.
    Court composed of John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.
   KYZAR, Judge.

This court issued a rule ordering Defendants-Appellants (hereinafter collectively referred to as Defendants), AAA Cooper Transportation, Inc. (ACT); Arthur Huguley (Huguley); and Ace American Insurance Company (Ace), to show cause, by brief only, why their appeal should not be dismissed as having been taken from the February 8, 2017 judgment which lacks proper decretal language, or, in the alternative, why the appeal (which has already been briefed) should not be suspended pending the receipt of a judgment containing proper decretal language. See Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Technologies, Inc. , 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909. For the reasons that follow, we suspend the appeal and remand the matter to the trial court with instructions to issue a judgment containing proper decretal language.

FACTS AND PROCEDURAL HISTORY

On April 24, 2014, Curley Mouton (Mouton) was fatally injured in an automobile accident that occurred when the tire of the tractor-trailer rig driven by Huguley and owned by Huguley's employer, ACT, failed, which allegedly resulted in debris from the tire flying into the roadway. After Huguley's tire failed, the Mack truck being driven by Mouton left its lane of travel, struck and traveled through a guardrail on Interstate I-10, flipped over, hit a tree, and landed upside down in a drainage ditch. Plaintiffs-Appellees (hereinafter collectively referred to as Plaintiffs), Linda Mouton (the surviving spouse of the decedent) and Corey Mouton (the major son of the decedent), filed separate suits against Defendants. The suits were consolidated in the trial court.

Following a trial by jury, a verdict in favor of Plaintiffs was rendered. The jury apportioned ten percent (10%) of the fault to Huguley and ninety percent (90%) of the fault to ACT. Mouton was found to be free from fault. The jury awarded $67,702.22 (with $50,000.00 of that being damages for conscious mental and physical pain and suffering) in damages for the survival action; $410,000.00 in wrongful death damages to the surviving spouse; and $160,000.00 in wrongful death damages to the major son.

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), seeking an increase in the survival action general damage award. The trial court granted the motion and increased the amount for general damages in the survival action from $50,000.00 to $150,000.00. Costs were also taxed. Thereafter, the total judgment was $737,702.52 plus court costs.

On February 8, 2017, the trial court signed a judgment which taxed costs for expert fees and increased the survival action general damage award to $150,000.00. On March 1, 2017, Defendants filed a motion for suspensive appeal, obtained a signed order of appeal, and posted an appeal bond. In due course, the record was lodged in this court and briefs by the Defendants and Plaintiffs were filed. Then, this court issued a rule ordering Defendants to show cause, by brief only, why their appeal should not be dismissed as having been taken from the February 8, 2017 judgment which lacks proper decretal language, or, in the alternative, why the appeal (which has already been briefed) should not be suspended pending the receipt of a judgment containing proper decretal language. See Input/Output Marine Sys. , 52 So.3d 909.

DISCUSSION

In Input/Output Marine , 52 So.3d at 916 (citation omitted), the court stated that "the failure to name any defendant against whom the judgment was rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom the judgment may be enforced."

In Board of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll. v. Mid City Holdings, L.L.C. , 14-506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, the court stated:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc. , 10-477, p. 12, (La.App. 5 Cir. 10/29 10), 52 So.3d 909, 915. "A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." La. C.C.P. art. 1841. "A valid judgment must be precise, definite and certain.... The decree alone indicates the decision.... The result decreed must be spelled out in lucid, unmistakable language..... The quality of definiteness is essential to a proper judgment. Input/Output Marine , 10-477, pp.12-13, 52 So.3d at 915-16 (citations omitted).
... "The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Input/Output Marine , 10-477, p. 13; 52 So.3d at 916.

The judgment signed by the trial court on February 8, 2017, stated with respect to damages only that:

[I]t is hereby:
ORDERED, DECREED, AND ADJUDGED that the Motion for Judgment Notwithstanding the Verdict (JNOV) is GRANTED whereby the Court, after finding that the survival action general damage award by the jury was abusively low, increases said award from $50,000.00 dollars [sic] to $150,000.00 dollars [sic] for physical and mental paining [sic] and suffering incurred by the deceased, Curley Mouton.

The judgment does not name the parties against whom the judgment is rendered so that it is not evident as to which parties the judgment may be enforced. There is no mention of the amount of damages payable by the separate defendants according to the apportionment of fault. As a result, this judgment is not precise, definite or certain.

Defendants agree that the February 8, 2017 judgment lacks proper decretal language to confer appellate jurisdiction because the parties cast in judgment are not named and the relief granted is not specified. However, Defendants argue that this court should exercise its supervisory jurisdiction, vacate that judgment, render a final judgment, and then decide the merits of the appeal. See Zeigler v. Housing Auth. of New Orleans , 15-626 (La.App. 4 Cir. 3/23/16), 192 So.3d 175.

Defendants also cite Succession of Poole , 15-1317, p. 7 (La.App. 1 Cir. 10/28/16), 213 So.3d 18, 23, for the proposition that "[a] final judgment may be rendered by either a trial court or an appellate court, and judgment by an appellate court that decides the merits of the case is a final judgment, regardless of whether the case reached the appellate court on appeal or on supervisory writs."

In Zeigler , 192 So.3d 175, the trial court granted exceptions of no cause of action and no right of action, but the judgment did not name the party against whom the judgment was rendered and did not specify the relief granted. The fourth circuit stated that: "[h]ere, the motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs. We thus exercise our discretion and convert the instant appeal ... to an application for supervisory writ." Zeigler , 192 So.3d at 178.

Then, in Poole , 213 So.3d at 22, the first circuit dismissed an appeal based upon a finding that it had no subject matter jurisdiction to consider the appeal. In Poole , the trial court granted an exception of prescription and dismissed a third-party demand with prejudice. The third-party plaintiff filed an application for supervisory writs, which was granted thereby reversing the judgment. But, while that writ was pending, the third-party plaintiff filed an appeal of the same judgment. The first circuit stated: "Before us is the unusual circumstance in which the appellant, Ms. Fuselier, has filed an appeal from the March 5, 2015 judgment upon which we have already ruled, and has asked this court to dismiss the appeal as moot given our reversal of the trial court judgment in granting the writ." Poole , 213 So.3d at 22.

We find that reliance on Zeigler , 192 So.3d 175, and Poole , 213 So.3d 18, by Defendants is misplaced. Both of those cases deal with exceptions. Although the motion for appeal in the instant case was filed within thirty days of the February 8, 2017 judgment, this case is not appropriate for the exercise of this court's supervisory jurisdiction because the judgment was rendered after a trial on the merits and after consideration of a motion for JNOV. In the case sub judice , the record has already been lodged in this court, and all briefs have been filed. Importantly, this court routinely declines to exercise its supervisory jurisdiction where an adequate remedy by appeal would exist after the issuance of a final judgment that has proper decretal language. Kimsey v. Nat'l Auto. Ins. Co. , 13-856 (La.App. 3 Cir. 2/12/14), 153 So.3d 1035, citing Thomas v. Lafayette Par. Sch. Sys. , 13-91 (La. App. 3 Cir. 3/6/13), 128 So.3d 1055. See also Douglass v. Alton Ochsner Med. Found. , 96-2825 (La. 6/13/97), 695 So.2d 953, and Bayer v. Starr Int'l Corp. , 17-257 (La.App. 4 Cir. 8/15/17), 226 So.3d 514.

In the alternative, Defendants ask that this court stay the appeal and remand the matter to the trial court for the limited purpose of rendering a final judgment. We find that this is the appropriate course of action in this case. Therefore, we decline to exercise our supervisory jurisdiction and, instead, stay the appeal and remand the matter to the trial court with instructions to enter a properly worded final judgment.

DECREE

For the reasons assigned herein, this court will not exercise its supervisory jurisdiction at present, but will suspend the appeal and remand this matter to the trial court with instructions to sign a judgment containing proper decretal language, including the names of the parties against whom the judgment is rendered (with a specification of the percentages of fault as assessed by the jury) and a specification of the increase in the award of general damages in the survival action (with a specification of the other damages awarded by the jury.). The Clerk of Court for the Fifteenth Judicial District Court shall forward the judgments so signed to this Court as a supplement to this appellate record.

APPEAL SUSPENDED. REMANDED WITH INSTRUCTIONS.

      The judgment, should continue to contain the ruling on subrogation and the award of interest as set forth in the original October 31, 2016 judgment, and the taxing of costs for expert fees.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Timmy W. DOUCET
    NO. 17-KA-200
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Seth Shute, Rachell Africk, Gretna.
    COUNSEL FOR DEFENDANT/APPELLANT, TIMMY W. DOUCET, Prentice L. White, Baton Rouge.
    DEFENDANT/APPELLANT, TIMMY W. DOUCET, In Proper Person.
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

Defendant, T.W.D., appeals his conviction for aggravated rape of a juvenile under the age of thirteen. For the following reasons, we affirm defendant's underlying conviction and sentence of life imprisonment, without benefit of parole, probation, or suspension of sentence, and remand the matter for correction of the hard labor commitment and the Uniform Commitment Order.

Procedural History

On January 14, 2016, a Jefferson Parish Grand Jury indicted defendant, T.W.D., with aggravated rape of a known juvenile wherein the victim was under the age of thirteen, in violation of La. R.S. 14:42. On November 29, 2016, the three-day trial commenced before a twelve-person jury, which unanimously found defendant guilty as charged. On December 5, 2016, after defendant's post-trial motions were denied and defendant waived sentencing delays, the trial judge sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant filed a timely motion for appeal that was granted.

Facts

At trial, S.D., the victim-herein, testified that she was born on June 25, 2003, she was currently thirteen years old, and she was a resident of Carriere, Mississippi. She further testified that defendant was her father's brother.

At trial, S.D. described the initial incident that occurred when she was eight years old. At the time, defendant and his longtime girlfriend, T.P., were visiting the victim and her family at their home in Carriere, Mississippi. The victim was watching television in her room when defendant walked in and began talking with her. S.D. remembered that, all of a sudden, defendant told her to take off her pants. Although S.D. told him, "No," he forced her pants off. She tried to cover herself but defendant uncovered her, unzipped his pants, and took out his "crotch." S.D. wanted to call for help but defendant covered her mouth, slapped her, and told her to "shut up." Defendant then turned her around and pinned her against the bed then inserted his "crotch" into her "crotch." The victim testified that, "[t]hen like it was in there, he didn't move at all." She said that it was painful. He eventually took his "crotch" out and he said, "Tell anyone what happened and I will beat you up." Afterward, defendant walked back to the living room.

The victim was too scared to tell anybody what had happened because she thought that defendant would beat her up. She further stated that defendant abused her other times in that house but she did not remember the details like she did the first time it happened.

The victim recounted another incident that happened when she was eight years old and visiting her grandparents in Louisiana. She and her brother were sleeping in the living room of that house. She was on the floor and her brother was on the couch. Early one morning, at approximately 6:00 a.m., while she and her brother were sleeping, defendant came into the living room and shook her to wake her up. The victim did not wake up so defendant picked her up. When she became aware that defendant was lifting her, she struggled to get out of his grasp because she knew that he was going to abuse her.

That morning, defendant carried S.D. into a shed in the backyard and pinned her over a barrel in the shed. Defendant then took off her pants, unzipped his pants, and inserted his "crotch" inside of her again. When S.D. screamed, he told her to "shut up." The victim recalled that it hurt more than it did when it happened the first time at her house. After it was over, she went back to where she was sleeping and hid underneath her blanket, but she did not tell anyone what happened because she was still scared.

The victim testified that the sexual abuse happened more than one time at her grandparents' house but that those occurrences were mainly in the guest room. She explained that the sexual abuse happened a few times at her grandparents' house in Jefferson Parish, but not as many times as at her house in Mississippi.

The victim also recounted that, one time, her mouth touched defendant's "crotch." She recalled that occurred in the bathroom at her house in Carriere and that she was standing and defendant was sitting on the sink. She stated that it made her feel very uncomfortable and made her gag. The victim stated that she wanted to run away but defendant would not let her.

She testified that defendant made her kiss him a few times on the mouth. She further stated that at some point, defendant's mouth touched her "crotch" and breasts, and that he sucked on her breasts, which made her feel uncomfortable.

The victim testified that she was ten years old the last time defendant "abused her," because that was one of the last occasions that he was allowed at their house. The victim explained that her father banned defendant from their house because defendant tried to hurt her father by running over him with a car after an argument.

S.D. recalled that the first person she told that defendant was "sexually abusing" her was B.D., her mother. S.D. stated that she was on the bus on her way home from school one day when she decided to tell her mother. She explained that she was happy she was not seeing defendant anymore and that she felt better about being able to tell someone what happened. S.D. felt brave enough to tell her mother because they had recently moved and defendant did not know where she lived anymore and could not find her. She believed that she was twelve years old when she made that decision.

When B.D. learned of the abuse, she became very upset. B.D. decided to wait for S.D.'s father, M.D., to get home from work then they went to the police station in Mississippi. The victim gave her initial statement to the Pearl River County Police Department. During that statement, the victim revealed that her uncle had also abused her at her paternal grandparents' house in Jefferson Parish. The Pearl River County authorities advised the victim and her parents that they would need to make a similar report in Jefferson Parish.

Thereafter, the victim met with Detective Judd Harris of the Jefferson Parish Sheriff's Office, and gave a similar statement to the detective outlining the incidents that had occurred. She was subsequently seen by Dr. Jamie Jackson at Children's Hospital in New Orleans and referred for counseling and services to the Audrey Hepburn Care Center. The victim rendered a consistent and detailed account of the abuse to each interviewer.

At trial, the victim's mother, B.D., testified that, in 2009, their family moved into a house in Carriere, Mississippi, where they lived when S.D. was between the ages of eight and ten. B.D. stated that S.D.'s paternal grandparents lived at 5049 Richland in Jefferson Parish when S.D. was between eight and ten years old. B.D. stated that S.D. and her brother spent the night there more than twenty times and sometimes for whole weekends. B.D. testified that defendant mostly lived there. B.D. agreed that, at some point, M.D. banned defendant from their house because defendant and his former girlfriend, T.P., physically fought at their house.

The victim's father, M.D. stated that his parents, and, for a short time, his brother, lived at 5049 Richland. M.D. state that there were two backyard sheds at that address. M.D. described one of the sheds as a fourteen foot by forty foot long shed with two sections. M.D. testified that there were large water barrels and drums stored in the back section. M.D. agreed that he banned defendant from his house because of a violent incident between defendant and defendant's girlfriend.

The victim's parents testified that they have two children, S.D. and A.D., who have both been diagnosed with Asperger Syndrome, an autism spectrum disorder. B.D. noted that S.D. had challenges with social skills at school. She described S.D. as being bluntly honest and very creative. B.D. testified that S.D. loved to draw, create comic books, write stories, and play video games. She said that Japanese animation called "anime" was her favorite thing to draw. B.D. recalled that S.D.'s comic books were fantasy fiction and child-based and did not represent sexual activity or violence.

Dr. Jamie Jackson, who was accepted as an expert in the field of child abuse pediatrics, examined S.D. at the Audrey Hepburn Care Center, which is part of Children's Hospital through LSU in New Orleans. Dr. Jackson testified that S.D. gave a clear history of sexual abuse by defendant involving penile-vaginal, digital-vaginal, and oral-breast contact when she was between eight and ten years old. She testified that S.D. indicated that defendant shoved "his private" into her "private" and that S.D. indicated on a diagram what she was talking about when she said those words. She also testified that S.D. had a normal hymen and that an individual could have a normal hymen even with penile-vaginal penetration.

Further, Dr. Jackson indicated that, for child sexual abuse victims, it is common for there to be an extensive period of time between the incident and the reporting, which was known as delayed disclosure. She further noted that there may be delayed disclosure due to the naivety of young children, internal factors such as embarrassment, shame, or fear, or external factors such as the perpetrator may have threatened her or her family or the perpetrator is someone the child knows well, loves, and/or trusts. Dr. Jackson diagnosed S.D. as having suffered child sexual abuse.

After the State rested its case, defendant's mother, D.D., testified that she did not see the victim and her brother more than once a month and then only with their parents. Further, in the ten years that she lived at 5049 Richland, the victim and her brother might have slept over three or four times. D.D. did not remember a time when the children slept over the same night that defendant slept over. Moreover, D.D. denied that defendant lived with her after 2008.

At trial, defendant testified that, from 2005 to 2010, he lived with his mother at 5049 Richland. Defendant denied sexually assaulting S.D. and denied being alone with her. He further testified that he never inappropriately touched S.D., that he never tried to kiss her, and that he never put his mouth on any part of her body. He admitted that he went over to his parents' house over the last decade and admitted going to visit M.D. and B.D. at their house in Mississippi with T.P. and the children sometimes. Defendant testified that in 2014 at another niece's wedding he interacted with S.D., who ran to him and hugged him.

S.D. testified in rebuttal that she attended her cousin's wedding, but she did not see defendant because he did not attend. S.D. testified that she brought a folder of her drawings with her to court, with some of her "scary" pictures. S.D. maintained that she had never seen grown-ups having sex. She denied witnessing any sexual encounter in real life, on television, in a magazine, or from the internet via a computer, a phone, or other gaming device. S.D. testified that no one told her what to say about defendant.

Law and Argument

On appeal, defendant assigns one counseled and two pro se assignments of error: in his first pro se assignment of error, defendant argues that the evidence presented during trial was not sufficient to convict defendant of aggravated rape beyond a reasonable doubt; and finally, in his first counseled and second pro se assignment of error, defendant argues that it was reversible error for the district court to permit the jury, over defense counsel's objections, to view SD's drawings during its deliberations when these drawings amounted to testimonial evidence, which is specifically prohibited in the Louisiana Criminal Code.

In his pro se brief, defendant argues that the evidence was legally insufficient to support the verdict of aggravated rape. He contends that S.D.'s testimony could not be considered credible to the jury due to the discrepancies, which were presented during the trial. He pointed out that S.D. testified that he had sexually assaulted her on several occasions but that she could not remember what happened during any of those alleged incidents.

Defendant also contends that there was no physical evidence presented to the jury and that a person who had been raped between the ages of eight and ten would have, at a minimum, been missing the hymen. Defendant maintains that although the experts testified that the hymen would have grown back without any scarring, this statement was not supported with evidence.

Defendant also argues that, although Dr. Jackson only met S.D. one time, she was of the opinion that S.D. had been sexually abused by him. He further argues that Dr. Jackson's testimony is inherently unreliable since she testified that she always testifies that the alleged child victim was likely to have been sexually abused.

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

Defendant was convicted of aggravated rape upon a known juvenile under the age of thirteen, a violation of La. R.S. 14:42. Aggravated rape is defined, in pertinent part, as "a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed ... [w]hen the victim is under the age of thirteen years." La. R.S. 14:42(A)(4)(2014). When the rape involves vaginal or anal intercourse, any sexual penetration, however slight, is sufficient to complete the crime. La. R.S. 14:41(B)(2014). Oral sexual intercourse is defined in pertinent part as the "touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender." La. R.S. 14:41(C)(1). Oral sexual intercourse is also defined in pertinent part as the "touching the anus or genitals of the offender by the victim using the mouth or tongue of the victim." La. R.S. 14:41(C)(2).

In the instant case, S.D. testified that defendant, her uncle, forced her to engage in various sexual acts, including vaginal and oral sexual intercourse, on multiple occasions when she was between the ages of eight and ten. She explained that the incidents occurred at her house in Carriere, Mississippi, and at her paternal grandparents' residence in Marrero, including in a shed in the backyard. Evidence was presented that showed defendant visited both S.D.'s house in Mississippi and his parents' house in Marrero and that S.D. spent time, including overnight visits, at her paternal grandparents' house in Marrero.

S.D. asserted that she did not tell anyone about the sexual abuse right away because defendant threatened to beat her up. She said that she felt it was safe to tell her mother about the sexual abuse when she was twelve years old after her family moved to a ranch, and defendant could not find her. Dr. Jackson, the child abuse pediatrician who examined S.D., testified that it was common for there to be an extensive period of time between the incident and the reporting due to such factors as embarrassment or fear or because the perpetrator may have threatened the child.

On the other hand, defendant testified that he did not sexually assault S.D. and that he was never alone with her. He further testified that he never inappropriately touched S.D., never tried to kiss her, and never put his mouth on any part of her body. Defendant testified that he did not stay overnight at his parents' house after he moved out in 2010.

On appeal, defendant contends that S.D.'s testimony could not be considered credible to the jury due to the discrepancies which were presented during the trial. Defendant notes that the victim stated that he abused her numerous times but only recounted details of two specific events. Our review reveals that S.D. consistently reported the details of the events around defendant's sexual abuse of her to numerous people, including her mother, two police agencies, two child advocacy centers, and at least two medical professionals.

Defendant also contends on appeal that there was no physical evidence presented to the jury. A conviction for aggravated rape may be upheld in the absence of medical evidence. See State v. Roca , 03-1076 (La. App. 5 Cir. 1/13/04), 866 So.2d 867, 875-76, writ denied , 04-0583 (La. 7/2/04), 877 So.2d 143 (this Court affirmed the defendant's convictions for aggravated rape and molestation of a juvenile despite the lack of medical evidence when the victim testified at trial that the defendant forced her to engage in various sexual acts, including the fondling of genitals, sexual intercourse, and oral copulation.)

Defendant further argues that a person who had been raped between the ages of eight and ten would have, at a minimum, been missing the hymen. Defendant maintains that, although the experts testified that the hymen would have grown back without any scarring, there were no clinical studies presented. The record reflects that Dr. Jackson testified that S.D. had a normal hymen and that an individual could have a normal hymen even with S.D.'s sexual history. She explained that was what they saw a majority of the time even with that history. Dr. Jackson further explained that the hymen was like a "donut opening, like a ring," which can remain intact even after penetration and removal.

Our review reveals that S.D. maintained that defendant sexually abused her. Defendant denied doing so. The jury obviously believed S.D. and rejected defendant's testimony. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan , 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier-of-fact, is sufficient support for a requisite factual conclusion. State v. Robinson , 02-1869 (La. 4/14/04), 874 So.2d 66, 79, cert. denied , 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004) ; State v. Perkins , 11-162 (La. App. 5 Cir. 12/28/11), 83 So.3d 250, 255.

With sexual offenses, the victim's testimony alone can be sufficient to establish the elements of a sexual offense, even if the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Perkins , 83 So.3d at 255 ; State v. Hotoph , 99-243 (La. App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied , 99-3477 (La. 6/30/00), 765 So.2d 1062, and 00-0150 (La. 6/30/00), 765 So.2d 1066.

In light of the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant's conviction of aggravated rape upon a known juvenile wherein the victim was under the age of thirteen. This assignment of error lacks merit.

In defendant's first counseled and second pro se assignment of error, he argues that the trial court committed reversible error by allowing the jury to view S.D.'s drawings during deliberations. Specifically, defendant argues that S.D.'s drawings amount to testimonial evidence because the drawings came from S.D.'s thoughts, feelings, and emotions, all of which she had already testified to during the trial. Defendant also argues that the trial court erred in allowing the jury to review the drawings in the jury room during deliberations because S.D. had written down her thoughts on them, which replicated S.D.'s testimony at trial. Defendant argues that this Court must find that the written portions of the drawings were testimony and improperly allowed in the jury room under La. C.Cr.P. art. 793. He further argues that the trial court's decision cannot be considered harmless error and that this Court cannot say that there is no reasonable probability it might have contributed to his conviction.

The State responds that the trial judge did not err by permitting the jury, during deliberations, to view the drawings made by the victim. The State argues that La. C.Cr.P. art. 793 permits the jury to take with it or have sent to them any object or document received in evidence when a physical examination thereof is required to enable it to arrive at a verdict. The State indicates that the drawings were non-testimonial exhibits, which contained no verbal content and that they did not depict what occurred or any other significant fact. It further responds that the drawings were made by the victim during therapy well before trial and were not reproductions of the victim's statement or testimony, and, therefore, they should not be considered written evidence of testimony within the context of Article 793. The State noted, however, that even if an error occurred, any error would be harmless in light of the evidence introduced at trial.

Our review reveals that S.D. testified at trial that she liked to draw and that she either put her drawings away or displayed them in her room. S.D. testified that she completed different worksheets and drawings with her psychotherapist, which were identified and admitted into evidence as State's Exhibits 12 through 18.

At issue presently is State's Exhibit 18, which S.D. explained at trial. In that exhibit, there are numerous drawings on one page and several written statements. S.D. testified that one of the drawings in State's Exhibit 18 meant that she was worried that if there was not enough evidence, defendant might be found not guilty, which scared her. S.D. stated that another drawing on State's Exhibit 18 was of defendant and that she wrote next to the drawing defendant saying, "I'm going to kill you when I get out of this place." She explained that another drawing on that exhibit showed her committing suicide the day before court.

S.D. testified that in another drawing on State's Exhibit 18, she drew a picture of her step-cousin, D. in a box with bars drawn in front of him, saying, "You're a monster ..." S.D. testified that in that picture D. was upset and mad and she was "kind of scared of him." She asserted that one time at her house in Mississippi when she was eight years old, D. pulled out his "crotch" and made her lick it. She thought that defendant sent him to do it. S.D. stated that this made her feel uncomfortable and sad.

During deliberations, the jury sent the trial judge two notes, one of which stated, "Can we see the drawing (the bottom right hand-the figure S.D. calls D. with bars drawn in front of the figure)?" The trial judge said that she wanted to write a response saying, "The drawing will be provided," noting that was "certainly" within their discretion to view that evidence. The State indicated that was proper. However, defense counsel objected to the jury having the drawing under La. C.Cr.P. art. 793.

Defense counsel argued that the drawing was considered written testimony, but the State disagreed that it was testimonial. The trial judge said she would note defense counsel's objection but that she believed it was proper for the jury to view S.D.'s drawing. Defense counsel pointed out that there was other writing on State's Exhibit 18 and objected to that writing as well as the right-hand corner of that exhibit. After much discussion over the statute, the trial judge, over defense objection, allowed the drawing to go to the jury while they deliberated.

La. C.Cr.P. art. 793(A) provides in pertinent part:

Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

(internal footnote added).

La. C.Cr.P. art. 793 generally prohibits "access to any written evidence" for its verbal content and prohibits the repeating of testimony to jurors during deliberations. State v. Brooks , 01-0785 (La. 1/14/03), 838 So.2d 725, 727 (per curiam). The Louisiana Supreme Court has recognized that jurors may inspect physical evidence in order to arrive at a verdict, but they cannot inspect written evidence to assess its verbal contents. State v. Perkins , 423 So.2d 1103, 1109 (La. 1982).

This Court has found that the general rule as expressed by Article 793 is that the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue, which does not require the examination of the verbal contents of the document. State v. Soler , 93-1042 (La. App. 5 Cir. 4/26/94), 636 So.2d 1069, 1081, writ denied , 94-1361 (La. 11/4/94), 644 So.2d 1055. The danger that La. C.Cr.P. art. 793 seeks to avoid is that the testimony or written evidence in question will be given undue weight. State v. Miller , 10-718 (La. App. 5 Cir. 12/28/11), 83 So.3d 178, 198, writ denied , 12-0282 (La. 5/18/12), 89 So.3d 1191, cert. denied , 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013).

In State v. Lyles , 03-141 (La. App. 5 Cir. 9/16/03), 858 So.2d 35, 48-49, the defendant was convicted of two counts of indecent behavior with a juvenile. On appeal, the defendant contended that the trial court erred in allowing the jury to view, during jury deliberations, a diagram drawn by the victim. The defendant also contended that allowing the jury to view the diagram during deliberations was not harmless error.

At trial, the victim drew a diagram depicting the layout of the room in which the offense occurred and the location of other individuals in the room, including the defendant. The diagram was received into evidence without objection. This Court found that unlike a photograph, which was a reproduction of a physical object or scene, the diagram in its case was drawn by a witness/victim in conjunction with her testimony. It asserted that the jury's viewing of the diagram was for its verbal contents, i.e., the victim's testimony regarding the description of the room and its occupants. Therefore, this Court found that the trial court erred in allowing the jury to view the diagram. However, it further found that the error was harmless in that it did not depict what occurred or any other significant fact nor did it bear directly on the element of the crime. This Court noted that the evidence of each element of the offenses was clear.

In the instant case, State's Exhibit 18 is a one-page document that contains several pictures and writing on it. The bottom right hand portion contains the drawing the jury wanted to see, namely, a picture of a person behind bars. Next to that picture is written, "You're a monster..." Above that picture is a drawing of another person, and next to that person is written, "I'm going to kill you when I get out of this place!" In the top right hand corner is a gavel with the words, "Not guilty!" written next to it. In the middle of the page is a drawing of what appears to be a girl, and next to that drawing are the words, "This is all just a bad dream... and you're never waking up!!!" In the top left hand corner is a drawing of a girl with the words, "We didn't gather enough evidence, so we think you have been lying to us and there was no case." Below that picture is a drawing of a person, who it appears has cut marks on her arms. In the bottom left hand corner, there is a drawing of an individual, and there are words next to it stating, "Look at what you've done!!!" At the top of the exhibit in the middle are the words, "Was it because of me? Yeah, it was me..."

In this case, our review reveals that the trial judge erred by permitting the jury to view State's Exhibit 18 during jury deliberations. That exhibit contained numerous writings that duplicated the victim's testimony by written words contained on that page. As such, we find that the jury could have viewed the exhibit for its verbal contents, i.e., the victim's feelings and emotions about defendant wanting to kill her, about going to court, and about committing suicide, which she had testified about at trial. Thus, when the trial judge allowed the jury to view this document with the victim's writings, the jury was allowed "access to ... written evidence" for its verbal content, which is prohibited by La. C.Cr.P. art. 793.

Nevertheless, we further find that this error was harmless in that the exhibit did not depict what occurred during the crimes themselves or any other significant fact nor did it bear directly on an element of the crime. See Lyles, supra. Here, as noted above, without viewing the document in question, a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant's conviction of aggravated rape of a known juvenile under the age of thirteen. Although this argument has merit, any error is harmless.

Errors patent

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). We have found that there is an inconsistency between the transcript and the uniform commitment order (UCO). The UCO indicates that the offense date was June 25, 2011; however, the indictment reflects that the dates of offense were on or between June 25, 2011 and June 24, 2014. Also, the transcript of the victim's testimony indicates that the offenses occurred when the victim was between the ages of eight and ten and that her date of birth was June 25, 2003. As such, we remand this matter for correction of the UCO as noted in this errors patent review to ensure accuracy of the record. Further, we direct the 24th Judicial District Court Clerk of Court to transmit the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department.

Lastly, we note that defendant was not notified of Louisiana's sex offender registration requirements in accordance with La. R.S. 15:540, et seq . Defendant was convicted of aggravated rape upon a known juvenile wherein the victim was under the age of thirteen in violation of La. R.S. 14:42. La. R.S. 15:540, et seq ., requires registration of sex offenders and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirements of La. R.S. 15:542 and La. R.S. 15:542.1 to defendant. The trial court's failure to provide this notification constitutes an error patent and warrants a remand for written notification, even where a life sentence has been imposed. See State v. Duong , 13-763 (La. App. 5 Cir. 8/8/14), 148 So.3d 623, 647, writs denied , 14-1883 (La. 4/17/15), 168 So.3d 395 and 16-0073 (La. 8/4/17), 222 So.3d 720 ; State v. Videau , 13-520 (La. App. 5 Cir. 12/27/13), 131 So.3d 1070, 1089, writ denied , 14-0212 (La. 9/12/14), 160 So.3d 965. Accordingly, we remand the matter to the trial court for purposes of providing defendant with appropriate written notice of his sex offender notification and registration requirements, using the form contained in La. R.S. 15:543.1.

Decree

For the foregoing reasons, defendant's conviction and sentence are affirmed. This matter is remanded for correction of the Uniform Commitment Order and hard labor commitment. Additionally, we remand the matter to the trial court to notify defendant of the sex offender registration requirements.

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER, HARD LABOR COMMMITMENT, AND SEX OFFENDER REGISTRATION NOTIFICATION

      In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. Ross , 14-84 (La. App. 5 Cir. 10/15/14), 182 So.3d 983, 985 n.3.

      She indicated that her "crotch" was what she used to "pee" with in the bathroom.

      B.D. verified that their family had moved onto a farm one month before S.D. reported the abuse. M.D., the victim's father, stated that S.D. reported the abuse only after they moved to the ranch because she felt secure because they lived behind a gate and defendant did not know where they lived.

      B.D. testified that, on August 26, 2015, S.D. told her that "Uncle T-Bird" touched her breasts and her "private," and touched her with his penis.

      M.D. and B.D. have been romantically involved for more than twenty years. Although they have been married, they divorced in 2009. As of the date of trial, the couple had returned to cohabitating for many years.

      When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed before defendant's other assignment. See also State v. Nguyen , 05-569 (La. App. 5 Cir. 2/3/06), 924 So.2d 258, 262.

      In 2015, the legislature amended the title of La. R.S. 14:42 from "aggravated rape" to "first degree rape." See 2015 La. Acts No. 184, § 1. As amended, La. R.S. 14:42(E) provides as follows:
      E. For all purposes, "aggravated rape" and "first degree rape" mean the offense defined by the provisions of this Section and any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as "first degree rape."
      In this opinion, we refer to the crime as "aggravated rape" because that is the crime for which defendant was indicted since the acts at issue here occurred before August 1, 2015.

      Paragraph B sets forth the law regarding the taking of notes by the jurors, which is not applicable in the instant case.


text:
    STATE of Louisiana v. Westley SIMMONS
    NO. 17-KA-385
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Blair C. Constant
    COUNSEL FOR DEFENDANT/APPELLANT, WESTLEY SIMMONS, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert M. Murphy
   CHEHARDY, C.J.

Defendant Westley Simmons appeals his multiple offender adjudication as a second felony offender. For the reasons that follow, we affirm defendant's convictions and multiple offender adjudication, amend and affirm as amended defendant's multiple offender sentence, affirm defendant's other sentences, and remand the matter for correction of the commitment/minute entry and the Uniform Commitment Order.

FACTUAL AND PROCEDURAL HISTORY

On November 15, 2014, near Manhattan Boulevard and the Westbank Expressway in Jefferson Parish, a license plate reader flagged a passing vehicle as stolen. Deputy Thorin Guidry of the Jefferson Parish Sheriff's Office ("JPSO") was on duty nearby and tracked the vehicle to a residence in Harvey. There, with the assistance of JPSO Sergeant Lee Hardy and JPSO Deputies Chad Gagnon, Blake Hollifield, and Patrick New, the officers sought to recover the stolen vehicle. Upon speaking with an individual outside the residence, the officers detected an odor of marijuana and learned that the driver of the vehicle was inside the residence. The officers announced their presence and knocked on the partially opened door causing it to open fully and providing the officers with a complete view inside. The marijuana odor became stronger once the door was opened, making it apparent that it was coming from within the residence.

Through the opened door the officers observed an individual standing in the kitchen who was later identified as defendant and who matched the description of the driver of the stolen vehicle. Upon observing the officers, defendant attempted to escape out the back door and the officers gave chase. Deputy Hollifield observed defendant move his hands towards his right hip, suggesting that defendant was attempting to conceal or "grab for something." After a brief struggle, defendant was subdued and a firearm was recovered from his waistband. He was placed under arrest, advised of his Miranda rights, and searched. From his pockets were recovered a key to the stolen car, a digital scale, five hundred fifty dollars in cash, Tramadol, and a clear plastic bag containing individually-wrapped quantities of crack cocaine, individually-wrapped foils of heroin, and a bag of powder cocaine. When asked about the key, defendant replied, "You got me. It was a crack rental from a white guy in Avondale." At trial, however, defendant denied having the key to the stolen vehicle, the gun, and the drugs.

On December 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) (count three); possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count four); possession of heroin, a violation of La. R.S. 40:966(C) (count five); possession of cocaine, a violation of La. R.S. 40:967(C) (count six); and possession without a prescription of Tramadol, a violation of La. R.S. 40:1238.1 (count seven). Defendant pled not guilty to the charges.

Following a two-day jury trial, on May 25, 2016, a twelve-person jury returned a verdict of guilty as charged on all counts. On June 17, 2016, the district court sentenced defendant to concurrent terms of five years imprisonment at hard labor on each of counts three, five, six, and seven; and on count four, the court sentenced defendant to a concurrent term of fifteen years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence for the first ten years.

On September 13, 2016, the State filed a multiple offender bill of information alleging defendant was a second felony offender. At the multiple bill hearing on December 21, 2016, the district court adjudicated defendant a second felony offender, vacated his original sentence on count three, and imposed an enhanced sentence of fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant timely appealed.

DISCUSSION

In defendant's sole assignment of error on appeal, he argues that the trial court erred in adjudicating him a second felony offender. He contends that the State failed to introduce evidence of his predicate conviction at the multiple offender hearing. Defendant concedes that he admitted to the predicate conviction at his trial in relation to his charge of possession of a firearm by a convicted felon, but argues that evidence of this predicate conviction was still required to be offered and introduced at the multiple bill hearing.

At the December 21, 2016 multiple bill hearing, the assistant district attorney notified the court that evidence of defendant's predicate conviction had been introduced at trial with respect to his charge of possession of a firearm by a convicted felon, on which the jury returned a verdict of guilty. The ADA further pointed out that defendant took the stand at trial and admitted to this predicate conviction. The court asked defense counsel for argument on the multiple bill. Counsel replied:

Your Honor, as much as I would like to argue some facts or law, he has the convictions. We're aware and we've reviewed the documentation to that effect. He's admitted to it under oath on the witness stand. At this point, I have no argument to present, although I wish I did. There's nothing to present at this point.

The judge, who had also presided over defendant's jury trial, took judicial notice of the evidence of defendant's predicate conviction introduced at trial and adjudicated defendant a second felony offender. See State v. Muhammad , 03-2991 (La. 5/25/04), 875 So.2d 45, 49 n.9 ("[A] trial judge has the right to take judicial cognizance of any prior proceedings which is part of the same case he previously tried."). In Muhammad , the Louisiana Supreme Court observed no error in the trial court's enhancement of a sentence in a multiple offender hearing based on evidence submitted in a previous multiple offender hearing. See Muhammad , 875 So.2d at 49.

In the instant case, after acknowledging his predicate conviction below, defendant now argues on appeal that the State failed to adequately prove his predicate conviction. Our review of this issue is precluded.

It is well settled that the failure to make a contemporaneous objection generally precludes appellate review of the issue. La. C.Cr.P. art. 841 ; State v. Griffin , 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 487. Here, not only was no objection raised at the multiple bill hearing, but defense counsel actually acknowledged defendant's predicate conviction. We refuse to allow defendant to obviate the need for the State to introduce evidence by acknowledging his predicate conviction and then exploit that lack of evidence on appeal. We therefore decline to consider defendant's assignment of error.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following requires corrective action.

First, the district court did not adequately advise defendant of the applicable prescriptive period for filing an application for post-conviction relief. Therefore, by way of this opinion, and in accordance with La. C.Cr.P. art. 930.8(A), we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Oliver , 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978, writ denied , 14-2693 (La. 10/9/15), 178 So.3d 1001.

Second, the restriction of parole benefits for all fifteen years of defendant's enhanced sentence is illegal. When a defendant is sentenced as a multiple offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. State v. Victor , 11-45 (La. App. 5 Cir. 11/15/11), 82 So.3d 301, 318. Similarly, the conditions imposed on the sentence are those called for in the reference statute. Id.

At the time of the underlying offense on count three (November 15, 2014), La. R.S. 40:967(B)(4)(b) required the first two years of defendant's sentence to be without benefit of parole, probation, or suspension of sentence. And La. R.S. 15:529.1(G) required defendant's sentence to be without benefit of probation or suspension of sentence. Thus, parole benefits are to be restricted only during the first two years of defendant's enhanced sentence of fifteen years.

Pursuant to our authority under La. C.Cr.P. art. 882, we amend defendant's enhanced sentence on count three to delete the restriction of parole benefits for the entire term and order that only the first two years of his enhanced sentence are to be served without the benefit of parole. See State v. McCloud , 04-1112 (La. App. 5 Cir. 3/29/05), 901 So.2d 498, 506, writ denied , 05-1450 (La. 1/13/06), 920 So.2d 235.

Third, the December 21, 2016 commitment/minute entry incorrectly reflects that defendant stipulated to the multiple bill of information. The transcript of the December 21, 2016 proceedings indicates that the district court adjudicated defendant a second felony offender based on evidence of his predicate conviction. Therefore, upon remand, the district court is ordered to amend the December 21, 2016 commitment/minute entry to reflect that defendant was adjudicated a second felony offender on the basis of evidence of his predicate conviction.

Lastly, the Uniform Commitment Order with respect to defendant's multiple offender adjudication and sentence does not accurately reflect his adjudication and sentencing dates. Upon remand, the district court is ordered to amend the Uniform Commitment Order to reflect the correct dates for defendant's multiple offender adjudication and sentencing as December 21, 2016. The district court is further ordered to amend the Uniform Commitment Order to reflect that only the first two years of defendant's enhanced fifteen-year sentence are to be served without the benefit of parole. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the amended Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections' Legal Department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, we affirm defendant's underlying convictions and multiple offender adjudication. We amend defendant's multiple offender sentence on count three to delete the restriction of parole benefits for the entire term and order that only the first two years of this sentence are to be served without the benefit of parole. We affirm this sentence as amended. We affirm defendant's other sentences on counts four five, six, and seven. And we remand the matter for correction of the commitment/minute entry and the Uniform Commitment Order.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER SENTENCE AMENDED AND AFFIRMED AS AMENDED; SENTENCES AFFIRMED; REMANDED

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

      In lieu of cash, use of an automobile is offered as payment for narcotics. This is often referred to as a "crack rental" or "rock rental."

      Also charged in this bill of information was co-defendant Randy Owens with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A) (count one) and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count two). On April 27, 2016, Mr. Owens pled guilty to count one and to a reduced charge of attempted possession of a firearm by a convicted felon on count two.

      We note that the district court's restriction of benefits to the first ten years of defendant's sentence on count four was in error, because La. R.S. 14:95.1(B) mandates that the entirety of the sentence is to be served without benefits. This error, however, does not require corrective action because mandatory restrictions on the eligibility of benefits are self-activating under La. R.S. 15:301.1(A). See State v. Hurd , 05-258 (La. App. 5 Cir. 11/29/05), 917 So.2d 567, 572, writ denied , 06-1128 (La. 11/17/06), 942 So.2d 530.