author: Chief Justice Bernette Joshua Johnson

text:
    IN RE SUBPOENA DUCES TECUM Matter Under Investigation By Louisiana Bureau Investigation, Department of Justice, Office of Attorney General, State of Louisiana
    No. 2017-KK-2140
    Supreme Court of Louisiana.
    01/25/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

Chief Justice Bernette Joshua Johnson

| jWrit granted. We remand this matter to the district court to refer the motion to recuse to a judge ad hoc, to be appointed by this Court, to conduct a hearing on the motion. See La. C.Cr.P, art. 674. The state’s motion to file an exhibit under seal is granted.

Attachment

BORDER

Acting under the authority of Article V, Section 5(A), Constitution of 1974, and the inherent power of this Court, and considering the decision of this Court on January 25,2018 in matter No. 17-KK-2140, resulting in the need to assign a judge ad hoc for the purpose of hearing a Motion to Recuse the Judges of the Orleans Criminal District Court in the below mentioned matter on the docket of said court, and further considering the willingness of Retired Judge Freddie Pitcher, Jr; to accept said assignment,

IT IS ORDERED THAT:

Retired Judge Freddie Pitcher, Jr. be and he is hereby assigned as judge ad hoc of the Orleans Parish Criminal District Court, for the purpose of hearing a Motion to Recuse the Judges of the Orleans Parish Criminal District Court in the matter entitled “In Re: Subpoena Duces Tecum, Matter Under Investigation by Louisiana Bureau of Investigation, Department of Justice, Office of Attorney General, State of Louisiana”, Department of Justice reference number 11-2317 on the docket of said court, subject to the completion of any unfinished business.

This Order shall not deprive the judges of the Orleans Parish Criminal District Court, of their offices as judges of the Orleans Parish Criminal District Court, or of any other courts to which they may. have been assigned by previous order of this Court, nor shall it deprive Retired Judge Freddie Pitcher, Jr. of his office as judge of any other court to which he may have been assigned by previous order of this Court.

The Court or Judge requesting ad hoc or pro tempore assistance shall have the duty and obligation of providing the requisite courtroom and office space, legal support personnel (if necessary), court reporting and secretarial personnel, and related equipment to enable ad hoc or pro tempore judges to fulfill their obligations.

The judge assigned to sit ad hoc or pro tempore hereunder in any district, juvenile, parish, city, municipal, or traffic court shall be subject to Supreme Court General Administrative Rule, Part G, Section 2, “Cases Under Advisement,” with respect to deciding matters timely and reporting to this Court's Judicial Administrator. Any retired judge assigned to sit ad hoc in any district court shall report biannually on the status of his or her assignment, using the District Court Ad Hoc Judicial Assignment Report Form.

Given under our hands and seal this 25th day of January, A.D., 2018, New Orleans, Louisiana.


source: Caselaw Access Project

author: PER CURIAM: CLARK, J.,

license: Public Domain

text:
    STATE of Louisiana v. Lester JONES
    No. 2016-KP-1743
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

PER CURIAM:

h Granted. The district court’s ruling dismissing relator’s actual innocence claim is reversed and the claim is remanded for consideration after an evidentiary hearing. See State v. Pierre, 13-0873, p. 4 (La. 10/15/13), 125 So.3d 403, 409 (new evidence of actual innocence must be so compelling that no reasonable juror could have voted to convict with knowledge thereof); State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291 (assuming post-conviction claims of actual innocence not based on DNA evidence are cognizable, they must be supported by new, material, noncumulative and conclusive evidence which meets an extraordinarily high standard, and which undermines the prosecution’s entire case).

Clark, J., would deny.

CLARK, J.,

dissenting.

,I would deny. -⅛


text:
    STATE of Louisiana v. Shaun BARNETT
    NO. 2018-KK-0121
    Supreme Court of Louisiana.
    January 21, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 16-2701; to the Court of Appeal, Fifth Circuit, No. 18-K-22;

1 ,Writ granted. Ruling of the district court reinstated.

WEIMER, J., would deny the writ.

HUGHES, J., would deny the writ.

GENOVESE, J., would deny the writ.


text:
    STATE EX REL. Lloyd CARR v. STATE of Louisiana
    NO. 2017-KH-1962
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 347383;

IVWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Jeremiah TENO v. JACKSON PARISH JAIL
    NO. 2017-CI-1975
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs

LWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Dylan BROOKS
    NO. 2016-KP-1711
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 496-474; to the Court of Appeal, Fourth Circuit, No. 2016-K-06B9;

|, Denied.


text:
    STATE of Louisiana v. Christopher D. MARTIN
    NO. 2017-KH-1963
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 634305;

|,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    GBB PROPERTIES TWO, LLC, et al. v. STIRLING PROPERTIES, INC., et al. GBB Properties Two, LLC, et al. v. Stirling Properties, LLC., et al.
    NO. 2017-C-1931
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 20162400; to the Court of Appeal, Third Circuit, No. 17-352 C/W16-1063;

| denied.


text:
    STATE EX REL. Donald RUNNELS v. STATE of Louisiana
    NO. 2016-KH-2022
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. B, No. 50-CR-37862; to the Court of Appeal, Third Circuit, No. KH 16-00721;

| denied.


text:
    Gary JUENGAIN v. Harry TERVALON, et al.
    NO. 2017-CP-1648
    Supreme Court of Louisiana.
    January 29, 2018
   Applying for Reconsideration of this Courts order dated November 28, 2017; Parish of Orleans, Civil District Court Div. G, No. 2008-08854; to the Court of Appeal; Fourth Circuit, No. 2017-CA-0155

hNot considered. See La.S.Ct. Rule IX, § 6.

HUGHES, J., would consider merits.


text:
    Lewis KNOTEN, et al. v. Tammy WESTBROOK, et al.
    NO. 2017-CC-1974
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-1028 C/W 2009-5660, 2009-6941, 2009-7238, AND 17-4779; to the Court of Appeal, Fourth Circuit, No. 2017-C-0718

|! Denied.


text:
    Auden CHAUVIN, Anyce Chauvin Lambert and Melvin A. Cannon v. SHELL OIL COMPANY, Valero Refining-New Orleans, L.L.C., Shell Pipeline Company, LP, Air Products & Chemicals, Inc., Southern Natural Gas Company, L.L.C., Parkway Pipeline & St. Charles Parish Sewerage District No. 1 through the St. Charles Parish Council
    NO. 2017-C-1985
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, No. 76,932; to the Court of Appeal, Fifth Circuit, No. 16-CA-609;

11 Denied.

GENOVESE, J„ would grant.


text:
    STATE of Louisiana v. Steven LEWIS
    NO. 2017-KK-1908
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 530-845; to the Court of Appeal, Fourth Circuit, No. 2017-K-0702;

| iDenied.


text:
    Gustave J. LABARRE, Jr., et al. v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2017-CC-1761
    Supreme Court of Louisiana.
    January 29, 2018
   Applying for Reconsideration of this Courts order dated December 5, 2017; Parish of Assumption, 23rd Judicial District Court Div. D. No. 30,650; to the Court of Appeal, First Circuit, No. 2016 CW 0265;

pNot considered. See La.S.Ct. Rule IX, § 6.


text:
    STATE EX REL. Aaron Orlando RICHARDS v. STATE of Louisiana
    NO. 2017-KH-2016
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 2009-CR-125921;

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).

GENOVESE, J., recused.


text:
    Warren MONTGOMERY, in his Capacity as District Attorney for St. Tammany Parish v. ST. TAMMANY PARISH GOVERNMENT, BY AND THROUGH the ST. TAMMANY PARISH COUNCIL; and Patricia “Pat” Brister, in her Official Capacity as Parish President
    NO. 2017-C-1811
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2016-11580; to the Court of Appeal, First Circuit, No. 2017 CA 0136;

L Granted.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit—‘It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.1

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE of Louisiana v. Michael SHANNON
    NO. 2017-KP-1766
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 478-698; to the Court of Appeal, Fourth Circuit, No. 2017-K-0619

| denied.


text:
    STATE of Louisiana v. Lorrie A. ANDERSON a/k/a Lorrie Ann Anderson
    NO. 2017-KO-0864
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. CR 143445; to the Court of Appeal, Third Circuit, No. 16-588

|! Denied.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY COUNSEL NO. 2017-OB-2081
    NO. 2017-INT-1811
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Appeal of the Decision of the Disciplinary Counsel Louisiana Attorney Disciplinary Board, No. 2017-INT-1811;

hNot considered. See Supreme Court Rule XIX, § 11(A).


text:
    The SHAW GROUP, INC. v. Dorsey Ron MCCALL
    NO. 2017-CC-2049
    Supreme Court of Louisiana.
    January 29, 2018
   . Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 653781; to the Court of Appeal, First Circuit, No. 2017 CW1Í88;

I! Stay denied. Writ denied.


text:
    STATE of Louisiana v. Larry MCGUIRE
    NO. 2016-KP-1442
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 227940; to the Couru of Appeal, First Circuit, No. 2016 KW 0466

hNot considered. Untimely filed pursuant to La.S.Ct.R. X, § 5.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Jacqueline Casey WILSON
    NO. 2017-KH-1880
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div, A, No. C—58994;

|;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Stephen BRUNO
    NO. 2017-KC-0773
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. F, No. 12-769; to the Court of Appeal, Third Circuit, No. 16-521

11 Denied.


text:
    STATE EX REL. Charley JAMES v. STATE of Louisiana
    NO. 2017-OK-1715
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs

I,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Jules JOHNSON v. STATE of Louisiana
    NO. 2017-KH-1889
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 577429

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S,Ct.R. X § 5(b).


text:
    STATE EX REL. Edward LATTIN v. STATE of Louisiana
    NO. 2017-KH-1886
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 339939;

[,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b),


text:
    STATE EX REL. Corderrius Dashon MITCHELL v. STATE of Louisiana
    NO. 2017-KH-1928
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 13th Judicial District Court Div. L, No. 09-14-0338; to the Court of Appeal, First Circuit, No. 2017 KA 0431;

11WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Dwayne A. DAVIS
    NO. 2017-KH-1960
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 535-098

|,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.C.Ct.R. X § 5(b).


text:
    STATE EX REL. Terrance K. PRIEST v. STATE of Louisiana
    NO. 2017-KH-1361
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 333902

11 WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypass-tag that level of review. La.S.Ct.R. X § 5(b).


text:
    IN RE: ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST In re: Eleanor Pierce (Marshall) Stevens Living Trust and Eleanor Pierce Stevens Revocable Gift Trust
    NO. 2017-C-1868
    Supreme Court of Louisiana.
    January 29, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2007-6723 C/W 2009-3827; to the Court of Appeal, Third Circuit, No. 17-111 C/W 17-112;

I denied.


text:
    Melissa SCOTT v. OCHSNER CLINIC FOUNDATION, Dr. Ewelina Griffin, and Dr. Robert Craig
    NO. 2017-CC-1999
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 600,042; to the Court of Appeal, First Circuit, No. 2G17 CW 0931;

| TPenied.

JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Troy LILLIE, et al. v. STAND FORD TRUST COMPANY, State of Louisiana, Office of Financial Institutions, and SEI Investments Company
    NO. 2017-C-2010
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 581,670; to the Court of Appeal, First Circuit, No. 2013 CA 1995

1 TPenied.


text:
    Sharunda PREVO v. Milton MOSBY
    NO. 2017-CJ-2018
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 39,191; to the Court of Appeal, Second Circuit, No. 51,-822-CA;

11 Denied.


text:
    Reginald GREEK, et al. v. Franklin Eliezer GARCIA-VICTOR, et al.
    NO. 2017-CC-2071
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2016-00905; to the Court of Appeal, Fourth Circuit, No. 2017-C-0695;

h Remanded to the Fourth Circuit Court of Appeal for briefing, argument and full opinion.


text:
    Isabella KOCLANES v. ALLSTATE INSURANCE COMPANY
    NO. 2017-CC-2033
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2016-2318; to the Court of Appeal, Fourth Circuit, No. 2017-C-0792

| denied.

GUIDRY, J., recused.


text:
    MARS BEACH, LLC v. Edward MCQUIRTER
    NO. 2017-02000
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 22691; to the Court of Appeal, First Circuit, No. 2017 CA 0670;

|, Denied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL CORPORATION and Texas Brine Company, LLC
    NO. 2017-CC-2003
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2017 CW 0720

11 Stay recalled. Writ denied.


text:
    Carl Joseph BENOIT and Patricia Fay Benoit v. ST. CHARLES GAMING COMPANY, INC.
    NO. 2017-C-2051
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2014-00568; to the Court of Appeal, Third Circuit, No. 17-101;

11 Denied.

HUGHES, J., would grant.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-2004
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2017 CW 0325;

11 Stay recalled. Writ denied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL CORPORATION and Texas Brine Company, LLC
    NO. 2017-CC-2005
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2017 CW 0720;

It Stay recalled. Writ denied.


text:
    Ricky PATRICK, BY AND THROUGH Glenn PATRICK, His Agent v. J. PATRICK, INC., Machine, Pump & Fabrication, Melisa Patrick and Dale Patrick
    NO. 2017-C-2002
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 41,821; to the Court of Appeal, First Circuit, No. 2017 CA 0050;

11 Denied.


text:
    STATE of Louisiana v. David Ray NEWSOM
    NO. 2017-KK-2025
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR-367-16; to the Court of Appeal, Third Circuit, No. 17-580

h Denied.

HUGHES, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-071
    NO. 2017-OB-2036
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 17-PDB-071;

Leave to appeal denied.


text:
    STATE of Louisiana v. Walter JOHNSON
    NO. 2017-K-0119
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 518-752; to the Court of Appeal, Fourth Circuit, No. 2016-KA-0259;

Denied as moot.


text:
    STATE EX REL. Michael CALLOWAY v. STATE of Louisiana
    NO. 2016-KH-1830
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 189532; to the Court of Appeal, First Circuit, No. 2016 CW 0679;

|!Denied. See R.S. 44:31.1.

WEINER, J., recused.


text:
    STATE of Louisiana v. Don Michael ANDREW, Jr.
    NO. 2017-KO-0662
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 11-12-0531; to the Court of Appeal, First Circuit, No. 2016 KA 1123;

Denied.


text:
    Aaron EMIGH, et al. v. WEST CALCASIEU CAMERON HOSPITAL, et al.
    NO. 2017-C-2019
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2009-4845; to the Court of Appeal, Third Circuit, No. 17-292;

b Denied.


text:
    SOUTHERN MARSH COLLECTION, LLC v. STATE TRADITIONS, LLC
    NO. 2017-C-2013
    Supreme Court of Louisiana.
    February 2, 2018
   Applying. For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 648,699; to the Court of Appeal, First Circuit, No. 2017 CA 0469;

I iDenied.


text:
    STATE of Louisiana v. Jacques DUNCAN
    NO. 2017-KO-0668
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 15-3376; to the Court of Appeal, Fifth Circuit, No. 16- . KA-493;

11 Denied.


text:
    STATE of Louisiana v. Stanley L. GREEN, Jr.
    NO. 2017-KO-0672
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. F, No. 13 CR4 119904; to the Court of Appeal, First Circuit, No. 2016 KA1077;

| denied.


text:
    STATE of Louisiana v. LANDIS CAMP
    NO. 2017-KO-0847
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 15-6632; to the Court of Appeal, Fifth Circuit, No. 16-KA-651;

| í Denied.


text:
    Josette M. RIPOLL v. Patrick DOBARD, et al.
    NO. 2017-CC-1955
    Supreme Court of Louisiana.
    February 2, 2018
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2013-6332; to the Court of Appeal, Fourth Circuit, No. 2017-C-0327

hDenied.


author: HIGGINBOTHAM, J. CHUTZ, J.,

text:
    Marguerite Stokes KELLY v. Lawrence KELLY
    NO. 2016 CW 0206
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 31, 2016

      Nancy Sue Gregorie, Marguerite Stokes Kelly, Attorney for Defendant-Appellee, Marguerite Stokes Kelly
    Brian J. Prendergast, Baton, Rouge, LA, Attorney for Plaintiff-Appellant, Lawrence Kelly
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

IgThis appeal arises from the judgment of the trial court that dismissed plaintiffs motion to terminate spousal support and sustained defendant’s peremptory exception raising the objection of res judicata.

FACTS AND PROCEDURAL HISTORY

Marguerite Stokes Kelly and Lawrence Kelly were married on July 14, 1973. Marguerite filed a petition for divorce on July 7, 1993, and in her petition requested permanent spousal support. On December 8, 1993, Marguerite and Lawrence entered into a stipulated judgment- which in regards to spousal support stated:

Lawrence Kelly shall pay unto Marguerite Stokes Kelly the sum of Eight Hundred and No/100 ($800) Dollars per month as [spousal support]....
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Lawrence Kelly shall pay [spousal support] unto Marguerite Stokes Kelly in the amount stated in the preceding paragraph until she remarries or dies.

Subsequent to the stipulated judgment, the parties were divorced on May 16,1994.

On January 26, 1996, Lawrence filed a rule to reduce, or in the alternative, terminate spousal support. ’After considering Lawrence’s request, the trial court signed a judgment on March 10, 1997, which stated “IT IS ORDERED,' ADJUDGED, AND DECREED that [spousal support] in the Consent Judgment rendered prior to this hearing was contractual and cannot be reduced or increased prior to the death or remarriage of Marguerite Kelly.”

On May 29, 2015,. Lawrence again filed a “Motion to Terminate Spousal Support” contending that it had become unnecessary under La, Civ. Code art. 114. In response, Marguerite filed an exception of res judi-cata contending that the issue had already been addressed in the March 10, 1997 judgment, and it was res | ¡Judicata under La. Code Civ. P. art, 425 and La. R.S. 13:4231; therefore, Lawrence’s motion to terminate support should be dismissed.

On July 21 2015, the trial court signed a judgment sustaining Marguerite’s exception of res judicata. Lawrence timely filed a motion for new trial, which the trial court denied by judgment signed on September 10, 2015. It is from the judgment sustaining the exception of res judicata and the judgment denying the motion for new trial that Lawrence appeals, contending thaf the trial court erred in sustaining the exception of res judicata filed by Marguerite instead of determining whether there is a material change of circumstances to modify and/or terminate the previous award of spousal support.

APPELLATE JURISDICTION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue, Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La.App. 1st Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. This court’s appellate jurisdiction extends to “final.judgments.” See La. Code Civ. P. art. 2083. Appeals are taken fro.m judgments, not reasons for judgment. Davis v. Farm Fresh Food Supplier, 2002-1401 (La.App. 1st Cir. 3/28/03), 844 So.2d 352, 353-54. A judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La.App. 1st Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must name the party in favor of whom the ruling is. ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of the judgment without reference to other documents in the record. Laird, 836 So.2d at 366.

| .Additionally, a final appealable judgment must contain appropriate decre-tal language disposing of or dismissing claims in the case. See Costanza v. Snap-On Tools, 2013-0332 (La.App. 1st Cir. 3/5/14), 2014 WL 886021 (unpublished). .The July 21, 2015 judgment signed by the trial court sustained Marguerite’s exception of res judicata, but failed to decree the dismissal of Lawrence’s motion to terminate spousal support. The absence of the necessary decretal language- means that the judgment is not- final and appealable, and thus for us to reach the merits of this matter we must exercise our supervisory, rather than appellate jurisdiction. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La.App. 1st Cir. 3/24/06), 934 So.2d 66, 67. See also Bd. Of Supervisors of La. State Univ. & Mech. College v. Mid-City Holdings, L.L.C., 2014-0506 (La. App. 4th Cir. 10/15/14); 151 So.3d 908, 910.

Since the judgment lacks de-cretal language that actually, dismisses Lawrence’s motion to terminate spousal support, it is interlocutory. The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writ. See La. Code Civ. P. art. 2201; Alex v. Rayne Concrete Service, 2005-1457 (La. 1/26/07), 951 So.2d 138, 144. We have authority to exercise our supervisory jurisdiction and treat the appeal of this interlocutory judgment as an application for supervisory writ. State ex rel. Dept. of Social Services v. Howard, 2003-2865 (La.App. 1st Cir. 12/30/04), 898 So.2d 443, 444 n. 1. The decision to convert an appeal to an application for a supervisory writ of review is within the discretion of an appellate court. Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39. Judicial efficiency and fundamental fairness to the litigants can dictate that the merits of an application for supervisory writs be decided especially when, as here, a decision by .us-.will1 terminate the litigation. See Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam). -Since this -litigation would have been terminated had the |fitrial court ■ judgment included the proper decretal language dismissing Lawrence’s motion, we exercise our discretion and convert this appeal to .an application for-supervisory writ. Additionally, we grant the writ application so that we may properly review the merits of the trial court judgment sustaining Marguerite’s exception of res judicata. See State in Interest of J.C., 2016-0138 (La.App. 1st Cir. 6/3/16), 196 So.3d 102, 106-07. See also State v. Brown, 2015-0855 (La. App. 4th Cir. 10/21/15), 176 So.3d 761, 766-67, writ denied, 2015-2250 (La. 2/5/16), 186 So.3d 1167.

LAW AND ANALYSIS

The peremptory exception raising the objection of res judicata is based on the conclusive legal presumption of a-thing previously adjudged between the same parties. Labiche v. Louisiana Patients’ Compensation Fund Oversight Board, 98-2880 (La.App. 1st Cir. 2/18/00), 753 So.2d 376, 380. Res judicata basically performs two functions: (1) it bars relit-igating matters that have never been litigated but should have been advanced in an earlier suit, and (2) it bars relitigating matters that have been previously litigated and decided. La. R.S. 13:4231; La. Code Civ. P. art. 425; Stelly v. Stelly, 2007-640 La.App. 3 Cir. 11/7/07, 969 So.2d 1283, 1286. Res judicata has only limited application in divorce actions and matters incidental to divorce. See La. R.S. 13:4232(B); La. Code Civ. P. art. 425(B).

Lawrence contends that under La. R.S. 13:4232(B), res judicata is inapplicable to this case because the amount of spousal support is always subject to judicial modification based upon a showing of a material change in circumstances Lunder La. Civ. Code art. 114. Article 114 provides that “[a]n award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary.”

In general, Lawrence’s assertion is correct that spousal support, once fixed, either by trial or pursuant to a consent judgment, is subject to change where a substantial change of circumstances in either .party can be shown. Bland v. Bland, 97-0329 (La.App. 1st Cir. 12/29/97), 705 So.2d 1158, 1161. An exception exists where the consent judgment contains a non-modification provision. Id. Whether the amount of spousal support awarded through a consent judgment can be modified depends on the specific terms of the judgment. Ray v. Ray, 2005-0873 (La.App. 1st Cir. 3/23/07), 960 So.2d 174, 178. To bar subsequent modification of the duration and/or amount of spousal support, the consent judgment must evidence a clear intent of the parties to do so. Id.

The clause in the 1993 consent judgment awarding spousal support ordered that Lawrence “shall pay spousal support unto Marguerite Stokes Kelly in the amount [of $800 per month] until she remarries or dies.” Both Lawrence and Marguerite waived their rights to seek any increase or decrease in the amount of spousal support; or in the duration of the support.

In the March 10,1997 judgment the trial court addressed the nature of Marguerite and Lawrence’s consent judgment regarding spousal support, and conclude^ that the spousal support award was contractual. In so concluding, the trial court ordered that spousal support could not be reduced or increased prior to the death or remarriage of Marguerite. This judgment was not appealed.

Despite the general rule regarding modification of spousal support and the limited application of res judicata in matters incidental to divorce, under the specific facts of this case, the trial court’s prior determination that the consent judgment between Lawrence and Marguerite was contractual and could not be ^altered by the courts means the peremptory exception of res judicata must be sustained.

CONCLUSION

For the foregoing reasons, we convert the appeal to an application for a supervisory writ of review, which we grant. However, we deny the relief requested by Lawrence as we find no error in the trial court judgment sustaining Marguerite’s peremptory exception of res judicata. All costs of this proceeding are assessed to Lawrence Kelly.

APPEAL CONVERTED TO A SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED.

CHUTZ, J, concur with reason.

CHUTZ, J.,

concurring.

Jjl agree with the result reached by the majority. The issue of whether Mr. Kelly can terminate spousal support to Mrs. Kelly is res judicata based both on the duration provision in the 1993 consent judgment, as well as the later 1997 trial court judgment interpreting that provision, which was not appealed by Mr. Kelly. However, I disagree with the statement in the majority opinion that pursuant to the 1993 consent judgment, Mr. and Mrs. Kelly waived their right to seek a modification of the amount of spousal support to be paid by Mr. Kelly. In Bland v. Bland, 97-0329 (La.App. 1st Cir. 12/29/97), 705 So.2d 1158, 1161, this court held that a provision in a consent judgment that the wife would be paid spousal support until she remarried only addressed the duration of her entitlement to support and did not reference the right of the parties to later seek a modification based on a change in circumstances in the amount of support to be paid under the consent judgment. This court explained in Bland, 705 So.2d at 1163, that:

Whether or not the amount of [spousal support] awarded through a consent judgment can be modified depends on the specific terms of the judgment. If the intent is not clear on the face of the judgment, other evidence, including but not limited to the testimony of the parties, a community property settlement or a written stipulation, is admissible to determine the intent of the parties. Importantly, the simple fact that a judgment provides that [spousal support] is “payable until death or remarriage” does not evidence a clear intent that the amount of [spousal support] payable is not subject to modification. (Emphasis added.)

In this case, the provisions of the 1993 consent judgment provided that Lawrence was to pay Marguerite spousal support until she “remarries or dies.” 12Under Bland, this constituted a duration provision and not a non-modification provision as to the amount of spousal support to be paid. As in Bland, it also appears in the instant case that “the record is void of any evidence that the parties intended to remove themselves from the confines of the general rule which allows a modification of the amount of [spousal support] based upon a change in circumstances .... ” Bland, 705 at 1163-64. Furthermore, in my opinion, it is unnecessary for the majority to reach this issue since Mr. Kelly is seeking only to terminate spousal support and not to modify the amount thereof.

      . Marguerite’s petition requested alimony; however, throughout the report we refer to it as spousal support. See La. Code Civ. art. 111.

      . Louisiana Revised Statute La. R.S. 13:4232(B) provides:
      In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually, adjudicated.


author: GUIDRY, J. CRAIN, J.,

text:
    BOARD OF ETHICS in the MATTER OF Jordan MONSOUR and Walter Monsour
    NUMBER 2016 CW 1159
    Court of Appeal of Louisiana, First Circuit.
    JUNE 21, 2017

      Scott E. Frazier, Baton Rouge, Louisiana, Attorney for Applicant, Walter Mons-our
    Vivian Haley Williams, Kathleen M. Allen, Baton Rouge; Louisiana, Attorneys for Respondent, Louisiana Board of Ethics
    BEFORE: GUIDRY, PETTIGREW, McClendon, crain, and theriot, JJ.
   GUIDRY, J.

_J_j_In this writ application, applicant, Walter Monsour, challenges the ruling of the Ethics Adjudicatory Board, Panel A, which overruled applicant’s objections to exhibits submitted by the Board of Ethics in opposition to applicant’s motion for summary judgment. For the following reasons, we reverse the evidentiary ruling of the Ethics Adjudicatory Board and remand for further proceedings.-

FACTUAL AND PROCEDURAL BACKGROUND

The Board of Ethics (“BOE”) filed charges against Walter Monsour (“Walter”), alleging that he was employed as the President and Chief Executive Officer of the East Baton Rouge Redevelopment Authority (“RDA”), which owned a 49% interest in the East Baton Rouge Community Development Entity, LLC (“CDE”), at times during which his son, Jordan Mons-our (“Jordan”),- an attorney, represented clients in transactions with the RDA and CDE. The BOE further alleged that Jordan was compensated- by the law firm that employed him'for this representation, Walter did not submit a disqualification plan to the BOE, and therefore, as the agency head, Walter was deemed to have participated in all transactions- involving his agency. The BOE alleged that Walter violated the provisions of La. R.S. 42:1112(B) and requested that penalties be assessed against Walter.

The BOE also filed charges against Jordan, alleging that Jordan did not file’the required disclosure statements in violation of La. R.S. 42:1114(A). The BOE alleged that Jordan violated the-provisions of La. R.S. 42:1113(A) and 42:1114(A) and requested that penalties be assessed against Jordan.

lain June, 2016, Walter and Jordan each filed a motion for summary judgment with the Ethics Adjudicatory Board (“EAB”) seeking dismissal of the charges, attaching exhibits and a memorandum in support of their motions. The BOE filed a memorandum opposing each motion and the attached exhibits. Walter and Jordan each filed a reply memorandum in which they argued that the exhibits submitted by the BOE were not competent evidence and could not be considered by the EAB, asserting the documents were unsworn and unverified and were not self-proving.

The BOE also moved to strike the expert affidavit of R. Gray Sexton submitted by both Walter and Jordan. That motion was granted by the EAB, excluding the affidavit from evidence, based upon the panel’s finding that it did not require the assistance of an expert and the affidavit would not assist the panel in adjudicating this matter.

Jordan and Walter objected to the exhibits sought to be submitted by the BOE, arguing the documents submitted by the BOE were not submitted with an affidavit and were not certified, and accordingly, no competent evidence was submitted under the provisions of the Louisiana Code of Civil Procedure governing motions for summary judgment. In addition, Walter objected to the affidavit and documents marked as Exhibit 17, submitted by the BOE, because the affidavit was not notarized when it was submitted with the opposition to the motion. The EAB sustained the objections to Exhibit 17, the affidavit and the attachments thereto, because it was not in proper form and not authenticated. After questioning and confirming with counsel for the BOE that its exhibits were either produced by Jordan in discovery or by the RDA in response to a subpoena, the EAB overruled lathe objections to Exhibits 1 through 16 and 19 through 21 and admitted these exhibits into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement.

Walter filed the instant writ application seeking review of the evidentiary ruling by the EAB, which admitted Exhibits 1 through 16 and 19 into evidence. The parties subsequently advised this Court that the EAB stayed this matter pending this ruling.

STANDARD OF REVIEW

On legal issues decided by the EAB, the reviewing court gives no special weight to the findings of the administrative tribunal but conducts a de novo review of questions of law. Ellis v. Louisiana Board of Ethics, 14-0112, p. 7 (La. App. 1st Cir. 12/30/14), 168 So.3d 714, 721 (per curiam), writ denied, 15-0208 (La. 4/17/15), 168 So.3d 400. Generally, a ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. Trascher v. Territo, 11-2093, p. 4 (La. 5/8/12), 89 So.3d 357, 362.

The issue before this Court concerns the applicability of the provisions of the Louisiana Code of Civil Procedure governing motions for summary judgment, particularly whether the provisions of La. C.C.P. art. 966, which specifically identifies documents which may be filed in support of or in opposition to the motion for summary judgment, controls in this administrative proceeding. This Court finds that this is a question of law and is subject to de novo review.

DISCUSSION

|/The BOE is responsible for issuing charges for violations of the Code of Governmental Ethics, and thereafter, a public hearing shall be conducted by the EAB to receive evidence and to determine whether any violation of any provision of law within the jurisdiction of the BOE has occurred. La. R.S. 42:1141(C). Pursuant to La. R.S. 42:1143, all proceedings conducted by the EAB shall be subject to and in accordance with the Louisiana Administrative Procedure Act (“APA”), La. R.S. 49:950 et seq.

Louisiana Administrative Code, title 52, part I, § 1102, applicable to the EAB, provides:
A. Motions and exceptions may be made before, during, or after a public hearing.
B. Motions and exceptions made before or after the public hearing shall be filed with the appropriate panel of the Ethics Adjudicatory Board. Contradictory motions and exceptions shall be accompanied by a memorandum which shall set forth a concise statement of the grounds upon which the relief sought is based and the legal authority therefore.
C.A motion for summary judgment may be filed by either the respondent or the trial attorney(s);

Walter and Jordan argue that La. C.C.P. arts. 966 and 967 govern all motions for summary judgment, and therefore, the EAB erred in admitting the incompetent evidence submitted by’ the BOE, which consisted of documents with no affidavits or other verification. Conversely, the BOE argues that the admission of evidence before the EAB is governed by the APA, and therefore, the EAB had discretion to admit evidence found to be competent.

Louisiana Revised Statute 49:956 provides, in part, that in adjudication | .^proceedings:

(1) Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law. Agencies may exclude incompetent, ' irrelevant, immaterial, and unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. Sub- . ject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

.In administrative hearings, the usual rules of evidence need not apply, and thus, hearsay may be admitted. Nevertheless, the findings of the agency must be supported by competent evidence. Brouillette v. State of Louisiana, Department of Public Safety, 589 So.2d 529, 532 (La. App. 1st Cir. 1991). Factual findings cannot be based solely on incompetent evidence. Superior Bar & Grill, Inc. v. State of Louisiana, Department of Public Safety, 94-1879 p. 3 (La. App. 1st Cir. 5/5/95), 655 So.2d 468, 470. Generally, the competency of the evidence presented at an administrative hearing is determined by considering the degree of reliability and trustworthiness of the evidence presented and by considering whether it is of the type that reasonable persons would rely upon. Board of Ethics in the Matter of Sneed, 12-1849 (La. App. 1st Cir. 10/7/13), 2013 WL 12116274, *12 (unpublished).

Evidence that has been found sufficiently reliable and trustworthy’to be considered competent evidence at an adjudicatory hearing includes a sworn statement of an officer (who could have been subpoenaed if plaintiff believed his testimony was necessary), Spreadbury v. State of Louisiana, Department of Public Safety, 99-0233, pp. 9-10 (La. App. 1st Cir. 11/5/99), 745 So.2d 1204, 1210; a certification form signed by a qualified technician, along with the technician’s permit, and certified by a custodian of the agency required to maintain such records, Brouillette, 589 So.2d at 533; a verified copy of a computer log signed)(¡by the secretary of the Board of Ethics, together with testimony regarding the reason why the employee .who made the entry in the computer log could not testify to such (although affidavit testimony which lacked personal knowledge and was inherently subjective was found incompetent), Board of Ethics in the Matter of Sneed, 2013 WL 12116274 at *6. However, in Superior Bar & Grill Inc., 94-1879 at p. 3, 655 So.2d at 470, a police investigative report and confidential informant data sheet, which showed the age of an informant, with no testimony or other evidence to corroborate the age, was found incompetent to show the age. These cases illustrate that some form of certification, verification, or testimony is generally utilized in demonstrating the competence, i.e., the trustworthiness and reliability, of evidence submitted in agency adjudication proceedings. In this summary judgment proceeding, none of the evidence submitted by the BOE and admitted by the EAB complied with the provisions applicable to motions for summary judgment as provided by the Code of Civil Procedure. Nevertheless, this Court notes that the EAB specifically sustained the objection to, a purported affidavit and the attachments thereto on the basis that the affidavit was not in proper form and not authenticated. Such a ruling appears to be inconsistent with the admission by the EAB of other documents with no affidavit or other, verification.

In summary judgment proceedings, there is no live testimony adduced at the motion hearing, and accordingly, safeguards that an agency may generally rely upon in adjudging the trustworthiness and reliability of evidence being offered by a party may not be available. See Martin v. State Licensing Board for Contractors, 14-0963 (La. App. 1st Cir. 4/10/15), 2015 WL 1731007 at *6 (unpublished), writ denied, 15-0919 (La. 6/19/15), 172 So.3d 1091 (“This testimony, in conjunction with the documents, lends additional reliability and trustworthiness to the evidence.”) It is'difficult to ascertain the manner in which the EAB would determine the competence of such evidence, with no testimony, affidavit, or certification whatsoever.- Nevertheless, the Code of Civil Procedure provides its own safeguards as to motions for summary judgment by specifying the form of evidence that can be introduced in support of or in opposition to such a motion. Louisiana Code of Civil Procedure article 966(A)(4) provides that the only documents that may be filed in support of or in opposition to the motion are pleadings, memo-randa, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and, admissions. Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence, and attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Unifund CCR Partners v. Perkins, 12-1851, p. 8 (La. App. 1st Cir. 9/25/13), 134 So.3d 626, 632. Louisiana Code of Civil Procedure article 967(A) provides the requirements for affidavits submitted in support of or in opposition to motions for summary judgment.

| ^Generally, specific laws which govern an administrative agency, govern over the more general laws of the APA or the Louisiana Code of Civil Procedure. See RCS Gaming, Inc. v. State Through Louisiana Gaming Control Board, 97-2317, p. 2 (La. App. 1st Cir. 11/19/97), 705 So.2d 1124, 1125 (per curiam). However, La. Admin. Code, tit. 52, pt. I, § 1102, applicable to the EAB, which allows'the filing of motions for summary judgment in proceedings before the EAB and specifically contemplates such motions filed separately from the public hearing, provides no further procedures governing such motions. Moreover, the APA also fails to provide applicable procedures. This Court has held, in a case involving the BOE and EAB, that the Code of Civil Procedure governs civil proceedings, in district court as well as administrative agency proceedings, where agency laws are silent. Ellis, 14-0112 at p. 11, 168 So.3d at 723. This Court has applied the specific provision of the Louisiana Code of Civil Procedure which governs motions for summary judgment, i.e., La. C.C.P. art. 966, in similar cases. See Louisiana Board of Ethics in the Matter of Villere, 15-1939 (La. App. 1st Cir. 12/22/16), 208 So.3d 940, writ denied, 17-0128 (La. 3/13/17), 216 So.3d 807; In re Fontenot, 14-0337 (La. App. 1st Cir. 12/30/14), 2014 WL 7455199 at *2 (unpublished); Ellis, 14-0112 at p. 14, 168 So.3d at 725.

Accordingly, we find that La. C.C.P. arts.’966 and 967 are applicable to the summary judgment proceeding herein conducted by the EAB, which erred in admitting into evidence Exhibits 1 through 16 and 19 offered by the BOE, which did not meet the requirements of these articles, and- therefore, did not constitute proper summary judgment evidence. • ■

^CONCLUSION

For the foregoing reasons, the ruling of ■the Ethics Adjudicatory Board, which admitted Exhibits 1 through 16 and 19 offered by the Board of Ethics, is reversed. This matter is remanded for further proceedings in accordance with this judgment.

REVERSED AND REMANDED.

Crain, J. Dissents in part and assigns reasons.

McClendon, J. Dissents in part for the reasons assigned by Judge Crain.

CRAIN, J.,

dissenting in part.

LI agree with the majority’s conclusion that Louisiana Code of Civil Procedure articles 966 and 967 apply to summary judgment proceedings before the Ethics Adjudicatory Board. The EAB thus erred in admitting the exhibits at issue. However, given the uncertainty of the law prior to our ruling, the Board of Ethics, in opposing the motion for summary judgment, reasonably relied on the relaxed evidentia-ry rules otherwise applicable to administrative proceedings. For that reason, I would order the EAB to allow the Board, on remand, to submit evidence pursuant to Articles 966 and 967 prior to a ruling on the motion for summary judgment. See La. Code Civ. Pro. arts. 2082 and 2164; Placid Refining Company v. Privette, 523 So.2d 865, 869-70 (La. App. 1st Cir.) (on rehearing), writ denied, 524 So.2d 748 (La. 1988) (“The court of appeal may remand a case to the trial court for the taking of additional evidence where it is necessary to reach a just decision.”).

      . The companion case involving the charges filed against Jordan Monsour, and a writ application filed by Jordan Monsour involving similar evidentiary issues, Board of Ethics In the Matter of Jordan Monsour and Walter Monsour, 2016 CW 1156 (La. App. 1st Cir. 6/21/17), is decided by this Court concurrently with this - ruling. Due to the overlapping nature of the issues in both cases, the cases will be discussed together herein.

      . Although the motion to strike filed by the BOE was not included in the writ application materials, it should be noted that, at the hearing before the EAB, the BOE argued, in part, that the affidavit of Mr. Sexton should be stricken because it failed to meet the requirements for an affidavit of an expert pursuant to La. C.C.P. art. 967.

      . In Jordan’s case, only Exhibits 1 through 16 are at issue; Exhibit 19 is at issue in Walter’s case in addition to Exhibits 1 through 16. Additionally, this Court was not provided with Exhibits 20 and 21, and according to the hearing transcript, these two exhibits were opinions by the “Board" (it is unclear whether they are opinions of the BOE or the EAB). These two exhibits do not appear to be at issue herein, as the writ application filed herein references Exhibits 1 through 16 and 19 as the improper exhibits. Accordingly, this Court renders no opinion as to Exhibits 20 and 21.

      .The Court notes that the parties confirmed during the hearing that several of the exhibits submitted by the EAB were duplicative of exhibits submitted by Jordan and Walter. Therefore, those documents would have been under consideration by the EAB when the submission by Jordan and Walter was accepted.

      . Louisiana Revised Statute 42:1141(C)(3)(a) provides, in part, that the EAB shall conduct a public hearing to receive evidence relative to the facts alleged in the charges and to determine whether, any violation of any provision of law within the jurisdiction of the BOE has occurred.

      , In addition, Walter supplemented his writ application with a transcript from an unrelated proceeding before a different panel of the EAB, in which that panel ruled that it was required to follow the rules set forth in the ■Code of Civil Procedure for evidence to be considered in motions for - summary judgment.

      . Louisiana Code of Civil Procedure article 967(A) provides, in part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. ...”


text:
    BOARD OF ETHICS IN the MATTER OF Jordan MONSOUR and Walter Monsour
    NUMBER 2016 CW 1156
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2017
    Michael A. Patterson, S. Brooke Barnett-Bernal, Baton Rouge, Louisiana, Attorneys for Applicant, Jordan Monsour
    Vivian Haley Williams, Kathleen M, Allen, Baton Rouge, Louisiana, Attorneys for Respondent, Louisiana Board of Ethics
    BEFORE: GUIDRY, PETTIGREW, McClendon, crain and theriot, JJ.
   GUIDRY, J.

Un this writ application, applicant, Jordan Monsour, challenges the ruling of the Ethics Adjudicatory Board, Panel A, which overruled applicant’s objections to Exhibits 1 through 16 submitted by the Board of Ethics in opposition to applicant’s motion for summary judgment.

The companion case of Board of Ethics In the Matter of Jordan Monsour and Walter Monsour, 2016 CW 1159 (La. App. 1st Cir. 6/21/17, also handed down this day, involves the same evidentiary issues. The background facts, procedural history, and analysis of these matters are set forth therein. For the reasons stated in the companion case, we reverse the evidentiary ruling of the Ethics Adjudicatory Board and remand for further proceedings.

CONCLUSION

For the reasons stated in Board of Ethics In the Matter of Jordan Monsour and Walter Monsour, 2016 CW 1159 (La. App. 1st Cir. 6/21/17), the ruling of the Ethics Adjudicatory Board which admitted Exhibits 1 through 16 offered by the Board of Ethics is reversed. This matter is remanded for further proceedings in accordance with this judgment.

REVERSED AND REMANDED.

Crain, J. Dissents in part and assigns reasons.

McClendon, J. Dissents in part for the reasons assigned by Judge Crain.

CRAIN, J.,

dissenting in part.

|,I agree with the majority’s conclusion that Louisiana Code of Civil Procedure articles 966 and 967 apply to summary judgment proceedings before the Ethics Adjudicatory Board. The EAB thus erred in admitting the exhibits at issue. However, given the uncertainty of the law prior to our ruling, the Board of Ethics, in opposing the motion for summary judgment, reasonably relied on the relaxed evidentia-ry rules otherwise applicable to administrative proceedings. For that reason, I would order the EAB to allow the Board, on remand, to submit evidence pursuant to Articles 966 and 967 prior to a ruling on the motion for summary judgment. See La. Code Civ. Pro, arts. 2082 and 2164; Placid Refining Company v. Privette, 523 So.2d 865, 869-70 (on rehearing), writ denied, 524 So.2d 748 (La. 1988) (“The court of appeal may remand a case to the trial court for the taking of additional evidence where it is necessary to reach a just decision.”).


author: McClendon, j.

text:
    STATE IN the INTEREST OF M.P.
    2017 KJ 0892
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      Hillar C. Moore, III, District Attorney, Otha “Curtis” Nelson, Jr., Christopher J.M. Casler, Assistant District Attorneys, Baton Rouge, Louisiana, Counsel for Ap-pellee State of Louisiana
    Annette Roach, Lake Charles, Louisiana, Counsel for Defendant/Appellant M.P.
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ
   McClendon, j.

|2M.P., a child, was alleged to be delinquent and/or' in need of supervision by petition based on one count of first degree rape in violation of LSA-R.S. 14:42A(1) (count 1), one count of first degree rape in violation of LSA-R.S. 14:42A(2) (count 2), one count of first degree rape in violation of LSA-R.S: 14:42A(5) (count 8), and one count of simple robbery in violation of LSA-R.S. 14:65 (count 4). He denied the allegations, and following an adjudication hearing, the juvenile court found him not guilty of counts 1 and 2 and dismissed those charges, and adjudged him delinquent as to counts 3 and 4. Following a disposition hearing, M.P. was committed to the secure custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, until his 21st birthday, without benefit of parole, probation or suspension of sentence. M.P. now appeals, challenging the sufficiency of the evidence on both counts. For the following reasons, we affirm the adjudications of delinquency and disposition.

FACTS

The victim, T.S., age fourteen at the time of this offense, testified at trial. According to T.S., she resided in an apartment at Scotland Square Apartments (in East Baton Rouge Parish) with her grandmother, mother, younger brother and younger sister. On the morning of December 17, 2016, T.S.’s father, E.S., who did not live with them, picked up the children, and they returned to the apartment after lunch. That afternoon, T.S.’s grandmother asked T.S. to go to the mailbox and check the mail.| s While walking alone to the mailbox, T.S. was stopped by two boys (later identified as M.P. and D.L., also charged as noted herein). Although T.S. did not know the boys, she described herself as friendly and answered the boys’ questions about her name, age and whether she had a boyfriend. The boys walked with T.S. to the mailbox, and M.P. asked T.S. for a hug. When she hugged him, D.L. took her cell phone out of her back pants pocket and ran off with it. T.S. asked M.P. to help her get her phone back, and M.P. offered to take her to D.L.

As they approached an area behind the apartments where dumpsters were located, T.S. saw D.L. with her phone. T.S. saw another boy (later identified as T.H.) on the other side of a nearby fence/gate. When T.S. asked for her phone, the boys began passing it back and forth, and D.L. told her she was not getting the phone back until she let one of the boys “yeah”, which T.S. was aware meant to have sex. Although T.S. told them she was not that kind of girl, she testified that the boys forced her. According to T.S., the boys pulled her pants down and despite her efforts to pull them up, the boys bent her over and “hit” her from behind, meaning to have intercourse from the back. T.S. testified the boys kept switching positions, with one sticking his penis in her mouth while the other was behind her having intercourse with her. T.S. unequivocally testified that both M.P. and D.L. put their penis in her vagina, and at least one of them, possibly both, put their penis in her mouth. T.S. told one of the boys she had surgery on her mouth, in an effort to avoid putting his penis in her mouth. During this sexual activity, T.H. threw a condom to one of the boys, and at some point, T.H. came over the fence. Although T.S. recalled that T.H. got behind her, she was unsure what he did while behind her. In her statement with the Children’s Advocacy Center, T.S. stated that T.H.’s pants were down, but she did not see his penis, and was unsure whether he put his penis in her vagina. T.S. testified that T.H. was not present when D.L. originally took her phone, and the only time T.H. had the phone was when they were playing with it.

T.S., knowing that her father was at the apartment and hoping that he would catch the boys, told the boys there was $1,000 at the apartment that she would give |4them to get her phone back. When the boys agreed, T.S. walked to the apartment with. M.P. and D.L. According to T.S., T.H. had jumped back over the fence and left. T.S. entered the apartment with M.P. and D.L., but when her grandmother, who is deaf, came out of the bathroom and yelled, one boy called to the other and they both ran outside. As T.S. also ran outside, she saw her brother and told him that the boys attacked her and took her phone. Her brother then called their father, who was out looking for T.S., and as the father returned, he and T.S. got into his car in pursuit of the boys. They eventually got out of the car and ran after the boys but were unable to catch them. T.S. identified the three boys in court as the ones who committed these acts.

T.S. testified she did not try to run or stop them when they began pulling her pants down because there were two boys on that side of the fence with her. When asked if she tried to punch them, the boys told her if she hit them, they would hit her. T.S. testified that she did not consent to the sexual activity and did not consent to the taking of her phone, which she never got back.

T.S.’s brother testified at trial that he also went to look for T.S. after his father called that he could not find her. As he returned to the apartment, he saw two boys, one in the apartment and one on the side of the building. T.S. was outside and told him the boys raped her. He called their father and told him what T.S. said, and when the boys started running, he tried to chase them until he saw them climb over a fence. He called the police while T.S. and their father looked for the boys. T.S.’s father, E.S., also testified at trial that he became concerned and went to look for T.S. As he returned to the apartment, T.S. and her brother ran toward him, and his son said boys took T.S.’s phone and raped her. He and T.S. pursued them in his car, then on foot, but were unable to catch them. Subsequently, E.S. obtained information from calling people and social media as to the name of one of the boys, which he gave to the police.

Officer Amy Krumm with the Baton Rouge Police Department responded to the call and, after obtaining a statement from T.S., went to the area of the dumpsters/ where she found a condom. Officer Krumm described T.S. as crying and emotionally | ¿upset. She observed dirt and grass stains on T.S.’s pants around the knees and up the legs and buttocks areas, and noted that her hair was somewhat disheveled.

Wanda Pezant, a certified nurse practitioner, accepted by the court as an expert sexual assault nurse, examined T.S. that evening at the hospital. T.S. was very tearful, but alert and oriented during the examination. Nurse Pezant observed vaginal bruising, abrasions and redness and anal abrasions and redness. She also observed hymenal notching, which she testified was consistent with forced sexual intercourse. The injuries to the vaginal area were consistent with sexual intercourse. The injuries'to the anal area were consistent with penetration, and ■ although scarring and trauma in this area may often be found in cases of consensual sex, it is less common to see the abrasions and friction in the direction observed on T.S., which was the basis for her opinion that these injuries were consistent with forced penetration. Nurse Pezant opined that these injuries, while they may seem minor, were pretty dramatic and consistent with forced sexual assault, and she further opined that the statement given by T.S. was very consistent with the documented injuries.

Although a rape kit was performed, at the time of the trial, the investigating officers were unaware of any DNA'results. The condom found at .the scene, the recorded statement of T.S. to the Children’s Advocacy Center, the recorded statements of the three boys, T.H., M.P. and D.L., and surveillance video of the area were each admitted into evidence. The surveillance video did not include the area where the sexual assault was alleged to have occurred, but did include some limited footage of two of the boys following T.S. Each of the boys provided varying versions of the events, which each gradually included more incriminating details as the versions changed. In his statement to police, D.L. admitted to taking T.S.’s phone and to putting his penis in her mouth. Although he claimed the vaginal sex occurred in T.S.’s apartment, he admitted to vaginal sex and also confirmed that T.S. offered to give them $1,000 for her stuff, which prompted them to' go to the apartment. In his statement to police, M.P. admitted to putting his penis in T.S.’s mouth, and after putting on the condom, tried' to put it in her vagina. M.P. also confirmed that T.S. | ^offered them $1,000 and told them she had surgery on her mouth. T.H. admitted giving a condom to M.P. and holding the phone at one point, but then giving it back to D.L. T.H. denied touching T.S.

The juvenile court noted that it considered the statements of each juvenile only as to that juvenile, not the others. The court found the statements of T.S. credible and found the statements of each of the juveniles- to be self-serving, noting each juvenile’s statement changed multiple times, but each time became more consistent with T.S. The court found that T.S.’s statement made sense to the court, while the juveniles’ statements, based upon the facts, did not make sense. The juvenile court found each of the juveniles guilty of first degree rape, in violation of LSA-R.S. 14:42A(5), and simple robbery, in violation ofLSA-R.S. 14:65. '

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, M.P. asserts the evidence was insufficient to adjudicate him delinquent for either first degree rape or simple robbery.

In a juvenile adjudication proceeding, the State must prove béyond a reasonable doubt that the child committed a delinquent act alleged in the petition. LSA-Ch.C. art. 8.83. The burden of proof, beyond a reasonable doubt, is- no less- severe than the burden of proof required, in an adult proceeding. State in Interest of S.T., 95-2187 (La.App. 1 Cir. 6/28/96), 677 So.2d 1071, 1074. In State in Interest of Giangrosso, 385 So.2d 471, 476 (La.App. 1 Cir. 1980), affirmed, 395 So.2d 709 (La. 1981), this court stated:

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

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

Accordingly, on appeal the standard of review for sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, i.e. viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have-found the state proved the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; and State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). It is well settled that, if found to be- credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence or prove the commission of the offense by the defendant. State v. Lilly, 12-0008 (La.App. 1 Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 12-2277 (La. 5/31/13), 118 So.3d 386.

Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review'the record to determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La.App. 1 Cir. 11/07/97), 704 So.2d 786, 789-90. In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. State in Interest of Wilkerson, 542 So.2d 577, 581 (La.App. 1 Cir. 1989).

The Jackson standard is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable lRhypothesis of innocence. State in Interest of D.F., 08-0182 (La.App. 1 Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 08-1540 (La. 3/27/09), 5 So.3d 138. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).

First Degree Rape

Louisiana Revised Statutes 14:41A defines “rape” as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. Further, LSA-R.S. 14:42 provides, in pertinent part:

A. First degree rape is 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 under any ope or more of the following circumstances:
(6) When two or more offenders participated in the act.
B. For purposes of Paragraph (6), “participate” shall mean:
(1) Commit the act of rape.
(2) Physically assist in the commission of such act.

M.P. does not deny that he engaged in oral sexual intercourse with T.S. and admits that he “attempted” vaginal intercourse with T.S. but was unsuccessful. He argues T.S. consented to the sex, and she did not try to stop the boys, as she was more concerned with her phone. He points out inconsistencies in the pretrial statements and trial testimony of T.S., arguing T.S. was not credible.

The victim, T.S., testified that when she asked for her phone, the boys told her she had to let them have sex with her before she could get it back. She testified that she told them she was not that type of girl, but they forced her and began pulling her pants down. T.S. testified the boys pushed her to bend her over, and she felt something forcefully pushing in her. She testified that D.L. and M.P. both put, their penises in her vagina. While M.P. argues that T.S. did not fight, scratch or kick the | flboys, did not yell or scream, walked back to her apartment with two of the boys arm-in-arm, still concerned about getting her phone back, and remained calm during all of this, his arguments do not take into account the entirety of T.S.’s testimony, which the trial court specifically found to be credible. When D.L. took her phone, T.S. initially felt somewhat uncomfortable, but was not scared, as they were her age and she thought they were “playing” with her and would not hurt her. However, when they pulled her pants down, she did think they were going to hurt her. T.S. testified that she did not cooperate, and although she tried to remain calm, she was trying to get her phone and get away from them. She also testified that she did not stop them because there were three boys and only one of her, and she did not think she could run. According to T.S., D.L. told her he would hit her if she hit him. T.S. testified she did not scream or yell because it was a bad neighborhood, and they hear screaming often. She further testified that her reasoning for bringing them to the apartment was to have her father catch them. T.S. unequivocally testified that she did not want to have sex with any pf the boys and she did not give them permission for sex with her.

The juvenile court specifically found T.S. to be credible, which was reasonable considering the evidence herein. The testimony of T.S. that she did not consent to sexual intercourse with any of the boys, which was supported by the testimony of Nurse Pezant that the injuries she observed to T.S.’s vagina and anus were consistent with forced penetration, was sufficient to prove a lack of consent to this sexual assault. Moreover, because more than two offenders participated in the acts, the intercourse is further deemed to be without lawful consent of the victim and constitutes first degree rape. LSA-R.S. 14:42A(5). This court further notes that M.P. fled from the apartment complex, and although an individual’s flight does not in and of itself indicate guilt, it can be considered as circumstantial evidence that the individual has committed a crime, as flight shows consciousness of guilt. State v. Williams, 610 So.2d 991, 998 (La.App. 1 Cir. 1992), writ denied, 617 So.2d 930 (La. 1993). Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that M.P. was guilty of first degree rape herein where two or more Imoffenders participated in the act. Further, after undertaking our State’s constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

Simple Robbery

Louisiana Revised Statutes 14:65A defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. M.P. argues the State failed to prove either that he was a principal to the taking of the phone or that the State failed to prove that force or intimidation was used when the phone was taken.

Louisiana Revised Statutes 14:24 provides that all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. The defendant’s mere presence at the scene is not enough to “concern” him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be “concerned” in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State in Interest of D.F., 991 So.2d at 1085. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State in Interest of K.J.C., 09-0658 (La.App. 1 Cir. 9/11/09), 2009 WL 3162216 (unpublished) (citing State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam)). Simple robbery is a general intent crime. State v. Davis, 12-0386 (La.App. 1 Cir. 11/2/12), 111 So.3d 100, 103. See also LSA-R.S. 14:10(2). An offender has the requisite general intent when, from the circumstances, the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result. Id. In Although general intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. Johnson, 03-1228 (La. 4/14/04), 870 So.2d 995, 998. As a general rule, “liability [as a principal] will not flow merely from a failure to intervene;” however, “silence in the face of a friend’s crime will sometimes suffice when the immediate proximity of the bystander is such that he could be expected to voice some opposition or surprise if he were not a party to the crime.” State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 891-92, on rehearing (6/21/02), cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), citing Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal 'Law § 6.7(a)(1986) (Emphasis in original).

In this case, D.L. took the phone from T.S. as M.P. was hugging her. M.P. was certainly in the immediate proximity of the crime, yet voiced no surprise or opposition to the taking. Moreover, M.P. then led T.S. to the precise area where D.L. was waiting with the phone, where the juveniles proceeded to. rape her as discussed above.

With regard to the use of force or intimidation, M.P. argues that the events that occurred at the dumpster were not part of the robbery, as the robbery was a completed act atj that time. M.P. argues that giving chase after property is taken is insufficient to raise a theft of property to simple robbery, citing State v. Lucas, 469 So.2d 37 (La.App. 1 Cir.), writ denied, 472 So.2d 33 (La. 1985). However, in that case, this court found the “record as a whole” failed to establish the element of force or intimidation, noting that the victim clearly did not act as a man intimidated. Id. at 38-39. Moreover, that case was decided prior to the supreme court Finding that the element of force or intimidation need not occur before or contemporaneously with the taking, but rather recognized that the elements of force and intimidation can be proven by evidence that it occurred in the course of completing the crime. State v. Meyers, 92-3263 (La. 7/1/93), 620 So.2d 1160, 1163. In this ease, although T.S. did. not testify to force used at the time of the taking, and although she felt somewhat uncomfortable but not scared initially, the totality of the evidence, including the actions of the juveniles in leading her to the dumpster area, where she then expressed that she was unable to run because she was outnumbered, supports the element of force or intimidation used by M.P. I ^herein in completing the crime of robbery of the phone from T.S. Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that M.P. was guilty of simple robbery as a principal herein. Further, after undertaking our State’s constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the adjudications of delinquency and disposition.

ADJUDICATIONS AND DISPOSITION AFFIRMED.

      . To protect M.P.’s identity as a minor, we have recaptioned this case and refer to him by his initials. See Uniform Rules of the Louisiana Courts of Appeal, Rule 5-2.

      . Two other juveniles, D.L. and T.H. (the brother of M.P.), were also charged and adjudicated for the same crimes, and each of their adjudications are the subject of separate appeals. See State in Interest of T.H., 17-0890 (La.App. 1 Cir. 11/1/17), 233 So.3d 662, and State in Interest of D.L., 17-0891 (La.App. 1 Cir. 11/1/17), 233 So.3d 671.

      . Although the minutes of the disposition hearing, which were signed by the clerk of the juvenile court, provided separate adjudications for each count, the transcript of that hearing did not reflect separate dispositions. Nevertheless, this court has found it is appropriate in juvenile cases for a court to declare a single disposition for multiple adjudications. See State in Interest of J.C., 09-2000 (La.App. 1 Cir. 7/15/10), 2010 WL 2802104 (unpublished). The disposition herein until M.P.’s 21st birthday was the mandatory disposition based upon a violation of LSA-R.S. 14:42, first degree rape. LSA-Ch.C. art. 897.1A. Moreover, this court further notes that the disposition until M.P.’s 21st birthday results in a custody period of 5 years, 8 months and 29 days (according to the record, M.P. has been in custody since 12/22/2016), which is less than the maximum term of imprisonment for the felony of simple robbery, and accordingly, it is within the limits of the statute. See LSA-Ch.C. art. 898A; LSA-R.S. 14:65B.

      . The initials of the victim and her family members are used in order to keep her identity confidential pursuant to LSA-R.S. 46:1844W.

      . In the absence of specific procedures provided by the Louisiana Children’s Code, courts shall proceed in accordance with the Louisiana Code of Criminal Procedure. See LSA-Ch.C. art. 803.