text:
    STATE of Louisiana v. George SMITH
    NO. 2017-KA-0661
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 10, 2018
   Leon Cannizzaro, District Attorney, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA

Kevin V. Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods )

Judge Edwin A. Lombard The defendant, George Smith, appeals his convictions on one count of stalking a person under a protective order, a violation of La. Rev. Stat. 14:40.2, and ten counts of violation of a protective order, violations of La. Rev. Stat. 14:79. After review of the record in light of the applicable law and arguments of the parties, the defendant's convictions are affirmed in part and reversed in part.

Relevant Facts and Procedural History

The defendant is the former live-in boyfriend of Ms. Trina Johnson and father of her youngest child. Their live-in arrangement ended during Ms. Johnson's pregnancy, but the couple maintained contact. In late September of 2014, however, an altercation occurred at the defendant's business location in Belle Chasse, Louisiana, which resulted in criminal proceedings being instituted against the defendant in Plaquemines Parish. On October 8, 2014, a protective order was issued clearly stating that for a one-year period the defendant was not to: (1) abuse, harass, stalk, follow, or threaten Ms. Johnson; (2) contact Ms. Johnson personally, electronically, by phone, in writing, or through a third party, or to go within 100 yards of Ms. Johnson; (3) contact Ms. Johnson's family personally, by phone, electronically, in writing or through a third party; or (4) go to Ms. Johnson's household or residence, school, or place of employment.

On October 28, 2015, the defendant was charged by bill of information with one count (Count 1) of stalking a person under a protective order during a four month period after imposition of the protective order, as well as fifteen counts (Counts 2 through 16) of violating the protective order on specific dates during the same four month period. The defendant was arraigned on November 12, 2015, and pleaded not guilty to all counts. Just prior to trial on January 9, 2017, the State noted its intent to offer evidence of similar crimes, wrongs, or acts in domestic abuse cases and the evidence was ruled admissible. A jury found the defendant guilty on Count 1 and the trial court ordered the parties to file memorandum of law on the remaining fifteen counts. In its memoranda filed on January 24, 2017, the State referenced only counts two through eight and counts ten through twelve.

The trial court found the defendant guilty on the counts referenced in the State's memoranda (Counts 2-8, 10-12) on February 10, 2017. The defendant was subsequently sentenced, with credit for time served and twenty-one months suspended, to serve ninety-days of a two year sentence at the Department of Corrections at hard labor on Count 1, the stalking conviction. The defendant was sentenced to six-months, suspended, with six months of inactive probation on each of the remaining convictions for violation of the protective order, all sentences to be served concurrently with each other and any and all other sentences imposed.

In this timely filed appeal, the defendant challenges: (1) the sufficiency of evidence underlying his convictions; (2) the admission of evidence of similar crimes, wrongs, or acts in domestic abuse cases; and (3) being convicted simultaneously for individual violations of a protective order and stalking a person for whose benefit a protective order was issued.

Assignment of Error 1

The defendant argues that the evidence is insufficient to support the convictions for violation of the protective order because there were inconsistencies in the testimony of the witnesses and because, in violation of Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the State introduced false testimony by Ms. Johnson and her husband, Mr. Roy, which they failed to correct.

Applicable Statutes

La. Rev. Stat. 14:40.2, the stalking statute, provides in pertinent part:

A. Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted. (emphasis added)
....
B. (3) Any person who commits the offense of stalking against a person for whose benefit a protective order, a temporary restraining order, or any lawful order prohibiting contact with the victim issued by a judge or magistrate is in effect in either a civil or criminal proceeding, protecting the victim of the stalking from acts by the offender which otherwise constitute the crime of stalking, shall be punished by imprisonment with or without hard labor for not less than ninety days and not more than two years or fined not more than five thousand dollars, or both.

La. Rev. Stat. 14:79, violation of protective orders, provides in pertinent part:

A. (1)(a) Violation of protective orders is the willful disobedience of a preliminary or permanent injunction or protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., R.S. 46:2181 et seq., Children's Code Article 1564 et seq., Code of Civil Procedure Articles 3604 and 3607.1, or Code of Criminal Procedure Articles 320 and 871.1 after a contradictory court hearing, or the willful disobedience of a temporary restraining order or any ex parte protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., criminal stay-away orders as provided for in Code of Criminal Procedure Article 320, Children's Code Article 1564 et seq., or Code of Civil Procedure Articles 3604 and 3607.1, if the defendant has been given notice of the temporary restraining order or ex parte protective order by service of process as required by law.

La. Rev. Stat. 15:438 requires that when circumstantial evidence is used to prove the commission of an offense, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."

Applicable Jurisprudence

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. State v. Cummings , 95-1377, p. 3 (La. 2/28/96), 668 So.2d 1132, 1134. Rather than being a separate test, La. Rev. Stat. 15:438 insures that, when circumstantial evidence forms the basis of the conviction, the evidence is sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt in accordance with the Jackson v. Virginia due process standard. Id.

It is axiomatic that a reviewing court shall not substitute its own appreciation of the evidence for that of the jury; likewise, credibility determinations, which are questions of fact within the sound discretion of the trier of fact, will not be disturbed on appeal unless they are clearly contrary to the evidence. State v. Lubrano , 563 So.2d 847, 850 (La. 1990) (citation omitted); see also State v. Cummings , supra ("It is not the function of an appellate court to assess credibility or reweigh the evidence."). Accordingly, in the absence of internal contradiction or an irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Rapp , 14-0633, pp. 6-7 (La. App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citing State v. Marshall , 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369 ). Thus, when there is conflicting testimony about factual matters and the resolution depends upon a credibility determination of a witness, it goes only to the weight, not the sufficiency, of the evidence. State v. Edgar , 12-0744, p. 16 (La. App. 4 Cir. 9/18/13), 140 So.3d 22, 34, writ denied , 13-2452 (La. 4/4/14), 135 So.3d 638 (citation omitted).

To prove a Napue claim, "the accused must show that the prosecutor acted in collusion with the witness to facilitate false testimony," and, if the prosecutor allowed a State witness to give false testimony without correction, "the conviction gained as a result of that perjured testimony must be reversed, if the witness's testimony reasonably could have affected the jury's verdict, even though the testimony may be relevant only to the credibility of the witness." State v. Broadway , 96-2659, p. 17 (La. 10/19/99), 753 So.2d 801, 814, cert. denied , 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000) (citations omitted).

Relevant Evidence Adduced at Trial

Ms. Trina Johnson testified that she financially supports her four children as a nurse, embalmer, and funeral director. In late September of 2014, Ms. Johnson and her mother, along with Ms. Johnson's eleven year-old son, nephew, and youngest child gave the defendant a ride from to his body shop in Belle Chasse, Louisiana. When they arrived, the defendant got out of the truck and, leaving the truck door open, went inside the shop. His son (Ms. Johnson's youngest child) followed him into the shop and Ms. Johnson followed to retrieve the child. She picked up the child but, before she could leave, the defendant angrily accused Ms. Johnson (who had just returned from the Saints-Cowboys football game) of going to the game with a man and "messin around" on him. The defendant became violent and hit her. Picking her up by the neck, the defendant threatened Ms. Johnson, telling her he would kill her and anyone she loved if he caught her with another man. Ms. Johnson started screaming and her mother rushed in, separating the defendant and Ms. Johnson. The women screamed for Ms. Johnson's older son, Demontre, (who had remained in the truck) to call 911. The defendant ran to the truck, snatched the phone from Demontre, and threw it. The defendant then grabbed the baby, took the phone, and drove off in another car. The women called 911.

As a result of this incident, criminal proceedings were instituted in Plaquemines Parish and the protective order at issue in this matter was signed on October 8, 2014, prohibiting the defendant from abusing, harassing, stalking, following, or threatening Ms. Johnson, contacting her in any manner or going within 100 yards of her, contacting her family in any manner, or going to her home or place of employment. Nevertheless, the defendant continued to contact Ms. Johnson, sending her a series of texts on October 30, November 2, November 3, and November 11, 2014, copies of which were identified by Ms. Johnson and submitted into evidence.

In addition, Ms. Johnson testified that on November 5, 2014, the defendant approached her as she arrived at the nursery to drop off her youngest child. He said he wanted to talk to her about their relationship and asked to visit with the baby. Ms. Johnson agreed to let him talk to the baby for a minute on the condition that he leave her alone. Ms. Johnson then took the child inside the nursery and, a short time later (once the defendant's car was gone), returned to her vehicle. When Ms. Johnson tried to move her car, however, the defendant drove up and blocked her vehicle so she was unable to leave. Ms. Johnson was on the phone with Mr. Roy at the time and told him she was going to have to call the police. Ms. Johnson locked herself in her vehicle and waited for the police to arrive. Mr. Roy arrived prior to the police and asked the defendant to move out of Ms. Johnson's way. The defendant ultimately left the scene prior to the arrival of the police. When the police arrived, Ms. Johnson gave a statement, and a warrant, which was introduced into evidence, was issued for defendant's arrest.

On November 6, 2014, Ms. Johnson, accompanied by Mr. Roy, drove to her mother's house. When she arrived, however, she observed the defendant with her mother outside of the house. She and Mr. Roy remained in the vehicle and Ms. Johnson called to her mother, asking why the defendant was at her house. The defendant started screaming and cursing at Ms. Johnson, telling her that he was going to kill her and Mr. Roy. Ms. Johnson was frightened. She and Mr. Roy drove away, followed by the defendant. Ms. Johnson and Mr. Roy went to the Fifth District station to file a complaint. Both the application for an arrest warrant and the arrest warrant, alleging that on November 6, 2014, the defendant committed simple assault and violated the protective order, were submitted into evidence.

Ms. Johnson testified that on November 27, 2014, the rear window of Mr. Roy's car was broken while parked outside of her home. Ms. Johnson stated that she believed the defendant had damaged the vehicle because the defendant had previously threatened both her and Mr. Roy on numerous occasions. In addition, Ms. Johnson testified that a black Pontiac Firebird owned by her son, Jodi Williams, was damaged on January 17, 2015, while it was parked outside her house. Specifically, "G Smith" was scratched, or "keyed," into the paint in a handwriting which Ms. Johnson stated that she recognized as the defendant's handwriting. Photographs depicting the damaged vehicles were introduced into evidence.

Ms. Johnson testified that, as a result of the ongoing harassment and threats by the defendant, she had altered many aspects of her life. She changed jobs (from nursing to working at a funeral home) because the defendant harassed her at patients' houses. Once she changed careers, the defendant threatened a worker at the funeral home so she once again changed jobs. Ms. Johnson also changed the buses her children took to school and her daily routine out of fear of running into the defendant. While the protective order was in place, Ms. Johnson and her children moved out of their home for three months and moved in with her mother and various friends because defendant kept breaking into her home. Ms. Johnson had burglar bars installed and the bedroom windows nailed shut by a carpenter but, according to Ms. Johnson, the defendant subsequently took the bedroom window out. Ms. Johnson ultimately installed security cameras at her home.

On cross-examination, defense counsel asked Ms. Johnson whether the defendant was the first man she had ever accused of domestic violence, to which she answered "yes." Defense counsel then asked whether she had accused Cedric Roy, her present husband, of domestic violence. Ms. Johnson denied she had ever accused Cedric Roy of domestic violence. Ms. Johnson stated, "We had a, the police was [sic] was called but it wasn't from me with Cedric. It was Cedric and George (the defendant)." Defense counsel asked whether she had accused Mr. Summers. Ms. Johnson replied, "No, George wanted to kill him too.... Because that's always the problem. If any other person came around, or they had a disagreement, the police was [sic] called."

Defense counsel also questioned Ms. Johnson as to her medical history pertaining to the conception of her child with the defendant and other matters. In the course of cross-examination, Ms. Johnson related that she was eight months pregnant when she discovered the defendant's infidelity and the defendant moved out of her home.

Mr. Roy testified that he has known the defendant for about ten years and Ms. Johnson, who he started dating in the latter part of 2014 and is currently married to, for eleven years. In October 2014, Mr. Roy was aware of the protective order and the circumstances surrounding it. On November 5, 2014, Ms. Johnson called him on the phone when the defendant appeared at her son's daycare. He drove over to the daycare and, when he arrived, he saw the defendant talking to Ms. Johnson. When the defendant saw Mr. Roy he stated: "N------, I can have you killed. N------, do you know who I am?" Mr. Roy stated that he had no reason to doubt the defendant meant what he said.

On the following day, November 6, 2014, Mr. Roy drove Ms. Johnson to the home of her mother, Janice Watson. When they arrived (at approximately 9 a.m.), Ms. Watson was in the front yard with her sick dog. Shortly thereafter, the defendant drove up and threatened Mr. Roy and Ms. Johnson saying, "I can have you touched. I can kill you." When Mr. Roy and Ms. Johnson told him them that they were going to call the police, the defendant responded that he did not care about the police or the law. Mr. Roy and Ms. Johnson drove directly to the Fifth District Police Station to report the threat.

On cross-examination, Mr. Roy denied Ms. Johnson accused him of criminal activity in the past. Regarding the incident at the daycare center on November 5, 2017, Mr. Roy testified that he saw defendant talking to Ms. Johnson in her vehicle as he arrived. Ms. Johnson's vehicle was parallel parked and Mr. Roy parked his vehicle on the side parallel to Ms. Johnson's. When he got out of his vehicle, the defendant told him, "I can have you touched, I can have you killed." The defendant returned to his vehicle and left. Once defendant left, Ms. Johnson and Mr. Roy left. Mr. Roy did not recall seeing the police at the daycare center, but stated Ms. Johnson had spoken to them on the phone.

Mr. Roy also testified as to an incident that occurred during the period of the protective order when he was in Ms. Watson's living room and the defendant barged in asking, "What this N------doin' up in here? Additionally, Mr. Roy testified that on Thanksgiving in 2014, the rear window of his SUV was broken and he attributed the damage to the defendant because he had "no type of issues or beef" with anyone other than defendant at the time.

Ms. Watson testified that the protective order against the defendant arose out of an incident of domestic abuse that occurred in late September of 2014, when she and Ms. Johnson gave the defendant a ride to Belle Chasse. She affirmed that the defendant's two-year old son followed him into the defendant's body shop and Ms. Johnson went inside to get the baby. Shortly thereafter, Ms. Watson went inside the office and, observing that the defendant had Ms. Johnson against the wall, pushed him off her daughter while calling to her grandson (Demontre) to call the police. The defendant then ran to Ms. Watson's vehicle, yanked the phone from Demontre, and threw it. He then grabbed the baby and drove off in his car. The women called 911 and filed a domestic violence complaint which resulted in the issuance of the protective order applicable in this case.

Ms. Watson affirmed that following the issuance of the protective order, the defendant came to her house to ask her to talk to Ms. Johnson about letting him see his baby. Ms. Johnson and Mr. Roy came by and when Ms. Johnson saw defendant, called out asking why Ms. Watson was talking to him. The defendant started screaming and cursing at Ms. Johnson and threatened to "hurt" Ms. Johnson and Mr. Roy. When Ms. Johnson and Mr. Roy started to drive away, the defendant jumped into his vehicle and followed them. Ms. Watson also recalled the incident when Mr. Roy was speaking with her inside her home and the defendant barged in demanding to know why Mr. Roy was there. Ms. Watson conceded on cross-examination that she did not recall the exact date of this incident but knew that, under the provisions of the protective order, the defendant was not supposed to come to her home. However, the defendant told her he was not concerned about the protective order or the police. Ms. Watson stated she was concerned for her daughter's safety.

Jodi Williams, Ms. Johnson's son, testified that he lives with his mother on McKendall Place in New Orleans East. He testified that in January 2015 he went outside and saw "GS" and "G. Smith" keyed into the back of his car. He also discovered that his laptop and other things had been stolen from the car. He did not recall the exact date but stated that the police were called immediately after he discovered the damage and missing items. Photographs of the damage were submitted into evidence.

Officer Kahlid Watson of the New Orleans Police Department (NOPD) testified that on November 5, 2014, he responded to a dispatch call of a domestic disturbance in the 4200 block of Marigny Street and, upon arrival, spoke to complainant, Ms. Johnson. Ms. Johnson reported that the defendant confronted her at her child's daycare in violation of a protective order she had obtained against him. After confirming with the registry that the protective order was still valid, Officer Watson obtained a warrant for defendant's arrest on the charge of violation of a protective order.

Officer Donald Blackwell of the NOPD testified that on November 18, 2014, he responded to a call of a vehicle burglary at 5120 McKendall Place which had occurred between November 16 and 17, 2017. Upon arrival on the scene, he observed the vehicle and spoke with the victims, Jodi Williams and Trina Johnson, who reported a laptop computer and ear buds had been taken from the vehicle and the wooden fence on the property had been damaged.

Officer Tyrone Parker of the NOPD testified that he was dispatched to 5120 McKendall Place twice in a short period of time regarding incidents involving vehicle damage and on both occasions the homeowner, Ms. Johnson, stated she believed her ex-boyfriend (the defendant) caused the damage. Specifically, Officer Parker was dispatched on November 27, 2014, (Thanksgiving), to investigate a complaint of criminal damage to a vehicle and observed the broken rear window of an SUV belonging to Cedric Roy. Although there were no witnesses to the window being broken, Mr. Roy informed Officer Parker he believed that a former boyfriend of Ms. Johnson had broken the window. On January 17, 2015, Officer Parker was again dispatched to 5120 McKendall Place where he observed a vehicle had been keyed leaving marks and scratches. However, Officer Parker conceded that the police report pertaining to that incidence indicated that, although the criminal damage was reported as having occurred on January 17, 2015, at 8 am, the police were not actually called until January 18, 2015, at 5:12 pm. Moreover, the police report indicates only criminal damage, not that a laptop or anything else had been stolen from the vehicle.

Officer Nicole Jones, a NOPD communications officer, identified the 911 calls associated with NOPD Item Nos. J-22795-14, K-32937-14, A-21080-15, and K-19830-14, and the 911calls were played to the jury.

Tanisha Fisher testified on behalf of the defendant, who she described as her "boyfriend," that they began dating in late 2011 or early 2012. In early 2012 when Ms. Johnson knocked on her door and, when she opened it, she saw Ms. Johnson standing by the defendant's truck with the door open. Ms. Fisher followed Ms. Johnson to her vehicle and sat in the passenger seat talking to her. Ms. Johnson "took off driving" towards the defendant's home. Ms. Johnson saw the defendant and began driving very fast, following him on the interstate and calling him on the phone. After Ms. Fisher yanked the phone out of Ms. Johnson's hand and talked to the defendant, Ms. Johnson returned Ms. Fisher to her home. On cross-examination, Ms. Fisher confirmed that the incident she described occurred when Ms. Johnson was pregnant, shortly after she began dating the defendant, and two years prior to the issuance of the protective order pertinent to this case.

The defendant testified that he was the father of six boys, including Ms. Johnson's youngest son. He conceded he had a 1995 conviction for possession of stolen property valued in excess of $500 and a 1994 conviction for altered or removed vehicle identification number. The defendant stated that he began dating Ms. Johnson in 2006 and moved in with her (and her children) shortly thereafter but was no longer living with her by the end of 2011. Regarding the incident in September 2014, he asserted that it began when he told Ms. Johnson that he would no longer be helping her with her bills because she had money to go to the Saints game. He contended, however, that the argument never became physical. He denied vandalizing either Mr. Roy's or Mr. Williams' vehicles or taking a laptop from Mr. Williams' vehicle. He denied confronting Ms. Johnson at their child's daycare. He denied that any incident occurred at Ms. Watson's house involving Mr. Roy and Ms. Johnson in November 2014. The defendant conceded that an incident occurred at Ms. Watson's house where he entered and Mr. Roy was there, but insisted that it occurred in 2012 when he brought diapers to Ms. Watson who was taking care of his son. The defendant declared that he never violated the protective order.

Officer Ashley Boult of the NOPD testified for the defense that she remembered investigating a criminal complaint made by Ms. Johnson where Mr. Roy was the name of the accused. No further information was forthcoming, nor was a police report reflecting this incident introduced into evidence.

Analysis

First, with regard to the defendant's arguments that the evidence is insufficient because the testimony of the witnesses was inconsistent, the credibility of the witnesses and weight of the evidence is within the sound discretion of the trier of fact and will not be overturned on appeal unless clearly contrary to the evidence.

With regard to the Napue claim, the defendant challenges the credibility of Ms. Johnson and Mr. Roy based on their denial of a domestic abuse complaint being filed by Ms. Johnson against Mr. Roy. The record shows, however, that in responding to questions on this issue, both witnesses indicated that any complaint purported to be against Mr. Roy was in connection to a call about the defendant. Officer Boult, called as a defense witness, testified that she "remembered" investigating a criminal complaint made by Ms. Johnson where Mr. Roy was the name of the accused. However, no further information was elicited, nor was a corroborating police report reflecting this incident introduced into evidence. Notably, witness credibility and the weight of the evidence is determined by the trier of fact and, in this case, even accepting arguendo that Office Boult's testimony constitutes evidence of false testimony by Ms. Johnson and Mr. Roy, to the extent that the State presented false testimony, it was corrected by Officer Boult. This argument is totally meritless.

The defendant was convicted of Counts 1-8 and 10-12. Count 1 charged the defendant with the crime of stalking by willfully, maliciously, and repeatedly following or harassing another person between October 18, 2014, and January 30, 2015. With regard to violations of the protective order, Counts 2-16, the bill of information only refers generically to violations on specific dates without relating any narrative description of the alleged violation on that date. Thus, according to the bill of information, the defendant violated the protective order that was issued on October 8, 2014, on the following dates:

Count 2-November 6, 2014
Count 3-November 5, 2014
Count 4-November 6, 2014
Count 5-October 18, 2014
Count 6-November 18, 2014
Count 7-November 27, 2014
Count 8-January 17, 2014
Count 10-October 30, 2014
Count 11-November 2, 2014
Count 12-November 3, 2014

Count 1

The State witnesses presented testimony, supported by documentary evidence, of numerous events relating to the defendant contacting, following, and harassing Ms. Johnson and her family in the period between mid-October 2014 and the end of January 2015. Beyond the date-specific allegations of malicious contact and harassment contrary to the protective order, Ms. Johnson related that during this period she found it necessary to change jobs, evacuate her home, and install security cameras to avoid the defendant's harassment and stalking. Accordingly, viewed in the light most favorable to the prosecution, any rational juror could find beyond a reasonable doubt that the defendant willfully, maliciously, and repeatedly followed or harassed Ms. Johnson during that time period. Sufficient evidence supports this conviction.

Counts 2, 10, 11, and 12

The evidence clearly indicates that the defendant sent text messages to the Ms. Johnson on October 30, November 2, November 3, and November 6. This contact was in direct violation of the protective order which prohibited the defendant from contacting Ms. Johnson "personally, electronically, by phone, in writing." Accordingly, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could find beyond a reasonable doubt that sufficient evidence supports the defendants convictions on counts 2, 10, 11 and 12.

Count 3

This conviction is based on the incident at the daycare when the defendant confronted Ms. Johnson as she was dropping their son off at daycare. Specifically, on November 5, 2014, the defendant approached Ms. Johnson at the daycare and blocked her vehicle when she attempted to leave after taking her child inside the daycare center in violation of the protective order. Although the defendant left before the police responded to Ms. Johnson's call from her locked vehicle, the violation of the protective order frightened Ms. Johnson, she filed a complaint, and an arrest warrant was issued. Accordingly, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could find beyond a reasonable doubt that sufficient evidence supports the defendant's conviction on Count 3.

Count 4

This conviction is based on the incident at the home of Ms. Johnson's mother. Specifically, on November 6, 2014, Ms. Johnson, accompanied by Mr. Roy, went to her mother's house and the defendant, who was outside her mother's house, began screaming and threatening to kill both Ms. Johnson and Mr. Roy. The defendant then followed Ms. Johnson and Mr. Roy a portion of the way to the Fifth District Police Station where, frightened that the defendant intended to carry out his threats, Ms. Johnson filed a complaint. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that the defendant violated the protective order in contacting Ms. Johnson's mother, in confronting her verbally when she arrived at her mother's house, and in following Ms. Johnson and Mr. Roy a part of the way to the police station.

Count 5

This conviction for violation of the protective order on October 18, 2014, is apparently based on Ms. Johnson's discovery of a damaged window in her home and her attribution of the damage to the defendant. There are no witnesses to the window being damaged or to the defendant being in the vicinity of Ms. Johnson's home on October 18, 2014, nor is there direct or circumstantial evidence connecting the defendant to the damaged window or supporting Ms. Johnson's belief that the damage was done by the defendant. Accordingly, even viewed in the light most favorable to the prosecution, a rational trier of fact could not find beyond a reasonable doubt that the defendant violated the protective order on this date. The evidence is insufficient to support this conviction.

Count 6

This conviction is based on the purported burglary of the automobile belonging to Ms. Johnson's son while parked overnight in front of Ms. Johnson's house which was discovered on November 18, 2014. Mr. Williams (Ms. Johnson's son) testified, however, that he discovered the burglary of his laptop from his car January 2015, the same date he discovered the defendant's name and initials carved into the paint finish. There are no witnesses to the car burglary or to the defendant being in the vicinity of Ms. Johnson's home on November 18, 2014, nor any other direct or circumstantial evidence connecting the defendant to the missing laptop. Accordingly, even viewed in the light most favorable to the prosecution, a rational trier of fact could not find beyond a reasonable doubt that the defendant violated the protective order on this date. There is not sufficient evidence to support this conviction.

Count 7

This conviction is based on the shattered window of Mr. Roy's vehicle which occurred on Thanksgiving, November 27, 2014, while parked outside Ms. Johnson's home. Given the antagonistic relationship between the parties and other confrontations that offered in November 2014, the attribution of the damage to the defendant by Ms. Johnson and Mr. Roy is not unreasonable. Nonetheless, in the absence of any direct or circumstantial evidence linking the defendant to the Thanksgiving incident, even viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not find beyond a reasonable doubt that the defendant was responsible for the damage and, thus, violated the protective order on this date. There is not sufficient evidence to support this conviction.

Count 8

This conviction is based on the incident that occurred on January 17, 2015, wherein the defendant's initials (G.S.) and name (G. Smith) were carved into the vehicle belonging to Ms. Johnson's son. Ms. Johnson testified that she recognized the defendant's handwriting in the carved initials and name. Photographs of the damage were submitted into evidence. While the plausibility of someone's handwriting being recognizable from graffiti carved in the paint finish of an automobile is problematic, no evidence (such as a handwriting sample) was introduced to refute the identification. However, it is not this court's function to assess credibility or reweigh the evidence. Accordingly, viewed in the light most favorable to the prosecution, a rational trier of fact could find it credible that Ms. Johnson recognized the defendant's name and initials as being carved by the defendant himself and, thereby, find beyond a reasonable doubt that the defendant inflicted the damage, thereby violating the protective order on this date.

Conclusion

After review of the record in light of the applicable law and arguments of the parties, we find that sufficient evidence supports the defendant's convictions on Counts 2, 3, 4, 10, 11, and 12 but that the evidence is insufficient to support the defendant's convictions on Counts 5, 6, and 7.

Assignment of Error 2

The defendant contends the trial court erred in allowing the State to provide evidence of other crimes, i.e. , the protective order, because La. Code Evid. art. 412.4 was enacted after the bill of information was filed in this case and the notice of intent filed by the State on the morning of trial did not constitute a reasonable notice.

Applicable Law

La. Code Evid. art. 412.4 provides:

A. When an accused is charged with a crime involving abusive behavior against a family member, household member, or dating partner or with acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving assaultive behavior against a family member, household member, or dating partner or acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admissibility or consideration of evidence under any other rule.
D. For purposes of this Article:
(1) "Abusive behavior" means any behavior of the offender involving the use or threatened use of force against the person or property of a family member, household member, or dating partner of the alleged offender.
(2) "Dating partner" means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. "Dating partner" shall not include a casual relationship or ordinary association between persons in a business or social context.
(3) "Family member" means spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children.
(4) "Household member" means any person having reached the age of majority presently or formerly living in the same residence with the offender as a spouse, whether married or not, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.

In State v. Goza , 408 So.2d 1349, 1352-53 (La. 1982) (internal citations omitted), the Louisiana Supreme Court stated:

The only exception to the requirement of notice of intent to use other crimes evidence is as to evidence of offenses which are part of the res gestae , or convictions used to impeach defendant's testimony. The reason no notice is required as to res gestae evidence is that for evidence of the other crime to so qualify, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crimes as well. No additional notice requirement is deemed necessary as to convictions offered for the purpose of impeaching the credibility of a defendant because of the other "zealously placed safeguards" surrounding its introduction.

Analysis

In this case, the State filed its notice of intent to offer evidence of a previous crime pursuant to La. Code Evid. art. 412 on January 9, 2017, the morning of trial. However, on January 6, 2017, the State filed its notice of intent to offer res gestae evidence or, in the alternative, evidence of defendant's other crimes, wrongs, or acts under La. Code Evid. art. 404(B)(1) seeking to present the identical evidence. Specifically, the prior act evidence the State sought to introduce related to the circumstances leading up to the issuance of the protective order on October 8, 2014, by the Plaquemines Parish 24th Judicial District Court. In Count 1 of the bill of information the defendant was charged with stalking a person under a protective order, a violation of La. Rev. Stat. 14:40.2, and, accordingly, the existence of the protective order issued on October 8, 2014, is an essential element of the crime charged. The trial court ruled that La. Code Evid. art. 412.4 was applicable, that no hearing was required, and that defendant had received adequate notice. The State presented evidence of the September 2014 domestic battery committed by the defendant against his former girlfriend, Ms. Johnson, and the resulting protective order issued in Plaquemines Parish against the defendant in October of 2014.

The defendant's violation of that protective order by repeatedly harassing Ms. Johnson, Mr. Roy, and other members of Ms. Johnson's family resulted in the fifteen counts of violation of a protective order. Thus, the 2014 Plaquemines Parish domestic battery and resulting protective order form part of the res gestae of the offenses of violation of a protective order. Moreover, focusing on the date of the filing of the Prieur notice, the defendant had three days' notice prior to the trial date of the State's intent to use this evidence. In addition, the defendant's arrest for the prior domestic assault and the resulting protective order form the underlying basis of the violation of a protective order counts against him. The defendant was undoubtedly aware of the allegations against him relating to the prior domestic assault. Certainly, the defendant was not surprised by the State's intent to introduce the 2014 Plaquemines Parish domestic assault and resulting protective order in order to prove that the defendant repeatedly violated the protective order.

Notably, with regard to the defendant's argument that La. Code Evid. art. 412.4 is inapplicable because it was deemed effective August 1, 2016, subsequent to the dates the of the crimes charged, the defendant does not contest that evidence of the Plaquemines Parish domestic battery is admissible under Article 412.4. Instead, defendant contests only its applicability under Article 412.4.

In State v. Willis , 2005-218 (La. App. 3 Cir. 11/2/05), 915 So.2d 365, the Louisiana Third Circuit Court of Appeal addressed the issue of whether a trial court's retroactive application of La. C.E. art. 412.2, violated the ex post facto clause. While not controlling, the reasoning of the court in Willis , is informative. At the time of trial in Willis , La. Code Evid. art. 412.2 provided in part as follows:

B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

The Court in Willis stated:

The retroactive application of Article 412.2 to the Defendant's case did not constitute an ex post facto violation. Article 412.2 did not alter the amount of proof required in the Defendant's case as it merely pertains to the type of evidence which may be introduced. Prior to the enactment of Article 412.2, the testimony at issue was admissible if it fell within an exception under La. Code Evid. art. 404(B). Article 412.2 merely removed that restriction.

Willis , 2005-218, p. 22, 915 So.2d at 383. Notably, La. Code Evid. art. 412.2(B) at issue in the Willis case and La. Code Evid. art. 412.4(B) at issue in this case contain identical language. Accordingly, we do not find that the trial court abused its discretion in finding the facts surrounding the issuance of the October 8, 2014, protective order by the Plaquemines Parish 25th Judicial District Court were admissible. This assignment of error is without merit.

Assignment of Error 3

Finally, the defendant contends the convictions obtained for violation of La. Rev. Stat. 14:79, violation of the protective order, and La. Rev. Stat. 14:40.2, stalking against a person for whose benefit a protective order was issued, violate the prohibition against double jeopardy. The defendant argues that the "Same Evidence Test" dictates he should not have been charged with violations of a protective order and stalking a person for whose benefit a protective order was issued because the same evidence was used to convict him of both crimes. However, the Louisiana Supreme Court recently held that the application of the "same evidence test" is no longer required in Louisiana stating: "[W]e take this opportunity to make clear that the protections against double jeopardy mandated by the federal constitution, as restated in this state's constitution, fall within the analytical framework set forth in Blockberger [v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] and Louisiana courts need only apply that framework in analyzing questions of double jeopardy." State v. Frank , 2016-1160, p. 6 (La. 10/18/17), 234 So.3d 27, 2017 WL 4681941.

Moreover, in State v. Cain , 324 So.2d 830, 832 (La.1975), the Louisiana Supreme Court, citing Blockberger , found if one offense requires proof of additional facts which the other does not, the accused may be tried and convicted on both offenses. In this case, violation of a protective order and stalking are two distinct offenses. Each offense includes an element not included in the other. Violating a protective order requires proof of a protective order, but stalking does not; and stalking requires proof that defendant engaged in certain prohibited behaviors on more than one occasion, whereas violating a protective order may be proven with only one instance of misbehavior. Accordingly, the defendant's argument that his conviction on both stalking and violating a protective order violates the Double Jeopardy Clause is without merit.

Conclusion

For the above stated reasons, we affirm the defendant's convictions as to Counts 1-4 and 10-12, but reverse the defendant's convictions as to Counts 5-7. Concomitantly, the defendant's sentences for Counts 1-4 and 10-12 are affirmed; the defendant's sentences for Counts 5-7 are vacated.

AFFIRMED IN PART; REVERSED IN PART.

      While there is no minute entry or statement by the trial court, it appears the trial of the fifteen counts of the violations of the protective order was conducted by the trial court simultaneously with the jury trial of the stalking offence.

      A review of the record reveals no errors patent.

      The date of Thanksgiving in 2014.

      Mr. Williams first name is spelled "Jody" in the trial transcript.


source: Caselaw Access Project

author: CONERY, Judge. AMY, J., dissenting.

license: Public Domain

text:
    Aaron Allen STALL v. MERCURY INS. CO. OF FLORIDA, et al.
    17-439
    Court of Appeal of Louisiana, Third Circuit.
    December 28, 2017 Rehearing Denied March 21, 2018
    Robert I. Siegel, Michael E. Hill, Tara E. Clement, Gieger, Laborde & Laperouse, LLC, 701 Poydras Street, Suite 4800, New Orleans, Louisiana 70139-4800, (504) 561-0400, COUNSEL FOR DEFENDANT/APPELLANT: National Union Fire Insurance Co. of Pittsburgh, PA
    J. Lomax Jordan, Jr., Victor R. A. Ashy, 1817 West University Avenue, Lafayette, Louisiana 70506, (337) 233-9984, COUNSEL FOR PLAINTIFF/APPELLEE: Aaron Allen Stall
    Court composed of Marc J. Amy, Elizabeth A. Pickett, Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.
   CONERY, Judge.

FACTS AND PROCEDURAL HISTORY

Aaron Stall, an employee of CVS Caremark Corporation, and Gustavo Garcia-Jimenez were involved in a two-vehicle accident on January 1, 2014. Mr. Stall was operating a vehicle provided by CVS. National Union Fire Insurance Company of Pittsburgh, Pennsylvania issued a business auto policy to CVS that covered the vehicle and its employee/driver, Mr. Stall. Mr. Stall filed suit against Mr. Garcia-Jimenez and his alleged insurer, Mercury Insurance Company of Florida. He also sued National Union, among others, alleging that Mr. Garcia-Jimenez was at fault, was uninsured or underinsured, and National Union's uninsured/underinsured policy provided coverage for the accident. National Union denied coverage, claiming the policy issued to CVS insuring the CVS vehicle Mr. Stall was driving contained a proper waiver of uninsured or underinsured (UM) coverage.

Mr. Stall filed a motion for partial summary judgment, alleging that the UM waiver produced by National Union in discovery was defective. However, there was no dispute that the waiver was executed on a form provided by the Louisiana Department of Insurance and signed by "David Huntley" in the space provided for the named insured or representative. Mr. Huntley's printed, handwritten name also appears on the form in the proper space. It is dated December 19, 2012. Mr. Huntley's initials appear in the blank waiving UM coverage, all in compliance with the form prepared by the Louisiana Department of Insurance for such purposes.

The evidence presented in connection with the hearing on the motion for partial summary judgment on the issue of the validity of the UM waiver showed that the policy for which the UM waiver was purportedly executed on December 19, 2012, was in effect from January 1, 2013, through January 1, 2014, at 12:01 a.m. The accident at issue occurred at 1:29 a.m. on January 1, 2014, after that policy had expired. The policy was timely renewed before the accident, and the new policy was effective January 1, 2014 through January 1, 2015, at 12:01 a.m., and issued by AIG/National Union. However, a UM waiver for the renewal policy was not executed until February 21, 2014, several weeks after the accident at issue herein, and hence, on its face, the UM waiver attached to that policy was signed too late to be effective. National Union claims that since the 2014/2015 policy was a renewal, the UM waiver executed on December 19, 2012 for the 2013/2014 policy year was still binding pursuant to specific statutory law so providing.

Following the hearing on Mr. Stall's motion for partial summary judgment, the trial court found that the UM waiver was not valid. In written reasons, the trial court stated:

The Court granted the Motion for Partial Summary Judgment filed on behalf of Aaron Stall and held that the waiver of uninsured/underinsured motorist coverage executed by David Huntly [sic] as legal representative to CVS on December 19, 2012, did not clearly and unmistakably waive uninsured/underinsured motorist coverage under the policy issued. Accordingly, the Court held that the waiver was invalid and inapplicable to preclude uninsured/underinsured motorist coverage for the accident that occurred on January 1, 2014.
The waiver at issue cast [sic] doubt as to which policy it was applicable to. The policy existing at the time the waiver was executed was insured by Chartis. The policy existing at the time of the accident and at the time a second waiver was signed after the accident on February 21, 2014, was insured by AIG/National Union. The 2012 waiver did not have the policy listed on it; however failure to list the policy number on the waiver is not a sole basis for finding the waivers ambiguous. The waivers also did not contain the name of the current policy issuer; the 2012 waivers named Chartis, not AIG/National Union.
The Court found that the totality of the facts at issue and the form of the purported waiver of uninsured/underinsured motorist coverage made the waiver unclear and mistakable. Accordingly, the Court found that the uninsured/underinsured coverage waiver was invalid.

The trial court certified the ruling as final and appealable. National Union now timely appeals the judgment of the trial court. For the following reasons, we reverse, finding that there is a genuine issue of material fact as to whether a valid UM waiver was properly executed.

ASSIGNMENT OF ERROR

National Union asserts one assignment of error on appeal: "The trial court erred in granting Plaintiff's Motion for Summary Judgment on the validity of the UM/UIM waiver form."

DISCUSSION

Summary judgment motions must be filed using the procedures set forth in La.Code Civ.P. art. 966, and "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to a judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

Louisiana Revised Statutes 22:1295 (emphasis added), which governs uninsured motorist coverage, states in pertinent part:

The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered ... unless coverage is provided therein or supplemental thereto[ ] ... for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom[.]
(ii) Such rejection ... shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage[ ] ... shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage[.] ... The form signed by the insured or his legal representative which initially rejects coverage[ ] ... shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates .... For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

This court discussed appellate review of a motion for summary judgment in the context of a UM waiver case in Hayes v. De Barton , 16-541, pp. 2-3 (La.App. 3 Cir. 2/15/17), 211 So.3d 1275, 1278, writ denied , 17-458 (La. 5/1/17), 220 So.3d 743 :

An appeals court reviews summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. In order to prevail on a motion for summary judgment, the moving party must show that "there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).
Generally, interpretation of an insurance contract concerns a legal question that can be resolved in the framework of a motion for summary judgment. Cutsinger v. Redfern , 08-2607 (La. 5/22/09), 12 So.3d 945. Insurance policies are interpreted according to the general
rules of contract interpretation, and liability insurance policies are interpreted to provide coverage not deny coverage. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc. , 06-1827 (La. 5/22/07), 958 So.2d 634.
Louisiana law provides that "[n]o automobile liability insurance" policy shall be issued in the state unless it provides UM coverage for persons injured in accidents involving "owners and operators of uninsured or underinsured motor vehicles." La.R.S. 22:1295(1)(a)(i). This law embodies a strong public policy to allow innocent automobile accident victims to fully recover their damages. Cutsinger , 12 So.3d 945. "Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected." Duncan v. USAA Ins. Co. , 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547.

"The liberal construction given the UM statute requires the statutory exceptions to the coverage requirement be interpreted strictly. Any exclusion from coverage in an insurance policy must be clear and unmistakable." Roger v. Estate of Moulton , 513 So.2d 1126, 1130 (La.1987).

In Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 551, the supreme court held that the UM waiver form promulgated by the Louisiana Department of Insurance then in effect required the presence of six elements to be valid:

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

Since Duncan , the Department of Insurance has amended the UM waiver form. When the amended form was issued, the Commissioner of the Department of Insurance simultaneously issued LDOI Bulletin No. 08-02 (emphasis added), which stated:

Policy number and other policy identification information -The revised UM form includes two boxes on the lower right hand corner of the form.
- The upper box contains an area that the insurer may use for policy information purposes (e.g. policy number, binder number, application number, etc.) This box does not need to be filled in for the form to be properly completed.

Accordingly, National Union argues that the requirement in Duncan that the policy number appear on the form was abrogated by the Department of Insurance.

The sole issue in this case is whether there remains an issue of fact as to the validity and sufficiency of the UM waiver completed by Mr. Huntley on December 19, 2012, and whether that UM waiver applied to the renewal policy and excluded UM coverage for the accident that occurred on January 1, 2014.

National Union argues that the form is sufficient because the option to waive coverage is initialed and signed by Mr. Huntley, whom it claims is a legal representative of CVS. Mr. Huntley's name is properly printed below the signature in the box the commissioner's form provided for the named insured or legal representative to sign, the form is properly initialed rejecting UM coverage, and is dated. Having presented a properly completed and signed form, National Union argues that it is entitled to a rebuttable presumption that UM coverage was validly waived for the renewal policy issued by AIG/National Union, effective January 1, 2014 through January 1, 2015.

Mr. Stall argues that the UM coverage waiver is unclear and mistakable because it does not adequately reference the underlying policy. He further argues that while the form purports to meet the requirements enunciated by the Department of Insurance, the form completed by Mr. Huntley lacks sufficient information to connect it to the underlying policy because it does not include the name of the named insured or a policy number. Further, the name of the insurance group printed on the 2012 form, Chartis, is different from the name of the group that issued the 2014-2015 renewal policy, AIG. Finally, Mr. Stall pointed out at the hearing on the motion for partial summary judgment that there is no evidence in the record before the court that showed who Mr. Huntley is or in what capacity he signed the waiver of UM coverage.

In Harper v. Direct Gen. Ins. Co. , 08-2874 (La. 2/13/09), 2 So.3d 418, the supreme court held that when a legal representative signs a UM coverage waiver form and the name of the corporate insured is printed on the form, it is unnecessary for the name of the insured to be included on the form. The court specifically pointed out that the disjunctive "or" is used in La.R.S. 22:1295(1)(a)(ii) (emphasis added): "named insured or legal representative." Harper , 2 So.3d at 420. It was unnecessary for the form to include the named insured and the name of the legal representative who signs on behalf of the named insured.

Similarly, in Banquer v. Guidroz , 09-466 (La. 5/15/09), 8 So.3d 559, the supreme court found a UM coverage waiver was valid where the name of the person who signed the form did not appear on the form, but the name of the corporation on whose behalf he was acting did appear on the form. We note that in both Harper and Guidroz , the UM insurer introduced unrefuted affidavits stating the name of the legal representative and the fact that they had the authority to act on behalf of the named insured. Similar affidavits were not produced in this case; however, we are not ruling on National Union's motion. "A

summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." La.Code Civ.P. art. 966(F). National Union notes that in this case the UM waiver was actually attached to the 2013 policy at issue and introduced into evidence at the summary judgment hearing, thus creating a rebuttable presumption that the otherwise properly executed UM waiver was valid. We agree.

The "CVS Caremark's Privilege Log for Documents Produced by Marsh," the insurer's agent, in response to the Subpoena Duces Tecum issued by Mr. Stall, references Policy Number 519-62-34, valid from January 1, 2013 to January 1, 2014 at 12:01 a.m., and its renewal Policy Number 706-27-98, valid from January 1, 2014 to January 1, 2015 at 12:01a.m. Although the entirety of Policy Number 519-62-34 is not part of Mr. Stall's submissions in support of his partial motion for summary judgment, the December 19, 2012 UM waiver immediately follows the "CERTIFICATE OF LIABILITY INSURANCE" form dated 12/28/2012 for "CVS CAREMARK CORPORATION" as a portion of the attachments filed on October 24, 2016, and properly introduced into evidence by Mr. Stall's counsel in connection with the summary judgment hearing.

Further, in support of National Union's opposition to Mr. Stall's motion for partial summary judgment filed on November 28, 2016, National Union filed into the record the entirety of the policies at issue, covering the period from January 1, 2013 through January 1, 2015 at 12:01 a.m., with the UM waiver properly attached. The renewal Policy Number 706-27-98, valid from January 1, 2014 to January 1, 2015 at 12:01 a.m., is applicable to the accident at issue occurring on January 1, 2014, and "shall remain valid ... and shall not require the completion of a new selection form when a renewal ... policy is issued to the same named insured by the same insurer or any of its affiliates." La.R.S. 22:1295(1)(a)(ii).

In Nat'l Interstate Ins. Co. v. Collins , 08-693 (La.App. 1 Cir. 2/13/09), 9 So.3d 881, the first circuit held that the owner of a bus company did not validly waive UM coverage where the form he signed included neither the name of the insured company nor a statement that the signatory was signing in a representative capacity. The supreme court granted a writ of certiorari and summarily reversed, stating:

We find the Uninsured/Underinsured Motorist Bodily Injury Coverage Form in this matter satisfies the six-part test enunciated in Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544 ; see Harper v. Direct General Insurance Company, et al. , 08-2874 (La. 2/13/09), 2 So.3d 418. While the facts in Harper are distinguishable from this matter in that the named insured was printed on the form, Harper reiterates that in Duncan this Court used the disjunctive "or" with regard to the completion of task "3" stating that "printing the name of the named insured or legal representative" satisfies task "3." Harper , 2 So.3d at 419. As such, because there was no question as to which policy was involved and the legal representative's name was printed on the waiver form, it is valid. The Court of Appeal's ruling is reversed and the judgment of the trial court is reinstated.

Nat'l Interstate Ins. Co. v. Collins , 09-1214 (La. 11/6/09), 21 So.3d 316 (emphasis added).

In that case, the policy number was on the UM waiver form and the supreme court found that there was no question that the owner of the bus company intended to waive UM coverage for the bus company. Similarly, in this case, the UM

waiver was incorporated into the renewals of all policies at issue and filed in evidence with the entire applicable policies by National Union.

Likewise, a panel of this court found that UM coverage was validly waived in Weems v. Houston Specialty Ins. Co. , 17-14 (La.App. 3 Cir. 5/17/17), 222 So.3d 728, writ denied , 17-1038, (La. 10/9/17), 227 So.3d 836. In Weems , "Tim Moran" signed a UM coverage waiver for a policy provided to Cane River Construction LLC and printed his own name on the form. The form did not include the policy number. In finding that the form met the requirements of LDOI Bulletin No. 08-02, this court stated:

Certain facts pertaining to the execution of the UM waiver are undisputed. Mr. Tim Moran was the owner and principal of Cane River in 2011, and was authorized to either accept or reject UM coverage on behalf of Cane River when he obtained the automobile bodily injury liability insurance policy at issue. Mr. Moran negotiated with Moreman Moore's agent, Mr. Dickerson, in order for Cane River to secure insurance coverage.

Weems , 222 So.3d at 729.

As part of the summary judgment evidence in this case, plaintiff alleged, and defendant admitted that the policies produced by the insured's agent and introduced in evidence at the summary judgment hearing were in force and effect and did provide liability coverage at the time of the collision. There was no dispute that the 2014 policy was a renewal of the 2013 policy, and that the UM waiver on the form provided by the Commissioner was executed and attached to that policy. In its brief on appeal, counsel for National Union agreed that the UM waiver attached to the 2014 policy was dated after the accident in question, but noted that the UM waiver attached to the 2013 policy applied to the 2014 policy renewal pursuant to La.R.S. 22:1295(1)(a)(ii) (emphasis added), which does not require "the completion of a new selection form when a renewal , reinstatement, substitute, or amended policy is issued to the same insured by the same insurer or any of its affiliates. " Here, there is no dispute that National Union provided the coverage in 2012, 2013, 2014, and 2015, as shown by the policies in evidence, and that La.R.S. 22:1295(1)(a)(ii) applies to the policies at issue. The underlying liability and UM policy limits admittedly did not change when the policy was renewed.

Counsel for plaintiff and the trial court noted that the printed name of the insurer on the 2012 policy was "Chartis," while the printed name on the renewal policy in 2014 was "AIG/National Union." All policies are in evidence and show that the affiliated company actually issuing the policy is National Union, the entity plaintiff named in his suit as the proper UM carrier for CVS, the named insured. We find no merit to plaintiff's argument that the difference in printed names on the bottom of the UM waiver is significant and creates uncertainty, but if it does, again, that presents an issue of fact making summary judgment improper as to plaintiff's motion.

In Fontenot v. American Home Assurance Co ., 12-243 (La.App. 1 Cir. 11/15/12) (unpublished opinion), writ denied , 12-2704 (La. 2/8/13), 108 So.3d 90, a panel of the first circuit held that the UM statute does not require the execution of an affidavit attesting to the validity of the UM waiver form or the authority of the representative who signed the form.

Finally, the recent decision in the United States District Court, W.D. District Louisiana, Osborne v. Benson, No. 6:15-CV-02845, 2017 WL 4365821, (W.D. La. 9/29/17) was brought to our attention by counsel for National Union in a post-argument letter brief. In that case, the trial judge held that the LDOI Bulletin 08-02, which provides mandatory instructions for a complete and valid UM form, "does not contain a requirement for an affidavit, nor any further evidence confirming the name of the authorized representative." Osborne , 6:15-CV-02845, 2017 WL 4365821, at *5 (W.D. La. 9/29/17).

In this case, it is undisputed that the named insured is CVS. David Huntley did print his name in the exact space on the Commissioner's form provided for the named insured, and then signed his name properly in the space labeled "signature." The rejection of UM coverage was likewise clearly initialed by Mr. Huntley on the form. This form is attached to and forms part of the policy plaintiff alleges provides UM coverage , and all policies in question are in evidence.

As in Collins , 21 So.3d 316, we find that the UM rejection form is presumptively valid in this case even though the representative capacity of the signatory was not placed on the form. The supreme court noted that "printing the name of the named insured or legal representative" on the form was sufficient. Collins , 21 So.3d 316 (emphasis added) (quoting La.Code Civ.P. art. 966(D) ). See also Fontenot , 21 So.3d 316, and Osborne , 2017 WL 4365821.

National Union filed a cross motion for partial summary judgment on this issue, but it has not yet been heard. Thus, we are addressing only plaintiff's motion at this time. As to that motion, we find that the UM waiver is presumptively valid. At the very least, on the record before us there is a genuine issue of material fact as to the authority of Mr. Huntley to sign the waiver on behalf of CVS.

CONCLUSION

For the foregoing reasons, we hereby reverse the trial court's ruling granting partial summary judgment on the issue of the validity of the UM waiver and remand the case to the trial court for further proceedings. All costs are assessed to plaintiff, Aaron Allen Stall.

REVERSED AND REMANDED.

Pickett, J., dissents and assigns written reasons.

Amy, J., dissents and assigns reasons.

AMY, J., dissenting.

I respectfully dissent from the majority opinion, as I find that an affirmation is appropriate. Reference to the burden of proof is critical in this case. The plaintiff filed the underlying motion for summary judgment. In this regard, La.Code Civ.P. art. 966(D)(1) provides that the burden of proving entitlement to summary judgment rests with the mover. However, pertinent to this case, Article 966(D)(1) further provides that:

[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Of course, National Union, as the insurer, would bear the burden of proving at trial that the named insured rejected UM coverage equal to the bodily injury coverage or that it selected lower limited coverage. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839 (quoting Duncan v. U.S.A.A. Ins. Co. , 06-0363 (La. 11/29/06), 950 So.2d 544).

In my opinion, and for reasons more specifically addressed by Judge Pickett in her dissent, the plaintiff adequately pointed out an absence of factual support for

National Union's claim of a valid UM waiver. Namely, the waiver form lacked a policy number, the name of the insured, or any indication of the signatory's authority. Thus, it was incumbent on National Union, as the party that would be required to bear the burden of proof at trial, "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La.Code Civ.P. art. 966(D)(1). However, and given the deficiencies of the UM waiver form, National Union failed to produce further factual support establishing the existence of a genuine issue of material fact as to the validity-or rather invalidity-of that waiver. Rather, National Union's opposition to the motion for summary judgment was silent as to those deficiencies. Thus, in my opinion, National Union failed to satisfy the requirements of La.Code Civ.P. art. 966(D)(1) in its opposition to the plaintiff's motion for summary judgment, and the trial court's ruling must be affirmed.

Pickett, J., dissents and assigns reasons.

I respectfully dissent from the majority's opinion.

I join Judge Amy's dissent, which concludes that the burden of proof rests with National Union to prove a valid waiver of UM coverage. Based on the totality of circumstances in this case, I find the UM coverage waiver produced by National Union is insufficient to prove that CVS clearly and unmistakably waived UM coverage. The form signed by Mr. Huntley on December 19, 2012, lacks any indicia of connexity with the policy in force on January 1, 2014, when the accident at issue in this case occurred. There is no policy number to reference the UM waiver form to the original 2013-2014 policy or the 2014-2015 renewal policy, as in National Interstate Insurance Co. v. Collins , 08-693 (La.App. 1 Cir. 2/13/09), 9 So.3d 881, reversed , 09-1214 (La. 11/6/09), 21 So.3d 316. The name of the insured, CVS, which would link the UM coverage waiver to the underlying policy is not on the form. There is nothing on the form to indicate that Mr. Huntley is signing the form as an agent for CVS. Finally, unlike the signatory in Weems v. Houston Specialty Insurance Co. , 17-14 (La. App. 3 Cir. 5/17/17), 222 So.3d 728, there is no showing that Mr. Huntley had the capacity to act on behalf of CVS.

Because National Union failed to prove that a valid UM coverage waiver was executed for the National Union policy in force on January 1, 2014, I would affirm the judgment of the trial court.

      Mr. Garcia-Jimenez owned a Chrysler Pacifica Touring Utility 4x24D, which was insured by Mercury Insurance Company of Florida, until his policy was cancelled on October 7, 2013, due to non-payment of his insurance premium.

      Louisiana Revised Statutes 22:1295(1)(a)(ii) provides in pertinent part:
      The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.


text:
    Kelly VINCENT, et al. v. DS SERVICES OF AMERICA, INC., et al.
    17-492
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
   Thomas J. Eppling, Corey P. Parenton, David C. Bernard, Staines & Eppling, 3500 N. Causeway Blvd., Suite 820, Metairie, LA 70002, (504) 838-0019, COUNSEL FOR DEFENDANTS/APPELLANTS: DS Services of America, Inc., Tomas U. Gilmore, Safety National Casualty Corporation

Terry L. Rowe, Attorney at Law, P.O. Box 3323, Lafayette, LA 70502, (337) 232-4744, COUNSEL FOR APPELLEE: State Farm Mutual Automobile Insurance Company

Joseph Frazer Gaar, Jr., Jacob H. Hargett, Lucas S. Colligan, Law Offices of Joseph F. Gaar, P.O. Drawer 2069, Lafayette, LA 70502-2053, (337) 233-3185, COUNSEL FOR PLAINTIFFS/APPELLEES: Kelly Vincent, Collin Vincent, Maci Vincent

Jason M. Welborn, Attorney at Law, 617 South Buchanan Street, Lafayette, LA 70501, (337) 233-3185, COUNSEL FOR PLAINTIFFS/APPELLEES: Kelly Vincent, Colin Vincent, Maci Vincent

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

GREMILLION, Judge.

Plaintiffs were involved in a motor vehicle accident with a truck owned by DS Services of America, Inc., which was driven by Tomas Gilmore and insured by Safety National Casualty Corporation (collectively Defendants). Plaintiffs also filed a property claim against their automobile liability policy insurer, State Farm Mutual Automobile Insurance Company (State Farm), but State Farm is not a party to this litigation. Defendants issued a subpoena duces tecum to State Farm seeking its claim file and other information about Plaintiffs' claims history. State Farm filed a Motion to Quash and voluntarily produced a police report, submissions for property damage repair, a State Farm internal property damage estimate, and photographs, but declined to produce recorded statements or claims notes, asserting attorney-client privilege and that the documents were prepared in anticipation of litigation.

The trial court granted the Motion to Quash in part and denied it in part, ordering the production of a recorded witness statement. Defendants allege the trial court erred in failing to require State Farm to produce the remaining documents, specifically Plaintiffs' claims history, claims notes, and recorded statements. Defendants assign as error:

1. The trial court failed to follow clear Third Circuit jurisprudence regarding the production of claims files when it erred in finding that State Farm's claims file, including, but not limited to, the recorded statements of Plaintiffs and the adjuster's claims notes pertaining to this accident, was protected from discovery, and
2. The trial court erred in granting in part State Farm's Motion to Quash.

DISCUSSION

A trial court's regulation of pre-trial discovery is afforded broad discretion and will not be reversed in the absence of a clear abuse of discretion. Moak v. Illinois Cent. R.R. Co. , 93-783 (La. 1/14/94), 631 So.2d 401. The discovery statutes are to be construed "liberally and broadly." Id. at 403.

Louisiana Code of Civil Procedure Article 1422 provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The law addressing materials prepared in anticipation of litigation is found in La.Code Civ.P. art. 1424(A), which states:

The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him under hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

In order for documents to be subject to discovery, they must be relevant, and if prepared in anticipation of litigation, then they may only be discovered if their non-production would unfairly prejudice the party requesting them. Hodges v. Southern Farm Bureau Cas. Ins. Co. , 433 So.2d 125 (La.1983).

Defendants argue that a claims file is not protected by a blanket exclusion, and they agreed to redact any attorney-client work product. They argue that there was no privileged information because an attorney was not obtained by State Farm until after the subpoena was issued. Defendants argue that they seek "only the records that reflect what Plaintiffs told and/or submitted to State Farm regarding the subject accident, as well as whether they have previously made any claims for personal injury or property damage and the records related thereto." Defendants argue that entire claims files (save for portions that are protected under the attorney-client privilege) are discoverable, as they are prepared in the ordinary course of business. In brief, Defendants argue that they will be unfairly prejudiced if their discovery request is denied because they will be unable to retrieve these "contemporaneous recording and/or notations of Plaintiffs by any other means."

State Farm argues that all of its files are prepared in anticipation of litigation; Defendants did not show any unfair prejudice; Defendants did not provide good cause required for production from a non-party; and that blanket production of an insurer claims file is prohibited.

The trial court conducted an in-camera inspection of the claims file. The trial court in its judgment stated: "[T]he only material subject to production in the claim file which has not already been disclosed by counsel, is the Statement of Rachel Bellard taken on February 10, 2016. The remainder of the claim file is not subject to production to D.S. Services of America, Inc."

In McHugh v. Chastant , 503 So.2d 791 (La.App. 3 Cir. 1987), the plaintiff sought an entire case file in order to pursue his claim of arbitrary and capricious conduct against St. Paul Fire & Marine Insurance Company, his UM insurance carrier. The trial court denied the plaintiff's request in its entirety. On appeal, a blanket exclusion of a case file was rejected:

[W]e reject any suggestion in Prejean that an insurer's file is automatically protected in its entirety as a matter created in anticipation of litigation. An insurer's file is not created in anticipation of litigation simply because it is only compiled after an accident has occurred and, therefore, at a time when litigation must be considered a possibility. It is not the date of a document which controls whether the document is exempt from production as having been prepared in anticipation of litigation, but the content, nature, and purpose of that document.
Federal authority, which is persuasive in this area holds that not all documents prepared by an insurance company after a claim has arisen are prepared in anticipation of litigation. These courts have recognized that insurers must conduct reviews of the factual data underlying the claim and that the reports, communications, and interoffice memos or memorandums, generated through this process are prepared in the ordinary course of business and are discoverable.

Id. at 793 (Emphasis added) (Citations omitted). See also Fuqua v. Aetna Cas. And Sur. Co. , 542 So.2d 1129 (La.App. 3 Cir.), writ denied , 548 So.2d 310 (La.1989) ; Cantrelle Fence and Supply Co. Inc. v. Allstate Ins. Co., 550 So.2d 1306 (La.App. 1 Cir. 1989), writ denied , 559 So.2d 123 (La.1990).

Similarly, we reject Defendants' suggestion that because an attorney was not employed by State Farm until after the request was made, none of the documents were prepared in anticipation of litigation. There is always potential for litigation in the motor-vehicle accident insurance realm, as Defendants are well aware. Nevertheless, we agree with the reasoning of McHugh that the particular requested documents must be examined to determine whether they are exempt from production pursuant to the anticipation-of-litigation exception.

Having reviewed the exclusions from production made by the trial court, we find the trial court did not err in excluding Plaintiffs' claims history. There is no suggestion of the relevance of any and every claim filed by Plaintiffs with their insurer. The trial court, at the conclusion of the hearing, stated there was no relevance to this history, and we find no error in that finding.

Further, we find that that the trial court did not err in excluding Plaintiffs' recorded statements to State Farm and the contemporaneously made notes in the claims file following the accident. The trial court implicitly found that the omitted portion of State Farm's claims files were prepared in anticipation of litigation and that Defendants failed to meet their burden of proving undue hardship. , The recorded statements made by Plaintiffs to their insurance company are clearly relevant to the extent of the claims being made against Defendants. The issue is whether they are prepared in anticipation of litigation.

The trial court implicitly noted that the discovery of this type of information is customarily deemed off limits. In this case, State Farm offers its insured a defense as needed, and an insured must be able to make certain representations to its own insurance company and claims adjuster by virtue of that relationship that fall within the scope of the protection. This case is distinguished from McHugh because the insured is not pursuing a claim against her own insurer. Further, Defendants' requests could be construed as "a fishing expedition pure and simple, which is not allowed." Sonier v. Louisiana Power & Light Co. , 272 So.2d 32, 37 (La.App. 1 Cir. 1973).

Pursuant to the law set forth in McHugh , we find that the initial phone call made by Plaintiffs in this case to State Farm reporting a loss and the contemporaneous notes made by the claims adjuster were prepared in anticipation of litigation and are not subject to discovery unless an unfair prejudice would result. Defendants failed to prove they would be unfairly prejudiced by the exclusion of this information. We find no error in the portion of the trial court's judgment granting State Farm's Motion to Quash.

CONCLUSION

The portion of the trial court's judgment granting the Motion to Quash regarding the discovery of Plaintiffs' claims history and of Plaintiffs' recorded initial claim and the adjuster's contemporaneous notes is affirmed. All costs of this appeal are assessed to Defendants/Appellants, DS Services of America, Inc., Safety National Casualty Corporation, and Tomas U. Gilmore.

AFFIRMED.

      Bellard witnessed the accident.

      At the hearing on the motion, the trial court stated: "Not a chance in the world I'm going to give you what an insured told their insurance company."
      Later the following exchange occurred:
      [DEFENDANTS' ATTORNEY]: There's no attorney involved here.
      THE COURT: I-I get your point on that. And if we were-if you were the plaintiff in the UM case and you were trying to get Mr. Rowe's file and there was no attorney involved, then he wouldn't have the attorney-client privilege issue. But when his insured is talking to his claimant, claims adjustor, and you now come as someone else wanting to get that what, I think, while it may not be attorney-client privilege, it is certainly a conversation between someone, who I think is in my courtroom-or in my room with me, my insurance company, as opposed to your insurance adjustor calling the plaintiff and saying: Hey, tell me about that story. Well, I'm the plaintiff, even an uneducated plaintiff, I'm saying,: Wait, wait, you're not my insurance company are you? I don't want to talk to you. But if you're my insurance company, I'll tell you all about the weather and everything else. I don't need a lawyer for that.
      [DEFENDANTS' ATTORNEY]: All the more reason we want to have it because-
      THE COURT: All the more reason why I don't think you're entitled to it-

      State Farm's explanation in brief of why this portion of the claim file is prepared in anticipation of litigation is:
      By definition, State Farm was either a surety, an indemnitor, or both, by virtue of its obligation to provide security against losses or damages which its insured may become legally obligated to pay. "An insurer is usually either a surety or indemnitor."
      For these reasons State Farm submits that its claim files in question, together with any and all statements, notations, mental impressions of its employees and claims representatives contained therein were clearly prepared in anticipation of litigation.