text:
    STATE of Louisiana, Appellee v. Robert Stuart DOUGLAS, Appellant
    No. 52,582-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant
    JAMES EDWARD STEWART, SR., District Attorney,TOMMY JAN JOHNSON, RON CHRISTOPHER STAMPS, CHARLES KENNETH PARR, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STONE, and COX, JJ.
   COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. Following a bench trial, the defendant, Robert Stuart Douglas, was found guilty as charged of attempted armed robbery. Douglas was sentenced to serve 12 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. Douglas now appeals his conviction. For the following reasons, Douglas' conviction and sentence are affirmed.

FACTS

On November 10, 2010, Douglas and James Micah Vanhorn were charged with the attempted armed robbery of Jordan Willis, committed on October 27, 2010, in violation of La. R.S. 14:64 and La. R.S. 14:27. Both defendants were tried together and both defendants were represented by the same attorney.

Sergeant Tim Adgate, of the Shreveport Police Department, testified that on October 27, 2010, he was the first responder to a 911 call for a home invasion at 9307 Wiscassett Drive in Shreveport, Louisiana. Sgt. Adgate found a white male, with duct tape around his wrists and ankles, holding a 12-gauge shotgun and standing over another male, who was covered in blood and lying face down on the ground. A third male, with blood running down his face, was also on the ground to the side of the first two men. The man with the gun and the man with blood on his face repeatedly asked the man lying on the ground, "Why?" Sgt. Adgate secured the shotgun and identified the holder as Jordan Willis, who lived in the Wiscassett Drive home owned by his father, James Willis. Sgt. Adgate identified the man with blood running down his face as Jordan's brother, Dillon Willis. Sgt. Adgate testified that Jordan told him that the man lying on the ground was one of two men who "busted in" their house, identified themselves as narcotics officers, and then wrapped Jordan's and James' wrists, feet, and head in duct tape. Sgt. Adgate later learned that the man lying on the ground was Vanhorn.

Shreveport Police Detective John Jackson, who also responded to the 911 call, testified that James had duct tape on his wrists and ankles and that he had scratches and bruises. Det. Jackson testified that James told him the following:

• He answered a knock at the door and two men identified themselves as narcotics officers and forced their way inside.
• The intruders told him that they were there on a marijuana complaint and asked if anyone else was present.
• He told them his son, Jordan, was upstairs.
• One man proceeded up the stairs to get Jordan, and the other man began binding him with duct tape.
• After Jordan was brought downstairs, the intruders began binding Jordan with duct tape too.
• His other son, Dillon, arrived at the house, and one of the men used a black, semiautomatic handgun to strike Dillon.
• He and his sons realized the men were not law enforcement officers and fought back.
• As Dillon struggled with the man with the gun, Jordan broke loose from the duct tape and retrieved a shotgun.
• When Jordan fired the shotgun, the man with the gun ran outside and drove off in a white car.
• He, Dillon, and Jordan were able to catch the other man, and restrain him until police arrived.

Shreveport Police Detective Shawn Parker also responded to the home invasion call and testified about statements he took from Jordan and Dillon. He testified that both of them were in shock. Det. Parker testified that Jordan told him the following:

• He was asleep in bed when a white man wearing sunglasses and a hat woke him up and dragged him downstairs to the kitchen, where another larger white man was binding his dad with duct tape.
• The intruders wrapped his and his dad's wrists and feet, and then their heads with duct tape.
• When he heard his brother Dillon walk in, he asked Dillon if he saw any badges on the intruders.
• When Dillon said he did not see any badges, Jordan struggled loose from the duct tape, retrieved a shotgun, and fired it into the living room.
• When he fired the shotgun, the bigger man ran out of the house and drove off in a white vehicle, but Dillon and James caught the other man.
• He, his dad, and his brother struggled with the other man, and he struck the man on the back of the head with the butt of the shotgun.

Det. Parker testified that Jordan still had duct tape around his wrists and ankles and that residue from the tape remained around his eyes, indicating where the tape had been. Det. Parker testified that he believed Jordan was in shock because Jordan appeared very emotional, his hands were shaking, he voice was broken, and he was pacing back and forth.

Det. Parker testified that Dillon told him the following:

• In an earlier phone conversation, he told his dad that he would stop by the house.
• When he arrived, he saw a white Toyota parked in the driveway and thought painters were at the house as part of some recent renovations.
• After he entered the house, he found his dad and his brother with duct tape wrapped around their heads.
• A large white man with a gun grabbed him and threw him against the wall, pistol-whipped him with a black, semiautomatic handgun, and began choking him.
• He was blacking out when he heard the shotgun fire and the man suddenly ran off.
• The other man attempted to follow, but he tripped that man as he crossed through the door and then struck him in the head with a brick.

Det. Parker testified that the fire department had Dillon transported to the hospital to be treated for injuries and shock.

Shreveport Police Sergeant Tawanna White also responded to the home invasion call. Sgt. White testified that Vanhorn was placed in custody, but he was bleeding from a head injury so he was transported to a nearby hospital for treatment. She described Vanhorn as a tall, thin, white male. She testified that Vanhorn initially identified himself as "Shawn." She testified that after she read Vanhorn his Miranda rights, he gave her his real name, identified his accomplice as Robert Stuart Douglas, and said Douglas drove a white Toyota Camry. Sgt. White testified that Vanhorn told her that Jordan Willis owed him $ 500, and when he went to collect the money, the Willis family beat him up. She stated that Vanhorn insisted he was not armed.

Shreveport Police Officer Joshua Mayfield testified that he found Douglas at his Shreveport home and Douglas' white Toyota Avalon was parked outside the home. Officer Mayfield testified that Douglas told him that he and Vanhorn had coffee that morning and discussed putting out deer corn, then Vanhorn left. Officer Mayfield testified that Douglas initially denied having any firearms other than a shotgun, but later admitted that there was a 9 mm handgun on a shelf in his laundry room.

Det. Jackson testified that a search of the shelves in Douglas' laundry room revealed a black canvas bag containing a black semiautomatic handgun with five magazines, each loaded with 9 mm ammunition. He testified that the bag also contained a pocket knife with "Vanhorn" scratched on it, a business card with Micah Vanhorn's name, and a second folding pocket knife. Det. Jackson testified that a roll of duct tape was found in the trunk of Douglas' vehicle.

Det. Parker testified about his interview with Vanhorn, in which Vanhorn made the following statements:

• He went to the Willis home to collect $ 500 that he had loaned to Jordan Willis, because he heard Jordan was using the money to buy marijuana.
• He brought Douglas with him to act as a deterrent because he believed the Willis family was violent.
• He brought the duct tape to tie Jordan up while he searched for the money, but denied having a gun.
• When James answered the door, Vanhorn asked for Jordan, and James replied that Jordan was upstairs and began to shut the door.
• He forced the door open and demanded to see Jordan. At that point, the family "jumped him," resulting in a fight, and the family beat him up.

Det. Parker testified that Douglas' Toyota Avalon matched the description of the white vehicle that Dillon said was parked in his father's driveway and that the Willis family members said the larger intruder used to drive away. Det. Parker testified that during the search of Douglas' home, officers found clothing in the bedroom with suspected blood on it.

James testified that on October 27, 2010, he answered a knock at the door and two white men, identifying themselves as police officers, pushed the door in, announcing that he was under arrest. James testified that one man was smaller than the other and wore a hat with a star on it. The other man was larger and wore a holstered gun on his hip. James testified that the men grabbed him, spun him around, shoved him against the wall, and pinned his arms behind his back. He stated that the men asked him if anyone else was home, and he told them that Jordan was upstairs. James testified that after bringing Jordan downstairs, the two men used duct tape to bind his and Jordan's hands behind their backs.

James testified that after the men bound their hands, he heard his older son, Dillon, come inside the house calling for him. He stated that when Dillon walked in the kitchen and saw them bound with duct tape, Dillon cursed loudly. James testified that he believed these two men were law enforcement officers and he told Dillon to calm down. He stated that he heard one of the men say that he was under arrest and then heard scuffling and fighting. James said he heard Jordan ask Dillon if the men had badges. James testified that Dillon replied, "no," so he fought to pop the duct tape from his hands and remove the tape from his eyes. He stated that he saw his son Dillon fighting with one of the men, while Jordan had gotten loose and returned with a shotgun. James testified that he told Jordan not to shoot the men. James testified that when Jordan fired the shotgun, the bigger man ran out and drove off in a white vehicle. James testified that he called 911.

James denied dealing drugs in the house. He further testified that he was retired and drew social security disability.

Jordan testified that he had a 2004 conviction for disturbing the peace and admitted that he had half of a gram of marijuana in his room that day. Jordan testified that a skinny guy wearing a baseball cap and shades woke him up and told him that he was under arrest. He stated that when the man saw the marijuana, the man said, "Now you've really got it, son." Jordan testified that the man pinned his arms behind him, marched him down the stairs, and began binding him and his dad with duct tape. Jordan testified that the men bound their hands and feet and wrapped duct tape around their heads, covering their faces. Jordan stated that they were wrapped like mummies and essentially "hog-tied."

Jordan testified that when he heard his brother shout upon seeing him and his dad wrapped in duct tape, he realized that these men probably were not law enforcement officers. He stated that he heard his brother scuffling with the two men and asked Dillon if he saw a badge on either man. Jordan testified that when Dillon replied, "no," he began twisting the duct tape until he could pop it off. He stated that he removed the tape from his face before running upstairs to retrieve his shotgun. Jordan testified that he yelled out loud and fired a warning shot from the top of the stairs down into the living room, striking his grandmother's rocking chair.

Jordan testified that after he fired the shot, the larger man suddenly ran off, while the skinny man was caught by the legs by Dillon at the door. Both stated that the skinny man was dragging Dillon along, still attempting to exit the house. He testified that he ran up and swung the shotgun like a bat, striking the man in the head. Jordan stated that this caused the man to collapse on the ground, and they all began fighting him. Jordan testified that Dillon struck the man with a brick, and he continued to strike the man in the head with the shotgun, but the man continued fighting them. Jordan stated that he called 911, gave his address, advised there was a home invasion, and then returned to fighting the man.

Jordan denied knowing either of the intruders, owing either of them money, or selling drugs. Jordan testified that he identified Vanhorn in a lineup, but he did not get a good look at the larger man and was unable to identify him.

Dillon testified that he called his dad that morning about getting a loan approved and told him that he would stop by his house. He stated that when he arrived, he thought the white car parked in the driveway belonged to painters and he walked inside and called out for his dad. He testified that a man wearing a hat with a star on it appeared, identified himself as police, and told Dillon he was under arrest. Dillon stated that at the time, he thought the man might be a "vice" cop because he was dressed in plain clothes and not a police uniform. He stated that the man pinned his hands against the wall and he heard his dad tell him not to resist. Dillon testified that he saw a second man with a gun and his dad's head wrapped in duct tape. He stated that his brother, Jordan, then yelled out, asking if the men were cops.

Dillon testified that when he saw the duct tape on his dad's head, he knew the men were not cops, and he began fighting the men. Dillon testified that the man with the gun came up and struck him in the face with the pistol. He described the gun as a black, semiautomatic, maybe 9 mm handgun. Dillon testified that the smaller man dropped down and held his feet as the larger man continued to pistol-whip him in the head. He stated that one of the men then proceeded to choke him. Dillon testified that he was blacking out when he heard a shotgun being fired. He testified that the larger man let go of him and scrambled out of the front door. He said that the other man tried to follow, but he tripped him, and as the man fell, he grabbed the man's ankles and held on as the man began dragging him out the front door.

Dillon testified that the larger man drove off in the car as he continued fighting with the other man on the porch. Dillon stated that Jordan appeared and struck the man in the head with the shotgun and he grabbed a nearby brick and struck the man in the head. Dillon denied knowledge of any drug sales in the house or by Jordan. Dillon denied knowing either defendant or ever hunting with Vanhorn. He testified that he only hunts with his dad, James.

Shreveport Crime Scene Investigator Hannah Clark testified about the pictures that she took and the evidence that she collected that day at the Willis home. She stated a blue shirt with a bloodstain and another bloody shirt were found in the driveway. Officer Clark identified the photographs that she took of James and Jordan, showing the silver duct tape on their wrists and ankles. She stated that the silver duct tape was recovered from the wrists and ankles of James and Jordan. She stated that the frame of a pair of sunglasses with one lens, and a black baseball hat with a star and "U.S. Army" on it were found on the ground just outside the front door. She said the other lens was found separately outside. Officer Clark testified that she took several pictures of what was suspected to be blood. She testified that a rocking chair in the living room had holes in it that appeared to be bullet holes. Officer Clark stated that she recovered 12-gauge shotgun shells and a spent shotgun shell from the living room.

Officer Clark also testified about evidence recovered by Det. Parker at the Douglas residence: a pair of denim jeans and a white shirt with suspected blood.

She testified that the shotgun used by Jordan and the semi-automatic handgun recovered from Douglas' house were taken as evidence.

After the state rested, the defense began its case in chief. Tommy Blunt testified that Vanhorn was an acquaintance and he hunted with Vanhorn on his land, but that Dillon was never with them. Blunt denied that Douglas had ever hunted on Blunt's land with Blunt.

Jennifer Vanhorn testified that in 2010, she was married to James Micah Vanhorn. She testified that she was interviewed by Det. Parker regarding the 2010 attempted armed robbery. Jennifer stated that she thought her husband left around 9 a.m. that morning to prepare a hunting spot. She testified that she told Det. Parker that she thought her husband's gun and holster were on top of the refrigerator in their home. Jennifer stated that when she checked, the holster was there, but the gun was gone. She testified that her husband had been adjusting to life outside the military. She stated that someone had owed her husband about $ 8,000 for work done by his roof contracting company, and they were behind on their mortgage, but they were expecting an insurance settlement payment of about $ 20,000. Jennifer testified that she knew Tommy Blunt and his wife, Shaindel Willis, and she knew of Shaindel's brother, Dillon, but had never met him. She testified that her husband knew Dillon Willis and that her husband smoked marijuana that he obtained from Jordan Willis. Jennifer insisted that her husband had been hunting with Tommy Blunt and Dillon Willis just two weeks before the offense, but she acknowledged that she had never met either of the Willis brothers. The defense then rested its case.

The trial court stated that it had carefully reviewed the witness testimony, exhibits, and the arguments of counsel. The trial court noted the officers' testimonies that Vanhorn admitted that he and Douglas purposefully went to the Willis home with the intention to take money from Jordan Willis by use of force, and that they planned to bind him with duct tape while they searched for the money. The trial court found that this evidence established the defendants' specific intent to take something from another by use of force and intimidation. The trial court found that the testimony of James, Jordan, and Dillon Willis was corroborated by the physical evidence recovered at the scene and established that the defendants committed attempted armed robbery with a firearm.

Citing State v. Jackson , 09-2406 (La. 1/19/11), 55 So.3d 767, the trial court found that, even assuming the existence of a debt, the debt was not a justification for taking the funds from Jordan Willis or for the defendants' actions. The trial court found that the State proved beyond a reasonable doubt that both Vanhorn and Douglas were guilty of attempted armed robbery.

The parties appeared for sentencing on February 8, 2018. The trial court stated that it had reviewed the presentence investigation reports for both Douglas and Vanhorn, as well as the letters from the victims and the letters submitted on behalf of the defendants. The letters submitted by Jordan, Dillon, and James Willis described the terror that they endured that day during the home invasion and the troubles they have endured since then in coping with the trauma. Numerous people submitted letters on behalf of Vanhorn, and his attorney provided documentation of his military service reviews.

The trial court stated that attempted armed robbery is considered a crime of violence, and at the time, the offense carried a sentencing range of 0-49½ years of imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The trial court stated that it considered both defendants to have acted in concert with each other, as principals, during the commission of the crime, even though Vanhorn acted as more the leader and only Douglas carried a gun.

The trial court reviewed the aggravating and mitigating factors of this case under the sentencing guidelines provided in La. C. Cr. P. art. 894.1. The trial court found that the defendants manifested deliberate cruelty by using the duct tape to bind James' and Jordan's hands and feet and to cover their faces. The trial court found that the defendants used actual violence, created a risk of death and great bodily harm, and caused significant psychological injury because the trauma of this "home invasion-styled robbery violated the sanctity of the home, which is not easily restored." The trial court further noted that there was also some physical injury, notably where Douglas used a firearm to pistol-whip Dillon. The trial court found that Vanhorn had acted as more the leader in the commission of the offense.

The trial court found that the circumstances did not support a claim of provocation, inducement, or facilitation by the victims, because there was no evidence to substantiate the claim that Jordan owed Vanhorn a debt, and Jordan consistently denied any involvement with Vanhorn or Douglas. The trial court further stated that even if a debt had existed, the debt did not warrant or justify the home invasion.

As mitigating factors, the trial court noted that the defendants did not kill or cripple anyone and did not discharge a firearm during the commission of the offense. The trial court also concluded that the evidence did not indicate that the defendants intended to murder the victims. Further considering each defendant's personal history, the trial court noted that Douglas had been a productive member of society, had been consistently employed, had provided for his family, and had no troubling criminal history. The trial court noted that Vanhorn had an exemplary service record with multiple citations for service, at great personal risk to himself. The trial court found that Vanhorn's military leadership and service was sufficient to reduce the additional imprisonment time that he might have received in light of his role in the current offense. The trial court noted that Vanhorn had no prior criminal history.

The trial court concluded that in light of their histories, which showed no evidence that the current offense was part of a trend or pattern of criminal behavior, the defendants were unlikely to re-offend. The trial court noted that any term of imprisonment would result in some hardship to both Douglas' and Vanhorn's families. However, the trial court observed that the statutes for attempted armed robbery did not allow for a suspended or probated sentence, but rather mandated a hard labor sentence without the benefit of probation, parole, or suspension of sentence.

The trial court sentenced Douglas and Vanhorn to each serve a sentence of 12 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The defendants were given credit for any time already served. The trial court advised them of their right to appeal and the time delays to seek post-conviction relief.

Douglas filed a motion to reconsider sentence on March 12, 2018, and asserted that his sentence was excessive in light of his lawful behavior during the long pendency of his case, the fact that he is the married father of three daughters, and other mitigating factors. The trial court denied the motion. The trial court noted in its written ruling that it had carefully and thoroughly considered and weighed both the aggravating and mitigating factors, including Douglas' lawful behavior and his family situation, in crafting the sentence. Douglas moved to appeal his conviction and sentence on March 7, 2018. The motion was granted March 13, 2018. Douglas does not challenge his sentence on appeal.

DISCUSSION

In Douglas' sole assignment of error, he argues the trial court erred in its statement of law regarding robbery; thus, the State failed to sufficiently prove he was guilty of attempted armed robbery. Douglas argues that the trial court erred in finding that he and Vanhorn could not claim "self-help" as a justification defense for their conduct. Douglas argues that he and Vanhorn merely sought to recover Vanhorn's own property, the money that Vanhorn allegedly gave to Jordan. Douglas contends that the evidence was insufficient to support the attempted armed robbery conviction because the State failed to prove the defendants attempted to take anything belonging to Jordan Willis.

The State argues Douglas' arguments are more appropriately considered as a determination of credibility and weight of the evidence, rather than a determination of the sufficiency of the evidence. The State further asserts that even if Vanhorn voluntarily loaned Jordan money, the debt did not justify the use of force and violence to collect on the debt.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Steines , 51,698 (La. App. 2 Cir. 11/15/17), 245 So.3d 224, writ denied , 17-2174 (La. 10/8/18), 253 So.3d 797.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Cooley , 51,895 (La. App. 2 Cir. 5/23/18), 247 So.3d 1159 ; State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So. 2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Cooley, supra. Moreover, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Cooley, supra .

The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Brooks , 52,249 (La. App. 2 Cir. 9/26/18), 256 So.3d 524. A reviewing court affords great deference to a trial court's decision to accept or reject the testimony of a witness in whole or in part. State v. Brooks, supra .

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1). Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Fields , 42,761 (La. App. 2 Cir. 1/9/08), 973 So.2d 973, writ denied , 2008-0469 (La. 9/26/08), 992 So.2d 983.

In order to prove the defendant guilty of attempted armed robbery, the state had to prove the elements set forth in La. R.S. 14:64 and La. R.S. 14:27. Armed robbery is defined in La. R.S. 14:64 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, while armed with a dangerous weapon.

An attempt is defined by La. R.S. 14:27 as any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

In an armed robbery prosecution, it is not necessary to prove that the property taken belonged to the victim; it is only essential that the accused was not the owner and that the victim had a greater right to possession of the property at the time of the taking than did the accused. State v. Bess , 45,358 (La. App. 2 Cir. 8/11/10), 47 So.3d 524, writ denied , 10-2368 (La. 2/25/11), 58 So.3d 456.

When the evidence presented at trial clearly establishes that the thing taken belonged to the victim, the reviewing courts consider whether the State met the elements required to support a conviction for robbery. In State v. McCormick , 98-0718 (La. App. 4 Cir. 6/9/99), 737 So.2d 926, 931, writ denied , 99-2009 (La. 1/14/00), 753 So.2d 207, the appellate court held that the record contained sufficient evidence to establish that the property at issue belonged to the accused and that ownership of the property never vested with anyone but the accused, therefore the conviction for armed robbery was not supported by the evidence. In State v. Rubin , 04-1588 (La. App. 3 Cir. 4/6/05), 899 So.2d 187, the victim did not dispute that the rings taken from her by her ex-finance belonged to him after their engagement ended. The third circuit reversed Rubin's conviction for robbery on grounds that the state failed to show that the accused took something belonging to another. Id.

La. R.S. 14:18 provides that the fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct and that a justification defense may be raised under the following circumstances:

(1) When the offender's conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or
(2) When the offender's conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or
(3) When for any reason the offender's conduct is authorized by law; or
(4) When the offender's conduct is reasonable discipline of minors by their parents, tutors or teachers; or
(5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or
(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or
(7) When the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

La. R.S. 14:19 addresses the use of force or violence in defense; La. R.S. 14:20 addresses justifiable homicide; La. R.S. 14:20.1 addresses death due to violence or suspicious circumstances when a claim of self-defense is raised; La. R.S. 14:21 addresses aggressors claiming self-defense; and, La. R.S. 14:22 addresses defense of others. The defense of justification is an affirmative defense that must be proven by a preponderance of the evidence. State v. Broussard , 49,240 (La. App. 2 Cir. 10/1/14), 149 So.3d 446, writ denied , 14-2308 (La. 1/15/16), 184 So.3d 702.

James, Jordan, and Dillon all asserted that they were attacked by intruders who taped Jordan's and James' hands, feet, and heads with duct tape. Officers found Jordan and James with duct tape on their wrists and hands. Dillon asserted that he was struck in the face by the larger of the intruders with a black semiautomatic handgun. Officers found Dillon with blood on his face and suspected blood on his clothes, while a shirt with suspected blood and a black, semiautomatic handgun were found in Douglas' home, along with Vanhorn's business card and a knife with Vanhorn's name on it. Duct tape was found in Douglas' trunk. Vanhorn admitted to officers that he went to the Willis house that day with the intent to take money from Jordan Willis. Furthermore, Vanhorn admitted to officers that he intended to take the money by use of force because he brought the duct tape to bind Jordan up and he brought Douglas to deter Jordan from resisting.

James', Jordan's, and Dillon's 2017 trial testimonies were consistent with their statements made to police on October 27, 2010, and were corroborated by the officers' observations and evidence gathered while investigating the crime. Viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of attempted armed robbery beyond a reasonable doubt.

As noted by the trial court, Douglas' and Vanhorn's assertion, that their conduct was justified because they were attempting to retrieve Vanhorn's own property, is without merit. Jordan denied knowing Vanhorn and denied that Vanhorn loaned him any money. There was no evidence in the record to support the assertion that Vanhorn loaned Jordan any money or that anything belonging to Vanhorn was in Jordan's possession. As noted by the trial court in its reasons for the guilty verdict, even assuming that Vanhorn did loan Jordan money, the law does not provide for a "self-help" defense as justification for committing a home invasion in order to use force and intimidation to recover a debt. This assignment is without merit.

CONCLUSION

For the foregoing reasons, Robert Stuart Douglas' conviction and sentence are affirmed.

AFFIRMED.

      On January 16, 2019, this case was consolidated for docketing purposes only with No. 52,583-KA, the case of Douglas' codefendant, James Micah Vanhorn.

      The "FACTS" section in each opinion of these consolidated cases is the same, but is duplicated for convenience of the reader.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Jonathan CRAFT, Plaintiff-Appellant v. BENTON FIRE DISTRICT #4 and Benton Fire Protection District #4 Civil Service Board, Defendants-Appellees
    No. 52,578-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    BREEDLOVE LAW FIRM, By: Pamela N. Breedlove, Shreveport, Counsel for Appellant
    KEAN MILLER, LLP, By: Michael D. Lowe, Shreveport, Counsel for Appellees
    Before MOORE, STONE, and COX, JJ.
   STONE, J.

FACTS AND PROCEDURAL HISTORY

Jonathan Craft ("Craft") appeals his termination from employment as a District Chief for the Benton Fire Department (the "fire department"). Craft's termination was based on the fire chief's finding that Craft engaged in misconduct while on duty. Craft, while on duty and using a fire rescue truck as his transportation, visited Ms. Ashley Roberts at her home for hours at a time. Craft was romantically involved with Ms. Roberts at the time of these visits, which occurred late at night and in the wee hours of the morning.

Initially, around the end of April or beginning of May of 2017, Craft's subordinates at the fire department complained that Craft was absent while on duty and his whereabouts were unknown during these absences. According to Chief Turner's testimony, this complaint included allegations that Craft was deactivating the GPS in the fire truck which he was using as transportation during these absences.

Chief Turner discussed this complaint with Craft, who explained these absences by stating that he was visiting his estranged wife and children at his home. This explanation was an intentionally misleading half-truth if not a total lie. Chief Turner, unaware that Craft was actually visiting Ms. Roberts during these absences, instructed Craft to swap shifts with another district chief or take vacation leave if he wanted to visit his family during his (otherwise) scheduled work times. This discussion between Craft and Chief Turner was not documented in writing or otherwise.

Three to four weeks later, on May 26, 2017, a local citizen, Trey Hicks ("Hicks"), filed a written complaint against Craft. This complaint included allegations that Craft, while on duty as a district chief, was using a fire department emergency response vehicle ("fire truck") to make late-night visits to Ms. Roberts at her home. Ms. Roberts confirmed these allegations in her interview, which was taken during the course of the investigation. She also expanded on the number of times which Craft made these visits.

Additionally, Hicks' complaint included allegations that Craft had threatened, stalked, or harassed Hicks. The fire department forwarded a copy of the Hicks complaint to the Bossier Parish Sheriff's Office ("BPSO") to determine whether there would be a criminal investigation. The BPSO declined to investigate the matter. Thereafter, on June 6, 2017, the fire department commenced its own investigation of the matter.

In his testimony, Craft admitted that, prior to being interrogated, he was given a "notice of investigation" letter, a copy of the Firefighter Bill of Rights, and a copy of Hicks' written complaint. This notice also included a direct order (hereafter, referred to as the "gag order") to Craft to refrain from discussing the investigation with anyone other than his attorney or representative, or one of the investigators. Furthermore, the notice warned that violation of the gag order would result in charges of insubordination.

During the fire department's investigation, Craft was interrogated twice, first by Chief Turner and later via polygraph examination. After being given the gag order, Craft "discussed" the investigation with Ms. Roberts, a witness in the investigation. The day that Hicks filed the complaint, Craft went to see Ms. Roberts at a local gym. She asked why he was not at work, and he explained that he was on administrative leave because he was under internal affairs investigation. He further stated that he suspected his ex-wife or Hicks had instigated the investigation, and that Ms. Roberts could not say anything or he would be "fired on the spot." Also, Ms. Roberts stated that, on June 12, 2017, i.e., the day before her interview with the fire department investigators, Craft called her and asked if anyone had contacted her, apparently in relation to the Hicks complaint. Craft, in his testimony, denied making this inquiry of Ms. Roberts. Finally, Ms. Roberts also stated that Craft had visited her at her house using the fire truck on more than just the two occasions which Hicks had reported.

However, Craft did admit that, on several occasions, he made the late-night visits to Ms. Roberts at her house while he was on duty and was using a "full-fledged fire rescue truck" as his transportation. Craft initially denied deactivating the GPS at all. Later he admitted to deactivating it, but claimed it was solely for the purpose of plugging in his cell phone. Later yet, he admitted that, on approximately four occasions, he deactivated the fire truck's GPS with the intent to conceal his whereabouts from his subordinates at the fire station when he was visiting Ms. Roberts.

After the investigation, the fire chief terminated Craft for: (1) the late-night visits to Ms. Roberts in the fire truck while on duty, and, in doing so, attempting to conceal his whereabouts by turning off the fire truck's GPS; and (2) "discussing" the investigation with Ms. Roberts, a witness therein, after being directly ordered in writing not to "discuss" the investigation with anyone but his lawyer or representative, or the investigators.

At the conclusion of the initial hearing before the board, the board deliberated in "executive session," i.e ., outside Craft's presence and outside of public access. The district court remanded, and the board conducted another hearing and again affirmed Craft's termination, this time without going into executive session. On re-appeal, the district court affirmed the board's decision. Thereupon, Craft filed the instant appeal.

ASSIGNMENTS OF ERROR

Craft enumerates 12 assignments of error:

1. District Court erred in affirming termination as it was undisputed the Fire Department failed to provide Craft with written notice at the commencement of the fire department's investigator's interrogation in violation of La. R.S. 33:2181(B)(2).
2. District Court erred in affirming the termination as it was undisputed the polygrapher [sic] failed to provide Craft with a written notice at the commencement of his interrogation of Craft in violation of La. R.S. 33:2181(B)(2).
3. District Court erred in affirming termination as it was undisputed Craft was never told that he was under investigation for telling a friend he was under investigation in violation of La. R.S. 33:2181(B)(1).
4. District Court erred in affirming the termination as it was undisputed Craft was never told he was under investigation for turning off his GPS in violation of La. R.S. 33:2181(B)(1).
5. District Court erred in finding that disconnecting GPS was a violation of some assumed policy when no such policy was in evidence and all witnesses testified that no such policy existed.
6. District Court erred in affirming termination for "insubordination" as it was undisputed Craft never discussed the facts of the investigation with anyone.
7. District court erred in affirming termination as the Fire Chief admitted he had no evidence that Craft's stating he was under investigation affected the operation of the fire department or the investigation.
8. District Court erred in affirming termination of 17-year employee for alleged violation of nonexistent policies or procedures such that any discipline was arbitrary and capricious and without good faith or cause.
9. District Court erred in affirming termination as Craft had already been counseled for leaving the station and turning off the GPS.
10. Alternatively, District Court erred in affirming termination as Fire Department violated the 60-day rule with regard to any investigation into Craft being away from the fire station with the GPS turned off.
11. District Court erred in affirming termination as Fire Department failed to produce recording of polygraph interrogation in violation of La. R.S. 33:2181(B)(4).
12. District Court erred in affirming termination as termination was disproportionate to the severity of the alleged charges.

DISCUSSION

Civil service employees, such as appellant Jonathan Craft, are granted by law special protections from discipline and termination by the employer. In Morris v. City of Minden , 50,406 (La. App. 2 Cir. 3/2/16), 189 So.3d 487, 493-94, writ denied , 2016-0866 (La. 6/3/16), 192 So.3d 748, we explained the permissible grounds for discipline of civil service employees, and the administrative appeal of such discipline:

Article X, Section 8(A) of the Louisiana Constitution, which governs disciplinary action as to classified civil servants, provides that no person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. In this context, "cause"...includes conduct prejudicial to the public service involved or detrimental to its efficient operation. The...board has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. In other words, the civil service...board reviewing the disciplinary action of the appointing authority not only ensures that the discipline was imposed in good faith for cause, but [also] independently ensures that the particular punishment imposed was proper.

In Mathieu v. New Orleans Pub. Library , 2009-2746 (La. 10/19/10), 50 So.3d 1259, 1262-63, the Louisiana Supreme Court explained the parameters for judicial review of discipline of a civil service employee:

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Then, the court must evaluate the commission's imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. "Arbitrary or capricious" means the absence of a rational basis for the action taken; "abuse of discretion" generally results from a conclusion reached capriciously or in an arbitrary manner[.]
* * *

(Internal citations omitted).

Thus, the board was required to determine: (1) whether the Fire Chief's termination of Craft was undertaken in good faith for cause; and (2) if so, whether termination was commensurate with Craft's misconduct. We apply the manifest error standard of review to the board's findings of fact, and based on the facts so ascertained, are to determine whether the board's decision was supported by a rational basis.

La. R.S. 33:2560(A) sets forth a list of grounds on which a "permanent" civil service employee may be terminated or otherwise disciplined. These include:

1. Unwillingness or failure to perform the duties of his position in a satisfactory manner.
...
3. The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.
4. Insubordination.
5.... [A]ny dishonest, disgraceful or immoral conduct . (Emphasis added).

Substantive requirements: Termination in good faith for cause; proportionality. Assignments 5, 6, 7, 8, & 12.

The evidence in the record adequately supports the factual conclusion that Craft, on numerous occasions, while on duty as a district chief, used the fire truck to visit Ms. Roberts at her home for multiple hours at a time. Craft and Ms. Roberts were romantically involved at the time of these visits, which took place late at night and in the wee hours of the morning. In doing so, Craft knowingly burned fuel paid for by the public, and put miles on the fire truck paid for by the public.

Furthermore, Craft engaged in a pattern of dishonesty in attempting to conceal his on-duty visits to Ms. Roberts. He lied to Chief Turner when Chief Turner asked where he was going during these absences. Specifically, he told Chief Turner that he was visiting his estranged wife and children when he was actually visiting Ms. Roberts at her home. Additionally, in his initial interview with Chief Turner, Craft lied about deactivating the GPS, claiming he had not deactivated the GPS at all. Subsequently, however, Craft admitted that he deactivated the GPS and that his motive for doing so was to conceal - from his subordinates at the fire department - his visits to Ms. Roberts' house.

Craft was placed in a position of public trust - he was not merely a rank and file firefighter, but was the district chief. As such, it was his job to lead and to supervise fire station operations, including its responses to life-and-death emergencies. Craft abused the trust that was reposed in him, and manifestly failed to shoulder the responsibility of a district chief.

Given these facts, we cannot agree with Craft that his termination from employment was lacking good faith for cause or was disproportionate to the severity of his derelictions. These assignments are without merit. Accordingly, we pretermit whether Craft's conversations with Ms. Roberts regarding the investigation constituted a violation of the gag order and, if so, would also have justified termination.

Finally, we note that the lack of a written policy prohibiting the civil service employee's subject conduct does not preclude the employer from terminating the employee based on that conduct. Thus, the fire department was not required to have a written policy specifically prohibiting a district chief from visiting his girlfriend at her house for hours at a time (late at night and in the wee hours of the morning) while on duty and using a fire truck as his transportation. Nor was it required to have a written policy specifically prohibiting a district chief from deactivating the fire truck's GPS to conceal such visits from the district chief's subordinates at the fire station. Craft's arguments to the contrary are without merit.

Procedural requirements for valid termination: Statute governing firefighter disciplinary investigation. Assignments 1, 2, 3, 4, & 11.

La. R.S. 33:2181 provides specific procedural protections to fire employees who are under investigation by the employer. Even where the discipline is imposed on a fire employee in good faith for cause, and the discipline imposed is commensurate with the employee's misconduct, the discipline is nonetheless an absolute nullity if the investigation into the employee's alleged misconduct is conducted in violation of this statute. La. R.S. 33:2181(C).

In relevant part, La. R.S. 33:2181 provides as follows:

A. Unless context otherwise requires, the following terms when used in this Subpart shall be given the meanings assigned below:
...
(2) "Interrogation" includes but is not limited to any formal interview, inquiry, or questioning of any fire employee by the appointing authority or the appointing authority's designee regarding misconduct, allegations of misconduct, or policy violation. An initial inquiry conducted by the fire employee's immediate supervisors shall not be considered an interrogation.
B. Whenever a fire employee is under investigation, the following minimum standards shall apply:
(1) Prior to commencing a formal investigation of a fire employee, the appointing authority shall notify the employee in writing of the nature of the investigation, of the identity and authority of the person conducting such investigation, and of the specific charges or violations being investigated.
(2) The fire employee being investigated shall be informed in writing at the commencement of any interrogation of the nature of the investigation, of the identity and authority of the person conducting such investigation, of the identity of all persons present during such interrogation, and of the specific charges or violations being investigated. The fire employee shall be allowed to make notes.
...
(4) All interrogations of any fire employee in connection with the investigation shall be recorded in full. The fire employee shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements, upon submitting a written request to the fire chief.
...
C. No fire employee shall be disciplined, demoted, dismissed or be subject to any adverse action unless the investigation is conducted in accordance with this Subpart. Any discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of this Subpart is an absolute nullity.

Craft urges four assignments of error based on alleged violations of this statute. First, he argues that, in violation of subsection (B), supra , he was not given adequate pre-interrogation notice of the nature of the investigation and specific charges involved. His basis for that assertion is that the notice he was given did not explicitly state that the investigation included inquiry into his deactivation of the fire truck's GPS.

Second, he contends that, in violation of subsection (B)(2), he was not given another copy of the notice at the commencement of each interrogation (i.e. , the interview with Chief Turner and the polygraph test). Craft takes the position that subsection (B)(2) requires the fire department to give the employee an additional copy of the notice at each separate interrogation.

Third, Craft claims that subsection (B) required the fire department to give him a separate notice of investigation regarding his discussion of the investigation with Ms. Roberts in supposed contravention of the gag order.

Fourth, Craft argues that subsection (B)(4) was violated in that he was not given an audio recording of the polygraph examination. Craft was, however, given a written report of the polygraph examination which included a transcript of all the questions and answers related to the issues under investigation.

GPS deactivation: notice. Craft admits that, at the beginning of the fire department's interrogation, he was notified that he was being interviewed regarding Hicks' complaint. The day that Hicks filed the complaint, May 26, 2017, Craft was given a notice of investigation letter and a copy of the Firefighter Bill of Rights. On June 6, 2017, i.e., after the Bossier Sheriff's Office declined to pursue the matter, Craft was given a copy of the Hicks complaint. Craft was not interrogated until approximately a week after he received the Hicks complaint.

Craft contends that the notice's omission of an explicit statement regarding the deactivation of the fire truck's GPS rendered it insufficient to apprise him of the nature of the investigation and the "specific charges or violations being investigated." La. R.S. 33:2181(B)(2), supra . During the first interrogation, Chief Turner asked Craft about his deactivating the fire truck's GPS. Also, the fire chief admitted that, until the PDC hearing, Craft was never explicitly told he was under investigation for turning off his GPS.

We hold that Craft was given sufficient notice of the nature of the investigation and the specific charges involved, despite the lack of an explicit statement regarding his deactivation of the fire truck's GPS in attempting to conceal his late-night visits to Ms. Roberts' house while he was on duty. Upon commencing its investigation, the fire department provided Craft with a copy of the Hicks complaint, which contained the allegations of Craft's late-night visits to Ms. Roberts' house in the fire truck as well as photographs of the fire truck parked in her driveway. Hicks' allegations were sufficient to apprise Craft that everything he did in taking the fire truck to visit Ms. Roberts while on duty was within the scope of the investigation. Thus, Craft's deactivation of the fire truck's GPS, which he did to conceal his late-night visits to Ms. Roberts' house in the fire truck, was sufficiently implied by the notice given. The notice requirements of La. R.S. 33:2181(B) do not require to give an explicit, detailed ex ante rendition of every single fact which may have bearing on the outcome of the investigation.

New notice for each interrogation. Craft contends that, prior to the interview with Chief Turner and the polygraph examination - which were conducted after he was already given the notices described above - he was entitled to another copy of the notices required by La. R.S. 33:2181(B)(2), which states:

The fire employee being investigated shall be informed in writing at the commencement of any interrogation of the nature of the investigation, of the identity and authority of the person conducting such investigation, of the identity of all persons present during such interrogation, and of the specific charges or violations being investigated. (Emphasis added).

Thus, it is Craft's contention that the requirement that written notice be given "at the commencement of any interrogation" means that a separate copy of the notice packet must be given at each and every interrogation.

We disagree. Where, as here, notice complying with La. R.S. 33:2181(B)(2) is given at the onset of the investigation, it is inarguable that the notice has been given prior to the "commencement of any interrogation." It matters not whether the notice is given prior to or at the commencement of interrogation: either way, the employee is apprised of the specified facts prior to being interrogated. The notice given satisfies La. R.S. 33:2181(B)(2).

Furthermore, our reading of the statute is not only grammatically sound, but also, is necessary to avoid absurd consequences. Craft held the position of district chief of the Benton Fire Department, a position which involves substantial professional responsibility to and on behalf of the public. He should be expected to either internalize the matters communicated to him via the notice or bring it with him as a reference when attending an interrogation. To hold otherwise in this case would burden fire departments and (potentially other employers of civil service employees) with unreasonable redundancy. It also would have the absurd consequence of nullifying substantively justified discipline of civil service employees on hyper-technical procedural grounds. This assignment of error lacks merit.

In Alexander v. City of Alexandria , 2014-452 (La. App. 3 Cir. 11/5/14), 150 So.3d 590, writ denied , 2014-2563 (La. 2/27/15), 159 So.3d 1071, the Third Circuit held that, where proper notice was given prior to the first interrogation, La. R.S. 33:2181(B)(2) was not violated by reason of failure to reissue notice immediately prior to each subsequent interrogation. In so holding, the Alexander court noted that the employee: (1) had the notice packet with him at each subsequent interrogation; (2) knew "exactly what was occurring in relation to the investigation," and (3) knew the identity of all persons present at each interrogation. In sum, the employee was not prejudiced by the fire department not reissuing the notice immediately prior to each subsequent interrogation.

Our holding comports with Alexander . In this case, like Alexander, Craft was given proper notice prior to his first interrogation. Furthermore, he has not alleged any prejudice or harm as a result of the fire department not reissuing the notice packet to him prior to each interrogation. In fact, the record contains a document that Craft handwrote prior to the polygraph examination. Therein, Craft explained the nature of the investigation quite aptly. The record also indicates that Craft was made aware of all persons present at the polygraph examination.

It matters not whether Craft brought the pre-interrogation notice to the subsequent interrogations. He has not alleged any prejudice resulting from the fire department not reissuing the notice. Furthermore, as explained above, it was Craft's responsibility to internalize the matters communicated to him in the notice packet or to bring the notice packet to his interrogation so he could refer to it if needed. This assignment of error lacks merit.

Craft's supposed violation of gag order: new notice. Craft acknowledges that the notice of investigation letter also "ordered him not to discuss the investigation with anyone other than his attorney, representative, or investigating officer" and also advised that "failure to comply [with that order] would result in charges of insubordination being filed" against him. On June 13, 2017, Ms. Roberts, a witness regarding the Hicks complaint, was interviewed. She stated that, on May 27, 2017, Craft told her he was on administrative leave and was under investigation. He further stated to her that he didn't know, but suspected, that either his ex-wife or Hicks had instigated the investigation. Ms. Roberts further stated that Craft told her that she could not "say anything or he would be fired on the spot," and that the day before her interview, he called and asked if "anyone had contacted her," apparently regarding the Hicks complaint.

Craft was interrogated on June 14, 2017. Therein, Chief Turner asked Craft whether he had discussed the investigation with anyone. Despite the above conversations with Ms. Roberts, Craft answered with an unqualified "no." Prior t o that interrogation, Craft was not made aware that new charges - based on his violation of the gag order - had been actually filed against him. Craft claims that his rights under La. R.S. 33:2181 were thus violated. Notably, Craft maintains this contention despite admittedly having been notified in writing that his violation of the gag order would result in new charges for insubordination being filed against him.

As previously stated, prior to his discussion of the investigation with Ms. Roberts and the fire chief's inquiry in that regard, Craft was warned that violation of the gag order would result in charges of insubordination. Thus, Craft was sufficiently notified under La. R.S. 33:2181. The fire department was not required to provide Craft with yet another notice stating that his discussion of the investigation in contravention of the gag order was under investigation. Nor was the fire department required to treat this matter as a separate investigation. This assignment of error lacks merit.

Polygraph: audio recording or transcript. All interrogations of a fire employee in connection with a disciplinary investigation by the fire department must be recorded in full. La. R.S. 33:2181(B)(4). Upon written request by the employee to the Fire Chief, the Fire Chief must give the employee an audio recording or transcript of the employee's statements made in an interrogation conducted regarding such investigation. Id.

Craft contends that his rights under La. R.S. 33:2181(B)(4) were violated in that he was not given an audio recording of the polygraph examination. The fire department admits that Craft was not provided with an audio recording, but points out that a "written report" of the polygraph examination was made available to Craft's attorney and was introduced into evidence at the March 29, 2018, remand hearing before the board. The written report is contained in the record. The polygraph examiner's testimony indicates that it contains a transcript of all of the questions relevant to the investigation and Craft's answers thereto. Our review of the document itself, which is contained in the record, confirms the accuracy of that testimony. Furthermore, Craft makes no argument that the written report contained inaccuracies or suffered from omissions. Accordingly, we hold that La. R.S. 33:2181(B)(4), which requires the employee to be given an audio recording or transcript of his statements upon written request, was satisfied. This assignment lacks merit.

Prior counseling - estoppel and the 60 day deadline. Assignments 9 & 10

Craft makes two alternative arguments predicated on Chief Turner's "counseling" him 3 to 4 weeks prior to the Hicks complaint. According to Craft, this prior counseling constituted either: (1) discipline for the same conduct for which he was eventually terminated; or (2) the commencement of the investigation, which began the running of the 60-day time limit. Preclusion or estoppel. In support of his argument that that this "counseling" constituted disciplinary action and therefore precluded the fire department from further discipline based on the same conduct, Craft cites Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017, 1020 (La. App. 1 Cir. 1981), writ denied , 406 So.2d 626 (La. 1981), and London v. Parkway & Park Comm'n , 503 So.2d 556, 557 (La. App. 4 Cir. 1987).

In Rigby , the employee initially received a letter of reprimand after the subject incident. Rigby, 401 So.2d at 1020. At the time this reprimand letter was sent, the appointing authority "had full knowledge of the incident," yet the employer later sought to "revive this incident as ground for further disciplinary measures." The First Circuit held that "[h]aving disciplined the employee for this infraction, the appointing authority is now estopped from seeking at a later date to revive this incident as a ground for further disciplinary measures." Id.

In Mills v. City of Shreveport , 58 F.Supp.3d 677, 685 (W.D. La. 2014), the federal district court held that documented verbal counseling constitutes disciplinary action. In that case, the verbal counseling was noted and placed in the employee's file.

The present case is distinguishable from Rigby on two separate grounds. First, in Rigby, the employer had "full knowledge" of the subject incident at the time it initially decided to merely reprimand the employee. Here, Craft admits that he told Chief Turner during the counseling that he was going to his house to visit his estranged wife and children when he disappeared from the fire station in the middle of the night. Craft later admitted that such was not the truth: he omitted his visits to Ms. Roberts' house in his explanation of his absences to Chief Turner. Thus, unlike Rigby, the fire department in this case did not have "full knowledge" of the subject incident at the time of the "prior counseling." Second, the employee in Rigby initially received a written letter of reprimand. Here, Craft was given mere oral, undocumented instructions to take vacation leave or swap shifts if he wanted to conduct personal business during his otherwise scheduled work time. Such does not constitute discipline at all. Mills, supra. Accordingly, Craft's argument that the employer was precluded or estopped from imposing further discipline by reason of the "prior counseling" is without merit.

60-day time limit on investigations. In the alternative, Craft argues that the fire department's investigation into his misconduct exceeded the applicable 60 day time limitation. La. R.S. 33:2186(A) does impose a 60-day time limit on a fire department's investigation of a firefighter's alleged misconduct. As previously mentioned, the premise of Craft's argument is that the "investigation" began three to four weeks prior to the Hicks complaint's filing when Chief Turner "counseled" him regarding complaints about his late night absences by the other fire employees, supra.

Craft cites Bracey v. City of Alexandria, 2011-621 (La. App. 3 Cir. 2/1/12), 84 So.3d 669, for the proposition that the "investigation" begins when the fire department undertakes any investigation, not when a formal complaint on the same matter is later filed. In so doing, Craft misrepresents the holding of Bracey . Therein, the employer hired a private investigator to conduct video surveillance of the employee regarding suspected misuse of sick leave. The Civil Service Board found that, for purposes of the 60-day time limit on investigations, the commencement date of the video surveillance was the commencement date of the investigation. The Third Circuit held that (1) this finding by the Civil Service Board was a finding of fact; (2) as such, it was subject to manifest error review; and (3) it was not manifestly erroneous. Id.

Apparently, Craft has raised this issue for the first time in this appeal. His "pretrial brief" submitted to the board was silent regarding the 60-day deadline, as were his two appeal briefs submitted to the district court. Thus, Craft waived the argument. Johnson v. State , 2002-2382 (La. 5/20/03), 851 So.2d 918. Furthermore, assuming arguendo Craft had raised this argument before the board, the board's decision thereon would have been a finding of fact subject to manifest error review. Bracey, supra. The record would adequately support a finding that the investigation did not begin until the Hicks complaint, i.e., that Chief Turner's "counseling" Craft did not constitute the commencement of an investigation for purposes of La. R.S. 33:2186(A). Therefore, the board would not have been manifestly erroneous in so finding - and thus rejecting this argument by Craft. Accordingly, this assignment by Craft is without merit.

CONCLUSION

Craft's termination is affirmed. All costs of this appeal are assigned to Craft.

AFFIRMED.

      Chief Turner conducted the internal affairs investigation in this case. He is the assistant to Fire Chief Wallace.

      It subsequently was revealed that Craft was actually visiting Ms. Roberts at her home. Craft subsequently admitted that he deactivated the GPS for the purpose of concealing his whereabouts from his subordinates at the fire department. However, Craft maintained that, during the subject absences, he did go home, but left from there and went to Ms. Roberts' house.

      The Fire Department concluded that these other allegations were "unfounded" because Hicks refused to cooperate in the investigation.

      Craft was given the notice of investigation letter and the Firefighter Bill of Rights on May 26, 2017. He was given a copy of the Hicks complaint on June 6, 2017.

      The polygraph examiner testified that he made an audio recording of the polygraph examination, and used that recording to generate a written report of the examination, which included the questions and answers pertaining to the matters under investigation. However, the audio recording itself was lost before it could be produced in discovery. The written report was introduced into evidence and was made available to Craft's counsel.

      In Craft's brief, he enumerates 12 assignments of error. However, he designates his final assignment as number "13" and his preceding assignment as number "11." In this opinion, we refer to Craft's final assignment as number 12.

      Ms. Roberts' testimony confirmed Hicks' allegations regarding Craft's late night visits to her house in the fire truck while Craft was on duty. She also stated that there were other such instances which Hicks had not reported.

      In London, the employee, a member of a tree cutting crew, "was caught sitting in the crew's truck reading a newspaper while his fellow employees were raking and cleaning up." London at 556. The employee was "not dismissed because of this incident alone but in consideration of his past record," which showed that he was disciplined numerous times for insubordination, negligence in caring for employer equipment, and absenteeism. Id. at 557. The employee argued that the employer was estopped from reviving these previous incidents as grounds for further discipline, as he had already been disciplined therefor. The Fourth Circuit rejected this argument, stating "an employee cannot be disciplined a second time for the same offense, but previous offenses and the penalties may be considered in determining what is the appropriate penalty for subsequent offense."Id.