author: AMY, Judge. COOKS, J., WEIMER, J.,

text:
    STATE of Louisiana v. Milton Anthony WILKS.
    No. 09-874.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 24, 2010.
    Rehearing Denied April 7, 2010.

      Michael Harson, District Attorney, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    W. Jared Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Milton Anthony Wilks.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

l iThe defendant was charged by bill of information with purse snatching. After a jury trial, the defendant was found guilty. The trial court sentenced him to sixteen years imprisonment at hard labor. The defendant now appeals, questioning the sufficiency of the evidence presented and the timeliness of the prosecution. He also contends that his sentence is excessive. For the following reasons, we affirm.

Factual and Procedural Background

On March 22, 2003, Mary Varisco was shopping at Sam’s Club in Lafayette when she felt what she described as “kind of like a brushing-up-against feeling.” She testified that after experiencing this feeling, she looked down and noticed that her wallet was missing. She explained that she confronted the defendant, who was nearby, and saw that he had her wallet in his hand. The defendant then began walking toward the exit. Several of the store customers followed the defendant into the parking lot. Police were called to the scene.

Police Officer Brad Robin arrived on the scene after receiving information that the suspect was chased to the vicinity of a nearby business. Upon investigating the area, Officer Robin found the defendant hiding in some bushes. The officer then drove the defendant back to the store, where the victim and another witness identified the defendant as the offender. The officer read the defendant his Miranda rights and he confessed to the crime.

On June 4, 2003, the defendant, Milton Anthony Wilks, was charged with purse snatching, a violation of La. R.S. 14:65.1, in connection with the above occurrence. On September 30, 2008, a jury found him guilty as charged. On March 2, 2009, the trial court sentenced him to sixteen years imprisonment at hard labor.

|2The defendant now appeals, asserting that: (1) There is insufficient evidence to convict him of purse snatching; (2) The trial court erred in denying his motion to quash because the time limitations to commence trial had expired, and; (3) The sentence imposed is excessive.

Discussion

Sufficiency of the Evidence

In his first assignment of error, the defendant argues that the evidence adduced at trial does not support his conviction under the Jackson standard. Spe-cifícally, he argues that the identification of him as the offender was unreliable because the police used suggestive identification procedures.

On review, the court must examine the reliability of an identification according to the five-factor analysis provided by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977). The Louisiana Supreme Court has described that analysis as follows:

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court held that an identification may be permissible, despite the existence of a suggestive pretrial identification, if there does not exist a “very substantial likelihood of irreparable misidentification.” The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114, 97 S.Ct. 2243.

Is State v. Broadway, 96-2659, p. 14 (La.10/19/99), 753 So.2d 801, 812, cert, denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

A review of the record in the present case suggests that these factors weigh against the defendant. The victim, Ms. Varisco, testified that she was at arms’ length from the defendant and looked at his face for approximately ten seconds. Officer Robin testified that when he responded to the call, Ms. Varisco described the defendant as a “tall, lanky black male wearing a black shirt and ... glasses.” Officer Robin testified that he found “a six [foot] tall black male with a black shirt, blue jeans, and glasses” in the bushes. Also, Officer Robin returned with the defendant within ten minutes of receiving the Ms. Varisco’s identification and she again identified him as the offender.

In regard to the fourth Brathwaite factor, the record evidences that Ms. Varisco displayed a high degree of certainty regarding her identification as the offender. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). At trial, the following exchange took place:

Q And this person that you saw when you turn[ed] him around, is that person in the courtroom right now?
A Yes, he is.
Q Now, does he look the same now as he did then?
A Well, I don’t remember him having a beard.
Q Okay
A But, yes, he does look very similar. He doesn’t have the glasses on that he had at the time. Yes.
Q Does he look very similar or—
A He looks — it’s him. It’s absolutely him.

14The record indicates that the jurors, as the trier of fact, accepted Ms. Varisco’s and Officer Robin’s testimony as credible. These credibility determinations are within the sound discretion of the trier of fact and will not be disturbed on review unless clearly contrary to the evidence. State v. Marshall, 04-3139 (La.11/29/06), 943 So.2d 362. Ms. Varisco testified as to the events of the purse snatching and identified, in open court, that defendant was the offender who committed that crime. Officer Robin also identified the defendant in open court and testified that, while in his squad car, the defendant confessed to the crime. In light of the evidence presented, we find that a rational trier of fact could have found the defendant guilty of purse snatching pursuant to the Jackson standard of review. Jackson, 448 U.S. 307, 99 S.Ct. 2781.

This assignment lacks merit.

Time Limitations

In his second assignment of error, the defendant alleges that the time limitations to commence trial expired in his case.

Louisiana Code of Criminal Procedure Article 578, sets a two-year period for the State to institute prosecution of a non-capital felony. This time period is subject to interruption under La.Code Crim.P. art. 579, which reads:

|5A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3)The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

The defendant was charged on June 24, 2003, with purse snatching. The court minutes provide that the defendant was arraigned and pled not guilty on September 23, 2003. The record provides a court summons issued on that date. The court summons ordered the defendant to appear in court for pretrial on October 30, 2003, and for trial on December 1, 2003. The record indicates that there is a signature affixed to the court summons under the sentence “I promise to appear at the time, place and date shown above.” The court minutes of October 30, 2003, indicate that the defendant failed to appear and a bench warrant was issued for his arrest. The October 30, 2003 minutes also indicate that the State introduced evidence showing service on all parties. On November 14, 2003, the bench warrant issued on October 30, 2003 was recalled. On December 1, 2003, the minutes again indicate that the defendant failed to appear in court. On that date, another bench warrant was issued and the State, again introduced evidence showing service on all parties.

|fiThe defendant next appeared in court on October 30, 2007 following an arrest on October 25, 2007. At the hearing, the trial court did not recall the warrant which was issued on December 1, 2003 and the matter was set for trial. On March 13, 2008, the defendant filed a motion to quash the prosecution based upon prescription. The trial court denied the motion and the trial began on September 29, 2008.

The defendant argues that the trial court erred in denying his motion to quash because of the two-year time limitation and that the State failed to prove the existence of any causes for interruption of that time limit. In brief, the State argues that prescription had been interrupted under La.Code Crim.P. art. 579(3) because the defendant had failed to appear in court pursuant to actual notice.

Generally, the State bears the heavy burden of proving that it is excused from trying the accused at a later date than the period mandated under La.Code Crim.P. art. 578. State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722. However, our supreme court has held La.Code.Crim.P. art. 573(3) “does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice.” Romar, 985 So.2d at 726. It explained further, as follows:

The 1984 amendment of La.C.Cr.P. art. 579 made a defendant’s contumacious failure to appear for trial after receiving notice, a direct contempt of court, La. C.Cr.P. art. 21(A)(1), a ground of interruption of the time limits in La.C.Cr.P. art. 578 for bringing him to trial, without regard to whether he thereby intended to avoid prosecution altogether by rendering himself a fugitive from justice, or whether he had otherwise placed himself beyond the control of the state to secure his presence for trial.

Id.

|7In the present case and pursuant to La.Code Crim.P. art. 578, an interruption of the time limit occurred when the defendant failed to appear for trial on December 1, 2003. The record reveals that the defendant had actual notice of this trial date in the summons issued on September 23, 2003. The court summons was an order for the defendant to appear in court for pretrial on October 30, 2003, and for trial on December 1, 2003. The record indicates that there is a signature affixed to the court summons under the sentence “I promise to appear at the time, place and date shown above.” Furthermore, the bench warrant which was issued on December 1, 2003 indicates that a notice to appear was served on the defendant.

The record evidences that the State met its burden in proving that an interruption of prescription occurred under La.Code Crim.P. art. 579(3). The State entered into the record the signed summons, bench warrants, and court minutes which evidence that the defendant failed to appear in court pursuant to actual notice. Therefore, we do not find that the trial court abused its discretion in denying the defendant’s motion to quash. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198.

This assignment lacks merit.

Excessiveness of Sentence

In his final assignment of error, the defendant argues that his sixteen-year sentence is excessive. This court has set out a standard to be used in reviewing excessive sentence claims, as follows:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless | ^imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Related jurisprudence adds further structure to the analysis:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The sentencing hearing transcript reveals that the trial court addressed the nature of the offender and the offense as follows:

Mr. Wilks, I have reviewed the aggravating and mitigating circumstances listed in the Articles of the Code of Criminal Procedure applicable. I have considered the facts of the incident offense. I have also noted in particular your criminal record, sir. I cannot remember ever having anyone with eleven prior felony convictions. Contrary to Mr. Haney’s statement, I believe your convictions are felony convictions.
lain any event, sir, a maximum sentence in this case in all likelihood is a life sentence for you because of your age, because you are 58 years old. Under the circumstances I hereby sentence you to serve sixteen years at hard labor. I trust, sir, that gives you some possibility that in your mid-seventies you may be able to get out of prison[,] but I’m not guaranteeing it. I mean, I don’t know what will happen to you while in jail. Hopefully, while you are in your mid-seventies you will not break the law again.
I note specifically that your crimes are not crimes of violence, although this particular crime could be considered one. The fact was you didn’t hurt anyone. You took the purse from a basket or grocery basket. In any event, sir, you will be given credit for time served.

On review, we cannot find that the trial court abused its discretion in sentencing the defendant to sixteen-years imprisonment. Pursuant to La. R.S. 14:65.1, the defendant faced a sentencing range of two to twenty years imprisonment. The State requested that the maximum sentence be imposed. The trial court did not impose the maximum sentence, however, his sentence does fall within the upper range of possible sentences. The trial court was persuaded to impose an upper range of sentence in consideration of the defendant’s extensive criminal history. We do not find that this consideration was an abuse of discretion.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully dissent from the majority opinion, finding merit in Defendant’s assignment of error that the time limitations to commence trial expired in this case. Therefore, I believe Defendant’s conviction must be reversed and his sentence vacated.

The majority relies on State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722, contending Defendant received actual notice of the trial date, thus, the State was relieved of its duty to locate him for trial. However, in my examination of the record. I do not find that Defendant received actual notice of the trial date. The court in Romar stated as follows:

As a general matter, the state has two years from the institution of prosecution to begin trial of a non-capital felony. La.C.Cr.P. art. 578(A)(2). The statutory periods of limitation “enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286; see United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971)(statutes imposing time limits on trial “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.”). That period may be enlarged as the result of suspension, La.C.Cr.P. art. 580, or interruption, La.C.Cr.P. art. 579, but in either case, the state “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La. C.Cr.P. art.] 578.” State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832 (internal quotation marks and citations omitted). That | ¡>burden ordinarily “ ‘requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.’ ” State v. Bobo, 03-2362, p. 5 (La.4/30/04), 872 So.2d 1052, 1055-56 (quoting Chadbourne ).
We agree with the First and Third Circuits that La.C.Cr.P. art. 579(A)(3) does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice. The 1984 amendment of La.C.Cr.P. art. 579 made a defendant’s contumacious failure to appear for trial after receiving notice, a direct contempt of court, La.C.Cr.P. art. 21(A)(1), a ground of interruption of the time limits in La.C.Cr.P. art. 578 for bringing him to trial, without regard to whether he thereby intended to avoid prosecution altogether by rendering himself a fugitive from justice, or whether he had otherwise placed himself beyond the control of the state to secure his presence for trial.

Id. at 725-26. (emphasis added).

Romar indicates that actual notice, not issuance of a bench warrant, is the mechanism that relieves the State of the obligation to locate a defendant. In the present case, the record does not prove Defendant received actual notice of the relevant court dates. The minutes of his September 2003 arraignment do not show he received notice, and there is no transcript of that proceeding in the record. However, the district court clerk’s office has provided a supplemental record containing a court summons issued on the same date. The caption bears Defendant’s name and the trial docket number, 98483. The summons includes a pretrial date, October 30, 2003, and the trial date, December 1, 2003. Although there is a signature, it is illegible and does not appear to match the equally illegible signature on his appearance bond.

During the hearing on Defendant’s motion to quash, the presiding judge made the following observations:

THE COURT: Mr. Wilks, this is a rather confusing situation, but, Mr. Wilks, as best I can determine you were arrested back in 2003, apparently, as you describe it, for theft of a wallet. And I do have — and on that date that you were arrested you used the name Frank Wilks. And |sso that’s how the case was initially filed, charging a person named Frank Wilks with having committed this crime of theft.
Then you came to an arraignment and then you evidently pled not guilty and it was scheduled for a pretrial conference, and on one of those dates that you were scheduled for a pretrial conference that happened to be September 18, 2003.
On that day you apparently spoke with the lawyer who had been appointed to represent you, his name was Lee Gillespie. He’s a large fellow. You remember him? He, apparently, after speaking with you, learned of your real name, that you were, in fact, Milton Anthony Wilks. I assume that he must have had some representation with you previously or a person who was arrested with you on a previous occasion because he reported that he had a conflict of interest and he could not represent you in that case. Do you remember that?
MR. WILKS:
A. Yes, yes.
MR. GUIDRY: Judge, for the record, if we could supplement it, what it indicates is that Mr. Gillespie was familiar with the victim.
THE COURT: Familiar with the victim. So, therefore, Mr. Gillespie had to get out of the case. And another lawyer was appointed to represent you, his name was Kirk Piccione. Mr. Piccione, since he was new to the case, asked for the trial to be continued. So the trial was continued. Evidently, you and Mr. Piccione had a relationship talking about the ease, preparing the case. But then on that date in December, the 1st of December 2003, you did not come to court and so, therefore, a bench warrant was issued. So that means that you were free on bond at that time when you saw me.
MR. WILKS:
A. No.
THE COURT: You weren’t?
MR. WILKS:
A. Never. I was incarcerated. I was in Lafayette Parish jail.
THE COURT: So then there is the mystery of what the date was that you pled guilty to whatever charges in city court that let you get out of jail.
MR. WILKS:
|4A. That was in, like, April or something, April or May. The deputy there released me. The deputy over there, she released me.
THE COURT: April of 2003, May of 2003, but you see, you still had a court date with me in December of 2003. And so you apparently got out of jail.
MR. WILKS:
A. I never got out of jail. I stayed in jail the whole time until April or May.
THE COURT: Right. April or May you pled guilty to some charges, you have no idea what those charges were.
MR. WILKS:
A. Yes, it was from the indictment. It wasn’t an indictment.
THE COURT: I just asked you when you were on the stand if you could tell me all of the things you pled guilty to. You couldn’t. So you don’t know.
MR. WILKS:
A. I don’t know all of them.
THE COURT: I know you don’t know. Listen to me. You don’t know, that’s what I’m telling you, you don’t know what you pled guilty to.
MR. WILKS:
A. No.
THE COURT: Therefore, listen. Therefore, listen. You don’t know what you pled guilty to. And so, therefore, you got out of jail. You have no idea whether or not you pled guilty to this charge of theft of a wallet that you were arrested for. Okay? When you got out of jail you were happy to be out of jail. You didn’t come to the courthouse here to make sure that what you thought was the case in city court, that everything was gone, everything was finished, everything was resolved, you pled guilty to everything, when you thought that you were free you could’ve come here to this building, the clerk’s office.
MR. WILKS:
A. I had no idea.
THE COURT: I know you didn’t have any idea. You could have Rif you wanted to have an idea.
MR. WILKS:
A. Because it was my understanding—
THE COURT: Stop speaking. Stop speaking. You had a bad understanding. Would you like to have a good understanding?
A. Yes, sir.
THE COURT: That’s what I’m trying to give you. In order to receive a good understanding you have to listen and stop speaking and start listening. You left city court happy, thought that everything was resolved. Unfortunately, it seems that you were mistaken. You could have found out your mistake. You could have confirmed that what you thought was truthful was truthful if you had only walked across the street from the jail to this courthouse, come to the clerk’s office, checked your file to make sure — those people over there in city court, they told me everything was finished. I need to be sure that everything is finished. Can you tell me that everything is finished? You didn’t do that. You were just happy, you left.
As it turns out everything wasn’t finished. We were expecting to see you in December. You did not come in December. You were free. Therefore, I issued a warrant. You weren’t in jail when I issued the warrant, you were free because you got out in April or May, according to you. So you were free. Then, apparently, before you were even arrested for this charge you had been in other states, Florida one of them. After you left — after you were free in April or May of 2003 you traveled to other states.
MR. WILKS:
A. Never Florida. I’ve never been in Florida.
THE COURT: You’re speaking again. You can’t learn if you speak. And so you traveled to other states. Many other places you visited: sometimes you visited friends, sometimes you just enjoyed life being in other places; but all of that time there was a warrant out for your arrest. At some point you got arrested in Texas for a parole violation and you had to serve two months. You served the two months, you were free. You got out, enjoyed life, traveled hither and yon, went to various places, did various things, had a good time.
Then you came to Lafayette and, unfortunately, some police officer happened to find out that there was a warrant for your arrest at a time when you were in that officer’s presence. He arrested you, brought you to jail. That is apparently what happened. Unfortunately, that means, the motion to quash is denied. Good luck to you, sir.

|fiThe judge made reference to a pretrial conference date of September 18, 2003, the appointment of attorney Lee “Gillespie,” that attorney’s withdrawal, the subsequent appointment of attorney Kirk Piccione, and a continuance filed by Piccione. However, the record does not document all of these events.

On September 15, 2003, the local Public Defender’s Office filed a letter revoking the appointment of Eric Neumann as Defendant’s counsel, and appointing Lee Gal-laspy. A supplemental record provided by the district court clerk’s office shows that Lee Gallaspy’s appointment was revoked in October 2003, and Randy Lasseigne was appointed. In February 2008, Lasseigne’s appointment was revoked, and Burton Gui-dry was appointed. By affidavit, the deputy clerk of court states the record does not contain any documents reflecting that Pic-cione was appointed as Defense counsel, and does not contain any pleadings filed by Piccione.

At the hearing, Defendant took the stand and denied he received notice of the specific dates he was to appear in court, but acknowledged being aware of the charge. Defendant testified he thought he had pled guilty to the charge at issue, along with other charges, in city court. However, Defendant stated his plea in city court resulted in his release from jail in April or May of 2003. This assertion does not advance his case, since his arraignment on the present charge occurred in September 2003.

However, the court summons in this case does not constitute proof that Defendant received actual notice of the dates. Anybody could have scrawled the purported signature that appears on the summons. At the hearing on the motion to quash, there was no attempt to authenticate the signature. The matter of notice was not addressed at all, but the State, Defense counsel, and the trial court appear to have assumed that notice took place. However, as already mentioned, Defendant testified, and denied receiving notice. Therefore, I do not find the record demonstrates that |7Pefendant received actual notice. La. Code Crim.P. art. 579(A)(3) and Romar are not applicable.

Without proof of actual notice, the State labors under the heavy burden of demonstrating that it exercised due diligence in trying to locate Defendant. The State contends it “did in fact seek to extradite the [Defendant from Alabama when he was arrested there.” At the hearing on the motion to quash, the State introduced a copy of a detainer request faxed by the Lafayette Parish Sheriffs Department to the Shelby County Jail. The fax does not identify the state that Shelby County is in, but the fax number includes the 205 area code. The 205 area code does include Birmingham, Alabama, and at the hearing below, Defendant acknowledged going to Birmingham in 2008 after leaving Lafayette, and to having been arrested there. However, the jurisprudence indicates the State’s action did not constitute due diligence in the present context. The Louisiana Supreme Court in State v. Bobo, 03-2362 pp. 7-11, concurrence pp. 1-2 (La.4/30/04), 872 So.2d 1052, 1057-61 (footnotes omitted), explained:

Nevertheless, even assuming that merely by residing at his usual place of abode in Texas, Bobo, because he was “outside the state” when indicted, was a fugitive for purposes of La.C.Cr.P. art. 579(A)(1), it is undisputed that a time came when the State learned of his whereabouts and had within its power the ability to obtain the custody of him. Once the State located Bobo in custody in Texas, it had the affirmative duty to take steps to secure his presence in Louisiana for trial. See [State v.] Amarena, 426 So.2d [613] at 618 [ (La.1983) ] (“Any interruption of the period of limitation which existed under La. C.Cr.P. art. 579(A)(1) ceased when the State learned of the incarceration, location and availability of the defendant, and the two year prescriptive period began to run anew from that time.”); [State v.] Devito, 391 So.2d [813] at 816 [ (La.1980) ] (“After receiving notice of the defendant’s whereabouts [in jail], the State was no longer unable to act in apprehending the defendant or unable to obtain his presence for trial by legal process ... it necessarily follows that any interruption of the period of limitation which existed under Article 579(1) or (2) ceased when the State regained its capacity to act.”).
In fact, the State, fully aware of Bobo’s whereabouts, initiated | sextradition proceedings through the Louisiana Governor’s Office on May 5, 2000. The State contends that because Bobo was incarcerated in Texas, under La.C.Cr.P. art. 579(A)(2), it satisfied its burden of due diligence in attempting to try the accused timely by initiating extradition proceedings and that it therefore had the right to rely on the form letter from the Huntsville prison authorities that it would be informed of Bobo’s release on his Texas sentence.
By its plain terms, Article 579(A)(2) provides a cause of interruption only when the State cannot secure the person by legal process or by other cause beyond its control. The State’s argument that Bobo’s incarceration in Texas impeded its ability to try him timely here seemingly seeks to reprise this court’s holding in State v. Dupree, 256 La. 146, 235 So.2d 408 (1970), overruled, Devito, 391 So.2d at 816. Dupree held that interruption of time limits on trial, which began when the defendant escaped to Mississippi, did not end with his incarceration in that state for another offense and continued until his release from jail on that sentence. However, as the holdings in Amarena, and Devito show, this Court no longer subscribes to its decision in Dupree.
In this case, the prosecuting authority in Ouachita Parish knew or should have known that Texas and Louisiana participate in the Uniform Criminal Extradition Act under which the governor of a participating state, in his or her discretion, may either surrender the accused to the demanding state, or hold the accused until tried and charged, or convicted and punished in the asylum state. See La.C.Cr.P. art. 272, providing:
If a criminal prosecution against the demanded person is pending under the laws of this state, or if he has been convicted in a court of this state but not completely satisfied his sentence, the governor may, in his discretion, surrender him on demand of the executive authority of the other state. The surrender must be pursuant to a re-extradition agreement ...
Cf. Tex.Code Crim. Proc. Art. 51.18, § 19, providing:
If a criminal prosecution instituted against such person under the laws of this State and is still pending, the Governor, in his discretion, either may surrender him on demand of the Executive Authority of another State or hold him until he has been tried and discharged or convicted and punished in this State.
Here, Governor Foster complied with the Uniform Criminal Extradition Act by appending the requisite re-extradition agreement to the State’s extradition demand and, to protect its own interests, the State could not reasonably rely on the form letter sent by the prison authorities at Huntsville as the response of the governing executive authority in Texas |9to Louisiana’s formal demand through its chief executive for the surrender of Bobo. In other words, the State had a duty under Article 579 not only to initiate extradition proceedings in the present case, but also to inform itself of the outcome of the proceedings in the event, as happened, that Texas made the demanded person available to the custody of Louisiana officials. Although Bobo refused to waive extradition after Texas Governor Bush signed the extradition order, by October 12, 2000, when the Texas appellate court affirmed the judgment of the district court ordering his surrender to Louisiana officials, he was no longer beyond the legal processes of the State. Thus, prescription once more began to run against the State on October 12, 2000 when the Texas appellate court affirmed the decision of the district court under the extant extradition warrant issued by the Texas Governor’s Office. This prescriptive period was not thereafter interrupted for more than two years and the arraignment of defendant on December 2, 2002 clearly falls beyond this prescriptive period.
It appears from the record that a breakdown in communication occurred between the Texas and Louisiana authorities when the officials at Huntsville failed to follow the express instructions of the Extradition coordinator in the Governor’s Office and did not notify the Ouachita Parish Sheriffs Office that extradition proceedings had been completed and that Bobo was available for transport to Louisiana although he was still serving his sentence in Texas. Nevertheless, the fact remains that by failing to make any inquiries regarding the extradition proceedings, the State neglected to take reasonable steps to apprise itself that any cause of interruption as a matter of Article 579(A)(1) or (2) had ceased to exist as of October 12, 2000, and that the two-year period for bringing Bobo to trial in Louisiana for his alleged crimes had begun to run anew from that date. The State’s attempt to rely on the form letter sent by the officials at Huntsville, which makes no reference to the extradition proceedings, as an interruption of prescription under Article 579(A)(1) or (2) is unavailing when in the face of a properly executed warrant of extradition signed by the Texas Governor, a final judgment by the Texas courts on the issue, and this court’s overruling of Dwpree and its progeny. Furthermore, problems encountered by the State in extradition or those caused by its own mismanagement cannot be charged to the defendant. Devito, 391 So.2d at 816. As a consequence, the State allowed its prosecution to prescribe while Bobo finished serving his sentence in Texas.
Additionally, this matter is distinguishable from the case in [State v.] Beverly [448 So.2d 792 (La.App. 2 Cir. 1984) ] upon which the State and the lower courts rely. In Beverly, it appeared that the California authorities had declined to extradite defendant until the completion of his sentence. 448 So.2d at 793. In this case, when Governor Bush signed the extradition warrant, Texas made Bobo available to Louisiana although he had not yet finished serving his sentence in the penitentiary at Huntsville.
| ^Therefore, the trial court erred in denying Bobo’s motion to quash the present prosecution filed approximately two months after the period of limitation expired. Although Bobo has shown no prejudice as the result of his continued incarceration on his underlying sentence in Texas for two years after the appellate courts of that state sanctioned his surrender to Louisiana, statutory periods of limitation on the prosecution of eases offer the primary means of enforcing the Sixth Amendment right to a speedy trial “beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

CONCLUSION

Thus, the State’s failure to bring Bobo to trial within two years from the date of his indictment was not because his presence could not be obtained by legal process nor due to events beyond its control. Accordingly, we hold that the State has not met its burden of proving that an interruption of the prescriptive period contained in La.C.Cr.P. art. 578 has occurred.

DECREE

For the foregoing reasons, the judgment of the trial court is therefore reversed, the motion to quash is ordered granted, and defendant is discharged from custody on the present charges.

REVERSED.

WEIMER, J., additionally concurs with reasons.

WEIMER, J.,

additionally concurring.

With all due respect to the dissenting justices, I cannot allow to go unchallenged the statement that the State was somehow reasonably misled. The form letter issued by Texas prison authorities could not reasonably cause the State to believe that the State of Texas had declined to extradite defendant until the completion of his sentence. This form letter does not lift the State’s “heavy burden” of showing that it is excused from trying the accused within the two year period mandated by law.
The form letter on which the dissenting justices rely is a | npre-printed letter which simply acknowledges the awareness of the Texas prison authorities that defendant is wanted in Louisiana and that the Ouachita Sheriffs Office will be notified prior to his release. Absolutely no mention is made of the extradition proceedings. This “acknowledgment” letter, which lists defendant’s name, identifying number, and full-term imprisonment date, in no way indicates that the State could not take defendant into custody at an earlier date. As such, the letter states the obvious: the sheriffs office can take him into custody when the defendant completes his sentence. Nothing in the letter indicates he cannot be taken into custody at an earlier date. Additionally, the letter is addressed to the sheriffs office, not to the district attorney.
Considering the formal request for extradition signed by the governor of Louisiana, the properly executed warrant of extradition signed by the Texas governor, and the final judgment of a Texas court ordering extradition of the defendant, it cannot reasonably be argued that the “form” letter issued from the Texas authorities to the Ouachita Parish Sheriffs Office misled Louisiana authorities into believing that the State of Texas had declined to extradite defendant until the completion of his sentence. The State, having initiated the extradition process, had a duty to follow the process to its conclusion. Nothing in the record indicates the State of Louisiana was prevented from determining the extradition proceeding had concluded with a court order of extradition.
The dissenting justices’ view that the form letter, which makes no mention of the extradition process, conferred some reasonable basis for the State’s complete abdication of its responsibility to follow up on action the State initiated is not supported by the record in this case.

In the present case, the record contains no reply or acknowledgment by Alabama officials, and no indication that formal extradition proceedings were ever initiated. Therefore, in light of Bobo, I find the State failed to demonstrate due diligence. Thus, Defendant’s assignment of error on this issue has merit, and I would reverse Defendant’s conviction and vacate his sentence.

      . In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that the test to be applied in determining whether evidence is sufficient to support a verdict is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

      . Louisiana Code of Criminal Procedure Article 578, reads as follows:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      B. The offense charged shall determine the applicable limitation.

      . The December 1, 2003 minutes read, as follows:
      THE ACCUSED WAS NOT PRESENT IN OPEN COURT AND NOT REPRESENTED BY COUNSEL. THIS MATTER WAS PREVIOUSLY SCHEDULED THIS DATE AND DUE TO THE NONAPPEARANCE OF THE ACCUSED A BENCH WARRANT WAS HEREBY ISSUED FOR THE ARREST OF THE ACCUSED AND THE BOND IS HEREBY ORDERED FORFEITED. THE STATE INTRODUCED THE ENTIRE FILE SHOWING SERVICE ON ALL PARTIES, AS WELL AS THE BOND CONTRACT.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Herwin RIZZO, Herwin A. Sanchez, Reynaldo Benavides, Francisco Gomez, Gerardo Valle, Geovani Aguilera, Gregorio Aguilera and Oscar Castillo v. Tanganeal WARD, Alamo Rental (US), Inc., Alamo Rent-A-Car, LLC, ANC Rental Corporation, Vanguard Car Rental USA, Inc., National Union Fire Insurance Company of Pittsburgh, PA and Progressive Security Insurance Company.
    No. 2009-CA-1325.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2010.

      Ivan A. Orihuela, Riguer Silva, LLC, Kenner, LA, for Plaintiffs/Appellants.
    Adrienne Haines, Casler Bordelon & McGinty, Metairie, LA, for Defendant/Ap-pellee, Progressive Security Insurance Company.
    Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD.
   MAX N. TOBIAS, JR., Judge.

| ¡The plaintiffs, Herwin Rizzo, Reynaldo Benavides, Francisco Gomez, Gerardo Valle, Geovani Aguilera, Gregorio Aguil-era, and Oscar Castillo, appeal the trial court judgment granting a motion for summary judgment in favor of the defendant, Progressive Security Insurance Co. (“Progressive”), based upon the finding that Mr. Rizzo executed a valid waiver of uninsured motorist (UM) coverage. For the reasons set forth below, we affirm.

In connection with an automobile accident, the plaintiffs, Mr. Rizzo and the passengers of his vehicle, filed suit against numerous defendants, including the uninsured driver of the other vehicle and Progressive, the insurer of Mr. Rizzo’s vehicle. Progressive filed a motion for summary judgment asserting that Mr. Rizzo signed a valid waiver of UM coverage.

In support of its motion for summary judgment, Progressive produced a UM waiver form signed by Mr. Rizzo. In opposition, the plaintiffs presented the affidavit of Mr. Rizzo, stating that because he does not speak, read, or write English fluently, he did not fully understand the insurance documents that were presented to him to sign.

LA Stipulation of Facts, signed by the attorneys for both parties, was submitted in connection with the motion for summary judgment, stipulating as follows: (1) Mr. Rizzo signed the UM waiver in the presence of his insurance agent; (2) the insurance agent spoke Spanish as his primary language and spoke with Mr. Rizzo in Spanish at all times during their meeting; and (3) Mr. Rizzo was not under any fraud, duress, or undue influence when he signed the UM waiver.

Progressive’s motion for summary judgment was granted on 18 June 2009. The plaintiffs’ timely appealed.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B. When the movant will not bear the burden of proof at trial, his burden on motion for summary judgment is merely to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim; he is not required to negate all essential elements of the adverse party’s claim, action, or defense. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966C(2). If he fails to do so, no genuine issue of material fact exists and summary judgment is appropriate. Id.

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Ran, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83.

|sIn this appeal, the plaintiffs do not assert that the UM selection form itself was defective. Rather, it is argued that the waiver was invalid because Mr. Rizzo was unable to understand the form, which was printed in English. The plaintiffs admit that the insurance agent spoke with Mr. Rizzo in Spanish at all relevant times; such does not overcome the fact that Mr. Rizzo was unable to read the documents. The plaintiffs rely on Duong v. Salas, 38,-613 (La.App. 2 Cir. 6/23/04), 877 So.2d 269, wherein a UM waiver was found to be invalid because the insured did not fully understand English.

Progressive counters that the Duong case is not applicable because in Duong, the Vietnamese insured, who spoke no English, assisted by his sponsor, who spoke limited English, was spoken to only in English by an insurance agent when he signed the UM waiver. We agree that Duong is distinguishable and thus inapplicable to this case, as Mr. Rizzo was spoken to in his native language by the insurance agent.

La. R.S. 22:1295(l)(a)(ii) provides, in part, that “[a] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” Because the UM coverage statute is to be liberally construed, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4-5 (La.11/29/06), 950 So.2d 544, 547. Thus, a determination of whether Progressive was entitled to summary judgment depends on whether it carried its burden of producing factual support sufficient to establish that it would |4be able to satisfy its evidentiary burden of proof at trial, i.e., by producing a valid UM waiver executed by Mr. Rizzo.

Mr. Rizzo admits that he signed the UM waiver, and no allegations are presented that the form used by Progressive failed to meet the formal requirements of law. Moreover, no allegations exist of duress or misconduct on the part of the insurance agent. In the absence of allegations of fraud, duress, or misconduct of the insurance agent, a person who signs a written document is presumed to know and understand what he is signing. Harris v. Safeway Ins. Co., 81,050, p. 7 (La. App. 2 Cir. 9/23/98), 718 So.2d 619, 623. Because Mr. Rizzo communicated with the insurance agent in Spanish, nothing prevented him from asking questions if he felt he did not understand what he was signing.

Following our de novo review of the record, we find that Progressive produced factual support sufficient to establish that it would be able to satisfy its evidentiary-burden of proof at trial. Furthermore, the plaintiffs presented no evidence to support the argument that Mr. Rizzo was unable to understand what he signed. Therefore, we conclude, as did the trial court, that no genuine issues of material fact are present, and that Progressive is entitled to judgment as a matter of law.

On the record before us, we do not find that the trial court erred in granting summary judgment. Accordingly, the judgment is affirmed.

AFFIRMED.

      . Herwin Rizzo also appears in this record as Herwin A.R. Sanchez.

      . La. R.S. 22:1295(l)(a)(ii) was formerly La. R.S. 22:680(l)(a)(ii).


author: EDWIN A. LOMBARD, Judge.

text:
    Pamela FORD v. Willie FORD III.
    No. 2009-CA-1494.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2010.
    Bernadette D’Souza, Mark A. Moreau, Southeast Louisiana Legal Services, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,The indigent plaintiff, Pamela Ford, appeals the trial court judgment assessing her court costs in connection with these divorce proceedings. For the reasons set forth below, we reverse.

Relevant Procedural History

Ms. Ford filed a petition for divorce, which included a request to proceed in forma pauperis. The trial court granted her indigent status pursuant to La.Code Civ. Proc. arts. 5181, et seq. The record does not reflect that Ms. Ford’s right to proceed in forma pauperis was traversed or rescinded as provided by La.Code Civ. Proc. art. 5184.

Pursuant to Ms. Ford’s motion for default, the trial court confirmed the default, rendering a judgment of divorce in favor of Ms. Ford and assessed her court costs. Ms. Ford’s timely appeal followed. On appeal, Ms. Ford asserts that the trial court erred in assessing her court costs in the divorce proceedings in light of her pauper status. In her second assignment of error, Ms. Ford asserts that the trial court erred if it also assessed her costs in connection with her prior application for a protective order against domestic violence. The record reflects that a protective order was granted in favor of Ms. Ford on August 4, 2009, but costs 12were not assessed to either party. The record also reflects that no appeal was taken from the August 4, 2009 judgment.

Discussion

Regarding court costs and the indigent litigant, La.Code Civ. Proc. art. 5186 provides, in pertinent part:

An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. (Emphasis added).

As a general matter, La.Code Civ. Proc. art. 1920 gives the trial court equitable discretion to tax costs against any party. Specifically, Article 1920 states, in part: “Except as other provided by law, the court may render judgment for costs, or any part thereof, against any part, as it may consider equitable.” (Emphasis added.)

It is well established that the Article 1920 discretion is limited in a pauper case by the more specific provision found in La.Code Civ. Proc. art. 5186, which mandates the assessment of court costs to the party against whom judgment is rendered. Snowton v. Snowton, 2009-0600, p. 2 (La. App. 4 Cir. 9/30/09), 22 So.3d 1111, 1112; Smith v. Smith, 99-0365, pp. 1-2, (La.App. 4 Cir. 5/5/99), 733 So.2d 729, 730. Moreover, pursuant to La.Code Civ. Proc. arts. 1701 and 1702, a judgment confirming a default is entered against the party who fails to answer the petition and citation.

In the present case, the divorce judgment entered on Ms. Ford’s motion to confirm the default was rendered against Willie Ford, III; thus, Willie Ford, III should have been condemned to pay all costs of the proceedings. See Snowton, | .,2009-0600, p. 3, 22 So.3d at 1113. Because the August 4, 2009, judgment granting a protective order in favor of Ms. Ford was not appealed to this Court, we decline to address the argument presented in her second assignment of error.

Conclusion

We reverse that portion of the divorce judgment assessing costs against Ms. Ford and render judgment against Willie Ford, III, assessing him with all court costs associated with these proceedings, to be paid within 60 days.

REVERSED IN PART; RENDERED.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Nolan ESTOPINAL, et al. v. PARISH OF ST. BERNARD, et al.
    No. 2009-CA-1382.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2010.
    Sidney D. Torres III, Roberta L. Burns, David C. Jarrell, Law Offices of Sidney D. Torres, III, APLC, Chalmette, LA, for Michael Benedic, David Benedic, and Jeffery Benedic.
    Daniel L. Dysart, Paul A. Tabary III, Dysart & Tabary, L.L.P., Chalmette, LA, and John T. Culotta, Darren A. Patín, Hailey McNamara Hall Larmann & Pa-pale, LLP, Metairie, LA, for Louisiana Citizens Property Insurance Corporation.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

11 Plaintiffs/appellants, Michael Benedic, David Benedic, and Jeffrey Benedic, filed suit against Louisiana Citizens Property Insurance Corporation (“Louisiana Citizens”) claiming their house, located at 2716 Palmetto Street, Chalmette, Louisiana, was wrongfully demolished pursuant to an ordinance governing the Housing Code for the Parish of St. Bernard. Plaintiffs allege that the demolition was a loss that was covered by their “all risk” policy of hazard insurance provided by Louisiana Citizens. Louisiana Citizens argues that the policy issued by it contains an exclusion, which precludes coverage for losses caused directly or indirectly by enforcement of a law or ordinance regulating the demolition of property. Louisiana Citizens filed an exception of no cause of action, which was granted and signed on September 2, 2009. Plaintiffs now appeal. For the following reasons, we affirm.

The only issue on appeal is whether the trial court erred in its finding that Louisiana Citizens’ governmental enforcement exclusion precludes coverage for damages arising out of the demolition of the property. On appeal, Plaintiffs argue that the exclusionary provision at issue is inapplicable because the ordinance is invalid on statutory grounds and/or is unconstitutional.

[ 2An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Hebert v. Webre, 08-0060, p. 4 (La.5/21/08), 982 So.2d 770, 773. Language in an insurance policy that is clear, expresses the intent of the parties, and does not violate a statute or public policy, must be enforced as written. La. C.C. arts. 2045-2057. If the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Weintraub v. State Farm, and Cas. Co., 08-0351, p. 3 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1197. The insurer bears the burden of proving the applicability of policy exclusions. Tsilimos v. Half Marine And Indus. Supplies, Inc., 07-0998, p. 2-3 (La.App. 4 Cir. 1/16/08), 976 So.2d 246, 248.

The exclusionary clause at issue provides:

A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
1. Ordinance or Law, meaning enforcement of any ordinance or law regulating the use, construction, repair, or demolition of a building or other structure, unless specifically provided under this policy.

We do not find that the language of the policy in this case is ambiguous. Because the language is not ambiguous, it is not subject to interpretation, and we must enforce it as written.

Louisiana Citizens cite to a Second Circuit court decision, Sweeney v. City of Shreveport, 584 So.2d 1248 (La.App. 2 Cir. 8/21/91) for the proposition that “it does not matter, for purposes of the exclusion, whether the enforcing agencies or hits agents ‘intended’ to demolish the aforesaid property, made a mistake in doing so, misinterpreted and/or misapplied the ordinance to the subject property, or even attempted to enforce an arguably unconstitutional edict; if the damages sustained were ‘directly or indirectly’ related to the enforcement of an ordinance or law pertaining to demolition activities, the exclusion will apply.” In Sweeney v. City of Shreveport, the plaintiff filed suit against the City of Shreveport and her homeowner’s insurer (Vangard-Underwriters Insurance Company), alleging damages resulting from the demolition of her home. Plaintiffs’ policy of homeowners insurance contained a coverage exclusion for losses caused directly or indirectly by “... the enforcement of any ordinance or law regulating the use, construction, repair or demolition of property unless specifically provided under this policy.” The defendant, Vanguard, filed a motion for summary judgment, asserting that coverage did not exist by virtue of said policy exclusion, and in light of the fact that the demolition activities were performed by the City of Shreveport pursuant to their enforcement of a local ordinance. The trial court agreed, ruling that, irrespective of the City of Shreveport’s negligence in demolishing the plaintiffs home, it was nevertheless demolished pursuant to the enforcement of a city ordinance, and thus the Vanguard policy exclusion applied. The Second Circuit Court of Appeal affirmed the decision of the trial court, and stated:

A plain reading of the exclusion gives no indication that the procedure used to enforce the ordinance must be flawless in every respect. It simply states that the policy does not cover loss caused directly or indirectly by enforcement of any ordinance regulating the demolition of property. The record is completely clear that Mrs. Sweeny’s house was condemned and demolished pursuant to the enforcement of an ordinance. By its plain terms, the exclusion applies.

Id. at 1251.

|4Although the Sweeney decision is not binding on this Court, we find it persuasive in determining that Louisiana Citizens’ exclusion precludes coverage for losses caused directly or indirectly by enforcement of a law or ordinance regulating the demolition of property. As such, we find that the trial court correctly granted Louisiana Citizens’ exception of no cause of action and dismissed it with prejudice.

For these reasons, we hereby AFFIRM the judgment of the trial court.

AFFIRMED.


author: MICHAEL E. KIRBY, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Herbert JAMES.
    No. 2009-KA-1188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

\,STATEMENT OF CASE

The state charged appellant, Herbert James, with two counts of sexual battery in violation of La. R.S. 14:43.1. He entered a not guilty plea and waived motions. On October 29, 2008, the district court denied appellant’s motion to quash. He then proceeded to trial before the judge and was found guilty as charged. His subsequent motion for new trial was denied and, after waiving delays, appellant was sentenced on each count to serve nine years at hard labor without benefit of parole, to run concurrently. His motion for appeal was granted.

Because we find the evidence at trial was sufficient to warrant a conviction and that the trial was timely within the parameters of La.C.Cr.P. art. 578 et seq., we affirm appellant’s conviction and sentence.

STATEMENT OF FACT

The female victim was eleven years old when the alleged sexual batteries occurred. Appellant was her mother’s boyfriend; they had dated for approximately eight months. The victim’s mother worked at a local department store and was often unable to pick her children up from school. When this happened, appellant would sometimes pick the children up, fix them dinner, and help with their homework.

The first count of sexual battery is alleged to have occurred between March and September of 2003 at a home on Bunker Hill Road. The victim lived there with her mother, grandmother, and siblings. Appellant did not live with the family. On the day of the first incident appellant picked the victim and her brothers up from school. When they arrived home, appellant told the boys to take a nap. The victim went into her mother’s bedroom where her infant sister was sleeping, and she watched television. Appellant was also in the bedroom, lying on the bed. Appellant called the victim over to her and pulled his “stuff’ out by unzipping his pants. He then proceeded to put baby oil on his penis, grabbed the victim’s hand, placed her hand on his penis, and made her hand move. Afterwards, the victim left and went to the bathroom.

The second incident is alleged to have occurred on November 10, 2003 and happened at the family’s new home. After arriving home from school, the victim took a bath. Appellant told her to put on a skirt and she complied by putting on a skirt, shirt, and underwear. The victim then went into the living room, where her sister was sleeping. Appellant was lying on the sofa. He called her to him, picked |sher up and placed her next to him on the sofa. Appellant told her to take off her underwear, and he pulled his pants and underwear down. He tried to put his penis inside of her but had only placed the tip next to her when the phone rang and he got up. During cross-examination, the victim stated that appellant also rubbed her chest. She denied wearing a nightgown.

The next day the victim told her grandmother and cousin. The grandmother took her to the social worker at school. The grandmother and social worker accompanied her to visit a doctor.

Thereafter, the victim was taken to a child advocacy center on December 12, 2003, where she was interviewed for forty-five minutes by Joan Williams. The tape was played during trial.

Appellant testified that about the same time as the second incident occurred, he was called by staff at the victim’s school. Her brothers were at school, but the staff was unable to locate the victim. The school later called him and told him that the victim had been found. She was supposedly in the boy’s bathroom with some boy.

Appellant testified that he specifically remembered November 10, 2003. He said the victim’s mother was home that day and that the two of them were watching a movie. The victim later joined them. Appellant adamantly denied all of the allegations.

ERRORS PATENT

None.

\ .ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, appellant argues that the evidence was insufficient to sustain a conviction because the inconsistencies between the victim’s statements and her testimony at trial were so great that it rendered her testimony incredible. The statements to which he refers were those made by the victim to four assistant district attorneys.

Appellant’s argument is not as to the proof of the particular elements of the offense. Indeed, the victim’s testimony at trial supports the convictions for sexual battery. Rather, appellant argues that the victim’s testimony was not credible because of inconsistencies between her earlier statements and her testimony at trial. He notes seven inconsistencies in particular: (1) whether she was wearing a skirt or a nightgown when he attempted to penetrate her; (2) whether he made her lie down with him or get on top of him when he attempted to penetrate her; (3) whether or not he actually penetrated her; (4) whether he took his pants off or just pulled them down; (5) whether there was a pistol present; (6) whether he entered the mother’s bedroom before or after she entered; and (7) whether she saw her brother outside her mother’s bedroom.

Conflicting statements as to factual matters relate to the weight of the evidence, not its sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984). In this case the |5trial court’s credibility determination is not contrary to the evidence especially when compared with the following two cases.

The first case, State v. Galindo, 2006-1090 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, writ denied, 2007-2145 (La.3/24/08), 977 So.2d 952, involved an eight-year old victim, E.M. She and her' friend, M.M., accused the defendant of touching E.M. inappropriately; M.M. initially alleged that the defendant blew a raspberry on E.M.’s bare buttocks whereas E.M. alleged that he touched her vagina on several occasions. E.M. later adopted the story told by M.M.; however, both girls recanted their raspberry story to prosecutors the day before trial. However, at trial the girls reverted to their pre-recantation raspberry story. In finding that the evidence was sufficient, this court stated:

The strongest support for the appellant’s argument that the evidence was insufficient was the admissions of M.M. and E.M. that, on the day before the trial, they told the prosecutors that the defendant had never blown a raspberry on E.M.’s butt. The girls then indicated at trial that he had. However, the girls were questioned at length about the discrepancies in their statements to the prosecutors and their trial testimony. The jury was able to observe the demeanor of the girls, as well as view the videotaped statement which E.M. had given, and apparently found her credible. Contrary to the appellant’s argument, the victim’s testimony was not so suspect as to render it invalid. Thus, viewing the evidence in the light most favorable to the prosecution, the jury could legitimately find beyond a reasonable doubt that the appellant committed the crime of sexual battery.

Id. at 11-12, 968 So.2d at 1111.

In the second case, State v. Crockett, 583 So.2d 593 (La.App. 4 Cir.1991), the victim testified at the defendant’s first trial that he had vaginal intercourse with her for two minutes whereas at his second trial, she testified that he never entered either her vagina or anus because he was unable to | (¡achieve or maintain an erection. Other inconsistencies also existed between her statement to police and her testimony at the two trials. Despite this, this court held that “these contradictions and inconsistencies do not rise to a level of incredibility. Any rational trier of fact could have believed her testimony given at this trial.”

Like Galindo, the victim here was questioned at length about the inconsistencies in her statements to the prosecutors and her trial testimony. The judge was able to observe the demeanor of the victim during trial and during her videotaped statement. Obviously, he found her credible. Also, her statements to two of the four prosecutors were relatively consistent with her testimony at trial including the fact that she was wearing a skirt. Also, during her interview with the child advocacy counsel- or, she stated that she was wearing a skirt. The victim was consistent when describing the actual acts insofar as appellant touched her vagina with his penis and that she was made to rub baby oil on his penis. She testified at trial that appellant always carried a gun with him. The other discrepancies as to whether his pants were completely removed, whether he entered the bedroom first, or whether she saw her brother are inconsequential. Thus, the victim’s testimony was not as incredible as appellant argues.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757, 758 (La.App. 4 Cir.1991). Viewed in this light, the evidence here was sufficient to support appellant’s convictions, and this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment of error, appellant asserts that the district court erred by denying his motion to quash because the two-year period established by La.C.Cr.P. art. 578 had expired.

Pursuant to La.C.Cr.P. art. 578, the state had two years from the institution of prosecution within which to bring the defendant to trial. However, the time periods listed in article 578 may be suspended by the defendant’s filing of a motion to quash or other preliminary plea. The suspension lasts until the court rules on the plea but in any case the state has no less than one year from the ruling within which to bring the defendant to trial. La.C.Cr.P. art. 580. These time periods may also be interrupted, C.Cr.P. art. 579, in which case the time limitations of article 578 begin to run anew once the cause of the interruption ceases to exist.

Here, the original bill of information was filed on August 20, 2004 under case number 451-299 but on June 13, 2005, when the trial court denied a state continuance, the state dismissed all charges. The state reinstituted the charges under case number 460-404 on June 15, 2005. The district court granted the defense motion to quash on June 28, 2005, but the state appealed and this court reversed, finding that appellant waived his right to an answer to his motion for a bill of particulars and that his right to a speedy trial had not been violated. State v. James, unpub., 2006-0801 (La.App. 4 Cir. 1/24/07), 948 So.2d 403. Appellant did not seek ^supervisory review from the Louisiana Supreme Court. Thus, the one-year period of article 580 did not begin to run until the decision became final on February 7, 2007. Thus, pursuant to La.C.Cr.P. art. 580, the state had until February 7, 2008 to bring appellant to trial provided that no other suspensions or interruptions occurred.

Following the reversal, trial was not scheduled until December 5, 2007. On that day, the state moved to continue the trial, and it was reset for February 19, 2008 without objection. The defense moved to continue the trial on February 13, 2008 until March 13, 2008 after filing a motion for production of the audio tapes and transcripts associated with those tapes. On that day, the state’s motion to continue was denied, and a nolle prosequi was entered.

The charges were reinstituted in the instant case on June 6, 2008. On July 22 and 31, 2008, trial was continued at the request of the state. Appellant’s trial was continued on defense motion on September 11 and October 27, 2008 because defense counsel failed to appear. On October 29, 2008, the defense filed a motion to quash, which the court denied. Thereafter, appellant was subsequently found guilty as charged.

Importantly, the state’s continuance on December 5, 2007 was well before the one year was set to expire on February 7, 2008; trial was rescheduled for February 19, 2008 without any objection by the defense. Then on February 13, 2008, the defense filed a discovery motion and moved that the trial be continued until March 13, 2008. Thus, pursuant to article 580, the state at this point had at least until February 13, 2009 to commence trial. Thereafter, defense continuations 19were granted on September 11 and October 27, 2008 bringing the latest trial commencement date to October 27, 2009. In sum, appellant’s trial on October 29, 2008 was timely, and the district court properly denied the motion to quash. This assignment of error is without merit.

CONCLUSION

For the reasons stated above we affirm the appellant’s conviction and sentence.

AFFIRMED.

BELSOME, J., concurred with reasons.

BELSOME, J.,

concurs with reasons.

| lAlthough I concur in the result, I disagree with the majority’s determination that the scenario in the instant case is analogous to State v. Galindo. In Galin-do, the victim and witness both admitted at trial that their statements regarding the alleged criminal behavior were coached and subsequently recanted. State v. Galindo, 2006-1090 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, 1120 (Belsome, J., dissenting). In sharp contrast to the facts and circumstances in Galindo, the victim in the instant case testified consistently as to the actual criminal acts; the discrepancies in the victim’s statements are all inconsequential. The factfinder weighed these discrepancies in light of all of the evidence and concluded that her testimony was credible. I respectfully concur.

      . La. R.S. 14:43.1.
      Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person ... has not yet attained fifteen years of age and is at lease three years younger than the offender:
      (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.
      (2) The touching of the anus or genitals of the offender by the victim using any instrumentality of any part of the body of the victim.

      . Her name is not used in this opinion to protect her privacy.

      . The defendant was convicted of forcible rape. Because penetration never occurred, this court reversed the conviction and entered a conviction to the lesser included offense of attempted forcible rape.

      . The decision became final upon appellant's failure to apply for a rehearing in this court within fourteen days of the reversal. See State v. Brocato, 99-1620 (La.App. 4 Cir. 9/15/99), 744 So.2d 178.