author: Judge Roland L. Belsome

text:
    Donald PONSETI, Individually and as Administrator and Succession Representative of the Succession of Marvin Ponseti and Theodore Ponseti, et al. v. TOURO INFIRMARY, GHI Insurance Company, Nurse Jane Doe, Doctor John Doe and XYZ Insurance Company
    NO. 2018-CA-0109
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 5, 2018
    Michael C. Ginart, Jr., Joyce D. Young, Nicholas N.S. Cusimano, LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES, 2114 Paris Road, Chalmette, LA 70043, COUNSEL FOR PLAINTIFF/APPELLEE
    Franklin D. Beahm, Christopher G. Otten, BEAHM & GREEN, LLC, 145 Robert E. Lee Boulevard, Suite 408, New Orleans, LA 70124-2552, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Roland L. Belsome

In this survival action, the Defendants, Touro Infirmary (Touro) and Healthcare Casualty Insurance, appeal the trial court's judgment in favor of the Plaintiff, Donald Ponseti. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On Saturday, August 27, 2005, Mr. Marvin Ponseti, who was seventy-five years old, was admitted to Touro due to a low-grade fever and complaints concerning an infected left leg. Mr. Ponseti was initially admitted as a non-urgent (triage level three) patient. Subsequently, on Sunday, August 28, 2005, Mr. Ponseti went into atrial fibrillation and was treated with medication. After diagnosing the heart issue, Mr. Ponseti was transferred to the telemetry unit on the sixth floor of the hospital. However, as a result of the medication, his heart returned to normal sinus rhythm before he arrived to the telemetry unit.

As a result of Hurricane Katrina, Touro lost power at approximately 3:00 a.m. on Monday, August 29, 2005. Shortly after, Touro lost water pressure. As a result of the heat and deteriorating conditions, management made the decision to evacuate the hospital.

On the morning of Wednesday, August 31, 2005, Mr. Ponseti's temperature began to gradually rise. His last chart note at approximately 9:35 a.m. reflected that his fever was 101.4. On Wednesday afternoon, Mr. Ponseti was brought outside to the third floor parking garage for evacuation. While waiting, Mr. Ponseti's declining condition was presented to Dr. Royce Yount, his treating cardiologist. After assessing Mr. Ponseti, Dr. Yount immediately started a code for ventricular fibrillation. Mr. Ponseti was brought back inside into the third floor Intensive Care Unit for continued code treatment. However, the treatment was unsuccessful and Mr. Ponseti expired.

As a result of Mr. Ponseti's death, the Plaintiff, Donald Ponseti, filed a Petition for Damages asserting survival claims based on premises liability. The Petition for Damages was subsequently amended to include certain medical malpractice claims. At that time, the Defendants filed an Exception of Prematurity on the medical malpractice claims, which was granted by the trial court. After a medical review panel ruled in favor of the Defendants, the trial court granted the Defendants motion for summary judgment and dismissed the medical malpractice claims.

The case continued to trial on the premises liability claims. After a two-day bench trial, the trial court rendered a judgment in favor of the Plaintiff in the amount of $50,000.00. The Defendants appealed, and the Plaintiff filed an answer to the appeal.

DISCUSSION

On appeal, the Defendants assert two assignments of error alleging that the evidence was insufficient to support the trial court's award for survival damages. Conversely, in his answer to the appeal, the Plaintiff argues for an increase in the damages award.

SUFFICIENCY OF THE EVIDENCE

In their assignments of error, the Defendants argue that the Plaintiff failed to demonstrate two critical elements required in a survival action based in negligence: a breach of the duty of care, and damages. As it relates to the sufficiency of the evidence, the fundamental principle of tort liability in Louisiana is that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. art. 2315. In any negligence action, including a premises liability action, the plaintiff has the burden of proving by a preponderance of the evidence the following five elements: 1) duty of care owed by defendant to plaintiff; 2) breach of that duty by defendant; 3) cause-in-fact; 4) legal causation; and 5) damages to plaintiff caused by that breach. Zimko v. American Cyanamid , 03-0658, p. 21 (La. App. 4 Cir. 6/8/05), 905 So.2d 465, 481-82.

DUTY/BREACH

Concerning the duty and breach elements, the Defendants do not dispute that Touro had a duty to provide adequate ventilation for its patients, see Falcone v. Touro Infirmary , 13-0015, 13-0016, pp. 6-7 (La. App. 4 Cir. 11/6/13), 129 So.3d 641, 646. However, they argue that, according to their expert, Touro's duty was to provide "non-toxic, breathable air." They further maintain that since Mr. Ponseti was brought out to the parking deck in stable condition, the Defendants met their duty to provide breathable air. Therefore, they conclude the evidence does not establish a breach of duty to provide adequate ventilation. We disagree.

"Duty is a question of law; the inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty." Falcone , 13-0016, p. 5, 129 So.3d at 645. Despite the expert testimony at trial, this Court has already held that Touro was required to provide adequate ventilation, which meant "air that is being filtered or moving." Falcone , 13-0016, p. 6, 129 So.3d at 646 n.3 (citing Serou v. Touro Infirmary , 12-0089, p. 26 (La. App. 4 Cir. 1/9/13), 105 So.3d 1068, 1088 ). In addition, "ventilation" is defined as the "circulation of air" or "a system or means of providing fresh air." VENTILATION, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/ventilation (last visited November 7, 2018).

Having concluded that Touro had a duty to provide circulating air, we turn to the issue of whether the Plaintiff established a breach of duty. Here, the trial court was presented with conflicting views of the evidence. In particular, Elysha Oriol testified that she was an oncology nurse stationed in the telemetry unit during the hurricane. She explained that when the building lost power, the loss of air conditioning was apparent after a couple of hours. She further described the heat as "oppressively hot and stagnant." She further testified that she did not see any fans, open windows or spot coolers in the telemetry unit. Significantly, she explained that she did not feel any type of movement in the air. Likewise, Robin Caceres, Mr. Ponseti's treating nurse, testified that there was no fresh air and it "felt like there wasn't air moving." To the contrary, Dr. Yount and Dierdre DeGruy, a nurse who was assisting Dr. Yount, testified that they saw fans and spot coolers throughout the building; however, Ms. DeGruy did not specifically recall seeing spot coolers on the sixth floor.

Giving weight to the treating nurses' testimonies that there was no fresh or circulating air in the telemetry unit, the trial court found that Touro breached its duty to provide adequate ventilation. Questions of fact as determined by the factfinder, be it a jury or a judge, are reviewed under the manifest error or clearly wrong standard of review. Falcone , 13-0015, p. 4, 129 So.3d at 645. When there are two permissible views of the evidence, the trier of fact's choice between them cannot be manifestly erroneous. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Accordingly, we do not find that the trial court was manifestly erroneous in finding that Touro breached its duty to provide adequate ventilation to Mr. Ponseti.

SURVIVAL DAMAGES AND QUANTUM

Turning to the damages element, both the Defendants and the Plaintiff take issue with the survival damage award. While the Defendants argue that the evidence was not sufficient to support the award of survival damages, the Plaintiff argues that award should be increased.

The Defendants maintain that there was no evidence presented to establish that Mr. Ponseti's experienced pain and suffering prior to his death. "Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. A jury may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise." Thompson v. Crawford , 17-1400, p. 1 (La. 11/13/17), 229 So.3d 451, 452 (citation omitted). In determining survival damages, the factfinder should consider the severity and duration of any pain and suffering or any pre-impact fear experienced by the deceased up to the moment of death. Maldonado v. Kiewit Louisiana Co. , 12-1868, p. 37 (La.App. 1 Cir. 5/30/14), 152 So.3d 909, 936 (citation omitted). Survival damages are awarded "if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable." Leary v. State Farm Mut. Auto. Ins. Co. , 07-1184, pp. 3-4 (La. App. 3d Cir. 3/5/08), 978 So.2d 1094, 1098 (quotation omitted).

However, where there is no indication that a decedent consciously suffered, an award for pre-death physical pain and suffering should be denied. Maldonado , 12-1868, pp. 37-38, 152 So.3d at 936 (citation omitted). The question of whether the decedent actually consciously suffered is a factual issue, governed by the manifest error-clearly wrong standard. Id.

In this case, the evidence revealed that after the hospital lost power and water pressure, it became unsanitary and unbearably hot. The toilets were backed up and the patients could not bathe or wash their hands. Nurse Oriol testified that the patients were sweating and miserable. They were complaining of being hot and she provided ice packs when available.

Nurse Caceres remembered changing sheets because the patients' beds were drenched in sweat. She testified that the circumstances were "beyond everybody being anxious and worried." She further testified that she was terrified and felt unsafe. In particular, she observed fires from the windows, people looting, and people walking around outside with baseball bats and pipes. She also started seeing people she did not recognize in the hospital.

After his death, Dr. Samantha Huber, M.D. performed the autopsy on Mr. Ponseti. She concluded that Mr. Ponseti's cause of death was cardiac arrhythmia caused by the stress of Hurricane Katrina. Dr. Jim Hirschman, an expert in internal medicine with a specialty in cardiology, testified that the stress to Mr. Ponseti's body, including the heat and sweating, the altered nutrition and inadequate hydration promoted a new atrial fibrillation, which proceeded to cause ventricular fibrillation and death. Considering the physical and mental stresses of the hospital environment post-Katrina, we do not find the trial court was manifestly erroneous in awarding survival damages for Mr. Ponseti's pain, suffering, fear and mental anguish during this ordeal before his death. See Leary , supra .

Turning to quantum, the issue is whether the trial court abused its discretion in awarding the Plaintiff only $50,000.00 in survival damages for the two-and-a-half days he suffered prior to his death. When rendering the award, the trial court reasoned that "there was very little evidence of pain and suffering."

"In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury." La. C.C. art. 2324.1. According to the Supreme Court:

The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact." Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1260 (La. 1993). Moreover, "before a Court of Appeal can disturb an award made by a [fact finder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the [trier of fact] abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion of that court."

Wainwright v. Fontenot , 00-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74 (quotation omitted).

In light of the limited evidence of pain and suffering produced at trial, we cannot say that the survival damages award is unreasonably low. Accordingly, we find no abuse of discretion in the trial court's survival damages award of $50,000.00 for Mr. Ponseti's pain and suffering.

CONCLUSION

For the foregoing reasons, the trial court's judgment awarding the Plaintiff survival damages is affirmed.

AFFIRMED

BARTHOLOMEW-WOODS, J. DISSENTS, IN PART, WITH REASONS.

BARTHOLOMEW-WOODS, J. DISSENTS, IN PART, WITH REASONS.

I respectfully agree with the majority's opinion to affirm the trial court's judgment in favor of Plaintiffs-Appellees. Presently, the trial court did award damages. However, Plaintiffs-Appellees argue that the trial court's award of $50,000.00 is too low; I agree. I would increase the amount of survival damages awarded to Plaintiffs-Appellees. The majority believes that the trial court did not abuse its discretion when it awarded such a minimal amount of damages; I disagree.

The Louisiana Supreme Court has reasoned,

Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co. , 330 So.2d 891 (La. 1976). A jury may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise. Leary v. State Farm Mut. Auto. Ins. Co. , 07-1184 (La. App. 3 Cir. 3/5/08), 978 So.2d 1094, 1098, writ denied , 08-0727 (La. 5/30/08), 983 So.2d 900 ; Etcher v. Neumann , 00-2282 (La. App. 1 Cir. 12/28/01), 806 So.2d 826, 840, writ denied , 02-0905 (La. 5/31/02), 817 So.2d 105 ; Patrick v. Employers Mut. Cas. Co. , 99-94 (La. App. 3 Cir. 8/11/99), 745 So.2d 641, 652, writ denied , 99-2661 (La. 11/24/99), 750 So.2d 987.

Thompson v. Crawford , 2017-1400, pp. 1-2 (La. 11/13/17), 229 So.3d 451, 452. Plaintiffs-Appellees argue that the trial court relied on Juanita James v. Manuel Jackson, 2004-0912 (La.App. 4 Cir. 3/2/05) 898 So.2d 596, in determining survival damages. In Juanita James , the decedent passed away within an hour of the time he began to experience symptoms and the court awarded $60,000.00. By contrast, Mr. Ponseti endured the hostile and oppressive conditions at Touro from August 29, 2005 at 3:00 a.m. until the afternoon of August 31, 2005. The majority opinion points out that both Nurse Oriol and Nurse Caceres testified that, in the hours after Touro lost electricity, the heat was oppressive and hot air stagnant; in addition, Touro also lost water pressure.

Dr. Samantha Huber, who performed an autopsy on Mr. Ponseti, testified that his death was caused by cardiac arrhythmia, which was triggered by the increasing heat, lack of water, and stress associated with Hurricane Katrina. In his affidavit, Dr. Jim C. Hirschman, an internal medicine physician with a cardiology specialty, stated that "sweltering heat, lack of ventilation, lack of electricity" and "conditions and hostile environment at Touro during Hurricane Katrina made it impossible for Mr. Ponseti to fight infection" and "caused and contributed to Mr. Ponseti's ultimate demise."

From the testimony provided in the record, we know (1) that conditions at Touro during Hurricane Katrina caused Mr. Ponseti's death and (2) the duration of time that Mr. Ponseti experienced and suffered in those conditions. Although the trial court is granted vast discretion, I find that the trial court abused its discretion by relying on Juanita James , a case factually inapposite to this matter. Therefore, the amount of the survival damages awarded by the trial court was woefully insufficient, and should be increased. In Robinette v. Lafon Nursing Facility of the Holy Family , 2015-1363 (La. App. 4 Cir. 6/22/17), 223 So.3d 68, this Court affirmed, in pertinent part, that evidence was sufficient to establish that the decedent, who experienced Hurricane Katrina and its immediate aftermath as a resident of Lafon nursing home, died as a result of heat stroke and dehydration caused by exposure to extreme heat; and that wrongful death and survival damages in the amount of $1 million was not excessive. Like Mr. Ponseti, the decedent experienced Hurricane Katrina and the resulting lack of electricity and running water and extreme heat; both deaths were caused by these conditions.

Further, Plaintiffs-Appellees assert, and I agree, that the following cases are more in line with the pain and suffering endured by Mr. Ponseti:

In Ruttley v. Lee, [19]99-1130 (La. App. 5th Cir. 5/17/00), 761 So.2d 777, a witness saw a young woman breathe only lightly and noted that she had a faint pulse after an automobile accident. The young woman then died at the scene. Her family was awarded $150,000.00 in survival damages.
In Estate of Hickerson v. Zimmerman, 2002-1195 (La. App. 4th Cir. 7/16/03), 853 So.2d 55, a pedestrian, killed by an automobile lived only so briefly that the autopsy report had to be used to determine that he had survived for some period of time after the accident, was awarded $400,000.00 in general damages.
In Strawder v. Zapata Haynie Corp., [19]94-453(La. App. 3rd Cir. 11/2/94), 649 So.2d 554, two (2) seamen who drowned only twenty to thirty minutes after an explosion were awarded $500,000.00 each in survival damages.
In Wingfield v. State, DOTD, 2001-2668 (La. App. 1st Cir. 11/8/02), 835 So.2d 785, a sixty (60) year old man who was in an automobile accident suffered three hours before he died. The jury awarded him $800,000.00 in survival damage. The trial court granted a JNOV reducing the survival damages to $500,000.00. However, the First Circuit reinstated the $800,000.00 survival damage award.

For the aforementioned reasons, I dissent, in part, with the majority's opinion, and would increase the survival damages award.

      Dr. Royce Yount, an expert in cardiology and Mr. Ponseti's treating physician, testified that atrial fibrillation is an abnormal heart rhythm, which is common in older patients.

      Dr. Yount testified that vetricular fibrillation, as opposed to atrial fibrillation, can be fatal if not treated immediately.

      Donald Ponseti was Mr. Ponseti's cousin.

      Initially, several other heirs were included as plaintiffs in the Petition for Damages. The petition also included wrongful death claims. However, by consent judgment on a motion to dismiss, all of the other plaintiffs except for Donald Ponseti, in his capacity as administrator and succession representative of Mr. Ponseti's succession, were dismissed from the lawsuit. In addition, the wrongful death claims were also dismissed.

      Leslie Hirsch, Touro's Chief Executive Officer, was named as an additional defendant in the amended petition; however, he was later dismissed from the suit.

      Notably, "[t]here is a distinction between refrigerated or chilled air and conditioned or moved air." Falcone , id.

      Scott Landry, the Director of Facility Services, also testified that there were spot coolers and fans throughout the hospital.

      While the Plaintiff cites to numerous cases to support an increase in the survival damage award, an examination of similar cases is unnecessary here. See Robinette v. Lafon Nursing Facility of the Holy Family , 15-1363, p. 27 (La. App. 4 Cir. 6/22/17), 223 So.3d 68, 86 (examination of awards in similar cases is only appropriate after an abuse of discretion is established).

      In its oral reasons for judgment, the trial court explained its reliance on Juanita James . The Louisiana Supreme Court explained that trial court's reasons for judgment, while it does not form part of the judgment, serves as "an explication of the trial court's determinations." Wooley v. Lucksinger , 2009-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572.

      The decent in Robinette died on Thursday, September 1, 2005.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    STATE of Louisiana v. Terry EARL
    NO. 2018-KA-0976
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 5, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119 COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    JAMES MILLER, Orleans Public Defender, 2600 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet )
   Judge Daniel L. Dysart

The State of Louisiana (the "State") appeals a district court judgment granting a motion to quash in favor of defendant, Terry Earl. For the reasons set more fully herein, this Court lacks jurisdiction over this appeal. We, therefore, dismiss this appeal without prejudice and transfer this matter to the Appellate Division of the Criminal District Court for the Parish of Orleans.

FACTS AND PROCEDURAL HISTORY

The defendant, Terry Earl, was charged by bill of information dated February 7, 2017 on two counts. Count one of the bill of information charged Ms. Earl with simple criminal damage to two tires belonging to Vincent Earl, with the damage amounting to less than five hundred dollars. Ms. Earl entered a plea of not guilty and, on August 15, 2018, she filed a motion to quash count one of the bill of information. The district court granted the motion on September 24, 2018. The State appealed this ruling on October 11, 2018.

DISCUSSION

The Louisiana Constitution confers jurisdiction to the appellate courts as follows:

Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of.... (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article.

La. Const. Art. 5, § 10 (A).

La. C.Cr. P. art 779 provides:

A. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

It is clear that the charge of simple criminal damage to property, a violation of La. R.S. 14:56 B(1) is not a case "triable by a jury." Under La. R.S. 14:56 B(1), "[w]hoever commits the crime of simple criminal damage to property where the damage is less than one thousand dollars shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both." La. R.S. 14:56 B(1). Accordingly, this Court does not have jurisdiction over this matter. See State v. Gaubert , 15-0774, p. 6 (La. App. 4 Cir. 12/9/15), 179 So.3d 982, 987, writ denied , 16-0122 (La. 1/23/17), 215 So.3d 681 ("there is no right of appeal from a misdemeanor conviction."); State v. Drury , 506 So.2d 772 (La. App. 1 Cir. 1987) ("the state's appeal is not properly before the court. Although La. Code Crim.P. art. 912 provides, in pertinent part, that the state may appeal an adverse ruling on a motion to quash, the appellate jurisdiction of the Courts of Appeal is constitutionally limited by La. Const. Art. V, § 10 (A) ] ....' ").

We therefore dismiss this appeal without prejudice. Nonetheless, under our supervisory jurisdiction, we transfer this matter to the Appellate Division of the Criminal District Court for the Parish of Orleans, in keeping with this Court's decision in State v. Morel , 95-0926, p. 2 (La. App. 4 Cir. 5/1/96), 673 So.2d 1291, 1292.

APPEAL DISMISSED; TRANSFERRED TO THE APPELLATE DIVISION OF CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

      La. Const. art. V § 10 (D)(2) provides: "In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional or (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed."

      In Morel , we noted that "there is no direct appeal of misdemeanor convictions to the courts of Appeal" and further noted that the "[a]ppellant must seek appeal of his misdemeanor conviction to the Appellate Division of the Criminal District Court for the Parish of Orleans pursuant to LSA-R.S. 13:1337." The Morel Court, thus, "transferred convictions [of two counts of misdemeanor theft] to the Appellate Division of the Criminal District Court for the Parish of Orleans for consideration." Id.


author: SAUNDERS, Judge.

text:
    Terry GOTCH v. SCOOBY'S ASAP TOWING, LLC, et al
    18-355
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Lawrence Blake Jones, Lawrence J. Centola, Jr., Blake Jones Law Firm, L.L.C., 701 Poydras Street, Suite 4100, New Orleans, LA 70139, (504) 525-4361, COUNSEL FOR PLAINTIFF/APPELLANT: Terry Gotch
    Nicole M. Boyer, Ryan M. Malone, Duplass, Zwain, Bourgeois, Pfister, Weinstock & Bogart, 3838 North Causeway Boulevard, Three Lakeway Center, Suite 2900, Metairie, LA 70002, (504) 832-3700, COUNSEL FOR DEFENDANT APPELLEE: Scooby's ASAP Towing, L.L.C.
    Court composed of John D. Saunders, Billy H. Ezell, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

This is a suit for damages for personal injuries sustained in an automobile accident. Two different versions of the incident giving rise to this litigation were presented at trial. While the jury was deliberating, the alternate juror advised the court and all counsel in the courtroom that the jurors had ignored the court's Plain Civil Jury Instructions by discussing the case amongst themselves during the proceedings rather than waiting to do so when they began deliberations at the end of trial and had concluded that Defendant was not at fault. After the alternate juror had been interviewed, and within minutes of retiring to deliberate, the jury advised that it had reached a verdict. Plaintiff filed for a mistrial, which the court subsequently denied.

Plaintiff now appeals that judgment. Appellant's argument is that the prejudicial misconduct that occurred during the course of the proceedings can only be cured by mistrial.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff, Terry Gotch ("Mr. Gotch"), filed suit against Defendants, Scooby's ASAP Towing; John Doe; and ABC Insurance ("Scooby's"), for injuries sustained as a result of a vehicular accident that occurred in February 2013. Two different versions of the incident giving rise to this litigation were presented at trial.

Mr. Gotch alleged that Joseph Derousselle ("Mr. Derousselle"), an employee of Scooby's, backed out of a private driveway causing Alydia Menard ("Ms. Menard"), the driver of the vehicle in which he was a passenger, to make an evasive maneuver to avoid a collision. Ms. Menard's vehicle subsequently left the roadway and struck a ditch, causing his injuries.

Mr. Derousselle alleged that after backing out of the private driveway, he noticed Ms. Menard coming around the curve and he pulled back into the driveway. He further alleges that the fog, together with the excessive rate of speed at which Ms. Menard was traveling on the wet highway, likely contributed to her inability to slow down or stop, and caused her to instead veer off the road.

Following a jury trial, during jury deliberations, the alternate juror advised the court and all counsel in the courtroom that the jurors had ignored the court's Plain Civil Jury Instruction by discussing the case amongst themselves during the proceedings, rather than waiting to do so when they began deliberations at the end of trial. Within minutes of retiring to deliberate, the jury returned with a verdict. After receiving the verdict, having already spoken privately with the discharged alternate juror, the trial court questioned the foreperson, who admitted that the jurors had discussed the case amongst themselves during the proceedings. After the jury was excused, Mr. Gotch moved for a mistrial based on jury misconduct. The motion for mistrial was denied on October 9, 2017.

On October 30, 2017, Mr. Gotch filed a motion for devolutive appeal, which was subsequently dismissed without prejudice because the judgment lacked the proper decretal language. An amended judgment was signed on July 9, 2018.

Mr. Gotch timely filed a second motion for devolutive appeal. Pursuant to that motion, Mr. Gotch is presently before this court alleging two assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred by failing to grant plaintiff's motion for mistrial made after the jury verdict because the jury by it's [sic] own admission disregarded the trial judge's instructions not to make any determinations until the end of the trial. The judgment of the jury should be voided and a mistrial granted.
2. In the alternative, the trial court erred by adopting the verdict of the jury as judgment and the judgment should be reversed and judgment rendered in favor of the plaintiff.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Mr. Gotch contends that the trial court erred in failing to grant a mistrial after members of the jury admitted that they began discussing the case amongst themselves during the proceedings, rather than waiting until they began deliberations at the end of trial, in contravention of the court's instruction. We find merit to this assignment of error.

"[T]he conduct of the trial is within the discretion of the trial court, and that discretion is subject to review only for abuse of that discretion." Barre v. Bonds , 99-1806, p. 23 (La.App. 4 Cir. 5/10/00), 763 So.2d 60, 73 (citing La.Code Civ.P. art. 1631).

"The Louisiana Code of Civil Procedure does not expressly provide for mistrials, and the jurisprudence concerning motions for mistrials is limited. Generally, mistrials are properly granted because of some fundamental failure in the proceeding." Lewis v. Time Saver Stores, Inc. , 599 So.2d 442, 443 (La.App. 4 Cir.1992) (quoting Searle v. Travelers Ins. Co. , 557 So.2d 321,323 (La.App. 4 Cir. 1990) ).

In Leblanc v. Mercedes-Benz of North America, Inc., 93-907 (La.App. 3 Cir. 3/2/94), 633 So.2d 399, 402-03, writ denied , 94-1225 (La. 7/1/94), 639 So.2d 1169 (citations omitted) (quoting Barnes v. Thames , 578 So.2d 1155, 1161 (La.App. 1 Cir.), writ denied , 577 So.2d 1009 (La.1991) ), (citations omitted), this court noted:

[A] motion for mistrial in a civil case should be granted under the following circumstances: (1) when, before the trial ends and the judgment is rendered, the trial judge determines that it is impossible to reach a proper judgment because of some error or irregularity; and (2) where no other remedy would provide relief to the moving party.
Motions for mistrial should also be granted upon proof of prejudicial misconduct occurring during a jury trial, which cannot be cured by admonition or instruction ....

Our review of the record reveals that at the onset of trial, the court instructed the jury as follows:

You may only discuss the case with the other members of the jury when you begin deliberations on your verdict and all other members of the jury are present. Until you reach a verdict at the end of the trial, don't communicate about your discussions with anyone else.

Our further review of the record reveals that the alternate juror advised the court and all counsel in the courtroom that the jurors had ignored the court's Plain Civil Jury Instruction by discussing the case amongst themselves during the proceedings, rather than waiting until the end of trial during deliberations to do so, and that within minutes of retiring to deliberate, the jury reached a verdict. Moreover, after reviewing the verdict, having already spoken privately with the discharged alternate juror, the trial court questioned the foreperson.

THE COURT: Okay. Mr. McClelland, I'm going to start with you. By accident, I guess - I'm going to first say that I, obviously, didn't do my job well. When we spoke to the alternate, the lawyers wanted to ask some questions, wanted to know if they were - how they did and what happened. She responded that, "Pretty much from the opening statement, we had decided that the defendant wasn't at fault." I then asked her outside by herself "Was there any discussion amongst you all about the case or about what was going on during breaks and anything else?" And her response was "Yes."
I now have to ask, and I'll start with you, Mr. McClelland, were there any discussions during breaks, and after we recessed, or whatever amongst yourselves about the case?
FOREPERESON (MR. McCLELLAND): Yes, sir.
THE COURT: So I'm going to take full blame in that I said in my opening, but I, obviously didn't do a very good job of telling you all, you should have no discussions about the case, and even in my closing, I said "While I told you in openings, you cannot discuss amongst yourselves or with anyone else the facts of the case. I lift that now to tell you that you can now discuss amongst yourselves, and all that. Okay. So there's no doubt that there was discussions during the pendency of the deal amongst yourselves about the case, and the facts, and the stuff that was going on. Okay.
Could I have done something better or have - -
FOREPERSON (MR. McCLELLAND): I don't think any of us were under the impression that we were not allowed to speak about it inside the jury deliberation room. So, actually, I felt that that was our duty, is to speak about it and discuss it amongst each other to, I mean, come up with a verdict.
THE COURT: Okay. Yes, Ms. - -
JUROR (MS. HENNIGAN): Hennigan.
THE COURT: - - Hennigan. Yes.
JUROR (MS. HENNIGAN): Actually, and I've done this before, I mean, hadn't gone this far, but our understanding is, as he said, that we were not to discuss it outside of that room, I mean, or anywhere in public, or on an elevator - -
THE COURT: Right.
JUROR (MS. HENNIGAN): - - and that's what was made more clear under, you know, don't let anyone you may be passing - - so we really didn't understand that.
THE COURT: Okay.
JUROR (MS. HENNIGAN): I will say some, from the beginning, did feel one way or the other. Nobody made - - I don't know that anyone made a hundred percent decision one way or the other until - - because we all have lots and lots of notes that we took. We took - - every - - I don't want that to look like we did not look at all the information. We looked at all the information, I mean, from percentages to how they backed out, drove in to - - and I know about - - I know a lot about spines and - - Anyway, so there was - - it was a good discussion, it was, and to the point of the benefit of the doubt and everything. But to be able to say that this was - - that any pain and suffering could be caused by the gentlemen backing out of his driveway on a foggy morning, we could not see that. And so - -
THE COURT: I'm not faulting your decision.
JUROR (MS. HENNIGAN): I know, but we tried - -
THE COURT: Right. And I am glad for that to be on the record because somebody might take an appeal. I don't know. So I am, at this time, going to let counsel, if anybody has a question.
MR. MALONE: Your Honor, I just - - No, I don't.
THE COURT: Did anybody not participate in discussions during breaks or in the room with fellow jurors about the case?
FOREPERSON (MR. McCLELLAND): I don't - - Also, and I don't know if this is relevant or not, but we didn't - - there was - - throughout our discussions, no one - - I don't think anybody was swayed one way or the other by someone else. Everyone just voiced their own opinion, pretty much all was in agreement.
THE COURT: Right. So the issue will be whether or not the discussions that you had - - I mean, you came to a verdict, you did it, obviously, with discussion amongst yourselves. No one swayed one person from doing it or the other. The issue is just that - - And the reason that we have that charge is so that starting from opening statement and then when you just hear the plaintiff's case, that you all aren't affecting other jurors by your thoughts and whatever on - - from opening through close. Because the defendant - - in this case, the defendants only had one witness, but in many cases defendants may have a day and a half of witnesses, and if you all have been discussing about the case after just hearing what the plaintiff said, you may be forming an opinion during that time that may not be able to be rebuffed now because the defendants haven't put on their case yet. That's the purpose behind it. I don't know, in this case, that it was that effect or not, but - okay.

Based upon the answers to the court's questions by the aforementioned jurors, and its interview with the alternate, it is clear that the fundamental failure that occurred during the proceedings was significant, ongoing, and widespread. It is equally clear that the jurors' prejudicial misconduct cannot be cured by admonition or instruction. As such, we find that the trial court erred in failing to grant a mistrial. Accordingly, we reverse the trial court's ruling on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Mr. Gotch "maintains that Derousella's [sic] trial version of the accident, first offered four years after the incident when he refused to give his version on the scene, is not to be believed, and that the jury verdict in favor of defendant should be reversed and judgment rendered in favor of the plaintiff as they [sic] verdict was not reasonable." We find no merit to this contention.

Our review of the record reveals that the jury was presented with two viable versions of the incident giving rise to this litigation. It is the role of the jury to weigh the evidence, determine the credibility of the witnesses, and reach a verdict based on reasonable inferences of fact. Neither our review of the record, nor Appellant's argument in support of his contention, convinces us that Appellee did not present a viable case. Accordingly, we find no merit to this assignment of error.

CONCLUSION:

Terry Gotch asserts two assignments of error as to why the trial court erred in failing to grant a mistrial and in adopting the verdict of the jury. Finding merit to Mr. Gotch's first assignment of error, that the trial court erred in failing to grant a mistrial due to the fundamental failure that occurred during the proceeding, we reverse the trial court's ruling on this issue.

Costs of these proceedings are assessed to Terry Gotch.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Desmond C. PARKER
    State of Louisiana v. Desmond C. Parker
    State of Louisiana v. Desmond C. Parker
    NO. 2018-KA-0432 NO. 2016-K-1166 NO. 2017-KA-0141
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2018
    Procedural History
    Defendant, Desmond Parker, appeals his convictions and sentences for simple robbery, in violation of La. R.S. 14:65, and intimidating a witness, in violation of La. R.S. 14:129.1. He also appeals the district court's ruling denying his motion for new trial. Consolidated with this appeal is the writ application filed by the State; the State contends that the district court erred in its adjudication of Defendant's habitual offender status.
    After reviewing the appellate record and applicable law, we affirm Defendant's convictions. This Court further finds that the district court did not err when it found that Defendant was a third-felony offender rather than a fourth-felony offender. Thus, the State's writ application is denied.
    On January 29, 2015, Defendant was charged with simple robbery, in violation of La. R.S. 14:65 (count one), intimidating a witness in violation of La. R.S. 14:129.1 (count two), and aggravated assault, in violation of La. R.S. 14:37(A) (count three). Defendant pled not guilty to all charges.
    He proceeded to trial by jury. On January 26, 2016, the jury found Defendant guilty as charged on counts one and two. Subsequently, Defendant filed motions for new trial and for post-verdict judgment of acquittal, which were denied. Following the denials, there was a multiple bill hearing and the district court adjudicated Defendant a third, rather than a fourth, offender as sought by the State. He was sentenced pursuant to La. R.S. 15:529.1 to fourteen (14) years at hard labor on count one and ten (10) years at hard labor on count two. The trial court denied Defendant's motion to reconsider sentence. The State sought supervisory review of Defendant's habitual offender adjudication. Defendant appealed.
    Assignments of Error
    On appeal, Defendant, through counsel and pro se , maintains that there was insufficient evidence to support his conviction, and the trial court erred in not granting his motion for new trial. In addition, Defendant's pro se brief also argues that the State's attorney engaged in prosecutorial misconduct. Defendant further maintains that he received ineffective assistance of counsel. Lastly, he challenges the evidence submitted to the jury at trial.

      A review of the record on appeal for errors patent revealed one with respect to Defendant's sentence. This error, however, does not require corrective action. When sentencing Defendant as a third-felony habitual offender, the district court imposed an illegally lenient sentence by failing to restrict the sentence as to probation and suspension of sentence. See La. R.S. 15:529.1 G (providing that "[a]ny sentence imposed under the provision of this Section shall be at hard labor without benefit of probation or suspension of sentence"); see also State v. Sterling , 2011-1837 (La. 3/9/12), 84 So.3d 557 (providing that sentencing restrictions imposed on habitual offenders are those stipulated for the present felony, as well as, those in the applicable portions of the Habitual Offender Law, La. R.S. 15:529.1 ). The sentencing restrictions for Defendant's present felonies are that the sentences be served at hard labor without the benefit of probation and suspension of sentence. Pursuant to La. R.S. 15:301.1 A and State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790, 798-99, a sentence is deemed to have been imposed with statutorily mandated restrictions of benefits, even in the absence of the district court delineating them. Therefore, no action is necessary by the court.

      Defendant was found guilty of the aggravated assault charge after a bench trial and sentenced to six months in Orleans Parish Prison.

   Sufficiency of the Evidence

In accordance with the well-settled jurisprudence that "[w]hen issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." In reviewing whether the evidence presented in a case is sufficient to support a conviction, we are governed by the standard set forth in the United States Supreme Court decision of Jackson v. Virginia .

The standard is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. "The Jackson doctrine involves more than simply applying a fixed standard to measure the simple quantum of the evidence produced in a case." A sufficiency of evidence review does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." "The inquiry requires the reviewing court to ask whether the trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt."

The reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. A reviewing court is neither permitted to second guess the rational credibility determinations of the fact finder at trial, nor is it to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. It is not the function of an appellate court to assess credibility or reweigh the evidence.

Simple Robbery

In order to convict Defendant of simple robbery, the State had to prove that he: (1) took something of value; (2) belonging to another; (3) from the person of another; (4) by use of force or intimidation.

At trial, Reed Sutton (the victim) testified that on September 2, 2014, he was drinking and socializing with Defendant and "Cody" in the French Quarter in New Orleans; he had known both men for a few months. He later accompanied Defendant and "Cody" to a French Quarter hotel to complete a pre-arranged narcotics purchase. When the three men arrived at their destination, the victim decided that the price of the drugs was more than he was willing to pay; consequently, he refused to make the purchase and attempted to walk away. However, "Cody" placed him in a choke hold while Defendant stole his cash and wrist watch.

The testimony elicited at trial further established that the victim reported the incident to NOPD Officer Thomas Perez (Officer Perez) at the Eighth District Police Station. Officer Perez's investigation revealed that "Cody" was Cody Bergeron ("Bergeron"), a known associate of Defendant. When Officer Perez showed the victim booking photos of Defendant and Bergeron, the victim confirmed they were the men who robbed him thirty (30) minutes earlier. Further investigation failed to reveal any witnesses or surveillance video of the incident. Officer Perez obtained arrest warrants for Defendant and Bergeron.

Additionally, the State called Richard Traube ("Traube"), who testified relative to the State's Prieur notice concerning Defendant's and Bergeron's guilty pleas to the second degree robbery of Traube in 2009. The State's purpose in introducing the 2010 conviction was to show the proximity of the crime scenes, the targeting of vulnerable victims, and the forceful taking of property from the victims.

Traube testified that he was drinking and talking with Bergeron in the Roundup Bar in the French Quarter in 2009. Traube and Bergeron agreed that in exchange for payment, Bergeron would engage in a sexual act with Traube. After the act, Traube refused to pay Bergeron. When Traube left the bar, Bergeron and Defendant beat and robbed him.

Under the Jackson standard, we find there was sufficient evidence for the jury to return a verdict of guilty on the simple robbery charge.

Intimidating a Witness

To uphold a conviction for intimidating a witness, the State was required to prove that Defendant intimidated or impeded, by threat of force or force, or attempted to intimidate or impede, by threat of force or force, a witness with intent to influence his testimony, his reporting of criminal conduct or his appearance at a judicial proceeding. La. R.S. 14:129.1 defines the term "witness" to include a person who is a victim of criminal conduct, a person who has testified in court under oath, a person who has reported a crime, and a person who has been served with a court subpoena.

The victim also testified that on the night of September 27, 2014, he and "Katy," Defendant's ex-girlfriend, were in the Roundup Bar in the French Quarter. Defendant was in the bar as well and confronted the victim with a knife and threatened to kill him. The victim ran to a friend's apartment and was driven to the Eighth District Police Station.

The victim reported to NOPD Detective Steve Nolan ("Detective Nolan") at the Eighth District Police Station that Defendant had pulled a knife on him and threatened him at the Roundup Bar. The victim said Defendant threatened to kill him if he did not drop the robbery complaint he filed. Detective Nolan was unable to locate any witnesses to the knife incident, but did obtain a warrant for Defendant's arrest, which Officer Jason Collins executed after receiving a tip that Defendant was at the Old Town Inn.

Anthony Henry ("Henry"), the manager/bartender on duty at the Roundup Bar on the night of September 27, 2014, testified that the victim and Defendant had an altercation in the bar. He claimed that he did not see any physical contact or a weapon, but he ejected the victim from the bar due to safety concerns. Although Henry did not witness certain details of the interaction between the men, his testimony supports the confrontation and ensuing argument.

Also, at trial, the jury heard the testimony of Jim Huey ("Huey") of the Orleans Parish Sheriff's Department. Huey is the custodian of the records of inmate telephones calls. Huey explained that inmate phone calls are recorded by an internet-based system and stored on a secure database. One of Huey's duties is to provide law enforcement agencies copies of those jailhouse telephone calls. Huey further explained that when an inmate makes a call from the Orleans Parish Prison, the inmate is issued a warning that the call will be monitored and recorded. Huey testified that a call detail sheet, which lists the specifics of an inmate call, accompanies the recording of jailhouse calls.

Pursuant to the State's request, Huey supplied a disc containing a recording of a jailhouse call made by Defendant, which was played for the jury. In the call, Defendant tells the victim he will not be arrested if he fails to appear at trial. Moreover, Defendant stresses that the only way the charges against him "will go away" is if the victim fails to testify.

Again, reviewing the evidence under the Jackson standard we find the jury had sufficient evidence to return a guilty verdict for the crime of intimidating a witness.

Motion for New Trial

In this assignment, Defendant maintains that a motion for new trial should have been granted based on newly discovered evidence. More specifically, that Veronica Smith's statement warranted the granting of a new trial.

Here, the motion for new trial is based primarily on the defense's inability to present the statement of Veronica Smith ("Smith"). Smith was the girlfriend of Bergeron. She claimed that she witnessed the robbery and Defendant was not involved. The trial court visited this issue during trial. At that time, Defendant contended that Smith, who had not been served and was not present to testify, should be declared an unavailable witness. As an unavailable witness, Defendant sought to have a statement by Smith that had been given to defense counsel's investigator admitted into evidence through the investigator's testimony.

The trial court first found that Smith did not qualify as an unavailable witness. Next, the trial court determined that even if the witness was unavailable the statement would not be admissible evidence because the statement was not written by Smith. Rather, it was a narrative representing Smith's statement written by the investigator. Additionally, Smith was not under oath, there was no video or audio recording of the statement, and although it was signed by Smith, it was not notarized. Considering those aspects of the document, the trial court concluded that the statement would not be covered under any of the hearsay exceptions in La. C. E. art. 804(B) and therefore would not be admissible.

At the hearing on the motion for new trial, Defendant presented evidence to prove that Smith was, in fact, an unavailable witness at the time of trial. That evidence included Smith's affidavit that stated she was kidnapped by Bergeron and taken to Mississippi where they were detained by police and arrested for various charges unrelated to this case. Once she was released from jail Smith returned home. Smith also recounted the night of the incident and claimed that Defendant was not involved and Bergeron acted alone. Further, Smith provided testimony and was cross-examined at the hearing. The trial court denied the motion for new trial.

Smith's affidavit and testimony were similar to the statement she had given to the investigator. The newly discovered information was the allegations of kidnapping and the subsequent arrest, which resulted in her being unavailable. In sum, defendant seeks a new trial so that Smith can testify.

To obtain a new trial based on newly discovered evidence, defendant must show "(1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature it would probably have produced a different verdict." In evaluating whether newly discovered evidence warrants a new trial, the test is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material it ought to produce a different verdict. A district court's decision on a motion for new trial based on newly discovered evidence, although a question of law, is entitled to great weight and should not be disturbed on review if reasonable persons could differ as to the propriety of the decision.

Although defendant characterizes Smith as a witness to the robbery, it is clear that even taking her testimony as true she never entered the hotel where the robbery occurred. Smith has no knowledge of whether defendant was present inside the building. For that reason, Smith's testimony cannot be considered "of such a nature that would produce a different verdict." This Court finds no error in the denial of the motion for new trial.

Prosecutorial Misconduct

In this assignment of error, Defendant alleges that the State was aware that the victim gave perjured testimony at trial, and the State misrepresented facts in closing argument.

First, Defendant contends that while testifying the victim failed to disclose numerous crimes that he was not prosecuted for. Thus, his testimony was so tainted it should not have been presented to the jury. No evidence exists in the record to support this assignment of error. The victim was cross-examined and admitted to his prior drug use, that he lied to the police that he was buying marijuana rather than methamphetamine, and his criminal history as a convicted felon. The jury heard this evidence.

Next Defendant complains of facts that were not in evidence being presented to the jury in closing argument. Specifically, the State told the jury: "Mr. Traube, at the time, seventy-three years old, was beaten bloody-his own words-by Cody Bergeron and Desmond Parker both of whom pled guilty to the crime."

The record reveals that the Prieur witness, Traube, testified that he was beat up and robbed by Defendant. Traube specifically stated at trial: "[H]e followed me up to my car and beat the tar out of me and robbed me, took my wallet."

In State v. Smith, 11-0091, p. 28 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 694-95, writ denied, 12-2069 (La. 3/15/13), 109 So.3d 375, we stated:

Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. Even assuming that remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that the remark influenced the jury and contributed to the verdict. Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence.

This Court recognizes that the State did not quote Traube's words verbatim. However, we also note, that the defense counsel did not object to the State's statement. The record fails to contain any evidence of prosecutorial misconduct.

Ineffective Assistance of Counsel

Defendant's next assignment of error is that he received ineffective assistance of counsel.

An ineffective assistance of counsel claim is often most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. However, "an evidentiary hearing is not necessary where the record on appeal is sufficient to permit a determination of counsel's effectiveness at trial." In the instant matter, the record contains no evidence to rule on Defendant's ineffective of assistance claim. Accordingly, we decline to consider this assignment of error. Defendant may raise this argument should he file an application for post-conviction relief.

State's Writ Application

At the multiple-bill and sentencing hearing, Defendant challenged a previous guilty plea from Jefferson County, Alabama. Defendant argued that the evidence provided by the State was insufficient to establish that Defendant's prior guilty plea was knowing, voluntary, and made with an express waiver of his rights. The trial court determined that the State failed to prove that the guilty plea was in accordance with Boykin v. Alabama . We agree.

It is well established that the validity of a guilty plea turns on whether Defendant was informed of three fundamental constitutional rights ( Boykin rights): 1) his privilege against compulsory self-incrimination, 2) his right to trial by jury, and 3) his right to confront his accusers. Additionally, the record must also show that after being informed of those Boykin rights, Defendant knowingly and voluntarily waived them.

The Supreme Court adopted a scheme for burdens of proof in habitual offender proceedings in State v. Shelton , which it summarized as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a "perfect" transcript, for example, a guilty plea form, a minute entry, an "imperfect" transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

In Shelton , the State submitted into evidence a minute entry that stated the judge "gave the defendant his rights" and a "Waiver of Constitutional Rights/Plea of Guilty Form" ("the form"). The form listed the Boykin rights with Defendant's initials behind each indicating that he waived the right. The form had additional statements providing that Defendant was well informed of the consequences of his plea. The form was signed by Defendant, the attorney for Defendant, and the trial judge. Considering that evidence, the Supreme Court found that the State met its burden of proving the guilty plea was informed, free and voluntary, and made with an articulated waiver of constitutional rights.

In the instant case, the record is void of any indication that Defendant knowingly and voluntarily waived each of his Boykin rights. The Alabama Judicial Information System Case Action Summary submitted to the trial court contains entries signed by the Alabama Circuit Judge of the Tenth Judicial Circuit of Alabama. One of the entries states that Defendant waives a jury trial. There is no other reference to Defendant waiving rights and nowhere does he sign or initial any statement of waiver or waiver form. The State cannot overcome the lack of an articulated waiver of Defendant's constitutional rights without a transcript.

As the Louisiana Supreme Court discussed in Shelton , when the State introduces anything less than a "perfect transcript" to prove the validity of a previous guilty plea, the trial judge must weigh the evidence to determine whether the State met its burden. In this case, the trial judge reviewed the evidence presented by the State and found it was deficient. Given the record before this Court, that ruling should be affirmed. For that reason, the State's writ application seeking to adjudge Defendant as a fourth felony offender is denied.

Conclusion

For the reasons discussed, Desmond Parker's convictions and sentences are affirmed and the State's writ application is denied.

AFFIRMED; WRIT DENIED

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in the majority's opinion affirming Defendant's convictions. However, I part ways with the majority in that I would grant the State's writ application and find Defendant a fourth felony offender.

The State filed two multiple bills against Defendant. The first multiple bill was filed on June 3, 2015 in case no. 523-182, charging Defendant as a fourth felony offender based on his May 19, 2015, conviction for tampering with an electric monitor in Orleans Parish Criminal District Court with alleged prior convictions: (1) a conviction on July 25, 2005, in Jefferson County, Alabama, for third degree burglary (case no. 2005-2611); (2) a conviction on April 28, 2011, in Jefferson Parish Louisiana, for attempted simple escape and simple criminal damage (case no. 2009-3142); and (3) a conviction on June 4, 2010, for second degree robbery in Orleans Parish Criminal District Court (case no. 491-945). The second multiple bill, filed September 22, 2016, charged Defendant as a fourth felony offender based upon the January 25, 2016, convictions for simple robbery and intimidating a witness, which are the subjects of the present appeal, in addition to the convictions outlined above.

After a September 22, 2016, combined hearing on the multiple bills, the court adjudged Defendant a third, rather than fourth, felony offender, finding that the State failed to prove that Defendant's guilty plea in Alabama case was in compliance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that Defendant is the same person convicted of that felony. State v. Payton, 00-2899, p. 6 (La. 3/15/02), 810 So.2d 1127, 1130. Various methods are available to prove that Defendant is the same person convicted of the prior felony offense: testimony from witnesses, expert opinion regarding the fingerprints of Defendant when compared with those in the prior record, or photographs in the duly authenticated record. State v. Wolfe, 99-0389, pp. 4-5 (La. App. 4 Cir. 4/19/00), 761 So.2d 596, 599-600. The Supreme Court adopted a scheme for burdens of proof in habitual offender proceedings in State v. Shelton, 621 So.2d 769, 779-80 (La. 1993), which it summarized as follows:

If the Defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that Defendant was represented by counsel when they were taken. If the State meets this burden, the Defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the Defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between judge and Defendant wherein the Defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a "perfect" transcript, for example, a guilty plea form, a minute entry, an "imperfect" transcript, or any combination thereof, the judge then must weigh the evidence submitted by the Defendant and by the State to determine whether the State has met its burden of proving that Defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

At the multiple bill hearing, the State introduced the testimony of Officer George Jackson, a certified latent print examiner, who testified that he had taken Defendant's fingerprints earlier in the proceedings. Jackson identified State's exhibit 1 as the card containing those fingerprints. Further, Jackson identified State's exhibit 2 as the pen pack pertaining to Defendant's guilty plea to burglary and assault in Alabama bearing case no. 2005-02611.

Included in the pen pack was a certified copy of Defendant's fingerprints, which Jackson testified matched the fingerprints on State's exhibit 1. Jackson identified other documents in the Alabama pen pack as an Alabama Judicial Information System Case Action Summary, State's exhibit 3, evidencing Defendant's guilty plea and attesting to Defendant's waiver of rights incident to that guilty plea.

Defense counsel objected to the legal sufficiency of the Alabama plea because the document was not certified/notarized; did not contain a valid waiver of rights in the absence of specific mention of which rights were read to him; and contained an incomplete Boykin form, which resulted in insufficient proof that Defendant knowingly and intelligently entered the guilty plea.

After examining the guilty plea and entertaining argument from the State and defense, the district court agreed with defense counsel. The district court concluded that because "there [wa]s no plea form in th[e] record," only "a form that [wa]s filled out by the judge," the State was required to produce a transcript of the Boykin colloquy, which the State did not do.

After examining Defendant's Alabama guilty plea, I find that the district court erred when it refused to find that a valid plea had been proven by the State and adjudge Defendant a fourth felony offender.

Contained in the Alabama pen pack is a plea form signed by Defendant, his attorney, and the court, on July 25, 2005. The plea form was apparently on legal-sized paper in its original state, but was copied on letter-sized paper. It advises Defendant of all his rights and that by pleading guilty, he waived those rights. Defendant was represented by counsel during all of his court appearances. The entire pen pack is certified by its legal custodian, the Director of Central Records for the State of Alabama Department of Corrections. In addition, the Director's signature is notarized.

I find that the Alabama pen pack more than satisfies the requirements of Louisiana law proving that Defendant was advised of his rights and knowingly and intelligently entered the guilty plea. My finding is supported by many cases from this court. See State v. Golden, 13-0012 (La.App. 4 Cir. 10/30/13), 126 So.3d 829 ; State v. Henry, 12-1093 (La.App. 4 Cir. 9/4/13), 124 So.3d 1108 ; State v. Weaver, 99-2177 (La.App. 4 Cir. 12/6/00), 775 So.2d 613 ; State v. Stanfield, 13-1193 (La.App. 4 Cir. 3/26/14), 137 So.3d 788 ; State v. Taylor, 12-0114 (La.App. 4 Cir. 11/28/12), 104 So.3d 679 ; State v. Sims, 13-0177 (La.App. 4 Cir. 8/28/13), 123 So.3d 806 ; and State v. Tatten, 12-0443 (La.App. 4 Cir. 5/1/13), 116 So.3d 843. The district court erred by failing to so.

Thus, I agree with the majority in affirming Defendant's convictions but would grant the State's writ, find Defendant a fourth felony offender, and remand the matter to the district court for resentencing.

      This assignment of error was raised in counsel's brief and in the pro se brief filed by Defendant.

      State v. Marcantel , 2000-1629 (La. 4/3/02), 815 So.2d 50, 55 (citations omitted).

      443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      State v. Mussall, 523 So.2d 1305, 1309 (La.1988).

      Id. (citing Jackson, 443 U.S. at 337, 99 S.Ct. 2781 (Stevens, J. concurring) ).

      Id. at 1309-10 (citing Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ).

      State v. Rosiere , 488 So.2d 965, 968 (La. 1986).

      State v. Kelly , 2015-0484, p. 3 (La. 6/29/16), 195 So.3d 449, 451.

      Id. , 2015-0484, pp. 3-4, 195 So.3d at 451 (citing State v. Stowe , 635 So.2d 168, 171 (La. 1994) ).

      State v. Williams, 2011-1547, p. 4 (La.App. 4 Cir. 9/26/12), 101 So.3d 104, 108.

      Initially, the victim reported to the police that he and the defendant planned to purchase marijuana. However, at trial he admitted that they were actually going to purchase methamphetamine.

      Cody Bergeron was also charged with simple robbery arising out of the same events at issue here, but is not a part of this appeal.

      Just as in the previous assignment of error, this assignment was raised in counsel's brief and in the pro se brief filed by Defendant.

      La. C. E. art. 804(A) reads:
      Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
      (1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
      (2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
      (3) Testifies to a lack of memory of the subject matter of his statement;
      (4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause; or
      (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

      La. C. E. Art. 804(B) reads in pertinent part:
      B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.
      (2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
      (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
      * * * *
      (7)(a) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
      (b) A party seeking to introduce statements under the forfeiture by wrongdoing hearsay exception shall establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing. La. C. E. art. 804

      Smith admitted that she did not contact the police or pursue any charges against Bergeron for the alleged kidnapping.

      State v. Tucker , 2013-1631, p. 50 (La. 9/1/15), 181 So.3d 590, 626, cert. denied, Tucker v. Louisiana, --- U.S. ----, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016) (citations omitted); see also La. C.C.P. art. 851.

      La. C.Cr.P. art. 851 ; State v. Prudholm , 446 So.2d 729 (La. 1984).

      This assignment of error is raised in Defendant's pro se brief.

      State v. Kyles, 513 So.2d 265, 275-76 (La.1987) (internal citations omitted).

      This assignment of error is raised in Defendant's pro se brief.

      State v. Laneheart, 12-1580, p. 9 (La. App. 4 Cir. 2/26/14), 135 So.3d 1221, 1229 (citing State v. Howard , 98-0064, p. 15 (La. 4/23/99), 751 So.2d 783, 802 ).

      State v. McGee , 98-1508, p. 4 (La. App. 4 Cir. 3/15/00), 758 So.2d 338, 341 (citing State v. Seiss , 428 So.2d 444 (La. 1983) ).

      395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

      State v. Granier , 2015-0608 (La. App. 4 Cir. 10/28/15), 178 So.3d 1106, 1108 (citing State v. Juniors, 2003-2425 (La. 6/29/05), 915 So.2d 291 ).

      621 So.2d 769, 779-80 (La. 1993).

      Id. at 777.

      The validity of a guilty plea turns on whether Defendant was informed of three fundamental constitutional rights: 1) his privilege against compulsory self-incrimination, 2) his right to trial by jury, and 3) his right to confront his accusers. Further, the record must show that after being informed of these rights, the Defendant knowingly and voluntarily waived them. State v. Granier , 15-0608 (La. App. 4 Cir. 10/28/15), 178 So.3d 1106, 1108.


author: PERRET, Judge.

text:
    STATE of Louisiana v. Gregory HAMPTON
    KA 17-383
    Court of Appeal of Louisiana, Third Circuit.
    November 15, 2017
    Annette Fuller Roach, Louisiana Appellate Project, P.O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT APPELLANT: Gregory Hampton
    Herbert Todd Nesom, District Attorney, 33rd JDC, Joe Green, Assistant District Attorney, 33rd Judicial District Court, Steven Sumbler, Assistant District Attorney, 33rd Judicial District Court, P.O. Box 839, Oberlin, LA 70655, (337) 639-2641, COUNSEL FOR PLAINTIFF APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   PERRET, Judge.

Defendant Gregory Hampton was convicted of aggravated second degree battery, in violation of La.R.S. 14:34.7, and second degree kidnapping, in violation of La.R.S. 14:44.1(A)(2). For the charge of aggravated second degree battery, Defendant was sentenced to ten years at hard labor, the first year to be served without benefit of parole, probation, or suspension of sentence. For the charge of second degree kidnapping, the trial court sentenced Defendant to twenty-five years at hard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence. The sentences will run concurrently with credit for time served.

Defendant seeks review of his convictions by this court alleging insufficient evidence and double jeopardy. Defendant also contends the sentence for aggravated second degree battery with one year to be served without benefit of parole, probation, or suspension of sentence was improper. For the reasons that follow, we affirm Defendant's conviction, but modify his sentence for aggravated second degree battery to remove the requirement that one year be served without benefit of parole, probation, or suspension of sentence.

ISSUES FOR REVIEW

This court must decide:

1. whether the evidence introduced at trial, when viewed under the Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove, beyond a reasonable doubt, that Gregory Hampton committed aggravated second degree battery and second degree kidnapping of Caroline Strahan;
2. whether Gregory Hampton's convictions for both second degree kidnapping and aggravated second degree battery are in violation of the Fifth Amendment's prohibition against double jeopardy; and
3. whether the trial court committed error by ordering one year of the aggravated second degree battery sentence to be served without benefit of probation, parole, or suspension of sentence.

FACTS AND PROCEDURAL HISTORY

Defendant was charged with the November 6, 2015 aggravated second degree battery and second degree kidnapping of Caroline Strahan. The State presented the details of the crimes to the jury through Ms. Strahan's testimony, as well as various witnesses including an eyewitness, the detectives involved in the investigation, and Ms. Strahan's medical examiners.

On November 6, 2015, Ms. Strahan was at her cousin's house visiting when Defendant came to the house. Ms. Strahan testified Defendant was returning her phone. Ms. Strahan further testified that she got into Defendant's truck to retrieve her phone, leaving one leg out of the door when Defendant sped off and the truck door slammed shut.

On the contrary, Defendant testified that Ms. Strahan contacted him asking for a ride from her cousin's house, and that Defendant drove Ms. Strahan to a location where she purchased crack.

Aside from the differing testimonies regarding how Ms. Strahan came to be in the vehicle, both the Defendant and the victim testified that while in the car, Defendant began hitting Ms. Strahan, first with his hands, then with a cane. Defendant admitted to hitting Ms. Strahan with the cane while in the vehicle. Ms. Strahan further testified Defendant hit her with a pistol. Defendant denies he had a gun.

Ms. Strahan testified they stopped at a graveyard, where she got out of the truck. Defendant continued to hit her, and at some point, hit her with a pistol again. Ms. Strahan got back in the truck because she felt she "had no choice but to get back in" because "he just kept hitting [her] and [she] just didn't have a choice."

Defendant and Ms. Strahan continued to Green Oak Road. At this point, Ms. Strahan decided to jump out of the moving truck. Defendant stopped and tried, unsuccessfully, to get Ms. Strahan back into the truck. Ms. Strahan believes she lost consciousness at some point. Around this time, Kyle Touchet, a passerby, saw Defendant hitting Ms. Strahan on the side of the road. Mr. Touchet decided to stop and intervene. Ms. Strahan recalls Mr. Touchet arriving and telling Defendant to leave her alone, but then she passed out immediately after. Mr. Touchet punched Defendant in the head and returned to his vehicle to copy Defendant's license plate. Mr. Touchet watched Defendant make one last attempt to drag Ms. Strahan back into his truck. However, when Defendant caught a glimpse of police lights, he took off, leaving Ms. Strahan behind.

Ms. Strahan was taken to the emergency room and treated for a subarachnoid hemorrhage, and nose and rib fractures. The responding paramedic recalled Ms. Strahan's head was bleeding, and her nose was deformed with swelling. The paramedic "suspected a possible loss of consciousness" because of her low Glasgow Coma Score. Ms. Strahan also had road rash on both legs. Her treating physician, Dr. Celeste Lujan, testified to Ms. Strahan's injuries. Dr. Lujan specifically noted the victim "had a lot of swelling to her head, to her face ..." and "[a] lot of swelling, no lacerations or anything like that" on her head."

Meanwhile, after fleeing the scene, Defendant contacted his niece, Eva Horne. Ms. Horne testified at trial. Defendant told Ms. Horne he beat Ms. Strahan and needed a ride. Defendant was eventually dropped off at Paul Lavan's motel room. Mr. Lavan also testified at trial. Defendant told Mr. Lavan he beat Ms. Strahan in his truck and that he had a pistol. Defendant told Mr. Lavan he had left Ms. Strahan for dead after she jumped from the truck. Mr. Lavan drove Defendant to his truck, which Defendant had left in a parking lot. Defendant was eventually apprehended running between Speedway Motors and an American Inn. Defendant's truck was found, identified by its license plate, with blood inside the cab. A cane and bat were found inside Defendant's truck. No gun was retrieved from the Defendant, his truck, or his residence.

The jury found Defendant guilty as charged.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is one error patent, which was also asserted by Appellant on appeal. The trial court sentenced Appellant to ten years at hard labor, the first year to be served without benefit of parole, probation, or suspension of sentence for aggravated second degree battery. However, La.R.S. 14:34.7(C) does not permit the trial court to require the first year of this sentence be served without benefit of parole, probation, or suspension of sentence.

At the time Defendant committed this offense, La.R.S. 14:34.7(C) (emphasis added) provided the following sentence:

Whoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated second degree battery was committed because of that status.

There was no evidence that Ms. Strahan was an active service member or disabled veteran, or that Defendant committed the battery because of that status.

The trial court, therefore, erred in this provision of Defendant's sentence. Accordingly, the trial court's sentencing should be modified. "An appellate court may correct an illegal sentence pursuant to La.Code Crim.P. art. 882." State v. Soileau , 13-772, p. 2 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1010, writ denied , 14-0452 (La. 9/26/14), 149 So.3d 261. Because correcting Defendant's sentence in this case does not require sentencing discretion, we will correct it on appeal. Id. ; see also State v. Jacobs , 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. Defendant's sentence, as it pertains to requiring one year of Defendant's aggravated second degree battery sentence be served without benefit of parole, probation, or suspension, is hereby set aside.

LAW AND DISCUSSION

When a defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court must first resolve the sufficiency issue. State v. Hearold , 603 So.2d 731 (La.1992). Therefore, we will first address Defendant's sufficiency arguments.

Sufficiency of Evidence

Defendant asserts the evidence at trial was insufficient to prove that he committed aggravated second degree battery and second degree kidnapping of Ms. Strahan beyond a reasonable doubt.

An insufficient evidence claim is reviewed on appeal under the standard set forth by Jackson , 443 U.S. 307, 99 S.Ct. 2781. "[T]he relevant question 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." State v. Ellis , 179 So.3d 586, 588 (La. 2015) (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ).

It is the fact finder's responsibility to weigh the witnesses' credibility. Thus, other than insuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but defer to the credibility and evidentiary determinations of the jury. State v. Lambert , 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727.

When applying the Jackson standard, the Louisiana Supreme Court "has found that '[w]hen a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by [defendant], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.' " Ellis , 179 So.3d at 588 (quoting State v. Captville , 448 So.2d 676, 680 (La.1984) ).

Aggravated Second Degree Battery

Defendant challenges the sufficiency of evidence presented to convict him of aggravated second degree battery. First, a battery is "the intentional use of force or violence upon the person of another ...." La.R.S. 14:33. Second, the requirements to be convicted of aggravated second degree battery applicable in this case are:

A. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
B. For purposes of this Section, the following words shall have the following meanings:
....
(3) "Serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

La.R.S. 14:34.7.

Defendant admits he intentionally used force or violence upon Ms. Strahan using a cane: "The only thing that I had was a cane and that's what I was hitting her with. I hit her with that cane .... If I would have found a pipe or anything, I probably would have killed the girl." Defendant stated he hit Ms. Strahan "[o]n the face, the head, everywhere ...."

Additionally, Ms. Strahan testified Defendant hit her with a pistol. Testimony from Mr. Lavan, whom Defendant spoke to before Defendant was apprehended, corroborated Ms. Strahan's testimony that Defendant was in possession of a gun at the time of the offense. Defendant, therefore, admitted to aggravated battery, i.e. a battery committed with a dangerous weapon in violation of La.R.S. 14:34.

In order to increase the crime to the second degree, Defendant must have caused "serious bodily injury," defined as "unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La.R.S. 14:34.7(A) and (B)(3).

Defendant only challenges whether the State presented sufficient evidence to satisfy the "substantial bodily injury" element of this offense. Defendant asserts there was insufficient evidence presented to prove, beyond a reasonable doubt, that Ms. Strahan's subarachnoid hemorrhage and/or loss of consciousness was caused by Defendant and not by Ms. Strahan jumping from a moving vehicle.

In this incident, the State offered testimony that Ms. Strahan suffered a subarachnoid hemorrhage. Defendant admitted he continuously hit Ms. Strahan with a cane in the head. Ms. Strahan's diagnosis included an inter-cranial hemorrhage. Ms. Strahan's treating physicians, Dr. Marshall Naquin and Dr. Lujan, testified a subarachnoid hemorrhage can be a substantial risk of death for the injured person. Dr. Lujan testified the Ms. Strahan's injuries, mostly on the left side, could have been from being beaten inside the car or from falling. Because the subarachnoid hemorrhage was a possible life-threatening condition, Ms. Strahan was transferred to Lafayette General Hospital.

Dr. Naquin and Dr. Michael Horaist treated Ms. Strahan at Lafayette General Hospital. Dr. Naquin testified Ms. Strahan's injuries were consistent with the trauma she described-being hit in the head with a gun or possibly a cane. Dr. Horaist further testified Ms. Strahan's head injury was consistent with falling from a moving vehicle or being hit with a pistol. Dr. Naquin confirmed Dr. Lujan's testimony-a subarachnoid hemorrhage can be a substantial risk of death.

Louisiana Revised Statutes 14:34.7(B)(3) also defines "serious bodily injury" as a loss of consciousness. Ms. Strahan testified she lost consciousness on Green Oak Road. The responding paramedic recalled Ms. Strahan crying and making incoherent sounds. Her head was bleeding and nose deformed with swelling. The paramedic "suspected a possible loss of consciousness" because of her low Glasgow Coma Score. Both Dr. Naquin and Dr. Horaist agreed it was possible Ms. Strahan lost consciousness prior to arrival at the emergency room.

Finally, "serious bodily injury" also includes "extreme physical pain or protracted and obvious disfigurement." La.R.S. 14:34.7. All those who rendered medical aid to Ms. Strahan testified she complained of a severe headache and facial pain, and noticed her nose and face were deformed from swelling. The responding paramedic testified Ms. Strahan was crying when he arrived, in pain all over, specifically her head, and her nose was bleeding and swelling. He recounted:

Starting with the head she had pain, swelling to the left cheek, tongue and top lip, bleeding from the tongue and nose, swelling and a smashed deformity to the nose. Pain to the neck, tender. Also, pain to the chest, tender to both sides around the rib area. Then on to the abdomen, she had pain, it was tender to palpation. Pelvis was tender, and she had noted pain.

The paramedic only noted road rash on her legs and feet. Based on her injuries and pulse he suspected Ms. Strahan could have been in shock. Dr. Lujan recalled Ms. Strahan labeled her pain ten out of ten. Ms. Strahan's nose was also deformed, smashed, and fractured. Ms. Strahan's care providers testified her injuries were consistent with being hit in the head with a gun or possibly a cane.

Considering the evidence introduced at trial and when viewing the evidence in the light most favorable to the State, we find the evidence was sufficient for a rational factfinder to find that the element of "serious bodily injury" was proven beyond a reasonable doubt.

Second Degree Kidnapping

Louisiana Revised Statutes 14:44.1 enumerates the requirements for second degree kidnapping. Those pertinent parts are:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
....
(3) Physically injured or sexually abused; [or]
....
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

La.R.S. 14:44.1.

Defendant argues the State did not prove he moved Ms. Strahan from one place to another. While we disagree, actual movement from one place to another is not a required element of the offense. State v. Woodberry , 14-476 (La.App. 4 Cir. 6/3/15), 171 So.3d 1082, writ denied , 15-1245 (La. 6/17/16), 192 So.3d 770. The State need only prove Ms. Strahan was imprisoned or secreted and physically injured. Id. The statute does not require that the imprisonment exist for any minimum period of time. Id. Instead, the State only had to prove one act mentioned in Subsection (B) combined with any one act in Subsection (A).

Ms. Strahan admitted she entered Defendant's truck voluntarily to retrieve her phone. However, Ms. Strahan testified she did not anticipate Defendant would drive away with her in the vehicle. According to the trial testimony, after driving away, Defendant began hitting Ms. Strahan with his hands, a cane, and a gun. Ms. Strahan entered Defendant's truck a second time at the graveyard. After getting out of the truck, Defendant continued to beat Ms. Strahan and she believed Defendant had a gun. Ms. Strahan returned to the vehicle because she felt she had no choice. After driving some distance to Green Oak Road, Ms. Strahan leapt from Defendant's moving vehicle to escape.

Viewing the evidence in the light most favorable to the prosecution, we affirm the conviction for second degree kidnapping. Ms. Strahan testified she did not voluntarily leave with Defendant. Ms. Strahan's testimony is supported by her decision to jump from a moving vehicle in order to escape Defendant. Additionally, Ms. Strahan suffered physical injuries from the kidnapping. Accordingly, we find there was sufficient evidence to prove that Defendant committed aggravated second degree battery and second degree kidnapping and we now address Defendant's second argument.

Double Jeopardy

Defendant also contends that his convictions for aggravated second degree battery and second degree kidnapping violated his protection against double jeopardy. According to Defendant, the evidence admitted at trial suggests he was subjected to multiple punishments for the same course of conduct.

It is unconstitutional to place a person twice in jeopardy of life or limb for the same offense. State v. Steele , 387 So.2d 1175 (La.1980). "The guarantee against double jeopardy provides three central constitutional protections" one of which is "protection against multiple punishments for the same offense." State v. Brown , 42,188, 42,189, 42,190, p. 38 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 755. We must determine whether a single or multiple offenses were involved.

The Louisiana Supreme Court has very recently announced that Louisiana courts "are bound only to apply the standard established by the U.S. Supreme Court in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) to protect against double jeopardy[.]" State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27. Under the Blockburger test, "there is no double jeopardy ... where each provision requires proof of an additional distinct element that the other does not." State v. Cooley , 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87 So.3d 285, 295, writ denied , 12-1008 (La. 10/26/12), 99 So.3d 640. In other words, "a defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other." Frank , 234 So.3d at 30, (citing State v. Balentine , 47,858, p. 2 (La.App. 2 Cir. 7/10/13), 119 So.3d 979, 985 (Drew, J., dissenting) ).

Applying the Blockburger test to the facts of this case, both offenses for which Defendant was convicted require proof of an element not included in the other. Defendant, here, was convicted of aggravated second degree battery, which includes the intent to inflict serious bodily injury, and second degree kidnapping, which includes the imprisoning or forcible secreting of a person. La.R.S. 14:34.7 and 14:44.1. Clearly, each of these crimes contains an element not included in the other, and the element unique to each crime requires proof of facts which the other crime does not.

Accordingly, convictions for aggravated second degree battery and second degree kidnapping do not constitute double jeopardy under Blockburger . We find this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we find the evidence was sufficient to find Gregory Hampton guilty of aggravated second degree battery and second degree kidnapping. The convictions do not constitute double jeopardy under the facts of this case, and that assignment is without merit. However, the sentence of aggravated second degree battery does not provide one year be served without benefit of parole, probation, or suspension under the facts of this case. Therefore, we modify Defendant Gregory Hampton's sentence as it pertains to the aggravated second degree battery to remove the requirement that one year be served without benefit of parole, probation, or suspension.

AMENDED, AND AS AMENDED, AFFIRMED.

      Previously that day, Ms. Strahan sought a restraining order against Defendant, but the order was not served on Defendant before this incident.

      Mr. Touchet's daughter was with him in his vehicle. Mr. Touchet moved his car so his daughter could see Defendant's license plate and copy it down.