author: MAX N. TOBIAS, JR., Judge. ARMSTRONG, C.J.,

text:
    Anton HEINE and Anton, Ltd. v. Julia REED and Harpercollins Publishers, L.L.C.
    No. 2009-CA-0869.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.

      C. Arlen Braud, II, Michelle O. Gallagher, Braud & Gallagher, LLC, Madison-ville, LA, for Plaintiffs/Appellants.
    Mary Ellen Roy, Dan Zimmerman, Phelps Dunbar, LLP, New Orleans, LA, For Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

[ tThe plaintiffs/appellants, Anton Heine (“Heine”) and Anton, Ltd., filed a defamation action against the defendants/appel-lees, Julia Reed (“Reed”) and HarperCollins Publishers, L.L.C. (“HarperCollins”). The trial court sustained the defendants/appellees’ exception of no cause of action, and the plaintiffs/appellants timely appealed. We find that the published statements do not meet the elements necessary to support a cause of action in defamation. Accordingly, we affirm the trial court’s ruling.

I. FACTUAL AND PROCEDURAL HISTORY

HarperCollins published a book entitled, The House on First Street: My New Orleans Story, written by the defendant/appellee, Reed, an author and a contributing editor for Newsweek and Vogue magazines. The book memorializes Reed’s experiences living in New Orleans, both before and after Hurricane Katrina. In the epilogue, Reed recounts an illustrative story depicting a burglary that occurred at her home, including the theft of the computer upon which she was writing her book and heirloom jewelry. Reed descriptively chronicles her becoming aware that Anton “Feine” of “Anton’s Fine Jewelry” (in actuality, the | gplaintiffs/appellants, respectively, Anton Heine and Anton, Ltd.) were auctioning a piece of her stolen jewelry on the Internet and her encounter with Heine and law enforcement personnel as she attempted to recover her stolen property. Using colorful language and brazen prose, Reed’s epilogue expresses her unabashed impressions regarding Heine and his business operations. Displeased with the unfavorable observations made by Reed in her book, Heine, personally and on behalf of Anton, Ltd., filed suit against Reed and HarperCollins for libel and defamation. Specifically, Heine asserts in the petition that the published aspersions expose him and his business to “contempt, hatred, ridicule or obloquy or otherwise causes [Heine and Anton, Ltd.] to be shunned or avoided and tends to lower their esteem in the community.” The petition further avers that the language used by Reed deprives Heine and his business of the benefits of public confidence.

In response, HarperCollins and Reed excepted to the petition on the ground that it fails to state of cause of action because it fails to specifically identify any allegedly false and defamatory statements and fails to allege facts showing that the statements were made with the requisite degree of malice. The trial court sustained the exception of no cause of action and, determining that the “grounds of the objection raised through the exception cannot be removed by amendment of the petition,” dismissed Heine’s and Anton, Ltd.’s petition with prejudice. The plaintiffs/appellants timely appealed.

II. LAW AND DISCUSSION

A. Exception of No Cause of Action

|sThe function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the actual allegations of the petition. The exception is triable on the face of the petition. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true. La. C.C.P. arts. 927, 931; City of New Orleans v. Board of Com’rs of the Orleans Levee Dist., 93-0690, p. 2 (La.7/5/94), 640 So.2d 237, 241; Guste v. Hibernia Nat. Bank in New Orleans, 94-0264, p. 5 (La.App. 4 Cir. 5/16/95), 655 So.2d 724, 728. No evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted in the trial court without objection to enlarge the pleadings. Schmidt v. Schmidt, 08-0263, p. 4 (La.App. 4 Cir. 2/11/09), 6 So.3d 197, 201.

An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that an insurmountable bar to relief is present. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. City of New Orleans, 93-0690, p. 29, 640 So.2d at 253.

|4In reviewing a trial court’s sustaining an exception of no cause of action, an appellate court conducts a de novo review because the exception raises a question of law, and the trial court’s decision is based solely on the sufficiency of the petition. Industrial Companies, Inc. v. Durbin, 02-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213; Cleco Corp. v. Johnson, 01-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304.

B. Liability of Reed and HarperCol-lins for Defamation

In Louisiana, our standard for the “[fjreedom of [expression” is found in Article I, § 7 of the 1974 Louisiana Constitution, which guarantees “every person” the right to “speak, write and publish his sentiments on any subject,” but holds individuals “responsible for abuse of that freedom.” This protection does not extend to statements or allegations that are defamatory. Wattigny v. Lambert, 408 So.2d 1126, 1131 (La.App. 3 Cir.), writ denied, 410 So.2d 760 (La.1981), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1981). See also, Hahn v. City of Kenner, 984 F.Supp. 436, 441 (E.D.La.1997). What constitutes an abuse of the right of freedom of speech is, in part, controlled by La. C.C. art. 2315 and the law of tort on defamation (libel and slander). See F. Maraist, Vol. II, Louisiana Practice Series, Louisiana Torts Law: Cases and Materials, pp. 609-628 (1991).

Defamation is a tort involving the invasion of a person’s interest in his reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139; Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715. A plaintiff alleging a cause of action for defamation must set forth in |sthe petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald, 98-2313, p. 7, 737 So.2d at 713. A successful claimant in a defamation action must establish the following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790, 791 (La.1992). If even one of the required elements of the tort is lacking, the cause of action fails. Costello, 03-1146, p. 12, 864 So.2d at 140.

Louisiana courts have held that a communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community, deters others from associating or dealing with the person, or otherwise exposes a person to contempt or ridicule. Fitzgerald, 98-2313, p. 11, 737 So.2d at 716. See also Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559, citing RESTATEMENT (SECOND) OF TORTS § 559 cmt. e (1977). Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Costello, 03-1146, p. 13, 864 So.2d at 140; Fitzgerald, 98-2313, p. 11, 737 So.2d at 716. In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Brungardt v. Summitt, 08-0577, p. 8 (La.App. 4 Cir. 4/8/09), 7 So.3d 879, 885, citing Costello, 03-1146, p. 13, 864 So.2d at 139.

Words that expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, are considered defamatory per se. Brungardt, 08-0577, p. 8, 7 So.3d at 885. When the plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice are presumed, but may be rebutted by the defendant. Id. When the words at issue are not defamatory per se, the plaintiff must prove, in addition to defamatory meaning and publication, falsity and malice. Costello, 03-1146, p. 12, 864 So.2d at 140. Malice, or the lack of a reasonable belief in the truth of the statement, may sometimes be inferred or implied from the circumstances surrounding the communication. Lemeshewsky v. Dumaine, 464 So.2d 973, 975-976 (La.App. 4 Cir.1985). In cases involving statements about a public figure or a matter of public concern, however, the plaintiff must prove actual malice, that is, that the defendant either knew the statement was false or acted with reckless disregard for the truth. Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105, pp. 6-7 (La.1/17/95), 648 So.2d 866, 869-870.

The question of whether a communication is susceptible of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Sassone v. Elder, 626 So.2d 345, 352 (La.1993). The question is answered by determining whether a listener (or reader) could have reasonably understood the communication, taken in context, to have been intended in a |7defamatory sense. Id. If the court determines that the words at issue are not capable of a defamatory meaning, the plaintiffs claim is not actionable. Sassone, 626 So.2d at 352.

In a defamation action, to determine whether a plaintiff has properly stated a cause of action, the first inquiry is whether the words used are defamatory. See Huxen v. Villasenor, 01-288, p. 3 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212. Accordingly, we review the words published by Reed in the epilogue of her book referring to the plaintiffs/appellants to determine whether they are either defamatory per se or susceptible of a defamatory meaning:

The dealer’s name was Anton Feme [sic], from Anton’s Fine Jewelry, an establishment that had not come up in Vasser’s and my pawnshop search, but when I pulled up outside the building it was clear what kind of operation Anton was running — there were more bars on the windows and doors than in most jails and two doors to be buzzed through before being allowed inside. Stupidly, I had called first. When I walked in, the prissy Anton, heavily bedecked in gold with a head of very badly dyed brown hair, was nervously flitting around while his sister, who looked like a gangster’s moll, did all the talking. I couldn’t see the earrings unless I paid for them, she said; further I’d have to leave the store until the police, whom I had called, arrived. I had no intention of doing any such thing and noted several conspicuous gaps in Anton’s many display cases where items had been sold — or hidden— recently enough that they hadn’t been replaced. When the Jefferson Parish deputy arrived, he took the earrings as “evidence” and gave me the number of a detective, Sergeant Martin Dunn, in the “pawnshop department.” When I called Dunn from the car, he explained that the law required all pawnshop owners to take down the driver’s license information of everybody they purchased items from and to provide a complete inventory of the stuff. Anton had reported the earrings, along with: a platinum and diamond circle pin that had been my mother’s; a platinum and sapphire straight line bracelet that had been my grandmother’s — and my thirtieth birthday present; the antique gold cuff bracelet, the one circulated on the news that had been a gift from John after a particularly festive Rib Room lunch together;|Ra sapphire, diamond, and ruby brooch in the shape of a butterfly; two pairs of gold hoops, and finally, the diamond engagement earrings. It wasn’t everything but it was a lot, and I was thrilled at the prospect of getting it back. But then Detective Dunn gave me the bad news: the law also states that pawnshop owners are not required to report who they sell their wares to or even keep track — they were only required to return the stuff they still possessed. Anton, of course, was already claiming that he’d sold every other piece and had no idea to whom. Further, even if I managed to find some of the pieces myself, the new owners were not required to give them back, unlike what happens when you buy, say, a stolen car. All I could figure was that there must be one hell of a pawnshop lobby in Baton Rouge.
Compared to Orleans Parish, Jefferson Parish, which for years was run by the iron hand of the late Sheriff Harry Lee, a Chinese-American country music singer with a penchant for straight talk and a merciless attitude toward the criminal element, was a model of efficiency. Within the week, Detective Dunn had called me to say the earrings had been photographed and logged and that I could come pick them up. He was on Anton’s case, he said, but there was nothing he could really force him to do. Then he showed me the black-and-white Xeroxed copy of the driver’s license belonging to Anton’s seller, a twenty-year-old black male with dreadlocks, a tattoo of a cross on the bridge of his nose, and indecipherable words tattooed on each cheek. The likelihood of his having legal access to almost a hundred thousand dollars worth of estate jewelry was nil and Anton sure would have known that the second he laid eyes on him. Even more disturbingly, I came to find out he has a handful of steady clients, including some “nice” Garden District ladies I know — and who also have to know perfectly well that they’re buying hot goods.
Under prodding from the good Detective Dunn, Anton finally coughed up the butterfly brooch to keep me at bay, and because there is no recourse against him in the criminal courts, John filed a civil suit against him, though he is so cagy it took weeks to serve the papers. The seller (who may or not be the actual thief) is currently in jail for another crime and I am trying to figure out how to get to him to ask him where he might have sold the remaining stuff.

|3Sometimes a publication is capable of being read with two different meanings; one that is defamatory or one which is innocent Such is not the case before us, however.

In their brief on appeal and again during oral argument, counsel for plaintiffs/appellants narrowed the issue to only one published statement, which they claim contains the elements necessary to sustain a defamation action:

I came to find out he has a handful of steady clients, including some “nice” Garden District ladies I know — and who also have to know perfectly well that they’re buying hot goods.

We disagree with the plaintiffs/appellants that this statement is either defamatory per se or capable of a defamatory meaning. The only reference to Heine in this sentence is that he has a “handful of steady clients” that includes some “‘nice’ Garden District” ladies that Reed knows. The remainder of the sentence, if anything, is disparaging to these unnamed Garden District ladies, who Reed opines must have known were “buying hot goods.” In short, Reed insinuates that the Garden District ladies had knowledge of the monetary value or high quality of the items they were purchasing from Heine’s store and, therefore, they must have known they were buying stolen goods. The statement, however, says nothing— nor does it imply — that Heine actually knew anything about the true value of the items he was buying and selling or that he was knowingly selling stolen goods. While certainly cleverly couched and carefully written by Reed, we |incannot say that this sentence, singled out by the plaintiffs/appellants as forming the basis for their defamation action, constitutes defamation per se or rises to the level of “defamatory words.”

Having failed to meet the threshold requirement for establishing a cause of action in defamation, we hold the trial court properly sustained HarperCollins’ and Reed’s exception of no cause of action. When an exception of no cause of action is granted, and the grounds for the exception cannot be removed by amendment of the petition, then the petition must be dismissed. La. C.C.P. art. 934. In ruling on the exception of no cause of action, the trial court considered each of the statements about the plaintiffs/appellants contained in Reed’s epilogue and correctly concluded that none of the statements were defamatory. Consequently, the grounds for the exception cannot be removed by amendment of the petition, 11 tand we find the trial court correctly dismissed the plaintiffs/appellants’ petition, with prejudice.

CONCLUSION

We have reviewed the plaintiffs/appellants’ petition and the epilogue written by Reed and published by HarperCollins. Accepting the well-pleaded factual allegations as true, we find the plaintiffs/appellants have failed to allege any statements made by the defendants/appellees that rise to the level of defamation. Accordingly, we conclude that the facts alleged by the plaintiffs/appellants do not state a cause of action for defamation, and the trial court correctly dismissed the plaintiffs/appellants’ claims for defamation against Har-perCollins and Reed.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED.

ARMSTRONG, C.J.,

concurs in the result.

hi would affirm the judgment of the trial court. Therefore, I respectfully concur in the result reached by the majority.

      . Heine owns Anton’s, Ltd.

      . The portion of the epilogue in Reed’s book that refers to the plaintiffs/appellants was in-eluded, without objection, as an exhibit to the memorandum in support of the defendants/appellees' peremptory exception of no cause of action and as an exhibit to the plaintiffs/appellants’ opposition to the exception. Thus, the epilogue was properly considered by the trial court in granting the exception of no cause of action. See City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1179, p. 10 (La.3/2/99), 739 So.2d 748, 756 (documents submitted without objection may be considered in ruling on exception of no cause of action).

      . The substantive criminal law on defamation may be considered in determining the substantive civil law on defamation. See, for example, Gugliuzza v. KCMC, Inc., 593 So.2d 845 (La.App. 2 Cir.), rev'd on other grounds, Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790, 793 (La.1992)
      The Louisiana Criminal Code in La. R.S. 14:47 defines defamation in pertinent part as follows:
      Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, or anything which tends:
      (1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public or social intercourse; or
      (2) To expose the memory of one deceased to hatred, contempt, or ridicule; or
      (3) To injure any person, corporation, or association of persons in his or their business or occupation.
      The Louisiana Criminal Code further addresses the "presumption of malice” in La. R.S. 14:48:
      Where a non-privileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown.
      Where such a publication or expression is true, actual malice must be proved in order to convict the offender.

      . Moreover, Reed acknowledges, although apparently begrudgingly, that that neither plaintiff did anything illegal when she states:
      [T]he law required all pawnshop owners to take down the driver’s license information of everybody they purchased items from and to provide a complete inventory of the stuff.... [T]he law also states that pawnshop owners are not required to report who they sell their wares to or even keep track— they were only required to return the stuff they still possessed.... All I could figure was that there must be one hell of a pawnshop lobby in Baton Rouge.

      . Some of Reed's comments about Heine and his sister are opinion and/or commentary, that although subject to being characterized as unkind and insensitive, can be understood to be "fair” comment, to-wit:
      When I walked in, the prissy Anton, heavily bedecked in gold with a head of very badly dyed brown hair, was nervously flitting around while his sister, who looked like a gangster's moll, did all the talking.
      And comments that Reed makes about the purported thief can be read as bigoted, to-wit:
      Then he showed me the black-and-white Xeroxed copy of the driver’s license belonging to Anton's seller, a twenty-year-old black male with dreadlocks, a tattoo of a cross on the bridge of his nose, and indecipherable words tattooed on each cheek. The likelihood of his having legal access to almost a hundred thousand dollars worth of estate jewelry was nil and Anton sure would have known that the second he laid eyes on him.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Carol Rotherham SCHMITT v. Alton Francis SCHMITT.
    No. 2009-CA-0415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.

      Robert C. Lowe, Melanie Lockett, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    D. Douglas Howard, Jr., Stacey L. Miller, Jonathan C. Pedersen, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judges CHARLES R. JONES, PATRICIA RIVET MURRAY, and MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

|, This is a post-divorce matter. Carol Schmitt, the plaintiff, seeks review of the trial court’s judgment finding that she was not free from fault in the dissolution of the marriage to Alton Schmitt, and thus precluded from receiving a final periodic spousal support award. The trial court’s finding of fault was a factual finding based on its resolution of the parties’ conflicting testimony. Because the trial court’s factual finding was not manifestly erroneous, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 1993, the parties were married, having dated for nine years. On June 1, 1993, shortly before getting married, at Mr. Schmitt’s request, the parties entered into a separation of property agreement (a marriage contract). Both parties had been married before and both had children from their prior marriages. No children were born of this marriage.

On November 2, 2007, after fourteen years of marriage, Mrs. Schmitt filed a petition for divorce under La. C.C. art. 102, which provides for a divorce based on living apart 180 days or more. In her petition, she sought interim and final periodic | gspousal support under La. C.C. arts. Ill, 112, and 113. On April 8, 2008, the trial court awarded Mrs. Schmitt interim spousal support of $2,027 per month retroactive to the date of judicial demand, November 2, 2007. On June 2, 2008, Mr. Schmitt filed a rule for divorce under La. C.C. art. 102. On July 15, 2008, the trial court granted the divorce.

On October 21, 2008, a hearing was held on the issue of whether Mrs. Schmitt was free from fault in the break-up of the marriage for purposes of permanent spousal support. At the hearing, the sole witnesses were Mr. and Mrs. Schmitt. The parties introduced a copy of the marriage contract and two letters Mr. Schmitt wrote to Mrs. Schmitt in July 2007. The trial court took the matter under advisement. On December 12, 2008, the trial court rendered judgment finding Mrs. Schmitt was not free from fault and thus denying her request for final periodic support. This appeal followed.

DISCUSSION

The sole issue on appeal is whether the trial court erred in denying Mrs. Schmitt’s request for final periodic support. Final periodic support is provided for in La. C.C. arts. 111 and 112. Article 111 provides that “[i]in a proceeding for divorce or thereafter, the court may award ... final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.” Article 112(A) provides that “[w]hen a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support.”

Under C.C. art. 112, the claimant spouse seeking final periodic support must be without fault. Currier v. Currier, 599 So.2d 456 (La.App. 2d Cir.1992). Freedom from, fault is thus a prerequisite to a former spouse’s claim for final periodic spousal support. The claimant spouse has the burden to “affirmatively prove” his or her freedom from fault. Wolff v. Wolff, 07-0332, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1202, 1205.

Although the code articles do not define fault, the comments to Article 111 indicate that “[fjault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce.” La. C.C. art. 111, 1997 Revision Comment (c)(citing Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359). Fault thus includes habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Walker v. Walker, 41,573, pp. 2-3 (La.App. 2 Cir. 11/1/06), 942 So.2d 605, 608. A spouse who petitions for final periodic support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Gremillion v. Gremillion, 39,588, p. 11 (La.App. 2 Cir. 4/6/05), 900 So.2d 262, 269-70.

The trial court is vested with vast discretion in the determination of fault because this issue turns largely on evaluations of witness credibility. Gilley v. Gilley, 07-0568, p. 3 (La.App. 5 Cir. 12/11/07), 976 So.2d 727, 728; Jones v. Jones, 38,790, p. 12 (La.App. 2 Cir. 06/25/04), 877 So.2d 1061, 1070. A trial court’s factual findings regarding fault in the area of domestic relations are to be given great deference, and findings of fact on the issue of a spouse’s fault for the purposes of determining final periodic support will not be disturbed on appeal unless found to be manifestly erroneous. Washington v. Washington, 02-2226, p. 16 (La.App. 4 Cir. 4/23/03), 846 So.2d 895, 904.

In this case, Mr. Schmitt contends that Mrs. Schmitt’s fault consisted of abandonment. The essential elements required to establish abandonment are withdrawal from the common dwelling, absence of lawful cause for the withdrawal, and refusal of the spouse who withdrew to return to live with the other. Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir.1976). It is undisputed that Mrs. Schmitt withdrew from the common dwelling and that she refused, despite Mr. Schmitt’s requests, to return. The only element in dispute is her absence of lawful cause for withdrawing.

Although in determining entitlement to final periodic support the fault of the spouse from whom support is sought generally is not pertinent. However, an exception is recognized when the ground for establishing fault on the part of the claimant spouse is abandonment. Terry v. Terry, 06-1406, p. 8 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, 796 n. 1 (citing Gitschlag v. Gitschlag, 593 So.2d 1331, 1335, n. 1 (La.App. 1st Cir.1991)). Cruel treatment by the other spouse may be sufficient to constitute lawful cause to leave. To prove cruel treatment a party | ¡qieeds to show a continued pattern of mental harassment, nagging, and griping by one spouse directed at the other so as to make the marriage insupportable. Gilley, 07-0568 at p. 2, 976 So.2d at 728; Brewer v. Brewer, 573 So.2d 467 (La.1991)(noting that for cruel treatment to constitute fault, it must be of a nature which compel a separation because the marriage is insupportable). “When the degree of spousal fussing and bickering ... allows the finding of a pattern of harassment, unbraiding, nagging and griping, a determination by the trial court of cruel treatment has been found supported by the record.” Simon v. Simon, 96-876, p. 7 (La.App. 5 Cir. 5/14/97), 696 So.2d 68, 73 (quoting Guillory v. Guillory, 626 So.2d 826, 831 (La.App. 2d Cir.1993)). However, “[m]ere friction or dissatisfaction in the relationship or incompatibility between the spouses, however intense, is not enough to constitute cruel treatment or lawful cause for abandonment.” Adkins v. Adkins, 42,076, p. 4 (La.App. 2 Cir. 4/11/07), 954 So.2d 920, 923. Each must be decided on its own facts.

In this case, Mrs. Schmitt contends that Mr. Schmitt’s conduct and treatment far exceeded reasonable bickering between average married couples and rose to the level of cruel treatment. She further contends that a series of incidents can lay the foundation for one spouse leaving the other and that such was the case here. Mr. Schmitt, on the other hand, contends that the parties had the same day to day garden variety problems experienced in all long term marriages and that their mere bickering and fussing was not sufficient to constitute cruel treatment. Although the | (¡trial court did not provide reasons for judgment, it apparently found that Mrs. Schmitt lacked justification to leave.

Mrs. Schmitt acknowledges that her burden of establishing that the trial court was manifestly erroneous in finding her at fault is a difficult one. Nonetheless, she contends that there is no support in the record for the trial court’s finding. Rather, she contends that the testimony of the parties coupled with the two letters Mr. Schmitt wrote to her in July 2007 establish that she was a good wife, why the marriage failed, and her freedom from fault. She contends that Mr. Schmitt’s letters constituted judicial confessions under La. C.C. art. 1853 of his fault that in turn justified her abandoning him.

A similar situation was presented in Blackman v. Blackman, 253 So.2d 672 (La.App. 2d Cir.1971). In that case, the wife was seeking to establish she had justification for leaving by establishing her husband’s cruelty. To do so, the wife relied, in part, on a letter written by her husband after she left in which he asked for her forgiveness and begged her to return. Affirming the trial court’s decision rejecting the wife’s demands, the court of appeal reasoned that the evidence before the trial court consisted primarily of the conflicting testimony of the parties, which the trial court resolved in the husband’s favor.

In this case, Mr. Schmitt testified that in the two letters he wrote what he thought Mrs. Schmitt wanted to hear; he “was apologizing for being unkind at times and selfish at times just as people are in all marriages.” He thus contends that the nice things that he said about Mrs. Schmitt in the letters do not prove that she |7was justified in leaving. We agree. The letters, although relevant, were not dispositive of the issue of whether Mrs. Schmitt was free from fault. Rather, the letters have to be read in the context in which they were written: a husband begging his wife to return. The evidence before the trial court thus consisted primarily of the parties’ conflicting testimony.

The record reflects that Mr. Schmitt was a pharmacist and made about five times more than she made in her job as a dental hygienist. Mr. Schmitt testified that he was overly generous in that he paid almost all of the household expenses, including electricity, gas, water, phone, car insurance, life insurance, medical insurance, homeowner’s insurance, cars that he bought for Mrs. Schmitt, car repairs, and house repairs. He also paid Mrs. Schmitt’s income taxes. Mr. Schmitt acknowledged that he did not pay any of her uncovered medical expenses. Mr. Schmitt also acknowledged that he was not overly generous in terms of taking Mrs. Schmitt out to eat and things of that nature. Although Mrs. Schmitt admitted that he regularly bought her Christmas presents, she testified that she had to beg Mr. Schmitt to buy food for the holidays and that he rarely bought her clothes. She testified that when they came home from their honeymoon he told her he was not going to take her on any more vacations.

At some time before 2003, Mrs. Schmitt left Mr. Schmitt for about three months. Her reason for leaving the first time was because he was becoming a | ¿monster, out of control, locked her out of the bedroom many times, kicked her in bed, called her the worse wife, told her she was a horrible person, and threatened to take her car (which was in his name). Her reason for returning was that he promised that he was going to work on his issues: being respectful to her; and being more generous, kind, and loving, especially patient. According to Mrs. Schmitt, he worked on these things for about two weeks after she returned and then he got worse than ever.

During the period of 2003 to 2005, Mrs. Schmitt had three back surgeries and one neck surgery. Mrs. Schmitt testified that after her surgeries Mr. Schmitt did not help her and that he expected her to do the cooking and cleaning. In his deposition Mr. Schmitt agreed that he did not help his wife after the surgeries, but at trial he disagreed. Mr. Schmitt acknowledged that he flushed Mrs. Schmitt’s prescription pain medication (Percocet) down the toilet. He explained that she promised him that she would not take Percocet because it is highly addictive. She told him that the drug was prescribed to her by mistake. He further explained that he flushed the Percocet down the toilet because he felt it was in her best interest not to take it.

In response to the trial court’s question of whether she believed she was at fault for the break up of the marriage, Mrs. Schmitt testified “[ajbsolutely not” and that she did everything she could to make the marriage work. Mrs. Schmitt testified that the reason she left in 2007 was because Mr. Schmitt was treating her |3worse, condemning her, being more controlling, and continually screaming. She cited two things that prompted her departure in 2007. First, she stated that when Mr. Schmitt’s stockbroker would come over, she would have to go in the other room because Mr. Schmitt did not want her to know anything about his money. Second, Mr. Schmitt told her not to talk to anybody in his family and that they thought she was weird.

Mr. Schmitt described their marital problems as normal type problems that any couple married for a long time experiences. He testified that their marriage had its ups and downs. He further testified that his wife on occasion was displeasing to him. He noted that she had bizarre behaviors, including leaving the front door unlocked, claiming that an eighteen-wheeler truck backed up into her on the interstate, and setting a pillow on fire. He characterized Mrs. Schmitt as a little absent minded and “[a] lot careless.”

Mrs. Schmitt testified that Mr. Schmitt was jealous of her family and her relationship with them. She testified that Mr. Schmitt is very obsessive compulsive and that he knew she was “scatter-brained” when he married her. She also described herself as clumsy.

The parties agree that Mr. Schmitt never physically abused or harmed Mrs. Schmitt. They also agree that throughout the marriage they continued to sleep | mtogether and to have sex; Mrs. Schmitt never denied Mr. Schmitt sex. Mrs. Schmitt testified that she believed in sexual healing and that she took her marriage vows seriously.

Based on our review of the record, we do not find that Mrs. Schmitt satisfied her burden of establishing her freedom from fault. In light of the conflicting testimony and facts presented at the hearing and considering the vast discretion provided the trial court, we cannot conclude that the trial court’s factual finding of fault on her part was manifestly erroneous.

Mr. Schmitt asserts a claim for frivolous appeal damages. In order to assert such a claim, an appellee must file an answer to the appeal in this court. La. C.C.P. art. 2133. Although Mr. Schmitt filed an answer asserting such a claim, he filed it in the trial court. For this reason, we do not reach this issue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The trial court did not provide any factual findings or reasons for judgment. Neither party made a request pursuant to La. C.C.P. art. 1917(A) for the court to provide written reasons.

      . Mr. Schmitt retired in March 2007. Mrs. Schmitt stopped working around 2003 due to her back and neck problems.

      . Although the parties had a separation of property agreement, it did not address the sharing of expenses.

      . At trial, she testified that she was taking various prescription medications, including Percocet for pain.

      . Mrs. Schmitt testified that she accidentally set the pillow on fire. She stated that she had a candle burning to get rid of the odor of smoke from her mother’s clothes that she was washing. She explained that Mr. Schmitt had told her not to wash her mother's clothes. However, since her mother was dying, she defied him and was washing the clothes. Since her mother smoked, her clothes smelled of smoke. In order to avoid her husband smelling the smoke from the clothes, she was burning a candle. The pillow that she was relaxing on came into contact with the burning candle and caught on fire.


author: TERRI F. LOVE, Judge.

text:
    Sherry Coleman TARANTO, Dean Coleman and William S. Coleman, Jr. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION d/b/a Louisiana Citizens Coastal Plan.
    No. 2009-CA-0413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.

      John H. Denenea, Jr., Shearman-Dene-nea, L.L.C., New Orleans, LA, for Sherry Coleman Taranto, Dean Coleman, and William S. Coleman, Jr.
    John W. Waters, Jr., Douglas Kleeman, Kristen Mosely-Jones, Bienvenu, Foster, Ryan & O’Bannon, LLC, New Orleans, LA, for Louisiana Citizens Property Insurance Corporation.
    Wayne J. Fontana, Shannon M. Frese, Fontana & Seelman, LLP, New Orleans, LA, for Amici Curiae (LABI, LASIE, LRA, LADA, IIABL, GNOHLA, and MCCNO).
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

11 The trial court granted an exception of prescription based upon a petition seeking damages from the Louisiana Citizens Property Insurance Corporation that was filed almost three years after Hurricane Katrina. We find that the plaintiffs’ claims were not prescribed and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Sherry Coleman Taranto, Dean Coleman, and William S. Coleman, Sr. (collectively “Plaintiffs”) filed a petition on June 27, 2008, against Louisiana Citizens Property Insurance Corporation (“LCPIC”) for damages resulting from Hurricane Katrina. The Plaintiffs sought payment of their policy limits and damages, as well as alleged emotional distress and mental anguish. LCPIC filed an exception of prescription alleging that the one-year and two-year prescriptive periods expired prior to the Plaintiffs filing suit. The trial court granted the exception of prescription and dismissed the Plaintiffs’ claims with prejudice. The Plaintiffs’ devolutive appeal followed.

The Plaintiffs only argument asserted in their petition was that LCPIC’s internal operating manual included a ten-year limitation on filing suit. The trial court found that there was no meeting of the minds and held that the ten-year limitation did not apply. During the trial court’s hearing, counsel for the Plaintiffs alleged that because of pending class action cases, there may be a suspension of prescription pursuant to La. C.C.P. art. 596. On appeal, the Plaintiffs again assert that the ten-year limitation applies and also urges that La. C.C.P. art. 596 suspends prescription.

STANDARD OF REVIEW

The appellate court will not reverse a trial court’s findings of fact on a peremptory exception of prescription unless the decision is clearly wrong. Babin v. Planet Beach Tanning Salons, Inc., 08-1350, p. 3 (La.App. 4 Cir. 8/25/09), 8 So.3d 780, 782-83. The “issue before the appellate court is not whether the fact finder is right or wrong, but whether the fact finder reached a reasonable conclusion.” Babin, 08-1350, p. 3, 8 So.3d at 783.

“Prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished.” Boykins v. Boykins, 07-0542, p. 4 (La.App. 4 Cir. 4/30/08), 984 So.2d 181, 184. “The burden of proving prescription remains with the mover.” Pitts v. Louisiana Citizens Prop. Ins. Corp., 08-1024, p. 3 (La.App. 4 Cir. 1/7/09), 4 So.3d 107, 109, writ denied, 6 So.3d 772 (La.4/3/09). “However, when the plaintiffs claim is prescribed on the face of the petition, the burden shifts to the plaintiff to negate prescription by establishing a suspension or interruption.” Hodges v. Republic W. Ins. Co., 05-0245, pp. 3-4 (La.App. 4 Cir. 12/14/05), 921 So.2d 175, 178.

PRESCRIPTION

“There are three kinds of prescription: acquisitive prescription, liberative prescription, and prescription of nonuse.” La. C.C. art. 3445. “There is no ^prescription other than that established by legislation.” La. C.C. art. 3457. Further, “[p]rescription runs against all persons unless exception is established by legislation.” La. C.C. art. 3467.

Internal Operating Manual

Alleging estoppel, the Plaintiffs aver that LCPIC’s manual that contains a ten-year prescriptive period precludes LCPIC’s assertion that their claims have prescribed. However, the Plaintiffs admitted at the hearing on the exceptions that they were unaware of the ten-year limitation until the manual was produced during discovery. It is undisputed that the manual was never released to the Plaintiffs pri- or to discovery.

The insurance policy contained the following language: “11. SUITS AGAINST US. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” While the Plaintiffs allege, after reading a manual produced during discovery containing an alleged ten-year limitation period, that LCPIC is estopped from asserting prescription, they must first show that LCPIC’s actions led them to believe that the one-year prescriptive period did not apply. Blum v. Cherokee Ins. Co., 336 So.2d 894, 897 (La.App. 4th Cir.1976). The record in the case sub judice contains no evidence that the Plaintiffs relied upon the alleged ten-year prescriptive period in filing their petition on June 27, 2008, because they were unaware of the alleged time period until LCPIC produced the manual during discovery. Therefore, we do not find that the trial court erred in granting the exception of prescription based on these grounds.

La. C.C.P. art. 596

Plaintiffs’ counsel also argued, for the first time at the trial court’s hearing, |^that La. C.C.P. art. 596 may suspend prescription. La. C.C.P. art. 596 provides:

Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3)As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

Regarding the prescriptive periods for claims arising from Hurricane Katrina, the Louisiana Supreme Court stated that Acts 2006, Nos. 739 and 802 “extend the prescriptive period under which certain insurance claims arising from Hurricanes Katrina and Rita may be filed” and “may alter the insurance the insurance contractual provisions regarding the time period in which to bring a claim.” State v. All Prop. and Cas. Ins. Carriers, 06-2030, p. 1 (La.8/25/06), 937 So.2d 313, 316. Act 739 “amended La. R.S. 22:629,” which was formerly Subsection (A)(3), and was redesig-nated as subsection (B) to provide as follows:

B. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, or any group health and accident policy insuring a resident of this state regardless of where made or delivered, shall contain any condition, stipulation, or agreement limiting right of action against the insurer to a period of less than twelve months next after the inception of the loss when the claim arises under any insurance classified and defined in R.S. 22:6(10), (11), (12), and (13), or to a period of less than one year from the time when the cause of action accrues in |5connection with all other insurances unless otherwise specifically provided in this Code.

All Prop., 06-2030, p. 8 (La.8/25/06), 937 So.2d 313, 320. Act 739 also enacted La. R.S 22:658.3, which provided

§ 658.3. Filing claims; extension for claims arising from hurricane activity. A. Notwithstanding any other provision of this Title to the contrary, any person or entity having a claim for damages pursuant to a homeowners’ insurance policy, personal property insurance policy, tenant homeowners’ insurance policy, condominium owners’ insurance policy, or commercial property insurance policy, and resulting from Hurricane Katrina shall have through September 1, 2007, within which to file a claim with their insurer for damages, unless a greater time period to file such claim is otherwise provided by law or by contract.

“Act 739 was signed by the governor on June 29, 2006, and became effective on that date.” All Prop., 06-2030, pp. 8-9 (La.8/25/06), 937 So.2d 313, 320.

As to Act 802, the Louisiana Supreme Court stated that it “set forth uncodified law” attempting to

prevent additional hardship to property owners who have already been overwhelmed and daunted by these hardships and have endured so much grief and suffering and who soon will be forced to decide whether to institute a lawsuit to preserve their cause of action, possibly causing unnecessary litigation or compromising ongoing settlement discussions ....

All Prop., 06-2030, p. 9 (La.8/25/06), 937 So.2d 313, 320-21. The “uncodified legislation” further provided for

an additional, limited exception to the running of prescription and, as such, prevents the running of prescription for one year on any claim seeking to recover for loss or damage to property against an insurer on any homeowners’ insurance policy, including tenant and condominium policies, personal property insurance policy, commercial property insurance policy, or flood insurance policy, on any automobile or fleet policy for loss or damage to an insured’s vehicle caused by flood, | ¿wind, or rain, or on any policy for loss or damage to crop or livestock, when such loss or damage was caused by or as a result of Hurricane Katrina or Hurricane Rita, or both. Accordingly, any such claim for damages caused by Hurricane Katrina shall be instituted on or before August 30, 2007, and any suit not instituted within that time and any claims relating thereto shall be forever barred unless a contract or the parties thereto provide for a later date. Any such claim for damages caused by Hurricane Rita shall be instituted on or before September 25, 2007, and any suit not instituted within that time and any claims relating thereto shall be forever barred unless a contract or the parties thereto provide for a later date.

All Prop., 06-2030, p. 9, 937 So.2d at 321. Act 802 became effective on June 30, 2006. The Louisiana Supreme Court stated that Act 802 “did not amend existing law or enact a new statute.” All Prop., 06-2030, p. 9, 937 So.2d at 320.

This Court held in Pitts that the filing of a class action interrupted prescription as to putative class members from Buxton v. Louisiana Citizens Prop. Ins. Co. and Chalona v. Louisiana Citizens Prop. Ins. Co., 08-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, in their representative capacities. 08-1024, pp. 5-6, 4 So.3d at 110. This case is not distinguishable from Pitts. The Plaintiffs would have been putative members of Chalona unless they actively opted out. The petitions that defined the proposed classes in Buxton and Chalona were timely filed on August 25, 2006. Pitts, 08-1024, p. 5, 4 So.3d at 110. The filing of a class action interrupts prescription for all putative members. Id. Therefore, we find that the trial court erred in granting LCPIC’s exception of prescription and reverse for further proceedings.

PEREMPTION

“Peremption is a period of time fixed by law for the existence of a right” and |7“[u]nless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La. C.C. art. 3458. “Peremption destroys the right,” whereas “prescription merely prevents the enforcement of a right by action.” La. C.C. art. 3458, Official Revision Comments—1982, comment (b).

LCPIC contends that the language “or shall be forever barred” demonstrates that the legislative intent of Act 802 was that the act be peremptive in nature. LCPIC alleges that the comments to La. C.C. art. 3458, which includes the language “or be forever lost” likewise demonstrates the commonality between peremption and Act 802. La. C.C. art. 3458, Official Revision Comments — 1982, comment (b). However, the comments to statutes pertaining to prescription contain similar language. Liberative prescription is described as “being a bar to an action.” La. C.C. art. 3445, Official Revision Comments—1982, comment (b). “Liberative prescription is a mode of barring of actions.” La. C.C. art. 3447. Given the similarity in language in the revision comments, we find LCPIC’s argument that the language contained in the revision comments should be disposi-tive lacks merit.

DECREE

For the above mentioned reasons, we find that the trial court erred in granting the LCPIC’s exception of prescription, as the Plaintiffs’ claims were not prescribed, and reverse.

REVERSED AND REMANDED.

      . LCPIC alleged that the notation in the manual was a typographical error.

      . The trial court never addressed the issue of whether La. C.C.P. art. 596 suspended prescription.

      . Although the Pitts Court acknowledged that pursuant to La. C.C.P. art. 596, "[a] class action petition suspends prescription,” the Court found that “prescription was interrupted on August 25, 2006.” The Louisiana Supreme Court has utilized similar language. For example, the Louisiana Supreme Court stated that “since the class action is brought on behalf of all members of the class, its filing interrupts prescription as to the claims of all members of the class, whether they are noticed before or after the prescriptive delay has terminated.” Williams v. State, 350 So.2d 131, 137, (La.1977).


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Darnell A. LEWIS.
    No. 2009-KA-0350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellee.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   MICHAEL E. KIRBY, Judge.

|TThe State charged Darnell A. Lewis with one count of simple burglary of an inhabited dwelling, and one count of possession of a stolen automobile. He pled not guilty at his arraignment. The trial court found probable cause to substantiate the charges and denied the defendant’s motions to suppress the evidence, identification and statement at a subsequent motion hearing. On the date of trial the State amended count two of the bill of information from possession of a stolen automobile to unauthorized use a movable. A six-member jury found Mr. Lewis not guilty of simple burglary but guilty of unauthorized use of a movable. The trial court sentenced him to six years with credit for time served.

Mr. Lewis appeals his conviction asserting three assignments of error: that he was denied access to possible impeachment evidence when the trial court did not allow him to call a witness at the preliminary examination; that the trial court erred by permitting an untimely amendment of the bill of information to charge a new offense against him; and, that the evidence adduced at trial was insufficient to sustain a conviction for unauthorized use of a moveable.

|2We affirm his conviction. The purpose of the preliminary examination is to determine whether probable cause exists to charge a defendant with the crime for which he has been arrested or with a lesser and included one-not to ascertain the existence of impeachment evidence for the trial. Our review of the record and the applicable law shows the prosecution timely amended the bill of information and that there was sufficient evidence introduced at trial to support the jury’s verdict. We have also conducted an independent review of the record for errors patent and found none. Our reasons follow.

TESTIMONY

On August 19, 2007, Ms. Lisa Marie Gaines, arrived home from work, and discovered that a window in the back of her house was broken. Ms. Gaines and her children checked the house but did not notice anything missing. She called the police, who came to make a report of the incident. The next morning, Ms. Gaines discovered that her purse was missing and her car was not in her driveway. Again, Ms. Gaines called the police. She and the police searched the outside area of the house. They found her purse in the backyard, with the contents scattered about, but Ms. Gaines’ car keys and money were missing. Later that afternoon she found her car parked one street over behind her house. The keys were on the dashboard. She called the police once again. The police responded, took pictures, checked the interior of her house, tested for fingerprints and interviewed her and her two children. A few minutes into the investigation, one of Ms. Gaines’ children alerted her and the investigators that someone was driving her car away. Ms. Gaines and the officers observed the defendant driving away in the subject’s car. Some of the officers followed the vehicle, called for backup and reported a | .^description of the suspect. Ms. Gaines did not know the defendant nor did she give him permission to drive her vehicle.

The following day Officer Jennifer Du-pree conducted a follow-up investigation. Ms. Gaines recounted to Officer Dupree the incidents of the previous night, the broken window and the discovery that her purse and car were missing. As the officer spoke with Ms. Gaines, the women noticed Ms. Gaines’ car parked in a driveway next to and behind the Gaines residence. Ms. Gaines identified the vehicle as hers. Officer Dupree called the crime lab to conduct forensic tests. Ms. Gaines and the officer were standing in front of Ms. Gaines’ house when Ms. Gaines’ niece alerted them that someone was driving away in the vehicle. Office Dupree and her partner, Det. Mayfield, unsuccessfully attempted to stop the car on foot. Both officers clearly saw the defendant’s face as he drove Ms. Gaines’ vehicle. With the assistance of Officers Wilbert Williams and Dave Bennett and other units in the area, Officer Dupree and Det. Mayfield pursued the defendant in their police units, ultimately cornering him in a fenced backyard in the neighborhood. The defendant had abandoned the Gaines’ vehicle in a driveway nearby.

The officers read Mr. Lewis his Miranda rights. He told them he knew nothing about a stolen vehicle and was just in the neighborhood stealing copper. Crime lab personnel found no damage to Ms. Gaines’ vehicle such as broken windows or damage to the steering column. Although the Officers retrieved three keys and a cell phone from the defendant, the keys to Ms. Gaines’ vehicle were not recovered. Officer Dupree identified the defendant in court as the man she saw drive away in Ms. Gaines’ vehicle. Under cross-examination, Officer Dupree |4reported the description of the suspect as a black male wearing a red and black skull cap.

Detective Tony Mayfield investigated this case with Officer Dupree. He corroborated the circumstances of the defendant’s apprehension and arrest. After the defendant was Mirandized, he began yelling that he was in the neighborhood just stealing copper. The defendant further stated that he did not steal the Gaines’ vehicle because he would have had to break into the house to steal the keys to the vehicle.

Officer David Bennett responded to Officer Dupree’s call for assistance in apprehending a suspect driving a stolen vehicle. He arrived after officers had cordoned off the area where the defendant abandoned the Gaines’ vehicle and fled on foot into a fenced backyard. Officer Bennett apprehended the defendant. The officer identified the defendant in court as the man he arrested in this incident.

ASSIGNMENT OF ERROR NUMBER 1—PRELIMINARY EXAMINATION WITNESS

Here, the defendant claims the trial court erred by not allowing him to call a witness at the preliminary hearing, thereby hampering his defense. He complains that he was denied possible impeachment material because he was not allowed to call Officer Williams.

While a preliminary examination can act as a discovery technique, the law does not treat it as such. The primary function of a preliminary examination is to determine whether probable cause exists to hold the defendant for the charged | offense or a lesser included one. State v. Mayberry, 457 So.2d 880 (La.App. 3 Cir. 10/10/84).

The State need only present a pri-ma facie case. If the evidence does not support probable cause, the court must order the defendant’s release from custody or bail. This is not a judicial dismissal of the case and the State may still proceed against the defendant. As noted in State v. Sterling, 376 So.2d 103 (La.1979):

[A] preliminary examination does not determine the validity of the charge brought against a defendant, but rather determines whether or nor there is probable cause to deprive the defendant of his liberty. See State v. Jenkins, 338 So.2d 276 (La.1976).

Id., 376 So.2d at 104.

A conviction renders moot any claim of an improper denial of a preliminary examination. State v. Jackson, 2001-1268 (La.App. 4 Cir. 2/6/02), 809 So.2d 1127 citing State v. Washington, 363 So.2d 509 (La.1978) and State v. Mayberry, 457 So.2d 880 (La.App. 3 Cir.1984).

Pretrial motions were held on three separate dates, having been held open twice for additional testimony on suppression motions and probable cause. Detective Mayfield and Officers Dupree and Bennett each testified as to their role in the investigation of this case and the defendant’s arrest. The defendant cross examined each of the witnesses on the probable cause for his arrest. Once the State proved probable cause for the defendant’s arrest, the purpose of the [¿preliminary hearing was satisfied. The preliminary hearing is not held to allow the defense to present its theory of the case, but rather for purposes of determining probable cause for the charged offense or a lesser included offense. Mayberry, supra.

As to Mr. Lewis’ claim he was denied an opportunity to elicit Brady and/or impeachment material from Officer Williams, a preliminary hearing does not abrogate or stand in the place of discovery articles, La. C. Cr. P. arts. 716, et seq. These discovery statutes impose upon the State a continuing obligation to disclose exculpatory information to the defendant. The preliminary hearing is not the source for such disclosure, nor does it trigger the State’s obligation.

Even if there had been a problem with the preliminary hearing, which there was not, the problem would have been rendered moot by the defendant’s conviction. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2—TIMELINESS OF AMENDMENT OF BILL OF INFORMATION

Mr. Lewis next argues that the trial court erred by allowing the State to amend count two of the Bill of Information from possession of a stolen vehicle to unauthorized use of a moveable. He contends the change was made after trial began and that he was prejudiced by the change.

Since every accused has the right to be informed of the nature and cause of the accusation against him, La. Const. 1974 Art. I, Section 13, and since he or she is entitled to confront and cross-examine the witness against him or her, La. Const. 1974 Art. I, Section 16, the bill of information must provide sufficient detail to allow the defendant to prepare for trial and to permit the court to rule on the ^admissibility of evidence. State v. Marcal, 388 So.2d 656 (La.1980); State v. Meunier, 354 So.2d 535 (La.1978). Thus, in State v. Johnson, 93-0394, p. 3 (La.6/3/94), 637 So.2d 1033, 1034-1035 (per curiam) the Court held:

Accordingly, the state may not substantially amend the bill of information to charge a new offense once trial has begun. [citation omitted].

The substance of an indictment may be amended before trial begins. La. C. Cr. P. art. 487. In a jury trial, trial begins when the first prospective juror is called for examination. La. C. Cr. P. art. 761. The defendant bears the burden of proving that he has been prejudiced by the amendment. State v. Spears, 39,302 (La.App. 2 Cir. 9/27/06), 940 So.2d 135, cert. den., Spears v. Louisiana, - U.S. -, 128 S.Ct. 1888, 170 L.Ed.2d 747, 76 USLW 3444 (2008).

Mr. Lewis’ claim that the bill of information was amended after trial began is wrong. The transcript of the trial shows that the amendment occurred prior to the beginning of trial and prior to the arrival of the prospective jurors. Although the defendant claims he was prejudiced by the “last minute” amendment, he does not specify how he was prejudiced. He cannot claim surprise. La. R.S. 14:68.4 defines the offense of unauthorized use of a motor vehicle as “the intentional taking or use of a motor vehicle which belongs to another ... without the other’s consent....” The amendment did not introduce new evidence, or allege a new crime for which the defendant was unaware. The defendant knew from the time of his arrest that theft of a vehicle was the central issue. The amendment did not change the fact that the police chased Ms. Gaines’ vehicle and found it in close proximity to the defendant. Nothing changed the fact that the defendant was charged with using a vehicle which did not belong to him. The victim’s testimony at the preliminary hearing did not change at trial. She stated on both occasions that she 18did not know the defendant and did not give him permission to use her vehicle. This same testimony was elicited by the defense during motions hearings. Accordingly, there was no surprise to the defendant for the amended charge of unauthorized use of a vehicle. Nor has the defendant shown any prejudice by the amendment. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3—SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence is insufficient to support his conviction. He maintains that the on-site identifications by Detective Mayfield and Officer Dupree are not sufficient evidence of his guilt because no one actually saw him enter or exit the stolen vehicle.

The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is to consider the record as a whole, not just the evidence favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict will be upheld. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Either direct or circumstantial evidence may prove the essential elements of the crime. With circumstantial evidence the rule is: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This rule is not a separate test from the review standard established by Jackson v. Virginia, but rather it is an ^evidentiary guideline which facilitates appellate review of the sufficiency of the evidence. State v. Jacobs, 504 So.2d 817, 820 (La.1987). Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 436 So.2d 471 (La.1983). Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Detective Mayfield and Officer Dupree both testified that they recognized the defendant as the man driving the victim’s vehicle. Officer Dupree said that she was about four feet from the defendant and looked straight into his face as he sped past the officers in the victim’s vehicle. Detective Mayfield was standing next to Officer Dupree as the defendant fled in the victim’s vehicle. Like Officer Dupree, Detective Mayfield looked directly at the defendant and was absolutely certain the defendant was the man he saw flee from officers in the victim’s vehicle. The detectives testified that the man they saw driving the victim’s vehicle and the man officers apprehended in the fenced backyard of a neighborhood house were one and the same, the defendant. The jury chose to credit the police officers’ testimony. Based upon the evidence, it was not unreasonable for the jury to find the defendant guilty of the unauthorized use of the victim’s vehicle. This assignment is without merit.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La. C. Cr. P. Art. 296 provides:
      If the defendant has not been indicted by a grand jury for the offense charged, the court shall, at the preliminary examination, order his release from custody or bail if, from the evidence adduced, it appears that there is not probable cause to charge him with the offense or with a lesser included offense. If the defendant is ordered held upon a finding of probable cause, the court shall fix his bail if he is entitled to bail.
      After an indictment has been found by a grand jury, the preliminary examination shall be limited to the perpetuation of testimony and the fixing of bail.


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

text:
    STATE of Louisiana v. Gerald WILTZ.
    No. 2008-KA-1441.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant, Gerald Wiltz.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| ¡On 24 March 2005, the state charged Gerald Wiltz (“Wiltz” or “the defendant”) with three counts of aggravated assault on a peace officer with a firearm, violations of La. R.S. 14:37.2. Counts 1 and 2 of the bill of information charged the defendant with committing aggravated assault upon Officer Matthew Robinson, and Count 3 charged him with aggravated assault upon Officer Willie Bickham. Wiltz pled not guilty on all counts at his arraignment on 16 January 2007. On 15 November 2007, the trial court found probable cause and denied the motion to suppress the evidence for Count 1.

On 15 November 2007, the state amended the bill of information by entering a nolle prosequi on Counts 2 and 3.

On 2 April 2008, a six-member jury found Wiltz guilty as charged. He was sentenced on 9 April 2008 to ten years in the Department of Corrections (“DOC”), with credit for time served; his sentence was to be served concurrently with any other sentence with parole to be determined by the DOC. That same day, the defense filed a motion to reconsider the sentence and a motion for appeal; the trial court denied the former and granted the latter. (Wiltz moved this court for leave to | afile a pro se brief. Leave was granted but to date, the defendant has not filed a pro se brief.)

STATEMENT OF FACTS

On 29 August 2004, Officer Matthew Robinson, Sr., of the New Orleans Police Department (“NOPD”) and his partner, Officer Willie Bickham, were on proactive patrol near the St. Bernard Housing Development near the intersection of St. Bernard and Harrison Avenues. At approximately 5:30 p.m., the officers observed a speeding vehicle. They activated the lights and siren on their unit and pursued the vehicle for two blocks before making the stop. When the vehicle stopped, the driver exited the vehicle and put his hands on the car as directed by the officers. Wiltz, seated in the front passenger seat, fled the scene. Officer Bickham chased the defendant on foot while Officer Robinson followed in the police unit. Officer Robinson exited his unit and chased Wiltz down an alley between two houses. Officer Bickham followed Officer Robinson into the alley. The defendant slipped in mud. As he got up, he reached into his front pants pocket, withdrew a gun, and pointed it at Officer Robinson. Officer Robinson fired one shot at Wiltz, but the bullet did not strike him. Wiltz continued to run. He turned and pointed his gun at Officer Robinson again. This time, Officer Robinson fired three shots, one of which hit the defendant in his right hip/buttock and caused him to fall. As Wiltz fell, he tossed his gun over a fence into some trees. Officer Robinson handcuffed the defendant and read him his Miranda rights. In the ensuing pat-down of Wiltz’s clothing, Officer Robinson recovered two fully loaded magazine clips. The defendant denied owning the gun and told Officer Robinson that it belonged to his brother. Officer Robinson identified Wiltz in court as the man who pointed a gun at him.

|sNOPD Officer Monisha Bell processed the crime scene in this case. She photographed the area and searched for hair and fiber evidence, et cetera. Officer Bell identified photographs of bullet casings, clothing, and a gun retrieved from the crime scene. She submitted all the evidence retrieved at the scene to the NOPD Central Evidence and Property Division.

Sergeant Cornell Day of the NOPD crime lab assisted technicians in processing the crime scene. He and technicians located four spent bullet casings, a pair of jeans containing loaded firearm magazine clips, and a weapon containing a live round in its chamber and a loaded clip.

The state and the defense stipulated that Ms. Anna Duggar, director of the NOPD crime lab, was an expert in the field of development of latent fingerprints and collection of evidence. Ms. Duggar tested the Larsen .380 semi-automatic handgun retrieved from the crime scene, but was unable to develop any latent fingerprints from it. She also examined three firearm magazine clips recovered, but they also tested negative for fingerprints.

Lieutenant James Bates, NOPD platoon commander, examined the crime scene and pointed out two bullet casings for the crime lab to retrieve. Lieutenant Bates also noted two gun magazine clips taken from the defendant’s clothing as Emergency Medical Service personnel tended to Wiltz’s wound.

Wiltz testified that on the day of the incident, he was a passenger in a car driven by a man named Raymond. As their vehicle turned onto St. Bernard Avenue (at Harrison Avenue), it was stopped by Officers Robinson and Bickham. Wiltz said he panicked when he saw the officers because he had his step-brother’s gun in his right pants pocket and knew he would get into trouble if the officers found the gun. He wanted to stash the gun in the car, but Raymond, the alleged |4driver of the car, would not allow him to do so. The officers ordered Raymond to exit the vehicle. As Raymond did so, Wiltz jumped from the front passenger seat and ran through a field to a nearby alley. Both officers pursued him. He slipped in the mud and grabbed his front pants pocket to prevent the gun from falling out. At that point he heard one of the officers yell, “He’s got a gun.” Wiltz got up and ran again. The officers shot at him four or five times. One of bullets hit him in the right hip/buttock area. When he fell, Wiltz took the gun out of his pocket and threw it over a fence. He denied pointing his gun at any officer.

ERRORS PATENT

A review of the record for errors patent on the face thereof reveals none.

ASSIGNMENTS OF ERROR NUMBERS I AND 2

In his first two assignments, Wiltz argues that the state erred by “soliciting testimony” about Raymond during trial and, second, by referring to Raymond during closing argument. He contends the state’s action denied him a fair trial by implying his testimony was incredible.

The state has the right to rebut evidence adduced by a defendant. La. C.E. art. 611 E. A witness, on cross-examination, may be questioned on any matter relevant to any issue in the case, including credibility. La. C.E. article 611 B.

La. C.E. art. 607 C permits a party to attack the credibility of a witness by examining him “concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony [i.e., intrinsic evidence].”

The trier of fact makes a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Deruise, 98-0541, p. 26 (La.4/3/01), 802 So.2d 1224, 1243. Thus, “a reviewing court may impinge on the fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” Id., quoting State v. Howard, 98-0064, p. 14 (La.4/23/99), 751 So.2d 783, 801.

Wiltz complains that he was denied a fair trial by the actions of the state soliciting testimony that the car in which he was riding was owned by someone who as not named “Raymond,” thus leading the jury to believe Wiltz was lying and fabricated his entire explanation as to why he fled from the officers. The testimony at issue is that Raymond, the alleged driver, would not allow the defendant to stash the gun in the car because Raymond was a convicted felon and feared arrest if the police found a gun in the car. The state objected to the testimony as hearsay. Out of the presence of the jury, the state explained that the police report, which the defense had a copy of, indicated that the vehicle belonged to Marion R. Delavallade and was driven on the night of the incident by Delavallade’s son (whose name was also “Marion”). (The question is whether the son went by the name “Raymond.” The unanswered assertion is whether the “R” in Marion R. Delavallade, Jr. stands for “Raymond.”) The state further maintained that Wiltz would be guilty of perjury if he continued his testimony about Raymond being the driver of the car on the night in question.

Other than his self-serving testimony, Wiltz offered no other proof or evidence of his allegation that Raymond was driving and who, because he was a felon, refused to allow him to stash the gun in the car. In contrast, the state offered the testimony of Officer Robinson, who stated that the police investigation confirmed that the vehicle belonged to Marion R. Delaval-lade, not Raymond. Nevertheless, we do not find that Wiltz was denied a fair trial by the testimony | Relating to the ownership of the car because, inter alia, the ultimate issue is one of whether the fleeing Wiltz pointed a loaded handgun at a police officer.

Next, Wiltz complains of the prosecution’s remark in closing argument that he was not being truthful in his testimony concerning Raymond.

In State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, the Court discussed the scope of closing argument and the standard of review:

The general rule concerning the scope of closing arguments is that they are confined to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. Fui'ther, the trial judge has broad discretion in controlling the scope of closing argument. And, even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.

Id. at p. 17, 775 So.2d at 1036 [internal citations omitted].

Given the defendant’s testimony and inconsistent statements, the state’s remark was neither unreasonable nor unduly prejudicial. Even if the statement had not been made, the verdict would have been the same because any reasonable jury could conclude that the evidence and testimony supported the state’s case.

Even assuming either one of the instances of which Wiltz complains was improper, the error was harmless because the evidence adduced at trial supports the conviction independent of those instances. Whether Raymond drove the car, or Wiltz carried the gun because he could not leave it in the car, had no bearing on the fact that Wiltz twice raised a gun at Officer Robinson.

The jury chose to discredit the defendant’s testimony not because of the two instances complained of but because the jury determined that Wiltz’s testimony was unbelievable. These assignments are without merit.

| -¡ASSIGNMENT OF ERROR NUMBER 3

In his third assignment, the defendant maintains that the trial court denied him the right to present a defense by refusing to allow him to testify that Raymond told him that he could not hide the gun in the car because he, Raymond, was a convicted felon. Wiltz argues that those statements are not hearsay and/or are admissible pursuant to the hearsay exception enumerated in La. C.E. art. 803(3); they would have shown his state of mind and the reason he fled from the police.

Code of Evidence article 801 C defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Stated another way, hearsay is “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter.” State v. Martin, 356 So.2d 1370, 1373 (La.1978). See McCormick, Evidence, § 246 (Cleary ed. 1972). Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. See State v. Weedon, 342 So.2d 642 (La.1977); State v. Sheppard, 371 So.2d 1135 (La.1979); McCormick, supra, § 245. Thus, when an out-of-court statement is offered for a purpose other than to establish that a true assertion has been made, the value of the statement as evidence does not depend on the credibility of the out-of-court asserter and the statement falls outside the scope of the hearsay exclusionary rule. McCormick, supra, § 249; 6 Wigmore, Evidence, §§ 1766, 1788 (Chadbourne rev., 1976); 4 J. Weinstein, Evidence, Par. 801(c)[01] (1981).

| ¡¿Louisiana Code of Evidence article 803(3) provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or his future action. ...

The Official Comment to this exception points out that it clarifies prior Louisiana law and generally follows the federal rules. However, the legislature borrowed from the approach taken by the state of Alaska by adding the phrase “offered to prove the declarant’s then existing condition or his future action.” This insertion establishes the limited scope of the exception as stated by the Court in State v. Weedon, 342 So.2d 642, 646 (La.1977) (An out-of-court declaration by one person is inadmissible to show what another person did.)

Considering the foregoing, Wiltz’s assertion that the statement (that Raymond said the gun could not be left in the car because he was a convicted felon) is not hearsay or an exception to the hearsay rule is immaterial. Whether the defendant offered the statement for a non hearsay purpose does not alone make the statement admissible; the general requirement of relevance must also be met before the out of court statement is admissible evidence. Martin, supra. Wiltz’s reason for fleeing the scene with the gun had no bearing on his decision to twice point the gun at Officer Robinson. Furthermore, the defendant was not denied his right to present a defense because he told the jury he could not leave the gun in the car. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 4

|flIn his final assignment of error, Wiltz complains that his ten-year sentence is excessive.

In State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, the Court set forth the standard to be used in evaluating a claim of an excessive sentence.

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.

Id. at pp. 6-7, 839 So.2d at 4 [internal citations omitted].

In State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977, the Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Court further stated that the court is permitted to determine both whether the statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence is within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so | mdisproportionate to the crime committed as to shock our sense of justice.

Id., 384 So.2d at 358 [internal citations omitted].

In State v. Soco, 441 So.2d 719 (La.1983), the Court also stated that “Maximum sentences provided by the statutes are reserved for the ‘worst kind of offender.’ ” Id., at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const. art. 1[sic], § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by La. C. Cr. P. [art.] 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence. Id. The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983).

In State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, this court discussed what constituted compliance with La. C. Cr. P. art. 894.1. We stated that “[a]n appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La. C. Cr. P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed.” Id. at p. 18, 947 So.2d 810 at 820. We further stated, quoting State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819, that “[t]he articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions.” 06-0875 at p. 18, 947 So.2d 810 at 820. Additionally, this court stated that “[wjhere the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even Inwhen there has not been full compliance with Art. 894.1.” Major, 96-1214, p. 10, 708 So.2d at 819.

In the case at bar, Wiltz was convicted of violating La. R.S. 14:37.2, which provides that “[a]ggravated assault upon a peace officer with a firearm is an assault committed upon a peace officer with a firearm.” A conviction under that statute carries a term of imprisonment for not less than one year nor more than ten years. The trial court imposed the maximum sentence, and a review of the record shows an adequate factual basis for the sentence. Officer Robinson testified that as he pursued Wiltz for fleeing the location of the traffic stop, the defendant turned and pointed a gun at him twice. In sentencing the defendant, the trial judge took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1 and further noted:

... this case started out as a multiple count Bill of Information, ... a three count Bill of Information ... three counts of aggravated assault with a firearm upon a peace officer.
... count one was aggravated assault upon Officer Matthew Robinson. That’s the count that went to trial. Count two ... was nolle prosed ... on November 16, 2007. There was a third count ... [t]hat count was nolle prosed ... on November 16, 2007....
Defendant ran up an alleyway between two houses with Officer Robinson in hot pursuit. Upon entering the alleyway, the defendant turned around and pointed a firearm at Officer Robinson ... Officer Robinson had removed his service weapon from its holster and was prepared to return [the defendant’s] fire
At that point, [the defendant] had the choice to throw down his weapon, put up his hands, and give up. But for some reason, he decided to continue to run. He ran up the alleyway with Officer Robinson still in high [sic] pursuit and turned around once again and pointed his weapon at Officer Robinson ...
When the defendant realized that Officer Robinson wasn’t playing around, the defendant turned and continued in his attempt to escape ... This defendant had, on two occasions during this chase, he had the opportunity to throw down his weapon and give up. But instead, he chose to assault this officer with a firearm. It is the court’s belief that given the opportunity, [the | iadefendant] would have used that firearm on Officer Robinson ....

Wiltz’s sentence is supported by the facts. The jury unanimously decided that the defendant committed an aggravated assault on Officer Robinson in his attempt to escape apprehension. Other Louisiana courts have upheld ten-year sentences for violation of La. R.S. 14:37.2. See State v. Mendosia, 36,827 (La.App. 2 Cir. 4/9/03), 842 So.2d 1252; State v. Noil, 08-278 (La.App. 5 Cir. 10/28/08), 997 So.2d 621; State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015. We find this assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Gerald Wiltz.

AFFIRMED.