author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Tony Ray EVANS, Appellant
    No. 51,811-KA
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, LAURA W. FULCO, REBECCA A. EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and STONE, JJ.
   MOORE, J.

After a jury trial in 1986, the appellant, Tony Ray Evans, was convicted of second degree murder committed with a firearm, a violation of La. R.S. 14:30.1 (1979) and 14:95.2 (1984). Evans, who was 15 years old at the time of the offense, was sentenced to mandatory life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The conviction and sentence were upheld in State v. Evans , 512 So.2d 615 (La. App. 2 Cir. 1987), writ denied , 516 So.2d 367 (La. 1988). Subsequently, pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), Evans filed a motion to correct an illegal sentence. The trial court held a hearing, vacated Evans's sentence and resentenced him to life imprisonment at hard labor, with the benefit of parole. Following this ruling, the trial court conducted another hearing on what it considered to be a "motion for reconsideration," and it expressly "reentered" the sentence of "life with the possibility of parole under the appropriate statute." Evans then filed a motion to reconsider which was denied, and Evans entered this appeal.

For the reasons that follow, we affirm.

FACTS

Late in the evening of September 1, 1985, Tony Ray Evans, age 15, shot and killed Dewey Furr, the owner of a cabinet shop on Edwards Street in downtown Shreveport. Furr and his assistant, Richard Leber, were working late in the cabinet shop when Evans and an accomplice robbed the two men at gun point. Evans fired a single shot that struck Furr in the neck, killing him. Leber escaped from the building when the shot was fired and immediately called police.

Evans was apprehended a few days later after detectives located the gun he used in the shooting and the shirt he was wearing when he committed the crime. Evans was initially charged with first degree murder; however, by amended indictment, he was charged with second degree murder. Following trial, a jury returned a verdict of guilty as charged, and the court sentenced Evans to the mandatory life sentence at hard labor without benefit of probation, parole, or suspension of sentence. As noted above, this court affirmed the conviction and sentence in 1987.

Nearly 25 years later, the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. Miller v. Alabama, supra.

Following this Supreme Court decision, on January 21, 2015, Evans filed a motion to correct an illegal sentence. Evans argued that his mandatory life without parole sentence was illegal under Miller v. Alabama because he was a juvenile at the time that he committed the crime. Citing State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana , --- U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), the district court denied Evans' motion holding that Miller v. Alabama did not apply retroactively to juvenile offenders who exhausted their appeal process prior to the Miller v. Alabama decision.

Four years after Miller, supra , the United States Supreme Court held that Miller applied retroactively in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016). Subsequently, on March 3, 2016, Evans filed another motion to correct an illegal sentence on the basis that his original sentence was unconstitutional pursuant to Miller v. Alabama and Montgomery v. Louisiana. Evans maintained that he was entitled to present evidence of his reformation since his conviction and incarceration.

The state responded by filing a "State's Motion to Continue Resentencing Pending Legislative Resolution in Light of Montgomery v. Louisiana , [577]--- U.S. ----, 136 S.Ct. [at ]758[ 193 L.Ed.2d 599] (2016)," asking the court to delay setting a hearing on Evans's motion pending legislation that was currently being drafted to satisfy the requirements of Montgomery. The trial court ruled that it would set a resentencing hearing within the next six to eight weeks and give the state the opportunity to submit evidence of Evans's "irredeemable corruption," which was required by Miller, supra , and La. C. Cr. P. art. 878.1, to resentence Evans to life imprisonment without benefit of parole. Otherwise, the court said it would resentence Evans to life imprisonment with parole eligibility as determined by La. R.S. 15:574.4(E).

On July 18, 2016, the trial court vacated Evans's sentence and resentenced him to life at hard labor with the possibility of parole. The state expressly declined to submit any evidence regarding Evans's capacity for rehabilitation. The trial court held that, pursuant to Miller v. Alabama and Montgomery v. Louisiana , it was mandated to resentence Evans to life imprisonment with the possibility of parole as determined by La. R.S. 15:574.4(E). The trial court held that there was no need for an Art. 878.1 hearing because the state chose not to submit any evidence that Evans is "irredeemable," and, thus, the trial court must presume under Miller v. Alabama , that Evans is susceptible of rehabilitation.

On October 28, 2016, the Louisiana Supreme Court granted Evans's supervisory writ application challenging the trial court's denial of his January 21, 2015 motion to correct an illegal sentence. The court held as follows:

Writ granted; case remanded. In light of the Supreme Court's holding in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016) that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we remand the case to the 1st Judicial District Court for further proceedings consistent with the views expressed in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, and for resentencing pursuant to La. C. Cr. P. art. 878.1.

State ex rel. Tony Ray Evans v. State , 15-1058 (La. 10/28/16), 202 So.3d 991.

The trial court set the matter for hearing and appointed an attorney to represent Evans at the hearing. On January 18, 2017, the trial court conducted an evidentiary hearing under the provisions of Art. 878.1, on what it considered to be a hearing to reconsider its July 18, 2016 sentence. During the hearing, the state expressly declined to present any evidence. However, Evans presented evidence concerning his rehabilitation. At the conclusion of the hearing, the trial court held that, "the motion to reconsider the previous sentence that I reentered is reentered again, life with the possibility of parole under the appropriate statute."

On February 16, 2017, Evans filed a motion to reconsider the sentence, arguing that he should have been resentenced to a determinate number of years under his current murder conviction or under the sentencing provision for a conviction of manslaughter. The district court denied the motion pursuant to State v. Leason , 11-1757 (La. 11/23/11), 77 So.3d 933, wherein the Louisiana Supreme Court rejected the same arguments as those being made by Evans, and held that consideration of parole eligibility is the proper remedy for the defendant.

This appeal followed.

DISCUSSION

In a single assignment of error, Evans contends that the trial court erred in resentencing him to life with the possibility of parole. He argues that a mandatory life sentence for a juvenile offender, even with parole eligibility, is unconstitutionally excessive and contrary to Miller v. Alabama. Limiting resentencing consideration to parole eligibility only, he states, is not the substantive change mandated by Miller v. Alabama because it fails to take into account the "hallmark features" of the offender's "chronological age," such as the juvenile offender's immaturity, impetuosity, failure to appreciate risks and consequences of his actions, and most importantly, his "potential for reform." Furthermore, Evans maintains that a review limited to parole eligibility is merely "cosmetic" and is virtually meaningless under Louisiana's statutory parole scheme that establishes overly "arduous conditions" for eligible inmates to obtain parole.

Evans, who has been imprisoned for over 30 years since he was 15 years old, maintains that he should be immediately released or receive a determinate sentence in years for his murder conviction, citing Garnett v. Wetzel , No. CV 13-3439, slip op. 2016 WL 4379244 (E.D. Pa. Aug. 17, 2016). Alternatively, Evans suggests he should be resentenced to the maximum sentence of the next lesser responsive verdict, i.e. , manslaughter, which, at the time he was originally sentenced had a maximum sentence of 21 years, citing State v. Craig , 340 So.2d 191 (La. 1976). Either way, Evans asserts, a sentence for a determinate number of years would provide him the opportunity "to demonstrate to society that he has accepted responsibility for his conduct and taken advantage of the opportunity to be rehabilitated and to reenter society as a productive member while being punished in a reasonable and constitutional manner for his crime."

The state maintains that Evans's sentence complies with the mandate of the Supreme Court in Montgomery v. Louisiana, supra , and with the Louisiana statutory scheme amended or enacted to comply therewith, i.e., La. C. Cr. P. art. 878.1 and La. R.S. 15:574(G).

Hence, the central issue in this appeal is whether Miller v. Alabama, supra and Montgomery v. Louisiana, supra , required the district court, after holding a resentencing hearing in which it took evidence of Evans's rehabilitation, to fashion an individualized sentence for Evans with a determinate term of imprisonment less than life with the possibility of parole. For the following reasons, we conclude that the district court properly applied the mandates of Miller and Montgomery as implemented under current law in Louisiana.

Evans's argument rests on a federal district court case, Garnett v. Wetzel, supra , from the Western District of Pennsylvania. Trina Garnett, a juvenile offender convicted of murder and sentenced to life imprisonment without parole, filed a habeas petition in 2016 requesting that her sentence be vacated as a result of the Miller decision. While the petition was pending, the Supreme Court rendered Montgomery v. Louisiana supra , requiring states to hold hearings to resentence individual juvenile offenders serving life without parole sentences. The federal court granted the petition, holding that Miller and Montgomery mandated that Garnett be resentenced, taking into consideration the factors peculiar to [her] youthful status at the time of the offense and original sentencing. The court ordered that the sentencing hearing be conducted within the framework of Miller and Montgomery , and "adhere to the process dictated by those cases," which, it said, "means the court must consider the rationale for treating juveniles differently from adults and then account for those differences in determining an individualized proportionate sentence." Garnett, supra at *1.

The Garnett court noted that in Pennsylvania, the sentencing judge must fix both the minimum and the maximum sentence of the term of imprisonment. It further stated:

Routinely fixing the maximum of each sentence at life contradicts a sense of proportionality and smacks of categorical uniformity. A sentencing practice that results in every juvenile's sentence with a maximum term of life, regardless of the minimum term, does not reflect individualized sentencing. Placing the decision with the Parole Board, with its limited resources and lack of sentencing expertise, is not a substitute for a judicially imposed sentence. Passing off the ultimate decision to the Parole Board in every case reflects an abdication of judicial responsibility and ignores the Miller mandate.
* * *
Fixing the maximum sentence at life permits the Parole Board to deny parole, effectively working to imprison the defendant for the duration of his life. As long as the Parole Board has the authority to refuse to grant parole, life without parole remains a possibility regardless of the individual's peculiar situation. If the sentencing court finds that the defendant is not corruptible and not incorrigible, it must impose a maximum sentence less than life to reflect that finding. (Emphasis supplied.)

The court remanded the case to the state district court to hold a resentencing hearing in accordance with the principles and requirements stated in its opinion.

This court has previously concluded that the Garnett court's reading of the resentencing requirements of Miller and Montgomery was unpersuasive for several reasons. In State v. Kelly , 51,246 (La. App. 2 Cir. 4/5/17), 217 So.3d 576, we stated:

We find that Garnett v. Wetzel, supra , cited by the defendant in support of his claim that the trial court was required to hold a resentencing hearing and consider the factors set forth in Miller , is distinguishable from the instant case and unpersuasive. In Garnett , the defendant filed a federal habeas petition requesting a resentencing hearing in light of Montgomery and Miller , and the federal district court remanded the case to state court to conduct a Miller hearing. The federal court also noted that in Pennsylvania, a sentencing judge is required to set both the minimum and maximum sentences to which a defendant may have to serve. However, the sentencing statute in effect at the time the defendant was originally sentenced had been declared unconstitutional, and the legislature had failed to enact a new sentencing statute for juvenile homicide defendants who committed their crimes prior to 2012. Thus, the state faced a dilemma as to how to resentence the defendant and similarly situated offenders. The court also appeared to criticize the decision of some sentencing courts to set a maximum sentence of life imprisonment, but leave to the Parole Board the task of determining whether a defendant should be granted parole pursuant to Miller .

We also rejected the claim that Louisiana's sentencing scheme for juvenile homicide defendants fails to comply with the Miller requirements, State v. Kelly, supra. Miller held that sentencing schemes which require mandatory life without parole for juvenile homicide defendants violate the Eighth Amendment's prohibition against cruel and unusual punishment, but it expressly did not invalidate sentencing schemes which allowed for a life without parole sentence for the worst juvenile homicide defendants whose crime demonstrates irreparable corruption. However, before imposing such a sentence, the sentencing court is required to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Id. at p.12-13; 217 So.3d at 584. Additionally, in Montgomery, supra , the court stated:

Giving Miller retroactive effect ... does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them . * * * Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Id. at 736 (emphasis added, citations omitted).

Accordingly, we have repeatedly said that eligibility for parole is the sole question to be answered in a Miller hearing. State v. Keith , 51,389 (La. App. 2 Cir. 6/21/17), 223 So.3d 767 ; State v. Shaw , 51,325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607 ; State v. Sumler , 51,324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503.

Furthermore, the Louisiana legislature in 2013 enacted La. C. Cr. P. art. 878.1 and R.S. 15:574.4E to comply with Miller's mandate. Prior to August 1, 2017, Art. 878.1 required a trial court to conduct a hearing before imposing a life without parole sentence on a juvenile murder defendant:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

If the trial court imposes a life sentence with parole eligibility, R.S. 15:574.4E provided the conditions, including serving 35 years (now 25 years) of the sentence imposed, before the defendant could apply to the parole board for parole consideration. R.S.15:574.4 was amended by 2017 La. Acts No. 277, section 1, to reduce the required time to 25 years.

Evans received the hearing required by this statute and presented evidence of his rehabilitation. The state did not attempt to show that Evans was the worst of offenders. Evans received the substantive benefit of Miller and Montgomery , supra , and the due process of La. C. Cr. P. 878.1 and R.S. 15:574.4. He received a hearing in which he presented an impressive amount of evidence of his rehabilitation and engagement in constructive activities while serving his sentence. Many of Evans's accomplishments appear to satisfy the parole eligibility requirements of R.S. 15:574.4G. Nevertheless, no amount of mitigating evidence will warrant any lesser sentence than the sentence he has already received, which is the most lenient sentence available to him under current Louisiana law. Montgomery v. Louisiana, supra ; State v. Keith , supra .

Evans also argues that he should be resentenced to the lesser responsive verdict of manslaughter because the mandatory sentencing provision under which he was sentenced was held to be unconstitutional. Since there was no statutory provision which permitted a life sentence with parole, he should receive a sentence for the next responsive verdict of manslaughter.

This argument is based on State v. Craig , supra . After the U.S. Supreme Court struck down Louisiana's then-mandatory death penalty for aggravated rape in Selman v. Louisiana , 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed. 2d 1212 (1976), the Louisiana Supreme Court held in State v. Craig that defendants convicted of aggravated rape would be resentenced to the maximum term of imprisonment at the time of the offense for the next available responsive verdict, attempted aggravated rape. In this instance, the only available sentence for second degree murder was life without parole. Since that sentence was found to be unconstitutional, Evans argues he could be sentenced only to the next lesser-included and responsive verdict, manslaughter, which carried a maximum of 21 years. Evans argues that despite the fact that the Supreme Court rejected this route in some later decisions, State v. Craig has never been expressly overruled, and therefore, it is still controlling.

In fact, the Louisiana Supreme Court has expressly declined to apply the Craig formula of "next available responsive verdict" in the context of aggravated rape committed when the offender was a juvenile. State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939, fn. 3. Even more telling is the fact that the court has never applied Craig to homicide sentences affected by Miller v. Alabama and Montgomery v. Louisiana , supra , and this court (and others) have explicitly refused to do so. State v. Keith , supra ; State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358. This argument is without merit.

Evans maintains that a sentencing court must fashion an individualized determinate sentence to comply with Miller's mandate, and a life sentence with or without parole violates this mandate. In general, a district court has discretion to find that a mandatory minimum sentence may indeed be excessive for a given offense and offender. State v. Dorthey , 623 So.2d 1276 (La. 1993). However, in the context of a Miller hearing, the only question for the court is eligibility for parole. State v. Keith , supra ; State v. Shaw , supra ; State v. Sumler , supra . Parole eligibility provides "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010).

Evans maintains that a sentence of life with parole is essentially a life sentence because the requirements to be considered for parole under La. R.S. 15:574.4 are too arduous and there is always the possibility that the Parole Board will deny parole regardless of the merits of the individual's situation. Evans has presented no evidence to support either of these claims.

We therefore conclude that Evans received the most lenient sentence available under the current law, and the state was not required to relitigate the entire sentence.

This assignment of error is without merit.

ERROR PATENT

Pursuant to Miller v. Alabama, supra and Montgomery v. Louisiana, supra , on July 18, 2016, Evans was resentenced to life imprisonment at hard labor with benefit of parole. On January 18, 2017, after a hearing on reconsideration of the July 18, 2016 sentence, the trial court orally held that "the motion to reconsider the previous sentence that I reentered is reentered again, life with the possibility of parole under the appropriate statute." However, in the trial court's ruling, dated March 3, 2017, wherein the trial court denied Evans's motion to reconsider the January 18, 2017 sentence, the trial court stated as follows: "On January 18, 2017, Petitioner's case was taken up on an evidentiary hearing under the provisions of Article 878.1. For reasons orally assigned, the Court resentenced Petitioner to life imprisonment at hard labor with the possibility of parole." The minutes of the January 18, 2017, hearing do not reflect that Evans is sentenced to hard labor.

Because of the trial court's failure to clearly include the requirement that Evans's life imprisonment be served at hard labor, the sentence is illegally lenient. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882(A). Further, the appellate court may notice sentencing errors as error patent. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790. Because La. R.S. 14:30.1 is a mandatory felony, requiring any sentence to be served at hard labor, the error is harmless and self-correcting. State v. Foster , 50,535 (La. App. 2 Cir. 4/13/16), 194 So.3d 674.

Accordingly, we amend the defendant's sentence to reflect that the sentence is to be served at hard labor, and hereby order the sentencing court to amend its court minutes to reflect this change.

CONCLUSION

For the foregoing reasons, Tony Ray Evans's sentence of life imprisonment with parole eligibility is affirmed. We amend the sentence to reflect that it is to be served at hard labor and order the sentencing court to amend its court minutes to reflect this change.

SENTENCE AFFIRMED AS AMENDED.

      Evans sought a writ from this court which was denied. (See No. 50,093.) Subsequently, Evans sought a writ from the Louisiana Supreme Court which, as discussed herein, was granted on October 28, 2016.

      Under Pennsylvania law, a Parole Board cannot parole a person serving a life sentence, and can only grant parole after the minimum term of imprisonment has expired.

      Article 878.1 was subsequently amended by 2017 La. Acts No. 277, section 2, effective August 1, 2017, to restate that the "sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility[.]" among other minor changes.

      For juvenile offenders whose indictment for the offense was prior to August 1, 2017, R.S. 15:574.4G applies, although the statute appears to be identical to 15:574.4E.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Pamela S. SMITH, Plaintiff-Appellee v. James H. SMITH, Defendant-Appellant
    No. 51,791-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    CLARENCE MCDONALD LELAND, LTD., By: Clarence McDonald Leland, Counsel for Appellant
    FLOWERS & LONG, LLP, By: Kelly L. Long, Counsel for Appellee
    Before MOORE, GARRETT, and COX, JJ.
   GARRETT, J.

In this community property partition case, the ex-husband appeals from a judgment which was amended by the trial court to increase the amount he owed his ex-wife by more than $11,000. He claims that the amendment was substantive and thus prohibited under La. C.C.P. art. 1951. We affirm the trial court's amended judgment.

FACTS

Pamela S. Smith and James H. Smith were married in 1993 and separated in August 2011. For most of the marriage, James served in the United States Air Force. On August 23, 2012, Pamela filed for divorce. In her petition, she requested a partition of the community property, pursuant to La. R.S. 9:2801. In a consent judgment signed September 20, 2012, the divorce was granted. The community was terminated retroactively to August 23, 2012. Joint custody of their two minor children was granted; Pamela was designated as the domiciliary parent and James was ordered to pay monthly child support of $500. Pamela was also granted exclusive use of the matrimonial domicile in Haughton. The judgment further provided that James would waive any interest or claim he had to any profit from the sale of the home, as well as any rental claim. Pamela waived any reimbursement claim she had for her payment of any encumbrances on the house.

At some point after the divorce was granted, James retired from the Air Force. He began receiving all of the military retirement benefits, despite the fact that a portion of the benefits clearly belonged to Pamela. As explained below, James continued to receive 100% of the retirement benefits for 39 months.

On March 31, 2014, Pamela filed a petition for judicial partition of community property because she and James were unable to reach an amicable community property partition and settlement of all claims arising from the matrimonial regime. In her detailed descriptive list ("DDL"), she listed only two things: as an asset, retirement and pension pay from the United States Armed Forces; and as a reimbursement claim, "47% of any and all retirement and pension payments" James had received since June 1, 2013.

On December 18, 2014, James filed a rather unintelligible and quite lengthy pleading. He alleged that Pamela failed to list all community debts and assets and that she was attempting "piecemeal litigation" with the two items she did list. The lesion claim arose from the provision in the consent decree pertaining to the house and a subsequent quitclaim deed filed by Pamela in the Bossier Parish public records. James also alleged that he was reserving the right to assert a nullification action due to defects of form of the quitclaim deed. He further demanded an accounting from Pamela for all assets under her control. In the event Pamela was successful in obtaining a percentage of his military pension, James demanded recalculation of child support. James also included his initial DDL of community property. The trial court ordered Pamela to answer James's request for discovery associated with his demand for accounting. James did not request that a hearing be set on the exception he filed.

At Pamela's request, the exception was set for hearing on April 20, 2015. She also filed her own amended DDL, her traversal of James's initial DDL, and a memorandum in opposition to his pleading of December 18, 2014. In her traversal, she again claimed her entitlement to her share of the military retirement benefits and the payments being received by James. The exception was submitted on briefs. On May 4, 2015, the trial court issued a written opinion/order. It found that Pamela's filing of the traversal rendered the exception moot. It also set deadlines for discovery. Subsequent mediation was unsuccessful, and Pamela requested that the matter be set for trial.

The parties subsequently entered into an interim order, which was signed in open court on April 21, 2016, that directed that Pamela would receive 47% of James's military retirement benefits immediately upon the Military Retired Pay Division Order being executed and accepted by the Defense Finance and Accounting Services ("DFAS"). Her claim for her portion of the retirement benefits received by James from August 1, 2013, through her first payment from DFAS was expressly reserved to be determined at trial after assessing other assets and reimbursement claims that James might have. If James was found to owe Pamela any retroactive retirement pay, the amount would be based on his after-tax pay. The order further decreed that Pamela would not be entitled to any of James's funds which were determined to be combat-related disability. The trial was set for October 31, 2016.

The Military Retired Pay Division Order was also signed in open court on April 21, 2016. It stated that Pamela was married to James for 6901 of the 7318 days he served in the Air Force, a period in excess of ten continuous years and representing 94.3% of the total time in duty. It then awarded her 47% of James's disposable military retirement pay, effective August 1, 2013. The trial court accepted James's stipulation and agreement that DFAS make direct payments to Pamela.

On October 25, 2016, Pamela filed a pretrial memorandum with a unified DDL. She asserted that James owed her an equalization payment of $8,100 and reimbursements of $31,919.16, for a total money judgment of $40,019.16. She also stated that the Military Division Order had been accepted by DFAS and that she was to begin receiving her portion of the military retirement on November 1, 2016.

Trial was finally held on October 31, 2016. Despite notice, neither James nor his attorney was present. Only Pamela testified. She informed the trial court that James began receiving all of the military retirement benefits in August 2013. Pursuant to the interim order, she had just been advised that on November 1, 2016, she would begin receiving a monthly check of $579.51 for her portion of the retirement benefits. Based upon her testimony, the court held that, from August 1, 2013, to October 31, 2016, Pamela was entitled to the amount of $579.51 times 39 months. Other assets and liabilities were allocated. The record is abundantly clear that Pamela had to satisfy most of the community debts, whereas James had been in complete control of the retirement benefits and other community assets. He also had taken bankruptcy. The focus of the trial was the amount of the equalizing sum that James would be ordered to pay Pamela pursuant to La. R.S. 9:2801(A)(4)(d). On November 10, 2016, the trial court signed a judgment partitioning the community property. The judgment ordered James to pay Pamela a total of $31,676.04.

On November 15, 2016, Pamela filed a motion to amend the judgment. She alleged that, immediately after filing of the judgment, she discovered a mathematical error in the judgment resulting in the monetary amount owed to her listed in the judgment being deficient by more than $11,000.00. Pursuant to La. C.C.P. art. 1951, she requested that the judgment be amended.

A hearing on the motion was held on March 6, 2017. James's counsel appeared at this hearing. At the conclusion of arguments, the trial court granted the motion. It held that there was a miscalculation and that this was exactly the sort of situation that La. C.C.P. art. 1951 was intended to correct. It further found that the amount of the change alone did not make the change substantive. The amended judgment was signed and filed that same day. It increased the amount James owed Pamela from $31,676.04 to $42,945.64, a difference of $11,269.60.

James appealed. He requests that this court declare the amended judgment an absolute nullity and reinstate the original judgment.

LAW

La. C.C.P. Art. 1951 states:

On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

The kind of amendment allowed by La. C.C.P. art. 1951 is one that "takes nothing from or adds nothing to the original judgment." Villaume v. Villaume , 363 So.2d 448 (La.1978) ; Crawford v. Crawford , 49,059 (La. App. 2 Cir. 5/14/14), 139 So.3d 1113. When an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under La. C.C.P. art. 1951. Wells v. Wells , 14-198 (La. App. 5 Cir. 9/24/14), 150 So.3d 907.

When an error of substance exists in a final judgment, that error may be corrected by way of a timely motion for new trial or by appeal. LaBove v. Theriot , 597 So.2d 1007 (La.1992) ; Villaume v. Villaume, supra ; Hebert v. Hebert , 351 So.2d 1199 (La.1977) ; Stevenson v. State Farm , 624 So.2d 28 (La. App. 2 Cir.1993). A third method of effecting a substantive change in a final judgment is by consent of the parties. LaBove v. Theriot, supra ; Villaume v. Villaume, supra ; Rodgers v. Rodgers , 26,093 (La. App. 2 Cir. 9/21/94), 643 So.2d 764 ; Rebco Marine, Inc. v. Homestead Ins. Co. , 96-1975 (La. App. 1 Cir. 12/29/97), 706 So.2d 508.

The amended judgment containing substantive amendments to the original judgment is an absolute nullity. LaBove v. Theriot, supra ; Rodgers v. Rodgers, supra.

DISCUSSION

Throughout the protracted proceedings, the most important and highly contested issue was Pamela's entitlement to her portion of James's military pension. In fact, one of the primary issues to be resolved at trial was the amount James owed Pamela from the military retirement benefits paid solely to him for a period of more than three years. There was never any serious question that, under the community property law of this state, Pamela was entitled to a portion of James's military retirement benefits. It was also obvious that James would be ordered to pay Pamela for the portion of the retirement benefits to which she was entitled from August 2013 through October 2016; the only question was the amount. We note James's actions to try to frustrate or deny Pamela her entitlement to these benefits. These included his filing of dilatory pleadings and then his failure to even show up for trial.

Under the unique facts of the instant case, we find that the amended judgment "took nothing from or added nothing to the original judgment." Review of the original judgment shows that it included the portion of the military pension payments that were improperly received by James and owed to Pamela. However, its inadvertent inclusion in the assets held by James resulted in an error in the mathematical calculation of the amount owed to Pamela. She was clearly owed the amount that had been improperly received by James over the 39-month period. As noted by the trial court, this is precisely the sort of situation which La. C.C.P. art. 1951 was intended to cover. We find no error in this ruling.

Consequently, we affirm the trial court's amended judgment.

CONCLUSION

The trial court's amended judgment is affirmed. Costs of this appeal are assessed against the appellant, James H. Smith.

AFFIRMED.

      The pleading was captioned:
      ANSWER TO PETITION FOR PARTITION AND DDL OF PAMELA SMITH WITH DDL OF JAMES H. SMITH; EXCEPTION OF NO CAUSE/RIGHT OF ACTION AS TO "PIECEMEAL PARTITION FOR COMMUNITY PARTITION" ASSERTED BY PAMELA; ASSERTION OF LESION ACTION ASSERTED WITHIN DDL OF JAMES SMITH, SUBJECT TO EXTERNAL DEMAND/SUPPLEMENTATION; DEMAND FOR ACCOUNTING BY PAMELA SMITH PER CC 2369 and [sic] DISCOVERY RELATED TO SUCH DEMAND; PETITION FOR CHILD SUPPORT RE-CALCULATION SHOULD MR. SMITH'S INCOME BE REDUCED BY ANY AMOUNT OF ALLOCATION OF HIS MILITARY RETIREMENT TO PETITIONER, AND, ON ALL OTHER GROUNDS ALLOWED BY LAW AT SUCH TIME.

      In James's initial DDL, the first item listed was his military retirement. In the "Amount at Issue" column, it stated: "-Reimbursement if any to Pamela, after full partition,-% of Pamela after full partition to be determined." In the "Basis of Claim" column, it stated: "-Bankruptcy of James vs. any reimbursement,-any fed [sic] provision re retro spousal entitlement to retirement of service member prior to demand for same." In the "Other Comment" column, it stated: "-arrearage claimed bay [sic] be extinguished by federal law, and/or, by reimbursements claims by James exceeding such alleged reimbursement if adjudicated."

      We distinguish the instant case from other scenarios which clearly involved prohibited substantive changes: Hebert v. Hebert, supra (original judgment ordering $65 per week child support was amended to provide that the father pay the $65 as $50 cash and $15 per week on the mortgage, for which he would be given credit for payment on community property, thus changing the method and the legal effect of the payment; the supreme court reinstated the original judgment); Wells v. Wells, supra (appellate court vacated amended judgment which changed amount awarded to wife from one-half the amount by which her mortgage payments after the separation reduced the principal debt on the mortgage to one-half the amount she paid on the mortgage from her separate funds); Crawford v. Crawford, supra (trial court refused to correct a partition judgment to change classification of truck as wife's separate property when husband claimed it was community property, wife listed it as husband's separate property, hearing officer mistakenly stated it was wife's separate property, and trial court accepted wife's classification but rendered judgment according to hearing officer's recommendation; appellate court affirmed); Rodgers v. Rodgers, supra (appellate court vacated amended judgment that expanded the original child visitation award); Terry v. Terry , 612 So.2d 808 (La. App. 1 Cir. 1992) (trial court amended partition suit judgment to add an equalization payment to the wife which was not included in the first judgment).
      The instant case is more akin to Marsh Advantage Am. v. Orleans Par. Sch. Bd. , 2008-0004 (La. App. 4 Cir. 10/8/08), 995 So.2d 53,writ denied , 2008-2635 (La. 1/16/09), 998 So.2d 103 (appellate court amended judgment to correct clerical error in calculation under La. C.C.P. art. 1951"which could have been corrected if brought to the attention of the court below"); and Saacks v. Mohawk Carpet Corp. , 2003-0386 (La. App. 4 Cir. 8/20/03), 855 So.2d 359, writ denied , 2003-2632 (La. 12/12/03), 860 So.2d 1158 (calculation of amount of salary to which plaintiff was entitled was properly corrected in the amended judgment).


text:
    STATE of Louisiana, Appellee v. Gerderrick DAVIS, Appellant
    No. 51,807-KA
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, EDWIN L. BLEWER, III, J. AARON CRAWFORD, REBECCA ARMAND EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, PITMAN, and GARRETT, JJ.
   GARRETT, J.

The defendant, Gerderrick Davis, was convicted of second degree murder of his girlfriend's 17-month-old son, Anthony Scott, in violation of La. R.S. 14:30.1. Following the denial of his motion for post verdict judgment of acquittal, the court imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Davis appeals, claiming the evidence shows that he was guilty only of manslaughter. For the following reasons, we affirm the conviction and sentence.

FACTS

Davis lived in an apartment with his girlfriend, Brittany Scott, and her 17-month-old son, Anthony. Davis frequently cared for Anthony while Brittany worked at a fast food restaurant. Davis was not employed. On the evening of November 26, 2013, Anthony was fine when Brittany left for work. When she returned home at 1:00 a.m. on November 27, Davis was holding Anthony. It is not clear whether the child was conscious. Brittany called 911 and the emergency responders came to the apartment. Anthony was taken to LSU hospital and was pronounced dead. An autopsy revealed that Anthony died of a lacerated liver caused by blunt force trauma which resulted in massive internal bleeding. Numerous other bruises and injuries were noted in the autopsy; all injuries were recent. In interviews with the police, Davis initially denied causing any injuries to the child. Following the autopsy results, he eventually admitted that he struck Anthony twice in the stomach. Davis was arrested and, in recorded telephone conversations to Brittany from jail, Davis again admitted that he struck Anthony.

Davis was originally indicted for first degree murder. The charge was later amended to second degree murder. At his jury trial, the testimony and evidence established the chain of events leading to Anthony's tragic death. Lisa Scott, the mother of Brittany and Kentrell Scott, and the grandmother of Anthony, testified that she had taken care of Anthony for two days. She said Anthony was a good baby and he never cried. When Lisa dropped Anthony and Kentrell off at Brittany's apartment, Anthony did not have any bruises or marks.

Kentrell, who was 14 at the time of trial, testified that he was staying with Brittany when Anthony died. He played dominoes with Davis and Anthony would grab a domino from the table and run, or he would throw it at Kentrell and laugh. Kentrell also tried to teach Anthony to catch a soft football. Kentrell did not hear the baby crying that day. Brittany went to work and Anthony went to sleep around 10:00 p.m. Kentrell then played dominoes with Davis and watched television. Kentrell went to sleep around 11:00 p.m. and awoke to Brittany screaming.

Brittany testified that Anthony was born June 26, 2012. At the time of the child's death, she had been seeing Davis for four months and had been living with him for two months. Brittany stated that her mother kept Anthony for a couple of days prior to this incident and he was fine when she returned him.

Anthony had asthma and used a nebulizer for breathing treatments. He had an asthma spell about two weeks before his death, but was not having any symptoms immediately before his death. Brittany said that Anthony ran into a wall while playing with Kentrell, but when she bathed Anthony that evening before she went to work, she did not see any marks or bruises.

Brittany rode to work with a friend and, while she was at work, Davis called to ask when she would be home. Brittany got off work at 1:00 a.m. on November 27. When she arrived home, the door to the apartment was locked, which was unusual. She said it took Davis some time to unlock the door. Davis was pacing the floor holding Anthony. Brittany grabbed the child. Davis said it was too hot in the apartment, and the baby "might have been up under the cover." Brittany did not think the apartment was too hot.

An emergency call was placed and Brittany rode to the hospital in the ambulance with Anthony. At the hospital, a nurse told her that Anthony "was gone" and she "fell out." Brittany was taken to her uncle's house. She learned the next day that Davis had been arrested. He called from jail to say he was sorry and "told her what he did to Anthony."

Garrett Wilson, a paramedic with the Shreveport Fire Department responded to the 911 call regarding Anthony. He testified at trial that, upon arrival, there was a lady on a balcony screaming, "What's wrong with my baby? Help my baby." There was a man present who at times was consoling the lady and at other times was "pacing around." The child was lying on a bed and did not have a pulse. The child had obvious bruising on the face and neck and along the jawline. Wilson picked the child up and took him to the ambulance, where pediatric advanced life support was initiated. The child was intubated, an IV was started along with CPR, and attempts were made to restart the heart. Anthony had distention, rigidity, and swelling in the abdomen. He was transported to LSU Health Sciences Center where he was pronounced dead.

Corporal Robert Morman with the Shreveport Police Department was called to secure a possible crime scene at the apartment. He was informed that a baby had been transported from the apartment to the hospital. Davis and Kentrell were at the apartment when Morman arrived. Davis was outside the apartment talking on the telephone with Brittany. Morman was told that the child had expired for unknown reasons. He remained at the apartment for approximately two hours before he was relieved by another officer.

Corporal Marcus Mitchell, a crime scene investigator with the Shreveport Police Department, went to the hospital and photographed Anthony's body. He also went to the apartment and made photographs of it and the bedroom where the child was found. Mitchell made a diagram of the apartment. There was no evidence of blood or bodily fluids at the scene.

Detective Joshua Mayfield with the violent crimes and homicide unit of the Shreveport Police Department investigated Anthony's death. He went to the apartment and then to the hospital to view the child. Both of Anthony's eyes were bruised. There was also bruising to the sternum, abdomen, back, and buttocks.

Mayfield spoke with Brittany in the family room at the hospital. She told him she had bathed the child that evening before she went to work and did not notice the extensive bruising. She stated that Anthony had one small bruise on the left side of his face where he hit a wall while playing. Anthony had been to the doctor for asthma on November 13, 2013, but Brittany did not note any problems with Anthony's breathing before she went to work. She said Davis told her it had been hot in the apartment and that Anthony was "breathing funny." Davis said he gave Anthony a breathing treatment.

Mayfield saw Brittany again after she had been told that Anthony died. Brittany was crying hysterically and was having a panic attack. She was being treated by a nurse. Mayfield had several people come to the police station, including Kentrell, Lisa, and Olivia Brown, a friend of Brittany. They all stated that Anthony was healthy and uninjured when Brittany left for work.

Davis was also brought to the police station. He signed a form consenting to the search of the apartment and was advised of his rights and questioned, even though he was not under arrest at that time. Mayfield was assisted by Detective Rod Demery in questioning Davis. According to Mayfield, Davis was deceptive in this first interview, and denied striking Anthony. An audio recording of the interview was played for the jury.

In the interview, Davis stated that he fed Anthony and put him to bed around 11:00 p.m. He then played dominoes and watched television. He and Kentrell fell asleep. Davis got up and checked on Anthony and found he was sweating and wheezing. Davis gave Anthony a breathing treatment for his asthma and Brittany arrived home around 1:00 a.m. He denied calling Brittany at work. Davis also repeatedly denied striking Anthony. When asked about the bruises on Anthony's face, Davis said the child fell down some stairs approximately one month previously and still had bruises. He originally lied to Brittany about the fall, but eventually told her the truth. The police informed Davis that Anthony's bruises were fresh. Davis again denied striking Anthony. Davis, who was 26 years old at the time of this offense, stated that he had four children. Regarding Anthony, Davis professed his love for the child and repeatedly said, "I'm flawless with that baby." According to Davis, Anthony did not cry a lot. Davis was told that an autopsy was scheduled that morning. Demery drove Davis home. The conversation during the car ride was recorded. Demery urged Davis to tell the truth about what happened to Anthony. Davis continued to insist that he did not harm the child.

Following the first interview with Davis, Mayfield went to the hospital to observe Anthony's autopsy. The autopsy was performed by Dr. Long Jin, an associate professor of pathology at LSU Health Sciences Center and an expert in forensic pathology. According to Dr. Jin, Anthony was 17 months old, 30 inches tall, and weighed 23.7 pounds. The autopsy revealed that Anthony suffered multiple blunt force injuries. He had multiple bruises or contusions on the scalp, face, abdomen, and back, including a purple bruise on the right side of the face lateral to the right eye, a pink bruise below the right eye, a small abrasion between the nose and upper lip, five ovoid contusions on the left cheek, multiple small, round and ovoid pink and red contusions over the abdomen, multiple small contusions on the top and front of the head, a small scalp contusion on the left side of the head over the ear, a small hemorrhage on the back of the head between the scalp and skull, and a focal intradural hemorrhage on the left temporal area of the head just inside the dura. Dr. Jin stated that the small, ovoid contusions were consistent with grabbing the child's face with the fingertips and the contusions on the top of the head could be from impact or from grabbing the child's head forcefully. Microscopic examination showed acute hemorrhagein the deep subcutaneous soft tissue. According to Dr. Jin, these injuries were fresh and occurred close to the time of death. There were no fractured bones or signs of prior injuries or abuse.

An internal examination revealed that there was a gaping laceration on the inferior aspect of the liver that was 3.5 centimeters in length. The liver had a rupture of the tissue with significant mesenteric hemorrhage. Dr. Jin explained that the soft tissue in that area has a lot of small blood vessels and injuries to the area cause significant bleeding. Anthony would have had a total of 800 milliliters of blood in his body. Because of his injuries and resulting hemorrhage, his abdominal cavity contained 250 milliliters of blood, or roughly 1/3 of the total blood volume in the child's body. There were bruises and contusions on the stomach inside the child's belly along with small contusions on the large and small intestines. There was a submucosal hemorrhage of the small intestine. Dr. Jin found a contusion on the stomach with acute hemorrhage in the gastric wall. There was also acute hemorrhage around the adrenal gland on the top of the kidney, close to the stomach and the mesentery. Dr. Jin testified that the laceration to the liver was caused by severe blunt force impact from outside the body, either from a direct strike from a fist or by grabbing the child. Dr. Jin testified that Anthony died from a massive internal hemorrhage caused by blunt force injuries. According to Dr. Jin, this was a homicide. Anthony was beaten to death and the injuries were inflicted in one incident.

Davis was picked up and taken back to the police station where he gave another statement. An audio recording was made, as well as a video recording made by Demery on his cellphone. In that interview, Davis appeared nervous. According to Mayfield, in the second interview, Davis had the attitude of "you got me." The recording was played for the jury.

At the beginning of the second interview, Davis was again advised of his rights. Davis said that the baby had been hollering and continued to holler after he was put to bed. Davis admitted that he struck the child in the stomach twice with a closed fist. He demonstrated how he struck the child. Davis said he was going through a lot of "personal stuff," such as not having a job, not being able to see his children, and the holidays were approaching. Davis said Anthony stopped crying after he hit him and the child had trouble breathing. Davis gave Anthony a breathing treatment.

Davis was arrested for first degree murder and was booked into jail. He made two telephone calls to Brittany from jail and those conversations were recorded. In those calls, Davis admitted to Brittany that he hit Anthony in the stomach and the chest. Those recordings were also played for the jury. Numerous photos depicting the injuries inflicted upon Anthony were admitted into evidence, along with a diagram and photos of the apartment.

The jury convicted Davis as charged of second degree murder. Davis filed a motion for "post verdict judgment of modification" urging that he was guilty only of manslaughter. The motion was denied. Davis was ordered to serve the mandatory sentence, life in prison at hard labor without benefit of parole, probation, or suspension of sentence. He was given credit for time served and was properly informed of the time limits for seeking an appeal and post conviction relief.

On appeal, Davis argues that the evidence adduced at trial does not support a conviction for second degree murder. Davis admits striking Anthony in the abdomen twice. However, he urges that this did not show a specific intent to kill or inflict great bodily harm and that he could not have anticipated that his actions would have resulted in the damage caused. He also contends that his actions did not show the intent or negligence required for cruelty to a juvenile. Davis maintains that he lashed out, but did not anticipate the effect of his actions. Davis argues that the motion for "post verdict judgment of modification" should have been granted, and his conviction for second degree murder should be converted to a conviction for manslaughter. None of these arguments has merit.

LEGAL PRINCIPLES

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Small , 2011-2796 (La. 10/16/12), 100 So.3d 797 ; State v. Thornton , 47,598 (La. App. 2 Cir. 3/13/13), 111 So.3d 1130.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2d Cir. 2/25/09), 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913 ; State v. Thornton , supra ; State v. Givens , 45,246 (La. App. 2 Cir. 6/9/10), 41 So.3d 589.

Second degree murder is defined, in pertinent part, by La. R.S. 14:30.1, as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles [or] second degree cruelty to juveniles ... even though he has no intent to kill or to inflict great bodily harm.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Allen , 41,548 (La. App. 2d Cir. 11/15/06), 942 So.2d 1244, writ denied , 2007-0530 (La. 12/7/07), 969 So.2d 619 ; State v. Lilly , supra ; State v. Thornton , supra . Specific intent to kill or inflict great bodily harm, as required to convict for second degree murder, may be inferred from the extent and severity of the victim's injuries. State v. Thornton , supra ; State v. Julien , 2013-1327 (La. App. 3 Cir. 5/21/14), 139 So.3d 1152, writ denied , 2014-1406 (La. 5/15/15), 169 So.3d 383.

Cruelty to juveniles is defined by La. R.S. 14:93(A)(1) as the intentional or criminally negligent mistreatment by neglect by anyone 17 years of age or older of any child under the age of 17 whereby unjustifiable pain or suffering is caused to said child. Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of 17 to any child under the age of 17 which causes serious bodily injury or neurological impairment to that child. La. R.S. 14:93.2.3(A)(1). The term "intentional" within the meaning of this statute requires general criminal intent to cause a child unjustifiable pain and suffering. State v. Woods , 44,491 (La. App. 2 Cir. 8/19/09), 16 So.3d 1279, writ denied , 2009-2084 (La. 4/9/10), 31 So.3d 380 ; State v. Tensley , 41,726 (La. App. 2 Cir. 4/4/07), 955 So.2d 227, writ denied , 2007-1185 (La. 12/7/07), 969 So.2d 629. "Mistreatment," as used in this statute, is equated with abuse. State v. Brown , 47,050 (La. App. 2 Cir. 5/16/12), 92 So.3d 579, writ denied , 2013-2997 (La. 9/12/14), 147 So.3d 182 ; State v. Woods , supra .

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12.

The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31(A)(1) ; State v. Thornton , supra . Sudden passion and heat of blood are mitigatory factors in the nature of a defense which exhibits a degree of culpability less than present when the homicide is committed without them. State v. Lombard , 486 So.2d 106 (La. 1986) ; State v. Thornton , supra . The defendant bears the burden to prove, by a preponderance of the evidence, that he acted in sudden passion or heat of blood in order for manslaughter to be appropriate. State v. Thornton , supra .

Provocation and the time for cooling are questions for the trier of fact to determine according to the standard of the average or ordinary person. The appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Thornton , supra ; State v. Free , 48,260 (La. App. 2 Cir. 11/20/13), 127 So.3d 956, writ denied , 2013-2978 (La. 5/30/14), 140 So.3d 1174, writ denied , 2014-0039 (La. 9/19/14), 148 So.3d 944.

DISCUSSION

The evidence in this case is more than sufficient to support Davis's conviction for second degree murder. The definition of second degree murder, set forth above, includes the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. The definition also includes the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of cruelty to juveniles or the perpetration or attempted perpetration of second degree cruelty to juveniles, even though he has no intent to kill or inflict great bodily harm. Here, Davis's actions were sufficient to support his conviction under either category of the offense.

Specific intent is found where the offender desired the prescribed criminal consequences to follow his act or failure to act and may be inferred from the extent and severity of the victim's injuries. Davis admitted that he struck a defenseless infant in the stomach twice with a closed fist. Anthony's body also showed trauma to the face, head, and body. The bruises on the face and head appeared to be caused by Davis gripping the child's face and head with his fingers. Anthony had hemorrhaging on the back of the head between the scalp and skull and a hemorrhage on the left temporal area of the head inside the dura. The intestines and stomach were bruised with acute hemorrhage and there was also an acute hemorrhage around the adrenal gland on the top of the kidney. Dr. Jin testified that Anthony was beaten to death and that his injuries were inflicted in a single incident. Although the two intentional strikes to the abdomen admitted by Davis are sufficient to support his conviction for second degree murder, Anthony's injuries show that he was intentionally brutalized far beyond the behavior admitted by Davis. The severity of the injuries is sufficient to show that, in attacking the child, Davis had the specific intent to kill or inflict great bodily harm.

The evidence also shows that Anthony died as a result of Davis's perpetration of cruelty to a juvenile or second degree cruelty to a juvenile. The record shows that Davis intentionally abused Anthony by brutally beating him, causing him to bleed to death internally. Davis described how the infant had difficulty breathing following the beating. Davis's intentional, abusive actions caused Anthony unjustifiable pain and suffering and resulted in his death.

Although the evidence amply shows that Davis is guilty of second degree murder, he argues that he is guilty only of manslaughter in this matter. The record simply fails to support his argument. To support a conviction for manslaughter, Davis had to prove by a preponderance of the evidence that he committed the offense in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Several witnesses testified that Anthony was a good baby who did not cry excessively. Kentrell, who was present in the apartment the entire evening, never heard any crying. While Davis told police that he had "personal stuff" going on, such as not being able to see his children and being out of work, these factors were hardly sufficient to provoke an average person to commit the savage, brutal beating of a helpless child. As stated in State v. Thornton , supra :

[T]he measure of the "provocation sufficient to deprive an average person of his self-control" cannot be met by reference to the crying and discomfort of an innocent [infant.] The average person understands that no anger, much less anger accompanied by force and harm, is a reasonable response to an infant.

Davis simply failed to prove that his actions constituted manslaughter only, and not second degree murder. As outlined above, the evidence in this matter was more than sufficient to support Davis's conviction for second degree murder and the trial court did not err in denying Davis's motion for post verdict judgment of acquittal.

CONCLUSION

For the reasons set forth above, we affirm the conviction and sentence of the defendant, Gerderrick Davis, for the second degree murder of Anthony Scott.

AFFIRMED.

      La. R.S. 46:1844 W(1)(a), regarding confidentiality of crime victims who are minors and victims of sex offenses, provides in part that the public disclosure of the name of the juvenile crime victim by any public official or officer or public agency is not prohibited when the crime resulted in the death of the victim.

      Kentrell is Brittany's brother, who was 11 years old at the time of this incident, and was staying with his sister during the Thanksgiving break from school. In the trial transcript, he is referred to as Kentrell. There are other indications in the record that his name is Hentrell. In this opinion, we will use the spelling in the transcript.

      Davis's motion is actually a motion for post verdict judgment of acquittal, which allows for acquittal if the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty, or modification of the verdict to render a judgment of conviction of a lesser included responsive offense if the evidence supports only a conviction for the lesser included responsive offense. See La. C. Cr. P. art. 821.


author: STONE, J.

text:
    SUCCESSION OF Frances Oden YOUNGBLOOD
    Succession of Ray Oden Youngblood
    Succession of James Dee Youngblood, III
    51,792-CA 51,793-CA 51,794-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018.
    AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC, By: Lee H. Ayres, Shreveport, By: Stacey A. Smith Melerine, By: Jacob C. White, Shreveport, Counsel for 1st Appellant, Mary Anne Youngblood Shemwell.
    DALE G. COX, JR., Counsel for 2nd Appellants, Patricia N. Miramon, Succession of Frances Oden Youngblood, Succession of Ray Oden Youngblood, Succession of James Dee Youngblood, III, American Heart, Association, American Cancer Society, Inc., Patricia N. Miramon, Independent Executrix.
    Before WILLIAMS, MOORE, and STONE, JJ.
   STONE, J.

This appeal arises from a trial court's judgment appointing Mary Anne Youngblood Shemwell and Patricia N. Miramon as co-executrices of the Succession of Frances Oden Youngblood. For the following reasons, we reverse the judgment of the trial court and remand for trial.

FACTUAL BACKGROUND

On February 26, 2007, Frances Oden Youngblood ("Frances") and her sons, Ray Oden Youngblood ("Ray") and James Dee Youngblood, III ("James"), each executed notarial testaments. Frances left the bulk of her estate in equal shares to her two sons and only daughter, Mary Anne Youngblood Shemwell ("Shemwell"). Frances named James as her independent executor; she did not name an alternative or successor executor.

Ray left his entire estate to James and named James as his independent executor. James left his entire estate to Ray and, in the event Ray predeceased him, James' entire estate went to the American Heart Association and the American Cancer Society. In a codicil to his will, James named the family attorney, Patricia N. Miramon ("Miramon"), as his independent executrix. Miramon, who had served as the Youngbloods' family attorney since 2006, drafted and notarized the three aforementioned wills.

Frances died in 2011, Ray died in 2012, and James died in 2016. At the times of their deaths, neither Ray nor James was married, and neither of the men had children. Beginning in 2011, after Frances' death, James gave Miramon a series of mandates to act on his behalf as independent executor of Frances' estate. Additionally, from 2015 until his death in March of 2016, James granted Miramon a general power of attorney, authorizing Miramon to act with broad powers on his behalf.

On October 30, 2015, Shemwell filed a petition to have James removed as executor of Frances' succession on the grounds that he lacked capacity. Shemwell's claims were based on James' mental illness and/or incompetence, documented over a period of several years.

Thereafter, following James' death in 2016, Shemwell filed a petition seeking appointment as the dative independent executrix of Frances' succession. Shemwell argued that, pursuant to La. C.C.P. art. 3098 (" Article 3098"), she has priority of appointment as Frances' sole remaining legatee. Miramon subsequently answered the petition and filed exceptions of prematurity, no right of action, and unauthorized use of summary proceedings. In her answer, Miramon sought appointment as the dative independent executrix of Frances' succession.

A hearing on Shemwell's petition and Miramon's exceptions was held on January 9, 2017. The trial court, despite repeated objections by both parties, appointed Shemwell and Miramon as co-executrices of Frances' succession. The trial court conceded it lacked legal authority upon which to appoint co-executrices, but believed its ruling was an effectual compromise to accommodate both parties. Shemwell and Miramon now appeal. Each party argues the trial court erred in appointing them co-executrices.

DISCUSSION

La. C.C.P. art. 3083 (" Article 3083") provides:

If no executor has been named in the testament, or if the one named is dead, disqualified, or declines the trust, on its own motion or on motion of any interested party, the court shall appoint a dative testamentary executor, in the manner provided for the appointment of an administrator of an intestate succession.

When appointing a dative testamentary executor, the trial judge shall choose the candidate who is best qualified personally, and by training and experience, to administer the succession. La. C.C.P. art. 3098. Succession of Anderson , 26,947 (La. App. 2 Cir. 05/10/95), 656 So.2d 42, 45, writ denied , 95-1789 (La. 10/27/95), 662 So.2d 3.

Words and phrases must be read with their context and construed according to the common and approved usage of the language. La. R.S. 1:3. "The word 'shall' is mandatory and the word 'may' is permissive." Id. Further, every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Colvin v. Louisiana Patient's Comp. Fund Oversight Bd. , 06-1104 (La. 01/17/07), 947 So.2d 15, 19 ; Moss v. State , 05-1963 (La. 04/04/06), 925 So.2d 1185, 1196. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Colvin , supra ; Moss , supra .

This Court finds that the trial court, while having a sincere but utterly unrealistic hope of effecting an agreement and compromise between the parties, was manifestly erroneous in interposing its notion of a "solution" to this extremely serious dispute by appointing co-executrices. It is apparent that the legislature, by use of the word "shall" in Article 3083, mandated the appointment of a single dative testamentary executrix. The clear language of the statute does not afford the trial court the option of not appointing an executrix, nor does it authorize the trial court to appoint more than one executrix. The legislature likely recognized the issues and conflicts that could arise from appointing multiple executrices who possess conflicting interests, as in the case sub judice . The trial court was obligated to appoint either Shemwell or Miramon as the dative independent executrix of Frances' succession, and its failure to do so was manifestly erroneous.

Both parties contend this Court should conduct a de novo standard of review and determine which of the women should be appointed as executrix. We disagree.

La. C.C.P. art. 3096 (" Article 3096") provides:

At the hearing on the application for appointment as administrator, if no opposition is filed, the court shall appoint the applicant, unless he is disqualified under Article 3097.
If an opposition to the application for appointment has been filed prior to the hearing thereon, the court shall assign the opposition for trial. After this trial, the court shall appoint an administrator the qualified claimant having the highest priority of appointment.

Jurisprudence supports remanding this matter in order for a trial to be held to determine which party is best qualified to be executrix of the succession. In Succession of Cucchero , 97-0771 (La. App. 1 Cir. 4/8/98), 711 So.2d 402, 403, the appellate court vacated the appointment of a dative testamentary executrix because of the refusal of the trial court to entertain testimony on "all issues raised in the movant's pleading," citing La. C.C.P. art. 3182, requiring a contradictory hearing in which testimony is integral. Similarly, in Succession of Gaulden , 593 So.2d 805, 806 (La. App. 4 Cir. 1992), an order of appointment of a succession representative was vacated when it was premised solely upon the pleadings and argument of counsel. "Reliance upon the pleadings and argument of counsel is not sufficient when a factual finding must be made."

The record reveals that at the hearing on January 9, 2017, no witnesses were sworn, no testimony was taken or proffered, and no exhibits were introduced or offered. In fact, aside from arguments of counsel, objections to the trial court's proposed course of action, gratuitous profanity, recriminations, and the parties talking over one another, the record is devoid of any evidence at all. The hearing can in no way be construed as the trial intended by the second paragraph of Article 3096.

Both Miramon and Shemwell have articulated compelling arguments supporting their right to be appointed as executrix. Shemwell claims that because she is the sole living legatee under Frances' testament, she has priority of appointment as the sole dative independent executrix of Frances' succession. Moreover, Shemwell has alleged in numerous motions that James was mentally incompetent when he drafted his will as well as when he was appointed executor over Frances' succession.

Miramon contends that because she was the legal representative of James, a legatee of Frances whom Shemwell claimed was incompetent, she also falls within the category of those persons having the highest priority of appointment. Additionally, Miramon points to the considerable highly specialized and effective work she has already performed on Frances' succession while serving as interim administratrix, including handling an IRS estate audit. In fact, the record reflects that at the time of James' death, Miramon had concluded the administration of Frances' succession subject to homologation of the final tableau of distribution. Shemwell does not repudiate Miramon's performance as acting executor of Frances' estate.

Undoubtedly, there is a legitimate dispute over who is the most qualified claimant having the highest priority of appointment under Article 3098. However, the record is barren of the evidence necessary for this Court to issue a judgment appointing either Shemwell or Miramon as executrix. Each party should be given the opportunity to put on evidence in the traditional adversarial manner, and based on the evidence presented, the trial court should make a factual and legal determination concerning who is best qualified to be executrix of Frances' succession. As such, the trial court's judgment is reversed and remanded for trial.

CONCLUSION

For the foregoing reasons, the trial court's judgment appointing Shemwell and Miramon as co-executrices is reversed. The matter is remanded for the trial court to conduct a trial as prescribed by La. C.C.P art. 3096. Costs of this appeal are to be equally split between Shemwell and Miramon.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      James had been diagnosed with a chronic mental illness prior to Frances' death. The issue of James' mental competence to serve as executor of Frances' estate, as well as whether he lacked the testamentary capacity to execute his last will and testament, are currently the subject of litigation in the consolidated matter, Succession of James D. Youngblood, III . Miramon's appointment as the executrix of James' succession is also being challenged.

      Shemwell is also seeking appointment as the independent executrix of Ray's succession in the consolidated matter, Succession of Ray Oden Youngblood.


author: PITMAN, J.

text:
    Delores A. BURCH, Plaintiff-Appellee v. Jarrell O. BURCH, Defendant-Appellant
    No. 51,780-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    LAW OFFICE OF BRYCE DENNY, LLC, By: Bryce J. Denny, Counsel for Appellant
    RONALD J. MICIOTTO, Shreveport, Counsel for Appellee
    Before PITMAN, STONE, and GASKINS (Pro Tempore ), JJ.
   PITMAN, J.

Defendant Jarrell O. Burch appeals the judgment of the trial court which partitioned the community property he held with his former wife, Delores Altheon Burch ("Altheon"). For the following reasons, we affirm and remand for modification of the judgment to include legal descriptions of the immovable property affected by the judgment and to comport with La. C.C.P. arts. 1919 and 2089.

FACTS

Altheon filed a petition for divorce from her husband, Jarrell. A judgment was rendered terminating their community property regime effective February 13, 2009. On December 5, 2009, the trial court appointed a special master, Susan Whitelaw, C.P.A., to assist it with the partition of the property. In the following seven years, Ms. Whitelaw submitted four detailed descriptive lists ("DDL"), which purported to reflect the parties' community and separate property holdings and their values. The last list, the Fourth DDL, was completed in the fall of 2016.

On July 14, 2016, a trial was held at which the Third DDL was admitted into evidence and Ms. Whitelaw was present to testify and identify each item in the list as to its classification and valuation. It was at that time that the attorneys for the parties were to express any objection they had to classification or valuation of any item of property listed. At that hearing, Jarrell's attorney, Mr. Denny, voiced his objections, stating:

And then I'm skipping over the separate property issue other than we do have an issue on sixty-four (A) which is the Mark Ward cash deed. It's listed here as separate.
* * *
And I understand that Ms. Whitelaw has an explanation for that but at this point we object to it.
Mr. Miciotto: But let's make sure-
The Court: To the value?
Mr. Denny: No, not the value, I'm sorry. The-I'm sorry, I'm sorry. Never mind, we do not. I'm sorry. Never mind.
The Court: The value is not-
Mr. Denny: The value is not an issue.
The Court: Okay. But the classification?
Mr. Miciotto: No.
Mr. Denny: No.
Mr. Miciotto: He's withdrawing that objection.
Mr. Denny: Yes.
The Court: Okay.
Mr. Denny: Are fine.
Mr. Miciotto: -are all fine.

On November 30, 2016, the trial court entered a judgment of partition which essentially adopted the Fourth DDL as the judgment of the court, subject to three modifications. Those modifications were:

1. Item number 13, Rent house-2328 Hunter Rd, Mansfield, LA, valued at forty thousand dollars ($40,000), shall be allocated to Delores A. Burch;
2. Item number 14, Lot 5 and W ½ Lot 6, Posey rent house, valued at thirty thousand dollars ($30,000), shall be allocated to Delores A. Burch; and
3. Jarrell O. Burch shall make an equalizing payment of seven thousand, seven hundred fifty seven dollars and forty six cents ($7,757.46) to Delores A. Burch.

Jarrell filed a motion for new trial and requested a "clarification" of the judgment, arguing that it did not address the parties' mineral rights. He noted that the parties have been splitting the mineral rights on their former community property on a 50/50 basis and stated that the special master never did a valuation of the mineral rights. He requested that the judgment be amended to include that valuation.

Jarrell's motion also requested the trial court to reconsider its judgment and amend it to exchange the "Earnest Price" house in Logansport for rental property located on Highway 84 in Mansfield. He did not raise the "Mark Ward" property as an issue.

The trial court partially granted the motion for new trial, specifically holding that it was not partitioning any community property mineral rights and that any future community property mineral rights were to be split 50/50. The trial court's judgment did not change with respect to the "Earnest Price" house, which had been previously allotted to Altheon.

Jarrell now appeals.

DISCUSSION

Jarrell argues that the trial court erred by adopting and incorporating by reference the Fourth DDL since it is vague, ambiguous and improperly relies on extrinsic materials and, further, that it erred in adopting the special master's finding that the "Mark Ward" property was Altheon's separate property. He contends that the Fourth DDL was not set up in a proper format to be used as the basis of a partition judgment. The format of the DDL is divided into categories of community assets, community liabilities, separate property and reimbursement claims. Each item of property is given a separate number, and each item has the proposed value of the property beside it. The values are placed in a column indicating whether each item should be deemed Jarrell's or Altheon's property, and he asserts that a few of the values are missing.

Jarrell further contends that the Fourth DDL is vague since there are no itemized legal descriptions of the property even though immovable property constitutes the bulk of the community property. This DDL contains notations by the items such as "legal description in documentation," but he asserts that no such documentation exists anywhere in the record. He also points out that in reference to some immovable property, the Fourth DDL contains an address; however, other property references only state general locations such as, "80 acres in DeSoto Parish" with "legal description in documentation." He argues that the 80 acres could be anywhere in DeSoto Parish and that no member of the public reviewing such a judgment could determine which property was being described. Other examples of inadequate descriptions include "the lot behind Greenleaf Insurance Agency" and "10 acres airport property Mansfield, Louisiana." The airport has several 10-acre tracts. He contends that some of the immovable properties described in the separate property section of the DDL have the same flaw.

Jarrell also argues that the Fourth DDL is defective as a judgment in regard to a claim that he would have against Altheon for reimbursement of New York Life withdrawals since the amount due to him has been left blank. For these reasons, Jarrell contends that the Fourth DDL is too vague to have formed the basis of the trial court's judgment and the reference to "legal description in documentation" would be reference to an extrinsic document not found in the record.

Jarrell further claims that the most problematic entry on the Fourth DDL is number 64(A), the "Mark Ward" property. He points out that the property is listed as item 8 under "Community Property" and as item 64(A) under "Separate Property" with the item being designated as Altheon's separate property. He asserts that the funds Altheon used to purchase the "Mark Ward" property came from a lease bonus of $2,467,004.75 received by the couple in 2008, the year before the partition decree was rendered. The parties equally split the post-tax balance. Altheon purchased the 23.622-acre property with part of her share of those bonus proceeds.

Jarrell argues that this particular property was bought by Altheon using the community property bonus that was paid to her, even though the parties had agreed to equally split the bonus/royalties. He contends that the division of the bonus/royalties did not form a part of the partition and, thus, did not convert the funds to separate property even though the parties had verbally agreed to split them. He argues that the special master's report never resolves the issue of whether the "Mark Ward" property was community property; thus, he claims it was error for her to classify it as Altheon's separate property. He asserts that the lease bonus is listed as community property in the Fourth DDL; and, therefore, the purchase made with community property funds is community property.

Jarrell asserts that the standard of review for the fairness of a partition is whether the trial court abused its discretion; however, the issues of whether it was appropriate for the trial court to adopt the Fourth DDL or to designate the "Mark Ward" property as separate property are both errors of law which are reviewed de novo. He points out that a judgment must be precise, definite and certain and cannot require reference to extrinsic documents or pleadings in order to discern the court's ruling. He argues that the Fourth DDL is an extrinsic document and that the documentation to which it refers for legal descriptions of the property is nowhere to be found in the record and, thus, are also extrinsic documents.

Altheon argues that the trial court did not err in relying upon the Fourth DDL because a hearing was held in July 2016 at which the special master was called to testify. At that time, the Third DDL and the In-Globo Exhibit Book were introduced into evidence. Both have been attached to the record on appeal. She claims that each and every numbered item on the DDL has a corresponding number in the exhibit book which contains further details regarding the property, including the legal description. She also claims that the DDL contains all the information necessary for the trial court to reach a decision on allocation of the assets as community or separate property.

Altheon also argues that the trial court made clear that it was going to use the Fourth DDL as a guide to help make determinations for value and ownership, but that it would not be simply adopting it. In fact, the judgment is modified with regard to three items in the DDL. She claims that most of the values and division of the assets into separate or community property were stipulated to when the trial court went through each item listed on the DDL and corresponding exhibit and asked the parties if there was an objection to valuation or assignment of status of the properties.

Altheon further argues that when the trial court reached the "Mark Ward" cash deed, it asked the parties if there were any objections. Although Jarrell's attorney first stated he had an objection to the property being listed as her separate property, he withdrew his objection and stipulated to the valuation and classification.

Altheon asserts that the judgment is not vague or ambiguous since each piece of property mentioned in the DDL is legally described in the In-Globo Exhibit Book, which is part of the record. It was only because the partition was so large that the trial court framed the judgment the way it did to limit confusion and errors which could be made transferring numerous legal descriptions from one document to another.

As to the "Mark Ward" property's classification, Altheon claims this court should not consider the argument because Jarrell's attorney stipulated to it being her separate property at trial and he cannot raise the issue for the first time on appeal. She argues that by conceding at trial that this property was her separate property, Jarrell made a judicial confession in a judicial proceeding and this confession constitutes "full proof against the party who made it." She contends that a declaration made by a party's attorney has the same effect as one made by the party himself. She asserts that Jarrell failed to preserve the issue for review, failed to make a valid objection at trial and, in fact, stipulated to the property being classified as her separate property.

Ambiguity in the form of the judgment

A final judgment must be precise, definite and certain. Barnes v. Riverwood Apartments P'ship , 42,912 (La. App. 2 Cir. 2/6/08), 975 So.2d 720. La. C.C.P. arts. 1919 and 2089 both state that all final judgments which affect title to immovable property shall describe the immovable property affected with particularity.

La. C.C.P. art. 2089 serves to assure that the general public, title examiners, successful litigants, officials charged with executions of judgments and surveyors in particular can accurately deal with the immovable property. Gandy v. Deese , 29,032 (La. App. 2 Cir. 1/22/97), 688 So.2d 620, writ denied , 97-0713 (La. 4/25/97), 692 So.2d 1095.

The judgment in the case at bar does not comply with La. C.C.P. arts. 1919 or 2089. The parties own a substantial amount of immovable property which was divided by the judgment at issue in this case into community and separate property. The location of the property cannot be determined by the judgment rendered in the trial court, although the evidence necessary for the identification of the property is present in the record.

The Third DDL and the In-Globo Exhibit Book were introduced into evidence at a hearing at which the special master testified. Each and every numbered item on the DDL had a corresponding number in the exhibit book, which contained further details regarding the property, including its legal description. The judgment of the trial court can easily be amended and modified to include the legal descriptions of the immovable property adjudicated by the trial court as community or separate property.

For these reasons, this assignment of error has merit and the matter is remanded to the trial court for modification of the judgment to include the legal descriptions of all of the immovable property affected by the judgment.

Designation of the "Mark Ward" property as Altheon's separate property

The issue raised concerning the designation of the "Mark Ward" property as Altheon's separate property is pretermitted.

At the hearing on July 14, 2016, Jarrell's attorney stipulated that he and his client had no objection to the classification of the property listed as Number 64(A) as Altheon's separate property or to its valuation. For those reasons, the "Mark Ward" property was adjudicated as Altheon's separate property. Jarrell has raised the issue of the "Mark Ward" property for the first time on appeal.

In Anderson v. Houston , 44,766 (La. App. 2 Cir. 9/23/09), 22 So.3d 1029, this court stated:

A judicial confession is a declaration made by a party in a judicial proceeding. It constitutes full proof against the party who made it, is indivisible, and may be revoked only on the ground of error of law. La. C.C. art. 1853 ; Cichirillo v. Avondale Indus. Inc. , 04-2894 (La. 11/29/05), 917 So.2d 424 ; Cash Point Plantation Equestrian Center Inc. v. Shelton , 40,647 (La.App. 2 Cir. 1/25/06), 920 So.2d 974. A declaration made by a party's attorney or mandatary has the same effect as one made by the party himself. La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine Plaza Inc. , 03-1003 (La. 12/3/03), 861 So.2d 156. The attorney's response to questioning by the court may also constitute a judicial confession. Cichirillo v. Avondale Indus. Inc. , supra .

This court will not consider an issue raised for the first time on appeal. Segura v. Frank , 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714 ; Cooper v. Southern Hunting Prod., Ltd. , 39,166 (La.App 2 Cir. 12/22/04), 891 So.2d 91.

At the trial of this issue, Jarrell's attorney withdrew the objection he originally raised regarding the "Mark Ward" property and thereby stipulated to the classification of the property as Altheon's separate property. Because the challenge to the classification of that property as her separate property was raised for the first time on appeal, the merits of the issue will not be considered. The issue is deemed to have been waived.

This assignment of error lacks merit.

CONCLUSION

The judgment of the trial court, in its present form, does not comply with the requirements of La. C.C.P. arts. 1919 and 2089, which require all final judgments affecting title to immovable property to describe the immovable property affected with particularity. For that reason, the matter is remanded to include the legal descriptions of the immovable property and to conform with the requirements of La. C.C.P. arts. 1919 and 2089. In all other respects, the judgment of the trial court is affirmed. Costs of appeal are assessed equally to the parties Jarrell O. Burch and Delores Altheon Burch.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.