author: PITMAN, J.

text:
    Melodye PATTERSON, nee Tanner, Plaintiff-Appellant v. Gary Edward PATTERSON, Defendant-Appellee
    No. 51,929-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    DONALD L. KNEIPP, Monroe, Counsel for Appellant
    HUDSON, POTTS & BERNSTEIN, LLP, By: Robert M. Baldwin, L. Casey Auttonberry, Monroe, Counsel for Appellee
    Before WILLIAMS, PITMAN, and COX, JJ.
   PITMAN, J.

Concerning the division of property after divorce between Plaintiff Melodye Patterson, nee Tanner, and Defendant Gary Edward Patterson, Plaintiff appeals the judgment of the trial court which declared their matrimonial agreement ("the Agreement") valid and which classified the shares of a company owned by Plaintiff prior to the marriage as community property. For the following reasons, we affirm the judgment of the trial court.

FACTS

Plaintiff and Defendant were involved in a relationship in 1988 while Defendant was still married to his first wife. In 1988, Plaintiff formed a company called Financial Resources Management of Louisiana, Inc. ("FRM"), and is its sole shareholder. Between 1988 and 1990, Plaintiff purchased three tracts of immovable property through FRM known as the Heard tract, the DeSoto tract and the Caney Lake property. The properties were found and purchased with the assistance of Defendant, although he was not monetarily obligated for the purchases of the land owned by FRM.

Defendant eventually divorced his first wife, and a property settlement was reached. Plaintiff and Defendant planned to marry in August 1993 and agreed to enter into a matrimonial agreement that would delineate which of their properties would be deemed separate and which properties would be deemed community. They met with Defendant's attorney and friend, Paul Spillers, who informed Plaintiff that he was there representing and advising his client, Defendant, and that he could not be her attorney in this matter. Plaintiff allegedly told Spillers that she understood and that she had an attorney, but was unsure about using him for this matter.

The Agreement was prepared by Spillers. By letter dated July 21, 1993, a copy was mailed to his client, Defendant, along with two attached exhibits, A and B, which allegedly described all the separate property owned by each party. FRM was not listed on Plaintiff's Exhibit B. In fact, it listed only one tract of land, called the Sibley Tract, which she had inherited from her grandmother. Defendant's Exhibit A is several pages long and contained legal descriptions of 13 pieces of immovable property. Plaintiff did not receive a copy of the Agreement from Spillers since she was not his client. Defendant claims that she must have seen a copy at their office because she handled all the mail delivered there. Defendant made corrections to the legal descriptions and returned his exhibit to Spillers, who thereafter sent Defendant a final draft of the Agreement by letter dated July 26, 1993.

Plaintiff claims that she saw and read the Agreement for the first time on August 5, 1993, two days before their wedding, when she and Defendant were driving to the courthouse in Ruston, Louisiana, to execute it in front of a notary public and two witnesses.

Except for the attached exhibits, the Agreement is three pages long. The first page names the parties and states that it is to take effect upon their marriage. The second and third pages contain signatures and the following clauses, which led to this extensive lawsuit:

1.
Appearers shall be separate in property with respect to the property described on the attached Exhibits "A" and "B". The attached Exhibit "A" describes the separate property of GARY EDWARD PATTERSON. The attached Exhibit "B" describes the separate property of MELODYE TANNER BARNES. Appearers declare and acknowledge the property listed and described on the attached exhibits shall henceforth be the separate property of each. Each Appearer hereby expressly reserves to himself/herself, individually, the entire administration and control of his/her respective separate properties.
2.
Any income recognized by either Appearer with respect to their separate property shall constitute community income. For these purposes income shall be recognized at that point in time when income is recognized for federal income tax purposes.
* * *
3.
Appearers hereby adopt the legal regime of community property with respect to all other assets of whatever nature they may own, it being their specific intent that all assets other than the assets described on the attached exhibits shall be and are hereby converted to community property.
4.
Any debts, obligations, and liabilities of your Appearers that exist as of the date of marriage shall retain their character as separate obligations. Any obligations, debts, or liabilities incurred after marriage shall constitute community obligations.

Pursuant to the Agreement, a community of acquets and gains was established during the existence of the marriage. In October 2009, Plaintiff filed a suit for divorce, alleged adultery and requested that their community be terminated. The judgment of divorce was signed on May 7, 2010.

In April 2010, prior to rendition of the divorce judgment, Plaintiff filed a separate suit entitled, "Petition to Declare the Matrimonial Agreement Invalid in Part and/or to Declare the Matrimonial Agreement in Part a Donation Subject to Revocation for Ingratitude." This suit was given a different docket number from her suit for divorce. In July 2012, she amended her petition in the action to declare the Agreement invalid or a donation. Eventually, the divorce matter, in which she sought the division of the community property, and the matrimonial agreement matter were consolidated by order of the trial court.

In February and April 2016, a trial was held which concerned the division of property between Plaintiff and Defendant. The testimony given at the trial on the facts leading up to the formation of FRM is summarized briefly as hereafter follows.

Plaintiff and Defendant began a relationship while Defendant was still married to his first wife. In 1988, Plaintiff wanted to purchase a home and a tract of land (the Heard tract), but had difficulty obtaining financing. She decided to form FRM to purchase the property, then used the proceeds from the sale of timber from the property to reduce the amount due on the note associated with the purchase. She stated that at the time of the formation of the company, Defendant was very adamant that he never intended to marry her or divorce his wife. She also stated that their relationship was never constant and that it was sporadic even up until the time that they did marry in 1993.

Plaintiff formed FRM in April 1988, she has always been the registered owner of all of the stock in the corporation and all of the K-1 tax forms have all been issued to her. Article VII of FRM's articles of incorporation concerns authorized shares and states in pertinent part as follows:

The said stock of this corporation shall be fully paid and non-assessable when issued, shall be represented by certificates and shall be personal property. No transfer of the said stock shall be binding upon this corporation unless said transfer is made in accordance with this chapter [.]

Article VIII concerns transfer restrictions and states as follows:

No shareholder may transfer, voluntary or involuntary, by donation inter vivos or mortis causa, by operations of law, or through dissent or distribution any stock of this corporation without said shareholder, heir, administrator or executor, first offering it to this corporation at the same price that shareholder may have been offered for such stock by any prospective purchaser.
* * *
The right vested in this corporation to purchase the stock of any shareholder of this corporation desiring to sell any stock of this corporation may be waived, in writing, by all of the other record shareholders of this corporation at any time.

FRM bought the Heard tract for $48,838 and immediately harvested the timber. International Paper paid $45,302 for the harvested timber, and Plaintiff wrote a check on behalf of FRM to Marion State Bank for that amount with a notation that it was for the Heard tract note.

In 1988, FRM acquired the DeSoto tract for $125,000, and $117,000 of timber was harvested off of it. FRM acquired the Caney Lake property in 1990 for $32,000 or $33,000, and Plaintiff testified that she used the previously existing collateral mortgage notes to secure the loan for it.

Defendant testified that although Plaintiff acquired the Heard tract through FRM in 1988, he was the person who found the property for her and was instrumental in the sale of the timber to International Paper. He stated that he knew his first marriage was over at that point, and FRM was formed so that Plaintiff could acquire land and Defendant's first wife would not have any claim on it. He further stated that from the outset, he and Plaintiff had discussed the ownership of FRM and that there was no question that they agreed each would own half of the company after their marriage. He also testified that years into their marriage, Plaintiff requested that she be made part owner of his company, Patterson Forestry Consultants, LLC ("PFC"), since he was half owner of FRM. For that reason, he made her a 45 percent owner of PFC in exchange for his presumed ownership of half of FRM.

Fred McGaha represented Defendant in his divorce from his first wife from 1989 until early summer of 1990. He testified that he knew about the relationship between Plaintiff and Defendant and their plans to marry in 1988 or before, but Defendant had to complete his property settlement with his first wife. He stated that during the spring of 1990, Defendant told him he had found some property to purchase on Caney Lake. He told Defendant that his situation was already complicated and he hated to see him complicate it even more by buying property while his suit for separation and divorce from his first wife was pending. When he advised Defendant to wait, Defendant replied that he had taken care of the problem in that Plaintiff would purchase the property through FRM as owner. He stated that Defendant further told him that the Caney Lake property was too good of a deal to pass up; and, although he was not going to put money into the corporation, after he and Plaintiff were married, they were going to "make it all community." He again advised against acquisition of the Caney Lake property under those conditions and warned Defendant that if a lawyer found out during the litigation with the first wife that his mistress had formed a corporation, it would be a source of litigation and expense proving that it was Plaintiff's separate property. Shortly thereafter, he withdrew from representing Defendant in the litigation with his first wife.

McGaha also testified that a later conversation had occurred with the parties at the Caney Lake property. He asked Defendant if they had ever done anything to establish the property as jointly owned, and Defendant answered negatively. Then he asked Plaintiff the same question, and she answered that they would make it community property after they were married. He stated that his memory was vivid on that issue because he was worried that Defendant was putting all his time and effort into the properties that they were acquiring, but that he was not going to have an interest in them; however, after the conversation at Caney Lake, he was "comfortable" that Defendant would have an interest in the property because Plaintiff had said she was going to make it community property after their marriage. Defendant affirmed this conversation, but Plaintiff disputed the assertion that she ever said that.

There were also discrepancies in the testimony of the various witnesses concerning the creation and execution of the matrimonial agreement. Spillers testified that the parties came to his office together, knowing that the topic of the meeting was the Agreement, and that Plaintiff came prepared to discuss FRM being part of that Agreement. He stated that she brought FRM documents, including the articles of incorporation, and that she appeared to be very knowledgeable about the purpose of the meeting. He testified that neither party wanted FRM listed as his or her separate property on the exhibits. He stated that he informed Plaintiff that he represented Defendant and that she should have her own attorney. He even offered to contact the attorney who created FRM, but she declined the offer and stated she might find another attorney to consult.

Spillers further testified that the "conversion clause" found in Paragraph 3 of the Agreement was discussed during the meeting, and they also discussed Defendant's objectives while Plaintiff was present. He stated that the parties understood that if the property was not listed on the exhibit, they would be bringing property into the marriage and that it would be converted to community property.

Plaintiff's version of the meeting is contrary to that of Spillers. She claimed that she was totally unaware of the effect of the Agreement and that she did not understand that by failing to put FRM on her exhibit list as her separate property, she was agreeing to have the shares converted to community property. She claimed that FRM was not mentioned at the meeting and neither was the conversion clause. She testified that the clause was hidden in the document she signed two days before she got married and that she would never have consented to that result had she known the Agreement contained that clause. She stated that she believed Spillers had her best interest at heart, despite his testimony that he kept telling her he was not her attorney and that she needed to consult an attorney of her choosing. She had no idea FRM was a topic being covered that day, and she believed there was a stock transfer restriction in FRM's articles of incorporation which precluded the transfer to Defendant of the shares as community property. She stated that she did not believe she had the power to convey the stock to anyone without first offering it to the company in accordance with the stock transfer restriction in the articles.

Following trial, the trial court found the Agreement valid and not contrary to public policy or revocable as a result of fraud and then addressed Plaintiff's arguments of whether FRM's articles of incorporation stock transfer restriction prohibited the conversion of the stock to community property. It determined that the Agreement made any property not listed as separate property on Exhibits A and B community property. Because FRM stock was not listed on Exhibit B as Plaintiff's separate property, it was deemed community property. It noted that all 100 shares became community property; but in that transition, Defendant did not acquire title to 50 shares. Therefore, the conversion from separate to community property was not a sale so as to require compliance with the stock transfer restrictions contained in the articles of incorporation. No transfer of title to the stock was needed to categorize the shares as community property. Further, it found that the articles of incorporation permitted a waiver in writing of transfer restrictions. Because the Agreement was in writing and signed by all shareholders of record, i.e., Plaintiff, it did not find that the transfer restrictions prevented the reclassification of FRM stock from separate to community property.

The trial court also addressed other issues in its reasons for judgment including whether Paragraphs 3 and 4 of the Agreement were donations subject to revocation for ingratitude as Plaintiff had argued. It found that the Agreement contained no language of donative intent and that it was a bilateral contract in that there were reciprocal covenants, agreements and obligations for each.

The trial court further addressed the issue of whether the Agreement was unconscionable because it provided that the debts of each party remain their separate debts, while at the same time converting their separate property to community property. Its reasons for judgment discuss the various premarital debts of the parties and found that the Agreement was not unconscionable when considered in light of the Agreement as a whole and the benefits to Plaintiff.

The last issue addressed by the trial court was whether the Agreement should be invalidated on the basis of fraud or because there was no meeting of the minds and, thus, no consent. Despite Plaintiff's testimony that the Agreement's effect on the FRM shares of stock was not brought to her attention and that she had thought that Spillers was acting in her best interest, it found there was no fraud involved in the confection of the Agreement and that there was consent and a meeting of the minds regarding the Agreement and the conversion clause.

For the above reasons, the trial court found the Agreement valid and, further, that the shares of FRM, which were formerly Plaintiff's separate property, were converted to community property. Plaintiff appeals this judgment.

DISCUSSION

Plaintiff first raises the issue that the trial court erred in finding the Agreement valid and argues that it committed factual and legal errors in its reasoning. She contends that when one or more trial court errors interdict the fact-finding process, the manifest error or abuse of discretion standard is no longer applicable and that, if the record is otherwise complete, this court should make its own independent de novo review of the record.

Plaintiff claims that even though the document executed on August 5, 1993, is entitled "Matrimonial Agreement," it was not a matrimonial agreement and should not be enforced between the parties. She maintains that only one provision of the Agreement would truly be unenforceable since the rest of the document only submitted the parties to the general provisions regarding the community of acquets and gains as they would have been subjected to by operation of law. She points out that if they had not signed the Agreement, all of the general rules regarding community property would have taken effect upon their marriage. Therefore, calling the document "Matrimonial Agreement" is an intentional misclassification of the document because it neither established a regime of separate property, nor modified the legal regime of the community of acquets and gains that would exist between the parties.

Plaintiff also argues that the true purpose of the Agreement seemed to be an attempt by Defendant, through the use of the conversion clause, to transfer a one-half interest in certain items of property owned by them prior to marriage. She contends that this purpose was not disclosed or adequately described to her in the Agreement.

Plaintiff further argues that, with respect to items not listed on the exhibits attached to the Agreement, it had been repeatedly stated that the conversion clause did not change the nature of the ownership of the property, but simply converted it from separate to community. She claims that there is an inherent problem with that statement since the definition of community property in the Louisiana Civil Code is defined as "each spouse owning a present undivided one-half interest" in the community property. Plaintiff contends that the Louisiana Civil Code does not contemplate solely owned assets forming a part of the community and takes great care, in La. C.C. art. 2341.1, in setting forth the distinctions between separate and community interests in the same assets owned in undivided ownership. She argues that because the marital status of the parties was such that there was no community property regime in effect at the time of the execution of the Agreement, the transfer of assets from one spouse to another to be held as community property was impossible at the time of execution.

Plaintiff also argues that there are several problems with the method used by Defendant to achieve the conversion and claims there would have been other options for the transfer, such as through use of La. C.C. art. 2343.1, entitled "Transfer of separate property to the community." She contends that had this article been invoked, there would have been no doubt as to the consent and intent of the parties, and the assets would have had to be specifically set forth in the document.

Plaintiff claims that her misunderstanding of the Agreement and lack of consent are evident and that Defendant's deceitful pattern of behavior, supported by the testimony of attorneys/friends who were attempting to protect their own reputations, should not be used to bolster the effect of the conversion clause. For these reasons, she asserts that the trial court erred in ruling that the Agreement is valid.

Plaintiff further argues that the trial court relied on the actions undertaken by Defendant during the marriage and the conversion clause in the Agreement when it decided that the shares of FRM should be considered community property. She claims that the court detailed numerous actions by Defendant on behalf of FRM (such as signing documents, negotiating contracts, working on projects, contacting entities and individuals and representing FRM in her absence and on the company's behalf) as constituting evidence of ownership of shares of stock, but she contends that none of those actions prove, or even suggest, ownership.

Plaintiff also argues that it did not matter whether the shares of FRM were considered her separate property or community property because Defendant received the benefits of income from the separate property under community property law, and he also stood to receive the benefit of the income to his own company for services provided to FRM throughout their marriage. She points out that she made a clear statement each year that she was under the impression that FRM was her separate property, and she showed this by listing herself as the sole owner of FRM on the couple's annual tax returns. Although the income from the company was deemed community property, she contends that the open declarations she made each year on the tax returns regarding her sole ownership of the company, which were confirmed by Defendant, should not be disregarded.

Plaintiff also claims that the trial court misinterpreted her signing the Agreement as acquiescence in the transfer of ownership of the stock. She maintains that she had no intention of transferring her stock and notes that there was no specific mention in the Agreement regarding FRM stock. She also disputes Spiller's testimony in that she never discussed FRM in the meeting with him and did not recall taking any documents, i.e., articles of incorporation, bylaws or reports filed with the Secretary of State to the meeting. She argues that Spillers never had any conversation with her regarding the effect the Agreement would have on the articles of incorporation and the stock restriction prohibiting transfer. For these reasons, she asserts that the trial court's reliance on the actions taken by Defendant during the marriage and the reliance on the testimony of Defendant and his attorney led to legal error.

In opposition to Plaintiff's assignments of error, Defendant claims the trial court did not commit manifest error and that the Agreement is valid. Further, he contends that the trial court was correct in finding that FRM is community property.

Defendant first argues that the proper standard of review in this case is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong, and the reviewing court must give great weight to the factual conclusions of the trier of fact. Defendant contends that the trial court's factual findings were within its discretion and that no error was committed since it found the Agreement to be a valid onerous contract between the parties. He notes that Plaintiff failed to cite any actual legal error committed by the trial court, but, instead, argued only that the Agreement set forth existing community property law, that it could not establish the nature of future community assets, that there are alternative procedures for achieving the end result and that the trial court made incorrect factual determinations. Because the Louisiana Civil Code limits marital agreements only if they are against public policy and if they alter the marital portion or affect third persons' rights, he claims Plaintiff's assertions are without merit. He maintains that the trial court simply interpreted the Agreement as an onerous contract and committed no error in finding so.

Defendant also argues that his testimony, and that of Spillers and McGaha, led the trial court to the conclusion that the Agreement and the conversion clause actually accomplished what the parties intended to do at the time. He claims that the trial court's decision was based on the credibility it gave each witness, and there was no objective evidence to rebut its findings of fact; and, therefore, Plaintiff's first assignment of error must fail.

In opposition to Plaintiff's assignment of error that the stock restrictions in the articles of incorporation of FRM prevent the shares of stock from "being transferred" and becoming community owned, Defendant argues that Plaintiff incorrectly equated holding stock title, or managing stock, with ownership of the stock. He claims that the FRM stock became community property when the parties married, pursuant to the Agreement. The stock itself was never "transferred," and only the nature of the ownership interest changed. Upon marriage, he acquired a community interest in the stock, but did not acquire any of the management powers of a shareholder, and he could not exercise any privileges associated with the stock as would be exercised by a shareholder. He asserts that although Plaintiff argues that the actions undertaken by him on behalf of FRM do not prove or suggest ownership, he finds any evidence of the fact irrelevant, since it is the Agreement, not his actions, that converted the shares of stock from separate into community property. Likewise, he asserts that it did not matter that Plaintiff claims 100 percent ownership of the stock on the tax return. He did not dispute that she was the registered owner of the stock for tax purposes, and the fact that the tax return reflects that she is the sole owner does not negate the efficacy of the Agreement in the conversion of the stock from separate to community. Further, the issuance of a K-1 in Plaintiff's name does not alter the status of Defendant's community interest in the stock.

Last, Defendant argues that Plaintiff's actions in executing the Agreement in her individual capacity and not including FRM on her separate property exhibit list resulted in a waiver of the stock transfer restriction found in FRM's articles of incorporation.

The Matrimonial Agreement

The threshold issue to be discussed in this case is whether the trial court erred in finding the Agreement valid and enforceable.

In cases where classification of property as either community or separate property is the issue, courts hold that this determination is factual and subject to the manifest error standard of review. Ross v. Ross , 02-2984 (La. 10/21/03), 857 So.2d 384 ; Boone v. Boone , 39,544 (La. App. 2 Cir. 4/6/05), 899 So.2d 823. Under this standard, a factual finding cannot be set aside unless the appellate court finds that the trial court's determination is manifestly erroneous or plainly wrong.

Kyle v. Smith , 43,781 (La. App. 2 Cir. 12/3/08), 999 So.2d 130. In the instant case, the judgment was plainly based on factual findings to which we will apply the manifest error rule.

La. C.C. art. 2328 provides that a matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. In the matrimonial agreement, spouses are free to establish a regime of separation of property or modify the legal regime as provided by law. Id. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. Id. La. C.C. art. 2329 states that spouses may enter into a matrimonial agreement before or during the marriage as to all matters that are not prohibited by public policy. The matrimonial agreement shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

The factual findings of a fact finder will not be disturbed absent manifest error. New S. Commc'ns v. Wright , 35,442 (La. App. 2 Cir. 12/28/01), 803 So.2d 1103, citing Powell v. Reg'l Transit Auth. , 96-0715 (La. 6/18/97), 695 So.2d 1326, and Rosell v. ESCO , 549 So.2d 840 (La. 1989). When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, the appellate court on review should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact. Powell , supra , citing Canter v. Koehring Co. , 283 So.2d 716 (La. 1973). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. New S. Commc'ns v. Wright , supra , citing Rosell v. ESCO , supra ; Morris v. United Servs. Auto. Ass'n , 32,528 (La. App. 2 Cir. 2/18/00), 756 So.2d 549.

The Agreement at issue in this case specifically stated on its first page that it was to take effect only upon the marriage of the parties. Therefore, the arguments concerning the fact that there was no community between the parties at the time the Agreement was signed are without merit.

Paragraph 1 of the portion of the Agreement concerning the regime under which the parties would operate after marriage stated that the parties would be separate in property with respect to the properties listed on attached Exhibits A and B. Paragraph 3 stated that the parties adopted the legal regime of community property with respect to all other assets of whatever nature they may own, it being their specific intent that all other assets than those described on the exhibits "shall be and are hereby converted to community property."

The Agreement clearly states the intention of the parties to be separate only in regard to that property listed on its attached exhibits. Plaintiff's exhibit was silent in regard to FRM. The Agreement also stated that if the property was not found on the exhibit lists, it would be converted to community property. The Agreement is very short; the conversion clause is not hidden in any way.

Plaintiff signed this agreement even though she had not consulted an attorney before doing so. She was formerly employed in the banking industry, had formed her own corporation and had been able to finance the purchase of three properties through FRM. Defendant's attorney testified that he considered her a knowledgeable person when she appeared before him at his office with Defendant to discuss the Agreement and other matters. The trial court heard Plaintiff's testimony and found her to be a person who could understand the ramifications of signing the document.

It also heard the testimony of all the parties and witnesses and found the testimony of Defendant, Spillers and McGaha more credible than that of Plaintiff.

Based on the evidence presented, the trial court concluded that the Agreement is valid and enforceable. We find that trial court did not commit error and that Plaintiff's arguments in regard to this issue are without merit.

The FRM stock conversion from separate to community property

La. C.C. art. 2343.1 states that the transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property. As to both movables and immovables, a transfer by onerous title must be made in writing and a transfer by gratuitous title must be made by authentic act. Id. The revision comment to this article, dated 1981, reflects that a spouse may convey to the other spouse a thing that forms part of the transferor's separate property, with the stipulation that the thing shall be part of the community. The thing may be solely owned by the transferor, or one that he owns as an undivided interest. In effect, the transferor conveys to the other spouse one-half of what he owns and retains the other half as co-owner under the regime of acquets and gains.

The case of Schexnayder v. Yolande Schexnayder & Son, Inc. , 12-885 (La. App. 5 Cir. 5/23/13), 119 So.3d 624, concerns a husband's transfer of separate property to a community via donation rather than a prenuptial agreement and discusses the effect the transfer had on the property, which happened to be 7,500 shares of stock in a privately owned company issued in the husband's name. The wife tried to claim that the donation was made to her separate property and that she was entitled to vote the shares of stock. The Fifth Circuit stated that, generally, either spouse acting alone may manage, control or dispose of community property unless otherwise provided by law, citing La. C.C. art. 2346. Under La. C.C. art. 2351, each spouse has the exclusive right to manage, alienate or encumber movables issued or registered in his name. Shares of stock are incorporeal movables, and shares of stock issued in the name of a spouse are subject to management by that spouse exclusively. Schexnayder , supra , citing La. C.C. art. 473 ; Champagne v. Champagne , 07-1078 (La. App. 1 Cir. 6/27/08), 992 So.2d 1072 ; and Rao v. Rao , 05-0059 (La. App. 1 Cir. 11/4/05), 927 So.2d 356, writ denied , 05-2453 (La. 3/24/06), 925 So.2d 1232. Despite acknowledging these general provisions, the fifth circuit cited La. C.C. art. 2343.1 and determined that the husband had made the donation to the community, not to the wife individually; and since he was the registered shareholder, he retained the right to vote the 7,500 shares of stock in his name.

In the case at bar, Plaintiff argued that Article VIII of the FRM articles of incorporation prohibited her from transferring the shares through the Agreement without first offering them to FRM. The language of the transfer restriction clause is couched in terms of transfer, donation and sale, and, for the sake of ease, is repeated here:

No shareholder may transfer, voluntary or involuntary, by donation inter vivos or mortis causa, by operations of law, or through dissent or distribution any stock of this corporation without said shareholder, heir, administrator or executor, first offering it to this corporation at the same price that shareholder may have been offered for such stock by any prospective purchaser.
* * *
The right vested in this corporation to purchase the stock of any shareholder of this corporation desiring to sell any stock of this corporation may be waived, in writing, by all of the other record shareholders of this corporation at any time.

Plaintiff signed a document transferring her separate property and converting it to community property. By signing, she, as the sole shareholder of FRM, waived, in writing, the right for the corporation to purchase the stock. Therefore, Article VIII of the FRM articles of incorporation cannot operate to prevent Plaintiff from allowing her shares to be converted to community property.

As the trial court pointed out, it is only the nature of the ownership of the shares, in community, that has changed. Plaintiff still retains all voting rights since the shares were issued in her name. Her arguments concerning the conversion of FRM stock from separate property to community are without merit.

CONCLUSION

For the foregoing reasons, we find that the Matrimonial Agreement is a valid and enforceable agreement entered into by the parties prior to marriage, which took effect upon their marriage. In accordance with the plain language of the agreement, Financial Resources Management of Louisiana, Inc., which was not listed on Plaintiff's exhibit as separate property, was converted to community property. The judgment of the trial court in favor of Defendant Gary Edward Patterson and against Plaintiff Melodye Patterson, nee Tanner, is hereby affirmed. Costs of appeal are assessed against Melodye Patterson, nee Tanner.

AFFIRMED.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee v. Anton Caron COOLEY, Defendant-Appellant
    No. 51,895-KA
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2018
    LOUISIANA APPELLATE PROJECT, By: Sherry Watters, Counsel for Appellant
    ANTON C. COOLEY, SR., Pro Se
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSONMONIQUE Y. METOYER MEKISHA S. CREAL, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, STONE, and COX, JJ.
   COX, J.,

Anton Caron Cooley ("Cooley") was convicted by a unanimous jury of the second degree murder of Karen Johnson, in violation of La. R.S. 14:30.1. His motions for post-verdict judgment of acquittal and new trial were denied. Cooley was sentenced to life imprisonment without benefits. He now appeals. For the following reasons, Cooley's conviction and sentence are affirmed.

FACTS

Late in the evening of April 7, 2014, Yolanda Bailey, a resident in the victim's neighborhood, made a 911 call reporting a woman's scream and two gunshots in the vicinity of Valley View Drive in Shreveport, Louisiana. Ms. Bailey testified that she heard a woman's piercing scream, as if pleading for her life, followed by a gunshot. Ms. Bailey then called 911. After she hung up, she heard a second gunshot.

Responding officers found a deceased female under the carport of a residence on Valley View Drive. The woman was lying on her back with apparent gunshot wounds to the head. Medics determined that she was deceased and the coroner was notified. Several officers of the Shreveport Police Department testified about clearing and securing the scene, as well as gathering and photographing evidence. The officers' testimonies established that there was a black Mercedes vehicle parked askew in the front yard with the engine running. The contents of a woman's purse were scattered on the bed in the master bedroom. Among the contents was identification, which belonged to Karen Johnson. Karen's slippers were by the open door leading to the carport area.

The officers' testimonies also established that Karen's son arrived at the scene very distraught and provided them with the name "Tony," another name used by Cooley. Ballistics confirmed that shell casings found near Karen's feet were fired from the gun recovered during the investigation. It is not disputed that the gun belonged to Cooley and that he and Karen were together when she was killed. It is also not disputed that, after Karen was shot, Cooley left the scene in her vehicle, a white sedan. He ran the vehicle off a nearby road and got stuck in the mud in a field behind a residence. Police located the vehicle on the night of April 7 and had it towed to central storage.

The record indicates that the field where the white sedan was stuck was behind Jerome Cooley's ("Jerome") residence, a cousin of Cooley. Cooley went to Jerome's house and spoke with Jerome and his wife, Shelley. Jerome testified that he and Cooley were very close. He stated that when Cooley arrived, Cooley had a gun and told him that he thought he had "hurt her." Shelley testified that she heard Cooley say "that he thought he might kill her." Cooley asked Jerome to contact the police because he wanted to turn himself in and did not want to get hurt in the process. Jerome testified that he called Officer Mike Edwards, who was a friend of his and on the Shreveport Police force. Jerome and Shelley gave Cooley a cigarette (which Shelley testified had blood on the side of it), beer, and food.

Officer Edwards testified that he and Jerome Cooley were friends and in a trucking business together. He received a call from Jerome around 10:30 p.m. on April 7, asking him to come to Jerome's residence. When Officer Edwards arrived, he found an assault rifle on the cab of a small pickup truck. Officer Edwards testified that, as he retrieved the rifle, he heard a young man, whom he identified as Cooley, say "All she had to do was let go of the gun." Officer Edwards advised Jerome that he needed to take Cooley to the station and Jerome told Cooley to put down his cigarette and beer and go with the officer. Officer Edwards handcuffed Cooley and transported him to the police station. Pictures of the gun and Cooley's muddy pants were introduced and published to the jury during Officer Edwards' testimony.

Dr. Long Jin, an expert in forensic pathology, testified about the autopsy and stated that the cause of Karen's death was homicide; specifically, two gunshot wounds to the head. The first shot entered her temple area and the second shot was in the forehead. Dr. Jin testified that soot marks on the skin indicated that the barrel of the gun was touching the skin when fired. The temple shot was angled slightly from the front to the back and traveled left to right. There were no defensive wounds on Karen's body and no signs of struggle.

Corporal Tracy Mendels testified that she participated in the gathering and photographing of evidence at the scene. Particularly relevant to this appeal, Corp. Mendels observed oil and grit debris from the carport concrete on Karen's body and clothing. Corp. Mendels testified that this indicated that Karen was rolled or moved at some point before she was found.

Corporal Jennifer White testified that she recovered two cell phones from inside the residence. Corp. White also testified that, without manipulating the body, she noticed projectile fragments in the victim's hair. She stated that after Shreveport firemen cleaned the carport of biological matter, she noted and photographed two defects in the otherwise smooth slab of concrete. The defects were at least two inches wide and near where Karen's head had been. A third defect was found in the wall. Regarding the assault rifle that was later located, Corp. White observed hair and blood splatter on the rifle. Photographs of the defects and gun were introduced and published to the jury.

Ratish Upadhyay, the custodian of records for AT & T, testified regarding one of the cell phones that was recovered from the residence, a Samsung AT & T phone, which Mr. Upadhyay identified as a "go phone." The phone number, or subscriber information, for the phone was (318) 402-5844.

Mr. Upadhyay provided a detailed description of how finding subscriber information and locating a phone by cell signal is done. The subscriber information, a mobility usage report, and NELOS (Network Event Location Services) report were introduced into evidence for the AT & T phone during his testimony.

Lieutenant Shannon Mack testified next and was accepted by the court as an expert in forensic cell phone analysis. Lt. Mack testified that she completed a forensic download of the two cell phones in this investigation. The second cell phone was an off-brand, manufactured by Huawei. The telephone number assigned to that phone was (318) 990-8920. She testified that the Samsung phone's number was saved in the contacts of the Huawei phone as "Cooley Baby." After analyzing the data from the two phones, Lt. Mack testified that there were "32 call detail records" (texts and phone calls) between the phones from 6:00 a.m. to 8:29 p.m. on April 7, 2014. Specifically, she testified that there was a lot of activity between the phones during the early morning hours that day and the final contact between the phones was at 8:29 p.m. On cross-examination, Lt. Mack stated that the only phone she was asked to tie to the Valley View address was the Samsung AT & T phone and that phone's last location on April 7 was the Valley View location.

Briana Johnson, Karen's daughter, also testified. Briana was at her grandmother's home with Karen the afternoon and evening before the shooting. Briana testified that Karen received multiple calls on her cell phone, but she did not answer. Briana confirmed that Karen's cell phone number was (318) 990-8920 (the Huwae). Briana looked at the phone and saw that Cooley was the caller and Briana told her mother to answer the phone. Briana testified that Karen went into another room and answered the phone. Briana could not hear what was being said, but testified that her mother's tone was elevated. After the call, Karen stayed one or two minutes and then left. Briana testified that "eight or nine" minutes later, her phone started "blowing up" with calls about something happening to her mother. She went to her mother's home, but never saw her alive again.

In addition, the state presented the testimony of two of Cooley's former girlfriends. First, Tonya Williams testified that she and Cooley were in an "off and on" relationship for about seven years starting in 2005. Tonya explained that the two were living together in April 2008, and had a conversation one evening about ending the relationship, which made Cooley unhappy. The next morning, Cooley approached Tonya about having sex and she refused. He asked her to speak to him in the bedroom and Tonya again brought up ending the relationship. Tonya testified that Cooley grabbed her around her neck, choking her, and bit her hand, drawing blood. The two struggled and he straddled her back, with her on her hands and knees, and dug his fingers into her eye sockets. Tonya was screaming and her daughter, who was 11 years old, came into the room and left again to retrieve a weapon. Cooley continued gouging her eyes and forced her to lie down on her stomach, after which he hit her across the back of the head with a radio. At some point, Cooley left the residence and Tonya, whose eyes were bleeding, sought medical attention at the emergency room. Cooley was convicted and sentenced for this offense. The minutes were introduced into evidence. On cross-examination, Tonya conceded that the relationship resumed after Cooley was released from jail and the relationship ended in 2012.

Erica Simmons testified that she was in a relationship with Cooley in 2003 that lasted a year or less. When Erica decided to end the relationship, she stopped speaking with Cooley. Erica testified that on April 1, 2003, Cooley came to her place of employment, Lifeshare Blood Center, and watched her close. Erica asked a friend to walk with her to her car and Cooley followed. Erica told Cooley she did not want to talk to him, but Cooley calmly and persistently asked why she was ending the relationship with him. Erica responded that Cooley had thrown three of her phones in toilets and that he "knew what he had done." Erica testified that she then told him she had to pick up her kids and he got in the car with her. Cooley told her that he would ride with her and talk, and Tonya could bring him back to his car. She agreed. The two drove to the daycare and picked up Tonya's two children, ages one and three, and Tonya put them in car seats in the backseat. Erica testified that they continued to talk and Cooley fluctuated between being apologetic and loving and irate about her telling him it was over.

Erica went by her apartment complex to speak with the manager because, unbeknownst to Cooley, she was having the locks changed. Cooley remained in the car. After Erica spoke with the apartment manager and returned to the car, Cooley told her that he would pay for replacement phones and they went to Walmart. While checking out, Cooley refused to pay for the phones and the two argued. The children were in the store with them. Erica testified that when they got back to her car, Cooley began "sweet talking" again and apologized, saying that he did not have the money right now for the phones, but would pay her for them. Erica testified that she was angry and told him that she was going to leave him in the parking lot, but Cooley talked her into taking him to his car.

While Erica was driving, she continued to tell him it was over. Erica testified that Cooley became irate, hitting the dashboard and the steering wheel. Erica testified that she called her best friend to try to ignore Cooley, but Cooley yanked the steering wheel causing the car to move into the path of oncoming traffic. Erica testified that Cooley said, "I will kill all of us in this MF." As Erica tried to avoid hitting another car, Cooley said, "Bitch, the only way out of this relationship is to die out." The next thing Erica remembered was Cooley grabbing her cell phone and repeatedly punching her in the side of her face with it. Erica stated that there was blood everywhere and she remembered hearing her kids screaming and seeing blood splatter on their faces. Erica blacked out and regained consciousness at Willis Knighton hospital.

Erica has undergone two facial surgeries and a retinal detachment surgery as a result of the injuries inflicted by Cooley. She testified that the entire right side of her face is metal and she has headaches daily, for which she takes medication. Cooley was convicted of second degree battery for the offense against Erica. The minutes of that prosecution were introduced into evidence. The state rested at the conclusion of Erica Simmons' testimony.

After a very thorough discussion between the trial judge, Cooley, and Cooley's counsel, Cooley elected to testify and was the only witness for the defense. Cooley provided the following version of events.

On April 7, 2014, Cooley had decided to go to Texas to visit a second woman with whom he was romantically involved. Karen was aware of this other woman and was angry. While Cooley was at home (the residence on Valley View Drive) that evening packing for Texas, Karen came home and the two argued. Cooley testified that Karen "blew" and made "for a little old argument." He stated that Karen repeatedly told him to call that bitch and tell her he was not coming.

Cooley stated that he had the "AK" on the bed to pack to take with him and Karen reached for the gun. Cooley testified that the two "tussled" over the gun and he "used his body" to position himself to take the gun from her and he tossed it to the head of the bed. She reached for the gun again and Cooley grabbed the gun. Cooley testified that Karen then ran and blocked the bedroom door shouting at him to call the bitch and "tell her you ain't coming." Cooley turned his back to Karen and went through the doorway. Cooley stated that Karen was slapping him and trying to prevent him from leaving and he was trying to get outside.

Cooley testified that he told Karen, "I didn't stop you from where you was all day today, so you not going to stop me from where I'm going." Cooley intended to leave immediately, but could not find the car keys. Because he "got to get Karen out of the way," he slammed her up against the living room wall with his body and she fell. When she got up, Karen walked out of the house and he kept looking for the car keys. Cooley testified that, at that point, he decided he should not be in the house:

If I stay in this house with this woman here, I know what's fixin'-she ain't going to stop. Karen needed me to put my hands on her so she could tell police I beat her up. That's what she did. And I'm not giving her that.

Cooley stated that he could see Karen outside through a large window and she was standing with her arms folded and was "hot." Cooley took the clip out of the gun and went outside. Karen began yelling at him and snatched the gun from under his arm and began putting it together. The two then tussled for the gun and as Karen "laid there and she inserted the bullet into that chamber. I got on her. When I attacked her, I attacked the gun. I ain't putting my hands on her."

When asked about their positioning, Cooley stated that they were standing upright tussling when he tried to flip Karen and she ended up behind him and the gun went off. She fell and Cooley fell with her. Cooley testified that "I thought I heard like 'agh.' " I thought I heard in between two to three shots when I hit the ground." He did not see any blood, but did not see her moving. Cooley grabbed the gun and her car keys, because he maintained he could not find his keys, and he left in her car, the white sedan. Cooley testified that the black Mercedes was not running.

Cooley further testified that he left Valley View Drive and drove around in disbelief and contemplated suicide. Because he felt that he had to get Karen "some help," Cooley went to Jerome's house and told Jerome to call the police. According to Cooley, he told Jerome, "Karen tried - we laid there until we started wrestling and fighting for the gun, man. And Karen done got hurt .... I think Karen is hurt ... I need you to call the police." Cooley then wanted Jerome to call the news so that "the news can watch the police for these dudes [the police] won't try to kill me." Cooley testified that Jerome went inside the house and, shortly thereafter, Officer Mike Edwards arrived, handcuffed him and took him to jail.

Cooley testified that he ate three plates of turkey necks and rice and drank two or three beers at Jerome's house. He was there for about an hour. He also testified that he did not intend to hurt Karen, saying, "Karen is beautiful. Karen is sweet. You ain't fixin to hurt Karen."

When asked about his criminal history on cross-examination, Cooley was adamant that he is not a "woman beater." He explained that the problem with the women he dated was that they could not keep him from cheating on them because he is "slim" and "handsome." Cooley confirmed that his cell phone number was (318) 402-5844 (the Samsung). Cooley also denied that any witness heard Karen scream for her life. The defense rested at the conclusion of Cooley's testimony.

The jury found Cooley guilty as charged and he was sentenced to the mandatory term of life in prison without benefits. This appeal ensued. Cooley's counsel filed a brief on appeal and Cooley filed a pro se brief, in which he requested that the appellate record be supplemented. The record was subsequently supplemented with the hearing transcript of June 26, 2016. Counsel for Cooley, the state, and Cooley, pro se , filed supplemental briefs relating to that transcript.

DISCUSSION

Insufficient Evidence and Post-Trial Motions

In his first and second pro se assignments of error, Cooley argues there was insufficient evidence and the trial judge erred in the denial of post-trial motion for post-verdict judgment of acquittal and motion for new trial. In his post-verdict motions, he argued insufficient evidence for a finding of guilty. Cooley challenges only the manner in which Karen was shot, maintaining that she was shot accidentally while she and Cooley were tussling over a semi-automatic gun.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed. 2d 30 (1981) ; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Dennis , 46,471 (La. App. 2 Cir. 9/21/11), 72 So.3d 968, writ denied , 2011-2365 (La. 5/18/12), 89 So.3d 1189.

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, supra ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Neal , 51,574 (La. App. 2 Cir. 5/2/17), 219 So.3d 482. 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. Neal, supra.

An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983) ; State v. Freeman , 50,282 (La. App. 2 Cir. 4/13/16), 194 So.3d 1, writ denied , 2016-0927 (La. 5/1/17), 220 So.3d 743.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed. 2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Bass, 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242, writ not considered , 2018-0296 (La. 4/16/18), 239 So.3d 830. 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. State v. Bass , supra . 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. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913.

The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000) ; State v. Hicks, 51,272 (La. App. 2 Cir. 5/17/17), 222 So.3d 91.

The state produced sufficient evidence to support the jury's verdict of guilty of second degree murder. The only evidence presented by the defense was the self-serving testimony of Cooley, in which he paints a picture of a jealous girlfriend who became enraged at the idea that Cooley was going to see another woman. The argument turned deadly when Karen repeatedly tried to gain control of Cooley's semi-automatic rifle, which accidentally fired when Cooley was trying to wrestle the gun from Karen. The jury reasonably discredited this testimony when compared with the testimony of Ms. Bailey that she heard a piercing scream and then two gunshots, coupled with the uncontradicted evidence that Karen was shot once in the temple and once in the forehead with the barrel of the gun touching her skin. As evidenced by the defects in the otherwise smooth concrete floor of the carport, Karen was lying down when shot. The defects were located where Karen's head was positioned when she was found.

The jury also credited the testimony of Karen's daughter, Briana, who stated that Karen had an "elevated" tone while talking to Cooley minutes before the shooting and that Cooley had been calling Karen repeatedly that evening. The jury also heard testimony from Tonya and Erica, two former girlfriends, who both testified about their violent encounters with Cooley when they tried to end relationships with him. The jury made a credibility determination not to believe Cooley's testimony, which will not be disturbed on appeal.

These assignments of error lack merit.

Motion to Dismiss/Quash

Cooley's counsel argues that the trial court erred in denying his motion to dismiss/quash because there is no proof in the record that the grand jury indictment was returned in open court. In his pro se assignment, Cooley makes the same argument, but concedes that his motion to dismiss/quash was not on the basis of any defect in the indictment. Contrary to defense counsel's assertion, the only motions to dismiss and quash were filed pro se on October 7, 2015. These were separate motions filed on the same day and only asserted lack of subject matter jurisdiction (motion to dismiss) and failure to provide a speedy trial (motion to quash). Both motions were denied on June 27, 2016.

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. State v. Jones , 50,270 (La. App. 2 Cir. 2/10/16), 188 So.3d 268, 276, writ denied , 16-0858 (La. 5/1/17), 220 So.3d 742.

La. C. Cr. P. arts. 532 and 533, which set forth the grounds for a motion to quash, do not include the failure to return the indictment in open court. However, such lists are merely illustrative, and motions not based on the grounds listed therein should not be automatically denied. In making the determination of whether a given issue is appropriate to raise in a motion to quash, a court should determine whether it is a defense which, if successful, requires dismissal of the indictment, regardless of the merits of the charge and which by its nature must be available before trial. State v. Jones, supra .

La. C. Cr. P. art. 383 provides:

An indictment is a written accusation of crime made by a grand jury. It must be concurred in by not less than nine of the grand jurors, indorsed "a true bill," and the indorsement must be signed by the foreman. Indictments shall be returned into the district court in open court; but when an indictment has been returned for an offense which is within the trial jurisdiction of another court in the parish, the indictment may be transferred to that court.

An irregularity or error cannot be availed of after the verdict unless it was objected to at the time of its occurrence. La. C. Cr. P. art. 841.

Cooley waived his right to object to the alleged defect in the indictment by failing to file a motion to quash raising the issue prior to conviction. Appellate defense counsel erroneously asserts that Cooley filed a motion to quash within days of arraignment. Cooley concedes in his pro se brief that his motion to quash, which was not filed until October 7, 2015, was not based on the indictment.

Even if it had been timely raised, the minutes indicate that a true bill was filed on May 5, 2015. The minutes entered are only of what is done while court is in session, thus, a minute entry that a true bill was filed indicates that a true bill was returned in open court. See State v. Jones , 14-0014 (La. App. 4 Cir. 6/11/14), 144 So.3d 120, writ denied , 14-1496 (La. 2/27/15), 159 So.3d 1065.

These assignments of error lack merit.

Prior Bad Acts and Crimes

The state filed a notice of intent to introduce the evidence of the prior violent encounters with Tonya Williams and Erica Simmons, and the court conducted a 404(B) hearing on October 26, 2016. Tonya and Erica testified similarly to their trial testimony as described above. Defense counsel argued that the acts were far removed from the instant offense, did not involve guns, and did not show any of the accepted bases for admission.

The state argued that the incidents showed motive, opportunity, intent, and absence of mistake of fact. The state urged that the prior acts showed Cooley's propensity to become violent when a woman stated she wanted to end a relationship. In addition, the state argued that the incidents showed modus operandi , in that when Cooley does not get his way, he reacts with violence toward the woman. On appeal, Cooley's counsel continues the arguments from below, urging that the admission of the evidence was highly prejudicial and such prejudice outweighed any probative value the evidence may have had.

Following argument, the trial judge cited State v. Rose , 06-0402 (La. 2/22/07), 949 So.2d 1236, finding that past instances of domestic abuse violence are admissible. The trial judge ruled that the acts that formed the basis of the two convictions, which were by guilty plea, would be admissible. Because he believed some of the testimony adduced at the hearing would exceed the scope of what should be allowed, the trial judge stated that he would fashion a ruling that could serve as a "blueprint" to ensure that extraneous and prejudicial acts that did not form a basis for conviction would not be admitted. In a written ruling of April 13, 2017, the scope of the women's testimonies was limited to the acts surrounding the attacks and the victims' injuries, along with the nature of the relationships with the defendant, including his attitude toward the women. State v. Rose, supra .

La. C.E. art. 404(B)(1) provides:

Except as otherwise provided in La. C.E. art. 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a "bad person." La. C.E. art. 404(B) ; State v. Jackson , 625 So.2d 146 (La. 1993) ; State v. Berry , 51,213 (La. App. 2 Cir. 5/17/17), 221 So.3d 967. This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur , 277 So.2d 126 (La. 1973).

However, the state may introduce such evidence if it establishes an independent and relevant reason, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). The state must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. State v. Prieur , supra .

Even when other crimes evidence is offered for a purpose allowed by La. C.E. art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. State v. Rose, supra . The state also bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Galliano , 02-2849 (La. 1/10/03), 839 So.2d 932.

Although a defendant's prior bad acts may be relevant and otherwise admissible under Article 404(B), the court still must balance the probative value of the evidence against its prejudicial effects before it can be admitted. La. C.E. art. 403. Any inculpatory evidence is "prejudicial" to a defendant, especially when it is probative to a high degree. State v. Germain , 433 So.2d 110 (La. 1983). "Prejudicial," in this context, means that probative evidence of prior misconduct is excluded only when it is unduly and unfairly prejudicial. Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed. 2d 574 (1997) ; State v. Germain, supra.

In State v. Howard , 47,495 (La. App. 2 Cir. 11/14/12), 106 So.3d 1038, this Court relied on State v. Rose, supra , in allowing evidence that Howard had shown a deviant attitude toward other women he had dated and to negate any claim that Howard intended only to frighten his victim. The Howard court explained:

In State v. Rose, supra , the supreme court explicitly approved the admission of the defendant's acts of violence against (and killing of) his first wife, at the trial for the murder of his second wife. The court found the prior acts clearly expressed the vicious, deviant attitude the defendant held toward women with whom he had a romantic relationship, such that the crimes were "inextricably connected in the pattern" they exhibited. Id. at 16-17, 949 So.2d at 1245-1246. Although the precise issue in Rose was the identity of the murderer, and although the other crimes evidence loomed large because the state's case was mainly circumstantial, the court fully approved admission of the other crimes evidence to prove "a specific pattern of violent and obsessive behavior [which] earmarked the crimes as the work of one man[.]"

The erroneous admission of other crimes evidence is subject to the harmless error analysis on appeal. Such error is harmless where the verdict rendered is "surely unattributable to the error." State v. Small , 50,388 (La. App. 2 Cir. 2/24/16), 189 So.3d 1129, writ denied , 2016-0533 (La. 3/13/17), 212 So.3d 1158.

The inquiry is whether the evidence was relevant to serve some independent purpose apart from showing Cooley was merely a bad person. While the weapon was different, and the first two victims were not killed, Cooley's past violent behavior against women when they attempted to end a relationship is particularly relevant to his opportunity, plan, motive, modus operandi , intent, and absence of mistake. Cooley has shown a pattern of rage and physical abuse to women he is dating when the women stop accepting his phone calls and distance themselves from him. Tonya and Erica both sustained serious injuries at the hands of an enraged Cooley. His weapon of choice and the fact that Karen was killed do not make the prior attacks on Tonya and Erica irrelevant. The trial court did not abuse its discretion in allowing this evidence.

This assignment of error lacks merit.

Motion for Speedy Trial

Cooley argues pro se that the trial judge erred in denying his motion for speedy trial. On May 27, 2014, Cooley filed a pro se motion for speedy trial. Cooley's counsel elected not to adopt this motion because it was filed before discovery and was not in compliance with La. C. Cr. P. art. 701. In the hearing on June 27, 2016, defense counsel explained why she did not adopt the pro se motion filed in 2014 and advised the trial court that she had provided Cooley with another motion for speedy trial in May 2016, after discovery had been had, and advised him that if he wanted to sign the motion, she would also sign it and file it. Cooley never signed the May 2016 motion for speedy trial. At the conclusion of the hearing, the trial court denied all pending pro se motions, which included the May 27, 2014 pro se motion for speedy trial.

A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit from the defendant's attorney, certifying that he is prepared to proceed to trial. La. C. Cr. P. art. 701(D)(1). However, if the affidavit from the attorney is not attached to the motion for a speedy trial, then the matter must be set for a contradictory hearing within 30 days. La. C. Cr. P. art. 701(F).

La. C. Cr. P. art. 701 provides that the sole remedy for failure to commence trial within the mandated time period is pre-trial release without bail. Once a defendant has been convicted, any allegation that La. C. Cr. P. art. 701 has been violated becomes moot. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 2017-0966 (La. 4/27/18), 239 So.3d 836.

The trial court did not err in denying the pro se motion for speedy trial. As defense counsel pointed out to the trial court, the motion was filed well before discovery had even begun and was noncompliant with La. C. Cr. P. art. 701. In addition, when defense counsel provided a timely motion for Cooley to sign, he elected not to do so. Finally, any issue regarding a speedy trial is now moot, since Cooley has been convicted.

This assignment of error lacks merit.

Ineffective Assistance of Counsel

Cooley argues that his appellate counsel was ineffective because the record on appeal was incomplete and did not allow her to conduct a thorough review.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court rather than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Nixon, supra .

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitutional Amendment VI. Under the standard set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by the Louisiana Supreme Court in State v. Washington , 491 So.2d 1337 (La. 1986), a conviction must be reversed if the petitioner proves (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's inadequate performance prejudiced the defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legrand , 02-1462 (La. 12/3/03), 864 So.2d 89, cert. denied , 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed. 2d 523 (2005) ; State (City of Ruston) v. Campos , 51,447 (La. App. 2 Cir. 6/21/17), 224 So.3d 480.

A deficient performance is established by showing that the attorney's actions fell below the standard of reasonableness and competency required for attorneys in criminal cases and is evaluated from the attorney's perspective at the time of the occurrence. Strickland v. Washington, supra . A reviewing court must give great deference to the trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment.

State v. Nixon, supra . A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland v. Washington, supra ; State v. Nixon, supra .

A defendant is entitled to a complete record on appeal and, as previously noted, this appeal record was supplemented on Cooley's request. Following supplementation, defense counsel filed a supplemental brief assigning an additional assignment of error, requesting that the record be reviewed for errors patent. Cooley has provided this Court with no support for his assertion that the record is, in fact, incomplete or that his appellate counsel failed to conduct a thorough review of the record.

This assignment of error lacks merit.

Motion to Suppress

Cooley argues pro se that the trial court erred in denying his motion to suppress. On May 27, 2014, Cooley filed a pro se motion to suppress alleging only that "that evidence to be used against the defendant herein has been unlawfully and illegally obtained and that the defendant moves that this evidence be suppressed." In the hearing on June 27, 2016, defense counsel advised the trial court that she did not adopt that motion because discovery had not yet occurred and because the motion failed to state the legal basis for suppression or what evidence Cooley was seeking to have suppressed. The trial court denied the motion.

A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C. Cr. P. art. 703(A). An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. La. C. Cr. P. art. 703(E). Vague and general legal conclusions, urged in form motions, are inadequate to require the holding of such a hearing. State v. Giordano , 284 So.2d 880 (La. 1973) ; State v. Edens , 465 So.2d 954 (La. App. 2 Cir. 1985), writ denied , 467 So.2d 538 (La. 1985).

A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion. State v. Thompson , 11-0915 (La. 5/8/12), 93 So.3d 553 ; State v. Nelson , 51,009 (La. App. 2 Cir. 2/1/17), 215 So.3d 389.

Clearly, Cooley's motion to suppress fails to state a basis for suppression of evidence. The evidence sought to be suppressed was not identified, likely because discovery had not yet occurred. In addition, there was no legal basis stated for suppression of any such evidence.

This assignment of error lacks merit.

Removal of Representation

Cooley argues pro se the trial court erred in refusing to remove Mary Harried as his representation. On June 27, 2016, Cooley filed with the district court a letter requesting the removal of his appointed attorney Harried. In the request, Cooley stated that he was pursuing a lawsuit against Harried and the "Public Defenders Board." Cooley alleged that he and Harried did not get along, that "she gave my statements to the detective," and that he wanted his cell phone introduced into evidence. He further stated that Harried had violated his constitutional rights.

At the June 27, 2016 hearing, Harried outlined her representation of Cooley and detailed all of the work that she had done on the case. The trial court noted his experience with Harried as thorough and competent. Treating the letter from Cooley as a motion to relieve Harried as his counsel, the trial court denied the motion.

The Sixth Amendment to the U.S. Constitution, as well as La. Const. art. I, § 13, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963). As a general proposition, an accused person has the right to counsel of his choice. State v. Leggett , 363 So.2d 434 (La. 1978) ; State v. Kennon , 50,511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661, writ denied , 16-0947 (La. 5/19/17), 220 So.3d 747. However, that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. State v. Jones , 376 So.2d 125 (La. 1979) ; State v. Leggett, supra ; State v. Kennon, supra .

If a defendant is indigent, he has the right to court-appointed counsel; however, an indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Harper , 381 So.2d 468 (La. 1980) ; State v. Bell , 51,312 (La. App. 2 Cir. 5/17/17), 222 So.3d 79. A criminal defendant who has been appointed counsel has no right under the Sixth Amendment to the counsel of his choice. State v. Reeves , 06-2419 (La. 5/5/09), 11 So.3d 1031, cert. denied , 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed. 2d 490 (2009).

Cooley failed to articulate any basis for removal of appointed counsel. A review of the entire proceedings reveals thorough and competent representation of Cooley by Attorney Harried. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of the defendant, Anton Caron Cooley, is affirmed.

AFFIRMED.

      The trial judge initially stated that he did not have to rule on pro se motions filed by defendants who were represented by counsel. In a writ disposition, this Court instructed the trial court that it did, in fact, have to rule on pro se motions absent a finding that doing so would lead to confusion at trial. See No. 50,713 KH, citing State v. Melon , 95-2209 (La. 9/22/95), 660 So.2d 466. Pertinent to this appeal, the pro se motion for speedy trial and the pro se motion to suppress, both filed on May 27, 2014, were denied following the hearing on June 27, 2016, following that writ order.