author: PERRET, Judge.

text:
    Mazella Shahan FLOURNOY v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC. and Keith Colomb, M.D.
    17-81
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Jason M. Welborn, Joseph F. Garr, Jr., APLC, Post Office Drawer 2069, Lafayette, LA 70502-2053, (337) 233-3185, COUNSEL FOR PLAINTIFF/APPELLANT: Mazella Shahan Flournoy
    Douglas K. Williams, Kelsey A. Clark, Breazeale, Sachse & Wilson, L.L.P. P., O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLEE: Our Lady of Lourdes Regional Medical Center
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.
    ON REHEARING
   PERRET, Judge.

This medical malpractice action was originally heard by a panel of this court consisting of Judge Shannon J. Gremillion, Judge John E. Conery and Judge David E. Chatelain, Judge Pro Tempore. In that opinion, Judges Chatelain and Gremillion affirmed the trial court's judgment that granted summary judgment in favor of defendant, Our Lady of Lourdes Regional Medical Center, Inc., and Judge Conery dissented, finding genuine issues of fact that warranted a trial.

On June 1, 2017, an application for rehearing was filed on behalf of Plaintiff. At that time, Judge Candyce G. Perret, who was elected to the bench on April 29, 2017, replaced Judge Chatelain on the panel. The panel granted the rehearing on August 9, 2017. After oral argument, two judges proposed to reverse the judgment of the trial court and one judge proposed to dissent from that decision. Thus, the case was resubmitted and argued to a panel of five judges prior to rendition of judgment. La.Const. art. 5, § 8 (B).

Upon rehearing, and after a further review of the affidavits and depositions of Dr. Christopher Chaput and Dr. Donald Breech, the majority of the five-judge rehearing panel adopts as its opinion the dissenting opinion on the original hearing, which found that "at minimum, there are questions of material fact as to whether the hospital personnel in both the ER and Intensive Care Unit ... promptly and correctly reported the severity and intensity of Ms. [Niki Lynn] Gannard's headaches and deteriorating condition to her attending physician, Dr. [Keith] Colomb." Accordingly, we agree with Judge Conery that, "in a case such as this, it will be up to the jury to assess credibility and weigh the evidence, decide the facts, and assign liability, if any, to the doctor and hospital."

DECREE

The trial court judgment that granted summary judgment in favor of Our Lady of Lourdes Regional Medical Center, Inc. is reversed and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED .

Saunders, J., dissents.

Gremillion, J., dissents and assigns written reasons.

Gremillion, J., dissents.

A properly constituted panel of this court agreed with the trial court, and correctly found that the claims against the hospital and its nurses should be dismissed on summary judgment. This majority reverses the ruling of that panel based on "a further review of the affidavits and depositions of Dr. Christopher Chaput and Dr. Donald Breech." From this explanation, one could infer that these two doctors had offered testimony to help a jury answer the only important questions here; namely, whether the hospital or its nurses breached any standard of care and whether such a breach caused Ms. Gannard's death. But, they did not.

On the contrary, neither the report of Dr. Chaput nor the report of Dr. Breech contains "any reference whatsoever to the standard of care for hospitals or nurses or whether any such standards were breached by OLOL, much less an opinion on causation." See Flournoy v. Our Lady of Lourdes Regional Medical Ctr., Inc. , 17-81 (La.App. 3 Cir. 8/9/17), 222 So.3d 103. Moreover, both doctors testified that they were not experts in the fields of nursing care and/or hospital standards/procedures, and thus could not provide expert opinions on those issues.

Instead, the doctors responded to hypothetical questions posed by plaintiff's counsel. Some of those questions were only partly consistent with the facts at issue and others were wholly inconsistent. The majority finds this evidence creates genuine issues of material fact. I disagree. Witnesses who concede that they are not experts cannot provide material expert testimony, and answers to hypothetical questions not based entirely on fact cannot create a genuine issue of fact. If that were the case, any witness could opine on subject matter for which she has no expertise and that testimony would suffice to survive summary judgment. And worse, that witness could do so without being tethered to the facts being litigated.

Our task as a reviewing court is clear and simple: we review the record to determine the applicable standard of care, and whether there is any evidence suggesting that the standard of care was breached. A review of this record manifests two truths.

First, multiple experts in the field of nursing care unanimously found that these defendants did not fall below the standard of care. Second, no experts empaneled or tendered in the field of nursing care provided any evidence that these defendants breached the standard of care.

For these reasons, as well as the reasons provided in the unanimous medical review panel decision of May 11, 2009, in Judge Patrick Louis Michot's minutes of October 31, 2016, and in Judge David E. Chatelain's excellent majority opinion, I would affirm the trial court and grant the defendant's motion for summary judgment. I respectfully dissent.

      Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Katherine Leigh Henson DAWES v. Dustin Allen DAWES, et al.
    17-801
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018
    Bradford H. Felder, Veazey, Felder & Renegar, L.L.C., 2 Flagg Place, Lafayette, LA 70508, (337) 234-5350, COUNSEL FOR APPELLANT: Dustin Allen Dawes
    R. Shane McCormick, McCormick Law Firm, 412 W. University Avenue, Lafayette, LA 70506, (225) 889-0529, COUNSEL FOR APPELLEE: Katherine Leigh Henson Dawes
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.
   COOKS, Judge.

The father in this matter, Dustin Allen Dawes, appeals the trial court's decree of custody and visitation as to his two minor children, Sutton Elizabeth Dawes, born on June 2, 2014, and Deacon Everett Dawes, born on August 5, 2015. The appellee in this matter is the mother, Katherine Henson Dawes.

The facts establish the parties entered into a temporary custody order by consent on September 25, 2015, when Sutton was seventeen months old and Deacon was one month old. The consent judgment specifically reserved each parties' right to seek a judicial modification.

Dustin sought additional visitation by rule filed on April 22, 2016. On May 10, 2016, a hearing officer recommended a custodial schedule by which Dustin would have visitation periods with Sutton every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and every Wednesday from 6:00 p.m. until the following morning (Thursday) at 8:00 a.m. As to Deacon, Dustin was to have visitation every other weekend from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. and alternating Wednesdays from 6:00 p.m. until the following morning (Thursday) at 8:00 a.m. Beginning on December 16, 2016, the visitation periods for Deacon would be the same as that for the older child, Sutton.

Both parties objected to the hearing officer's recommendations and the matter was set for a trial court hearing on June 21, 2016. As noted by Dustin, the transcript revealed no evidence was presented that would suggest the custodial periods granted to Dustin should be limited. The trial court specifically noted that "it is very obvious to the Court that both of these parents are very good parents, very caring parents and love their children very much."

Following the brief hearing, the trial court awarded joint custody, naming Katherine as domiciliary parent. Visitation was outlined allowing Dustin visitation with Sutton every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and every other Wednesday from 6:00 p.m. until the following morning (Thursday) at 8:00 a.m. As to Deacon, Dustin was to have visitation every other Saturday from 9:00 a.m. until 6:00 p.m. and the following Sunday from 9:00 a.m. until 6:00 p.m. Dustin was also allowed visitation with Deacon every other Wednesday from 6:00 p.m. until the following morning (Thursday) at 8:00 a.m. the following morning (Thursday) at 8:00 a.m. Beginning on December 1, 2016, the visitation periods for Deacon would be the same as that for the older child, Sutton. Judgment was signed on February 6, 2017. The trial court also entered a Joint Custody Implementation Plan dated March 7, 2017, outlining holiday custodial periods and other incidental matters.

Dustin filed a motion for new trial on May 14, 2017, arguing the amount of visitation granted to him was legally insufficient. Dustin noted, despite the trial court finding him to be a very good, caring parent, who loved his children very much, he was awarded custodial periods totaling just sixty-two days per year. After a hearing, the trial court denied the motion for new trial.

This appeal followed, wherein Dustin asserted the trial court erred in not ordering shared custody as the evidence established it was in the best interests of the children. Alternatively, Dustin argued the sixty-two days per year of visitation he was granted does not assure frequent and continuing contact with both parents as set forth in La.R.S. 9:335(A)(2)(a).

ANALYSIS

It is well settled in the statutory law and jurisprudence that the best interest of the child is the paramount consideration in determining child custody. La.Civ.Code art. 131 ; Evans v. Lungrin , 97-541, 97-577 (La. 2/6/98), 708 So.2d 731 ; Moss v. Goodger , 12-783 (La.App. 3 Cir. 12/12/12), 104 So.3d 807.

In this case, while appearing at oral argument before this court, counsel for Katherine agreed that the amount of visitation granted to Dustin was not sufficient to assure the frequent and continuing contact with both parents as required by La.R.S. 9:335(A)(2)(a). This court is also in agreement, after reviewing the record, that the trial court's award of visitation to Dustin was not sufficient. Thus, we find the trial court abused its discretion in awarding Dustin insufficient visitation and reverse the judgment of the trial court and rescind the Joint Custody Implementation Plan dated March 7, 2017.

While at oral argument, counsel for both Dustin and Katherine indicated they believed a joint stipulation as to custody and visitation could be amicably reached. To that end and satisfied that both parties were commendably seeking a solution in the best interests of the two minor children, this court allowed the parties time to confer in an attempt to reach an agreement amenable to both Katherine and Dustin.

A short time thereafter, and with the agreement of both Dustin and Katherine, counsel for both parties stipulated before this court they had reached agreement on custody and visitation. Counsel for Dustin read the parties' agreement to this court. In conjunction with that, several days later a Joint Custody Implementation Plan was mailed to this court on February 9, 2018, signed by Dustin, Katherine and both counsels of record. The plan set forth that Katherine and Dustin would share joint custody of the children, with Katherine as domiciliary parent. The plan then set out a visitation schedule which sufficiently assures frequent and continuing contact with both parents as required by La.R.S. 9:335(A)(2)(a). Accordingly, we will remand this case to the trial court for the approval and entry of the Joint Custody Implementation Plan submitted to this court on February 9, 2018.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. The case is remanded for the approval and entry into the record of the Joint Custody Implementation Plan of February 9, 2018, agreed to and signed by both parents and their attorneys. All costs of this appeal are assessed equally to the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Jackie Lynn PRUITT aka Jackie L. Pruitt
    17-1113
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2018 Rehearing Denied July 18, 2018
    James R. Lestage, District Attorney-36th Judicial District, Richard Alan Morton, Assistant District Attorney-36th Judicial District, P. O. Box 99, DeRidder, LA 70634, Telephone: (337) 463-5578, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    David L. Wallace, P. O. Box 489, DeRidder, LA 70634, Telephone: (337) 462-0473, COUNSEL FOR: Defendant/Appellant-Jackie Lynn Pruitt aka Jackie L. Pruitt
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   THIBODEAUX, Chief Judge.

Defendant Jackie Lynn Pruitt was convicted of first degree murder of Sonya Ortego in violation of La.R.S. 14:30(A)(1) and was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Defendant now appeals his conviction, alleging insufficiency of evidence. We affirm.

I.

ISSUES

We must consider whether the evidence was sufficient for a rational factfinder to find Defendant guilty beyond a reasonable doubt.

II.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted of the crime of first degree murder of twenty-nine-year-old Sonya Ortego committed on March 24, 2016, at Dee's Motel in DeRidder. Defendant was tried by a twelve-person jury and was convicted with an eleven-to-one verdict. Defendant was sentenced to life imprisonment at hard labor without parole after the trial court denied his post-trial motions.

Shortly before noon on March 24, 2016, the owner of Dee's Motel, James Bethard, found Ms. Ortego dead in room 6 when he went to deliver fresh towels. After knocking a few times with no response, Mr. Bethard entered room 6 where he discovered Ms. Ortego face down on the floor and covered partially with a bedspread by the foot of the bed. Mr. Bethard tried tapping her foot and calf to wake her before he noticed blood by her head, and he left the room to call 911. Beauregard Parish Sheriff Deputies Michael Daniel Rick and Scott Greenum arrived shortly after noon, followed thereafter by Acadian Ambulance. The paramedics noted that Ms. Ortego was already dead, but her body was still warm. Detectives began to interview witnesses and collect evidence at the scene.

Ms. Ortego and her fiancé Matthew Jantzen had lived together in room 6 at Dee's Motel since February 1, 2016 and paid the rent through March 25, 2016. Ms. Ortego was mentally impaired and did not complete high school. She was unemployed and received Social Security benefits for her mental limitations. Mr. Jantzen was working as a skidder operator for a logging crew. On the day of the murder, Mr. Jantzen and Ms. Ortego fought as they did sometimes. Another motel resident, Trollis Dillard, often went to bed around five in the morning and described himself as "basically like the security" at the motel. When he was about to go to bed on March 24, 2016, he heard some arguing and cursing. Mr. Dillard came out of his room and saw Mr. Jantzen and Ms. Ortego fighting, and saw "[Ms. Ortego] was putting it on him[,] and he was doing a lot of ducking." He noted Mr. Jantzen acted "scared, he was the one getting whooped." Mr. Dillard told Ms. Ortego to stop and she did. Mr. Dillard saw Ms. Ortego go back into her room and Mr. Jantzen left when his ride to work pulled up around that time.

Adrian Jerry McDonald worked with Mr. Jantzen for approximately six months prior to the murder. Mr. McDonald generally picked up Mr. Jantzen at Dee's Motel around 4:45 to 5:00 A.M., and their commute to the worksites took about thirty minutes. On the day of the murder, their work was rained out around noon. Mr. McDonald and Mr. Jantzen planned to go to Mr. McDonald's house to drop off his work truck and to cash their checks. However, when they passed Dee's Motel, they saw an ambulance and police cars so they stopped.

Mr. Jantzen testified that on the morning of the murder, he and Ms. Ortego argued because he made a noise which woke her up. Mr. Jantzen said she was easily upset and would start "screaming like she always did." When he left for work, Ms. Ortego "was still upset[,]" and they were sending each other text messages the entire time he was away until she stopped answering at 7:45 A.M. Mr. Jantzen sent a text at 7:57 A.M. which read, "Baby Are [sic] you okay" because she stopped answering his texts. Mr. Jantzen denied physical contact with Ms. Ortego that morning. Mr. Jantzen said that he and Ms. Ortego engaged in sexual relations around 7:00 P.M. on March 23, 2016, and she was not on her menstrual cycle.

On March 23, 2016, Defendant went to visit his cousin, Richard Daniel James, in the afternoon and asked for the number to Dee's Motel. Mr. James had not seen Defendant for nearly a year. Mr. James thought that Defendant may have been drinking, but "he wasn't drunk[.]" Defendant visited Mr. James for a couple of hours while he was waiting for someone to send him some money through Walmart. Defendant left around 6:00 or 7:00 P.M. and did not return. Mr. James had offered Defendant his couch, and he "said he might come back[.]" Defendant went to Dee's Motel on March 23, 2016, checked into room 7 and paid the twenty-five ($25) dollars to rent the room for one night.

Russell Longoria lived in room 8 at Dee's Motel from March of 2014 to March of 2017. On March 23, 2016, Mr. Longoria returned from work around 5:00 or 5:15 P.M. Room 7 had been empty for weeks, but was occupied that night. Mr. Longoria spoke to the man renting room 7 while they were outside, and the man was drinking what Mr. Longoria assumed to be vodka. The man finished one pint, throwing it into the back of his pickup truck, which was backed up to room 7. He then took another full pint from his pocket and began to drink it. Mr. Longoria identified Defendant at trial as the man he saw that night. Mr. Longoria went to bed around 9:30 or 10:00 P.M. and did not hear anything because there is a storage room between rooms 7 and 8. On March 24, 2016, Mr. Longoria woke up around 6:30 A.M. and left for work around 7:30 A.M. He did not see or hear anything unusual. When he returned around 7:45 P.M., he saw crime scene tape set up around Dee's Motel.

At the time of the trial, Walter Wayne Hassien lived in room 5 at Dee's Motel for almost seven years. Mr. Hassien worked in the oil field and did repair work at the motel. He would keep his room while he would be gone for three to four months. On March 23, 2016, around 4:00 P.M., Mr. Hassien opened his door and saw Defendant who "had a little bottle of whiskey" in his hip pocket. Around 10:30 or 11:00 P.M., Defendant came by wanting a cigarette and had asked a few other rooms. Defendant was still drinking. At 3:30 to 4:00 A.M., Mr. Hassien wanted to go outside to smoke a cigarette, but he looked outside his window and Defendant "was standing at his door looking back up towards [sic] our rooms and stuff." Mr. Hassien stayed inside because he did not want to interact with Defendant, because "he didn't seem right, he didn't feel right." Around 6:00 A.M., Mr. Hassien got up and "heard a commotion" in room 6. He believed it was Ms. Ortego and Mr. Jantzen playing around, and he went back to bed. When Mr. Hassien awoke again later, he heard a banging noise which he described as "like they were trying to repair something they tore up." Mr. Hassien first testified that Michael Wallace talked to Defendant around 10:00 A.M. on Thursday, March 24, 2016. Mr. Wallace offered Defendant a job and Mr. Wallace told them that Defendant did not want a job. Mr. Hassien did not indicate to whom Mr. Wallace was telling about that interaction. Mr. Hassien saw Defendant loading his truck up before Mr. Hassien went back into his room. Around 10:30 A.M., Defendant left in his red truck. Mr. Hassien remembered Defendant was in a hurry when he was leaving Dee's Motel. Mr. Hassien told Mr. Bethard about the banging noise he heard, and Mr. Bethard asked him to go with him to the room. They found Ms. Ortego lying on the floor and saw blood on the wall and around her head.

Mr. Hassien testified that Ms. Ortego would usually open the door to her room around 10:00 or 10:30 A.M., sit on the bed, and play games on her phone. If she knew they were outside, she would open the door. Then she might close it around 3:00 P.M. At about 4:30 P.M., Ms. Ortego would usually stand in the doorway waiting for Mr. Jantzen.

Mr. Dillard woke up around 8:30 or 9:00 A.M. when Mr. Hassien asked if he wanted to have coffee. They were in Mr. Hassien's room along with Mr. Wallace until Mr. Bethard came to get them to go into Ms. Ortego's room. Mr. Dillard did not want to enter the room because he was afraid. When Mr. Dillard saw Ms. Ortego early that morning, she was wearing a blouse and shorts. However, when they found her body she was only partially clothed.

Mr. Dillard had spoken to Defendant on March 23, 2016, requesting that he park his truck "the long way." Mr. Dillard stated that after the police were called, he saw Defendant come out of his room without a shirt. Mr. Dillard said he was talking to Mr. Bethard and Mr. Hassien about the police being on their way and that Defendant "acted like he didn't know what was there ...."

On the night before the murder, Defendant went around the motel asking for a cigarette. Defendant asked Mr. Jantzen and Ms. Ortego because their door was open, and they said they did not smoke. Mr. Jantzen did not see Defendant again. Mr. Jantzen said Ms. Ortego complained of noises at the motel and worried about her safety at Dee's Motel. Ms. Ortego liked being reclusive at the motel and "didn't like anybody in her business." Ms. Ortego considered Mr. Dillard to be "in her business" when he told Ms. Ortego and Mr. Jantzen what to do or not to do.

Tommy Pruitt, Defendant's brother, was Defendant's only witness at trial. He testified that he did not know that his brother was coming to DeRidder for a court appearance on March 24, 2016. Defendant came to their mother's house around 10:00 A.M. but did not spend Wednesday night there "because he was court ordered not too [sic]." Mr. Pruitt described Defendant as calm, not anxious, and "didn't even think he was gonna [sic] get put in jail" when he went to court. Defendant washed some clothes at their mother's house, and their mother put them in the dryer and folded them after Defendant left. He said that Defendant did not appear to be drinking but "looked better than [Mr. Pruitt] had seen [Defendant] in a while" even though they had not seen him for at least a year.

Deputy Michael Daniel Rick of Beauregard Parish Sheriff's Office received the dispatch of an unconscious female at Dee's Motel around 11:45 A.M. He arrived at 11:56 A.M., finding Ms. Ortego lying face down in the bedroom corner, with a blanket draped over her. Deputy Rick was wearing gloves and did not check for a pulse because he saw no signs of lividity. Deputy Rick noted in retrospect he should have checked for a pulse because he possibly could have done something at that point. Deputy Rick, along with Deputy Scott Greenum, had been in the room before Acadian Ambulance and the detectives arrived on the scene. Deputy Rick saw "blood on the walls and furniture" as he backed out to avoid contaminating the crime scene. Later, when Deputy Rick took photographs, he found what he believed to be two stab wounds between Ms. Ortego's shoulder blades. Deputy Rick was present at the crime scene for several hours, and placed crime scene tape around room 6 and the surrounding rooms.

Deputy Oscar Louis Lopez, Jr. of the Beauregard Parish Sheriff's Office responded to Dee's Motel, along with Detectives Matt Barrett, Bobbi Ripley, and Toree Jones, at 12:20 P.M. Deputy Lopez photographed and videotaped rooms 6 and 7. Deputy Lopez noted that the door to room 6 did not appear to be forced open. He found a side panel of a knife near Ms. Ortego's body that was covered in blood. Deputy Lopez testified that he could clearly see a knife wound. In room 7, Deputy Lopez found a stained bath towel and a stained hand towel. Deputy Lopez and some detectives collected DNA swabs from the doorknob on the entrance to room 7, as well as from the sink in that room. Deputy Lopez handled the items while wearing gloves and placed them into evidence bags as someone else logged them. The jury saw Deputy Lopez's video and photographs, which showed: bloodstained walls and bed sheets in room 6; the side panel of the knife; the sink which appeared as if someone had tried to clean up blood; and a stain on the wall which looked diluted.

Deputies noted that Ms. Ortego's body was found clothed in a shirt and socks, but no underwear. Panties were found near the doorway. No feminine hygiene products were found. No barbed wire was found in either room or Defendant's truck. Deputy Lopez did not fingerprint anything in the room. He found room 7 "was fairly clean" with just "the dirty towels inside of the restroom."

Detective Herford and Deputy Franks entered room 7 which appeared clean except for some bathroom towels. The Sheriff's Department applied Blue Star, a chemical used to identify the presence of blood, to the Defendant's room and Deputy Lopez took photographs of "[w]here the [B]lue [S]tar activated" next to the bed, near the front door, the floor by the restroom, the sink, the soap dish, and on the shower wall.

Detective Mark Herford testified as the chief detective for the Beauregard Parish Sheriff's Office. After receiving a call about an unresponsive woman at Dee's Motel with blood inside the room, he sent a "mass text" to his detectives to meet at the scene. The detectives were able to contact all the residents of the motel except Defendant. One of the deputies on the scene knew where Defendant's mother lived so a deputy drove by to see if he could locate Defendant's red pickup truck. Deputy V.J. Franks was able to locate Defendant and brought him to the Sheriff's Office, the courtroom, and then to the jail. Defendant went to court for a probation violation and was sentenced to thirty days in jail. Detective Herford interviewed Mr. Dillard and Mr. Hassien. He reported the death to the coroner and requested an autopsy and sexual assault kit.

Detective Morton received a call on March 24, 2016, from Deputy Herford about an unconscious woman at Dee's Motel. He volunteered to be the lead case agent. Detective Morton arrived to an already secured crime scene and saw a female lying face down with a bed comforter over her. She was wearing socks and had a shirt pulled over her head. There was a lot of blood and "what looked like a couple [of] stab wounds to her back[.]" Detective Morton spoke to Mr. Bethard, Mr. Dillard, Mr. Hassien, and Mr. Wallace. Detective Morton learned that Defendant left Dee's Motel around 10:30 A.M. in a hurry without a shirt on and "had some scratches and scars on him."

Deputy Franks left the scene to find Defendant. Deputy Franks found Defendant at the address that Deputy Franks was provided by another deputy. He observed that Defendant did not appear rushed as he left the residence and headed to the courthouse. Deputy Franks followed Defendant in his "semi marked unit" and asked Defendant if he would go to the Sheriff's Office to speak to detectives about the incident. Defendant said he had a court appearance at 1:30 P.M. Deputy Franks said he would contact the court to make arrangements, so Defendant agreed but did not ask why the detectives wanted to talk to him. Deputy Doyle took Defendant to the Sheriff's Office while Deputy Franks stayed with Defendant's truck. Additionally, Defendant's red truck was seized and placed in a secure location until a warrant was issued. Deputy Franks noticed luggage in the front seat that looked like a duffel bag, and totes and plastic garbage bags in the back-all visible from the window and in the bed of the truck. Deputy Franks also noticed "specks or smudges that were a brownish color" which looked like fingerprints on the door handle. The next morning, when Deputy Franks arrived where Defendant's truck was being stored, Detectives Morton, Lopez, and Leedom were searching Defendant's truck and going through the duffel bag and luggage.

Detective Morton returned to the Sheriff's Office to interview Defendant. Defendant was read and waived his Miranda rights. Detective Morton interviewed Defendant for about an hour. Defendant was not under arrest for this crime at the time of this interview.

Defendant asked why he was being interviewed. Defendant told Detective Morton that he had left Winnsboro where he was at a rehabilitation unit to attend court in DeRidder. Defendant knew he might receive jail time, and he thought he would be put on a payment plan after his court appearance. Defendant stated he hardly ever drank when working but would drink enough to help him fall sleep.

Detective Morton told Defendant that something happened to the woman in room 6, and Defendant asked if he had talked to her boyfriend. When Detective Morton told Defendant that "the total picture" implicated him as a person of interest, he agreed to give DNA, blood samples, and a suspect sexual assault kit. Defendant requested a lawyer.

Detective Morton obtained buccal swabs from Defendant and photographed him without his shirt. Defendant had a mark or scratch on his left upper chest, fresh scratches/marks on his upper torso, and a mark on his back "in a V pattern." Additionally, Defendant had a fresh scratch under his right armpit, and scratches on both sides of his front abdomen. Detective Morton thought one mark was a bite mark. However, neither the coroner nor the Sexual Assault Nurse Examiner (SANE) could positively confirm this was a bite mark. Defendant had three different lines along his right rib cage going towards the right shoulder which Detective Morton believed to look "like a scratch and claw mark[.]"

Defendant explained these scratches as injuries from working with barbed wire fencing for a fencing company in Winnsboro. However, Detective Morton thought the injuries were too fresh to fit the timeframe for Defendant's employment. Similarly, Defendant told the SANE nurse that the injuries were from barbed wire. The nurse also found what appeared to be "fresh dry blood" on Defendant's right knee, and she took a swab of it.

Detective Morton took additional photographs on March 28, 2016, to show the progression of the scratches he saw on March 24, 2016. He noted the injuries had "start[ed] to turn kinda [sic] a yellow and bruise." A third set of photographs was taken by Detective Morton on April 1, 2016, and he stated, "you couldn't hardly even see them ... they had healed by that time."

Detective Morton was unable to recover anything from Defendant's mesh laundry bag left at his mother's house. The clothes had already been washed and dried. The detectives searched Defendant's truck on March 25, 2016, and found multiple bags and totes. The detectives found a black duffel bag on the passenger's side of the truck which contained a black cell phone. Additionally, the bag contained: two First National Bank debit cards, one in Ms. Ortego's name and one in Mr. Jantzen's name; Ms. Ortego's prepaid Visa card; a temporary checkbook with Ms. Ortego's name, checking account, and bank routing number handwritten on it; and a prepaid phone. The prepaid phone matched the Defendant's purchase of a phone at Walmart like he told detectives. The bag also contained clothing and personal hygiene items. When detectives turned on the black cell phone found in the duffel bag, a photo of Mr. Jantzen showed up as the screensaver/background. Missed calls and text messages came through and matched the text messages from Mr. Jantzen's phone. On the phone there was a text from Ms. Ortego to Mr. Jantzen which he read at 7:22 A.M. that said, "okay, well it's pouring down here and remember that guy that got here last night came around asking for a cigarette but Mr. Wayne [Hassien] gave him one?" Mr. Jantzen responded but did not comment on the man, saying, "I see, well it's dry here, darling." The last text from Ms. Ortego was at 7:45 A.M. and then after that "everything was coming from [Mr. Jantzen's] to [the victim's] phone" according to Detective Morton.

During a second recorded statement, on March 25, 2016, at 5:53 P.M., Detective Morton advised Defendant that he was under arrest and charged with first degree murder. Defendant replied that Detective Morton never said anything about murder and he "thought she was hurt." Then Defendant admitted to Detective Morton that "there's a couple of things I didn't tell you but I mean I didn't think it was something that serious." Defendant said:

The one thing I, I almost told you last night but I said no if I tell him it's going just to incriminate me and that was the morning I got up and left and went to packing my stuff, putting it in the truck, in the bed of my truck was a cell phone and couple of credit cards. I didn't even think nothing about it, I picked them up and put them in my bag. Last night I got to thinking about it, thinking this could be a problem and, but I never said anything to you about it, I said no I'm just going to, cause I know you going to find out anyway, who did it belong to?

Then Defendant said "something [ ] actually went down that night" but he wanted a lawyer.

At trial, Detective Morton showed text messages on Mr. Jantzen's cell phone from March 23, 2016 from 6:05 P.M. to 6:13 P.M., 8:28 P.M. to 8:39 P.M., and 11:12 P.M. to 11:17 P.M. The texts between Mr. Jantzen and Ms. Ortego discussed weather, food, getting married, and a possible move to Motel 6.

Detective Morton testified that Defendant became a person of interest because a witness described him as jittery, shirtless, and scratched when he was leaving the motel at 10:45 A.M. Detective Morton was familiar with Ronald Ortego, Ms. Ortego's brother who suffered from mental disability and schizophrenia. However, after the detectives found Ms. Ortego's and Mr. Jantzen's property in Defendant's truck, they did not spend much time on other possible suspects. Mr. Jantzen was interviewed via video, but it was not transcribed. Detectives did not take fingerprints from room 6 because they felt DNA was easier for results. Detectives also did not feel the need to search the other rooms at Dee's Motel. Detective Morton did not believe that the stain that Deputy Franks saw on Defendant's truck door was blood, so he did not have it swabbed or use Blue Star on it. Detective Morton found no evidence, nor did he gain any information to point to other suspects so his focus remained on Defendant from March 25, 2016 onward.

Not all seized items were submitted to the crime lab for analysis because the crime lab limits the number of submissions-generally a limit of six to seven items. The knife side panel was not submitted because law enforcement believed the blood it was covered in was the victim's as it was found close to the victim who was also covered in blood.

Defendant testified before a grand jury on May 4, 2016, and his testimony was read to the jury at trial. Defendant was read and waived his Miranda rights, and appeared with counsel. Defendant testified that he was on probation for a third offense DWI in August 2015 when he got intoxicated and had to serve ninety days in jail. He then went to Fresh Start Rehabilitation program in Winnsboro. On Wednesday, March 23, 2016, Defendant came to Beauregard Parish for a court proceeding on March 24. Upon arrival in DeRidder, Defendant went to Dee's Motel and put a room on hold for nine ($9) dollars. Defendant then went to his cousin's house to visit while he waited for a MoneyGram to be sent to him at Walmart which included the money he needed for the remainder of his stay at the motel. Defendant went to Walmart and then back to Dee's Motel, paying the balance on the twenty-five ($25) dollar room rate.

Shortly thereafter, around 6:00 to 6:30 P.M., Defendant began drinking two pints of vodka. Defendant asked for a cigarette from some of the motel guests who had their motel room doors opened, including Mr. Jantzen and Ms. Ortego. According to Defendant, at around 8:00 P.M. the woman in the next room knocked on his door and seemed "pretty aggravated" and "upset." She told Defendant her boyfriend just left with someone, and she propositioned him for sex. Defendant agreed, and they attempted to have sex, falling to the floor a few times. However, Defendant could not achieve an erection, but said, "[He] felt sorry for the girl so [he] started using [his] fingers." Defendant claimed Ms. Ortego was on her menstrual cycle so they ended their sexual encounter. Defendant stated she got dressed and went to her room and he "washed [his] hands off and got back in bed and finished [his] vodka." He thought he passed out as he usually does when he drinks. He woke up "before daylight" the next morning because they were "hollering and screaming" next door. He was "a little worried" that maybe Mr. Jantzen had learned that Ms. Ortego had come to Defendant's room. He said he was still under the effects of vodka so he rolled over and went back to sleep. Defendant woke up again around 9:00 A.M., packed his truck, and headed to visit his mother and brother. Defendant claims that as he was packing up his truck, he noticed a cell phone and credit cards lying in the bed of the truck. Defendant stated he did not know how the items got there but he was "kinda [sic] in a hurry" so he put the items in the duffel bag. He said he did not mention finding the items or his sexual encounter with Ms. Ortego during the first interview with Det. Morton because he was embarrassed.

Defendant did not shower while at Dee's Motel but put on different clothes, although he was only partially dressed when loading his truck. He spoke to a man who offered him a job and he told him that he needed to be in court, but he might be interested if he did not go to jail. He wrote down the man's phone number. He went to his mother's house, washed his clothes, and left to go to court.

Upon parking, Defendant was surrounded by deputies, and he agreed to go with them when they said they would take care of his court appearance. Defendant gave a statement to Detective Morton, who also took photos of the scratches on Defendant's body which Defendant assumed "they come [sic] from the girl when [they] were rolling around on [his] bed and falling off on the floor .. .." Defendant also stated he had "a lot of scars from building barbwire fences." Defendant did not tell Detective Morton about his sexual encounter with the woman. Defendant denied killing the woman to the grand jury. However, Defendant admitted to blacking out and "not always remember[ing] everything when he was drunk on vodka[.]"

At trial, the foreman of the fencing company, David Brent, testified that they hired men from the Fresh Start Outreach Ministries that Defendant was enrolled in. The fencing company hired Defendant in 2014 or 2015. He went back to jail for ninety days, went through the Fresh Start program, and was re-hired when he reached the work phase of the program in late 2015. Mr. Brent said that Defendant had a bad attitude the first time, even before he started drinking again, but his attitude changed the second time. Mr. Brent stated that Defendant stopped working for the company in March 2016 because of his drinking problem. Furthermore, Mr. Brent said the company last worked with barbed wire jobs on January 13, 2016. He had no knowledge of any other barbed wire jobs after that date. Mr. Brent also mentioned that in the three years that he had been working on fencing, he did not have any scars from his work. He saw Defendant around town for roughly ten to fourteen days after he stopped working for the fencing company but believed "all he was doing was drinking." Mr. Brent did not think that Defendant could have done any fencing work around town without him knowing about it.

Dr. Terry Welke, a coroner with the Calcasieu Parish Coroner's Office, performed an autopsy of the victim on March 25, 2016. Dr. Welke found bruises on the victim's right upper and lower eyelid that was "fairly recent[,]" her nose was scraped, and her right cheek had "some straight injuries ... consistent with some sort of sharp instrument, usually a pointed type of instrument that scrapes." The victim had injuries to the left of her mouth. There were cuts made by a sharp instrument on her right ear, toward the top of her nose, and a wider scrape on her right cheek. A stab wound to the victim's neck cut a blood vessel. The victim had another cut underneath her chin and injuries to her scalp. She also had a cut behind her ear lobe and to the back of her ear. She had stab wounds close together with one wound having a sharp edge with a blunted top part "consistent with a knife or something to that sort." Dr. Welke identified stab wounds on the victim's neck, upper chest, back, along with superficial cuts, and scrapes on the back and shoulder. The victim also had defensive wounds on her right elbow, back of her right mid-forearm, and on the top of her left thumb. The victim also had wounds on her left arm. All of the victim's wounds were from the waist up, with the lowest wounds on her hands. Dr. Welke testified that the wounds were consistent with a single-edged blade like a pocket knife. Dr. Welke said there were too many cuts to count on the victim and her encounter with her attacker would have been prolonged and painful. A blow to her face caused swelling under her eye-possibly knocked her unconscious. Dr. Welke said that the cause of death was homicide from multiple stab wounds.

Dr. Welke also reviewed the photographs taken of Defendant on the day of the murder. Dr. Welke believed the scratches on Defendant's body were recent because they were red. Dr. Welke thought that the scratches "could be due to fingernails or some blunt instrument of some sort" because of their width. Dr. Welke did not believe that these scratches were consistent with scratches from barbed wire. Dr. Welke noted that he was from Nebraska and had been scratched by barbed wire and because barbed wire is essentially "a nail that's been twisted around a piece of wire" it would leave a scratch mark narrower than the scratches found on Defendant. When Dr. Welke reviewed the photographs of Defendant taken on March 24, March 28, and April 1, 2016, he stated that the scratches were "consistent with resolving injur[i]es that occurred about a week prior or whatever."

Jade Marler, a SANE nurse, testified that she collected a suspect sexual assault kit from Defendant. He explained his scratches as the result of barbed wire fencing that he had worked with when employed with the fencing company. Ms. Marler found a puncture wound on Defendant's hand with brightness, and multiple lacerations on his fingers-those appeared to be healing. On Defendant's forearms were scratches with redness, which Ms. Marler believed indicated a fresh injury. When Ms. Marler asked Defendant about the redness on his inner elbow and the two marks on his right inner bicep, he did not answer. Ms. Marler noted newer injuries on his fingers which were oozing "the clear type [of] fluid after you hurt yourself." Defendant did not answer again regarding redness on his forearm, bicep, and lower back. Regarding three linear marks on his right upper back, Defendant "stuttered twice, stopped and then did not answer." Then Defendant paused for a long time and responded, "the fence job." Ms. Marler documented multiple bruised and marked areas on Defendant's chest. Ms. Marler also noted dried blood on Defendant's right knee but found that there was no scratch under this blood once she swabbed the blood. Ms. Marler collected Defendant's socks and underwear, fingernail swabs from both hands, saliva swabs, penile swabs, dry secretions from the chest area, probable dried blood from the right knee, and several tubes of blood as evidence.

Chris Singletary, a forensic DNA analyst at the Southwest Louisiana Crime Lab, testified at trial. Mr. Singletary analyzed the items submitted and found blood in the swabs taken from stains on Defendant's knee, Defendant's underwear, and one of the towels. A DNA sample from the large towel matched the victim's DNA. An additional sample from the same towel showed DNA from two contributors with the victim as the major contributor. The minor profile on the towel was not enough for information. A DNA profile of Defendant was developed from his blood sample. Mr. Singletary matched the victim's DNA and Defendant's DNA to the DNA on Defendant's penile swab. The DNA profile of the victim also matched the swab taken from Defendant's knee. The swab from the motel sink in Defendant's room was "too complex to interpret" and the DNA from the doorknob only yielded a partial profile. Two DNA swabs from Defendant's underwear contained mixed DNA profiles and were also too complex to interpret. The swabs of possible dried secretions from Defendant's chest showed a mixed DNA profile with a major and minor contributor but the minor contributor was not enough for comparison. Mr. Singletary's work was reviewed by another analyst who agreed with the findings.

III.

STANDARDS OF REVIEW

When evaluating whether a conviction was supported by sufficient evidence, "a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger , 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170 (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).

"If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post-verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense." La.Code Crim.P. art. 821(E).

IV.

LAW AND DISCUSSION

Defendant alleges that the evidence was insufficient for a rational factfinder to find him guilty beyond a reasonable doubt. Defendant argues that the State has no murder weapon, no eye witness, and no evidence that he committed any type of felony against Ms. Ortego. Defendant asserts that all of the statements and testimony provided by Defendant was given prior to Defendant's attorneys receiving any discovery information from the State and before Defendant knew anything about the evidence. Defendant claims the case was a rush to judgment because Defendant was the only motel occupant that left the next day and the Sheriff's Office followed him and brought him in for questioning that day. Defendant further argues that the State presented witnesses which did not carry their burden of proof, collectively or individually. Defendant notes that several witnesses overheard commotion coming from Ms. Ortego's and Mr. Jantzen's room in the early morning hours and that the phone messages sent from Ms. Ortego's phone did not mean that she was alive or that she was the individual sending those messages. Moreover, Defendant states that the coroner opined that the wounds were caused by a single sharp edge, but there was no evidence to compare to determine the instrument which inflicted Ms. Ortego's wounds. Defendant states that nobody explored Ms. Ortego's schizophrenic brother, Ronald, as a person of interest despite their history of physical altercations. Defendant takes issue with Detective Morton as the lead detective and a testifying witness because Richard Morton, his father, was the prosecutor examining Defendant for the duration of his testimony. Additionally, fifty-three items of evidence were collected and only seven items were tested. Defendant asserts that his sexual encounter with Ms. Ortego while she was on her menstrual cycle was a reasonable explanation for the little evidence that the State had tying Defendant to the crime. Defendant argues that other than him having the credit cards and phone of Ms. Ortego and allegedly her DNA on a towel in his room, nothing else links Defendant to Ms. Ortego's death.

The State argues that the evidence offered at trial proved beyond a reasonable doubt that Defendant was guilty of first degree murder of Ms. Ortego which occurred during the commission of other serious crimes: aggravated burglary, aggravated rape/first degree rape, and armed robbery. Although Ms. Ortego and Mr. Jantzen argued that morning, witnesses saw Ms. Ortego go back into her room and watched Mr. Jantzen get in his ride to work, and the couple continued to text throughout the morning. Further, witnesses noticed Defendant leaving Dee's Motel around 10:30 A.M. in a hurry, shirtless, and with scratches on his upper body. Defendant tried to account for the scratches by saying he received them while working with barbed wire fencing. The State argues that the jury clearly did not believe this explanation because Defendant's foreman at the fencing company testified that Defendant had not worked with barbed wire for weeks and the SANE nurse, Ms. Marler testified that the wounds looked fresh. Moreover, the State notes that a search of Defendant's truck resulted in detectives finding luggage with Ms. Ortego's and Mr. Jantzen's possessions. The State alleges that Defendant realized overnight that officers would search his truck and came up with a story that he found the items tossed into the bed of his truck even though the items were inside his luggage in the cab of his truck. The State argues that the jury could have considered that as evidence of intentional misrepresentation and consciousness of guilt. Defendant testified to the grand jury and admitted during his testimony that he received copies of his offense reports and lab reports before his grand jury testimony. The State argues that the trial jury concluded that Defendant had again lied in an attempt to explain away evidence, contributing to the totality of evidence of his guilt.

Defendant was convicted of first degree murder. Under La.R.S. 14:30(A) :

First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery ....

Louisiana Revised Statutes 14:60(A) reads, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous weapon.
(3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.

Under La.R.S. 14:42(A), in pertinent part:

First degree rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it was committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
....
(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

Louisiana Revised Statutes 14:64(A) reads, "Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon."

Under Jackson v. Virginia , the Supreme Court considers "whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt." 443 U.S. at 313, 99 S.Ct. 2781 (citing In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). In State v. Captville , 448 So.2d 676 (La.1984), the Louisiana Supreme Court held that the evidence was sufficient to support the defendant's conviction of second degree murder. In Captville , trial testimony contradicted the defendant's account and "adamant denial that he handled the gun, [which] could have led the jurors to reasonably conclude that defendant put the gun next to the dying woman in an effort to support a concocted story of accidental discharge." Id. at 680. The court noted, "the jurors obviously (and reasonably) concluded that defendant's version of the events immediately preceding the fatal shot was a fabrication designed to deflect blame from him." Id.

An appellate court may impinge on the factfinder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of the law." State v. Mussall , 523 So.2d 1305, 1310 (La.1988). When a "jury reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis fails, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." Captville , 448 So.2d at 680.

We conclude that the evidence is sufficient for a jury to have found Defendant guilty beyond a reasonable doubt of first degree murder. Witness testimony established that there was a loud banging from room 6 after Mr. Jantzen left for work. The evidence suggests that the murder occurred between 7:45 A.M. and 10:00 A.M. during the time Defendant was at Dee's Motel. When Defendant spoke to Detective Morton the first time, he omitted evidence about finding the phone and credit cards in his truck. It was only during Defendant's second interview with Detective Morton and after he learned that he was a person of interest that he admitted that he had those items. Further, Defendant did not mention that he had a sexual encounter with the victim until his grand jury testimony. During his grand jury testimony, Defendant testified that he had seen the offense reports and discovery. The record provided during discovery showed the preliminary autopsy report, the SANE report, police reports, witness statements, crime lab reports, and the results of the search warrants. The jury could have reasonably concluded that Defendant knew the victim's blood and DNA had been found in his room. Although Defendant claims Ms. Ortego was on her menstrual cycle, Mr. Jantzen testified that Ms. Ortego was not on her menstrual period at the time and no feminine hygiene products were found in Ms. Ortego's room. When the victim was found, she was found unclothed from the waist down, and her DNA was on Defendant's penile swabs which suggests that aggravated rape occurred in conjunction with the attack on the victim. Moreover, Defendant had possession of the victim's property, indicating the crime of aggravated burglary. The evidence also showed the victim was stabbed and had multiple lacerations from some type of weapon, indicative of armed robbery. Blood was found in both the victim's room and Defendant's room. Defendant had scratches on his upper body, hands, and forearms. Defendant attributed these fresh scratches to his work with barbed wire fencing. However, the testimony from the foreman of the fencing company that Defendant worked for did not corroborate that Defendant had worked with barbed wire fencing for months before the murder.

Although the evidence was mostly circumstantial, it was sufficient for a jury to find Defendant guilty beyond a reasonable doubt. Therefore, we affirm Defendant's conviction for first degree murder and his mandatory life sentence without benefit of parole, probation, or suspension of sentence.

V.

CONCLUSION

For the reasons set forth above, this court finds the evidence was sufficient to convict Defendant Jackie Lynn Pruitt of first degree murder. This court affirms Defendant's conviction and sentence.

AFFIRMED.

      Mr. Wallace died in an automobile accident at some point after the murder and before the trial.

      However, the coroner, Dr. Terry Welke, was unable to determine what kind of instrument inflicted Ms. Ortego's wounds.

      Deputy Lopez's testimony about the swabs is difficult to decipher. His comment was, "Okay. The second one that I hope it works the same, but it's only a piece of it. The stake without the swab itself. The slow is what they use at the crime lab and then they are no good anymore[,] so they don't through the back in there."

      Defendant attributed scratches on his upper body to his recent work with barbed wire for a fencing company.

      Blue Star also reacts to other substances, but Deputy Lopez did not know what other substances. Additionally, Blue Star does not indicate for how long a substance it has highlighted has been present.

      The Beauregard Parish Sheriff's Department had Blue Star which had expired. They obtained current Blue Star from the Calcasieu Parish Sheriff's Office and followed the written instructions. Deputy Franks testified that they only read instructions on how to mix the Blue Star, but not all of the instructions. Detective Herford did not think the Sheriff's Office had ever used Blue Star. The Beauregard Parish Sheriff's Department did not have the photography equipment to take pictures showing the illumination.

      The warrant also included room 7 at Dee's Motel.

      The record does not indicate that the smudges were ever collected or tested even though Deputy Franks thought it was DNA evidence.

      See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: AMY, Judge.

text:
    STATE of Louisiana v. David Billy PARKER, Jr.
    17-726
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2018
    John F. DeRosier, District Attorney, Karen C. McLellan, Jacob L. Johnson, Cynthia Killingsworth, Assistant District Attorneys, Post Office Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Mary Constance Hanes, Post Office Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: David Billy Parker, Jr.
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

The State charged the defendant with one count of manufacture and possession of a bomb, and the jury ultimately found the defendant guilty of attempted manufacture and possession of a bomb. The trial court sentenced the defendant to seven years at hard labor, with credit for time served, and a fine of $5,000.00. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

Factual and Procedural Background

After being dispatched to a residence to serve a warrant, Deputy Chris Miller, of the Calcasieu Parish Sheriff's Office, submitted, in pertinent part, the following narrative in an affidavit:

During the execution of a felony warrant ... [David Billy Parker, Jr.] was located in the attic. A search and seizure form was signed for the residence due to loose ammunition being seen while searching for the subject in the residence and the combination of the fact that the subject is a convicted felon. During the search of the residence, two pipe bombs were located in the attic w[h]ere the subject had been originally located.

Thereafter, by bill of information, the State charged the defendant, David Billy Parker, Jr., with one count of manufacture and possession of a bomb, a violation of La.R.S. 14:54.3. The defendant pled not guilty, and the matter proceeded to a jury trial.

At trial, Deputy Miller testified that, on September 28, 2014, he arrived at the defendant's residence to serve a warrant on the defendant. He stated that the defendant's wife told him that the defendant was not there but that she granted Deputy Miller permission to enter the residence to search for the defendant. Deputy Miller explained that he located the defendant in the attic; verbally commanded the defendant to come down from the attic; and, after the defendant complied with the command and the defendant's wife signed a search and seizure form, searched the attic. Deputy Miller testified that, when "[he] entered the attic, [he] noticed two PVC pipes that were capped on both ends that had wires coming out of the ends[,]" which "looked like electrical wire." He stated that, upon seeing the devices, he removed himself, the defendant, the defendant's wife, and two children from the residence. Deputy Miller explained that he subsequently blocked off the residence and called for assistance because "through [his] training, [he] recognized it to be an IED [improvised explosive device] or a possible IED." Deputy Miller stated that the defendant told him that he had assembled the devices.

The jury also heard testimony from State Trooper Sean LaFleur, who explained that he is a technician supervisor for the Louisiana State Police, Emergency Services Unit, and that the unit he supervises is a "full-time HAZMAT and explosive response unit," which serves as "the bomb squad for the State Police." Trooper LaFleur testified that he and Investigator Hopkins were the bomb technicians that responded to Deputy Miller's call for assistance at the defendant's residence. According to his testimony, upon initially seeing the devices in the attic, Trooper LaFleur observed: "Two PVC pipes. They were capped on both ends. And on one end of each device, there was bare wire coming out. And on one device, the bare wire coming out had a coding that was red in color, and on the other device, it was-I believe it was green in color."

Trooper LaFleur explained that the technique used to remove the devices from the residence is called a "hook and line kit[,]" which he described as a rope and pulley system that can be operated remotely for safety. He stated that during this process, one device came apart, specifically an endcap came off, and "then the pyrotechnic or firework charge that was inside the pipe actually came out from that one device." Trooper LaFleur noted that, on the charge, he could see part of a label and believed the charge to be a consumer firework based on the label remnant, as well as the size. He classified they pyrotechnic charge as a "low explosive." Trooper LaFleur testified that, after they removed the devices from the residence, they moved the devices with an extended pole to a sandbag area that had been set up to "disrupt them or render them safe." At that point, Trooper LaFleur stated that they deployed a PAN (Percussion Activated Non-Electronic) disruptor, specifically "a disintegrating projectile ... that is designed to ... break that pipe apart without it letting the pipe detonate on us, and that's what happened in this case."

Regarding the devices, Trooper LaFleur testified that they fit the criteria he looks for in identifying a "pipe bomb." In this regard, the following colloquy occurred:

Q. Okay. And what do you look for when you say the term "pipe bomb"? What do you look for when you're determining if that's what something is?
A. Container. We look at the type of container. And pipe bombs can generally either be PVC or metal pipe bombs. We look to see whether or not they are capped on both ends and potentially if there are any other things coming out, wire, fuse, things of that nature. Commonly, people will use hobby or cannon fuse. Other times, they will use wire. Sometimes they are capped on both ends, and everything is internal. So when we see a pipe and see it capped on both ends, we treat it as an actual IED or pipe bomb until we can prove otherwise.
Q. And did these devices fit those criteria?
A. That's correct.
Q. And how did they fit those criteria?
A. You had approximately a 10 to 12 inch long piece of PVC pipe capped on both ends, and you had bare wire coming out from one of the endcaps on each device.
Q. Going back to the one that came apart within the home, is it my understanding that there was a pyrotechnic charge within that pipe?
A. Yes.
Q. And electric wire was connected to that?
A. There was.

Trooper LaFleur further explained that detonating these devices "would be pretty simple" by using a flame or by short-circuiting a battery and heating the wire. He also noted that the devices could possibly detonate upon being dropped. Trooper LaFleur stated that, if these devices were intact and detonated, they would undergo fragmentation, which he described as "this thing coming apart in small pieces ... up to about 3300 feet per second[.]" He testified that fragmentation can result in potentially serious injury and, in some cases, death. Trooper LaFleur concluded that he searched for the defendant's name in the explosive licensing database and found neither an active nor an inactive license with the defendant's name.

The jury returned the responsive verdict of attempted manufacture and possession of a bomb, a violation of La.R.S. 14:27 and 14:54.3. Thereafter, the defendant filed a motion for new trial, which the trial court denied. The trial court sentenced the defendant to seven years at hard labor, with credit for time served since September 2014, and a fine of $5,000.00. Subsequently, the defendant filed a Motion for Reconsideration of Sentence and, at a hearing on the motion, argued that his sentence should be reduced to five years. The trial court denied the motion. The defendant now appeals, asserting the following assignments of error:

1. There is insufficient evidence to support David Billy Parker, Jr.'s conviction for attempted manufacture and possession of a bomb; the State failed to prove that the devices found in Mr. Parker's attic met the statutory definition of "bomb"; and
2. Mr. Parker's seven-year sentence and maximum fine of $5000 are excessive under the circumstances.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920(B), all appeals are reviewed for errors patent on the face of the record. An error patent is one "that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." Id.

After sentencing the defendant, the trial court stated: "Mr. Parker has two years to file what's called 'post-conviction relief[.]' " Louisiana Code of Criminal Procedure Article 930.8 provides that the defendant has two years after the conviction and sentence become final to file an application for post-conviction relief. Accordingly, we find that the trial court's advisement regarding the time limitation for filing an application for post-conviction relief was insufficient. See State v. Conway , 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d 1132. We instruct the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. See id.

Sufficiency of the evidence

In his first assignment of error, the defendant asserts that there is insufficient evidence to support his conviction for attempted manufacture and possession of a bomb and that the State failed to prove that the devices found in his attic meet the statutory definition of "bomb" found in La.R.S. 14:54.3(B). In discussing the issue of sufficiency of the evidence, this court has explained:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Duncan , 420 So.2d 1105 (La.1982). It is the role of the fact finder to weigh the respective credibilities of the witnesses. The appellate court should not second guess the credibility determinations of the trier of fact beyond the application of the sufficiency evaluations allowed under the Jackson standard of review. See State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983).

State v. Tassin , 472 So.2d 340, 342 (La.App. 3 Cir.), writ denied , 477 So.2d 97 (La.1985). Thus, in order for an appellate court to affirm a conviction when the issue of sufficiency of the evidence has been raised, "the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt." State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371. With this standard of review in mind, we turn to the elements of the crime at issue herein.

The defendant was convicted of attempted manufacture and possession of a bomb. Louisiana Revised Statutes 14:54.3 is titled "Manufacture and possession of a bomb" and provides, in pertinent part:

A. It shall be unlawful for any person without proper license as required by R.S. 40:1472.1 et seq., knowingly and intentionally to manufacture, possess, or have under his control any bomb.
....
D. This Section shall not apply to fireworks possessed within the meaning and contemplation of R.S. 51:650 et seq.

An "attempt" to commit a crime is defined in La.R.S. 14:27(A), which provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

However, "[m]ere preparation to commit a crime shall not be sufficient to constitute an attempt[.]" La.R.S. 14:27(B)(1).

In briefing to this court, the defendant alleges that "the most significant fact is that the devices had no detonator or 'initiator,' so they did not meet the statutory definition of a bomb." He contends that the evidence is insufficient because "[a]lthough [Trooper LaFleur] explained what might initiate the device, i.e. , a flame or battery, there was no evidence of a battery or any explanation how one might employ a flame to explode the devices." However, we note that, while La.R.S. 14:54.3(B) defines a bomb "as an explosive compound or mixture with a detonator or initiator, or both," it further states that: "The term 'bomb', as used herein, shall also include any of the materials listed in Subsection C present in an unassembled state but which could, when assembled, be ignited in the same manner as described in Subsection C, when possessed with intent to manufacture or assemble a bomb." In pertinent part, La.R.S. 14:54.3(C) provides:

As used herein the term "explosive" means ... any ... device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.

With this in mind, we consider the testimony adduced at trial about the devices.

In this regard, and as discussed above, Trooper LaFleur testified that the devices found in the defendant's attic fit the criteria that he looks for when determining if something constitutes a "pipe bomb" because the devices were composed of PVC pipe capped on both ends and containing electrical wire connected to a pyrotechnic charge, which he classified as a low explosive. Further, the following information was elicited during Trooper LaFleur's testimony:

Q. Given that these devices had that electrical wiring coming out of them, how difficult would it be to have this item detonate?
A. It would be pretty simple. In fact, actually, low explosives don't require typical detonator or blasting cap or initiator to initiate them. To initiate these things, it just needs flame. Or in some cases, you can take this bare wire and hook a battery up to it with just a little bit, heat this wire up, and you can function this device.
So if I short-circuited a battery onto the end of this device and heat that wire up enough, that would be enough to initiate this device.
....
[A.] In this case, we're dealing with pipe bombs.
....
But when you take a low explosive and you containerize it such as putting it inside a pipe, whether it is PVC or metal, you end up with what's called a mechanical explosion. And what happens is there is nowhere for the gases to go that are burning, so what happens is it ends up over pressuring this device. And that's where you get that fragmentation and this thing coming apart violently. So that's what you get.
Pipe bombs are by definition a mechanical explosion because what you are doing is you're just confining those gases until they get [to] a point to where that container just can't hold it.
....
Q. And you said it would not detonate without some sort of initiator? Like a firework is not just going to detonate if you drop it on the ground, correct?
A. It potentially can because fireworks just like different types of explosives are sensitive to heat shock and friction.

Importantly, Trooper LaFleur testified that adding fire, a battery, or friction could initiate the subject materials and result in an explosion.

In his assertion that the State failed to prove that the devices in question constituted bombs, the defendant further notes that La.R.S. 14:54.3 does not apply to the possession of fireworks. He argues that "[t]he evidence shows that the devices in question were created simply as a modification of ordinary fireworks-not to enhance their capability to do damage." In support of his argument, the defendant also points out that "Trooper LaFleur confirmed that no nuts, bolts, nails, or anything of that nature was found inside the PVC pipe."

Regarding how the fireworks had been modified, Trooper LaFleur stated that the firework fuse was removed and replaced with a wire and that "[i]t would be pretty simple" to initiate the device with a flame or battery due to the presence of the wire. Trooper LaFleur also explained that the fireworks had been modified because "legal fireworks don't come in a container such as PVC with endcaps on it either." On this point, he explained: "The danger is the fact that the firework was in an enclosed container. And had that thing come apart as other pipe bombs do, then the hazard is the container itself, not the firework." While acknowledging that the devices did not contain "shrapnel," Trooper LaFleur explained:

[A.] Now, if these devices are intact and they detonate, these things come apart. End caps will come off, and these devices will fragment. You'll hear the term shrapnel or fragmentation from time to time, two completely different things but things that sometimes are mischaracterized.
Fragmentation is this thing coming apart in small pieces. And as fast as that material is, up to about 3300 feet per second, this pipe or fragments of this pipe can travel at that same velocity.
Shrapnel is a different term, something we didn't see here, but you will hear the term, and those are things added to it. Some devices we deal with have nuts and bolts, ball bearings, BBs, things of that nature, which are intended to cause harm and things like that.
But this thing, if it detonates even without those things, it's going to fragment. You can kind of see it a little bit here (indicating). It will come off in very small pieces ...
....
A. There would be expectation there would be some sort of injury, potentially serious injury. And in some cases, some of these devices could involve or include death as well.

Notably, Trooper LaFleur explained that the modifications to the fireworks, namely the wires and the capped containers, meant that the devices were simple to initiate and that initiation would result in fragmentation, which can cause serious injury or death. Considering the foregoing testimony, and viewing the evidence in the light most favorable to the prosecution under the Jackson standard of review, we maintain the defendant's conviction.

Significantly, and notwithstanding the defendant's argument regarding whether the devices included a detonator or initiator, the defendant was convicted of attempted manufacture and possession of a bomb. Louisiana Revised Statutes 14:27 states that an "attempt" occurs when "[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object[.]" Specific criminal intent is defined as "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). In discussing criminal attempt, the supreme court has stated:

Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. [ State v. ] Ordodi , [06-0207 (La. 11/29/06), 946 So.2d 654,] 661 ; State v. Weary , 03-3067 (La. 4/24/06), 931 So.2d 297, 310, cert. denied , 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006). The determination of whether specific intent exists is a fact question for the jury. Ordodi, supra, at 661 ; State v. Legrand , 02-1462 (La. 12/3/03), 864 So.2d 89, 96, cert. denied , 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005).
....
The State must also prove defendant committed or omitted " 'an act for the purpose of and tending directly toward the accomplishing of his object,' sometimes referred to as an 'overt act.' "
Ordodi, supra, at 661. In Ordodi , we explained that the attempt statute makes a distinction between actions which are "mere preparation" and are not sufficient to constitute attempt, and acts which are committed for the purpose of and tending directly toward the accomplishing of the criminal object. Id. at 662. However, we noted that the distinction is not clearly defined and that actions which are mere preparation and those which constitute an overt act "exist on a continuum." Id. Where a defendant's actions fall on the continuum is a fact question for the trier of fact and is determined by evaluating the "the totality of the facts and circumstances presented by each case." Id. (Citing State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442, 444 ; State v. Williams , 490 So.2d 255, 261 (La.1986), cert. denied , 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987) ). The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted, and it is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt. Smith, supra, at 445.

State v. Jones , 10-0762, pp. 6-7 (La. 9/7/11), 74 So.3d 197, 201-02.

As discussed above, Deputy Miller testified that he discovered the devices in the attic where the defendant had been located and that the defendant told him that he had assembled the devices. Additionally, Trooper LaFleur explained that consumer fireworks had been modified in creating these devices:

[Q]. Have you ever come across any type of residential firework that comes in a plastic-or in a PVC pipe with caps on both ends?
A. No.
....
Q. Have you ever come across a firework that comes with electric wiring from the store?
A. No.
....
Q. So this would have been something that-after market done, correct, by an individual?
A. Yes. You can't buy it like that.
Q. You can't buy it that way? Was this altered in any way from when it was a firework bought at the store?
A. Yes.
Q. How is that?
A. The fuse was removed.
Q. What was in its place?
A. In this picture, nothing. But previously and consistent with the other IED, there was bare wire or there was wire running into it.

Trooper LaFleur explained that these modifications, namely the replacement of the firework fuse with wire and the placing of the firework into capped PVC pipe, meant that "[i]t would be pretty simple" to detonate the devices and that detonation would result in fragmentation. Trooper LaFleur stated that he "did a name search under our explosive licensing database" for the defendant's name and that the search results showed that there was "[n]o active or inactive license with [the defendant's] name." La.R.S. 14:54.3(A) ; La.R.S. 40:1472.1 et seq. See also Tassin , 472 So.2d 340.

Considering the foregoing, and viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found that the State proved beyond a reasonable doubt that the defendant had specific intent and committed an overt act in furtherance of the crime of manufacture and possession of a bomb. Thus, we affirm the defendant's conviction for attempted manufacture and possession of a bomb.

Excessive sentence and excessive fine

In his second assignment of error, the defendant contends that his "seven-year sentence and maximum fine of $5000 are excessive under the circumstances." In particular, the defendant asserts that his sentence is excessive in light of Tassin , 472 So.2d 340 (wherein the defendant, who pled guilty to being a habitual offender, third offense, was convicted of manufacture and possession of a bomb and sentenced to ten years at hard labor).

The penalty for "Manufacture and possession of a bomb" is found in La.R.S. 14:54.3(E), which provides: "Whoever violates this Section shall be fined not more than ten thousand dollars or be imprisoned at hard labor for not more than twenty years, or both." However, the defendant was convicted of attempted manufacture and possession of a bomb, and La.R.S. 14:27(D)(3) provides that the penalty for an attempt "shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both." Therefore, the defendant was subject to a maximum term of imprisonment of ten years and a maximum fine of five thousand dollars. As discussed above, the defendant received a sentence of seven years at hard labor and the maximum fine.

Regarding appellate review of an excessive sentence claim, a panel of this court stated:

Both the United States and Louisiana constitutions guarantee that no person shall be subject to cruel and unusual punishment. U.S. Const. amend. VIII ; La. Const. art. I, § 20. A sentence is excessive when a reviewing court finds that the penalty is "so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering." State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331. The trial court has broad sentencing discretion, and a sentence within statutory limits will not be set aside absent a manifest abuse of that discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-165 (La.6/30/00), 765 So.2d 1067. However, sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979).
In reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La.6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed."
State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Soileau , 13-772, pp. 3-4 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1011, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

At the sentencing hearing, the trial court and counsel for the State discussed that the defendant was eligible to be charged as a habitual offender, which could have increased his penalty. Counsel for the State also reminded the trial court that the defendant had pending charges, specifically two counts of carnal knowledge of a juvenile, as well as a criminal history, which included two felony convictions. In light of the foregoing, we find no manifest abuse of the trial court's broad sentencing discretion. Accordingly, we affirm the defendant's sentence.

DECREE

For the foregoing reasons, the conviction of the defendant, David Billy Parker, Jr., for attempted manufacture and possession of a bomb is affirmed. Additionally, the defendant's sentence of imprisonment of seven years and the $5,000.00 fine are affirmed. The trial court is instructed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

AFFIRMED.

      Trooper LaFleur stated that low explosives are those that "generally travel at a detonation velocity less than 3300 feet per second." He also testified that "[l]ow explosives are things such as propellant, such as black powder, which can be used in hunting and other various things, different reenactments; smokeless powder, which goes in a handgun or a rifle; ammunition; or flash powder, which goes into fireworks."

      Trooper LaFleur explained the process of disruption as follows: "[W]hen we disrupt it, we take it apart and we open it up so we can gain access to what's inside without it-try to do it without it detonating." He noted that disruption is safer than detonation.

      In Tassin , 472 So.2d at 342, the opinion reports only that "the defendant ... was sentenced to serve ten years at hard labor in the Department of Corrections." It does not indicate whether the defendant received a fine.


author: STONE, J.

text:
    STATE of Louisiana DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    In the Matter of Brian M. Litton
    No. 51,757-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF MOTOR VEHICLES, By: Stephen A. Quidd, Counsel for Appellant
    WHITLEY R. GRAVES, Counsel for Appellee, Brian M. Litton
    Before BROWN, GARRETT, and STONE, JJ.
   STONE, J.

The State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles, seeks review of the trial court's judgment reinstating Brian M. Litton's commercial driver's license. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 13, 2015, Brian M. Litton ("Litton") was arrested by Bossier Parish Sheriff's Deputy Tim Wooten ("Deputy Wooten") for operating a vehicle while intoxicated, first offense, in violation of La. R.S. 14:98. Litton was transported to the Bossier Parish Maximum Security Facility and presented with the standard arrestee's rights form related to chemical tests for intoxication. In accordance with La. R.S. 32:661(C), the rights form is used to notify the arrestee of his or her constitutional right to refuse chemical testing and of the consequences of failing to submit to chemical testing, including but not limited to suspension of driving privileges. Litton subsequently signed the rights form.

Thereafter, Deputy Wooten requested Litton submit to a chemical test using a breathalyzer machine, and Litton refused to submit to the test. At the time, Litton held a Class "A" commercial driver's license, which permitted him to operate all commercial and noncommercial vehicles within all classes. As a consequence of his refusal to submit to the chemical test, the State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles ("the Department"), disqualified Litton's commercial driver's license for one year. See La. R.S. 32:667(B)(2)(a) and La. R.S. 32:414.2(A)(4)(d).

Pursuant to La. R.S. 32:667(A)(2), Litton requested an administrative hearing to challenge the suspension of his driving privileges. On December 30, 2015, the administrative law judge ("ALJ") found reasonable grounds existed for Deputy Wooten to suspect Litton was operating a vehicle while intoxicated. See La. R.S. 32:661(A)(2)(a). Resultantly, he affirmed the suspension of Litton's driving privileges for refusing to submit to the chemical test.

On January 25, 2017, Litton filed a petition for judicial review of the ALJ's decision. See La. R.S. 32:668(C)(1). Following a trial de novo , the trial court rendered judgment reinstating Litton's commercial driver's license because Deputy Wooten was unable to remember if he read the entire rights form to Litton, a requirement under La. R.S. 32:661(C). The trial court relied on Litton's testimony that he was not advised of the provisions in the rights form related to the disqualification of his commercial driver's license. A final judgment was signed on February 21, 2017. T he Department now appeals.

DISCUSSION

The Department argues the trial court erred in reinstating Litton's commercial driver's license. According to the Department, after Litton refused to submit to the chemical test, La. R.S. 32:414.2 required the disqualification of his commercial driver's license for a minimum of one year.

In order to promote safety on Louisiana highways, the Louisiana Legislature enacted the implied consent law, La. R.S. 32:661 et seq. , which addresses the testing of persons suspected of operating motor vehicles while under the influence of alcoholic beverages or controlled dangerous substances. State v. Alcazar , 2000-0536 (La. 05/15/01), 784 So.2d 1276, 1279.

La. R.S. 32:661(A)(1) provides, in pertinent part:

Any person ... who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance ... in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance[.]

La. R.S. 32:661(A)(2)(a) sets forth the following parameters for testing:

The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.

See also Butler v. Dep't of Pub. Safety & Corr. , 609 So.2d 790, 792 (La. 1992) ("all licensed drivers on state highways ... have impliedly consented to any number of tests to determine intoxication").

La. R.S. 32:661(C) provides the following procedure for informing an arrested person of his rights concerning chemical testing, with emphasis added:

(1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona .
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

"In each instance that a person submits or refuses to submit to a chemical test, after being advised of the consequences of such refusal or submission as provided for in R.S. 32:661(C), the officer shall submit a report in a form approved by the secretary." La. R.S. 32:666(B). In the report, the officer shall certify, among other things, that "he had followed the procedure in informing such person of his rights under R.S. 32:661(C), and that such person had submitted to the test or refused to submit to the test upon the request of the officer." Id.; see Stoltz v. Dep't of Pub. Safety & Corr. , 2013-1968 (La. App. 1 Cir. 06/25/14), 147 So.3d 1131, 1134-35 ; Schexnaydre v. State, Dep't of Pub. Safety & Corr , 11-1420 (La. App. 1 Cir. 11/02/12), 111 So.3d 345, 349.

When a person is arrested for operating a vehicle while intoxicated and refuses to submit to an approved chemical test for the first time, La. R.S. 32:667 provides for the seizure of the person's driver's license and the suspension of his driving privileges for one year. See Stoltz, supra ; Schexnaydre, supra . Moreover, La. R.S. 32:414.2(A)(4) provides for the disqualification of a person's commercial driving privileges for a minimum of one year upon "a first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder."

On review of the administrative suspension of a driver's license pursuant to the implied consent law, the district court is required to conduct a trial de novo to determine the propriety of the suspension. Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Stoltz, supra at 1133 ; Schexnaydre, supra at 348 ; see La. R.S. 32:667(A) & (B).

Our review reveals the trial court did not err in reinstating Litton's commercial driver's license because the record does not indicate Deputy Wooten sufficiently complied with La. R.S. 32:661(C). The statute clearly mandates, by the use of the word shall , that when a law enforcement officer requests that a person submit to a chemical test, he shall first read to the person a standardized form approved by the Department, which informs that person of his rights. Stoltz, supra ; Schexnaydre, supra ; See La. R.S. 32:661(C)(1). As such, despite the Department's contrary argument, Litton voluntarily signing the rights form is not enough. At trial, Deputy Wooten testified he presented Litton with the rights form in accordance with La. R.S. 32:661(C) but could not remember if he read Litton the entire form; Litton testified he was not read the provisions of the rights form related to the disqualification of his commercial driver's license. Accordingly, the trial court's judgment reinstating Litton's commercial driver's license will not be disturbed on appeal.

CONCLUSION

For the foregoing reasons, the trial court's judgment reinstating Litton's commercial driver's license is affirmed. In accordance with La. R.S. 13:5112, costs of this appeal are assessed to the Department in the amount of $729.50.

AFFIRMED.

      On December 30, 2015, Litton was tried on the charge of operating a vehicle while intoxicated, first offense, in violation of La. R.S. 14:98. He was found not guilty.

      The Department argues the trial court erred in signing a judgment that was not circulated pursuant to Louisiana District Court Rule 9.5 ("Rule 9.5"). Rule 9.5 provides, in pertinent part, that a judgment submitted to a judge after its rendition must be circulated by the responsible attorney to counsel for all parties at least five working days before its presentation to the judge. This allows other parties the opportunity to comment upon the judgment's content. We find the trial court erred in signing a judgment without certification that Rule 9.5 had been followed. The instant record contains no evidence that Litton circulated a proposed judgment prior to submission to the trial court. Nonetheless, we consider the error harmless because the judgment conformed to the trial court's oral ruling and the relevant substantive law. See In re Interdiction of DeMarco , 2009-1791 (La. App. 1 Cir. 04/07/10), 38 So.3d 417, 424.