author: Witness the Honorable Justices of the

text:
    Marlon EAGLIN v. EUNICE POLICE DEPARTMENT, et al.
    NO. 2017-C-1875
    Supreme Court of Louisiana.
    March 9, 2018
    IN RE: Chief Randy Fontenot, in His Official Capacity as Chief of Police for the City of Eunice; City of Eunice;-Defendant(s)
    Granted. See Order Attached.
    On Writ of Certiorari and/or Review, Twenty-Seventh Judicial District Court, Parish of St. Landry, No. C-161766-A, Division A; Court of Appeal, Third Circuit, No. 17-127.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.
   Witness the Honorable Justices of the

Supreme Court of the State of Louisiana, on

this 9th day of March, in the year of our

Lord, Two Thousand-Eighteen.

_________________________

John Tarlton Olivier

Clerk of Court

/s/

Deputy Clerk of Court


source: Caselaw Access Project

license: Public Domain

text:
    Elisabeth WEBB v. Daniel Andrew WEBB
    NO. 2018-C-0320
    Supreme Court of Louisiana.
    April 27, 2018
    On Writ of Certiorari and/or Review Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 712-074, Division N; Court of Appeal, Fifth Circuit, No. 16-CA-567.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE of Louisiana v. Jeremy WILSON
    NO. 2017-K-0908
    Supreme Court of Louisiana.
    March 23, 2018
    On Writ of Certiorari and/or Review Twenty-Second Judicial District Court, Parish of Washington, No. 09 CR1105531, Division J; Court of Appeal, First Circuit, No. 2015 KA 1794.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE of Louisiana v. Issa L. LAMIZANA, Jr.
    NO. 2017-K-1490
    Supreme Court of Louisiana.
    June 15, 2018
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.
    Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 15th day of June, in the year of our Lord, Two Thousand-Eighteen.


text:
    STATE IN the INTEREST OF Nicho'las P. JONES v. Dannye' C. JONES, Sr. Nicol P. Miller
    No. 2018-CJ-1055
    Supreme Court of Louisiana.
    June 28, 2018
    Stay denied. Writ denied.


author: CRICHTON, J., recused.

text:
    STATE EX REL. Freddie WADE v. STATE of Louisiana
    NO. 2017-KH-0231
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.
   CRICHTON, J., recused.


text:
    Tasha Tolar CARRIERE, et al. and Daniel Bihm Marcantel, et al. v. UNION PACIFIC RAILROAD COMPANY
    NO. 2018-CC-0322
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    James Edward KNIGHT v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    NO. 2018-C-0089
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Dennis Jerome BARTIE
    NO. 2018-KK-0640
    Supreme Court of Louisiana.
    July 9, 2018
    Denied.
    GUIDRY, J., would grant and docket.
    CLARK, J., would grant and docket.
    CRICHTON, J., would grant and docket.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Kenneth DENNINGER
    NO. 2018-KK-1026
    Supreme Court of Louisiana.
    July 5, 2018
    Stay denied. Writ denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Alan W. STOKES v. CITY OF ALEXANDRIA, et al.
    NO. 2018-CC-1075
    Supreme Court of Louisiana.
    July 2, 2018
    Stay lifted; writ denied.


text:
    Clark HAYS v. James Michael HAYS
    NO. 2018-CC-1069
    Supreme Court of Louisiana.
    June 29, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Allen JOHNSON
    NO. 2018-KH-1114
    Supreme Court of Louisiana.
    July 13, 2018
    Relator represents that the district court has failed to act timely on a motion for production of documents filed on or about November 15, 2016. If relator's representation is correct, the district court is ordered to consider and act on the motion. If relator's representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Nicholas MILLER v. Teal DICHARRY
    NO. 2018-CJ-1096
    Supreme Court of Louisiana.
    July 12, 2018
    Stay denied; writ denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Brice HUGHES
    NO. 2018-KK-1002
    Supreme Court of Louisiana.
    July 12, 2018
    Stay lifted; writ denied.
    GUIDRY, J., would grant and reverse.
    CLARK, J., would grant for the reasons given in Judge Lobrano's well-reasoned dissent below.
   HUGHES, J., would grant.


author: JOHNSON, C.J., would grant rehearing.

text:
    STATE of Louisiana v. Caresses PERIQUE
    NO. 2018-KK-0981
    Supreme Court of Louisiana.
    July 20, 2018
    Rehearing denied.
   JOHNSON, C.J., would grant rehearing.

GENOVESE, J., would grant the rehearing, citing Arizona v. Gant, 556 U.S. 332 (2009).


text:
    STATE of Louisiana v. Wilton J. SMITH, Jr.
    NO. 2018-KK-0928
    Supreme Court of Louisiana.
    July 19, 2018
    Writ Granted. The ruling of the trial court granting the motion to sever is reversed. See, La. C.Cr.P. art. 493.2 ; See also, La. C.E. art. 412.2.


text:
    STATE of Louisiana IN the INTEREST OF E.M.
    NO. 2018-CK-1097
    Supreme Court of Louisiana.
    July 16, 2018
    Denied.
   HUGHES, J., would grant.


author: HUGHES, J., would grant the writ.

text:
    STATE of Louisiana IN the INTEREST OF G.B. & G.B.
    NO. 2018-CJ-0989
    Supreme Court of Louisiana.
    July 23, 2018
    Denied.
   HUGHES, J., would grant the writ.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Ronald EVANS, Jr. v. Krissy Singleton EVANS
    NO. 2017-CA-0627
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    HILLIARD C. FAZANDE, 2320 Valentine Court, New Orleans, Louisiana 70114, and, ERNEST L. JONES, 4211 S. Claiborne Avenue, New Orleans, Louisiana 70125, LAKEISHA N. JEFFERSON, JEFFERSON LAW FIRM, APLC, 4238 Poche Court West, New Orleans, Louisiana 70129, and, N. KIM NGUYEN, 2439 Manhattan Blvd., Suite 302, Harvey, Louisiana 70058, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale N. Atkins )
   JAMES F. MCKAY III, CHIEF JUDGE

In this child custody case, defendant, Krissy Singleton Evans (currently "Mrs. Brumfield"), appeals the trial court's April 28, 2017 judgment, rendered in connection with her motion for modification of custody and motion for contempt against plaintiff, Ronald Evans, Jr. ("Mr. Evans"). For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Evans and Mrs. Brumfield were married in 2005, and divorced in 2012. They have a twelve-year-old son. Mr. Evans lives in Houston, Texas; Mrs. Brumfield lives in New Orleans, Louisiana.

Pursuant to an emergency petition for custody, Mr. Evans was given interim custody of the child on July 29, 2013. On October 14, 2013, the parties entered into a written stipulation, agreeing to joint custody with Mr. Evans designated as the domiciliary parent. Mrs. Brumfield was given liberal visitation. The stipulated decree further provided that Mrs. Brumfield's then boyfriend, now husband, Jarrod Brumfield ("Mr. Brumfield"), shall not be alone with the child without adult supervision and shall not inflict corporal punishment on the child. This stipulation was made in connection with Mr. Brumfield's admission that he spanked the child on two or three occasions. In accordance with the parties' stipulations, the court signed an Interim Judgment on October 24, 2013.

On April 9, 2014, Mrs. Brumfield sought to modify custody. After a hearing on April 15, 2014, the trial court amended aspects of visitation but maintained domiciliary status with Mr. Evans.

On December 23, 2014, Mrs. Brumfield filed a motion to modify custody seeking domiciliary status, a motion to appoint an independent evaluator, and a motion for contempt against Mr. Evans for failing to abide by the visitation schedule. The matters were set for April 9, 2015. In connection with that proceeding, the parties entered into a written stipulation to amend the visitation schedule. No ruling was made at that time in connection with Mrs. Brumfield's motion to modify custody.

On June 4, 2015, the parties appeared before the court on various motions. The trial court rendered multiple judgments on June 23, 2015, appointing Diedre D. Hayes ("Ms. Hayes") as an independent evaluator, amending the visitation schedule, and continuing all other motions filed by Mrs. Brumfield.

On August 25, 2015, Mrs. Brumfield filed a rule for contempt against Mr. Evans for failure to participate with the court appointed evaluator. Judgment was rendered on September 28, 2015, finding Mr. Evans in contempt of court for failing to comply with the court's orders, in that he failed to schedule his sessions with Ms. Hayes.

On March 8, 2016, Mrs. Brumfield filed an emergency motion for a status conference and expedited rule for contempt. Mrs. Brumfield alleged therein that Mr. Evans failed to complete the court ordered evaluation. Additionally, she alleged that Mr. Evans continued to interfere with the court ordered visitation, and that such interference was grounds for modification of the custody decree pursuant to La. R.S. 9:346(H). The matter was set for May 5, 2016, but was continued.

On May 12, 2016, Mrs. Brumfield filed another rule for contempt against Mr. Evans for his failure to abide by the visitation schedule. The parties appeared before the court on July 7, 2016. Mrs. Brumfield testified that she had not been allowed to visit with her son since February 7, 2016. She indicated that Mr. Evans informed her that he was not allowing visitation due to an ongoing investigation being conducted by the Houston Police Department and Child Services in Texas. She was told by the authorities that her son alleged that Mr. Brumfield attempted to sexually assault him during the visit to Houston on the weekend of February 5 through 7, 2016. Mrs. Brumfield acknowledged that the Houston Police Department investigation was still pending, but introduced a document to show that Child Services completed their investigation and ruled out any abuse. Mrs. Brumfield also testified that Mr. Brumfield was not in Houston during that weekend. Mr. Brumfield testified that he was in New Orleans on the weekend in question.

In connection with the July 7, 2016 hearing, a judgment was rendered August 8, 2016, finding Mr. Evans in contempt of court for failure to comply with the court ordered visitation. Mr. Evans was ordered to post a $1,500.00 bond to ensure his compliance with the orders of the court. He was also ordered to pay Mrs. Brumfield's attorney's fees and costs incurred in connection with a failed attempt to visit the child in Houston. Mrs. Brumfield's request for an immediate modification of custody was denied.

On July 26, 2016, Mrs. Brumfield filed an emergency request for modification of custody and a rule for contempt against Mr. Evans for failure to abide by the court ordered visitation schedule. The parties appeared before the court on October 19, 2016. Judgment was rendered November 9, 2016, denying Mrs. Brumfield's request for immediate modification of custody. Trial on the modification of custody was continued pending the completion of Ms. Hayes' report. Mr. Evans was found in contempt of court and ordered to post a $1,500.00 bond to ensure his compliance with the visitation orders. Mr. Evans was ordered to pay attorney's fees and costs to Mrs. Brumfield. Mr. Evans was also ordered to purge himself of the prior contempt adjudications by paying the amounts ordered in the August 8, 2016 judgment.

On December 2, 2016, Mrs. Brumfield filed another rule for contempt, alleging that Mr. Evans failed to pay attorney's fees and costs, and failed to post bond as ordered in the August 8, 2016, and November 9, 2016 contempt judgments. On December 19, 2016, the trial court and the parties received Ms. Hayes' evaluation report.

The motion to modify custody and the motion for contempt came for trial on March 13, 2017. The court heard testimony from Mr. Evans, Mrs. Brumfield, Mr. Brumfield, Emika Singleton (Mrs. Brumfield's sister-in-law), and Connie Singleton Johnson (Mrs. Brumfield's sister). Notably, Ms. Hayes was not called to testify, and her custody evaluation report was not introduced into evidence.

Following submission of the case for post-trial briefing, the trial court rendered judgment on April 28, 2017, awarding joint custody to the parties, with Mr. Evans designated as the domiciliary parent. Essentially, the judgment denied Mrs. Brumfield's motion to modify custody. The judgment further granted Mrs. Brumfield's rule for contempt, sentencing Mr. Evans to incarceration in Orleans Parish Prison for five days, with a suspension of the sentence. Attorney's fees and costs were not awarded to Mrs. Brumfield. Mrs. Brumfield's timely appeal of the April 28, 2017 judgment followed.

On appeal, Mrs. Brumfield asserts that the trial court erred in: 1) relying on the report of the court appointed evaluator that was not introduced into evidence; and 2) failing to award attorney's fees and costs pursuant to La. R.S. 9:346 and La. R.S. 13:4611, after finding Mr. Evans in contempt of court.

LAW AND ANALYSIS

In Bonnette v. Bonnette , 2015-0239, pp. 12-13 (La. App. 4 Cir. 2/17/16), 185 So.3d 321, 329, this Court explained the standard of review in child custody cases as follows:

A district court's determination in modifying custody "is entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion." Schmidt v. Schmidt , 2008-0263, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 197, 203. "An appellate court may not set aside a trial court's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong.' " Id. ; see also, Mimms v. Brown , 2002-1681, p. 11 (La. App. 4 Cir. 9/3/03), 856 So.2d 36, 43 ; AEB v. JBE , 99-2668 (La. 11/30/99), 752 So.2d 756, 761. However, when an "error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo ." Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731, 735. If "the legal error does not affect all the [fact-finder's] findings, the appellate court should confine its de novo review to only those findings that have been interdicted by the error." Banks v. Children's Hosp. , 2013-1481, p. 13 (La. App. 4 Cir. 12/17/14), 156 So.3d 1263, 1272, citing Picou v. Ferrara , 483 So.2d 915, 918 (La.1986) ; Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co. , 2005-1139, p. 3 (La. 11/29/06), 946 So.2d 133, 135-36.

Assignment of Error No. 1. The trial court erred in relying on the evaluator's report that was not introduced into evidence.

It is undisputed that Ms. Hayes was not called to testify, and her report was not formally introduced into evidence. However, it is evident from the record that the trial court considered the report in rendering her judgment. In doing so, we find that the trial court erred.

"Generally, a report prepared by an expert is not admissible because it is hearsay." Brown v. Chategnier , 2016-0373, p. 4 (La. App. Cir. 12/14/16), 208 So.3d 410, 413-14, (citing Baker v. Harrah's , 2015-0229, p. 10 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 388 ). Furthermore, we specifically held in Brown , that "[t]he opinion of an expert appointed by the court is not exempt from this rule." Id. at p. 4, 208 So.3d at 414.

In Brown , as in the present case, the court appointed expert was not called to testify and his report was not introduced into evidence. Nevertheless, the trial court made clear at trial that the reports were being admitted as evidence. Because Ms. Brown's counsel did not object to the introduction of the report, we held that she waived her right to argue on appeal that the evidence should not have been considered. Id.

By contrast, it appears from the transcript in the present case that counsel for Mrs. Brumfield made multiple hearsay objections in connection with the evaluator's report. Each time, the court sustained her objection. Nevertheless, the trial court considered the report in making her ruling on custody.

In Mimms v. Brown , 2002-1681, (La. App. 4 Cir. 9/3/03), 856 So.2d 36, Mr. Mimms argued that the trial court erred in not admitting the court appointed evaluator's report into evidence in lieu of her live testimony. At trial, Ms. Brown objected to the admission of the report as inadmissible hearsay, and the trial court did not allow the report into evidence. We found that the report was properly disallowed by the trial court, stating that even though the evaluator was appointed by the court, La. R.S. 9:331 entitled Ms. Brown to cross-examine the expert in court. Id. at p. 14, 856 So.2d at 44.

The law is clear that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc. , 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. "A trial court cannot render a judgment or ruling that is not based upon pleadings and supporting evidence properly filed in the record, and an appellate court cannot consider pleadings or documents not filed in the trial court." Nuccio v. Robert, 99-1327 pp. 4-5 (La. App. 5 Cir. 4/25/00), 761 So.2d 84, 86-87 (citing Ansalve v. State Farm Mut. Auto. Ins. Co., 95-0211 (La. App. 4 Cir. 2/15/96), 669 So.2d 1328 ).

Here, the record reflects that Mrs. Brumfield's counsel timely objected to the report as hearsay and objected to her client being questioned regarding the report because a foundation had not been laid. She again made a hearsay objection when Mr. Evans was questioned about the findings contained in the report. Each time, the trial court sustained the objections. Mr. Evans' counsel never introduced the report. Thus, based on record before us, we find that the trial judge erred as a matter of law in considering evidence not properly introduced.

Having found legal error in the trial court's consideration of evidence not in the record, we must conduct a de novo review of the entire record on appeal. As the Supreme Court stated:

[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo .

Evans , 97-0541, pp. 6-7, 708 So.2d at 735 (citations omitted).

Burden of proof in modifying custody:

In Richardson v. Richardson, 2007-0430, pp. 18-19 (La. App. 4 Cir. 12/28/07), 974 So.2d 761, 774, this Court explained the burden of proof to modify child custody as follows:

In Evans v. Lungrin , 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, the Louisiana Supreme Court discussed the burden of proof that a party seeking a change in child custody must meet. The general rule is that "the paramount consideration in any determination of child custody is the best interest of the child." Id. at p. 12, 708 So.2d at 738. See also La. C.C. art. 131. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. See Bagents v. Bagents , 419 So.2d 460 (La.1982). An additional jurisprudential burden is imposed when a change in a considered 15 custody decree is requested. In Evans , the Supreme Court described the burden of proof in that situation. The Supreme Court stated:
When a trial court has made a considered decree of permanent custody, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is "so deleterious to the child as to justify a modification of the custody decree," or of proving by "clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child."
97-0541 at p. 13, 708 So.2d at 738 (citation omitted and emphasis in original). See also Fernandez v. Pizzalato , 04-1676, pp. 4-5 (La. App. 4 Cir. 4/27/05), 902 So.2d 1112, 1116-1117.
Additionally in Evans , the Supreme Court stated that when the original custody decree is a stipulated judgment, the heavy burden of proof required for a change in a considered decree is not applicable. When the custody decree sought to be modified is a stipulated decree, the party seeking to modify the decree must prove "(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child." Evans, supra at p. 13, 708 So.2d at 738 ; Fernandez, supra at p. 5, 902 So.2d at 1116-1117.

In the present case, the October 2013 interim custody decree was a consent judgment, i.e. , a stipulated decree. Thus, Mrs. Brumfield had the burden of proving by a preponderance of the evidence that: 1) there was a material change in circumstances since the prior custody decree; and 2) the proposed modification is in the best interest of the child.

Change in circumstances

La. R.S. 9:346 provides that a parent may be held in contempt for "failure to exercise or to allow child visitation, custody or time rights pursuant to the terms of a court-ordered schedule." La. R.S. 9:346(H) further provides that "[A] pattern of willful and intentional violation of this Section, without good cause, may be grounds for a modification of a custody or visitation decree."

Mrs. Brumfield submits that Mr. Evans' behavior, as evidenced by the numerous contempt orders rendered against him, is grounds for modification of custody pursuant to La. R.S. 9:346(H). She avers that since the rendition of the October 24, 2013 judgment, Mr. Evans has failed to abide by the visitation schedule and has demonstrated an unwillingness to facilitate and encourage a close relationship between Mrs. Brumfield and the child.

As set out in detail above, Mr. Evans has been found in contempt of court on multiple occasions for failing to abide by the visitation schedule. At the March 13, 2017 trial, Mrs. Brumfield testified, and produced a log, regarding the missed visitations and missed telephone calls with her son. She further explained that she was not allowed to visit with her son from February to October of 2016. However, Mrs. Brumfield did state that since the October 2016 hearing, Mr. Evans was basically in compliance with the court ordered visitation.

Mr. Evans testified that his refusal to allow Mrs. Brumfield's visitation was due to his concern for his son's safety in light of the child's allegations of abuse against Mr. Brumfield. He stated that he did not allow visitation between February and October of 2016 due to the ongoing abuse investigation by the Houston Police Department.

Mr. Evans stated that his son reported the attempted sexual abuse to him when he returned from visiting with his mother on Sunday, February 7, 2016. He stated that Mrs. Brumfield picked the boy up at school on Friday February 5, 2016, and brought him to the hotel in Houston where she was staying for the weekend. Mr. Evans stated that his son reported that the abuse occurred when Mr. Brumfield came to the hotel sometime after 9:00 p.m. on Friday night. In response, Mr. Evans brought his son to the Houston Police Department to be interviewed, and an investigation was initiated. Mr. Evans testified that the detective on the case advised him not to release his son to Mrs. Brumfield. He confirmed, however, that he had nothing in writing to verify this assertion. Charges were never filed in connection with the investigation. Mr. Evans testified that he believed his son's account of the incident.

Mrs. Brumfield testified that the February 2016 abuse allegation against her husband was unsubstantiated and that it was orchestrated by Mr. Evans to restrict her visitation. She confirmed, however, that the Houston Police Department and Texas Child Services interviewed her and Mr. Brumfield regarding the child's allegations.

Mr. Brumfield testified that he was not in Houston on the weekend of February 5, 2016. He presented documentation showing that he was in New Orleans during that weekend. He explained that he attended the Zulu ball on February 5, 2016, and stayed at the Sheraton Hotel in New Orleans that night. Erika Singleton, Mrs. Brumfield's sister-in-law, testified that she saw Mr. Brumfield in New Orleans late on Saturday night of February 6, 2016.

Regarding the accusations that Mr. Brumfield spanked the child in 2013, Mrs. Brumfield admitted that she was aware of the spankings, and that she left the room when they occurred. Mr. Brumfield admitted to spanking the child two or three times. Because of the spankings, the stipulated judgment rendered in October, 2013 provided that Mr. Brumfield was not to be left alone with the child. It appears that this stipulation has remained in place to this day.

Mr. Evans also testified that he obtained a temporary restraining order in Texas against Mr. Brumfield in November, 2014. He explained that at that time, his son reported that Mr. Brumfield "poked" him in his injured shoulder, which had been separated in a recent accident.

It is undisputed that Mr. Evans was repeatedly found in contempt for failing to abide by the court ordered visitation. However, we note that La. R.S. 9:346(H) provides that such actions "may " be grounds for modification. Here, considering the record evidence, and considering Mr. Evans' testimony regarding his concern for his son's welfare in connection with the child's allegations against Mr. Brumfield, we cannot say that Mr. Evans' refusal to allow visitation, on every occasion, was a deliberate attempt to defy the orders of the court. We also note that Mrs. Brumfield testified that since the October 2016 hearing, Mr. Evans was generally in compliance with the visitation schedule.

After our de novo review of the record, we do not find that Mr. Evans' actions constituted a pattern of willful and intentional violation of the trial court's judgments sufficient to warrant modification of custody pursuant to La. R.S. 9:346(H). Aside from the allegations made pursuant to La. R.S. 9:346(H), Mrs. Brumfield has alleged no other material changes in circumstances that would support a modification of custody.

In sum, we find that Mrs. Brumfield failed to meet her burden of proving that a material change of circumstances has occurred since the October 2013 stipulated decree that would warrant a modification of custody. Accordingly, we find no error in the trial court's ruling on custody.

Assignment of Error No. 2. Failure to award attorney's fees and costs.

Mrs. Brumfield argues that the trial court erred in not awarding attorney's fees and costs after finding Mr. Evans in contempt of court. Mrs. Brumfield is correct in asserting that La. R.S. 9:346(B)(4) provides that the trial court shall award attorney's fees and costs when a parent is found in contempt for failure to allow visitation. However, in this case, the contempt motion before the trial court on March 13, 2017, was not based on a violation of visitation pursuant to La. R.S. 9:346. Rather, it was based on Mr. Evans' failure to timely pay fees and costs previously ordered by the court. As a result, Mr. Evans was found in contempt for the willful disobedience of a court order, which constitutes constructive contempt of court. La. C.C.P. art. 224(2).

"The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in [La.] R.S. 13:4611." La. C.C.P. art. 227. La. R.S. 13:4611, entitled "Punishment for Contempt of Court," provides, in pertinent part:

Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(a) For a direct contempt of court committed by an attorney at law, by a fine of not more than one hundred dollars, or by imprisonment for not more than twenty-four hours, or both; and, for any subsequent contempt of the same court by the same offender, by a fine of not more than two hundred dollars, or by imprisonment for not more than ten days, or both;
(b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or both.
(c) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and
(d)(i) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both. (emphasis added).

As stated above, in finding Mr. Evans in contempt of court for failure to timely pay the fines and fees previously ordered, he was sentenced to incarceration, with the sentence suspended. That punishment was in accordance with the provisions of La. R.S. 13:4611, and certainly within the trial court's discretion. Accordingly, we find no error in the trial court's ruling regarding Mr. Evans' contempt of court.

CONCLUSION

Based on our de novo review of the record, we find that Mrs. Brumfield did not meet her burden of proving a change in circumstances sufficient to warrant a modification of custody. Thus, we find that the trial court did not err in maintaining the joint custody arrangement set forth in the October 2013 stipulated decree. Moreover, for the reasons stated hereinabove, we find no error in the trial court's failure to award attorney's fees and costs in connection with Mrs. Brumfield's rule for contempt. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

      La. R.S. 9:331(B) provides in pertinent part that the court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

      Mr. Evans was sentenced to five days in Orleans Parish Prison, with the sentence suspended.


author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Reginald WILLIAMS
    NO. 2018-KA-0103
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, William R. Dieters, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
   JUDGE SANDRA CABRINA JENKINS

Defendant's appeal arises from a resentencing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Based on applicable law and jurisprudence, we find that the trial court imposed a legal sentence of life imprisonment with the possibility of parole. Accordingly, defendant's sentence is affirmed.

STATEMENT OF CASE

Reginald Williams ("Williams") and two others-Alonzo Walton and Lester R. Allen-were charged with the March 16, 1980 first degree murder of Charles Millet, a violation of La. R.S. 14:30. Williams was a minor on the date of the murder. On August 28, 1980, a jury found Williams guilty as charged. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on September 12, 1980. This Court affirmed his conviction and sentence on direct appeal. State v. Williams , --- So.2d ---- (La. App. 4 Cir. 1980) (unpub. ). Williams was unsuccessful in his efforts to obtain collateral relief until the U.S. Supreme Court issued Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), holding that its previous holding in Miller , supra , applied retroactively. Miller held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" absent taking "into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." 567 U.S. at 479-80, 132 S.Ct. at 2469.

Williams filed a motion to correct illegal sentence based on Miller on September 11, 2012. After the Louisiana Supreme Court granted writs to deny relief, see State v. Williams , 2013-0100 (La. 6/20/14), 141 So.3d 805 (rejecting relief based on finding Miller did not apply retroactively), Williams filed an application for writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Louisiana. He also filed another motion to correct illegal sentence based on Miller and Montgomery on May 2, 2016. Subsequent to staying the federal suit, pending the issuance of Montgomery , on July 18, 2016, the U.S. District Court for the Eastern District of Louisiana issued the following order:

For the reasons stated above, the Court finds that Petitioner is entitled to relief from his unconstitutional sentence. Accordingly,
IT IS HEREBY ORDERED that the State's objection is OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge's recommendation;
IT IS FURTHER ORDERED that Petitioner Reginald Williams's application for habeas corpus relief is GRANTED , that his sentence of life imprisonment without benefit of probation, parole or suspension of sentence is VACATED , and that the state trial court is ORDERED to resentence Petitioner in conformity with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within one hundred twenty (120) days or, in the alternative, to release him from confinement.

Williams v. Cain , No. 15-404, 2016 WL 3877973, (E.D. La. 7/18/16).

On September 15, 2016, after a hearing, the trial court resentenced Williams to life with the possibility of parole.

Williams filed a pro se motion to reconsider sentence, a motion for appeal, and a motion for appointment of appellate counsel. The trial court denied the motion to reconsider sentence and failed to grant Williams' request for appeal. On supervisory writs to this Court, we found that the relator's resentencing on September 15, 2016, is an appealable judgment and ordered the trial court to grant the appeal and to appoint appellate counsel. State v. Williams , 2017-0581 (La. App. 4 Cir. 7/21/17), --- So.3d ---- (unpub. ). This appeal followed.

DISCUSSION

In his sole assignment, Williams asserts the trial court erred in resentencing him to life imprisonment with the possibility of parole. Specifically, counsel argues: 1) the new sentence violates the ex post facto clause because it subjects Williams to new probation rules found in La. R.S. 15:574.4(E-G) and the parole eligibility hearing rule in La. C.Cr.P. art. 878.1(B)(2)(a) ; 2) Williams should have been resentenced to the maximum sentence for the next lesser included offense, manslaughter; 3) the new sentence does not comply with Miller because it was not individualized.

Analysis

The district court was required to resentence Williams based on the Court's holdings in Miller , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 and Montgomery , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599. Miller held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." 567 U.S. at 479, 132 S.Ct. at 2469. Miller did not absolutely "foreclose a sentencer's ability" to sentence a juvenile convicted of homicide to life without parole, but specified that to impose such a sentence, "we require [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. at 2469.

Montgomery gave Miller retroactive effect. In so holding, the Court specified that:

[g]iving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions in every case where a juvenile offender received mandatory life without parole. A state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than resentencing him.

Montgomery , --- U.S. ----, 136 S.Ct. at 736.

Ex-post facto

U.S. Const. Art. I, § 10 and La. Const. art. I, § 23 prohibit ex post facto application of criminal law by the State. State v. Everett , 2000-2998, p. 13 (La. 5/14/02), 816 So.2d 1272, 1280. The focus of the ex post facto determination is whether a change in the law alters the definition of criminal conduct or increases punishment for the crime. Massey v. La. Dept. of Pub. Safety & Corr. , 2013-2798, p. 5 (La. 10/15/14), 149 So.3d 780, 784. "[T]he relevant inquiry is whether the change in the law 'creates a significant risk of prolonging [the inmate's] incarceration.' " Id. , 2013-2798, p. 6, 149 So.3d at 784 (quoting Garner v. Jones , 529 U.S. 244, 251, 120 S.Ct. 1362, 1368, 146 L.Ed.2d 236 (2000) ).

In State v. Williams , 2015-0866, pp. 15-16 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, 252, this Court held that applying La. C.Cr.P. art. 878.1 and La. R.S. 15:274.4(E) to resentence a juvenile convicted of a 2006 second degree murder pursuant to Miller did not violate the ex post facto clause. This Court reasoned that the Louisiana Supreme Court, in State v. Jones , 2013-2039 (La. 2/28/14), 134 So.3d 1164, ordered implementation of Miller through the application of La. C.Cr.P. art. 878.1 and La. R.S. 15:547.4(E). Williams , 2015-0866, pp. 15-16, 186 So.3d at 252 (citing State v. Graham , 2014-1769, p. 8 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 278 ).

In State v. Shaw , 51, 325, p. 10 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, 613, the Second Circuit, citing this Court's decision in Williams , also held that there is no ex post facto violation from the application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) in resentencing a defendant pursuant to Miller . Further, the Second Circuit stated that application of those statutes does "not subject a defendant to a harsher sentence or a longer period of incarceration."

Thus, in accordance with Williams , Shaw , and Jones , supra , we find that the application of La.C.Cr.P. art. 871 and La. R.S. 15:574.4(E-G) to this case does not violate the ex post facto principles.

Maximum sentence under next lesser included offense

Likewise, Williams' assertion that he should have been sentenced to the next lesser included offense has also been previously rejected by this Court. In Williams , supra , this Court adopted the Second Circuit's reasoning that La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4 provide a means to implement Miller 's mandate, stating:

The Louisiana legislature promptly addressed the Miller directive against mandatory life-without-parole sentences for juvenile killers by devising a sentencing procedure which would require that a trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted. By its very application to only murderers under the age of 18, the provisions of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the defense will be given an opportunity to present mitigating factors-which obviously include the defendant's age as an important part of his social history-satisfy Miller 's requirement that mitigating factors favoring a juvenile killer be heard in a proceeding held for that purpose...
... life without parole is still a constitutionally acceptable sentence for adult killers and it is not a prohibited sentence for all juvenile killers. Our legislature carefully designed an adequate solution by adding a new statute pertaining to parole eligibility for juvenile killers which is to be read in conjunction with the first and second degree murder statutes. In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides conditions which must be satisfied before the defendant can apply to the parole board for parole consideration. (Emphasis supplied).
Either sentencing scheme of life imprisonment with parole, or life imprisonment without parole, is proper and not unconstitutional under Miller v. Alabama , supra . Accordingly, we find the defendant was not entitled to be sentenced to the next available responsive verdict of manslaughter. See State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272.

2015-0866, pp. 16-17, 186 So.3d at 253, (quoting State v. Fletcher , 49,303, pp. 12-13 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, 942 ); see also State v. Olivier , 2017-0724, pp. 6-7 (La. App. 4 Cir. 2/21/18), 238 So.3d 606.

Individualized sentence

Finally, Williams' assertion that Miller requires a new, individualized sentence has recently been rejected by this Court. In Olivier , this Court stated, " Miller does not require an individualized sentence, only that parole eligibility is considered an option when sentencing youth offenders." 2017-0724, pp. 4-5, 238 So.3d at 608-09. This statement complies with the Montgomery Court's directive that:

[g]iving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions in every case where a juvenile offender received mandatory life without parole. A state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than resentencing him.

--- U.S. ----, 136 S.Ct. at 736.

Contrary to Williams' assertion, Miller does not require an individualized sentence, only the opportunity to be considered for parole.

CONCLUSION

A Miller violation may be remedied by permitting a juvenile homicide offender to be considered for parole. At the September 15, 2016 hearing, the trial court resentenced Williams "to life with the possibility of parole." Consequently, we find that the trial court sentenced defendant in compliance with Miller and Montgomery . Defendant's sentence is affirmed.

AFFIRMED

      The facts of this case are not relevant to defendant's appeal.


author: GASKINS (Pro Tempore), J.

text:
    STATE of Louisiana IN the INTEREST OF D.M.
    No. 51,920-JAC
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    DANNY W. NEWELL, District Attorney, TERESA CULPEPPER CARROLL, LISA RYDER, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, STONE, and GASKINS (Pro Tempore), JJ.
   GASKINS (Pro Tempore), J.

Before the court is the appeal of D.M., a juvenile adjudicated delinquent for the armed robbery of James Peaden ("Mr. Peaden"). D.M. specifies three errors: (1) there was insufficient evidence for his conviction; (2) the lower court erred in refusing to grant his motion to suppress the photographic lineup identification; and (3) the trial court erred in refusing to suppress the in-court identification. For the reasons stated hereinafter, we affirm and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On February 2, 2017, Mr. Peaden ate lunch at Som-T-Eat, a restaurant in Claiborne Parish, Louisiana. When he finished eating, he exited the restaurant and walked to his truck, whereupon he discovered D.M. lying in the truck's bed against the cab. Mr. Peaden recognized D.M.'s face from "the day or the day before" when the pair shared a table at the same restaurant. Mr. Peaden offered to give him a ride and invited him to ride in the cab of the truck. D.M. asked for a ride to Homer Plaza, and initially declined to ride in the cab. During the trip, D.M. tapped on the window and indicated that he wanted to ride in the cab; Mr. Peaden obliged. After riding in the cab a while, D.M. instructed Mr. Peaden to "pull over," and Mr. Peaden did so. Thereupon, Mr. Peaden realized that D.M. was pointing a handgun at him. D.M. ordered Mr. Peaden to get out of the vehicle. Both of them exited the truck and walked in front of it. With the pistol pointed at Mr. Peaden's head, D.M. said "give me all your money." Mr. Peaden complied, giving D.M. approximately $27. Thereafter, D.M. got in the truck and "kept revving the motor a little bit like he couldn't put it in gear." He then exited the truck, again pointing the gun at Mr. Peaden's head, and demanded Mr. Peaden's cell phone. Mr. Peaden replied that he had no cell phone. D.M. pulled a ski mask down over his face, removed it after approximately 10 seconds, and then got back in the truck. He drove away, leaving Mr. Peaden, a 79-year-old, on foot in a rural area.

Mr. Peaden began walking to the Hill Farm Research Station, which was roughly a mile from where D.M. left him. He hitchhiked part of the way and called the sheriff's department upon arrival. Captain Jimmy Brown responded to Mr. Peaden's call. Mr. Peaden was still too upset to write at this point; therefore, he instead dictated a statement to Captain Brown, who handwrote Mr. Peaden's statement and had him sign it. This written statement, according to Captain Brown's testimony, contained "the entirety" of what Mr. Peaden told him that day.

Captain Brown testified that Mr. Peaden described the perpetrator as a black male with a small mustache, approximately 5'8", wearing blue jeans, a light-colored shirt, and a jacket. He also testified that Mr. Peaden said the gun was a small revolver, possibly a .32-caliber. Mr. Peaden did not mention to Captain Brown that he and D.M. had shared a table at the restaurant; however, Captain Brown did not recall ever asking Mr. Peaden if he knew the perpetrator.

Detective Randy Smith was another officer involved in the investigation. He heard a description of the perpetrator over the police radio, and upon learning that the incident began at Som-T-Eat restaurant, suspected that the perpetrator was D.M. Detective Smith explained that he knew that D.M.'s parents own the restaurant and that D.M.'s family lives next door to it.

Detective Smith submitted a request for a photographic lineup to the Louisiana State Police Investigation Unit and included D.M.'s name and Louisiana identification number in the submission. The Louisiana State Police Investigation Unit sent a computer-generated six-person photographic lineup to Detective Smith, which included D.M. This lineup was admitted into evidence.

On the night of February 3, 2017, Detective Smith and another officer went to Mr. Peaden's residence and presented him with the photographic lineup. Mr. Peaden picked photograph number three, i.e. , that of D.M. However, before choosing D.M., he eliminated four others in the lineup, then looked back and forth between D.M.'s picture and one other, then chose D.M.

On February 9, 2017, D.M. was charged by petition in Juvenile Court with the armed robbery of Mr. Peaden in violation of La. R. S. 14:64. On March 20, 2017, D. M. filed a motion to suppress the photographic lineup as unduly suggestive; the trial court referred the motion to the merits. On May 10, 2017, D.M.'s adjudication hearing was held. That day, Mr. Peaden identified D.M. in open court as the young man who robbed him.

In an attempt to establish an alibi, D.M. called several witnesses at trial. D.M.'s brother, Josh Ealy, testified that he and D.M. were at Jeremy Washington's house during the time frame within which the robbery took place. However, Jeremy Washington and his mother (both of whom were called by the prosecution) told police that D.M. had not been at their house on the day of the robbery; they acknowledged and affirmed these statements at trial. Furthermore, Jeremy Washington told police that DM's brother had called and told Jeremy to tell the police (if they questioned him) that DM had been at Jeremy's house the day the robbery.

D.M. called his uncles, Eddie Walker and Isaac Walker, and also Earl Amos. The uncles testified that while riding in the truck together on the day of the robbery, they saw an unknown pedestrian in the Athens area. One uncle testified that he did not see the pedestrian's face, while the other testified that he did, and that it was an unfamiliar male. Both uncles testified that this person was wearing a hoodie. Contrary to the uncles' testimony, Earl Amos identified this person as D.M. However, Amos testified that he could not remember the day this happened.

Verlene Manuel and Alton Manuel, D.M.'s mother and father, testified that D.M. occasionally worked at the restaurant and had served Mr. Peaden food before. They also recounted that on the day of the robbery, an unfamiliar young African-American male came to the restaurant and has not been seen since. D.M.'s mother added that she did not recall D.M. leaving the house on the day of the robbery.

The trial court, noting that Mr. Peaden's testimony was "very persuasive," adjudicated D.M. delinquent for the armed robbery of Mr. Peaden. On June 9, 2017, the trial court ordered that D.M. serve two years in a secure facility without benefit of probation, parole, or suspension of sentence.

DISCUSSION

Sufficiency of the evidence

"In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition." La. Ch. C. art. 883. In a juvenile case, the reviewing court is constitutionally compelled to review both facts and law. La. Const. art. V, § 10 (A) and (B). "However, the reviewing court must recognize that the juvenile judge observed the conduct and demeanor of the witnesses and was in the best position to determine credibility and weigh the evidence." State In Interest of D.R. , 50,594 (La. App. 2 Cir. 2/24/16), 188 So.3d 1116, 1120. "Therefore, this Court grants great deference to the juvenile court's factual findings and credibility determinations and assessment of the weight of particular testimony." Id. The standard of review in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979) applies to juvenile delinquency adjudicatory hearings. Additionally, our state constitution further mandates that we determine, after reviewing the record evidence, whether the juvenile court was clearly wrong in its fact findings. Id.

When the defendant challenges the sufficiency of the evidence on which his conviction is based, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Lynch , 436 So.2d 567 (La. 1983). "This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder." State In Interest of D.R., supra, at 1120. Furthermore, "[t]he appellate court does not assess the credibility of witnesses or reweigh evidence." Id. ; State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court must accord great deference to the fact-finder's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

"Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency." State In Interest of D.R., supra, at 1120. One witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion, provided it does not bear internal contradiction or irreconcilably conflict with physical evidence. Id.

La. R.S. 14:64 defines armed robbery:

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.

It is undisputed that someone robbed Mr. Peaden at gunpoint. The sole factual issue is whether Mr. Peaden's identification of D.M. constitutes sufficient evidence. We hold that it does.

A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that Mr. Peaden's identification of D.M. was proved beyond reasonable doubt. Mr. Peaden's familiarity with D.M.'s face-from sharing a table at the same restaurant a day or two before the robbery-greatly bolsters the reliability of his identification of D.M. as the perpetrator. Furthermore, Mr. Peaden's description of the events leading up to and during the robbery indicates that he had an adequate opportunity to view D.M.'s face and that his attention was, at least for enough of that time period, focused on D.M. He saw and recognized D.M.'s face when he first approached his truck to leave the restaurant. Mr. Peaden saw D.M.'s face again when he entered the truck, and when D.M. ordered him to stop the truck. When D.M. took Mr. Peaden's cash, they were only an arm's length apart and D.M.'s face was uncovered. D.M. had his face covered for only a short amount of time when he demanded Mr. Peaden's cell phone. Accordingly, this assignment of error lacks merit.

Nonetheless, we address each of the defense's claimed deficiencies in Mr. Peaden's testimony identifying D.M. as the perpetrator. First, at trial, Mr. Peaden testified that he had eaten lunch at the same table as D.M. "the day or the day before" the armed robbery. This was also at Som-T-Eat, the restaurant at which the February 2, 2017, encounter between Mr. Peaden and the perpetrator began. Defense counsel attempts to make much of the fact that Mr. Peaden did not recount this fact in his initial statement to Captain Brown. However, Captain Brown testified that he did not remember asking Mr. Peaden if he had ever seen the perpetrator before the day of the robbery. Furthermore, it is understandable that it did not occur to Mr. Peaden to mention this fact in the initial statement because he was still so upset from the robbery that he was unable to write.

Second, the defense argues that Mr. Peaden initially described the perpetrator as being about 5'8" tall, whereas D.M. is actually 6 feet tall. A commonsense reading of the record suggests that Mr. Peaden's statement that the perpetrator was roughly 5'8" tall was merely a visual estimate. Furthermore, Mr. Peaden's testimony bears no indication that Mr. Peaden and the perpetrator stood near each other at any time other than when the perpetrator was pointing a handgun at Mr. Peaden's head.

Third, the defense argues that Mr. Peaden changed the description of the weapon from a "small revolver, possibly a .32 caliber" to a "small pistol between a .25 and .32 caliber." Defense counsel had the opportunity to question Mr. Peaden about this during cross-examination, but did not do so. Nothing in evidence indicates that Mr. Peaden did not use the words "pistol" and "revolver" interchangeably.

Admissibility of photographic lineup identification

The defense filed a motion to suppress the photographic lineup from which Mr. Peaden initially identified D.M. after the incident. The lineup was computer-generated by the Louisiana State Police Investigation Unit based upon D.M.'s Louisiana identification number.

"A trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression." State v. Marshall , 46,457 (La. App. 2 Cir. 8/10/11), 70 So.3d 1106. "This court reviews a district court's ruling on a motion to suppress under the manifest error standard for factual determinations...while applying a de novo review to findings of law." Id.

In Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that an accused may not obtain exclusion of a pretrial identification merely because it is suggestive. Instead, exclusion requires the defendant to prove a substantial likelihood of misidentification, as determined under the totality of the circumstances. See also, State v. Nicholas , 397 So.2d 1308, 1316 (La. 1981). The factors to be considered in evaluating the likelihood of misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention;

(3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id.

State v. Evans , 463 So.2d 673 (La. App. 4 Cir. 1985), held that where an identification witness had been acquainted with the defendant prior to the incident, and identified the defendant by name prior to photographic identification, the fact that only one photograph, i.e. , that of the defendant, was shown to the witness did not render the pretrial identification inadmissible. The Evans court described the facts of the antecedent acquaintance as follows:

Coleman [the identification witness] also stated that he recognized Evans [the defendant] when he entered the hotel lobby that morning because Evans occasionally visited the lobby of the French Market Inn while on duty as a security guard at the Jackson Brewery. Therefore, because Coleman was acquainted with Evans prior to this incident, the showing of only one photograph to corroborate Coleman's identification of the perpetrator of this crime was not error. This assignment of error is without merit.

Id. at 677.

Mr. Peaden's trial testimony indicates that, prior to the robbery, he was familiar enough with the appearance of D.M. to recognize him at the beginning of the encounter which culminated in the armed robbery. Mr. Peaden's identification of D.M. was sufficiently reliable because of their prior acquaintance. For this reason alone, this assignment of error lacks merit.

However, we also find a second reason that this assignment lacks error: the photographic lineup was not unduly suggestive.

"There are no exact detailed criteria for a legitimate photographic lineup... [T]he fundamental rule is that each case must be considered on a careful analysis of its own facts." State v. Tonubbee , 420 So.2d 126, 130 (La. 1982). The Louisiana Supreme Court has, however, given the following guidance:

A line-up is unduly suggestive if a sufficient resemblance of characteristics and features of the persons in the line-up e.g. build, hair, facial hair and complexion, does not exist to reasonably test the identification. If only one person in the line-up has the characteristics of the perpetrator, the witness' attention will be focused on that person.

State v. Williams , 402 So.2d 678, 679 (La. 1981) (internal citations omitted).

In this case, the lineup consists of head (face) and neck pictures of D.M. and five other apparently young black males. The others have similar eye color, hair color, and skin tone to that of D.M.; all of the others have hairstyles at least similar to D.M.'s; and four of the five others' hairstyles are virtually identical to D.M.'s.

Accordingly, we hold that the photographic lineup was not unduly suggestive. The others in the lineup were similar enough to D.M. to reasonably test Mr. Peaden's ability to identify D.M. as the perpetrator.

Because the photographic lineup identification did not bear a substantial likelihood of misidentification, the in-court identification could not have been tainted by it. Therefore, the trial court's denial of the motion to suppress the in-court identification was not error.

Error patent

Although the Louisiana Children's Code is silent as to whether a juvenile proceeding warrants an error patent review, the Children's Code provides that where it is silent, the provisions of the Louisiana Code of Criminal Procedure apply. La. Ch. C. art. 104 ; see also La. C. Cr. P. art. 920. State v. In Interest of K.S. , 50,593 (La. App. 2 Cir. 2/24/16), 188 So.3d 1113.

The Louisiana Children's Code provides no procedures regarding post-conviction relief-therefore, the provisions of the Code of Criminal Procedure are applicable. La. C. Cr. P. art. 930.8(C) states, in part, that "[a]t the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing." The record demonstrates that, at the disposition hearing on June 9, 2017, the trial court advised D.M. that "[y]ou have two years from the date this adjudication and disposition become final to file for any kind of relief."

"If the trial court fails to advise, or provides an incomplete advisal, pursuant to La. C. Cr. P. art. 930.8, the appellate court may correct error by informing the defendant of the applicable prescriptive period for post-conviction relief." State in Interest of B.D. , 13-760 (La. App. 5 Cir. 4/23/14), 140 So.3d 308. To the extent that the trial court's advisement was unclear, this Court advises D.M. that, pursuant to La. C. Cr. P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the adjudication of delinquency and disposition have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

We note that, although the trial court ordered that D.M. serve his two years in secure placement , the minutes do not reflect this.

CONCLUSION

The trial court's decision is AFFIRMED. We REMAND with instructions for the trial court to amend the minutes to reflect that the two years is to be served in secure placement.

ADJUDICATION AFFIRMED; CASE REMANDED FOR AMENDMENT OF COURT MINUTES.

      Mr. Peaden's testimony seems to indicate that he later informed the police that, at the beginning of the encounter culminating in the armed robbery, he had recognized D.M. from earlier sharing a table with him at the restaurant.

      "Where procedures are not provided in the Children's Code, or otherwise by law, the court shall proceed in accordance with the Code of Criminal Procedure in a delinquency proceeding. La. Ch. C. arts. 104(1) and 803."

      We note that D.M.'s own mother initially testified that he is "about 5'9" or 6 foot" in height.

      The former description comes from Capt. Brown's testimony regarding Mr. Peaden's initial statement, which Capt. Brown testified that he wrote down "verbatim." The latter description comes from Mr. Peaden's trial testimony.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Donovan CARMAN, Appellant
    No. 51,897-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    GARY V. EVANS, Mansfield, District Attorney, Counsel for Appellee
    GEORGE WINSTON, III, Assistant District Attorney
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   STONE, J.

Donovan Carman pled guilty to manslaughter and was sentenced to the maximum penalty of 40 years at hard labor. He now appeals, arguing his sentence is unconstitutionally excessive. For the following reasons, Carman's conviction and sentence are affirmed.

FACTUAL BACKGROUND

On December 28, 2015, Donovan Carman ("Carman") contacted his estranged girlfriend, Deidra Nichols ("Nichols"), to arrange the pickup of their two-year-old daughter, Emma. Nichols advised Carman he could not pick up Emma because it was "too cold" outside. Notwithstanding Nichols' objection, Carman left his job in Bossier City and drove approximately 22 minutes to the home of Nichols' parents in Stonewall, with whom Nichols and her three children resided.

After arriving at the Nichols residence and knocking on the door, Carman placed both hands into the front pocket of his hoodie. Nichols' elderly and disabled father, Bobby Nichols ("Bobby"), opened the front door and Carman pulled a gun from his pocket and shot Bobby in the head. Bobby subsequently died from the gunshot wound.

On February 25, 2016, Carman was indicted for the second-degree murder of Bobby. On February 14, 2017, pursuant to a plea agreement, the State amended the indictment and filed a bill of information charging Carman with manslaughter to which Carman subsequently pled guilty. On May 18, 2017, a sentencing hearing was held and a presentence investigation (PSI) report was ordered. Thereafter, the trial court sentenced Carman to 40 years at hard labor. Carman timely filed a motion to reconsider the sentence, which was denied. On appeal, Carman argues his 40-year sentence, which is the maximum sentence for a conviction of manslaughter, is unconstitutionally harsh and excessive.

DISCUSSION

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 1/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Allen, supra; State v. Zeigler, 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 La. 2/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 4/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/8/13), 125 So.3d 445.

In reviewing a sentence for excessiveness, an appellate court uses a two-prong process. First, the record must show the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983) ; State v. Washington , 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852, writ denied , 16-0224 (La. 2/3/17), 215 So.3d 688. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981) ; Washington, supra ; State v. Ates, 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied , 08-2341 (La. 5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Thompson, 50,392 (La. App. 2 Cir. 2/24/16), 189 So.3d 1139 ; State v. Caldwell , 46,718 (La. App. 2 Cir. 11/2/11), 78 So.3d 799.

Second, the court must determine whether the sentence is unconstitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993) ; State v. Lewis, 49,138 (La. App. 2 Cir. 6/25/14), 144 So.3d 1174, writ not consid. , 16-0235 (La. 3/14/16), 188 So.3d 1070. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Lewis, supra.

A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Mendenhall , 48,028 (La. App. 2 Cir. 5/15/13), 115 So.3d 727 ; State v. Ross , 35,552 (La. App. 2 Cir. 2/27/02), 811 So.2d 176. Accordingly, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Givens , 45,354 (La. App. 2 Cir. 6/23/10), 42 So.3d 451, writ denied , 10-1584 (La. 1/14/11), 52 So.3d 902 ; State v. Germany , 43,239 (La. App. 2 Cir. 4/30/08), 981 So.2d 792 ; State v. Black , 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 9/20/96), 679 So.2d 430.

La. R.S. 14:31(B) provides that a person convicted of manslaughter shall be imprisoned at hard labor for not more than 40 years.

We find the trial court did not abuse its discretion in sentencing Carman to 40 years at hard labor for the manslaughter of Bobby. On the day he murdered Bobby, Carman's vehicle was equipped with a video and audio recorder. The audio recorder revealed that during Carman's drive to Stonewall, Carman loaded a bullet into the chamber of his gun. The video recorder showed Carman pull into the Nichols' driveway and walk onto the front porch of the Nichols home. Carman's hands were in the front pocket of his hoodie. Before Carman knocked on the door, Carman briefly paced back and forth on the porch and peered into the windows of the house several times. After Carman knocked and Bobby answered the door, Carman shot Bobby, stepped over Bobby's body, and entered the house. About a minute after he disappeared inside the home, Carman walked out carrying Emma. Emma is crying and can be heard saying, "Why did you boom, Daddy? I want Pawpaw." For the most part, Carman ignored his daughter, who was clearly distraught, during the 30 minutes she was in the vehicle with him after the shooting.

While Emma was crying in the backseat, Carman called his mother and told her, "I just killed Bobby; they tried to keep my kids from me and I flipped and I lost my fucking cool. He's dead, so I am going to drop Emma off to you and I'm leaving. I won't be alive ... I'm tired of people running over me. I am sick of this shit..." Carman told his mother he loved her and he would text his location after he dropped Emma off to her so that she could find his body.

As promised, Carmen dropped Emma off with his parents. After leaving his parents' house, Carman again talked by telephone with his parents and also talked with his girlfriend. During those conversations, Carman did not express remorse over his actions, except to discuss that he would rather die than go to jail. Carman did not try to kill himself.

Carman maintains the trial court should have considered the mitigating factor of the psychological stressors he was undergoing at the time of the shooting, including the fact that his parental rights had recently been terminated for one of his other children. These stressors were explained in a confidential psychological report prepared by a clinical psychologist, Jennifer Russell, Ph.D. The trial judge expressed to the parties that she had read and considered the report in sentencing Carman. Carman contends the trial court failed to consider other mitigating factors, such as his being a recovering alcoholic and a 12-year military veteran who served multiple tours of duty in the Middle East. Additionally, he has a long employment history and no previous felony convictions.

While the fact that Carman was a first-felony offender and suffered from psychological issues at the time of the shooting are mitigating factors, these factors do not mandate a more lenient sentence. See La. C. Cr. P. art 905.5 and art. 894.1. Jurisprudence reflects the maximum manslaughter sentences have been upheld when a first-time felony offender has committed a violent criminal act. See State v. Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So.3d 1175, writ denied , 15-1236 (La. 06/03/16), 192 So.3d 760 ; State v. Leone, 48,892 (La. App. 2 Cir. 5/15/14), 140 So.3d 793, 801, writ denied sub nom. State ex rel. Leone v. State, 14-1337 (La. 4/10/15), 163 So.3d 804.

Furthermore, while Carman submitted evidence explaining the psychological stressors that triggered the shooting, he did not submit any evidence that suggested he failed to appreciate the criminality of his conduct. On the contrary, the audio recording of Carman's phone calls with his parents and his girlfriend show he did indeed understand the seriousness of his conduct at the time of the offense.

The trial court also read victim impact statements and heard testimony from Nichols, Bobby's wife, Carolyn Nichols ("Carolyn"), Bobby's niece, Sylina Bianco ("Bianco"), and Bobby's son, Christian Nichols ("Christian"). Carman and his parents also testified.

Carolyn attested to the emotional and financial impact caused by Bobby's death. She testified she and Bobby had been married over 40 years and supported Nichols and her three children. Carolyn stated that, due to the emotional stress of her husband's death, she could not continue working and, without an income from her husband, or an income of her own, she lost her home and vehicle.

Nichols testified she and her three young children, two of whom were fathered by Carman, were home on the day of the shooting. She discussed the devastating emotional impact that witnessing Carman shoot her father had on her and the children.

Bianco and Christian testified about their close relationship with Bobby. Both stated Mr. Nichols was feeble and disabled at the time of the shooting. Bianco stated Carman could have easily walked past Bobby and entered the house without any violence. Christian testified his father had treated Carman well and Carman had even lived with his parents for some time.

Carman's parents testified Carman was a giving person, a good father, and a hard worker. Michael Carman ("Michael"), Carman's father, testified that during Carman's deployment to the middle-east, Carman, while not on the front lines, had witnessed fighting and death. Michael also explained it was not unusual for Carman to carry guns in his vehicle; he was raised with guns and was trained to use them safely and for self-defense.

Carman discussed his time in the military, serving in the Middle East, and the deaths he has witnessed. He testified he has multiple biological children, but had lost his parental rights to one of his children shortly before the shooting. He explained he was close to Emma and shared parenting responsibilities with Nichols. Carman admitted he shot Bobby, but claimed it was not intentional and expressed his remorse. Carman could not, however, provide a reasonable explanation as to why he carried a concealed gun to the Nichols home to pick up his daughter.

The trial court also noted that, pursuant to the psychological report by Dr. Russell, Carman has a 48% risk of recidivism within 10 years. Carman challenges the trial court's reliance on Dr. Russell's report on the basis that "recidivism" means only that Carman is at risk of committing another crime, not necessarily the same or similar crime. However, pursuant to La. C. Cr. P. art. 894.1(A)(1), the fact that Carman is at risk to commit another crime, any crime, is a valid consideration in determining the sentence to be imposed, and the weight given to the report was within the trial court's discretion.

After considering all evidence and testimony presented at trial, the trial court sentenced Carman to 40 years at hard labor, the maximum sentence for a manslaughter conviction, stating the following:

By your actions that day, Mr. Carman, you devastated the Nichols family. Not only did they lose their husband, father, uncle, grandfather, but they also lost their home and their vehicles. Mrs. Carolyn Nichols lost her job. Christian Nichols was forced to leave his job and friends in Fort Worth and move to Shreveport to support his mother, his sister and her children, which are your children. You traumatized the three children who were in that home when you shot their grandfather. Two of those children are your own biological children. The Nichols family was not the only one impacted by your actions. Your own family has suffered as well: your parents, your siblings, your children and others. Your actions on December 28, 2015 were calculated and deliberate. During the twenty-two minute drive to Stonewall, you no doubt thought about what you were going to say and what you were going to do and how you were going to do it. Rather that [sic ] utilizing that drive as an opportunity to cool off as a reasonable person would have done, you utilized it as an opportunity to plan. You went to the Nichols home with a loaded gun in your hands to show them that you were in control, you were powerful, and you were willing to harm and even kill to get your way, and that's exactly what you did. Even when describing the events that day to your girlfriend, your parents and your sister on the telephone, you never expressed remorse, instead you attempted to justify your actions.

The trial court indicated the shooting "clearly meets the definition of second-degree murder." Consequently, the trial court held that by pleading guilty to manslaughter, Carman received a substantial benefit which reduced his sentencing exposure from a mandatory sentence of life imprisonment without benefits for second-degree murder, to a maximum sentence of 40 years at hard labor.

This Court finds the trial court adequately reviewed the facts of this case PSI report, Carman's criminal history, and the sentencing factors set forth in La. C. Cr. P. art. 894.1. Considering the senseless nature of Carman's crime, the impact on the victim's family, and the benefit Carman received from the plea agreement, the 40-year hard labor sentence imposed by the trial court neither shocks the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Donovan Carman's conviction and sentence are affirmed.

AFFIRMED.

      Carman is the father of two of Nichols' children.