author: GARRETT, J.

text:
    Easter MCGEE, Plaintiff-Appellant v. ALLSTATE INSURANCE COMPANY and Safeco Insurance Company of Oregon, Defendants-Appellees
    No. 52,299-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    JOHN C. MILKOVICH, Shreveport, Counsel for Appellant
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP, By: Stephen E. Soileau, Shreveport, Counsel for Appellee, Allstate Insurance Company
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   GARRETT, J.

The plaintiff, Easter McGee, appeals from a summary judgment granted in favor of the defendant, Allstate Insurance Company ("Allstate"), that dismissed her uninsured/underinsured motorist ("UM") claim against Allstate. Allstate answers the appeal, claims that McGee's appeal is frivolous, and requests an award of costs and attorney fees. For the following reasons, we affirm the trial court judgment but deny Allstate's claim for costs and attorney fees.

FACTS

The facts are not in dispute. McGee was a passenger in a 1981 Corvette owned and driven by her nephew, Walter Perry. A wheel came off, Perry lost control of the vehicle and crashed into a tree. No other vehicles were involved in the accident. McGee was injured. Perry had liability and UM coverage with Allstate. Allstate paid the liability policy limits to McGee, who released Perry, but reserved her rights to pursue UM coverage. She sued Allstate, alleging that her damages exceeded the liability coverage limits and seeking recovery under the UM coverage of the policy.

Allstate filed a motion for summary judgment, claiming that McGee could not recover under both the liability and the UM provisions of the policy under the circumstances presented here. McGee was injured in a one-car accident, the host driver was at fault, his liability insurance provided coverage and the policy excluded from UM coverage vehicles with liability coverage under the policy.

A hearing was held on August 14, 2017. The trial court granted summary judgment in favor of Allstate and dismissed McGee's claims. McGee appealed in November 2017. Allstate answered the appeal, arguing that McGee's appeal is frivolous because the exact issue, raised by the same lawyer, was rejected by this court in January 2018, in Mills v. Mills , 51,509 (La. App. 2 Cir. 1/10/18), 243 So.3d 1245.

UM COVERAGE

McGee argues that the trial court erred in granting summary judgment in favor of Allstate, dismissing her claims for UM coverage. This argument is without merit.

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 12-2292 (La. 6/28/13), 144 So.3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So.3d 219.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In the matter before us, there are no factual issues in dispute. We are presented with a legal issue - does McGee have the right to recover under the UM provisions of the Allstate policy?

Discussion

McGee maintains that the trial court erred in ruling that she could not recover under both the liability and UM coverage of the same insurance policy where the host driver was solely at fault. She claims this result is contrary to the purpose of the UM statute and violates certain provisions of it. She argues that any exclusions of UM coverage in the insurance policy violate the purpose of the statute and cannot be given effect. She contends that the insurance policy contains contradictory provisions creating ambiguity which should be construed against Allstate. She asks us to disregard or overrule well-settled jurisprudence because she contends it is wrong.

McGee argues that the intent of the UM statute is to provide full coverage to persons injured in collisions through no fault of their own. She cites La. R.S. 22:1295(1)(a)(i) which provides:

The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized in this Section. Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates. The coverage provided under this Section may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. Insurers may also make available, at a reduced premium, the coverage provided under this Section with an exclusion for all noneconomic loss. This coverage shall be known as "economic-only" uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.

McGee states that La. R.S. La. 22:1295(2)(b) is the operative provision in this case. That statute provides:

For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured's vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.

McGee urges that, under a "literal interpretation" of La. R. S. 22:1295(2)(b), where an auto has liability coverage less than the losses of an insured or a guest passenger, the insured or guest passenger may recover under the UM policy of the insured vehicle. She claims this is true even though there has been recovery on the liability portion of the policy on the insured vehicle. She maintains that the statute does not contemplate that the at-fault vehicle, for which liability coverage is owed, and the underinsured vehicle for which UM coverage is owed, must be two separate vehicles. McGee contends that any provisions or exclusions in an insurance police which limit or prohibit such coverage are contrary to the purpose of the UM statute, are against public policy, and cannot be given effect.

McGee's arguments and interpretation of the UM statute have been previously considered in numerous cases in the jurisprudence and have been uniformly rejected. The issues raised by McGee were first considered by the Louisiana Supreme Court in Breaux v. Gov't Emp. Ins. Co. , 369 So.2d 1335 (La. 1979). In that case, a guest passenger was killed in an auto accident. Her parents sued the insurer of the host driver, Government Employees Insurance Company ("GEICO"), and asserted a UM claim against their own insurer, Traders and General Insurance Company ("Traders"), because their damages exceeded the available liability coverage under the GEICO policy. The plaintiffs settled their claims with GEICO and released it under both the liability and UM portions of the policy. Traders argued that the GEICO policy afforded UM coverage to the deceased guest passenger and that coverage was primary.

In the trial court, the plaintiffs were awarded a judgment against Traders, but the judgment was reduced by the amount received by the plaintiffs in the settlement with GEICO. The plaintiffs appealed and the appellate court applied the provision now designated as La. R.S. 22:1295(2)(b) to hold that the plaintiffs could recover under both the liability and UM portions of the GEICO policy issued to the at-fault host driver.

The supreme court granted writs in the matter and reversed the appellate court. The sole issue before the supreme court was whether the GEICO policy afforded UM coverage to the deceased guest passenger when the sole cause of the accident was the negligence of the host driver of the insured vehicle and the GEICO policy contained a provision, similar to that found in the case sub judice, which excluded UM coverage to an insured vehicle under the policy. The supreme court specifically considered whether the exclusion in the GEICO policy was invalid as being in derogation of the mandatory requirements set forth in the UM statute. The supreme court found that:

As to coverage under the uninsured motorist provisions of a particular policy, the statute contemplates two distinct vehicles; the motor vehicle with respect to which uninsured motorist coverage is issued and the "uninsured or underinsured" motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or underinsured motor vehicle.

The court rejected the argument that the at-fault host driver in a single car accident could be both the person insured under the policy and the owner or operator of an uninsured or underinsured vehicle. The court found that the UM statute created distinctions between (1) persons insured under a particular policy providing UM coverage and owners or operators of UM vehicles and (2) the vehicle with respect to which such insurance is issued and the UM vehicle. The court reasoned that the UM statute does not mandate protection under the host driver's UM coverage when the sole cause of the accident is the negligence of the host driver. The supreme court held that the clause in the policy at issue in that case, which purported to deny uninsured motorist coverage to the plaintiffs, was valid and was not in derogation of the mandatory requirements set forth in the UM statute.

The issue was again considered by the supreme court in Nall v. State Farm Mut. Auto. Ins. Co. , 406 So.2d 216 (La. 1981). In that case, the plaintiff's minor son was injured while a guest passenger. The at-fault driver was insured under a policy with GEICO, which provided liability and UM coverage. The plaintiff had two separate insurance policies with State Farm, each of which provided UM coverage. GEICO paid the policy limits for medical expenses and the bodily injury liability limit of $10,000. State Farm paid the UM policy limits under one policy, but refused to pay anything under the other policy. The plaintiff sued to recover under his other UM policy and the UM coverage provided by the GEICO policy. The trial court rejected the plaintiff's demands and the court of appeal affirmed. The supreme court was called upon to decide whether the plaintiff was entitled to recover under the UM coverage on both State Farm policies and on the GEICO policy.

After deciding that the plaintiff could not stack UM coverage on his two State Farm policies, the supreme court considered whether the plaintiff could recover under both the UM and liability portions of the GEICO policy covering the host driver where his negligence caused the accident. The GEICO policy contained an exclusion, similar to that at issue here, which excluded an insured vehicle from the definition of a vehicle for which UM coverage would be owed. Citing the reasoning in Breaux , supra , the supreme court stated it was apparent that the UM statute does not mandate protection under the host driver's UM coverage when the cause of the accident is the negligence of the host driver. The clause in the GEICO policy which purported to deny UM coverage to the plaintiff was valid and was not in derogation of the mandatory requirements set forth in the UM statute.

In Solice v. State Farm Mut. Auto. Ins. Co. , 488 So.2d 1159 (La. App. 2 Cir. 1986), this court was presented with the issue of whether an injured passenger could recover under the UM portion of an insurance policy where the policy excluded from its definition of an uninsured vehicle a vehicle insured under the policy. Based upon Breaux , supra , and Nall , supra , we found that the provision was valid and was not in derogation of the UM statute. We stated:

The contemplation of the uninsured motorist statute is that the uninsured coverage is to be applicable to the driver of a vehicle other than the one identified as covered by the policy of liability insurance containing the required uninsured motorist coverage. Therefore, a policy provision which requires this result does not violate the terms of the statute.

In Gardner v. Allstate Ins. Co. , 575 So.2d 883 (La. App. 2 Cir. 1991), writ denied , 578 So.2d 139 (La. 1991), the plaintiff was injured when a boat trailer became disconnected from the vehicle he was riding in, causing an accident and injuring the plaintiff. The plaintiff recovered under the liability portion of the host driver's insurance. The policy contained an exclusion from UM coverage for an insured auto. This court found that, under the provisions of the policy, the boat trailer was an "insured auto" even when it accidentally became detached while in tow. Therefore, under Breaux , supra , and Nall , supra , the insurance policy provision was valid and the plaintiff was not entitled to both liability coverage and UM coverage.

In Bamburg v. State Farm Mut. Auto. Ins. Co. , 26,324 (La. App. 2 Cir. 12/7/94), 647 So.2d 447, this court stated that, simply put, one cannot be insured with respect to liability coverage and underinsured with respect to UM coverage under the same insurance policy.

In Nelson v. Robinson , 44,059 (La. App. 2 Cir. 4/22/09), 10 So.3d 356, a father was driving his two children to school and was solely at fault in causing an accident that injured all three occupants of the car. The driver had liability and UM coverage with Allstate, which paid under the liability portion of the policy. The UM portion of the policy contained an exclusion specifying that an uninsured auto is not a motor vehicle defined as an insured auto under the liability portion of the policy. The children sued to recover under the UM coverage also. The trial court allowed recovery, finding that by Acts 1987, No. 444, the following provision was added to the UM statute, which is now found in La. R.S. 22:1295(1)(a)(iii) :

This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.

The trial court reasoned that this amendment allowed an insured passenger to recover under both the liability and the UM

portions of the negligent host driver's insurance policy despite policy language prohibiting such recovery.

This court reversed the trial court judgment and found the ruling to be contrary to the established jurisprudence. We determined that the 1987 amendment to the UM statute did not overrule the well-settled law that an injured passenger may not recover under both the liability and the UM portions of the host driver's policy where the host driver was 100% at fault in causing the accident. We concluded that the 1987 amendment was intended to extend geographically the scope of UM coverage beyond cases where the policy was issued in Louisiana and the vehicle was garaged in this state. We found that the amendment had no effect on the rule of law set forth in Breaux , supra , and its progeny. We also found that the language in the insurance policy prohibiting such coverage was valid and enforceable.

Recently in Mills v. Mills , supra , this court considered this same issue, of whether both UM and liability coverage are available under an insurance policy where the host driver is at fault. The issue was raised by the same attorney representing McGee in this matter. In Mills , we found that, based upon the well-settled jurisprudence, when the insurance policy contains an exclusion of the vehicle named in the policy from being an uninsured vehicle, the insured claimants cannot recover under both the UM and liability provisions of the same policy.

Interestingly, in Cannon v. Allstate Ins. Co. , 595 So.2d 745 (La. App. 4 Cir. 1992), writ denied , 598 So.2d 359 (La. 1992), the fourth circuit found that the exact UM insurance exclusion at issue in this case did not violate public policy and that the plaintiff guest passenger could not recover under both the liability and UM provisions of the insurance held by the at-fault host driver in a one-car accident.

McGee cites Johnson v. Jackson , 504 So.2d 88 (La. App. 2 Cir. 1987), writ denied , 506 So.2d 1230 (La. 1987), for the proposition that an insurer could be required to pay both UM and liability coverage under the same policy for the same accident. The facts of Johnson are vastly different from those presented here. In that case, Johnson was a guest passenger in his own vehicle, which was driven by another person. There was an accident involving another vehicle and both drivers were at fault. Johnson recovered liability from the insurer of the other driver and UM coverage under his own insurance policy. Johnson then sought to recover liability under his policy based upon the host driver's negligence. The policy contained a reduction clause specifying that payment under the UM portion would reduce what a person could recover under the liability portion of the policy. In finding that the reduction clause was contrary to public policy and would not be applied, this court discussed Breaux , supra , and Nall , supra , and found those cases to be distinguishable. In those cases, the accidents involved one vehicle and the host driver was solely at fault. Therefore, UM and liability could not be recovered under the same policy, largely because the host driver could not be both insured and uninsured.

In Johnson , we discussed jurisprudence dealing with accidents involving more than one vehicle where the drivers of the vehicles were jointly liable for the accident. The jurisprudence held that a guest passenger could recover under the liability and UM coverage of the host vehicle if the host driver was jointly liable with the other driver who was uninsured or underinsured. Liability coverage was based on the negligence of the host driver and UM coverage was based on the negligence and inadequate coverage of the other driver, not the negligence and inadequate coverage of the host driver.

In Johnson , this court noted that it had previously been held that the reduction of UM coverage below that required by statute, by directing credit for payments from any source, is contrary to public policy. This court found that it logically followed that, where the reduction of either limit, UM or liability, prevents the insured from receiving the full benefit of the UM coverage to which he is entitled, that reduction clause is inconsistent with the mandatory coverage requirement of the UM statute.

Johnson dealt with different issues and a different fact situation. It simply does not support McGee's argument that she is entitled to both UM and liability coverage under the facts presented here.

The rule established in Breaux , supra , and Nall , supra , has also been followed by this and other courts consistently. In addition to the cases outlined above, see for example Leboeuf v. Lloyd's of La. , 572 So.2d 347 (La. App. 1 Cir. 1990), writ denied , 575 So.2d 393 (La. 1991) ; Ramirez v. State Farm Mut. Auto. Ins. Co. , 07-785 (La. App. 3 Cir. 12/5/07), 971 So.2d 474 ; Hasha v. Calcasieu Par. Police Jury , 539 So.2d 779 (La. App. 3 Cir. 1989), writ denied , 541 So.2d 872 (La. 1989) ; Coco v. Allstate Ins. Co. , 391 So.2d 50 (La. App. 3 Cir. 1980) ; Insurance Co. of N. Am. v. Patton , 95-0732 (La. App. 4 Cir. 12/14/95), 665 So.2d 1312. See also W.S. McKenzie & H. Alston Johnson, III, Insurance Law & Practice , § 4:18, in 15 Louisiana Civil Law Treatise (4th ed. 2012), and the numerous cases cited therein which have uniformly found that, where a policy excludes an insured vehicle from the definition of an uninsured or underinsured vehicle, a guest passenger cannot recover under both the liability and the UM provisions of the policy where the host driver is at fault. The cases have also held that the exclusion does not contravene the purpose of the UM statute and is not contrary to public policy. The reasoning in these cases is sound and the essential facts are the same as those presented here. McGee has failed to demonstrate any error in this long line of jurisprudence interpreting the UM statute. Accordingly, her argument in this regard is rejected.

McGee asserts that the insurance policy itself provided for UM coverage, but then excluded UM coverage under the facts presented here by precluding a vehicle listed as an insured vehicle under the policy from the definition of an uninsured vehicle for purposes of UM coverage. McGee contends that this created an ambiguity which should be construed against Allstate so as to allow UM coverage.

McGee cites the general provision from the policy regarding UM coverage which states:

Part VI
Economic-Only Uninsured Motorists Insurance - Coverage ED
We will pay those damages which an insured person is legally entitled to recover from the owner or operator or an uninsured auto because of:
(1) bodily injury sustained by an insured person, .... Bodily injury ... must be caused by accident and arise out of the ownership, maintenance or use of an uninsured auto.

The policy includes in the definition of an "insured auto" a motor vehicle described on the policy declarations. The policy then specifies that "an uninsured auto is not a motor vehicle defined as an insured auto under Part I, Automobile Liability Insurance, of this policy."

The interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment. Mills v. Mills , supra . The starting point in analyzing insurance policies is the principle that the policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Sensebe v. Canal Indem. Co. , 10-0703 (La. 1/28/11), 58 So.3d 441 ; Heath v. Cont'l Cas. Co. , 50,860 (La. App. 2 Cir. 8/10/16), 200 So.3d 911.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046.

Insurers are entitled to limit their liability and to impose reasonable conditions upon the policy obligations absent a conflict with statutory provisions or public policy. Shephard v. AIX Energy, Inc. , 51,965 (La. App. 2 Cir. 5/23/18), 249 So.3d 194. An insurer has the burden of proving that a loss comes within a policy exclusion. Ilgenfritz v. Canopius U.S. Ins. , 51,530 (La. App. 2 Cir. 8/9/17), 243 So.3d 1109. Because insurance policies are adhesionary in nature, any contradiction or ambiguity in the contract must be strictly construed against the insurer, the party who drafted the policy. La. C.C. art. 2056. However, the fact that a policy provides general coverage, but then subjects it to certain exclusions, does not make the policy ambiguous. Bilyeu v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA , 50,049 (La. App. 2 Cir. 9/30/15), 184 So.3d 69, writ denied , 15-2277 (La. 2/19/16), 187 So.3d 462 ; McCoy v. City of Shreveport , 49,428 (La. App. 2 Cir. 11/19/14), 152 So.3d 242, writ denied , 14-2665 (La. 3/13/15), 161 So.3d 640.

As stated above, the policy contains a provision excluding from the definition of an uninsured vehicle a vehicle that is, in fact, insured under the policy. As discussed above, provisions such as these have been standard in insurance policies for decades and have not been found to violate the UM statute or public policy. We do not find that this provision created any ambiguity.

FRIVOLOUS APPEAL

Allstate answered the appeal in this matter and asserted that McGee's argument in this case is frivolous, warranting the award to Allstate of costs and attorney fees associated with the appeal. This argument is without merit.

Legal Principles

The court may award damages for a frivolous appeal in civil cases as provided by law. URCA 2-19. La. C.C.P. art. 2164 grants the appellate court the authority to address the issue of frivolous appeal from the proceedings conducted before it. The provision states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

La. C.C.P. art. 2164 is penal in nature and is to be strictly construed. Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be allowed. Damages for a frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay, that the appeal fails to raise a serious legal question, or that counsel is not sincere in the view of the law he advocates, even though the court is of the opinion that such view is not meritorious. Cox v. O'Brien , 49,278 (La. App. 2d Cir. 8/13/14), 147 So.3d 809, writ denied , 14-1907 (La. 11/21/14), 160 So.3d 972 ; Delta Land & Inv., LLC v. Hunter Estates, Inc. , 51,069 (La. App. 2 Cir. 1/11/17), 211 So.3d 1255, writ denied , 17-0264 (La. 3/31/17), 217 So.3d 364. See also Nesbitt v. Nesbitt , 46, 514 (La. App. 2d Cir. 9/21/11), 79 So.3d 347, writ denied , 11-2301 (La. 12/2/11), 76 So.3d 1178 ; Pratt v. Louisiana St. Med. Ctr. in Shreveport , 41,971 (La. App. 2 Cir. 2/28/07), 953 So.2d 876.

Although an appeal or answer to the appeal is required for appellate review and modification of the trial court's award of damages, the issue of frivolous appeal first arises at the appellate court level and, therefore, may be adjudicated and remedied by this court. Delta Land & Inv., LLC v. Hunter Estates, Inc. , supra .

Any doubt regarding whether an appeal is frivolous must be resolved in the appellant's favor. City of Ruston v. Perritt , 30,896 (La. App. 2 Cir. 9/23/98), 718 So.2d 1044 ; Miralda v. Gonzalez , 14-0888 (La. App. 4 Cir. 2/4/15), 160 So.3d 998.

Discussion

Allstate contends that this appeal is frivolous, warranting the award of costs and attorney fees on appeal, because the legal issue in this matter is well settled and the same argument was asserted by the same attorney and was rejected by this court in January 2018 in Mills v. Mills , supra . We note that this appeal was taken in November 2017, before the decision in Mills was rendered. Also, Mills involved some additional matters that are not at issue in this case. Further, Allstate did not urge any claims below for any relief pursuant to La. C.C.P. art. 863. Allstate's arguments pertaining to frivolous litigation are being urged for the first time before us.

In opposing Allstate's claim that this appeal is frivolous, McGee's attorney asserts that the argument was made in good faith and that he "whole-heartedly believes and asserts that the UM statute should be applied to find that Allstate is liable to Easter McGee for UM coverage in this case." He essentially maintains that decades of jurisprudential interpretation of the UM statute on the issue presented here are wrong. He implores this court to reverse itself and to ignore longstanding and well-reasoned jurisprudence on this exact issue by other courts of this state and the Louisiana Supreme Court. As set forth above, McGee's arguments have failed to persuade us. Because appeals are favored, we decline to award appellate attorney fees to Allstate. It appears that counsel for McGee is sincere in the view of the law advocated. Also, it does not appear that the appeal was taken for purposes of delay. However, in the future, counsel for McGee should consider himself to have been twice warned by this court on this issue.

CONCLUSION

For the reasons stated above, we affirm the trial court's grant of summary judgment in favor of Allstate, rejecting McGee's claims for UM coverage. We reject Allstate's claim that the appeal is frivolous, warranting the imposition of attorney fees. Costs in this court are assessed to McGee.

AFFIRMED; FRIVOLOUS APPEAL CLAIM DENIED.

      McGee also sued her own insurer, Safeco Insurance Company of Oregon ("Safeco"), for UM coverage. Safeco filed a motion for summary judgment because McGee rejected UM coverage on her policy. At the same hearing in which Allstate's motion for summary judgment was granted, the trial court granted Safeco's motion for summary judgment and dismissed McGee's claims. She did not appeal that ruling.

      The origins of La. R.S. 22:1295(2)(b) are found in Acts 1972, No. 137, which became effective on January 1, 1973. At that time, the UM statute was amended to provide an additional definition of uninsured motor vehicle and was found in La. R.S. 22:1406(D)(2)(b). The new provision stated:
      For the purposes of this coverage the term "uninsured motor vehicle" shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.
      The provision was again amended by Acts 1974, No. 154, § 1. At that point La. R.S. 22:1406(D)(2)(b) was amended to its present form. No further substantive amendments were made to this provision, which now is designated as La. R.S. 22:1295(2)(b). Acts 2003, No. 456, § 3, renumbered the UM statute as La. R.S. 22:608. Acts 2008, No. 415, § 1, effective January 1, 2009, renumbered the UM statute as La. R.S. 22:1295.

      Several other insurance coverage issues were also raised in this case.

      McGee argues that the jurisprudence has stricken provisions in insurance policies that conflict with the purpose of the UM statute, finding that they violate public policy. McGee cites Mednick v. State Farm Mut. Auto. Ins. Co. , 09-183 (La. App. 5 Cir. 1/26/10), 31 So.3d 1133, which held that insurance policy language excluding from the definition of an uninsured motor vehicle any government-owned vehicle was against public policy, and unenforceable. See also Powell v. Allstate Ins. Co. , 233 So.2d 38 (La. App. 2 Cir. 1970), which refused to enforce an insurance policy provision which excluded a municipally owned vehicle from UM coverage. These cases differ factually from the present case and are not dispositive of this matter.

      La. C.C.P. art. 863 provides, in part:
      A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
      B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
      ....
      (2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
      ....
      D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
      E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
      ....
      G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Justin A. MANSON, Appellant
    No. 52,311-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MEKISHA SMITH CREAL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and McCALLUM, JJ.
   MOORE, J.

Originally charged with molestation of a juvenile under the age of 13, Justin A. Manson was found guilty of indecent behavior with a juvenile under the age of 13 and sentenced to 22 years at hard labor, including two years without benefits. He now appeals his conviction and sentence. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

In April 2015, the 12-year-old victim, LA, told her mother, BA, that the 23-year-old Manson had been touching her inappropriately. Manson was the son of BA's live-in boyfriend, and had lived in the house with LA, BA and other relatives for years; LA considered him a stepbrother. BA took LA to University Health for a sexual assault exam, and Shreveport Police were notified. The sexual assault nurse examiner found a positive dye uptake and micro abrasions at the bottom of LA's vaginal opening, consistent with a sexual assault.

At the hospital, LA told Det. Monique Robinson that she had been sexually assaulted by Manson, "most recently" the day before. LA and her mother consented to a physical evidence recovery kit ("PERK") to obtain DNA from LA's bodily samples and scheduled an interview for LA at Gingerbread House. Det. Robinson also got Manson to give DNA samples.

In this interview, which was video-recorded and played for the jury, LA stated, with candor and precision, that Manson had touched and inserted his hands into her vagina, and this progressed to sexual intercourse, vaginal and anal, which occurred "numerous times." Genetic testing on the PERK showed that DNA taken from LA's vaginal and cervical swabs, and her vaginal washings, were consistent with Manson's DNA, or a male within his paternal lineage.

Police obtained an arrest warrant and took Manson into custody on June 3, 2015.

PROCEDURAL HISTORY

The state charged Manson with molestation of a juvenile under the age of 13, La. R.S. 14:81.2 A(1) and D(1). In response to discovery, the state disclosed that Manson had previously pled guilty to carnal knowledge of a juvenile, in Bossier Parish in September 2010, receiving a sentence of three years at hard labor, suspended, with two years' supervised probation. The state filed a notice of its intent to use this conviction to prove, under La. C.E. art. 412.2, his propensity to engage in sexually assaultive behavior and his lustful disposition toward children. Manson countered that this was other-crimes evidence and inadmissible under La. C.E. art. 404 B. However, after a hearing on the second day of trial, outside the jury's presence, the court ruled the prior conviction was admissible for the purposes of Art. 412.2.

Trial was held over three days in July 2017 before a 12-member jury. The state's witnesses testified as outlined above, and the Gingerbread House video was played for the jury. LA confirmed that she was honest about everything she said in the interview.

The state also offered a certified copy of the bill of information for the prior offense of carnal knowledge of a juvenile, showing that the victim there was a 15-year-old girl, along with certified copies of the court minutes and fingerprints taken in that case; Corporal John McCain, of the Caddo Parish Sheriff's Office, testified that these matched Manson's exemplars taken in open court. Cpl. McCain also testified that in the prior offense, the age difference between Manson and his victim was a little over three years.

Manson did not take the stand, but his girlfriend testified that over the two years she had known him, she never saw any inappropriate behavior between him and LA. The girlfriend's aunt testified that LA "recanted" her accusations in a phone call.

At the close of trial, the court instructed the jury that evidence that the defendant was involved in the commission of an offense other than the one for which he was on trial "is to be considered only for a limited purpose," specifically, "whether it demonstrates a lustful disposition toward children." Further, "You may consider such evidence for these purposes, but may not find him guilty of the offense merely because he may have committed another offense or act."

After deliberating a little over an hour, the jury found Manson guilty of the lesser and included offense of indecent behavior with juveniles when the victim is under the age of 13, La. R.S. 14:81 H(2). The court ordered a presentence investigation ("PSI") and, at a hearing in September 2017, sentenced Manson to 22 years at hard labor, including two years without benefits, and ordered him to register as a sex offender.

Manson filed a motion for new trial urging that the prior conviction, carnal knowledge of a juvenile, involved consensual acts, did not show a lustful disposition toward children, and admitting it into evidence deprived him of a fair trial. He also filed a motion to reconsider sentence on grounds that 22 years was apparently excessive for a man of his age (26 at the time of sentencing). The court denied both motions, and this appeal followed.

DISCUSSION

Admission of Art. 412.2 Evidence

By his first assignment of error, Manson urges the district court erred in admitting Art. 412.2 evidence that involved alleged conduct that was not similar to the charged conduct and was unduly prejudicial. He concedes that the state offered no details about the offense that led to his prior conviction, but argues that it arose from "consensual sex with a fellow student at Parkway High School," a fact of which the jury was not made aware. He contends that the fact of his prior conviction of carnal knowledge of a juvenile does not make it any more reasonable that he would molest his stepsister, and it only prejudiced the jury against him. In support, he cites the balancing test described in State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 2015-2291 (La. 4/4/16), 190 So.3d 1203, and submits that the admission of this evidence was not harmless error.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him as a "bad person." La. C.E. art. 404 B(1); State v. Jacobs , 99-0991 (La. 5/15/01), 803 So.2d 933 ; State v. Dale , supra . This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Jacobs , supra ; State v. Prieur , 277 So.2d 126 (La. 1977). However, Art. 412.2 creates an exception to the rule of Art. 404 B(1). State v. Layton , 2014-1910 (La. 3/17/15), 168 So.3d 358 ; State v. Dale , supra . Article 412.2 provides, in pertinent part:

When an accused is charged with a crime involving * * * acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant[.]

The admissibility of evidence under Art. 412.2 depends on whether its probative value substantially outweighs the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403 ; State v. Dale , supra . Article 412.2 does not limit the admissibility of prior acts only to those identical or similar in nature. State v. Wright , 2011-0141 (La. 12/6/11), 79 So.3d 309 ; State v. Johnson , 50,005 (La. App. 2 Cir. 8/12/15), 175 So.3d 442, writ denied , 2015-1687 (La. 9/16/16), 206 So.3d 203.

A trial court's ruling on the admissibility of such evidence will not be overturned absent an abuse of discretion. State v. Wright , supra ; State v. Dale , supra . Even if an appellate court finds that the trial court abused its discretion in admitting evidence under Art. 412.2, the issue is subject to harmless error review. State v. Garcia , 2009-1578 (La. 11/16/12), 108 So.3d 1, cert. denied , 570 U.S. 926, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013) ; State v. Dale , supra .

The main thrust of Manson's argument is that the prior offense, carnal knowledge of a juvenile, was consensual and did not indicate a lustful disposition toward children. In that offense, Manson pled guilty to having consensual sex with a 15-year-old girl when he was 18; in the instant offense, he was charged with molesting a 12-year-old girl when he was 23.

This court rejected a similar argument in State v. Berry , 51,213 (La. App. 2 Cir. 5/17/17), 221 So.3d 967. The 31-year-old defendant in Berry was charged with, among other things, indecent behavior with a 15-year-old male. The trial court allowed the state to offer evidence of the defendant's two prior convictions, both for carnal knowledge of juveniles; the jury convicted him as charged. On appeal, the defendant argued that the court erred in admitting the prior convictions, as the first involved consensual sex between two teenagers (closeness of age, unlike in the charged offense), and the second, a 15-year-old girl (unlike a boy, in the charged offense). This court found the alleged differences immaterial, as the prior convictions were relevant to prove a lustful disposition toward children. Other cases have also held that a prior conviction of carnal knowledge of a juvenile is admissible Art. 412.2 evidence in a trial for molestation of a juvenile, State v. Williams , 11-876 (La. App. 5 Cir. 3/27/12), 91 So.3d 437, writ denied , 2012-1013 (La. 9/21/12), 98 So.3d 334, and for indecent behavior with juveniles, State v. Lestrick , 13-289 (La. App. 5 Cir. 10/9/13), 128 So.3d 421, writ denied , 2013-2643 (La. 4/25/14), 138 So.3d 643.

In the instant case, both the prior conviction and the charged offense involved sexual conduct with underage girls. This satisfied the standard of a lustful disposition toward children. Moreover, the district court's charge thoroughly instructed the jury of the limited purpose for which the prior conviction could be used, and admonished the jury not to convict Manson solely because of his prior offense. Finally, it appears beyond a reasonable doubt that even if the evidence was prejudicial, it did not contribute to the verdict obtained. In addition to the forensic evidence and LA's consistent reports to her mother, the sexual assault nurse examiner and a police detective, LA's video recorded interview at Gingerbread House was remarkably direct and compelling. The district court did not abuse its discretion in finding that the prior conviction satisfied Art. 412.2 and was admissible. This assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Manson urges the court erred in imposing an unconstitutionally harsh and excessive sentence. He argues that the maximum sentence was 25 years, and that he does not merit a near-maximum sentence of 22 years because he is "not the worst of the worst defendants convicted of indecent behavior with a juvenile." He also contends that for a (now) 27-year-old offender, a 22-year sentence is grossly disproportionate to the severity of the offense and constitutes nothing more than needless infliction of pain and suffering, prohibited by State v. Bonanno , 384 So.2d 355 (La. 1980), and State v. Smith , 2001-2574 (La. 1/14/03), 839 So.2d 1.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall , 94-0461 (La. 9/5/95), 660 So.2d 819. No sentencing factor is given greater weight by statute than any other factor. State v. Taves , 2003-0518 (La. 12/3/03), 861 So.2d 144. Manson does not contend that the district court either failed to consider or incorrectly applied any of the Art. 894.1 guidelines. In fact, the court performed a complete and thoughtful analysis of all the factors, finding seven aggravating factors and "absolutely no" mitigating circumstances. The record easily satisfies the first prong of excessiveness review.

The second prong is constitutional excessiveness. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman , 99-1753, 99-1528 (La. 5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7. The issue is not whether some other sentence might have been more appropriate, but whether the district court abused its discretion. Id. ; State v. Presentine , 52,241 (La. App. 2 Cir. 4/5/17), 217 So.3d 590. As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 2007-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Presentine , supra .

The sentence range for indecent behavior with juveniles on a victim under the age of 13 when the offender is 17 years old or older is not less than two nor more than 25 years at hard labor, with at least two years served without benefit of probation, parole or suspension of sentence. La. R.S. 14:81 H(2).

Manson's sentence of 22 years at hard labor, including two years without benefits, is obviously near the maximum and is a harsh sentence. The district court aptly found, however, that Manson's criminal history was "troubling," as it showed a tendency to disrespect the law, orders of the court, and the sanctity of children's bodies. The victim's Gingerbread House interview graphically recounted that Manson had used his hands on and in her private parts for months, inserted his penis in her vagina "numerous times," and entered her anus twice. This pattern of repeated and persistent conduct, paired with Manson's criminal history, would support a maximum sentence. However, because the jury gave Manson the "benefit of a responsive verdict on [a] lesser crime," the court stated it would follow their lead and not impose the maximum. On this record, we find no abuse of the district court's sentencing discretion. This assignment lacks merit.

CONCLUSION

In addition to the assigned errors, this court has reviewed the entire record and finds nothing that would constitute error patent. La. C. Cr. P. art. 920 (2). For the reasons expressed, Justin A. Manson's conviction and sentence are affirmed.

AFFIRMED .

      Manson had also pled guilty to misdemeanor carnal knowledge of a juvenile in February 2010; to violating a protective order in June 2010; to attempted failure to register as a sex offender in April 2011; and had his probation revoked in August 2011.

      In addition to the offenses listed in footnote 1, Manson was charged with failure to register as a sex offender in 2015, but that charge was dropped at the conclusion of the instant trial.


author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Lynn Tony CLARK, Jr., Appellant
    No. 52,256-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Chad Ikerd, Counsel for Appellant
    DANIEL W. NEWELL, District Attorney, TERESA CULPEPPER CARROLL, TAMMY LENN GANTT JUMP, BENJAMIN J. BLEICH, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal arises from the Second Judicial District Court, Parish of Bienville, State of Louisiana. The defendant, Lynn Tony Clark, Jr., was convicted of principal to armed robbery with a firearm in violation of La. R.S. 14:24 and 14:64.3, and principal to aggravated second degree battery, in violation of La. R.S. 14:24 and 14:34.7. Clark was sentenced to 20 years at hard labor on the conviction for armed robbery and 10 years at hard labor on the conviction for aggravated second degree battery, to run concurrently. Clark was subsequently adjudicated a habitual offender, but his original sentence was not vacated. For the following reasons, Clark's conviction is affirmed, his habitual offender sentence is vacated, and the matter is remanded for resentencing.

FACTS AND PROCEDURAL HISTORY

On April 21, 2016, LaDarrius Coleman was the victim of a robbery and sustained a gunshot wound to the head. Coleman survived his injuries and positively identified individuals involved in his attack. Coleman did not name Lynn Tony Clark, Jr. as someone who participated in the crime, nor was he able identify Clark in a photo lineup. Following an investigation by the Bienville Parish Sheriff's Office, Clark was arrested and charged by amended bill of information with principal to armed robbery with a firearm in violation of La. R.S. 14:24 and 14:64.3, and principal to aggravated second degree battery, in violation of La. R.S. 14:24 and 14:34.7.

Prior to trial, Clark moved to have Coleman sequestered because of the likelihood that his testimony and identification of Clark would be influenced by the testimony of other witnesses. The trial court ruled that under the exceptions to La. C. E. art. 615(B)(4), Coleman had a right to remain in the courtroom and was not subject to the sequestration order. A jury trial commenced where Coleman testified along with 13 other witnesses. Clark was found guilty as charged on both counts. A motion for new trial, re-urging Clark's objection to Coleman's presence in the courtroom for the entirety of the trial, was denied. Clark subsequently was sentenced to 20 years at hard labor on the conviction for armed robbery and 10 years at hard labor on the conviction for aggravated second degree battery, to run concurrently. Clark's motion to reconsider sentence was denied.

Following Clark's conviction, the state filed a habitual offender bill of information, a contradictory hearing was held, and Clark was adjudicated a habitual offender. The trial court declined to vacate Clark's prior sentence and maintained Clark's sentence as 20 years at hard labor. This appeal by Clark ensued. For the following reasons, we affirm Clark's conviction, vacate his sentence, and remand the case for resentencing.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Clark argues that the state failed to sufficiently prove that he was guilty of principal to armed robbery and principal to aggravated second degree battery. He asserts that Coleman identified Clark as a participant in the robbery only after sitting through several days of testimony. Further, Clark argues that the circumstantial evidence (i.e. , text messages allegedly sent from Clark's phone after the robbery) was insufficient evidence to prove him guilty because it was shown that India Feazel was in possession of Clark's phone following the crime. We disagree.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Hearold , 603 So.2d 731 (La. 1992). See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 1996-1048 (La. 10/4/96), 680 So.2d 1165.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Green , 49,741 (La. App. 2 Cir. 4/15/15), 164 So.3d 331 ; State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 2012-2667 (La. 5/24/13), 116 So.3d 659. The trier of fact makes credibility determinations and may accept or reject the testimony of any witness.

State v. Casey , 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78 ; State v. Gullette , 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753.

When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes , 2005-0992 (La. 11/29/06), 943 So.2d 1047 ; State v. Clark , 50,137 (La. App. 2 Cir. 9/30/15), 181 So.3d 150, writ denied , 2015-2049 (La. 11/29/16), 211 So.3d 386.

A reviewing court may not impinge on the factfinder's discretion unless it is necessary to guarantee the fundamental due process of law. State v. Hughes , supra ; State v. Clark , supra . The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied , 2002-3090 (La. 11/14/03), 858 So.2d 422.

Louisiana R.S. 14:64 provides that "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." To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from the person or in the immediate control of another (4) by the use or force of intimidation (5) while armed with a dangerous weapon. State v. Robinson , supra . In order to enhance the sentence under La. R.S. 14:64.3, the state is required to prove that the dangerous weapon used in the commission of the robbery was a firearm. State v. Robinson , supra ; State v. Love , 50,238 (La. App. 2 Cir. 1/13/16), 185 So.3d 136, writ denied , 2016-0317 (La. 2/10/17), 215 So.3d 699.

Louisiana R.S. 14:34.7 provides that "aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury." Under the statute, "serious bodily injury" is defined as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.7(B)(3). Specific criminal intent is that state of mind which exists when 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). Specific intent need not be proved as a fact; it may be inferred from the circumstances of the transaction and the defendant's actions. State v. Bishop , 2001-2548 (La. 1/14/03), 835 So.2d 434. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Fields , 42,761 (La. App. 2 Cir. 1/9/08), 973 So.2d 973, writ denied , 2008-0469 (La. 9/26/08), 992 So.2d 983.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981) ; State v. White , 42,725 (La. App. 2 Cir. 10/24/07), 968 So.2d 901. It is a general principle of accessorial liability that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other, including deviations from the common plan which are the foreseeable consequences of carrying out the plan. State v. Smith , 2007-2028 (La. 10/20/09), 23 So.3d 291.

Testimony

India Feazel testified that Lynn Clark, Jr. was her boyfriend and that on April 20, 2016, he picked her up and together they went to the apartment of Zackary Raburn and Stephanie Jacobs in Arcadia, Louisiana. After a time, when Raburn did not come home, Feazel and Clark went to Feazel's house. At approximately midnight, Raburn texted Feazel and came to her house. Clark, Feazel, and Raburn got high on methamphetamine and then left in Jacobs' vehicle. While in Jacobs' vehicle, Raburn realized that a bag he believed to contain synthetic marijuana actually contained tobacco. Raburn stated that LaDarrius Coleman had ripped him off and that Raburn was "going to get him."

Clark and Feazel picked up Jamie Seguin's white SUV from Feazel's house, and stopped at Raburn's apartment to drop off his vehicle around midnight. Jacobs testified that the men discussed Raburn being scammed by Coleman and what to do about it. The group agreed that Feazel would get Coleman to meet up with her and the men could then talk to him. Raburn testified that Clark suggested that Feazel text Coleman so that they could "beat him up, whatever" and get Raburn's money back. They retrieved some dark hoodies from Raburn's apartment. Jacobs testified that she did not want Raburn to leave with Feazel and Clark, but he went anyway and did not return for four to five hours.

Raburn got into the SUV and they picked up Josh Lofton, Feazel's brother, and drove to Ruston. Raburn discussed paying Coleman back for selling him tobacco, and Clark and Raburn both discussed "scaring" Coleman. Raburn testified that Clark was the only person armed with a gun, identified as a .45 or a 9mm Glock, and that Clark was "very encouraging" when Raburn said that he wanted to beat up Coleman. Feazel confirmed that Clark was the only person armed with a gun. Feazel testified that she texted Coleman and he responded around 2:30 a.m. The group then traveled to Arcadia to initiate their plan to lure Coleman to an abandoned trailer park on Wire Road, Arcadia, Louisiana. Lofton would remain in the vehicle with Feazel while she picked up Coleman and delivered him to the location where Raburn and Clark would be waiting.

Feazel dropped Raburn and Clark off at Wire Road around 3:00 a.m., then went to pick up Coleman and his friend Chuckie. Coleman testified that Feazel picked him up around 10:00 to 11:00 p.m. so that they could have sex for a few dollars. Feazel dropped Chuckie off and proceeded to Wire Road, sending Raburn a text message at 3:23 a.m. to let him know that she was on her way with Coleman. Coleman was unaware that Lofton was lying on the back seat of the SUV. At 3:28 a.m. Feazel texted Raburn that she was "about to pull up." Raburn responded at 3:36 a.m. with "go down the road." Feazel explained that she initially passed up the "horseshoe" on Wire Road and had to turn around. Raburn testified that it was actually Clark texting with Feazel from his phone at that time. Raburn testified that while he and Clark were waiting for Coleman to arrive, Clark had handed him the gun.

Feazel testified that after the vehicle stopped, Lofton "popped up" from the back seat and forced Coleman from the vehicle. Coleman could not recall where Feazel took him, remembering only that it was in the woods. Raburn, using the gun, and Clark then forced Coleman to the back of the vehicle. Lofton testified that Clark was wearing a black hoodie, gloves, and black pajama-like pants. Coleman testified that the men took his cell phone, cigarettes, cocaine, an X pill, and some marijuana from his pockets. Raburn testified that Lofton took the items from Coleman, while Lofton testified that it was either Clark or Raburn who robbed Coleman.

Coleman stated that all three men hit him and were "just all right there." He testified that he was struck with hands and with weapons. Raburn fired the gun into the air, while Clark and Lofton threatened to cut Coleman using Raburn's knife. Coleman said that, when he heard the first gunshot, he fell to the ground. Raburn testified that he, Clark, and Lofton intended to terrorize Coleman.

Raburn testified that, after Coleman had been beaten and the first shot fired, he knelt beside Coleman and told him that he should, and could, kill him but was not going to. Raburn testified that Clark questioned him about leaving Coleman alive, reminding him that Coleman knew where he lived and that he had children. Raburn stated that, when he thought about his children, he snapped and shot Coleman in the head.

Lofton testified that Raburn and Clark were never more than ten yards apart during the entire incident. Raburn testified that Clark was standing beside him when Coleman was shot. Feazel testified that, after approximately three minutes of arguing, she heard a gunshot, then she heard a second gunshot approximately one minute later. Jacobs testified that Raburn later told her that Clark's only involvement was to state "if you leave [Coleman] here, he's going to go back to your apartment and kill your wife and kids," as they were walking back to the vehicle.

All three men and Feazel got back into the vehicle. The gun was placed on the center console and Clark retrieved it. Coleman was left, severely wounded, at the scene. Feazel testified that, after leaving the scene, everyone was excited and scared, even taking turns shooting the gun out of the vehicle windows. Raburn denied shooting the gun from the vehicle. Lofton testified that Raburn and Clark were "gloating" over shooting Coleman. Feazel testified that Raburn handed Coleman's cell phone to Clark, who broke the phone and threw it from the window. Lofton recalled smoking Coleman's marijuana, while Feazel and Raburn recalled smoking Coleman's cigarettes.

Feazel dropped off Lofton and Raburn at their homes, then returned to her home with Clark around 5:00 to 5:30 a.m. She testified that she took Clark back to Grambling around daylight. She did not see him again until April 24, 2016, when they stayed at a hotel in Ruston together.

Rebekah Landes testified that on the morning of April 24, 2016, she and her aunt discovered a man lying in the road near her home on Wire Road in Arcadia, Louisiana, wearing only his boxers. Jeanie Landes, Rebekah's mother and a nurse, was called to come to the scene. Rebekah reported that the man was slightly responsive, had been shot, and appeared to have been beaten. Phillip Picou, a paramedic who responded to the scene, testified that Coleman was very disoriented, had a gunshot wound to his head near his right eyebrow, and was covered in insect bites. Rusty Gilbert, a flight paramedic, testified that he transported Coleman from Bienville Medical Center to University Health in Shreveport. He also observed a gunshot wound to Coleman's head.

The following day, in the woods across the street from her house, Rebekah's dog dug up a bloody T-shirt. Rebekah and Jeanie also discovered nearby a man's wallet, headphones, and a bag of synthetic marijuana. Deputy Sheronda Bell, an investigator with the Bienville Parish Sheriff's Office, collected the evidence, which included a .45 caliber spent shell casing. On May 3, 2016, she returned to the scene and collected an additional .45 caliber spent shell casing.

Deputy Bell testified that on April 28, 2016, Joshua Lofton voluntarily reported to the Bienville Parish Sheriff's office and provided information which led to three suspects: India Feazel, Zachary Raburn, and Lynn Clark, Jr. Dep. Bell interviewed Feazel and obtained a warrant for Raburn's arrest. Following a search of Raburn's home, which uncovered a cell phone and narcotics, Raburn gave an interview and took Sergeant Darrell Mills to the scene of the incident involving Coleman. A hoodie belonging to Clark was also seized during the search of Raburn's apartment.

Text messages from April 19 to April 29, 2016, were recovered from Raburn's cell phone. The pertinent messages were entered into evidence. A cell phone was also secured from Feazel at the time of her arrest, but no text messages were recovered. The text messages from Raburn's cell phone corroborated Feazel's testimony.

As a result of his injuries, Coleman stayed in ICU critical care for two to three weeks. Linda Henderson, a home healthcare worker who had known Coleman for over 20 years, testified that Coleman was very different in appearance when he returned home after the shooting. She stated that he could not walk like he used to, the right side of his head was concave where a portion of his skull had been removed, he had difficulty speaking, and he was very forgetful. Coleman testified that he had difficulty finding the right words and tried not to walk much.

Analysis

The evidence presented sufficiently showed that Clark was a principal to the armed robbery of Coleman in that Clark was "concerned in the commission of" taking something of value from Coleman by the use of force and intimidation, while armed with a firearm. The testimony of witnesses showed that Coleman's cell phone, cigarettes, cocaine, X pill, and marijuana were taken from Coleman's person at gunpoint after he was forced from the vehicle by Lofton, Clark, and Raburn. These items were clearly of value to Coleman. Furthermore, Feazel and Raburn testified that the firearm used was supplied by Clark.

The evidence presented also sufficiently supports that Clark was a principal to the aggravated second degree battery of Coleman in that Clark was "concerned in the commission of" the intentional infliction of serious injury upon Coleman with a dangerous weapon. Raburn testified that Clark was the one who suggested that Feazel contact Coleman so that the men could beat him up. Coleman testified that once he was forced from the vehicle, all three men struck him with their hands and weapons. Finally, Coleman was shot in the head with a firearm, clearly a dangerous weapon. While Raburn testified that the men intended to terrorize Coleman, he also testified that he initially did not intend to shoot Coleman but was encouraged to do so by Clark, who implied that if Coleman were left alive he would come to Raburn's apartment and harm Raburn's children. Raburn then shot Coleman in the head. The trier of fact could have reasonably inferred from these circumstances, Clark's provision of the firearm and encouragement, that Clark actively desired the consequences of his actions, the shooting of Coleman. Coleman clearly sustained serious bodily injury as a result of the beating and shooting. He was nearly unresponsive when he was found several days after the shooting, spent several weeks in ICU after being airlifted to University Health, and continues to suffer from difficulty speaking and walking.

The evidence presented at trial was more than sufficient to prove that Clark was guilty of principal to armed robbery with a firearm and principal to aggravated second degree battery. The witnesses clearly testified that Clark participated in the planning of the crime, was present with the other participants at the scene of the crime, encouraged Raburn to shoot Coleman, and provided the firearm that was used. Furthermore, the evidence showed that force or intimidation was used to take something of value from Coleman and that Clark actively participated in the intentional use of force or violence against Coleman with the intent to inflict serious bodily injury. The jury clearly found the testimony of the state's witnesses credible. This court does not assess the credibility of the witnesses or reweigh evidence. Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Clark was guilty as charged. This assignment of error is without merit.

Exclusion of Victim from Order of Sequestration

In his second assignment of error, Clark asserts that the trial court erred in allowing Coleman to remain in the courtroom throughout the testimony of all state witnesses because it influenced his testimony. Because Coleman was not able to identify Clark prior to trial as a person involved in the offense but subsequently made an in-court identification of Clark after sitting through several days of testimony, Clark argues that his constitutional right to a fair trial was violated because Coleman's testimony was not free of influence and did not come from his own memory. Clark asserts that the trial court could have taken remedial measures to prevent such influence on Coleman's testimony, such as having Coleman testify prior to the other witnesses.

Louisiana C. Cr. P. art. 764 and La. C. E. art. 615 permit the exclusion of witnesses from the courtroom or from a place where they can see or hear the proceedings. An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Kimble , 407 So.2d 693 (La. 1981) ; State v. Higginbotham , 46,975 (La. App. 2 Cir. 4/25/12), 122 So.3d 1, writ denied , 2012-1718 (La. 5/24/13), 116 So.3d 658. The victim of the offense is excluded from an order of sequestration. La. C.E. art. 615(B)(4). In examining sequestration violations, the reviewing court considers the facts of each case to determine whether or not prejudice resulted. State v. Holden , 45,038 (La. App. 2 Cir. 1/27/10), 30 So.3d 1053, writ denied , 2010-0491 (La. 9/24/10), 45 So.3d 1072.

In State v. Lyles , 2003-141 (La. App. 5 Cir. 9/16/03), 858 So.2d 35, the court found no error in permitting the juvenile victims to remain in the courtroom during the playing of their videotaped interviews. In State v. Johnson , 2001-2334 (La. App. 4 Cir. 12/4/02), 833 So.2d 508, the court found no error in a daughter's presence in the courtroom during her mother's testimony because both the daughter and mother were victims in the case, and were not subject to the sequestration order. In State v. J.M. , 2006-624 (La. App. 3 Cir. 11/2/06), 941 So.2d 686, the court found that there was nothing in the record to indicate that the victims, who were permitted to remain in the courtroom during each other's testimony, were testifying in support of, or influenced by each other's testimony.

In State v. Porter , 2013-0357 (La. App. 4 Cir. 10/8/14), 151 So.3d 871, writ denied , 2014-2353 (La. 9/11/15), 176 So.3d 1037, the trial court allowed the victim's mother and grandmother, who were testifying witnesses, to remain in the courtroom after they testified. The defendant argued that the trial court erred when the victim's mother was permitted to provide rebuttal testimony after she was present in the courtroom to hear other witnesses' testimony, including the defendant's testimony. The Porter court noted that the trial court attempted to balance the exceptions against the advantages a witness could receive by sequestering the victim's mother and grandmother and that the jury was instructed on their duty to determine credibility of witnesses. Id. at 887. The court held that, under those circumstances, the trial court did not abuse its discretion by allowing the victim's mother to remain in the courtroom after her testimony and allowing her to testify as a rebuttal witness. Id.

Here, during the course of the investigation, Coleman was shown a lineup containing Clark but was unable to identify Clark as one of the suspects involved in the robbery. However, during trial, Coleman identified Clark as being involved in the shooting. Coleman denied that being in the courtroom had affected the veracity of his testimony. However, Coleman did admit that hearing the testimony of other witnesses had helped him to remember "a little bit."

Clearly, as the victim, Coleman had the right to remain in the courtroom and was not subject to the sequestration order. The trial court appropriately weighed the purpose of the sequestration order against the statutory provision excluding victims from a sequestration order and advised the jury that they ultimately weigh the credibility of witnesses based on all of the testimony they hear and see. Furthermore, a witness's failure to identify the suspect at a pretrial lineup does not constitute grounds to bar an in-court identification, but, rather, goes to the weight of that witness's testimony; evidence may be introduced to explain any discrepancy. State v. Long, 408 So.2d 1221 (La. 1982) ; State v. Marshall , 44,121 (La. App. 2 Cir. 4/8/09), 6 So.3d 1051, writ denied , 2009-1113 (La. 1/22/10), 25 So.3d 130. Coleman's testimony was not the sole, or even the most compelling, evidence against Clark. The totality of the corroborating evidence identified Clark as a participant in the crime; therefore, Clark fails to show he was substantially prejudiced by Coleman's presence in the courtroom during the entirety of the trial. Given the foregoing, there was no abuse of discretion, and this assignment of error is without merit.

Habitual Offender Proceeding and Errors Patent

In his third assignment of error, Clark asserts that the trial court erred in failing to fully justify on the record why it found clear and convincing evidence that he deserved relief under State v. Dorthey , 623 So.2d 1276 (La. 1993), because the mandatory minimum sentence he faced as a second offender was constitutionally excessive. While Clark does not object to the trial court's downward departure from the statutory minimum, out of an abundance of caution he raises the issue and argues the case should be remanded with instructions for the trial court to state clearly for the record that it found that the statutory minimum sentence was excessive, its reasons for ruling, and its justification for offering Dorthey relief. Because there are errors patent which necessitate that we vacate Clark's habitual offender sentence and remand this matter for resentencing, we do not address whether Clark's sentence complied with the requirements of Dorthey .

Pursuant to La. C. Cr. P. art. 920, we have examined the record for errors patent and find that the trial court failed to comply with the requirements of La. R. S. 15:529.1(D). The habitual offender bill of information lists Clark's prior felony conviction as well as both of the instant convictions, asserting that Clark is a second-felony habitual offender. Following Clark's habitual offender hearing, the trial court stated in pertinent part:

But in this court's opinion I think that Mr. Clark should not get more than what the actual shooter got. So therefore I'm going to find that he's a habitual offender but I'm not going to vacate the sentence and add any additional time. I'm going to leave it at the twenty years.

Notably, the court minutes accurately reflect the transcript.

When the court adjudicates a defendant a habitual felony offender, "the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination." La. R. S. 15:529.1(D)(3). When a defendant's original sentence on an underlying offense has not been vacated by the court at the time of defendant's sentencing as a habitual offender, the original sentence remains in effect and the subsequent sentence as a habitual offender is null and void. State v. Lyles, 17-405 (La. App. 5 Cir. 2/21/18), 239 So.3d 1055. However, where it is obvious that the trial court intended to increase the substantive sentence, and correction of the illegal sentence does not involve the exercise of sentencing discretion, the appellate court may amend to correct, without remanding for resentencing. State v. Bailey , 49,362 (La. App. 2 Cir. 11/19/14), 152 So.3d 1056, writ denied , 2014-2645 (La. 10/2/15), 178 So.3d 988.

Here, the record is clear that the trial court failed to vacate Clark's previous sentence. It is likewise clear that, where the trial court elected to "leave it at the twenty years," the trial court did not intend to increase Clark's substantive sentence. Furthermore, the trial court did not provide written reasons for its findings, stating only its opinion that "Mr. Clark should not get more than what the actual shooter got." Therefore, correcting Clark's sentence would involve the exercise of sentencing discretion and remand to the trial court is required.

Furthermore, La. R. S. 15:529.1(D)(2) requires that following the contradictory habitual offender hearing, the court shall find whether a defendant is a second, third, or fourth felony offender. State v. Thibodeaux , 2012-300 (La. App. 3 Cir. 10/24/12), 100 So.3d 398, 402. Likewise, a trial court must specify which of multiple underlying sentences is being enhanced under La. R. S. 15:529.1. State v. Small , 37,134 (La. App. 2 Cir. 6/27/03), 850 So.2d 1019, writ denied , 2003-2202 (La. 1/30/04), 865 So.2d 75. A sentence that is indeterminate must be set aside and the case remanded for resentencing as the law directs. Id.

Clark was convicted at trial of both aggravated second degree battery, which carries a maximum sentence of 15 years' imprisonment, and armed robbery, committed with a firearm, which carries a maximum 104 years' imprisonment. La. R.S. 14:34.7, 14:64, 14:64.3. However, the trial court did not specify whether Clark's conviction for armed robbery or aggravated second degree battery was used in adjudicating him a habitual offender. As such, it is unclear what the appropriate sentence would be under the habitual offender statute. When sentencing a second felony habitual offender, if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence of imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1(A)(1). Considering the vast difference in sentencing range for the two crimes of which Clark was convicted, the habitual offender sentence imposed by the trial court is clearly indeterminate and remand is required.

Because we cannot determine from the sentencing proceedings whether the trial court imposed an illegally lenient habitual offender sentence, we pretermit a discussion of Clark's assignment of error that the trial court failed to provide adequate justification for its apparent offer of Dorthey relief and his request for clarification.

CONCLUSION

For the foregoing reasons, the conviction of Lynn Tony Clark, Jr. is affirmed. The habitual offender sentence is vacated and this matter remanded to the trial court for resentencing consistent with this opinion.

AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING.

      The state filed an application for writ of supervisory review seeking review of Clark's habitual offender sentence, a downward departure from the mandatory minimum under State v. Dorthey, 623 So.2d 1276 (La. 1993). This court denied the writ, finding that Clark had already appealed his convictions and sentences and that this issue could be raised and addressed on appeal. State v. Clark , 52,257-KW (La. App. 2 Cir. 5/10/18).


author: WILLIAMS, C.J.

text:
    STATE of Louisiana, Appellee v. James E. BURCH, Appellant
    No. 52,247-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. BURCH, Pro Se
    JOHN F. BELTON, District Attorney, WILLIAM K. GREEN, TRACY W. HOUCK, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, STEPHENS, and BLEICH (Pro Tempore ), JJ.
   WILLIAMS, C.J.

The defendant, James Burch, was charged by bill of information with attempting to disarm a peace officer, a violation of La. R.S. 14:27 and 14:34.6, and public intimidation, a violation of La. R.S. 14:122. After a jury trial, defendant was found guilty as charged. Defendant's motions for post-verdict judgment of acquittal and for new trial were denied. The trial court adjudicated defendant a third felony offender and sentenced him to serve 3 years at hard labor for the attempt to disarm conviction and 4 years for the public intimidation conviction. Defendant appeals his convictions. For the following reasons, we affirm.

FACTS

The record shows that on June 24, 2015, Deputy Trey Tull and Deputy Montrel Ferguson of the Union Parish Sheriff's Office were dispatched to a residence in Marion, Louisiana, in response to a disturbance call. At the residence, Teresa Burch told the deputies that defendant, her cousin, had used a rake to rip the screen door and poke her several times through the door. Deputies Tull and Ferguson went to defendant's residence and saw him sleeping through an open window. The deputies entered the dwelling and woke defendant, who cursed at them and seemed quite intoxicated. Based on Ms. Burch's allegations, defendant was placed under arrest, handcuffed and advised of his Miranda rights. Deputy Tull took defendant outside and told him several times to get into the back seat of the police car. According to the deputies, defendant did not comply, but continued cursing at them and then took a step away from the vehicle. At that point, Deputy Tull activated his Taser and pressed it on defendant's hip. Defendant then grabbed the Taser and as he turned away Deputy Tull pushed him into the back seat and pulled the Taser from defendant's grasp. Deputy Tull later stated that during the ride to the Union Parish Detention Center, defendant threatened to "kill him and have his job." Defendant was charged with attempting to disarm a peace officer and public intimidation.

After a trial, the jury found defendant guilty as charged. Defendant's motions for post-verdict judgment of acquittal and for new trial were denied. The trial court adjudicated defendant a third felony offender and sentenced him to serve 3 years at hard labor for the attempt to disarm conviction and 4 years for the public intimidation conviction, with the sentences to run concurrently. This appeal followed.

DISCUSSION

The defendant contends the evidence is insufficient to support the convictions for attempting to disarm a police officer and public intimidation. Defendant argues that he was trying to protect himself, not attempting to take the Taser from the deputy, and that his comments in the patrol car were not intended to influence the deputy in doing his job.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78. This standard, now legislatively embodied in La. C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Mitchell , 50,188 (La. App. 2 Cir. 11/18/15), 181 So.3d 800, writ denied , 2015-2356 (La. 1/9/17), 214 So.3d 863. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Mitchell, supra ; State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Crossley , 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied , 2013-1798 (La. 2/14/14), 132 So.3d 410 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson , 47,913 (La. App. 2 Cir. 4/10/13), 113 So.3d 1209.

Disarming of a peace officer is committed when an offender, through the use of force or threat of force, takes possession of any law enforcement equipment from the person of an officer without his consent when the offender has reasonable grounds to believe the victim is a peace officer. La. R.S. 14:34.6. 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 accomplishment of his object is guilty of an attempt to commit the offense intended. La. R.S. 14:27. Public intimidation is the use of force or threats upon a public officer or employee with the intent to influence his conduct in relation to his position. La. R.S. 14:122.

The attempt to disarm a peace officer and the offense of public intimidation both require specific criminal intent, which 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). Specific intent is a state of mind and, as such, need not be proven as a fact but may be inferred from the circumstances and actions of the accused. State v. Harris , 2000-3459 (La. 2/26/02), 812 So.2d 612.

Public intimidation involves the use of force or threats upon the officer with the specific intent to influence the officer's conduct in performing his duties. State v. Mead , 36,131 (La. App. 2 Cir. 8/14/02), 823 So.2d 1045, writ denied , 2002-2384 (La. 3/14/03), 839 So.2d 34. In Mead, supra , while being transported to the police station after his arrest, defendant stated that he should have shot the officer and that he would do everything he could to get the officer's badge. The officer testified he thought the threats were made to influence his actions in doing his job. This court affirmed the public intimidation conviction, finding that the threats made by defendant before he actually arrived at the police station indicated his specific intent to influence the officer's conduct by persuading him not to complete the arrest or not to respond to any other calls from defendant's residence.

In the present case, Deputy Tull testified at trial as follows: when the deputies approached defendant's house they could see him sleeping through an open window; the officers believed that defendant had committed a felony, so they entered the house and attempted to wake him; when defendant awoke he started cursing at them and seemed impaired; he handcuffed defendant, advised him of his Miranda rights and escorted him to the patrol car; at least three times he told defendant to "get in the back of the car," but defendant refused to get in and then took a step away from the car; due to defendant's non-compliance, Tull removed his Taser from its holster and executed a "drive stun," which involved pressing the Taser against defendant's hip or thigh area; after the Taser was activated defendant grabbed the weapon with a solid grip like he was trying to take it away from the deputy and turned toward the vehicle; Dep. Tull then pushed defendant into the backseat and was able to forcibly pull the Taser from his grasp; while transporting defendant to the detention center, he said he "would kill me and he would have my job"; this statement seemed to be a threat made by defendant with the intent to prevent the deputy from performing his job of arresting and booking defendant.

Defendant took the stand and testified as follows: he conceded that he had previously been arrested; on the night of this offense, he had gone to Ms. Burch's house and she came to the door shaking a hickory stick at him; in response he picked up a rake and "punched it through the screen once" to keep her away from him; he then walked home and went to bed; shortly thereafter, he was awakened "harshly" by the deputies; they immediately put handcuffs on him and would not let him put on a shirt or shoes; one deputy said he wouldn't need a shirt because he was going to jail; defendant then became belligerent and started calling the deputy a "cracker" as they walked outside; at the patrol car, he asked to go get his money that was on the dresser, but the deputy refused and told him to get into the car; when the deputy shocked him with the Taser, defendant said "Man, you ain't got to be Tasing me" and tried to swipe the weapon away; he admitted "maybe I grabbed his Taser," but denied deliberately attempting to disarm the deputy; while in the patrol car he did threaten to kill Deputy Tull because he was upset and angry about being shocked with the Taser, but his comments were not intended to influence the deputy in doing his job.

The trial testimony of the deputies established that defendant refused to comply with Deputy Tull's repeated instructions to get into the car. When defendant began to step away from the car, Deputy Tull used his Taser to inflict a drive stun on defendant's person. Both officers testified that defendant then turned and grabbed the Taser. Deputy Tull testified that defendant had a solid grip on the Taser and pulled as if he wanted to take the weapon away from him. Deputy Tull was required to push defendant into the car and exert pressure with his free hand on defendant's back in order to pull the Taser from his grasp. Deputy Ferguson corroborated this testimony and stated that he heard Deputy Tull tell defendant to let go of the Taser. The jury chose to credit the officers' testimony over the self-serving and inconsistent testimony of defendant. Such credibility determinations will not be disturbed on appeal. The evidence presented was sufficient to support the conviction of attempting to disarm a peace officer.

Additionally, defendant admitted that while in the patrol car he had threatened to kill Officer Tull or have his job. Deputy Tull testified that he believed the statements were threats made by defendant in an attempt to prevent the deputy from bringing him to jail. While defendant testified that he had no such intent, the jury was reasonable in finding that the defendant made the threats with the intent to influence the deputy in performing his job. The evidence presented was sufficient to support the conviction of public intimidation. Thus, this assignment of error lacks merit.

Defendant contends the trial court erred in failing to rule on defendant's motion for post-verdict judgment of acquittal. Such a motion must be disposed of before sentencing. La. C.Cr.P. art. 821. Contrary to defendant's contention, the record shows that at a hearing in June 2017, the trial court denied defendant's motion for post-verdict judgment of acquittal in open court. In addition, the minute entry for June 21, 2017, correctly notes that the motion for post-verdict judgment of acquittal was denied. This assignment of error lacks merit.

Pro se Brief

In his pro se appellate brief, defendant does not specify any particular assignments of error, but vaguely alleges that the testimony of the two deputies was not sufficient evidence to support his convictions and that his trial attorney was ineffective. As stated in the above discussion, we have determined that the evidence presented at trial is sufficient to support the convictions.

In addition, to the extent that defendant is asserting that his trial counsel was ineffective, we note that such a claim is generally more properly raised in an application for post-conviction relief ("PCR") in the trial court, where there is an opportunity for an evidentiary hearing. State v. Ellis , 42,520 (La. App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied , 2007-2190 (La. 4/4/08), 978 So.2d 325. Based upon this record, defendant's claim of ineffective assistance would more properly be raised in a PCR application. Thus, we decline to address the issue at this time.

Defendant also asserts that a member of his family was allowed to remain in the courtroom during trial despite his objection that the person had spoken to a prospective juror. Defendant does not provide any details regarding the identity of the family member or the prospective juror. The juror voir dire was not included as part of the trial transcript in the appellate record, which does not contain such an objection by defendant. However, the record shows that after the jury was sworn the trial court was advised that a juror had spoken with members of defendant's family.

After questioning the jurors, the court excluded the juror who had spoken with defendant's family members and an alternate took his place on the jury. Based upon this record, there is no showing of any error by the court in presiding over the trial proceedings.

Error Patent

In reviewing the record for error patent, we note that the trial court imposed sentence immediately after denying defendant's motion for new trial. La. C.Cr.P. art. 873 provides that if a motion for new trial is filed, sentence shall not be imposed until 24 hours after the motion is denied, unless defendant expressly waives the delay. The record shows that the trial court failed to observe the sentencing delays under Article 873 and there was no express waiver of those delays by defendant. However, defendant did not object to the trial court's failure to observe the delay and there was no showing of prejudice. Thus, the trial court's failure to observe the statute was harmless error. See State v. Lindsey , 50,324 (La. App. 2 Cir. 2/24/16), 189 So.3d 1104.

CONCLUSION

For the foregoing reasons, the defendant's convictions and sentences are affirmed.

AFFIRMED.