author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Wadelen SUMLIN, Appellant.
    Nos. 44,805-KA, 44,806-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Michael H. Idoyaga, New Orleans, for Appellant.
    Charles Rex Scott II, District Attorney, Dale G. Cox, Catherine Marion Estopinal, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

| iWadelen Sumlin was convicted as charged of second degree murder and attempted second degree murder. On the murder conviction, he was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. He was sentenced to 35 years at hard labor for attempted second degree murder, with the sentences to be served consecutively. He appeals. We affirm in all respects.

FACTSITESTIMONY

On January 9, 2007, 17-year-old Shannon Sanders decided to skip her night school classes to spend time with 23-year-old Quantavious Webb. Sanders had met Webb two weeks before at Shreveport’s Grimmett Drive Apartments, located near her home and reachable by a trail which also led to a bus stop she normally used for transportation to night school from her high school classes.

From 4:00 p.m. until 9:00 p.m., Sanders rode as the passenger in Webb’s vehicle while he illegally delivered drugs to his customers. Webb parked his car in the parking lot of the complex, near the same trail Sanders would have taken to return home.

As the two sat talking, a man in dark clothing came to the passenger side of the vehicle, walked in front of the car to the driver’s side, and pulled out a gun. The coroner testified that the perpetrator shot Webb ten times before shooting Sanders once in the left arm. This bullet traveled into and out of each breast and into her right arm. The police found sixteen 9mm spent cartridge casings next to the driver’s side door and collected five bullet projectiles from the ground and from inside the vehicle.

|2Webb was pronounced dead at the scene. Sanders, in great pain, was transported to LSU Health Sciences Center (“LSUHSC”).

The police received intelligence from bystanders and from a confidential informant that “Lando” and “Sneaky” were responsible. The officers knew “Lando” to be Renaudo Baker and that Richard Baker was his brother.

The officers included Richard Baker in one photographic lineup and Renaudo Baker in another. That night, shortly after her admission into LSUHSC and prior to receiving any pain medication, Sanders was presented these two lineups from which she was unable to identify anyone. She later stated that she did recognize Renaudo and Richard Baker as being from the neighborhood.

A photograph of “Sneaky” was not included in the first set of lineups because the officers needed to further investigate his/her identity. Sometime later, after determining that Wadelen Sumlin, the defendant, was known as “Sneaky” on the streets, the officers included a photograph of him in a lineup. This was presented to Sanders in the middle of the night, after she had received morphine and Percocet to treat her pain. She was unable to identify anyone in the third lineup.

Sanders consistently gave the following description of the shooter:

Light complected black male wearing dark pants and a dark jacket and a stocking cap on his head with some of his hair sticking out the bottom of the cap, short and stocky build, and scraggly facial hair.

While in the hospital, visitors told her that “Sneaky” and/or the Baker Brothers were responsible. However, not only was the name “Wadelen LSumlin” never mentioned, the physical description (of “Sneaky”) given to her by these visitors did not match her description of the shooter.

While back home, in the presence of her two siblings, she saw on TV a photograph of a robbery suspect from another crime that had occurred a few days after she had been shot. She began to cry that the man on the screen (Sumlin) was the man who shot her and Webb.

Her father contacted Shreveport Police Dept. Detective Lowell Bowen with this information.

An arrest warrant was issued for Sum-lin. Weeks later, he was found in Dallas and transported back to Shreveport. A Caddo Parish Grand Jury indicted him for second degree murder and attempted second degree murder.

At trial, the State’s first witness was Shannon Sanders, who testified that:

• She and Webb smoked marijuana as Webb supplied his customers with drugs;

• At the time of the shooting, she had known Webb only a couple of weeks;

• The shooter walked to the driver’s side, pulled out a gun, and began to shoot Webb, before pausing briefly and shooting her;

• She did not see his face until he was at the driver’s side window; and

• She identified Sumlin, in court, as the shooter.

The State’s second witness was Tony Moffett, a Shreveport Fire Department paramedic, who observed the scene of the crime and the condition of Sanders from the moment of his arrival until she was admitted |4to LSUHSC. Moffett testified that the light at the scene of the crime was “fairly dim.”

The State introduced the videotaped deposition of Detective Eric Farquhar, one of the responding officers to the scene. Farquhar was on military duty at the time of trial and therefore unavailable. Defendant was present and with counsel when Farquhar’s deposition was taken. His testimony shed light on the physical condition of the scene of the crime. Based on the information he received, he compiled the two lineups containing the photographs of the two Bakers.

Farquhar testified that Sanders appeared to be in pain and that she looked over the lineups for a “brief two or three seconds” before responding that she did not recognize anyone. Farquhar accompanied Detective Bowen to LSUHSC to show Sanders the third lineup (the one containing the picture of the defendant). During this time, he observed Sanders’ speech to be slurred, her eyes glazed over, and that she no longer appeared to be in pain. When questioned about the lighting at the scene, Detective Farquhar stated that “the area is lit up pretty good” and agreed that “there was enough lighting to be able to observe and recognize the features on a man’s face if seated inside the car.”

The State’s next witness was Cary Byrnes, M.D., who qualified as an expert witness as a medical doctor with special expertise in the field of general surgery. Complications from the gunshot wound required Sanders to undergo a brachial artery bypass (to repair damage to her biceps). Dr. |BByrnes testified that Sanders is likely to suffer scarring and nerve damage for the rest of her life.

The State also introduced a videotaped deposition of Detective Lowell Bowen, who was also on military duty and unavailable for trial. Bowen, one of the first responders, testified that the lighting was sufficient for identification purposes.

Bowen further testified that:

• At the scene he received a call from a confidential informant who provided him with the names of some suspects: Sneaky, Little Richard, and Lando;

• He identified three individuals based on their nicknames (“Sneaky” is Wadelen Sumlin, “Little Richard” is Richard Baker, and “Lando” is Renaudo Baker);

• He put together the photographic lineups based on this information;

• He (and others) presented Sanders with the third photographic lineup;

• After Sanders was discharged and subsequent to her viewing defendant’s photograph on the news, Shannon’s father contacted him;

• Bowen acknowledged that he was responsible for giving the news the photographs of the defendant and Richard Baker for a separate shooting in which the victim survived and was able to pick both suspects out of a lineup;

• The same booking photo was used in the lineup shown to Sanders in the hospital and on the news broadcast; and

• Ms. Sanders told Bowen that it was Sumlin who shot her and Webb.

The State then called Deshelle Smith and Sheldon Sanders, Jr., Sanders’ sister and twin brother, who verified their sister’s recognition of Sumlin on television.

Next, the State called Corporal Skylar Vanzant, a Crime Scene Investigator with the Shreveport Police Department, whose duties included | ¡¡protecting evidence and documenting the scene. Vanzant testified that the operational lights in the parking lot/complex effectively illuminated the area where the car was parked (and the shooting occurred). He acknowledged that the bushes on the driver’s side darkened the area somewhat, and that he never found a gun or collected any prints at the scene.

Richard Beighley, a criminalist at the North Louisiana Crime Lab, was qualified as an expert witness in firearms identification. However, since no weapon was ever found, he could only opine as to the type of weapon that could have been used and the possible ammunition count contained therein.

Marcus Alexander testified as to conversations he had with Sumlin following the crime and as to a letter he received from the defendant. He testified that Sumlin confessed to the crime just days after it occurred and asked him to “take care of’ Sanders or to direct another person to do so. He had knowledge of facts unknown to the public, including knowledge of the police escort provided to Sanders.

At the time he testified, Alexander was awaiting sentencing for a felony charge in federal court. The record shows that the State offered him nothing for his testimony other than making his cooperation known to the federal authorities.

Caddo Coroner Todd Thoma, M.D., testified as to the autopsy report, noting that Webb died from gunshots: one in the neck, five in his chest, and four in his arm.

17James Patterson, M.D., was qualified as a medical doctor with special expertise in the field of psychiatry. He gave his opinion as to why Sanders was unable to identify the defendant in the lineup she was shown at the hospital, but was later able to identify him from a picture seen on the news. He offered the following explanation: the timing of the third lineup (the only one containing a picture of the defendant) was at the worst possible time for this patient as she was tired from being up all day and from this ordeal; the requested identification occurred at a time she would ordinarily be asleep; she was in a state of shock and mental distress; she had just been shot and witnessed her friend being killed; and she was cognitively impaired because of the painkillers. Conversely, when she saw the news broadcast, she was well rested, not in a state of mental shock, and no longer under the influence of opiates.

The defendant attacked the identification by Sanders, arguing that the lack of lighting in the parking lot prevented her from observing the person who shot her and Webb, and arguing that her marijuana use affected her memory.

Requanta Young, Marcus Alexander’s fiancée, testified in conformity with him. The State’s last witnesses were two Shreveport Police Dept. Officers: Lt. Brian Strange and Inv. Don Ashley. Their testimony was given as 404(B) evidence, for the purpose of showing motive. Specifically, they each related their experience with gang activity in Shreveport and its connection to the defendant and the deceased. Through their experience, they identified Sumlin as a member of the Grimmett Drive |sGang (noting his tattoo — “GDG”) and Webb as a member of their rivals, the Cooper Road Gang. They gave a timeline of the events leading to this shooting, showing a tit-for-tat scenario of retaliation that was the motivation for the shooting.

DISCUSSION

Defendant assigns three errors: (1) sufficiency, (2) improper other crimes evidence, and (3) the consecutive nature of the two sentences.

Sufficiency

In this assignment, the defendant argues that:

• the evidence presented by the State was full of contradictions and open questions, mainly a questionable delayed identification by the victim, testimony from a felon looking for relief and purported experts who had nothing concrete to say, except that the defendant may have had a motive to commit this crime because he was a member of a gang;

• Shannon’s identification is not credible because it was delayed and she was influenced by friends who told her that the defendant was responsible;

• Alexander is not a credible witness and his testimony is self-serving; and

• the officers who testified as experts on gangs did not have any information about this particular crime and therefore were not credible witnesses.

The State asserts that the jury was fully aware of all of these flaws, yet justly found the evidence to be sufficient to support the verdicts in these two cruel and unnecessary crimes.

|i,The provisions of La. R.S. 14:30.1(A)(1) state in pertinent part:

Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to Mil or to inflict great bodily harm.

The provisions of La. R.S. 14:27(A) state in pertinent part:

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

Our law on appellate review of sufficiency is well settled.

A review of the evidence presented at this trial, viewed under the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is sufficient to support all of the elements of both convictions for the following nonexclusive reasons:

• Sanders, the only eyewitness, identified Sumlin as the shooter;

• There is testimony by an expert in the field of psychiatry rationally explaining the delayed identification;

• The defendant confessed to his friend, Alexander, and asked him to “take care of her”;

• The jury was well aware of Alexander’s pending federal criminal problems, in-eluding his upcoming sentencing, as well as the fact that the State was not offering and was unable to reduce his sentence; and

• There is physical evidence that Sumlin had the specific intent to kill both Webb (who died from the gunshot wounds) and Sanders (who was shot and survived).

It was up to the trier of fact to make a credibility determination and weigh the evidence. These two consolidated records contains ample evidence by which to support a conviction.

Improper La. C.E. art. 404(B) Evidence

Our law on the review of other crimes evidence is well settled.

Defendant argues that the trial court erred in allowing improper La. C.E. art. 404(B) evidence, which was intended to and did show Sumlin to be a bad person.

The State asserts that the evidence of appellant’s gang affiliation was introduced to prove motive, ie., to explain why he would have walked up to a car and started shooting its occupants for no apparent reason. The State argues that but for the testimony of Lt. Strange and Investigator Ashley, the trier of fact would not have known the meaning of “gang script” contained in Sumlin’s letter to Alexander, nor the history of gangs in Shreveport, nor 112the rivalry between the two North Shreveport gangs, all of which establishes Sumlin’s motive for shooting the victims. Had this evidence not been allowed, the jury would have had to decide this case in a vacuum.

Both SPD Lt. Brian Strange and Inv. Don Ashley testified on violent crime in general, with special emphasis on violent crime as it relates to gang activity in the City of Shreveport.

The following 404(B) evidence was at issue pretrial and at trial:

(1) The testimony of Lt. Strange and Inv. Ashley regarding the history of gang activity in Shreveport and specifically the history of conflict between the rival gangs with which Quantavious Webb and the defendant were affiliated;

(2) The testimony of Marcus Alexander, a friend of the defendant, about a conversation he had with him just days after the shooting;

(3) The mail Sumlin sent to Alexander while incarcerated;

(4) The photographs of Sumlin’s tattoos (“GDG” and “Mr. Sneaky”);

(5) Sumlin’s phone call to Alexander while incarcerated;

(6) Sumlin’s membership in the Grim-mett Drive gang;

(7) Webb’s affiliation with the Cooper Road gang; and

(8) The 18 months of gang warfare between the two groups.

The specific evidence, offered to prove motive, intent, preparation and plan for the homicide, is summarized as follows:

• That on December 22, 2006, Quantavious Webb was involved in a verbal altercation at a local gang hot spot, the nightclub Caliente’s, with Calvin Edwards, a member of the Grimmett Drive Gang;

11⅞* That on January 3, 2007, Calvin Edwards, a member of the Grimmett Drive Gang, was killed by Kimberly Daniels, who is from Peach Street;

• That Kimberly Daniels was never prosecuted for the murder of Calvin Edwards because of her convincing claim of self-defense;

• That this series of events gave rise to a “tit for tat” scenario where members of the rival gangs would retaliate against the other for any perceived slight;

• That Sumlin was a member of the Grim-mett Drive Gang, and Quantavious Webb was affiliated with the Cooper Road or Peach Street Apartment Gang;

• That 1-220 was the boundary for these gangs, with the Cooper Road Gang being north of 1-220 and the Grim-mett Drive Gang controlling south of 1-220; and

• That the deceased Quantavious Webb, a member of the Cooper Road or Peach Street Apartment Gang, was physically present at the Grimmett Drive Apartments on the night he was fatally shot.

In State v. Barnes, 28,835 (La.App.2d Cir.12/11/96), 685 So.2d 1148, we stated that members of gangs are not regarded as model citizens and there is an inherent connotation that a gang member is involved in criminal activity. Evidence of defendant’s gang membership may be prejudicial but this does not necessarily mean that the evidence is improper.

Our court has recently reviewed the issue of gang affiliation evidence.

h/The evidence clearly proves that defendant and the deceased were members of rival gangs, that there was mounting tension between the two groups, and that, in the gang world, this type of retaliation is wholly within the bounds of their everyday life. The defendant’s gang affiliation has independent relevance in establishing the defendant’s motive and intent for second degree murder and attempted second degree murder. Gang membership is not dispositive of the issue of guilt, but in combination with the other factual testimony, it is certainly probative.

The trial court properly found this other crimes evidence admissible under La. C.E. art. 404(B). The State proved with clear and convincing evidence the defendant’s gang affiliation and other criminal activities surrounding the instant offenses. The State also proved that the evidence came under one of the exceptions set forth in La. C.E. art. 404(B). The fact of gang affiliation was relevant to show defendant’s motive in killing Webb and trying to kill Sanders. The State showed that the evidence was more probative than prejudicial.

The defendant is a self-proclaimed “Grimmett Drive Gangsta” who was identified by Sanders as the man who shot her and the deceased. The defendant confessed to Alexander and asked him to take care of Sanders. At the absolute worst, this evidence was harmless error. The total of 11 gunshot wounds provide ample evidence to justify the convictions.

Consecutive Sentences

The defendant argues that the imposition of consecutive rather than concurrent sentences violates his constitutional rights. He posits that the [ ^sentences are constitutionally excessive, and not justified by the record, in that the trial court did not provide adequate reasons for running the sentences consecutively.

The State counters that consecutive sentences are warranted here, because:

• there was an appreciable pause between the shooting of the two victims;

• the record provides an adequate factual basis to support consecutive sentences;

• this was the shooting of an unarmed and unsuspecting couple; and

• Sanders, the main witness, was stalked and intimidated prior to the trial.

Our law on appellate review of sentences is well settled.

11(iIn the instant case, the court provided two justifications for the consecutive sentences it imposed: (1) Sanders’ status as an innocent bystander; and (2) the number of shots fired into the victim who died.

Although the defendant is correct in his assertion that the court did not extensively provide its reasons for judgment, this does not automatically require that the consecutive sentences be amended so as to be served concurrently.

The record establishes that Webb was repeatedly shot at close range, unarmed and unsuspecting. In a separate act, some moments later, the defendant shot Sanders, ostensibly a complete stranger, at close range. She survived, but with lasting physical and emotional wounds. This crime was motivated by nothing more than gang affiliation and retaliation. This record supports the imposition of consecutive sentences for these heinous and unnecessary crimes.

ERROR PATENT

Confusingly, the minutes as to the verdicts of the jury, in both records, are flawed. The trial court is directed to order the Caddo Parish Clerk of Court to amend the minutes to conform with the transcript.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . Investigator Ashley testified that on December 22, 2006, at a Shreveport nightclub, Webb had his picture taken with his money fanned out. Calvin Edwards, a member of the Grim-mett Drive Gang, threw his money down in front of Webb as a sign of disrespect. On January 9, 2009, Edwards was fatally stabbed by Kimberly Daniels who is associated with the Cooper Road Gang. Daniels claimed self-defense and was never prosecuted.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

        The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of state witnesses, obviously believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

      . Generally speaking, evidence pertaining to the defendant's commission of crimes, wrongs or acts, other than the one with which he is currently charged, is inadmissible, when the only purpose of such evidence is to prove the defendant’s character and thus his subsequent disposition to break the law. La. C.E. art. 404; State v. Harrison, 604 So.2d 583 (La.1992).
      The underlying rationale is that the prejudicial tendency of such evidence, in that the finder of fact is likely to convict because the defendant is a “bad person” regardless of the strength of evidence against him in the case being tried, outweighs the probative value of the evidence. State v. Gay, 616 So.2d 1290 (La.App. 2d Cir.1993).
      Some exceptions to this general rule are listed in La. C.E. art. 404, which provides in part that:
      [ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
      There are other jurisprudential factors to consider to determine whether evidence of other acts may be admitted.
      First, one of the exceptions listed in Article 404(B) must have some independent relevance, or be an element of the crime charged; in addition, such factor must be a genuinely contested issue at trial. State v. Welch, 615 So.2d 300 (La.1993); State v. Jackson, 625 So.2d 146 (La.1993).
      Second, the state must make a showing of fact which would support a jury finding that the defendant committed the prior act by a preponderance of the evidence. La. C.E. art. 1104; State v. Langley, 95-2029 (La.App. 4th Cir.9/4/96), 680 So.2d 717, writ denied, 96-2357 (La.2/7/97), 688 So.2d 498; State v. Crawford, 95-1352 (La.App. 3d Cir.4/3/96), 672 So.2d 197, writ denied, 96-1126 (La.10/4/96), 679 So.2d 1379.
      Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
      Lastly, the requirements set out in State v. Prieur, 277 So.2d 126 (La.1973) must be met.
      Under Prieur, in order to comply with due process the state is required to:
      (1) give pretrial notice of its intent to use evidence of other crimes; and
      (2) prior to admission of the evidence, show that the evidence is not repetitive or cumulative, serves the purpose for which it is offered, and is not pretext for portrayal of the defendant as a person of bad character.
      Additionally, Prieur requires that, upon request of the defendant, the jury be charged that the evidence was received for the limited purpose of proving an issue for which other crimes evidence may be admitted, such as intent, and that the defendant cannot be convicted of any charge other than the one named in the indictment or one that is responsive to that charge.
      The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Maise, 2000-1158 (La.1/15/02), 805 So.2d 1141. The test for determining harmless error is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, "i.e., was the guilty verdict actually rendered unaltributable to the error.” State v. Casey, 99-0023, p. 13 (La.1/26/00), 775 So.2d 1022, 1033. A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Butler, 30,798 (La.App.2d Cir.6/24/98), 714 So.2d 877, writ denied, 98-2217 (La.1/8/99), 734 So.2d 1222.

      . "The fact of gang affiliation was relevant to show his motive to specifically injure the intended victim, who was affiliated with a rival gang. The record further supports the trial court's finding that the evidence relates to conduct that constitutes an integral part of the [crimes]. Finally, a review of the record supports the conclusion that the state showed that the evidence was more probative than prejudicial.” State v. Brown, 42,054, pp. 12-13 (La.App.2d Cir.8/29/07), 965 So.2d 580, 588, writ denied, 2007-1939 (La.2/15/08), 976 So.2d 174.

      . La. C. Cr. P. art. 883 states in pertinent part:
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.
      There is no requirement that such offenses receive concurrent sentences. Rather, as the statute makes clear, this decision is within the trial court’s discretion. State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 2000-1572 (La.3/23/01), 787 So.2d 1010.
      When the court imposes consecutive sentences for offenses arising out of the same act, it shall consider certain factors and state that it has so considered and provide its reasons for the consecutive sentence. State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993).
      The factors to be considered include tire defendant’s criminal history, State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); and the potential for defendant's rehabilitation, State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987).
      Although the imposition of consecutive sentences for such offenses requires a justification from the evidence or record, a failure on the part of the court to articulate its specific reasons does not require remand as long as the record provides an adequate factual basis to support consecutive sentences. State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writ denied, 2004-0834 (La.3/11/05), 896 So.2d 57, writ denied, 2004-2380 (La.6/3/05), 903 So.2d 452. This record clearly does.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Mary Alice SCARBOROUGH, Plaintiff-Appellee, v. Daniel C. SCARBOROUGH, IV, Defendant-Appellant.
    No. 44,814-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      J. Broocks Greer III, Shreveport, for Appellant.
    Chester Hugh Boyd, Baton Rouge, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| iThe spouses in this case had a separate property regime, and both executed a suretyship agreement to secure the debt of the wife’s incorporated business venture. There were also two other co-sureties in the transaction. After the corporation’s default, the wife paid the entirety of the corporation’s debt and seeks payment in this action from her former husband of his virile share of the indebtedness. Rejecting the husband’s claim that his wife should be considered as the principal debt- or with himself as her surety, the trial court granted her a judgment in the amount of one-fourth of the indebtedness. The husband appeals, and for the following reasons, we affirm.

Facts

After seventeen years of marriage, Daniel C. Scarborough (“Daniel”) and Mary Alice Scarborough (“Mary Alice”) divorced on January 24, 2005. Them marriage was governed by a matrimonial agreement, dated December 17, 1987, which provided for a regime of separate property.

On October 20, 1994, Mary Alice, along with her friend, Lynda Mathis (“Lynda”), incorporated River Cities X-Ray, Inc. (“River Cities”), whereby Lynda became the president and Mary Alice, vice-president. The purpose of the corporation was to provide X-ray services to the local medical community. At the time of its inception, River Cities was wholly owned and operated by its two incorporators.

In January of 1995, within the course and scope of its operations, River Cities leased medical equipment from VGM Leasing, Inc. (“VGM”). |2In order to obtain the lease, VGM required River Cities to provide sureties to secure the transaction. Mary Alice and Daniel, along with Lynda and her husband, Michael Mathis, executed written guaranty agreements.

On September 18, 1997, nearly three years after the corporation’s creation, Mary Alice sold and assigned all of her shares of stock in River Cities to Lynda for approximately $9,000.

River Cities ultimately defaulted on its lease payments to VGM. VGM sued River Cities, along with the four guarantors. VGM obtained two separate judgments. The first judgment was rendered on August 24, 1999, by default, against River Cities and the Mathises, who were unrepresented at the time. The second judgment obtained by VGM, on October 4, 1999, was a consent judgment against the Scarboroughs, who were still married at the time and represented by counsel. Each of these judgments held the individual guarantors liable, in solido, for the principal amount of $21,962.15 plus interest and attorney’s fees.

In August of 2008, Mary Alice, who was now divorced from Daniel, was forced to pay the VGM judgment debt in the amount of $52,662.77 in order to avoid seizure and sale of her home. In exchange for the payment, Mary Alice acquired the two judgments by act of transfer of judgments.

On September 10, 2008, Daniel filed this action seeking a court order to compel Mary Alice to cancel the recordation of the VGM consent judgment that remained an encumbrance on his property. He asserted that the inscription threatened a pending sale concerning his immovable property. In the alternative, Daniel sought a review of the underlying debt |nand a determination of whether he was obligated to pay any portion of the VGM debt because of his 1995 guaranty agreement.

At the hearing of these matters, the trial court ordered Daniel to pay Mary Alice the sum of $13,165.69, representing his virile portion, 25% of the debt, owed by River Cities to VGM. It is from this judgment that Daniel now appeals.

Discussion

Daniel argues that he is not obligated to pay Mary Alice any portion of the VGM judgment because the underlying debt for the lease agreement had been the separate obligation of Mary Alice. At trial and on appeal, both sides argued the application of Civil Code Article 1804. At oral argument, the parties were instructed by this court to brief Civil Code Article 3055. The former article concerns the liability relationship between solidary obligors while the latter concerns the liability among co-sureties. The articles provide as follows:

La. C.C. art. 1804. Liability of solidary obligors between themselves.
Among solidary obligors, each is liable for his virile portion. If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obli-gor.
A solidary obligor who has rendered the whole performance, though subro-gated to the right of the obligee, may claim from the other obligors no more than the virile portion of each.
If the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties.
Art. 3055. Liability among co-sureties.
Co-sureties are those who are sureties for the same obligation of the same obli-gor. They are presumed to share the burden of the ^principal obligation in proportion to their number unless the parties agreed otherwise or contemplated that he who bound himself first would bear the entire burden of the obligation regardless of others who thereafter bind themselves independently of and in reliance upon the obligation of the former.

The guaranty contracts executed by the Scarboroughs and the Mathises amounted to contracts of suretyship. La. C.C. art. 3035; Commercial Nat'l Bank in Shreveport v. Pipe Sales of Shreveport, Inc., 600 So.2d 130 (La.App. 2d Cir.1992). Suretyship creates a liability accessory to that of a principal debtor. Id.; La. C.C. art. 3036. Therefore, as a result of the VGM lease indebtedness, the four individuals executed the accessory contract of suretyship by which they bound themselves to the creditor to fulfill the principal obligation of River Cities. Their accessory contracts were made to provide security for the performance of the obligation of River Cities. La. C.C. art. 1913. The primary obligor for the VGM indebtedness was River Cities.

Since the four sureties in this case were not primary and solidary obligors for the principal contract, we find that Article 1804 does not govern this situation. Instead, the parties were co-sureties, and their responsibilities among themselves in the event of the default of the primary obligor, River Cities, is specifically addressed in Article 3055. Additionally, Civil Code Article 3056 provides that “[a] surety who pays the creditor may proceed directly on or by way of subrogation to recover from his co-sureties the share of the principal obligation each is to bear.” This is |sthe claim which Mary Alice made against Daniel, and the trial court determined his share to be one-fourth of the principal obligation.

Under Article 3055, each of the four sureties is legally presumed to share in the debt owed to VGM in proportion to their number. The presumption that each surety owes his or her virile share may be rebutted upon the showing of either of two circumstances: (i) the parties agreed otherwise or (ii) there was an understanding that the first surety to bind himself would bear the entire burden. The latter is inapplicable to this case since both Daniel and Mary Alice signed the guaranty agreement together. In reference to whether a prior agreement existed, official comment (b) to Article 3055 provides, in pertinent part:

Parol evidence is admissible to overcome the presumption and to show that the sureties agreed among themselves that liability would be proportionately shared or that certain sureties were induced to make their contract with the understanding that others would entirely bear the burden.

At trial, the parties stipulated that no testimony was necessary, and the exhibits concerning the VGM transaction and the corporate ownership of River Cities were submitted into evidence. Therefore, there is no testimony that Daniel and Mary Alice reached a meeting of the minds or agreement that her personal obligation as surety for her corporation’s debt would alleviate Daniel from sharing in the burden of any portion of that debt upon the corporation’s default. There was also no written agreement between them to that effect. Instead, Daniel persists with the argument, ^tracking the last sentence of Article 1804, that the circumstances giving rise to the corporation’s debt concerned only Mary Alice’s interests, that the corporation’s debt and Mary Alice’s surety obligation were really one and the same, and that Mary Alice was therefore obligated for the entire indebtedness with Daniel considered only as her surety. As we have rejected the application of Article 1804 in this case, we must reject Daniel’s argument. Article 3055 requires that these co-sureties reach an agreement concerning their liability for their accessory obligations as sureties. Both expected that the corporation and its endeavors through Mary Alice and other corporate agents would primarily perform the lease agreement and pay the lessor, VGM. The corporate obligation and Mary Alice’s obligation are not one and the same. The secondary obligations involving the personal liability by these parties fell under the presumption for sharing of the primary debt under Article 3055 in the absence of an agreement between the co-sureties. The circumstantial evidence asserted by Daniel does not amount to an agreement between the parties, and the ruling of the trial court assessing Daniel his virile share of the primary obligation is affirmed.

Finally, Daniel also assigns as error the failure of the judgment to order the cancellation of the inscription in the mortgage records from the consent judgment which is presently owned by Mary Alice. The present judgment merely decreed his $13,165.69 debt to Mary Alice, stating, inartfully, that it represented “his 25% of the virile portion owed by River Cities X-Ray, Inc. to VGM Leasing, Inc.” Since the judgment does not clearly reference the prior consent judgment against Daniel which now |7encumbers his property, we will amend the judgment as follows to allow for the cancellation of the judicial mortgage in the event of Daniel’s payment of this judgment:

IT IS ORDERED, ADJUDGED AND DECREED that Daniel C. Scarborough, TV shall pay Mary Alice Scarborough the sum of $13,165.69, with interest until paid, representing his obligation and virile share in that certain judgment dated October 4, 1999, entered in Case No. 436,147-A and recorded under Registry No. 1675488, Mortgage Book 2910, page 458 of the records of Caddo Parish, Louisiana. Upon proof of payment of this judgment to Mary Alice Scarborough, the clerk of court shall cancel the said October 4, 1999 judicial mortgage insofar as said judgment affects the interests of Daniel C. Scarborough, IV.

With this amendment to the trial court’s judgment, Daniel will be entitled to seek cancellation of the judicial mortgage pursuant to La. C.C. art. 3366 and La. R.S. 44:106, after Mary Alice’s acknowledgment and receipt of payment of this judgment.

Conclusion

For the foregoing reasons, the judgment of the trial court is amended and, as amended, affirmed. Costs of this appeal are assessed to appellant.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . While Mary Alice’s appellate brief argues her entitlement to recovery of one-half of the VGM indebtedness from Daniel, she made no answer to the appeal seeking modification of the trial court’s judgment. Moreover, she presented no evidence at trial pursuant to Article 3056 regarding the insolvency of either of the remaining co-sureties.


text:
    STATE of Louisiana, Appellee, v. Brande STOWE a/k/a Brande Stow, Appellant.
    No. 44,815-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Steven Alan Hansen, Monroe, for Appellant.
    Hubert Russell Davis, District Attorney, Jonathan M. Stewart, Kenneth Patrick Haines, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   DREW, J.

11 Brande Stowe entered a Crosby plea to possession of over 400 grams of cocaine in violation of La. R.S. 40:967(F)(l)(c), reserving her right to appeal the trial court’s denial of her motion to suppress evidence. We affirm.

The evidence against defendant was seized during a traffic stop on 1-20 in Bienville Parish.

At the hearing on the suppression motion, Louisiana State Police (“LSP”) Trooper Jason Parker testified that Stowe’s vehicle first came to his attention when her vehicle passed the patrol unit and appeared to have no tags. The troopers began to follow the vehicle. As they approached the vehicle, the troopers saw that the license plate was indeed present.

Both troopers observed the vehicle drift badly across the fog line and then across the line between the two eastbound lanes.

Trooper Parker testified that:

• he turned on his unit’s emergency lights to conduct a traffic stop, in response to which the vehicle’s right turn signal was activated and Stowe'pulled over;

• he instructed the driver to meet him at the rear of the vehicle, at which point she shakily produced her driver’s license;

• when asked for her registration, she went to the front passenger door;

• he followed her and observed a male passenger in the vehicle “acting in a nervous manner” and having trouble sitting still in the car;

• she found an insurance card in her glove box, but no registration;

12* she admitted driving poorly, saying that she and her boyfriend were headed from Dallas to Florida and had been looking for a place to spend the night;

• she told him that she had flown into Dallas to meet her boyfriend’s mother;

• the male passenger was still sitting in the car, calling his “legal people”;

• when asked for identification, the passenger produced a Florida I.D. card identifying him as Terrance Lawrence;

• he told the trooper that Stowe was in the military, a fact she confirmed;

• Parker ran driving and criminal histories on the two people, discovering that her records were clear but that Lawrence had a prior “Schedule II violation”;

• Parker told her that because she had a clear driving record and because of her military status, he was just going to give her a verbal warning, at which point he returned all of her paperwork to her;

• when he mentioned her flight to Dallas, she then said she had driven there;

• finding the change in her story suspicious, he asked about her passenger and about the heavy amount of illegal drugs coming out of the Dallas area;

• she appeared nervous, couldn’t be still, and was constantly moving;

• when asked, she denied carrying anything illegal in the vehicle;

• when asked if he could search the vehicle, she avoided the question;

• he then advised her that the traffic stop was over and that he was conducting a different investigation because he felt that something was wrong;

• he asked her again for consent to search the car, and again she declined;

• he radioed for an LSP Canine Unit, which arrived three minutes later;

• Parker had Lawrence exit the vehicle and patted him down for weapons;

|3* Trooper Sears conducted a K-9 search resulting in an alert for narcotics;

• Stowe was informed that she was not presently under arrest but her rights under Miranda were explained to her;

• a subsequent search of the vehicle yielded nine pounds of cocaine; and

• Stowe and her passenger were both arrested.

The state also introduced into evidence the dash cam video which documented the stop. Trooper Parker explained that the recording feature on the camera begins when the patrol unit’s lights are activated and that the recording rolls back to one minute prior to the activation. Accordingly, when the video portion of the incident begins, the patrol unit is still traveling down the Interstate some distance behind the suspect’s vehicle. Because the camera is largely out of focus, it is simply not possible to determine whether any traffic violation occurs during the recording.

The video confirms Trooper Parker’s testimony as to the basic initial facts of the stop and subsequent investigation, with these clarifications:

• Trooper Parker is unsuccessful in his first attempt to call out over the radio so he asks the defendant to move her vehicle up the road to the next mile marker;

• After the vehicles move, he calls in the identities of the defendant and her passenger and waits approximately 10 minutes for a response;

• When the response comes, Trooper Parker is heard repeating information being given to him over the phone that Lawrence has a Schedule II narcotics violation that had occurred on 1-10 in St. Martin Parish;

• Trooper Parker then exits the patrol unit and asks the defendant to step out of her vehicle, advising her that her driving record is clean Land that he could find no record of a Florida ticket she admitted receiving;

• He then inquires about her earlier assertions that she had flown into Dallas, at which point she says that she drove to Dallas;

• Trooper Parker then tells her that he is just going to give her a warning due in part to her service in the military, though various indicators suggests that something is not right and asks her whether there is anything illegal in the vehicle;

• When she denies that there is, Parker requests consent to search the vehicle;

• She expresses skepticism over the necessity for a search since she was only stopped for “weaving”;

• When asked again for consent, she declines, at which point the trooper calls in the refusal of consent over the radio and asks her to wait for a K-9 unit;

• Three minutes later, a trooper and dog are seen walking around the vehicle and the dog is seen repeatedly raising up on his hind legs and placing his front paws on the trunk of the vehicle;

• She is again asked about anything illegal in the vehicle, which she denies, at which point a manual search of her car reveals the bag of cocaine;

• From the time the stop initiated until the defendant and her passenger are taken into custody, a total of approximately 36 minutes elapsed; and

• About 10 of those minutes went by as the troopers waited for information from Troop F after calling in the identities of the defendant and her passenger.

Lastly, the state introduced radio logs from Troops F and G, establishing the chronology of calls made by Trooper Parker in relation to the defendant’s stop:

9:46 p.m. — Earliest indication of radio contact is on Troop G’s log, which Trooper Parker testified was when the stop was first called in, though he conceded that because he could not establish radio contact where the stop initially occurred, the stop had actually commenced around 9:40 p.m.
[59:51 p.m. — -An entry on Troop F’s log reflects that Parker requested the criminal histories on the defendant and Lawrence.
10:06 p.m. — The trooper called in defendant’s refusal to consent to a search. 10:08 p.m. — Troop F’s log reflects the arrival of the K-9 unit.
10:16 p.m. — Troop F’s log indicates that Parker had made the arrests.

Trooper Timothy Gray, who was riding with Trooper Parker at the time of the stop, testified only in relation to the circumstances leading to the initial stop. His testimony corroborates that of Trooper Parker. He indicated that when the vehicle passed them on the Interstate, they were unable to see a license plate on the vehicle. When they caught up to the vehicle and saw that it did in fact have a license plate, they entered the plate numbers in their computer and rode behind the defendant while they awaited the results. As they followed behind her vehicle, they witnessed a traffic violation when the defendant weaved over the solid line separating the traveled roadway and the shoulder of the road and then back over and across the dashed line separating the two eastbound lanes of travel, prompting the stop that eventually led to the defendant’s arrest.

Defendant argues that since the dash cam video shows no weaving, there was no probable cause for the stop. The court, having reviewed the video, found that it could not tell much about her driving, but noted that the defendant admitted to the weaving on the video after the stop. Accordingly, the trial court found that the stop, search, and seizure were legal, denying Stowe’s motion to suppress.

| ^Defendant pled guilty pursuant to Crosby, supra, reserving the right to appeal the issues of whether the trial court erred in denying her motion to suppress. She was sentenced per a plea agreement to the minimum sentence for this crime: 15 years without benefits, and a $250,000 fine.

DISCUSSION

The defendant argues that (1) the initial stop of her vehicle by the state troopers was unlawful as evidenced by their inability to point out in the dash cam video exactly where the alleged violation(s) occurred; and (2) defendant’s shaking hand and her passenger’s mid-stop consultation with legal counsel did not create reasonable suspicion of criminal activity justifying further detention.

The state argues the initial stop was lawful, given the observations of both officers as well as Stowe’s admissions as to her erratic driving, which established reasonable suspicion of criminal activity for the initial stop. As other suspicious events transpired, further detention was warranted.

Our law on warrantless stops, searches, and seizures is well settled.

|7If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal; the standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So.2d 230. To assess the validity of an investigatory stop, the critical inquiry focuses on the officer’s knowledge at the time of the stop. State v. Williams, 421 So.2d 874 (La.1982).

La. C. Cr. P. art. 215.1(D) states that in conducting a traffic stop, “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” The statute also provides that “nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with the administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.”

La. C. Cr. P. art. 215.1(D) does not preclude a trooper from conducting a routine driver’s license and registration check or from engaging in conversation with a driver and his passenger while he does so. See La. R.S. 32:404(A); La. R.S. 47:511(A); State v. Lopez, 2000-0562 (La.10/30/00), 772 So.2d 90.

If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular ^suspicion. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

There is no bright line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990).

Stowe does not dispute her poor driving. She argues that the stop was unlawful because the video does not prove that any traffic violation occurred.

A review of the dash cam video is unclear. Due to darkness, neither the center dashed dividing line nor the white fog line on either side of the defendant’s vehicle is visible in the video from the beginning of the recording until just before the patrol unit’s lights are activated. Furthermore, during the majority of that portion of the video, the defendant’s car is out of focus, making it difficult to determine either that she did or did not leave her lane of travel. As stated by the trial court, the video simply does not establish the existence or the absence of a violation.

The trial court relied on the testimony of both Trooper Parker and Trooper Gray that as they proceeded behind the defendant’s vehicle, after detecting the license plate, they witnessed it veer to the right over the white fog line and then left over the dashed center dividing line. Defendant offered no evidence to contradict this testimony. Furthermore, the dash cam video indicates that when Trooper Parker informed her that she “had bobbled the white line and the dashed line,” the defendant does not dispute the assertion but instead confirms that she had been getting tired. Because |9this court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, and because no evidence exists to contradict the officers’ assertions, the trial court was not in error to conclude that a lawful traffic violation had occurred.

The issue regarding whether further detention was justified is whether or not additional reasonable suspicion of criminal activity developed after the stop, as per La. C. Cr. P. art. 215.1(D). This record supports the state’s position that it did.

It is clear that the defendant’s shaking hands, her passenger’s call to his “legal people” at the outset of the stop, her conflicting accounts of how she had arrived in Dallas, and her passenger’s prior Schedule II violation on Louisiana’s Interstate system (all of which the dash cam video confirms before Trooper Parker ended the traffic stop portion of the detention), gave the troopers additional reasonable suspicion by which to justify enlarging the scope of their investigation. See State v. Lopez, supra; State v. Burton, 93-828 (La.App. 3d Cir.2/23/94), 640 So.2d 342, writ denied, 94-0617 (La.4/7/94), 641 So.2d 203.

A K-9 unit arrived on the scene within three minutes of the defendant’s refusal of consent to a search. A dog’s sniffing around the exterior of the vehicle does not itself constitute a search. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The certified dog’s subsequent alert, consistent with the other factors giving rise |into the troopers’ reasonable suspicion, gave the troopers probable cause to search for contraband. See State v. Lopez, supra. Approximately six to seven minutes elapsed from the time the traffic stop ended and the time the dog alerted to the presence of narcotics. Under these circumstances, the record fully supports the finding of the trial court that the troopers were diligent in pursuing an investigation that was likely to confirm or dispel their suspicions quickly. Neither the initial traffic stop, nor the narcotics-related extension of the stop, was unlawful. As no rights were violated, the motion to suppress was properly denied.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . As well as to the attention of Trooper Timothy Gray, who was working with Parker.

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

      . The burden for a stop is, in all cases, reasonable suspicion of criminal activity, not the more stringent burden of probable cause.

      . The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App.2d Cir. 10/28/05), 914 So.2d 1168.
      The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
      When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App.2d Cir.9/22/99), 748 So.2d 31.

      . State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.


author: WILLIAMS, J.

text:
    Reba D. MATTHEWS, Plaintiff-Appellant v. BANK ONE CORPORATION, Bank One of Louisiana, N.A., Defendant-Appellee.
    No. 44,818-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.
    Dianne Hill, for Appellant.
    Travis Oliver, IV, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

11 Plaintiff, Reba D. Matthews, appeals a district court judgment granting a peremptory exception of prescription in favor of defendant, Bank One, N.A. The district court dismissed plaintiffs lawsuit with prejudice. For the reasons set forth herein, we affirm.

FACTS

On December 22,1999, plaintiff, Reba D. Matthews, opened a traditional individual retirement account (“IRA”) at Bank One, N.A. (“the bank”). Matthews made an initial deposit of $15,314.20. No further deposits were made into the account; however, multiple withdrawals were made from the time the account was opened until it was closed in March 2000. With the exception of one withdrawal, all of Matthews’ transactions took place at the bank’s branch on Jackson Street in Monroe, Louisiana. However, the transaction in dispute took place at a branch in West Monroe on January 12, 2000. A bank employee allegedly issued a check payable to Matthews in the amount of $2,000; the check was purportedly endorsed and cashed by Matthews.

Matthews alleged that she learned of the $2,000 transaction in March 2000 and questioned the transaction. She denied making the transaction and requested the return of her funds. Matthews asserts that she and the bank went “back and forth” with regard to her claim for the return of her funds, until March 2001. At that time, the bank informed her that no further action would be taken concerning her claim. The bank alleged that Matthews authorized the withdrawal of funds and the proceeds of the $2,000 check 12were deposited into two “minor” accounts in the names of Matthews’ children. Matthews was the authorized signer on both accounts.

On January 3, 2003, Matthews filed a complaint with the Office of the Comptroller of the Currency (“OCC”). By letter dated March 4, 2003, the OCC declined to act with regard to the claim, stating, “[Wjhere a clearly defined factual dispute develops, we would be going beyond our authority in acting as a trier of fact or adjudicator of civil disputes.... If you wish to pursue the issue, we can only advise you to contact an attorney or small claims court advisor.”

On August 20, 2004, Matthews filed a lawsuit, in proper person, against the bank to recover damages caused by the alleged unauthorized withdrawal of the $2,000. Matthews alleged that the bank “knowingly depriv[ed]” her of her funds and prayed that the bank “be ordered to pay the full sum of two thousand dollars ($2,000) plus all interest incurred on this account (if the funds had not been withdrawn).” Matthews also prayed for damages in the amount of $2,000 “for each month beginning January 2000 and continue until this matter be heard and judgment be rendered in favor of petitioner ... for the malicious, unprofessional act of knowingly depriving petitioner of funds entrusted to defendant on its business guarantee that trust and safety was insured to all funds in any amount....”

1 aOn September 13, 2004, the bank filed an exception of vagueness. The district court granted the exception and allowed Matthews to amend her petition. Matthews amended the petition and alleged that the $2,000 was withdrawn from her account “without authorization” and that her name “was signed on the withdrawal slip by the [bank’s] employees authorizing the withdrawal of $2,000.00 from [her] account ‘without’ [her] permission.”

On February 28, 2008, the bank filed a peremptory exception of liberative prescription. On July 28, 2008, the district court granted the exception and again granted Matthews “leave to file an amended petition setting forth appropriate facts constituting different grounds of recovery.” On August 5, 2008, Matthews, this time through counsel, filed a second amended and supplemental petition, alleging that she and the bank entered into a contract when Matthews deposited funds into the IRA account, and the bank breached the contract when it allowed funds to be withdrawn from the account without her authorization. Matthews also alleged that the bank breached its fiduciary duty by paying funds without her authorization.

In response to Matthews’ second amended petition, the bank filed an exception of liberative prescription. The district court sustained the exception and dismissed the action with prejudice. Matthews appeals.

DISCUSSION

Matthews contends the district court erred in referring to LSA-R.S. 10:4— 111, of the Uniform Commercial Code-Bank Deposits and Collections (“UCC”), in its reasons for judgment. She argues that LSA-R.S. 10:4-111 only applies to the liability of a bank with regard to negotiable instruments Land commercial bank accounts. Matthews asserts that the provisions pertaining to general contracts are more applicable to this matter. More specifically, Matthews contends the bank failed to adhere to the terms of the IRA agreement; therefore, she has an action in contract, which is subject to the liberative prescription period of five years. In the alternative, Matthews argues that she has a personal action, which is subject to a prescriptive period of ten years.

On the other hand, the bank maintains that Matthews’ underlying cause of action is conversion, an action that is delictual in nature. Therefore, the bank argues that this matter is governed by LSA-C.C. art. 3492, which provides:

Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained.

In its ruling on the exception of prescription, the district court stated:

[P]laintiff argues the correct prescriptive period to be applied to her claims is the five year period for a breach of contract. Plaintiff attempts to differentiate the cases cited by defendant on the basis that the banks in those cases did not generate a check. In the present case, plaintiff alleges the bank itself generated its own check and an employee forged her name to it. Even though this allegation would have supported a cause of action for conversion and forgery, plaintiff argues it is also a |Bbreach in the bank’s contractual duty. However, plaintiff cites no case law for this point.

In Sanderson v. First National Bank of Commerce, 98-0352 (La.App. 4th Cir.11/18/98), 723 So.2d 1036, writ denied, 98-3110 (La.2/5/99), 738 So.2d 7, the plaintiff filed suit against the bank alleging that the bank improperly used funds from his personal account to cover a corporate check without his authorization. After the district court denied the bank’s exception of prescription, the court of appeal granted writs and reversed, finding that the plaintiff had pled a cause of action in conversion and that the action had prescribed. The court allowed the plaintiff to amend his petition “to allege a contractual claim.” Id. at 1037. Thereafter, the plaintiff amended his petition, alleging, inter alia: 1) he had a contract with the bank; 2) it was the bank’s duty to “safe-keep” funds in his account unless a withdrawal was authorized; 3) the bank breached its contract when it transferred the funds from his personal account into his corporate account; 4) the transfer of funds was illegal, unauthorized, and a breach of warranty. The plaintiff introduced into evidence written documents describing the rights, contractual duties and limitations of both the bank and its customers. The bank filed another exception of prescription, which the district court granted. The court of appeal affirmed, stating:

A careful review of the supplemental and amended petition reveals no new facts regarding the basis of the suit. [The plaintiff] simply alleges the same facts, but recharacterizes or amends them to allege a new cause of action under contract. Although [the plaintiff] alleges additional duties and warranties, they all arise from the same underlying depositor-bank relationship for wrongful transfer of funds previously considered and denied by both the trial court and this court.
[fiThe courts have uniformly considered actions against banks for wrongful transfer or disposition of account funds as conversion actions.... Therefore ... we agree that the trial court was correct in finding [the plaintiff] failed to state any new facts which allege any claim beyond his original conversion claim.

Id. at 1038 (internal citations omitted).

We agree. In the instant case, Matthews originally filed a tort action, alleging that the bank withdrew funds from her account without her authorization and that an employee of the bank forged her endorsement on the check and cashed it. In her amended petition, Matthews attempted to characterize her action as one for breach of contract, alleging that the bank breached its contract by withdrawing funds from her account without her authorization. However, the underlying conduct Matthews continues to complain of is the unauthorized withdrawal of funds from her account. Matthews’ claims constitute an action in conversion or breach of fiduciary duty, both of which have a prescriptive period of one year. See, LSA-C.C. art. 3492, supra, and LSA-R.S. 6:1124. Accordingly, we find no error in 17the district court’s determination that Matthews’ action has prescribed.

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment granting the peremptory exception of liberative prescription in favor of defendant, Bank One, N.A. (now known as JPMorgan Chase, N.A.). Costs of this appeal are assessed to plaintiff, Reba D. Matthews.

AFFIRMED.

      . The lawsuit was answered by JPMorgan Chase Bank, N.A., the successor to Bank One, N.A.

      . According to the bank's records, $1,000 was deposited into the account of Gregory T. Matthews, and $1,000 was deposited into the account of Roy D. Foster or Royce D. Foster.

      . Correspondence between Matthews and the OCC appears in tire record. According to a statement in one of the letters, “[t]he focus of the OCC's review of consumer complaints against national banks is to determine whether the banks' actions are consistent with banking statutes, regulations or any policies that are applicable to nationally chartered banking institutions.''

      . LSA-C.C. an. 3498 provides:
      Actions on negotiable instruments, and on promissory notes whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.

      . LSA-C.C. art. 3499 provides:
      Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.

      . We first note that, unlike the plaintiff in Sanderson, supra, Matthews did not introduce into the record any depositor's agreement, or any other document, evidencing any specific agreement or contractual relationship with the bank. Matthews filed into evidence a copy of the deposit slip for the initial deposit opening the account and copies of multiple withdrawal slips, none of which describe any specific rights, duties or limitations with regard to the relationship between her and the bank. Likewise, there are no documents in evidence to substantiate Matthews’ claim that her traditional IRA account was a trust account.

      . LSA-R.S. 6:1124 provides:
      No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall not extend beyond the scope thereof. Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof. This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.
      (Emphasis added).


author: CHARLES R. JONES, Judge.

text:
    Diana MURPHY, Wife of/and John J. Murphy, Jr. v. CITY OF NEW ORLEANS.
    No. 2009-CA-0567.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      W. Gregory Merritt, Silbert & Garon, LLP, New Orleans, LA, for plaintiff/appel-lee.

      Detrich D. Hebert, Assistant City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for defendant/appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe Appellant, the City of New Orleans (“the City”), seeks review of a judgment of the district court finding the City liable for damages arising out of a trip and fall accident and awarding Appellee, Diana Murphy damages. Concluding that the district court did not err, we affirm the judgment of the district court.

The material facts are not in dispute. The instant matter arises out of a trip and fall incident that occurred as Mrs. Murphy jaywalked across Decatur St. between the 600 and 601 blocks in Orleans Parish. While crossing Decatur St. and looking out for oncoming vehicles, she tripped over a mound of pushed up asphalt and injured her right knee and leg, sustaining a tiblial plateau fracture, which required her to undergo two surgeries and physical therapy-

Alleging strict liability and negligence on the part of the City of New Orleans, Mrs. Murphy filed suit in September of 2001 with her husband, John Murphy, Jr., who filed a claim for loss of consortium. Mrs. Murphy prevailed at 12trial with the district court finding that the City was 100% liable for the accident. The court rendered judgment in the amount of one million one hundred thirty-six thousand five hundred ninety-seven dollars and ninety-nine cents ($1,136,597.99). However, in its Reasons for Judgment, the district court stated that it was awarding damages as follows:

Past Medical Expenses: $314,302.66
Future Medical Expenses: $ 15,000.00
Past Wage Loss: $169,871.33
General Damages (capped): $500,000.00
Total Damages: $999,173.99

The district court would have awarded Mrs. Murphy $700,000.00 in general damages, but statutorily capped her award at $500,000.00 under La. R.S. 13:5106(B), which limits a claimant’s general damages award to a maximum of $500,000.00 in a lawsuit against a political subdivision.

Furthermore, we note that the Judgment of the district court states that Mrs. Murphy was awarded $1,136,597.99 in damages, but the amount contained in the Reasons for Judgment, computed above, is $999,173.99. We find that the amount contained in the Reasons for Judgment is the correct total damage award because the court explains how it computed this award therein.

The district court awarded Mrs. Murphy legal interest on her award from September 14, 2001, through the date of judgment at the rate of six percent (6%) per annum, and assessed all costs against the City. The district court further awarded post-judgment interest on all amounts awarded, including costs’, at the legal rate. Lastly, Mr. Murphy’s claim was dismissed as moot because Mrs. Murphy’s $500,000.00 general damage award exhausted the available general damages that could be awarded against a political subdivision under La. R.S. 13:5106(B).

|sThe City of New Orleans timely filed a motion for appeal, and raises two assignments of error:

1.) the district court erred in finding that the Murphys carried their burden of proof on each element as required in finding negligence or strict liability against a public entity as set forth in La. R.S. 9:2800, and
2.) the district court erred in failing to find any comparative fault on the part of Mrs. Murphy.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Under the manifest error standard of review, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993). Moreover, where two permissible views of the evidence exist, the factfin-der’s choice between them cannot be clearly wrong. Id. In the instant case, we find that the district court’s findings are reasonable in light of the record.

In the first assignment of error raised by the City, it asserts that the district court erred in finding that the Mrs. Murphy carried her burden of proof on each element as required in finding negligence or strict liability against a public entity as set forth in La. R.S. 9:2800. There are four (4) elements that a plaintiff must establish to prevail on a negligence or strict liability claim against a public entity: |41.) the City’s custody or ownership of the defective thing; 2.) the defect created the unreasonable risk of harm; 3.) the City’s actual or constructive notice of the defect and failure to take corrective action within a reasonable time; and 4.) causation. Joseph v. City of New Orleans, 02-1996, p. 3 (La.App. 4 Cir. 3/5/03), 842 So.2d 420, 423 (citing Oster v. Dep’t of Transp. and Dev., State of La., 582 So.2d 1285, 1288 (La.1991); La. R.S. 9:2800). However, the arguments that the City offers in support of this assignment of error reveal that it is only addressing two of the four factors listed in Joseph: 1.) the alleged defect did not create an unreasonable risk of harm, and 2.) the City did not have actual or constructive notice of the defect.

The City first asserts that the push up at issue did not create an unreasonable risk of harm to Mrs. Murphy because it was obviously visible to a pedestrian exercising reasonable care. The City contends that the legal precedents set forth by the Louisiana Supreme Court and this court in White v. Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949) and Orleans Parish School Bd. v. City of New Orleans, 585 So.2d 643, 646 (La.App. 4 Cir. 8/29/91), respectively, further establish that the defect at issue did not create an unreasonable risk of harm. The White case is factually distinguishable from the instant matter because it involves a plaintiff who was injured on a sidewalk as opposed to addressing a plaintiff crossing a major street while avoiding oncoming vehicles; therefore, we focus our discussion of this assignment of error by reviewing our analysis of unreasonable harm in Orleans Parish School Bd.

|fiIn Orleans Parish School Bd., we explained that in order to qualify as a defect, the imperfection or crack in the street must constitute a dangerous condition or pose an unreasonable risk of injury to a prudent person who exercises ordinary care under the circumstances. Id. at 647. To determine whether a risk is unreasonable, the court must balance the probability and magnitude of the risk against the utility of the thing. Id. at 646 (citing Hunt v. City Stores, 387 So.2d 585 (La.1980)). Additionally, determining whether a defect involves an unreasonable risk of harm requires a balancing of claims and interests, a weighing of the risk and the gravity of the harm, and a consideration of individual and society’s rights and obligations. Id. (citing Landry v. State, 495 So.2d 1284 (La.1986), quoting Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983)). The location of the street, the victim’s familiarity with the area, the size and nature of the hole or imperfection, and the victim’s use of ordinary care must be considered in every case. Id. at 647. See Clairmont v. City of New Orleans, 492 So.2d 1247 (La.App. 4th Cir.1986), writ denied 496 So.2d 1048 (La.1986); Carr v. City of Covington, 477 So.2d 1202 (La.App. 1st Cir.1985), writ denied 481 So.2d 631 (La.1986).

In Orleans Parish School Bd., a pedestrian jaywalking across a street injured herself when she slipped and fell on a crack in the street. 585 So.2d at 645. The plaintiff testified that she habitually jaywalked across this particular street as a shortcut, but had never noticed the crack before the accident. Id. The plaintiff sued the City and the State based on negligence and strict liability. While the district court determined that the plaintiff was 50 at fault for the accident, this court | ^reversed finding that the plaintiff failed to show that the crack in the street created an unreasonable risk of harm because she was familiar with the area where the defect was located, and the defect was easily discoverable and noticeable enough for others to avoid. Id.

In the instant case, there is not an exact measurement of the defect at issue, but the district court observed that the asphalt push up measured several inches at its peak and that it was located away from the curb in the traveled portion of the street. Mrs. Murphy, a tourist, traversed Decatur St., a major street in the French Quarter — a main attraction in Orleans Parish for tourists who tend to be pedestrians in that area. She had zero familiarity with Decatur St. because she was a tourist. Furthermore, she crossed Decatur St. outside of the crosswalk located between 600 and 601 Decatur St., according to her testimony and the exhibits introduced at trial. Mrs. Murphy exercised ordinary care in examining the condition of Decatur St. before she attempted to cross the street. In balancing the probability and magnitude of the risk of harm against the utility of the thing, the risk of harm is great to tourists and other pedestrians who often wander out into the street and encounter such push ups, which have no utility other than providing a rougher surface for cars and potential pedestrians to travel. As discussed below, the City, through its Department of Public Works, designated Decatur St. as a major city street and required annual visual inspections under the City’s Streets Maintenance Manual, but the City failed to conduct the inspections. The City had 17an obligation that it failed to uphold. We are precluded from finding that the district court committed manifest error under the unique circumstances presented.

The City’s second argument — under the first assignment of error — is that because it does not have an independent duty to inspect city property, it, therefore, did not have constructive notice of the alleged defect and cannot be held to be liable for Mrs. Murphy’s fall. Constructive notice is defined by La. R.S. 9:2800(C) to mean “the existence of facts which infer actual knowledge.” The City maintains that it is made aware of defects in its roadways only when complaints are lodged via telephone or from people walking-in. The City asserts that it does not have a policy on the routine inspection, assessment, structural capacity evaluation or budgeting for specific maintenance problems of the streets within the City. Yet, the district court determined that the City did have such a policy in effect. We agree with this finding.

A party may have constructive knowledge of a dangerous condition if it has a policy of actively preventing the dangerous condition from occurring. Pitre v. Louisiana Tech Univ., 673 So.2d 585, 593-95. There is no independent duty to inspect city property, and therefore, the City’s failure to do so, does not impute to the City constructive knowledge of defects in its streets. Jones v. Hawkins, 98-1259, p. 7 (La.3/19/99), 731 So.2d 216, 220.

The district court decided that the City Streets Manual authored by Mr. Marvin Thompson, the Principal Engineer for the Department of Public Works for the City of New Orleans, reflected that routine field inspections, assessments, and [8structural capacity evaluations were required of the City, but were not performed by the City for at least six years prior to Mrs. Murphy’s accident. In conjunction with Mr. Thompson’s City Streets Manual, the district court assessed the requirements of the Streets Maintenance Manual, a manual which the Department of Public Works (the “DPW”) is bound to follow. The City Streets Manual requires the DPW to conduct a visual inspection of the conditions of major streets, which includes Decatur St., annually. Additionally, the district court found that other field inspections and street maintenance requirements mandated by the Streets Manual had not been conducted from five to eight years before the accident at issue occurred.

Constructive notice can be found to exist when “the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.” Joseph, 03-1996, p. 9, 842 So.2d at 426 (citing Maldonado v. Louisiana Superdome Comm’n, 95-2490, p. 7 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1092). The City cannot demonstrate that the district court was clearly wrong in finding that the City had constructive knowledge of the push up defect that should have been discovered during the course of annual street inspections because it ignored its own policies regarding street inspection for years. This assignment of error is without merit.

The City’s second assignment of error, that the district court erred in failing to find any comparative fault on the part of Mrs. Murphy, is also without merit. | ¡Determinations and allocations of comparative fault made by the district court are not disturbed by this court in the absence on manifest error or unless the district court was clearly wrong. Dupree v. City of New Orleans, 1999-3651, n. 13 (La.8/31/00), 765 So.2d 1002, 1015. The City has not proven that the district court committed manifest error or was clearly wrong.

The City avers that Mrs. Murphy bears some responsibility for not crossing Decatur St. at the corner, not viewing the road for obstacles, and not exercising proper caution considering her history of falls. The district court explained in its Reasons for Judgment that Mrs. Murphy observed the condition of Decatur St. before stepping down from the curb and then focused her attention on traffic. The district court further noted that the Louisiana Supreme Court has held that “[pjedestrians ‘cannot be expected to constantly look down while walking on a busy street ... ’ ” Bessard v. State Dept. of Transportation and Development, 94 0589 (La.11/30/94), 645 So.2d 1134, 1137. We agree with the district court that Mrs. Murphy “acted as a reasonably prudent pedestrian, and is guilty of no comparative fault” when she redirected “her attention to the traffic conditions as she entered the traveled portion of the street.”

Mrs. Murphy was jaywalking at the time of her accident. Jaywalking is defined as being in “[t]he act or instance of crossing a street without heeding traffic regulations, as by crossing between intersections or at a place other than a crosswalk.” Black’s Law Dictionary, Ninth Edition 2009. Jaywalking is a risky activity; however, the jaywalking pedestrian assumes a traffic risk, not a defective | instreet risk, by crossing the street without the protection and direction of any signage and lights in the area. Thus, the district court’s judgment finding no comparative fault is neither manifestly erroneous nor clearly wrong even though a different trier of fact may have reached an opposing conclusion under the facts presented. This assignment of error is without merit.

DECREE

For the foregoing reasons, the Judgment of the district court is amended to reflect that the total amount of damages awarded to Diana Murphy is $999,173.99 and the judgment of the district court is affirmed as amended.

AMENDED, AND AFFIRMED AS AMENDED.

      . The City defines a push up as a bump of asphalt likely pushed up by the repeated stopping of public transit buses in the same place.

      . The district court did not explain how Mrs. Murphy demonstrated that the defect at issue created an unreasonable risk of harm in its Reasons for Judgment.


text:
    STATE of Louisiana in the Interest of T.N.
    No. 2009-CA-0431.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY, III).
   CHARLES R. JONES, Judge.

| ,The State of Louisiana appeals the February 5, 2009 judgment rendered by the Juvenile Court for the Parish of Orleans, dismissing the State’s case against T.N. For the reasons set forth below, we affirm.

On October 14, 2008, the State filed a delinquency petition under case number 2008-288-07 DQ-F, charging T.N. with one count of possession of a dangerous weapon while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). T.N. answered the petition on October 16, 2008.

T.N. was detained on the charges and the State had thirty days (until November 15, 2008) to bring the matter to trial pursuant to La. Ch.C. art. 877(A). By agreement of counsel, the matter was set for trial on November 13, 2008. At that time, the juvenile court denied the State’s request for continuance, and the State entered a nolle prosequi. The case was dismissed, and T.N. was released from detention.

However, the State later reinstituted the petition on the same date, under case number 2008-318-03-DQ-F. Because T.N. was no longer in custody, the |2State had ninety days from the original answer (until January 14, 2009) to bring the matter to trial pursuant to La. Ch.C. art. 877(B).

The matter was set for hearing on December 11, 2008. T.N. did not appear. The judgment signed that date, resetting the matter for January 22, 2009, indicates “no return of service in the record.” T.N. appeared in court on January 22, 2009, entered a denial, and requested a trial date. Trial was set for February 5, 2009.

On January 23, 2009, T.N. filed a motion to dismiss for failure to timely prosecute within ninety days following the answer of the original petition. On February 5, 2009, the juvenile court heard the matter, granted the motion to dismiss, and provided written reasons for judgment.

The State’s timely appeal followed. T.N. has not filed an appellee brief. In its sole assignment of error, the State argues that the juvenile court abused its discretion in dismissing the petition against T.N. pursuant to La. Ch.C. art. 876 without providing good cause for the dismissal.

DISCUSSION:

T.N.’s motion to dismiss is premised on the State’s failure to timely prosecute pursuant to La. Ch.C. art. 877, which provides:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
|SC. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

At trial, T.N. argued that the State failed to make the requisite showing of good cause to extend the ninety-day limit before it expired on January 14, 2009. The trial court agreed, and stated:

At the December 11, 2008 hearing, the State did not seek a finding of good cause to extend the La. Ch.C. art. 877(B) trial deadline which would expire on January 14, 2009, nor did the State move that the court make such a finding on or before January 14, 2009. In the absence of a timely request by the State for a finding of good cause to extend the trial deadline, the case must be dismissed.

In State in Interest of R.D.C., Jr., 93-1865, p. 4 (La.2/28/94), 632 So.2d 745, 748, the Supreme Court held that the time period set forth in La. Ch.C. art. 877 is mandatory and that “it is incumbent on the state to make a showing of good cause and obtain an extension before the period has run.” (Emphasis in original). See also State in Interest of Franklin, 95-0423 (La. App. 4 Cir. 7/6/95), 659 So.2d 537; State v. Erven, 36,332 (La.App. 2 Cir. 10/23/02), 830 So.2d 368.

In State ex rel. J.B., 2003-0587, p. 4 (La.App. 4 Cir. 12/10/03), 863 So.2d 669, 671, this Court stated that La. Ch.C. art. 877 “does not say that the adjudication hearing can be set outside the mandatory period if good cause is demonstrated. Instead, [the Children’s Code] specifically states that the court may extend the deadline for the adjudication if good cause is demonstrated.” Moreover, j4in State ex reí. J.B., where there was no allegation or proof that the State or the defendant requested an extension of the deadline for the adjudication hearing, and no basis for finding that there was good cause for setting an untimely adjudication hearing date, this Court held that the trial court was correct in granting the defendant’s motion to dismiss. Id.

In the present case, as in State ex rel. J.B., there is no evidence in the record that the State requested an extension of the article 877(B) deadline. Moreover, there was no demonstration of good cause for setting the adjudication hearing outside the mandatory time period. For that reason, we find no error on the part of the juvenile court in granting the motion to dismiss in favor of T.N.

On appeal, the State does not address the above argument concerning good cause in extending the mandatory time limitations. Rather, the State argues, for the first time on appeal, that the time limit was interrupted. More specifically, the State asserts that pursuant to La. C. Cr. P. art. 579, the failure of T.N. to appear at the December 11, 2008 hearing interrupted the time limitations for the adjudication hearing. La. C. Cr. P. art. 579 provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because ... his presence for trial cannot be obtained by legal process, or for any Mother cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. (Emphasis added).

The juvenile court’s December 11, 2008 judgment reflects that the matter was continued on December 11, 2008, because there was no return of service in the record. The State argues on appeal that in connection with the December 11, 2008 hearing, a subpoena was issued to T.N. at 1962 N. Rendon Street, New Orleans, Louisiana 70125, but that T.N. was not served with notice of the hearing. The State maintains that the subpoena indicates: “incorrect address” and “N. Rendon ends at 1868.” ■ Thus, the State argues that because T.N. provided a false address, his presence for the juvenile court could not be obtained by legal process, and/or bringing him to trial was beyond the control of the State. Accordingly, the State asserts that pursuant to La. C. Cr. P. art. 579(A)(2) and (B), the ninety-day time period was interrupted and began anew.

It is apparent from the record, particularly the transcript of the February 5, 2009 hearing on the motion to dismiss, that the issue of the interruption of the time limitation was never raised in the juvenile court. Clearly, the State could have raised this ground in the lower court as a possible basis for a good cause extension, or an interruption of the time limitations, but failed to do so.

|fiThe State has a heavy burden of justifying the apparent untimely commencement of trial on the grounds that the time limits were either interrupted or suspended. State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286; State v. Causey, 2002-1848, p. 5 (La.App. 4 Cir. 4/9/03), 844 So.2d 1076, 1079. When a defendant brings an apparently meritorious motion to quash based on prescription, the State must demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. Id.

In the present case, the State has not carried its burden of proving an interruption of the mandatory time limits set forth in La. Ch.C. art. 877. There is no showing that the state’s failure to bring T.N. to trial within the ninety-day period was because his presence could not be obtained by legal process or due to events beyond the State’s control. Moreover, here it is evident from the record that the State made no showing of good cause to extend the time period before the deadline had run.

DECREE

For the foregoing reasons, the juvenile court was correct in granting the motion to dismiss in favor of T.N. Accordingly, the judgment is affirmed.

AFFIRMED.

      . This address was provided by T.N. at the time of his arrest and later verified on the petition filed by the State.

      . Based on the assertion that T.N. provided a false address,