author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Kelvin Demarcus BROWN, II, Appellant
    No. 52,266-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    KELVIN DEMARCUS BROWN, II, Pro Se
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    TOMMY J. JOHNSON, Shreveport, BRITNEY A. GREEN, Assistant District Attorneys
    Before BROWN, WILLIAMS, and McCALLUM, JJ.
   BROWN, C.J.

Defendant, Kelvin Demarcus Brown, II, was charged by grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1. After a bench trial, Defendant was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. On appeal, Defendant challenges the sufficiency of the evidence and argues that the trial court erred in allowing certain La. C.E. art. 404(B) evidence and impermissible hearsay to be admitted at trial. Defendant has also filed a pro se brief raising additional assignments of error. For the following reasons, Defendant's conviction and sentence are affirmed.

FACTS

In the early hours of December 6, 2014, Officer Kevin Duck of the Shreveport Police Department was dispatched to a residence at 2903 Oak Forest Lane, Shreveport, Louisiana. Upon arriving at the scene, Officer Duck made contact with the victim, Alicia West, who had received multiple knife wounds to her body and throat. While they were waiting for an ambulance, Ms. West advised Officer Duck that she had been attacked by Defendant. Ms. West died shortly after her arrival at the hospital.

On January 22, 2015, Defendant was charged by grand jury indictment with the first degree murder of Alicia West. An amended indictment was filed on March 31, 2015, reducing the charge to second degree murder. At arraignment, Defendant pled not guilty and elected to have a jury trial. On March 15, 2017, however, Defendant waived his right to a jury trial and opted for a trial by judge.

Defendant's bench trial commenced on October 30, 2017. Exa Bloomer, the victim's mother, testified that she was asleep at her daughter's house because Ms. Bloomer was babysitting her grandson on December 6, 2014. Around 4:00 a.m. that morning, Ms. Bloomer woke up to the sound of water running outside. Ms. Bloomer called Ms. West, who was at work, and told her that someone had turned the water on outside. Ms. West advised her mother not to go outside and said that she would call the police first. Ms. Bloomer got up and waited until she saw Ms. West's vehicle pull into the driveway. Ms. Bloomer testified that she suddenly heard Ms. West screaming. Ms. Bloomer went outside into the carport and saw Defendant on top of her daughter's back. Ms. Bloomer stated that the carport light was on, and she recognized Defendant because he and Ms. West had previously dated. Defendant jumped up when he saw Ms. Bloomer and looked directly at her. Defendant then fled into a wooded area near the home. Ms. West stood up but was bleeding profusely, and she fell back toward her vehicle. The police arrived shortly thereafter. Ms. Bloomer's grandson appeared at the carport door and began screaming at the sight of his mother's bleeding body. Ms. Bloomer took her grandson back into the house as instructed by officers and tried to console him. After the incident, Ms. Bloomer was interviewed by the police. She identified Defendant in open court as the man who attacked Ms.West.

On cross-examination, Ms. Bloomer admitted that she was unable to pick Defendant out of a photographic lineup during her interview with the police. Ms. Bloomer is completely blind in her right eye, but she said that she was standing approximately four feet from Defendant when he attacked her daughter and could clearly see that the assailant was Defendant.

Monique Bradley testified that she lives in Coushatta, Louisiana, and has known Defendant since 2007 when they were both at Northwestern State University. On December 6, 2014, Defendant came to the home she shared with an aunt early in the morning and asked if he could stay there for a few hours before he went to visit his child. Ms. Bradley got her aunt's permission for Defendant to stay, and Defendant took a nap in Ms. Bradley's room before leaving at about 9:00 a.m. Before leaving, Defendant told Ms. Bradley that if anyone came looking for him, she was to tell them that he had been with her. At the time, Ms. Bradley did not know what Defendant was referring to. She noted that it was not unusual for Defendant to arrive unannounced at her home, but it was not typical for him to come to her home that early in the morning. Defendant returned to Ms. Bradley's home later that afternoon when several other people were present. Ms. Bradley testified that Defendant had conversations with people and played with her niece. According to Ms. Bradley, Defendant did not appear to be worried and told her that he would return the following day to eat. Ms. Bradley got a text from a friend who is a police officer in Natchitoches later that evening notifying her that Defendant had been arrested for murder. Ms. Bradley contacted the police after she realized that defendant had been to her house that day. Defendant had left a green army-type bag at Ms. Bradley's home, which the police collected as possible evidence. Ms. Bradley testified that she thought the bag only contained a pair of boxers and a muscle shirt.

Ebony Morgan testified that she met Defendant when they were both employed at the Horseshoe Casino in 2013. Ms. Morgan and Defendant became friends while working together, but she had not been in contact with Brown for a month or two prior to December 6, 2014. Ms. Morgan testified that on that morning, she had called Defendant around 2:00 a.m. while she was headed home because she wanted to be on the phone with someone until she was safely in her home. Defendant called her back at 5:00 a.m., but she did not answer. Around 7:00 a.m., Ms. Morgan called Defendant a second time, and he sounded sleepy. Ms. Morgan testified that she did not see Defendant on December 6, 2014. Ms. Morgan testified that she did not know the victim but one her coworkers did. Ms. Morgan learned of Alicia. West's death that morning when Ms. Morgan got to work.

Corporal John Madjerick, a crime scene investigator with the Shreveport Police Department, testified that he was dispatched to Ms. West's home to collect evidence. Upon his arrival at the scene, Cpl. Madjerick made contact with Detective Joseph Brown to obtain a brief summary of the events and to do a walk-through of the scene. Ms. West had already been transported to the hospital prior to Cpl. Madjerick's arrival. Cpl. Madjerick took photographs of the scene, which he identified in open court. Ms. West's vehicle was at the scene, and the photographs depict her blood on the driveway. Ms. West's wig and a pool of her blood were located toward the rear of her vehicle, indicating the spot where she collapsed before being transported to the hospital. While photographing the home's exterior, Cpl. Madjerick observed an outside spigot and noted wet ground beneath it, indicating that it had recently been used. A black skullcap found in the grass near the corner of the home was collected and sent to the North Louisiana Crime Lab for testing.

Droplets of blood found near the skullcap traveled toward the partial chain link fence on the side of the home. Cpl. Madjerick testified that the blood found at the scene continued from the grassy area near the partial chain link fence and ended at the driveway where Ms. West collapsed and the blood pooled. A portion of a window screen had been cut, and Cpl. Madjerick recovered a latent fingerprint from the window. The print was later determined to be of non-comparison value. No other fingerprints were recovered from the scene.

Cpl. Madjerick also took photographs of Ms. West after she died, which he also identified in open court. The photos show the numerous wounds suffered by the victim during the attack and several of her tattoos, including a tattoo of Brown's full name, "Kelvin D. Brown, II," above her pubis.

Monnie Michalik, an expert in forensic DNA analysis, performed a DNA analysis on the following items recovered from the scene: the black skullcap, a bloodstain card from the victim, reference swabs taken from Defendant, and a swab taken from the surface of a knife blade. Ms. Michalik completed one report in April 2015, but wrote a second report in June 2015 when additional evidence was analyzed. She stated that a partial Y-chromosome profile was found on suspected blood swabbed from the black skullcap, indicating that the cap had been worn by a man of Defendant's paternal lineage at some point. Due to the incomplete nature of the partial profile, Ms. Michalik was unable to definitively match it to Defendant; however, the partial profile was consistent with Defendant's DNA profile.

Victor Cooks testified that he knew Defendant through Alicia West and through serving in the National Guard with Defendant during their annual training in June of 2014. Cooks met Ms. West in February of 2014 when they both worked at the El Dorado Casino. Cooks and Ms. West began dating in November 2014, and, while they were dating, Defendant would frequently visit Ms. West's home unannounced late at night or early in the morning. Defendant would bang on the doors and windows, scream outside, and demand that Ms. West answer the door. Cooks testified that Ms. West appeared frightened during these incidents. Ms. West told Cooks that she did not understand why Defendant kept coming to her home, and that she obtained a restraining order against Defendant. Each incident lasted between 30 minutes and an hour. Defendant contacted Cooks via Facebook Messenger in November 2014 and informed him that Defendant was no longer interested in dating Ms. West but he still wanted to be in her life. In the messages, Defendant referred to pending charges of stalking and cyberstalking Ms. West had filed against him. Defendant accused Ms. West of making up the allegations and told Cooks to tell Ms. West to drop the charges. Defendant further messaged, "[Alicia West] is the main reason I spent five days in prison." Defendant also inquired whether Ms. West blamed him for setting a house fire.

Cooks testified that he saw Ms. West on December 6, 2014, at approximately 2:00 or 3:00 a.m. while she was working at the Margaritaville Casino. Ms. West told him that she was going out with friends for a drink after work. Cooks saw Ms. West again shortly before she left work, and she appeared frantic because her home alarm was going off. Cooks was contacted by the police later that morning and was told of Ms. West's death.

Officer Duck testified that he was dispatched to Ms. West's home on December 6, 2014, at 4:32 a.m. in response to a call from a lady wanting her water spigots fingerprinted. When he initially received the call, there was no information that there had been an assault. Upon arriving at the scene, Officer Duck saw Ms. West's son first, then her mother. Officer Duck saw Ms. West coming from around the home's east side, stumbling toward him and clutching her neck. Officer Duck testified that when the victim fell to the ground, he could see her spinal cord through the wound in the front of her neck. Officer Duck asked Ms. West who attacked her, and she told him twice that it was Kelvin Brown. He also asked her what weapon her attacker used, and her response was "a knife."

Footage from Officer Duck's police vehicle camera was admitted into evidence and played at trial. In the video, Ms. West can be heard telling Officer Duck that she was attacked by Defendant with a knife. Officer Duck can also be heard telling the ambulance to hurry and instructing the victim's mother and son to go back inside to preserve the crime scene. Officer Duck begins to pray with Ms. West prior to the arrival of emergency services. Ms. West's mother can also be heard relaying what had occurred to Officer Duck. When asked whether she saw Defendant, Ms. West's mother stated, "I saw a person running." She further stated that she didn't "really, really see him." Officer Duck testified at trial that he believed what Ms. West's mother meant was that she could not see Defendant clearly as he ran away toward the woods, as she had previously told him that she was able to see it was Defendant when she saw him under the carport.

Raquel Davis Alvarez, a friend of the victim's, testified that Ms. West introduced her to Defendant when all three worked at Sam's Town Casino about ten months to a year before Ms. West's death. Ms. Alvarez stated that Ms. West was not happy in her relationship with Defendant, and that Ms. West was trying to obtain a restraining order against him. Ms. West would occasionally stay at Ms. Alvarez's home because Ms. West did not feel safe at her own home. Ms. Alvarez testified that Defendant and Ms. West argued at work in front of her. Ms. Alvarez also loaned Ms. West a handgun for protection. According to Ms. Alvarez, Ms. West had no idea what Defendant might do, and she was scared for her own safety and that of her son.

Kimia Giles testified that she had previously been harassed by Defendant in February 2014 when both were serving in the National Guard. At the time, Ms. Giles was a private, and Defendant was the second lieutenant in charge of her unit. Ms. Giles stated that Defendant made frequent lewd and unwanted advances, even in the presence of others, texted her, and called her "sweetie." On one occasion, Defendant had blisters on his feet and asked Ms. Giles to nurse him back to health. Ms. Giles advised him to seek aid from a medic, but Defendant insisted that he wanted her assistance. Defendant also made insinuations that Ms. Giles owed him something as if he expected her to actually tend to his injuries. Ms. Giles informed another guardsman, who reported the incident on her behalf, and Ms. Giles filed a sexual harassment complaint. Ms. Giles did not see Defendant again after she filed the complaint.

Corporal Betsy Huey Pickett of the Shreveport Police Department testified that she was dispatched to Ms. West's home at 11:08 a.m. on November 2, 2014, in response to a stalking complaint. Ms. West informed Cpl. Pickett that she went outside and saw her water spigot running although she had not turned it on. Cpl. Pickett observed that the ground beneath the spigot was very muddy as if the tap had been on for quite some time. Cpl. Pickett advised Ms. West to obtain a restraining order against her stalker, to stay with family or friends, or to have someone stay with her so she would not be alone. Ms. West appeared very distressed and complained that the stalking was an ongoing problem.

Lieutenant Shannon Mack with the Bossier Parish Sheriff's Office, an expert in historical cell phone data analysis, testified that she analyzed the cell phone records provided by AT & T Wireless. Lt. Mack testified that cell phone number (318) 470-xxxx belonged to Ms. West and (318) 519-xxxx belonged to Defendant. Utilizing the records provided by AT & T and CellHawk software, Lt. Mack was able to determine that Defendant's cell phone was within 5,000 meters of the crime scene at 3:54 a.m. on the morning of December 6, 2014. For comparison, Lt. Mack stated that the cell phone records showed that Ms. West's cell phone was also within 5,000 meters of the crime scene at the time of the attack.

Officer Lee Scott, now retired from the Shreveport Police Department, testified that he met Ms. West when she filed a complaint against Defendant on November 4, 2014. At that time, Ofc. Scott was a supervisor with the Vice Unit. Ms. West reported that Defendant, without her consent, had placed Ms. West's cell phone number and photographs of her on Backpage.com, which is an escort web service used for prostitution. Defendant had also posted the same photographs on his Facebook page. According to Ofc. Scott, the photographs were intimate and provocative in nature, and Ms. West was very concerned. Ms. West related to Ofc. Scott that she was receiving phone calls from men seeking sexual favors. Ofc. Scott verified that the photographs on Defendant's Facebook page were the same as those on Backpage.com. Ofc. Scott then called Defendant, verbally advised him of his Miranda rights, and asked him about the photographs. Defendant denied all the accusations. Ofc. Scott had Ms. West call Defendant to advise him that she did not want to be contacted by him anymore. Ofc. Scott was present when Ms. West called Defendant, and as soon as Ms. West got off the phone with Defendant, he called her despite being asked not to. Ofc. Scott sought a warrant for Defendant's arrest.

Detective Joseph Brown, now retired from the Shreveport Police Department, was the lead investigator in Ms. West's death. Early in the morning of December 6, 2014, Brown was notified by dispatch of a stabbing at 2903 Oak Forest. Brown arrived at the home, made contact with the initial responding officers and was advised of Ms. West's dying declaration naming Defendant as her attacker. He also did a quick walk-through of the scene. Brown determined that the attack occurred a few minutes prior to 4:25 a.m. Brown obtained an arrest warrant for Defendant, who turned himself in the following afternoon. Defendant was advised of his Miranda rights, which he waived. During his interview, Defendant stated that at 2:40 a.m. on the morning of the attack, he received a call from Ebony Morgan. Thereafter, between 3:00 and 3:30 a.m., he met Ms. Morgan at the Save-A-Lot on Lakeshore Drive, and they had sex in the parking lot. At approximately 4:10 a.m., Defendant left Ms. Morgan and traveled to Natchitoches, Louisiana. Brown obtained Defendant's cell phone records pursuant to a search warrant and determined that the story that Defendant had given regarding his location at certain times the morning of the attack conflicted with his cell phone records. Defendant's cell phone records revealed that, between 4:00 and 5:17 a.m., Defendant's phone was inactive (which means that the phone's physical location could not be determined for that period). The cell phone records revealed that at 5:17 a.m., when Defendant made a call to Ms. Morgan, he was still in Shreveport, not in Natchitoches as he had previously stated.

Detective Shonda Holmes testified that she works with the Shreveport Police Department's Domestic Violence Unit. Det. Holmes came in contact with Ms. West in November and December of 2014 when Ms. West accused Defendant of stalking and cyberstalking. Det. Holmes interviewed Ms. West on November 6, 2014. Ms. West related that Defendant was coming to her home unannounced, sending her text messages, stalking her, and showing up at her workplace. Det. Holmes obtained copies of the text messages and a voicemail Defendant left Ms. West. Det. Holmes noted that only one of the texts was from Ms. West, and it was a request by Ms. West to Defendant asking him to leave her alone. The messages from Defendant communicated that he was waiting outside Ms. West's home on several occasions, with questions as to whether a man was with her and whether she was okay.

Defendant was arrested by Lee Scott and interviewed by Det. Holmes on November 6, 2014. Portions of Det. Holmes' interview with Defendant were played at trial. In the recording, Defendant was advised of his Miranda rights. Defendant stated that he understood his rights and wished to make a statement. Brown told Det. Holmes that he and Ms. West had been dating since October of the previous year but had broken up. Defendant stated that Ms. West was communicating with him through a third party and denied attempting to contact her. Defendant admitted, however, that he texted her despite the break-up because it has worked in the past, i.e., they would get back together. Defendant was texting Ms. West that he was outside her house despite not being invited to her home on a given day. According to Defendant, he was "always invited." He also went to her work one day. Defendant stated that he spoke to a male coworker at West's job and asked him to relay to Ms. West that he wanted her to call him for closure. Defendant insisted that he was just a worried friend.

Dr. Long Jin, an expert in forensic pathology, testified that he performed Alicia West's autopsy. Dr. Jin stated that Ms. West suffered from multiple sharp-force injuries, which he explained were stabbing and slashing wounds. Ms. West suffered an injury to her tongue and had a superficial incised wound to her left cheek about three to four centimeters in length. Ms. West also had a long wound starting on the left side of her mouth and traveling down the left side of her neck. Dr. Jin documented additional incised wounds to her back left hand and posterior elbow. There was another sharp-forced injury on Ms. West's upper left arm that was two to three centimeters in length. Dr. Jin stated that in his professional opinion, the wounds were inflicted by a knife. There were no injuries to Ms. West's lower extremities. Dr. Jin noted the sutures on Ms. West's wounds and the incision under her left breast, noting they were made by emergency medical staff at the hospital after the attack. Because of the medical intervention, Dr. Jin could not determine whether the injury to the neck was one continuous wound, but he believed that the wound consisted of multiple stabbing and incised wounds. The weapon used in the attack cut Ms. West's internal jugular vein almost in half, resulting in loss of blood. Ms. West also suffered an injury to her trachea. Dr. Jin testified that Ms. West's cause of death was the sharp-force wound to the left neck, and the manner of death was homicide.

On cross-examination, Dr. Jin stated that he believed the injuries to Ms. West's hands and arm were inflicted first, as if during a struggle. The fatal wound was most probably the last wound inflicted, which was the wound to Ms. West's neck.

The trial court found Defendant guilty as charged of second degree murder. On November 7, 2017, prior to sentencing, Defendant was asked whether he would like to make a statement; he declined. Defendant was subsequently sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence.

Defendant has appealed.

DISCUSSION

Sufficiency of the Evidence

Appellate counsel argues that Ms. West's dying declaration, naming Defendant as her attacker, should have been excluded as inadmissible hearsay as there was no evidence presented suggesting that Ms. West reasonably believed that she was dying. Counsel contends that the accusation made the police predisposed to suspect only Defendant as the attacker and, therefore, they failed to investigate other potential suspects. According to counsel, the record contains a list of police reports made by Ms. West dating back to 2003 in which she accused three other individuals of harassment. This list was not admitted into evidence at trial. In his pro se brief, Defendant also questioned the identity of Ms. West's attacker and added that the stabbing of Ms. West, taken alone, does not establish specific intent to kill.

The State argues that, in viewing the evidence in a light most favorable to the prosecution, the evidence establishes Defendant's guilt beyond a reasonable doubt.

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 , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2d Cir. 01/09/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. 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, 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2d Cir. 01/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So.3d 297. 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. Eason, 43,788 (La. App. 2d Cir. 02/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983) ; State v. Speed, 43,786 (La. App. 2d Cir. 01/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/06/09), 21 So.3d 299.

In a bench trial, Louisiana law neither requires nor precludes a statement of reasons supporting the verdict returned by the court sitting as the fact finder in the case; however, if a trial judge chooses to do so, the statement of reasons may provide a useful guide to the appellate court for reviewing the sufficiency of the evidence under the Jackson standard. Jackson v. Virginia, supra ; State v. Marshall , 04-3139 (La. 11/29/06), 943 So.2d 362, cert. denied , 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007) ; State v. Thomas , 50,898 (La. App. 2d Cir. 11/16/16), 209 So.3d 234.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2d Cir. 09/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 03/28/03), 840 So.2d 566, 02-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The pertinent inquiry in bench trials remains, as it does in jury trials, on the rationality of the result and not on the thought processes of the particular fact finder. State v. Marshall , supra. 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. 01/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App. 2d Cir. 02/13/08), 975 So.2d 753 ; State v. Burd , 40,480 (La. App. 2d Cir. 01/27/06), 921 So.2d 219, writ denied , 06-1083 (La. 11/09/06), 941 So.2d 35.

Second degree murder is when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1).

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Thornton , 47,598 (La. App. 2d Cir. 03/13/13), 111 So.3d 1130. Specific intent to kill or inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. State v. Murray , 49,418 (La. App. 2d Cir. 01/14/15), 161 So.3d 918, writ denied , 15-0379 (La. 04/08/16), 191 So.3d 582.

A review of the record reveals sufficient direct and circumstantial evidence to support Defendant's conviction of second degree murder.

The evidence presented at trial shows that the victim, Alicia West, made repeated complaints to the police regarding Defendant's harassing behavior, and that Defendant frequently visited Ms. West's home and work unannounced, called, and texted her despite her request that he stop. Ms. West's friends, Cooks and Ms. Alvarez, testified to Ms. West's fear and frustration that Defendant continued to contact her even though she had filed police reports and obtained a restraining order against him. Ms. West's fear of Defendant was so great that she stayed overnight with Ms. Alvarez on several occasions because the victim was afraid of being alone. Ms. Alvarez even loaned Ms. West a gun for protection. Cpl. Pickett, Ofc. Scott, and Det. Holmes also observed the agitation and fear the victim endured as a result of Defendant's behavior. Statements made by Defendant in his interview with Det. Holmes corroborated Defendant's behavior despite his claim that he was merely acting as a concerned friend.

Defendant's statements to police regarding his whereabouts on the early morning of the attack conflicted with the testimony given by Ebony Morgan and the information provided by Defendant's cell phone records. Defendant claimed that he was with Ms. Morgan the morning that the victim was attacked, but Ms. Morgan testified that she spoke to Defendant only briefly on the phone and did not see him at all that morning. Defendant's claim that he was in Natchitoches at 5:17 a.m. on December 6, 2014, was refuted by his cell phone records, which placed him in Shreveport at that time. Lt. Mack testified that Defendant's cell phone records revealed that he was within 5,000 meters of the victim's home at 3:54 a.m., placing him near the crime scene approximately 30 minutes prior to the attack, which also refutes Defendant's claim that he did not go near Ms. West's home the morning of her brutal attack. Defendant's presence at the crime scene that morning was further established by the black skullcap that was found there and which testing established contained Defendant's paternal DNA.

Ultimately, the victim's dying declaration to Officer Duck, in which she named Defendant as her attacker, is sufficient to support Defendant's conviction. Ms. West's response to Officer Duck's question about the identity of her attacker can be heard clearly on the police vehicle video. Officer Duck corroborated Ms. West's statement at trial, noting that she named Defendant as her attacker twice. The evidence presented by the state, taken as a whole and viewed in a light most favorable to the prosecution, established Defendant's guilt beyond a reasonable doubt.

This assignment is without merit.

Other Crimes Evidence

Appellate counsel contends that Ofc. Scott's testimony regarding provocative photographs of the victim allegedly posted to Facebook and Backpage.com by Defendant constituted inadmissible other crimes evidence in violation of La. C.E. art. 404(B). At the time Ms. West reported the photographs, she accused Defendant of posting them; however, counsel argues that this was never proven at the time Ms. West made the report or at trial. Counsel further argues that Cpl. Pickett's testimony concerning another police report made by the victim, wherein she accused Defendant of stalking, also violated La. C.E. art. 404(B) and should not have been presented at trial. Counsel points out that Defendant's name was never mentioned in Ms. West's report, and the mere implication that Defendant was her alleged stalker was highly prejudicial to his case. Defendant further argues in his pro se brief that testimony from Det. Holmes regarding references to other accusations made by Ms. West against Defendant also violated La. C.E. art. 404(B) and constituted inadmissible hearsay.

The State contends that the testimony of these officers was necessary to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. The state further relies upon its previous argument that the testimony is part of res gestae and establishes a clearer narrative of the events leading to the victim's death.

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

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

La. C. Cr. P. art. 720 further provides:

Upon written motion of defendant, the court shall order the district attorney to inform the defendant of the State's intent to offer evidence of the commission of any other crime admissible under the authority of Code of Evidence Articles 404 and 412.2. However, the order shall not require the district attorney to inform the defendant of the state's intent to offer evidence of offenses which relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a "bad person." State v. Jones , 50,270 (La. App. 2d Cir. 02/10/16), 188 So.3d 268, writ denied , 16-0858 (La. 05/01/17), 220 So.3d 742 ; State v. Richardson , 46,360 (La. App. 2d Cir. 06/22/11), 71 So.3d 492, writ denied , 11-1777 (La. 04/27/12), 86 So.3d 615. This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur , 277 So.2d 126 (La. 1973). Evidence of other crimes, wrongs, or acts may be introduced when it relates to conduct formerly referred to as res gestae that "constitutes an integral part of the act or transaction that is the subject of the present proceedings." La. C.E. 404(B) ; State v. Colomb , 98-2813 (La. 10/01/99), 747 So.2d 1074 ; State v. Jones, supra. Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. State v. Colomb, supra. In State v. Colomb, 747 So.2d at 1075-76, the Louisiana Supreme Court observed:

This doctrine encompasses not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. We have required a close connexity between the charged and uncharged conduct to insure that the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.

(Citations omitted.)

The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Jones, supra ; State v. Gatti, 39,833 (La. App. 2d Cir. 10/13/05), 914 So.2d 74, writ denied , 05-2394 (La. 04/17/06), 926 So.2d 511. Trial error is harmless where the verdict rendered is "surely unattributable to the error." State v. Johnson , 94-1379 (La. 11/27/95), 664 So.2d 94.

We find that the trial court properly admitted the testimony of Cpl. Pickett, Ofc. Scott, and Det. Holmes about the complaints filed by the victim accusing Defendant of stalking and cyberstalking.

On April 1, 2016, the State filed a notice of intent to introduce other crimes evidence pursuant to La. C.E. art. 404(B) and La. C. Cr. P. art. 720. On July 22, 2016, a hearing was held during which Ofc. Scott, Cpl. Pickett, Det. Holmes, Cpl. Justin Metzger, and Colonel Cameron Lance Magee were interviewed about potential other crimes evidence against Defendant. The hearing was continued until November 15, 2016, on which date, due to new pro se motions filed by Defendant, the matter was continued again to January 10, 2017. On that date, the trial court found the statements to be admissible under La. C.E. art. 404(B), ruling:

The victim made the complaint, according to the testimony, was able to identify the defendant as the person in question or that was the subject of the complaint. The testimony meets the require [sic] of 404(B) and those-that testimony will be admissible.

As noted in State v. Colomb, supra , other crimes evidence is admissible at trial when used to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. Because the victim named Defendant as her attacker, the testimony of these police officers clearly establish that Defendant had a history of showing up at Ms. West's home unannounced at unusual hours of the day and night. For instance, during his interview with Det. Holmes, Defendant repeatedly stated that he would drive to Ms. West's home and wait outside for her. Defendant further indicated that he made numerous attempts to reach her by phone and text, describing his efforts as "friendly" and made to ensure that she was okay. Without the testimony of these officers, Defendant's attack on the victim at approximately 4:25 a.m. on December 6, 2014, would appear arbitrary and random. The testimony at issue demonstrates a pattern of behavior by Defendant that renders his early morning attack on the victim much more plausible. Cpl. Pickett's testimony about Ms. West's accusation that Defendant had previously turned on the outside water spigots of her home is particularly relevant, given that the water spigot was turned on the night of the attack, possibly to lure someone out of the home.

Even if the evidence was erroneously admitted at trial, the error appears harmless in light of Ms. West's dying declaration and other overwhelming evidence establishing Defendant's guilt.

This assignment is without merit.

Hearsay Testimony

Appellate counsel argues that the statements made by Victor Cooks, Raquel Alvarez, and Cpl. Pickett, in which they asserted that Ms. West told them that she obtained a restraining order against Defendant and did not feel safe because of his conduct, constituted inadmissible hearsay and should not have been permitted at trial. According to counsel, the State's reliance on hearsay exceptions of state of mind and res gestae was misplaced, and no evidence was presented to support either statement's admission. Such admissions violated Defendant's right to confront a witness (the victim) against him, thus violating his Sixth Amendment rights. Defendant adopts counsel's argument in his third pro se assignment of error. In his fourth pro se assignment of error, Defendant further argues that the trial court erred in admitting the victim's dying statement to Officer Duck in which she related that Defendant was her attacker.

The State argues that the statements are admissible because they indicate Ms. West's state of mind in the weeks leading up to her death, as well as provide evidence concerning prior ill feelings and hostility between Defendant and the victim.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(A)(1) and (C). Hearsay evidence is not admissible, except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802 ; State v. Wade , 39,797 (La. App. 2d Cir. 08/09/05), 908 So.2d 1220, writs denied , 06-0109, 06-0148 (La. 06/02/06), 929 So.2d 1251.

Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin , 458 So.2d 454 (La. 1984) ; State v. Wade , supra.

Where an investigating officer testifies concerning events leading to the arrest of a defendant, statements made to him by others during the course of the investigation are not hearsay, if they are not offered for the truth of the matter asserted, but merely to explain the officer's actions. State v. McNair , 597 So.2d 1096 (La. App. 2d Cir. 1992), writ denied , 605 So.2d 1113 (La. 1992). In other words, where the officer does not testify with regard to the substance of what another person told him, but with regard to what he did in response to that information, the testimony is not considered hearsay. State v. Lloyd , 48,914 (La. App. 2d Cir. 01/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33, cert. denied , --- U.S. ----, 137 S.Ct. 227, 196 L.Ed. 2d 175 (2016).

Additionally, La. C.E. art. 803(3) permits evidence concerning the existing mental, emotional or physical condition of a declarant to be admitted at trial, even though the declarant may be available as a witness. State v. Magee , 11-0574 (La. 09/28/12), 103 So.3d 285, cert. denied , 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013). Specifically, La. C.E. art. 803(3) provides that the following is an exception to the hearsay rule:

...A statement of the declarant's then existing statement of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health),offered to prove the declarant's then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's testament.

A state of mind declaration is relevant if it has a tendency to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence. State v. Brown , 562 So.2d 868 (La. 1990) ; State v. Doze , 384 So.2d 351 (La. 1980). However, hearsay evidence showing the victim's state of mind for the purpose of proving the motive of the defendant is inadmissible, since its prejudicial effect on the defendant far outweighs its probative value as to the victim's state of mind. State v. Leonard, 05-42 (La. App. 5th Cir. 07/26/05), 910 So.2d 977, writ denied, 06-2241 (La. 06/01/07), 957 So.2d 165.

The erroneous admission of hearsay evidence does not require a reversal of the defendant's conviction if the error is harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the hearsay evidence might have contributed to the verdict. State v. Wille , 559 So.2d 1321 (La. 1990), cert. denied , 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992) ; State v. Lloyd , supra.

Exceptions to the hearsay rule include dying declarations. La. C.E. art. 804(B)(2). A dying declaration is defined as "[a] statement made by a declarant while believing his that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death." State v. Griffin , 01-0579 (La. 03/07/01), 783 So.2d 1241, 1241-42 ; State v. Garner , 45,474 (La. App. 2d Cir. 08/18/10), 47 So.3d 584.

The Fourth Circuit in State v. Nicholson , 96-2110 (La. App. 4th Cir. 11/26/97), 703 So.2d 173, writ denied , 98-0014 (La. 05/01/98), 805 So.2d 200, found that a statement made by a victim, even if it is made in response to a question, may be admitted as a dying declaration if it was made when the declarant was conscious of his condition and aware of his approaching demise. The court further found that the victim is not required to express an awareness of impending death, and the victim's state of mind may be inferred by the circumstances under which the statement was made. See also State v. Verrett , 419 So.2d 455 (La. 1982) ; State v. Plauche , 09-400 (La. App. 3d Cir. 01/06/10), 32 So.3d 852, writ denied , 10-0302 (La. 09/24/10), 45 So.3d 1070.

The testimony from Cooks, Alvarez, and Cpl. Pickett establish the victim's state of mind prior to her death and thus fall within exceptions to the hearsay rule. Ms. West's statements to all three witnesses were not being offered for the truth of the matter asserted. Instead, the statements clearly reflected the victim's active fear of Defendant. Both Cooks and Ms. Alvarez were present when Defendant harassed Ms. West, and Cooks testified that he was present when Defendant visited Ms. West's home in the middle of the night and banged on the home's front door and windows for almost an hour. The victim not only told Cooks of her fear; Cooks also observed it firsthand. Ms. West's statement to Cooks indicating her confusion as to why Defendant kept coming around despite the restraining order further indicates her state of mind and distress caused by Defendant's continued obsessive behavior.

Ms. West's complaints to all three parties further explain why she became frantic when her mother informed her that someone had turned on the outside water spigot and why she called the police on the morning of December 6, 2014. Cpl. Pickett's testimony is also admissible because it explains her actions during the course of an investigation and was not being offered for the truth of what the victim had told her.

Lastly, Ms. West's statement to Officer Duck naming Defendant as her assailant constitutes a dying declaration and, as such, was admissible at trial. Although Ms. West made no statement acknowledging her impending death, the circumstances under which she made the declaration, lying on the ground in a pool of her own blood with a mortal stab wound to her neck and numerous other stab and slash wounds all over her body, lead to a conclusion that the victim reasonably believed that she was in danger of immediate death.

This assignment is without merit.

Joinder of Offenses

Defendant argues in his pro se brief that the trial court erroneously joined the aforementioned offenses for trial. Defendant filed a pro se motion to sever the offenses on September 19, 2017. It appears that the trial court did not rule on this motion. This assignment of error is without merit, however, because there is no evidence in the record showing that the offenses Defendant complains about were actually joined for trial. The amended grand jury indictment charges Defendant with only a single count: second degree murder. The indictment makes no mention of the other offenses of which Defendant complains. Defendant acknowledges that the indictment refers only to the single, second degree murder charge, but then argues that the trial court allowed the offenses of second degree murder, cyberstalking, and stalking be joined for trial.

The only reference to these other charges occurred within the context of witness testimony. Appellate counsel raises the issue of possible La. C.E. 404(B) violations in this appeal, which were addressed above. Defendant was neither tried nor convicted of stalking and cyberstalking charges were not the subject of the trial.

This assignment is without merit.

Due Process Violations

During trial, the trial judge revealed that he knew one of the State's witnesses, Monique Bradley, but advised the parties that Ms. Bradley's testimony would not prejudice Defendant's case. Defendant argues that his case was unduly prejudiced because the trial judge, when reciting his reasons for finding Defendant guilty, cited the testimony of Monique Bradley, the witness he personally knew. Defendant further argues that his case was prejudiced because he was required to wear an orange jumpsuit, chains, and shackles during trial. Brown contends that his prison clothing predisposed witnesses to accuse him as West's attacker.

Following Ebony Morgan's testimony, the trial judge revealed that he recognized Monique Bradley mid-testimony and informed counsel. The trial judge assured the parties that there was no close relationship between himself and witness Monique Bradley, and that it would have no effect on the trial court's ability to be fair and impartial. Neither attorney objected.

Defendant's counsel failed to make a contemporaneous objection to the trial court's acquaintance with witness Monique Bradley at trial. Under La. C. Cr. P. art. 841, an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. Because defense counsel did not object, Defendant is precluded from raising this issue on appeal.

Similarly, defense counsel did not object to Defendant's prison garb at trial. The record confirms that Defendant was wearing an orange prison jumpsuit at trial and was handcuffed through his belt. Defense counsel made no objection to Defendant's attire or his being handcuffed. However, at defense counsel's request, Defendant's handcuffs were removed so he could take notes during the proceeding. Because there was no contemporaneous objection, Defendant is precluded from raising this argument on appeal. La. C. Cr. P. art. 841 ; State v. Rogers , 98-2501 (La. App. 1st Cir. 09/24/99), 757 So.2d 655. Furthermore, Brown has not shown that his prison attire prejudiced his case.

This assignment is without merit.

Appointment of Trial Counsel

Defendant next argues that the trial court erred in appointing Michelle Andrepont with the Caddo Parish Public Defender's Office as his defense counsel. Defendant alleges that at some point he presented the trial court with a copy of a complaint he had filed against Ms. Andrepont with the Louisiana Attorney Disciplinary Board alleging ineffective assistance of counsel. A copy of this complaint does not appear to be in the record.

On December 8, 2014, the trial court appointed Ms. Andrepont to represent Defendant. On November 12, 2015, Defendant filed a motion to appoint new counsel, complaining that Ms. Andrepont was ineffective. Defendant attempted to argue the motion at a hearing held on November 15, 2016. The trial court denied the motion, finding that Defendant provided no basis for appointment of new counsel. Defendant did not object to the trial court's ruling. At that same hearing, the trial court granted Defendant's motion to represent himself and appointed Ms. Andrepont as Defendant's standby counsel. On March 15, 2017, Defendant decided he no longer wanted to represent himself, and Ms. Andrepont was reappointed as his attorney.

Pursuant to La. C. Cr. P. art. 841, Defendant's failure to make a contemporaneous objection prohibits him from raising the argument on appeal. Even if Defendant properly preserved this issue for appeal, however, he failed to support these allegations with any evidence. As previously stated, Defendant failed to provide a copy of the alleged complaint filed with the disciplinary board or any indication of its outcome.

Accordingly, this assignment is without merit.

CONCLUSION

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

AFFIRMED.

      David Walker, a custodian of records for AT & T Wireless, testified that he provided NELOS records to investigators in the instant case. NELOS records document tracking information on a subscriber's cell phone, which provides the physical location of the phone. Walker authenticated the records provided to law enforcement, which tracked the location of cell phone numbers (318) 470-xxxx and (318) 519-xxxx. The NELOS records were admitted into evidence.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Michael J. JACOBS, Plaintiff-Appellee v. GEICO INDEMNITY COMPANY, Defendant-Appellant
    No. 52,372-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018.
    DAVENPORT, FILES & KELLY, L.L.P., By: Justin A. Wooley, Monroe, Counsel for Appellant
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellee
    Before BROWN, WILLIAMS, and McCALLUM, JJ.
   WILLIAMS, J.

The defendant, GEICO Indemnity Company ("GEICO"), appeals a judgment rendered in favor of the plaintiff, Michael Jacobs. For the following reasons, we amend the judgment to reflect that interest on the award of attorney fees shall begin to accrue from the date of final judgment, and to award an additional $1,500 in attorney fees for the appeal. We affirm the judgment as amended.

FACTS

In March 2016, a catastrophic flood affected multiple parishes in North Louisiana. Due to heavy rainfall and flooding, the region sustained devastating flood damage to homes, businesses and vehicles. The plaintiff, Michael Jacobs, lived in the Tanglewood Subdivision located on the south side of Monroe. The Tanglewood area was heavily affected by the flood.

The plaintiff was the owner of multiple vehicles, including a 2001 Honda Accord ("the Honda"). The plaintiff's vehicles were insured by GEICO. According to the plaintiff, when the flooding began, he and his brother attempted to move the vehicles from his residence to "higher ground." The plaintiff stated that they managed to move some of the vehicles; however, by the time they returned to retrieve the Honda, the flood waters were rising and his brother was unable to approach the house in the vehicle he was driving. Therefore, the plaintiff waded through the water to retrieve the Honda and was able to drive it through the flood waters. However, as he was driving the Honda to his mother's home in West Monroe, he noticed that the vehicle was "running hot." The plaintiff testified that the Honda continued to "overheat" in the days following the flood. He maintained that the Honda was not overheating prior to the flood.

The plaintiff submitted a claim to GEICO for the flood damage to his vehicles, including the Honda. GEICO paid the claims for the flood damage to the plaintiff's other vehicles but sent Kyle Vickers, its property damage adjuster, to inspect the Honda. The inspection took place on April 7, 2016, approximately one month after the flood. The report prepared by Vickers and transmitted to his supervisor at GEICO provided, in pertinent part:

* * *
1. Upper Radiator hose blew out, not flood related is
2. mechanical failure - no coverage for loss
3. Unable to determine any water dmg at this time
* * *

Vickers informed the plaintiff of his findings and informed him that he was entitled to take his vehicle to the mechanic of his choice for a second opinion. The written report prepared by Vickers included photographs of the vehicle, but it did not indicate whether or not he inspected the interior or the trunk of the Honda for evidence of flood damage.

Thereafter, the plaintiff had the Honda towed to Ryan Honda, a local Honda dealership, to be inspected, and told Amanda McKnight, the service adviser, that the Honda need to be inspected for flood damage. McKnight prepared the work order for the vehicle. In her deposition, McKnight testified that she informed Perry Wayne Porter, a mechanic at the dealership, that the vehicle needed to be inspected for flood damage. However, Porter testified that McKnight did not inform him that the vehicle had possibly sustained flood damage, and she did not ask him to inspect the vehicle for evidence of flooding. According to Porter, he was informed that the Honda would not start and was asked to determine the cause. Thereafter, Porter inspected the vehicle for mechanical issues and observed coolant on two of the spark plugs. He stated that he was able to start the vehicle after he changed the spark plugs.

On July 28, 2016, GEICO denied the plaintiff's claim with regard to his Honda. In a letter addressed to the plaintiff, GEICO stated that the policy of insurance did not provide "coverage for loss caused by and limited to wear and tear, freezing, mechanical or electrical breakdown or failure[.]" GEICO also stated, "This disclaimer is made because upon inspection of the vehicle, the damage is not flood related and [was] caused by wear and tear of the vehicle."

On March 7, 2017, the plaintiff filed a lawsuit against GEICO, seeking to recover property damage and attorney fees. In the petition, the plaintiff alleged that the Honda "was damaged due to water flooding his vehicle," and "as a result of this flooding, [his] vehicle was a total loss."

On the morning of the trial, the Honda was inspected by Christopher Hemphill, a used car dealer. Hemphill conducted a flood damage inspection and determined that the Honda had been damaged by flood water.

A bench trial was conducted on December 5, 2017, during which the plaintiff testified regarding the events leading up to the damage to the Honda and the events that took place thereafter. Additionally, Hemphill, Vickers and Porter testified with regard to their inspections of the Honda. After taking the matter under advisement, on December 20, 2017, the trial court filed into the record a judgment in favor of the plaintiff, finding that the evidence established that "the plaintiff's vehicle suffered water damage[.]" The court ordered attorney fees "together with legal interest thereon from date of judicial demand[.]"

Subsequently, on January 19, 2018, the trial court rendered a "Final Judgment," awarding to the plaintiff vehicle property damages in the amount of $2,000, and attorney fees in the amount of $1,500. The court also awarded the plaintiff legal interest from the date of judicial demand and the costs of the proceedings.

GEICO appeals.

DISCUSSION

GEICO contends the trial court erred in finding in favor of the plaintiff. It argues that the insurance policy was not introduced into evidence at trial; therefore, the trial court could not determine what obligation, if any, was owed under the terms of the policy.

As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129 ; Mendoza v. Grey Wolf Drilling Co., LP. , 46,438 (La. App. 2 Cir. 6/22/11), 77 So.3d 18, 27, writ denied , 2011-1918 (La. 11/14/11), 75 So.3d 943.

The record reflects that GEICO did not raise the issue of insurance coverage at trial. Nor did GEICO object to the introduction into evidence the letters it sent to the plaintiff acknowledging the existence of "flood damage" insurance coverage. The parties proceeded to trial based on the presumption that insurance coverage existed for flood damage, but not for mechanical issues or normal wear and tear of the vehicle. GEICO defended the lawsuit by arguing that the damage to the Honda was not flood-related and that coverage under its insurance policy did not apply to "wear and tear, freezing, mechanical or electrical breakdown or failure[.]" Under the facts of this case, we find that the argument that the GEICO insurance policy was not introduced into evidence is meritless.

GEICO also contends the trial court erred in finding that the Honda had suffered damage from the flood. According to GEICO, the evidence established that the damage to the Honda was caused by wear and tear, and was not attributable to water or flood damage.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State, Dept. of Public Safety and Corr. , 2001-2123 (La. 9/4/02), 825 So.2d 1134 ; Stobart v. State, Dept. of Transp. & Dev. , 617 So.2d 880 (La. 1993) ; State Farm Mut. Auto. Ins. Co. v. Carter , 46,608 (La. App. 2 Cir. 11/2/11), 77 So.3d 1036. To reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart , supra ; H.D. Graphics, L.L.C. v. It's Permanent, L.L.C. , 49,405 (La. App. 2 Cir. 10/1/14), 150 So.3d 936. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole , supra ; Rosell v. ESCO , 549 So.2d 840 (La. 1989).

In the instant case, Hemphill testified that he had been a used car dealer for more than 28 years, and as such, he was proficient in performing inspections of vehicles for evidence of flood damage. He stated that he found evidence of water damage from flooding when he inspected the Honda's trunk, engine, seat bolts and carpet. According to Hemphill, he lifted the trunk mat and observed "obvious signs of insulation damage due to water and rusting on the spare tire." Further, he testified that the "insulation had been torn up and wet, nasty," there was "flood damage and water or rust developing ... around the bolts that hold the seats down," and the vehicle's engine mounts were "rusty." Hemphill also described the carpet in the Honda as "compressed down," "matty looking" and "black," which indicated that the vehicle had sustained flood damage. On cross-examination, Hemphill testified that the carpet had been "definitely wet." He also testified it was not possible that the damage to the carpet was caused by "somebody getting in there with wet feet" because the damage was "way worse than that."

Conversely, Vickers testified that he did not observe any flood damage to the Honda. He stated that based on his inspection, the only issue he detected was the damage to the radiator hose. Vickers admitted that he did not inspect the trunk, the seat bolts, the engine mounts or the area underneath the carpet for signs of rusting.

The trial court was faced with two permissible views of the evidence: Hemphill testified that the Honda sustained flood damage, and Vickers testified that it did not. It is apparent that the trial court found Hemphill's testimony to be credible. Based on our review of the record, we find that the trial court was not manifestly erroneous or clearly wrong in finding that the Honda sustained water damage due to the rising flood waters. Consequently, the trial court's determination will not be disturbed by this court.

GEICO also contends the trial court erred in awarding attorney fees. It argues that the denial of the claim was based on the inspection conducted by its claims adjuster. Therefore, according to GEICO, its refusal to pay the claim was not arbitrary, capricious or without probable cause.

An insurer owes its insured a duty of good faith and fair dealing. As such, an insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. La. R.S. 22:1973(A). Louisiana law provides for penalties, including attorney fees, against an insurer whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary, capricious, or without probable cause. Both La. R.S. 22:1892(B)(1) and La. R.S. 22:1973(B)(5) and (C) are penal in nature and must be strictly construed. Cooper v. Farmers Ins. Exch. , 50,978 (La. App. 2 Cir. 11/23/16), 210 So.3d 829 ; Jones v. Johnson , 45,847 (La. App. 2d Cir. 12/15/10), 56 So.3d 1016.

To prevail under 22:1892(B)(1), the claimant must establish that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary and capricious. Id. Satisfactory proof of loss within the meaning of the statute is that which is sufficient to fully apprise the insurer of the insured's claim. McDill v. Utica Mutual Ins. Co. , 475 So.2d 1085 (La. 1985) ; Cooper , supra ; Jones , supra .

Moreover, for the court to assess penalties and attorney fees, the claimant must show that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Cooper , supra ; Jones , supra . The phrase "arbitrary, capricious, or without probable cause" is synonymous with "vexatious" and means a refusal to pay that is unjustified and without a reasonable or probable cause or excuse. Reed v. State Farm Mut. Auto. Ins. Co. , 2003-0107 (La. 10/21/03), 857 So. 2d 1012 ; Cooper , supra . Thus, penalties and attorney fees are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good faith reliance on that defense. Guillory v. Lee , 2009-0075 (La. 6/26/09), 16 So. 3d 1104 ; Cooper , supra . This is especially true when there is a reasonable and legitimate question as to the extent and causation of a claim; bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when such reasonable doubt exists. Guillory , supra ; Cooper , supra .

Whether the insurer's actions were arbitrary, capricious, or without probable cause, such that sanctions should be imposed, is a question of fact, and the trial court's finding should not be disturbed absent manifest error. Cooper , supra ; Jones , supra .

In the instant case, the plaintiff testified that he started to move his vehicles from his house when the flood waters began to rise. He stated that by the time he could return to move the Honda, the waters had risen, forcing him to drive the vehicle through flooded streets. After paying the claims on the plaintiff's other vehicles, GEICO sent Kyle Vickers, a damage inspector, to inspect the Honda approximately one month after the flood. At trial, Vickers testified that he inspected the vehicle for flooding. However, he admitted that he did not inspect the trunk, and the photographs indicated that he did not lift the carpet or look underneath the seats for signs of rusting. Vickers stated that he concluded that the vehicle had not been damaged by flooding because the carpet and air filter were not wet (a month after the flood), he did not detect the smell of mildew, and the engine oil was not "milky." However, as stated above, the report prepared by Vickers did not contain any notations with regard to the carpet, air filter, engine oil or smell of mildew.

After reviewing the evidence, the trial court apparently found that GEICO's action - denying the insurance claim without performing a complete inspection for flood damage - was "unjustified and without a reasonable or probable cause or excuse," i.e. , arbitrary, capricious, or without probable cause. Notwithstanding Hemphill's testimony at trial, the evidence of record demonstrates that although GEICO paid the flood claims on the plaintiff's other vehicles, the insurer inexplicably sent its claims adjuster to inspect the Honda. The report prepared by Vickers, the GEICO claims adjuster, revealed that he did not fully inspect the vehicle for flood damage. We find no manifest error in the trial court's findings or in the award of attorney fees. This assignment lacks merit.

GEICO also contends the trial court erred in ordering legal interest on the award for attorney fees to be calculated from the date of judicial demand. The insurer argues that interest on the award of attorney fees should be calculated from the date of the judgment. This assignment has merit. Any award of legal interest on attorney fees can be assessed only from the date of judgment. Arceneaux v. Amstar Corp. , 2010-2329 (La. 7/1/11), 66 So.3d 438 ; Mayfield v. Reed , 43,226 (La. App. 2 Cir. 4/30/08), 981 So.2d 235. Accordingly, we find that the trial court erred in awarding interest on the attorney fees from the date of judicial demand. We hereby amend the judgment to reflect that interest on the award of attorney fees will accrue from the date of the final judgment.

ANSWER TO APPEAL

The plaintiff has answered the appeal and requested additional attorney fees incurred for the appeal of this matter. Generally, an increase in attorney fees is allowed where a party was awarded attorney fees by the trial court, is forced to defend an appeal, and is successful on appeal. Rent-A-Ctr. E., Inc. v. Lincoln Par. Sales & Use Tax Comm'n , 46,054 (La. App. 2 Cir. 3/9/11), 60 So.3d 95, writ denied , 2011-0713 (La. 5/20/11), 63 So.3d 985 ; Family Care Services, Inc. v. Owens , 45,505 (La. App. 2 Cir. 8/11/10), 46 So.3d 234.

In the instant case, in his request for additional attorney fees, counsel for the plaintiff did not include an invoice or affidavit to show a specific amount for the work completed in connection with this appeal. However, because we have affirmed the trial court's findings in favor of the plaintiff, we find it appropriate to award reasonable attorney fees for the appeal. Given the nature of the case, we find an additional award in the amount of $1,500 is reasonable. We thus amend the judgment to award attorney fees for the plaintiff in the amount of $1,500.

CONCLUSION

For the reasons set forth herein, we hereby amend the trial court's judgment to reflect that the interest on the award of attorney fees shall begin to accrue from the date of the final judgment. We also amend the judgment to award the plaintiff, Michael Jacobs, an additional $1,500 in attorney fees for the appeal. The judgment, as amended, is affirmed. Costs of the appeal are assessed to the defendant, GEICO Indemnity Company.

AMENDED; AFFIRMED AS AMENDED.

      The plaintiff testified that the following vehicles were insured by his GEICO insurance policy: the 2001 Honda Accord, a 2007 BMW 335I, a 2008 BMW 530I, a 2010 Honda Accord Cross Tour, and a 1966 Ford Mustang.

      During her deposition, McKnight testified that as a service adviser, she would "talk to the customer, make a ticket, get the concerns of the customer, and then go over their concerns that they're having."

      McKnight did not testify at trial. However, in her deposition, she stated that she was present when Porter inspected the vehicle for flood damage. She also stated that Porter showed her the damaged radiator hose and told her that the vehicle did not have flood damage.

      The plaintiff also alleged as follows:
      5.
      Prior to this accident, Defendant GEICO INDEMNITY COMPANY, issued to and/or for of Plaintiff * * * a policy of automobile insurance covering the vehicle owned by Plaintiff herein, which included comprehensive and collision coverages. Said policy, was in full force and effect at the time of [the flood].
      * * *
      GEICO answered the petition generally denying the allegations. With regard to the insurance policy, GEICO stated:
      5.
      The allegations of Paragraph 5 of the plaintiff's Petition for Damages are denied for lack of sufficient information to justify a belief therein except to aver that if a relevant policy of insurance was afforded herein by GEICO Indemnity Company, said policy is that best evidence of its contents and is pled herein as if copied herein in extenso . GEICO Indemnity Company specifically denies any allegations which tend to contradict, contravene or enlarge upon the terms, conditions, exclusions or limitations of said policy.
      * * *

      The plaintiff did not file an answer to the appeal with regard to the amount of damages awarded.

      The plaintiff introduced into evidence two letters written by GEICO. One letter, dated August 3, 2016, provided, in pertinent part:
      * * *
      The applicable policy provides, in part, as follows:
      When The Physical Coverages Do Not Apply:
      4. There is no coverage for loss caused by and limited to wear and tear, freezing, mechanical or electrical breakdown or failure, unless that damage results from a covered theft.
      This disclaimer is made because upon inspection of the vehicle the damage is not flood related and caused by wear and tear of the vehicle.
      * * *
      (Emphasis added).

      Photographs taken by Hemphill were introduced into evidence at trial.

      Hemphill stated that prior to the flood the retail value of the Honda would have been $3,625. However, according to Hemphill, a vehicle that has "major flood damage" is not marketable, making the value of the Honda $0.

      At the time the damage was sustained and the lawsuit was filed, La. R.S. 1892(B)(1) provided:
      Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
      La. R.S. 22:1973 provides, in pertinent part:
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A of this Section:
      * * *
      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
      * * *
      C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.


author: STONE, J.

text:
    INTERDICTION OF Paul HOGE
    No. 52,368-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 8, 2018
    RITA KAY BACOT, Shreveport, CATHERINE LEARY, Counsel for Appellant
    KITCHENS LAW FIRM, APLC, By: Richard Russell Ray, Bossier City, By: Graydon K. Kitchens, Jr., Minden, Counsel for Appellees
    SOCKRIDER, BOLIN, ANGLIN, BATTE & HATHAWAY, By: Donald Edgar Hathaway, Jr., Shreveport, Curator Ad Hoc for the Property of Paul Leon Hoge
    Before GARRETT, STONE, and COX, JJ.
   STONE, J.

The trial court denied David and Alyson Hoge's request for $65,946.81 in attorney fees and costs and awarded them $2,500 in attorney fees and costs. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Paul Hoge ("Paul") was born on November 28, 1936 and has lived in Shreveport his entire life. For the last 7 years, he has resided in the home of LaRae Cook ("Cook"), his girlfriend of 13 years. Paul has one son, David Hoge ("David"). David and his wife, Alyson Hoge ("Alyson") (jointly "the Hoges"), live in Little Rock, Arkansas. In 2015, Paul was diagnosed with Alzheimer's and dementia. On January 25, 2017, the Hoges filed a petition to interdict Paul. Due to a series of motions filed by both parties, including multiple continuances by Paul, depositions, and days of testimony, the interdiction was contested over a period of 8 months.

On August 11, 2017, the parties agreed that full interdiction was not warranted as a less restrictive means was available. A judgment of limited interdiction was rendered, denying the full interdiction. The stipulations of the limited interdiction are as follows: 1) Christopher Smith and Gina Smith be appointed as limited co-curators over the person of Paul; 2) Alyson be appointed as the limited undercuratrix over the person of Paul; 3) Donald Hathaway, Jr. be appointed as the limited curator over Paul's property; 4) Mark Ford, CPA for Paul, appointed as the limited undercurator over the property of Paul.

Thereafter, on September 20, 2017, the Hoges filed a rule for reimbursement wherein they sought $65,946.81 in reimbursements for attorney fees and costs. In a hearing on October 30, 2017, the trial court granted the Hoges reimbursement in the amount of $2,500. The trial court based its judgment on: 1) the length and contentiousness of the interdiction; 2) the financial stability of the Hoges; 3) an affidavit executed by Paul Hoge stating he does not wish to reimburse the Hoges; 4) the fact that the Hoges filed the interdiction to preserve the assets of the interdict; and 5) the fact that the Hoges stated throughout the interdiction proceeding that they did not want or expect Paul's money. The Hoges appealed the trial court ruling, arguing the award was not fair or reasonable in light of the fees they incurred in connection with the interdiction.

DISCUSSION

A court of appeal should not set aside a trier of fact's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La. 1989) ; Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one, after reviewing the record in its entirety. Stobart, supra .

La. C. C. P. art. 4550 provides that the trial court may render judgment for costs and attorney fees against any party as the court may consider fair. (emphasis added). Regardless of the statutory authorization for an award of attorney fees, courts should examine certain factors to determine the reasonableness of the fees. Rivet v. State, Dep't. of Transp. & Dev. , 96-0145 (La. 09/05/96), 680 So.2d 1154, 1161. Factors to be considered include the ultimate result obtained; the responsibility incurred; the importance of the litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment, and skill of the attorneys; the number of appearances involved; the intricacies of the facts involved; the diligence and skill of counsel; and the court's own knowledge. Id. ; see also , Ezzell v. Miranne , 2015-471 (La. App. 5th Cir. 01/27/16), 185 So.3d 171.

In support of their argument, the Hoges cite In re Interdiction of DeMarco , 2009-1791 (La. App. 1 Cir. 04/07/10), 38 So.3d 417. In DeMarco , Mrs. DeMarco, through her retained counsel, filed a motion for approval of her counsel's attorney fees and costs. The trial court reduced the billed attorney fee and awarded an amount less than what was requested. In reversing the trial court, the Louisiana First Circuit Court of Appeal stated, "we conclude the trial court was clearly wrong in determining that the fees and expenses billed by Mrs. DeMarco's retained counsel were not earned or clearly excessive under the terms of the contract for legal services." The First Circuit also discussed the court's role in altering attorney fees, and stated, "[U]nless the provisions of an attorney-client contract produce an excessive, unearned, or incommensurate fee according to the factors set forth in Rule 1.5(a) of the Louisiana State Bar Association Rules of Professional Conduct, the fee charged must be considered reasonable and enforceable." See Moody v. Arabie , 498 So.2d 1081 (La. 1986).

We find the instant case to be distinguishable from DeMarco . In DeMarco , the request was for an approval of attorney fees, which the trial court determined was unearned and clearly excessive. In the matter sub judice , the trial court did not find the fee charged was unearned or clearly excessive under the terms of the contractual agreement. Additionally, the attorney fees were not altered as they were still effective between the Hoges and their attorney. Notably, in its oral reasons for awarding the Hoges $2,500 in attorney fees, the trial court made the following observation:

[I]t is shocking for, to expect Mr. Hoge to refund or reimburse the amount of $65,946.81 in this matter. Throughout these proceedings, which were protracted unnecessarily, in the Court's opinion, the plaintiffs in this matter kept emphasizing through pleadings and otherwise that they were concerned about the reduction of Mr. Hoge's assets. They emphasized throughout the litigation that that was their only concern, that -- to maintain Mr. Hoge's assets so that he could provide for himself, and for him to go to the medical treatment that was necessary. They testified that their net worth was approximately $1.5 million, and they do [sic] not want Mr. Hoge's money nor [sic] did they expect any of it, etc. But yet they file this motion to request that Mr. Hoge reimburse them for $65,946.81, which the court does not find to be reasonable or fair in these circumstances. The court does agree that there was a limited interdiction that was granted. The court multiple times would counsel or admonish each counsel that the litigation was somewhat spinning out of control, in the court's opinion, with a great deal of hostility on both sides, which I think unnecessarily drove up the expense, time, [and] energy of this litigation. Unfortunately, it didn't seem that either side paid much attention to those admonishments, and that was a major reason why the expenses, and the time, energy, and perhaps bad feelings occurred.

We find no error in the trial court's decision to only award the Hoges $2,500 in attorney fees. First, a clear reading of La. C.C. P. art. 4550 reveals the determination of whether to award attorney fees lies within the discretion of the trial court. The trial court had the option to award the Hoges attorney fees; it was not mandated. Second, a review of the record, including the trial court's explanation of its ruling, provides a reasonable basis for the trial court's conclusion. The trial court, in its discretion, determined the Hoges deserved a portion of their attorney fees. However, due to their role in the unnecessarily protracted litigation and repeated claims that they were not after Paul's money, the trial court simply awarded a portion of the requested $65,946.81, which it resolved as fair under the circumstances. The trial court also considered the fact that the Hoges petitioned the trial court for a full interdiction of Paul, however only a partial interdiction was granted. Under the facts of this case, we do not find the trial court abused its discretion in its award to the Hoges.

The Hoges contend Paul's affidavit should not have been considered in determining reimbursement. The limited interdiction covered all of Paul's property and money, with the exception of his weekly allowance. The Hoges argue that because of this limited interdiction, Paul does not have control over how to spend his money or what bills to pay. At the hearing, Paul's counsel argued that Paul had the legal capacity to make the affidavit and stated Paul asked him to oppose the request for attorney fees and costs. The trial court stated Paul's affidavit and request for his counsel to oppose the reimbursement was credible evidence that Paul does not wish to pay the attorney fees and court costs. The trial court did not completely deny the reimbursement based on Paul's affidavit. Likewise, the trial court did not base the award of partial reimbursement solely on Paul's wishes. We find this argument to be without merit.

The Hoges argue they acted in good faith, which was not considered by the trial court. They offer the judgment of limited interdiction as evidence of their good faith. However, a showing of good faith is not dispositive of the issue of attorney fees in an interdiction proceeding. The Hoges cited case of In re Interdiction of Mashburn , 2012-1444 (La. App. 1 Cir. 4/30/13), 2013 WL 1845714 stated, "The good or bad faith of a litigant in an interdiction proceeding is simply a factor to be considered by the trial court when considering what is 'fair' or 'an equitable solution' regarding the allocation of costs and attorney fees." Although the trial court did not spend time discussing good or bad faith in its oral reasons for judgment, it did agree that a limited interdiction was granted. The good faith of the Hoges was also argued before the trial court and discussed at the hearing. We find it is clear from the record that the trial court considered the good faith of the Hoges. However, La. C.C.P. art. 4550 states the decision to award attorney fees and costs is within the discretion of the trial court. If the legislature wanted the good faith of the parties to determine reimbursement, it would have included that requirement in the language of the article. This assignment lacks merit.

Finally, the Hoges argue the trial court should not have considered their net worth or the length and contentiousness of the proceedings when determining reimbursement. The Hoges brought up their financial worth to support their contention that they were not after Paul's money. Their only concern was maintaining Paul's assets so he could provide for himself. Counsel for the Hoges requested the entire interdiction record be introduced as evidence in the reimbursement hearing. The trial court considered all the arguments made by both parties throughout the litigation, as well as the manner in which this litigation was carried out. It was within the trial court's discretion to determine the reimbursement of attorney fees based on the law and evidence, which included the entire record of the interdiction. We find this assignment of error lacks merit. As this is within the trial court's discretion and absent manifest error, we cannot overturn the trial court's decision.

CONCLUSION

For the aforementioned reasons, we find the trial court did not err in denying David and Alyson Hoge's claim for $65,946.81 in attorney fees and awarding them $2,500 in attorney fees. Costs of this appeal are assessed to David and Alyson Hoge.

AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Jeanette Giddens Garrett, Shonda D. Stone - Writing, Jeff Cox, and Jay Bowen McCallum, JJ.

Rehearing denied.

      This case is unpublished. It is cited here because the Hoges cited it in their argument, but it does not stand for the contention that good faith is the ultimate factor in awarding attorney fees and costs. This case clearly states that it is simply a factor to consider.