author: EZELL, Judge.

text:
    STATE of Louisiana v. Franck A. LOUIS
    KA 18-228
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Don M. Burkett, District Attorney, P. O. Box 1557, Many, LA 71449, (318) 256-6246, COUNSEL FOR APPELLEE: State of Louisiana
    Paula Corley Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Franck A. Louis
    Anna Louise Garcie, P. O. Box 575, Many, LA 71449, (318) 729-9104, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   EZELL, Judge.

Defendant, Franck A. Louis, was charged by bill of information filed on January 9, 2017, with second degree battery, a violation of La.R.S. 14:34.1, and false imprisonment, a violation of La.R.S. 14:46. On May 3, 2017, Defendant waived his right to trial by jury, and a bench trial commenced on July 19, 2017. Defendant was subsequently found guilty on both counts. On October 26, 2017, Defendant was sentenced to serve four years at hard labor for second degree battery and six months for false imprisonment, with the sentences to run concurrently. Defendant filed a Motion to Reconsider Sentence on November 9, 2017. At a hearing on the motion, the trial court reduced the sentence for second degree battery to two years at hard labor. A Motion for Appeal was filed on December 22, 2017 and was subsequently granted.

Defendant's appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging the record contains no non-frivolous issues for appeal and requests this court grant her accompanying motion to withdraw. Defendant was advised, via certified mail, that counsel filed an Anders brief. Defendant was given until July 25, 2018, to file a pro se brief, and he failed to do so. For the following reasons, we affirm the conviction and sentence for second degree battery, sever the conviction and sentence for false imprisonment, and grant appellate counsel's motion to withdraw.

FACTS

On November 22, 2016, Defendant invited the victim, Kim Miller, to his home for a drink, and she accepted the invitation. Miller testified she had several alcoholic drinks and a hit of crack cocaine while at the residence. Defendant later asked Miller for sex, and she declined. Miller subsequently went home. Miller returned to Defendant's house after he requested that she do so and promised he would not ask her for sex again. Once back at the Defendant's home, Miller had a couple more drinks and another hit of crack cocaine. Miller testified the Defendant then hit her in an attempt to make her have sex with him, and she slapped his hand. Defendant hit Miller again, telling her she could not leave, and she had to die. Next, Defendant bit her and stomped her, and she passed out. She later woke up naked. Defendant was sleeping at that time, so Miller sneaked out of the house without dressing. She then ran to the home of Quintkia Cade, tripping and falling in the grass more than once. Cade called for help, and an ambulance transported Miller to the hospital where she stayed for two days.

Patrolman Tim Harper said Miller's jaws were swollen, she had a swollen right eye, and a bite mark on her face. Defendant reported that he tried to get Miller to leave his home, and she refused, so, they started pushing each other.

Nurse Patty Davis testified that, while at the hospital, Miller rated her pain a ten, almost unbearable pain, on the pain scale. Miller had a bruise to the right side of her face and an abrasion on the left cheek. Her right eye was swollen shut, and her upper lip was swollen. Miller's medical records also referenced bite marks and places where she had been kicked and stepped on.

Defendant testified that Miller drank most of a bottle of alcohol and smoked crack cocaine at his home. He felt he had been tricked because she refused to have sex with him, so he asked her to leave. She refused, and, at some point, he broke the crack pipe. Miller then left. Defendant claimed Miller fell numerous times while at his home, including falling on top of a drum set. He denied striking Miller.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there are two errors patent and a procedural issue noted by appellate counsel and addressed in the Anders analysis below.

ANDERS ANALYSIS

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, Defendant's appellate counsel filed a brief stating she could find no errors on appeal that would support reversal of Defendant's conviction or sentence for second degree battery. Thus, counsel seeks to withdraw.

In State v. Benjamin , 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

While it is not necessary for Defendant's appellate counsel to "catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit[,]" counsel's Anders brief must " 'assure the court that the indigent defendant's constitutional rights have not been violated.' McCoy [v. Court of Appeals of Wisconsin , 486 U.S. [429] at 442, 108 S.Ct. [1895] at 1903, 100 L.Ed.2d 440 [ (1988) ]." State v. Jyles , 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241. Counsel must fully discuss and analyze the trial record and consider "whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the [trier of fact] for its consideration." Id. Thus, counsel's Anders brief must review the procedural history and the evidence presented at trial and provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton , 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

Trial counsel filed a pleading titled "Assignments of Error" on December 22, 2017. Therein, he asserted the following:

a) There was insufficient evidence to sustain a conviction on the charge of second degree battery in light of the testimony of Kim Miller who admitted using drugs and tripping and falling when leaving Mr. Louis' home. Furthermore, Ms. Miller's testimony of excessive drug and alcohol use on the night in question put all of her testimony in question.
b) Considering the defendant is a first felony offender, the sentence is harsh and excessive to the degree that it is cruel and unusual punishment.

In her Anders brief, appellate counsel addresses these two assignments of error.

Appellate counsel first discusses the sufficiency of the evidence to support Defendant's conviction for second degree battery. Counsel notes the State was required to prove Defendant committed a battery, without the victim's consent, and intentionally inflicted serious bodily injury. Counsel discusses Miller's testimony and notes that this court has rejected arguments that the type of injuries suffered by Miller do not constitute serious bodily injury. In support of this contention, appellate counsel cites State v. Jackson , 02-1250 (La.App. 3 Cir. 2/5/03), 838 So.2d 841, writ denied , 03-832 (La. 10/17/03), 855 So.2d 759. Therein, this court addressed serious bodily injury within the definition of La.R.S. 14:34.1, stating:

In State v. Hernandez , 96-0115 (La.App. 4 Cir. 12/18/96), 686 So.2d 92, the court upheld the defendant's conviction for second degree battery when the victim's injuries consisted of a cut to her right eye and nose area, a cut on her shoulder and a cut on her finger. The victim testified the injuries burned.
In State v. Accardo , 466 So.2d 549 (La.App. 5 Cir.1985), writ denied , 468 So.2d 1204 (La.1985), the defendant, a twenty-one year old male struck a seventeen year old female on the head with either his fist or a blackjack. The blow caused pain and swelling to the victim's head. The court found the evidence was sufficient to establish the victim suffered serious bodily injury within the meaning of the second degree battery statute even though the victim did not lose consciousness and she did not testify she was in extreme physical pain.
....
In [State v. ]Young , 00-1437 [sic], [ (La. 11/28/01) ], 800 So.2d 847, [aff'd in part , 00-1437 (La. 11/28/01), 800 So.2d 847,] the supreme court affirmed a jury verdict finding the jury could reasonably have concluded the defendant intended to inflict serious bodily injury when he choked the victim. The victim testified he coughed frequently, cleared his throat and had trouble talking. The court found the State proved the defendant intended to cause "impairment of the function of a bodily member."

Id. at 844.

Appellate counsel notes that, notwithstanding Miller's testimony that she fell in the grass while leaving Defendant's home, the medical evidence reflecting bite marks and places where she had been kicked and stepped on corroborate her testimony that Defendant was the cause of her injuries. While Defendant denied the allegations, the trial court chose to believe Miller's version of the events. Appellate counsel suggests this court should not second-guess that credibility determination. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). Thus, the State proved the elements of second degree battery beyond a reasonable doubt. Accordingly, Defendant's conviction should be affirmed. We find appellate counsel's conclusions are correct.

Appellate counsel also addresses the excessiveness of Defendant's sentence for second degree battery. Appellate counsel notes the only relevant question is whether the trial court abused its discretion in imposing the sentence not whether another sentence, might be more appropriate. State v. Soraparu , 97-1027 (La. 10/13/97), 703 So.2d 608. Appellate counsel asserts a two-year sentence is in the low range for second degree battery, and she cannot argue the trial court abused its discretion nor that the sentence imposed is constitutionally excessive considering the facts of the crime and the reduction of the original sentence.

Second degree battery is punishable by a fine of not more than $2,000 or imprisonment with or without hard labor for not more than eight years, or both. La.R.S. 14:34.1. Defendant was ultimately sentenced to serve two years at hard labor, and no fine was imposed. Although Defendant is a first felony offender, he previously pled guilty to two counts of domestic abuse battery.

Defendant's two-year sentence is not excessive, particularly in light of the trial court's granting of his motion to reconsider sentence and his history of violence toward others.

Appellate counsel addresses two errors patent. First, counsel contends the lack of a written waiver of jury trial resulted in a violation of La.Code Crim.P. art. 780 ; however, she notes that there was a valid waiver in open court.

Defendant was entitled to a jury trial in this case. See La.R.S. 14:34.1 and La.Code Crim.P. art. 782. Louisiana Code of Criminal Procedure Article 780 (emphasis added) states:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.
B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel.
C. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.

The record reveals no written waiver of jury trial as required by La.Code Crim.P. art. 780. However, court minutes reflect that defense counsel advised the court in Defendant's presence that Defendant wished to waive his right to a trial by jury. The court confirmed that Defendant could read, write, speak the English language, was not under a doctor's care for any physical or mental illness, and was not under the influence of drugs, alcohol, or any other medication. Defendant indicated that he had discussed the right to a trial by jury with his attorney, and the court stated it was satisfied Defendant knowingly, intelligently, and voluntarily waived his right to a jury trial.

In State v. Bell , 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, this court held that the absence of a written waiver of jury trial as required by La.Code Crim.P. art. 780 was harmless error where the defendant and his counsel were in open court when the judge addressed the defendant's right to a jury trial and his waiver thereof. Accordingly, the error in failing to obtain a written waiver in violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

Next, appellate counsel notes there was a misjoinder of offenses in the bill of information waived by Defendant's failure to file a motion to quash. Offenses may be joined in a single indictment under limited circumstances if the offenses are triable by the same mode of trial. La.Code Crim.P. art. 493. In the present case, count one, second degree battery, is triable by a jury of six, all of whom must concur to render a verdict. La.R.S. 14:34.1 ; La.Code Crim.P. art. 782. Count two, false imprisonment, is a misdemeanor triable by a judge only. La.R.S. 14:46 ; La.Code Crim.P. art. 779(B). Thus, the two counts were improperly joined in the bill of information. However, review of the error is waived by Defendant's failure to file a motion to quash. La.Code Crim.P. art. 495 ; State v. Newton , 12-509 (La.App. 3 Cir. 2/13/13), 129 So.3d 1.

Counsel further correctly notes the misdemeanor charge of false imprisonment, not triable by jury, is not appealable. In Newton , 129 So.3d at 4, this court explained the mode of review in situations such as this:

In State v. Turner , 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied , 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction from the defendant's appeal of two felony convictions. This court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the rules of court. This court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. Consequently, this court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.
In this case, the Defendant does not raise any assignment of error regarding the misdemeanor conviction. Therefore, following this Court's holding in Turner , we will sever the misdemeanor conviction from the appeal and order Defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Uniform Rules-Courts of Appeal 1-3, if he so desires. The same should be done in the present case, especially considering counsel

requests severance of the misdemeanor conviction with Defendant being given the opportunity to file a writ of review if he chooses.

Appellate counsel further addresses an alleged discrepancy in the minutes of November 30, 2017. Appellate counsel asserts the minutes indicate both convictions for second degree battery and false imprisonment were taken up on the motion to reconsider sentence. However, it is clear that the reduction of sentence applied to the second degree battery conviction only. Appellate counsel suggests the minutes of court be corrected.

The minutes of November 30, 2017, read, in part:

STATE OF LOUISIANA Case #17-CR-076429 VS CHARGE: FRANCK A LOUIS* SECOND DEGREE BATTERY FALSE IMPRISONMENT
Case fixed today for Motion to Reconsider Sentence. The defendant was present in court with his attorney, Kevin Berg. The State was represented by Anna Garcie, Assistant District Attorney. The Court advised that he has received a letter from persons at Kings Chapel which he provided a copy to the State and Defense. FRANCK LOUIS was called, sworn, examined by Mr. Berg and made statements to the Court. Mr. Berg made arguments to the Court. After no objection, the letter from King's Chapel was filed into the record. The Court ordered the defendant's sentence be REDUCED to TWO (2) YEARS at HARD LABOR . The Court advised the defendant he has two (2) years from the date the sentence becomes final to apply for Post-Conviction Relief. The Court noted the State's objection.

The minutes of court do not explicitly indicate the motion to reconsider sentence was applicable to the false imprisonment conviction. Thus, there is no need for correction of the minutes.

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and Benjamin , 573 So.2d 528, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts, and have confirmed the statements made by appellate counsel. Defendant was properly charged in the bill of information, he was present and represented by counsel at all crucial stages of the proceedings, the verdict for second degree battery was correct, and he received a legal sentence for second degree battery.

Review of the record reveals no issues that would support an assignment of error on appeal. Therefore, Defendant's conviction and sentence for second degree battery are affirmed, and counsel's motion to withdraw is granted. Defendant's misdemeanor conviction and sentence for false imprisonment are severed from the appeal, and Defendant is ordered to file a writ of review regarding the misdemeanor conviction within thirty days of the court's ruling, if he so desires.

CONVICTION AND SENTENCE FOR SECOND DEGREE BATTERY AFFIRMED; MOTION TO WITHDRAW GRANTED. MISDEMEANOR CONVICTION AND SENTENCE FOR FALSE

IMPRISONMENT SEVERED FROM APPEAL.


source: Caselaw Access Project

author: MOLAISON, J.

license: Public Domain

text:
    ASI FEDERAL CREDIT UNION v. LEOTRAN ARMORED SECURITY, LLC, Leonard Tolleson, & Other Unidentified Individuals
    NO. 18-CA-341
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, ASI FEDERAL CREDIT UNION, Philip D. Nizialek, Jacqueline M. Brettner, Sarah E. Stogner, New Orleans
    COUNSEL FOR INTERVENOR/APPELLANT, CERTAIN UNDERWRITERS AT LLOYDS OF LONDON SYNDICATES 1414, 457 AND 1084, SUBSCRIBING TO POLICY FINFR1503374, Gary A. Hemphill, Arthur R. Kraatz, Justin C. Warner, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   MOLAISON, J.

Intervenors-Appellants, Certain Underwriters at Lloyd's London Syndicates 1414, 457, and 1084 Subscribing to Policy FINFR1503374 ("Underwriters"), appeal from a final default judgment entered on November 29, 2017, which disposes of all claims asserted by plaintiff, ASI Federal Credit Union ("ASI") against defendant, LeoTran Armored Security, LLC ("LeoTran"). Underwriters challenge the correctness of the trial court's confirmation of the default judgment alleging both procedural and substantive defects. For the following reasons, we vacate the default judgment and remand the matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, ASI, a credit union headquartered in Jefferson Parish, uses automated teller machines ("ATMs") at its branch offices, as well as at several freestanding locations. In 2012, ASI contracted with ATM Worldwide, LLC ("ATMWW) to service its ATMs. ATMWW then contracted with defendant, LeoTran, a licensed armored car company owned by Leonard Tolleson, to provide armored vehicle services and to transport cash to and from ASI's ATMs. LeoTran serviced ASI's ATMs from August of 2013 through December of 2015.

On behalf of LeoTran, Mr. Tolleson purchased an Armored Car Cargo Liability Policy from Underwriters, with an effective policy period extending from April 15, 2015 to April 15, 2016 (the "Policy"). ASI alleged that in December 2015, LeoTran removed over one million dollars of ASI's cash from ATMs that LeoTran serviced on behalf of ASI, and also from cash reserves that LeoTran held in trust in LeoTran's vault for future cash delivery to the ASI ATMs that LeoTran serviced. ASI averred that, in total, $1,382,200 of ASI's cash went missing while in LeoTran's care, custody and control.

On December 15, 2015, when ASI learned that its money was missing, ASI reported the missing money to state and federal law enforcement officials. During its initial investigation, the Jefferson Parish Sheriff's Office ("JPSO") recovered $34,200, which was returned to ASI. Despite demand by ASI to LeoTran to return all of ASI's cash in its care, custody or control, the remaining $1,348,000 has never been recovered or returned to ASI.

Soon after the money went missing, ASI contacted LeoTran's insurance broker to ascertain available coverage for the loss, which led ASI to Underwriters. In January 2016, ASI submitted a claim to Underwriters under the Policy it issued to LeoTran seeking reimbursement of the missing $1,348,000. Underwriters denied coverage under the Policy for ASI's loss, claiming that under the Policy's directors and officers exclusion, coverage for the intentional theft by Mr. Tolleson, the "founder, principal, and owner of LeoTran, was excluded."

According to ASI, even though LeoTran is defunct and the whereabouts of its owner unknown, in order to interrupt prescription and preserve all potential avenues for recovery, ASI filed suit against LeoTran on December 9, 2016. After several failed attempts to serve LeoTran and Mr. Tolleson with the petition, ASI successfully served LeoTran through the Louisiana Secretary of State on October 30, 2017. On November 14, 2017, ASI filed a motion for preliminary default wherein it stated:

As shown by the Record and/or the Certificate of the Clerk of Court attached hereto, although the 15-day legal delay prescribed by law for answering the Petition has expired, LeoTran has not answered, otherwise filed responsive pleadings, or filed a formal request for extension of time with the Court.

Affixed to the order directing that a preliminary default against LeoTran be entered on the minutes is a certification signed by the deputy clerk on November 14, 2017, the day the motion requesting a preliminary default was filed, certifying that "no answer or other pleadings [had] been filed [by, or on behalf of, LeoTran] in the matter." The following day, on November 15, 2017, the order was signed by the duty judge and a preliminary default judgment against LeoTran was entered into the minutes of the trial court.

On November 29, 2017, ASI filed a motion to confirm the default, wherein ASI stated that pursuant to La. C.C.P. art. 1702(B)(2), "ASI's demand is based, in part, upon the delictual obligation of LeoTran resulting from the loss of ASI's cash that went missing while in LeoTran's care, custody, and control in order to service and stock ASI-branded ATMs." Attached to ASI's motion was the affidavit of its vice president, Brian Menard, and various exhibits annexed thereto, which ASI averred "contain[ed] facts and evidence sufficient to establish a prima facie case" of LeoTran's liability. Additionally, ASI's motion requested that the Court confirm the default judgment against LeoTran "based on the attached documents ...." In the alternative, ASI requested the trial court to set a hearing date to "allow ASI to present the live testimony of ASI's corporate representative to establish a prima facie case." On the same day that ASI filed its motion-without holding a confirmation hearing or the taking of testimony in open court-the trial court confirmed the default judgment in favor of ASI holding LeoTran liable to ASI for the $1,348,000 that was lost or went missing while in LeoTran's care, custody or control. On November 30, 2017, the clerk issued a notice of signing of the default judgment for service by the sheriff upon LeoTran through the secretary of state; service was accomplished on December 7, 2017.

After learning of the final default judgment rendered in favor of ASI, Underwriters filed a petition for intervention into the proceedings on December 18, 2017, seeking a declaration that the Policy does not provide coverage for ASI's claims, and requesting the default judgment be set aside on the grounds that it was procedurally and substantively improperly obtained. Also on December 18, 2017, Underwriters filed a motion for new trial with respect to the default judgment, which the trial court denied on February 26, 2018. Underwriters then moved for a devolutive appeal on April 10, 2018, seeking review of the November 29, 2017 default judgment against LeoTran claiming that, as LeoTran's insurer-who may become liable for all or part of the judgment rendered against its insured in this matter-it is a third party aggrieved by the judgment.

On appeal, Underwriters aver that the final default judgment must be reversed because it is both procedurally and substantively defective. Specifically, Underwriters maintain the default judgment is procedurally defective because the trial court erred (1) in granting ASI a preliminary default prior to the expiration of LeoTran's deadline to file an answer, and (2) in failing to hold a hearing in open court on the confirmation of default in contravention of La. C.C.P. art. 1702(B)(2). Underwriters contend the default judgment is substantively defective because the trial court erred (1) in failing to grant Underwriters' motion for new trial based on ASI having obtained the default through ill practices, and (2) in granting the default judgment despite ASI's failure to support its motion by sufficient admissible evidence. Because we find merit to Underwriters' contention that the default judgment is procedurally defective, a finding that requires this Court to vacate the judgment and remand the matter to the trial court, we pretermit any review or discussion regarding whether the default judgment should be set aside for ill practices, or whether ASI presented sufficient admissible evidence to establish a prima facie case of LeoTran's liability for tortious conversion, breach of contract, and/or bad faith.

DISCUSSION

I. Jurisdictional Issues

Standing

Our initial inquiry is whether Underwriters have standing to appeal this judgment when Underwriters are not a party to the litigation. Rourke v. Estate of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653. La. C.C.P. art. 2086 provides that "[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." The sole object of an appeal is to give an aggrieved party to an action recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended, not only to the parties to the suit in which the judgment is rendered, but also to a third party when such third party is aggrieved by the judgment. In re Succession of Walker , 02-625 (La. App. 5 Cir. 12/11/02), 836 So.2d 274, 277-78, writ denied , 03-110 (La. 3/28/03), 840 So.2d 572. Thus, Underwriters have the right to prosecute this appeal, if they could have intervened in ASI's suit against LeoTran in the trial court proceedings.

La. C.C.P. art. 1091, authorizing intervention in a pending action, provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.

Jurisprudentially, we have held that the requirements for intervention are twofold: the intervenor must have a justiciable interest in, and connexity to, the principal action, and the interest must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor's rights. Atchley v. Atchley , 97-474 (La. App. 5 Cir. 1/14/98), 707 So.2d 458, 459. A "justiciable interest" is defined as "the right of a party to seek redress or a remedy against either [the] plaintiff or [the] defendant in the original action or both, and where those parties have a real interest in opposing it." Id.

Here, ASI's action against LeoTran is to determine LeoTran's liability for tortious conversion, breach of contract, bad faith, and damages for the loss of ASI's cash that was lost or damaged while in LeoTran's care, custody, or control. Underwriters, as the insurer of LeoTran under an armored car cargo liability policy that was in effect at the time ASI's cash went missing, has a direct justiciable interest that is related or connected to the object of the principal action because Underwriters could ultimately be the party responsible for paying all or part of the judgment owed by its insured. Under law and jurisprudence, we find that Underwriters could have intervened (and did so) in the underlying proceedings; they simply failed to do so in a timely fashion as the default judgment had been confirmed and, thus, there was no "pending action" within which to intervene. La. C.C.P. art. 1091. However, this procedural error by Underwriters does not affect their right to pursue the instant appeal. See ANR Pipeline Co. v. La. Tax Comm'n , 08-1148 (La. App. 1 Cir. 10/17/08), 997 So.2d 92, 101, writ denied , 09-0027 (La. 3/6/09), 3 So.3d 484. Underwriters clearly have standing to appeal the November 29, 2017 default judgment entered against LeoTran.

Timeliness of Appeal

ASI avers that even if Underwriters have standing to appeal, the filing of their devolutive appeal was untimely because their filing of the motion for new trial was untimely. We disagree. The record shows that the default judgment was signed by the trial court on November 29, 2017. Thereafter, in accordance with La. C.C.P. art. 1913, the clerk of court prepared a notice of signing of the default judgment on November 30, 2017 for service upon the Louisiana Secretary of State by the East Baton Rouge Parish Sheriff, which service was accomplished on December 7, 2017. Pursuant to La. C.C.P. art. 1974, the delay for Underwriters to apply for a new trial commenced to run the following day, on December 8, 2017, and did not expire until seven days later, exclusive of holidays, or until December 18, 2017. Thus, Underwriters' motion for new trial, filed on December 18, 2017, was timely.

The record confirms that the trial court signed an order on February 26, 2018 denying Underwriters' motion for new trial and that Underwriters moved for a devolutive appeal on April 10, 2018. In accordance with La. C.C.P. art. 2087(A)(2), Underwriters was well within the sixty-day delay period for taking a devolutive appeal, and thus, we find Underwriters' appeal is timely.

II. The Default Judgment

Standard of Review

Generally, an appellate court's review of a default judgment is governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, LLC , 08-1111 (La. 5/5/09), 9 So.3d 815, 818. However, when the court of appeal "finds that a reversible legal error or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits." Id. ; Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Although a presumption exists that the record supports a default judgment, the presumption does not exist when the record upon which the judgment is rendered indicates otherwise. Morice v. Alan Yedor Roofing , 16-532 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079-1080.

Applicable Law

A defendant's failure to comply with Articles 1001 and 1002 of the Louisiana Code of Civil Procedure exposes the party to a judgment of default. The law and procedure governing default judgments is found in La. C.C.P. arts. 1701, 1702, and 1702.1. Article 1701 allows for a preliminary default to be entered against a properly served defendant if he does not answer a petition or file other pleadings within the time prescribed by law. A judgment of default is sometimes referred to as a "preliminary default." Arias , 9 So.3d at 819.

Article 1702 sets forth the evidentiary requirements necessary for confirming a default judgment. Specifically, La. C.C.P. art. 1702(A) requires that a judgment of default be confirmed by proof of the demand "sufficient to establish a prima facie case." La. C.C.P. art. 1702(B) sets forth the evidentiary requirements for proving a prima facie case sufficient to confirm a default judgment. These requirements differ depending upon the nature of the obligation, be it conventional or delictual. If the obligation is conventional, a petitioner need only submit "affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case." La. C.C.P. art. 1702(B)(1). If the obligation is delictual, such as in the instant case, the "testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand." La. C.C.P. art. 1702(B)(2). In short, "when the demand is based upon a conventional obligation, proof by affidavit can be sufficient, and when the demand is in tort, the plaintiff must testify but affidavits can be used for corroborating evidence." [Emphasis supplied.] Arias , 9 So.3d at 820 n. 11.

La. C.C.P. art. 1702.1 establishes the procedure for confirming a default judgment without a hearing when the default is confirmed pursuant to La. C.C.P. art. 1702(B)(1) (i.e. , when the demand is based upon a conventional obligation), and La. C.C.P. art. 1702(C) (i.e. , when the demand relates to a suit on open account). Article 1702.1 provides the following:

A. When the plaintiff seeks to confirm a preliminary default without appearing for a hearing in open court as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with a written motion for confirmation of preliminary default and proposed final default judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and the fact that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed since demand was made upon the defendant.
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other pleading has been filed within the time prescribed by law or by the court.

La. C.C.P. art. 194 sets forth those particular orders and judgments that need not be signed by the district court in open court, but rather, may be signed in chambers, i.e. , without holding a hearing. Specifically, La. C.C.P. art. 194(6) provides, in pertinent part:

The following orders and judgments may be signed by the trial judge in chambers:
(6) Order or judgment which may be granted on ex parte motion or application, except ... a judgment granting or confirming a default [.] [Emphasis supplied.]

Thus, when reviewing La. C.C.P. arts. 1702(B)(2) and 194(6) together, it is clear that at the time ASI moved to confirm its default against LeoTran on November 29, 2017, in order to confirm a default judgment involving a delictual action, the trial judge was required to confirm the default in open court.

Application of Law

For the following reasons, we find the trial court's confirmation of the default judgment in favor of ASI and against LeoTran did not comply with the procedural requirements set forth La. C.C.P. arts. 1701, 1702, and 1702.1 for properly entering and confirming a default judgment. Consequently, we find the final default judgment is procedurally defective for several reasons (any one of which requires this Court to vacate the judgment): (1) it is based on an invalid preliminary default; (2) no confirmation hearing was held in open court, and no live testimony of ASI was presented in compliance with La. C.C.P. art. 1702(B)(2) ; and (3) ASI failed to comply with the procedural requirements of La. C.C.P. art. 1702.1, which governs confirmation of a preliminary default without a hearing in open court.

1. The Default Judgment is Based on an Invalid Preliminary Default

In this ordinary proceeding, LeoTran was required to file an answer or other responsive pleading to ASI's petition within fifteen (15) days after being served with citation. La. C.C.P. art. 1001. The record shows that LeoTran was served through the secretary of state on October 30, 2017. Thus, LeoTran had until 11:59 p.m. on November 14, 2017-the fifteenth day-to file a response to ASI's petition. However, on November 14, 2017-prior to the expiration of LeoTran's deadline for filing responsive pleadings -ASI moved for the entry of a preliminary default. The record reflects that even though LeoTran's deadline for filing an answer had not yet elapsed, the deputy clerk certified on November 14, 2017 "that no answer or other pleadings [had] been filed [by LeoTran] in this matter."

It is axiomatic that until a "defendant ... fails to answer or file other pleadings within the time prescribed by law ," it is premature for a plaintiff to move the court to enter a judgment by default against him. La. C.C.P. art. 1701(A). [Emphasis supplied.] See Whitney Bank v. NOGG, L.L.C. , 15-1399 (La. App. 1 Cir. 6/3/16), 194 So.3d 819, 823. Though the preliminary default was not entered into the trial court's minutes until November 15, 2017, the record on appeal is devoid of any certification by the deputy clerk that on that date -the earliest date upon which a preliminary default against LeoTran could legally have been requested-no answer or other pleading had been filed by LeoTran. Because the record shows that ASI prematurely requested that a preliminary default be entered against LeoTran, we find the preliminary default was procedurally defective and invalid as a matter of law. Consequently, because the judgment confirming the default was based on a procedurally defective preliminary default, we find the final default judgment is likewise procedurally defective and must be vacated.

2. A Confirmation Hearing is Required to Confirm a Default Under La. C.C.P. art. 1702(B)(2) When the Demand is in Tort

Underwriters argue the trial court's confirmation of the default judgment was procedurally flawed because under La. C.C.P. art. 1702(B)(2), since ASI's motion specifically pled that it was seeking a default judgment based on a delictual obligation, the court was required to hold a hearing in open court before confirming the default. We agree. See La. C.C.P. art. 194(6). The law in effect at the time ASI moved to confirm its default against LeoTran on November 29, 2017 specifically excepted a judgment granting or confirming a default from those judgments a district court may sign in chambers.

We also find that La. C.C.P. art. 1702(B)(2) expressly requires that when the demand is in tort, such as ASI's claim against LeoTran in the instant case, the plaintiff must provide live testimony; affidavits and other exhibits attached thereto can be used for corroborating evidence. Arias , 9 So.3d at 820 n. 11 ; W.H. Cary, Sr., Estate, L.L.C. v. Duhon , 10-1526 (La. App. 3 Cir. 5/25/11), 64 So.3d 922, 925. There is no indication in the record before us that the trial court held a hearing prior to confirming ASI's default judgment against LeoTran. The record is devoid of any minute entry reflecting that a hearing was held; there is no transcript of any proceeding held that day; and, the judgment does not indicate that a hearing was held. As noted previously, in its motion for confirmation of the default judgment, ASI specifically requested that the judgment be confirmed "based on the attached documents," and only in the alternative, requested that a hearing be held. We find the trial court committed legal error by confirming the default judgment without holding a hearing in open court and without requiring the plaintiff to provide testimony in accordance with La. C.C.P. art. 1702(B)(2).

3. Confirmation of a Default Pursuant to La. C.C.P. art. 1702(B)(1) Requires Strict Compliance With the Mandatory Requirements of La. C.C.P. art. 1702.1.

ASI contends for the first time on appeal that the default judgment against LeoTran was based "in part" on a conventional obligation and, as such, the trial court's confirmation of the default judgment without a hearing was permitted by La. C.C.P. art. 1702(B)(1). Even assuming ASI's contention is correct, and even though La. C.C.P. art. 1702.1 permits confirmation of a default judgment without a hearing for claims based on conventional obligations, this "permission" does not cure ASI's procedural problems in this case. The law in this Circuit is clear that the requirements of La. C.C.P. art. 1702.1 are mandatory and that a plaintiff's failure to strictly comply with these requirements is fatal to the plaintiff's judgment. Lonergan v. Metlife , 98-767 (La. App. 5 Cir. 2/10/99), 729 So.2d 81, 82-83. Specifically, Article 1702.1 requires that the written motion for confirmation of default include with it in an itemized form a certification that: (1) the suit is based on conventional obligation; (2) the necessary supporting documents are attached to the motion; (3) establishes the details of service on the defendant; and (4) includes the required certification from the clerk. See La. C.C.P. art. 1702.1(A) and (B).

A review of the record in the instant matter confirms that ASI did not comply with the mandatory codal requirements for confirming a default judgment without a hearing. First, while ASI filed a written motion for confirmation of default, attaching an affidavit with exhibits annexed thereto, ASI did not include with the motion the requisite certification that the suit was based on a conventional obligation. In fact, not only was there no certification or even a mention in ASI's motion that its suit against LeoTran was based on a conventional obligation, ASI's motion explicitly states that "[p]ursuant to La. C.C.P. art. 1702(B)(2), ASI's demand is based, in part, upon a delictual obligation ...." [Emphasis supplied.]

Next, ASI's motion states that LeoTran was served with a copy of the petition through the Secretary of State on October 30, 2017, and that "[a]s shown by the Record and/or the Certificate of the Clerk of Court attached hereto," LeoTran's "15-day legal delay" for answering the petition had "expired" without LeoTran having filed responsive pleadings or having requested an extension of time. Although the preliminary default contains a certification signed by the deputy clerk of court stating that no responsive pleadings had been filed in the matter (which certification we noted, supra , was signed prior to the actual expiration of LeoTran's deadline for filing responsive pleadings), there was no such certification accompanying ASI's default judgment as required by La. C.C.P. art. 1702.1.

Additionally, although the final default judgment contains language stating that "[c]onsidering the motion of ... ASI ..., the evidence submitted in support thereof, and the entire record of this matter (all of which is hereby admitted into evidence) ...[,]" ASI's written motion did not request the trial court to admit the entire record into evidence. To the contrary, a review of ASI's motion shows that ASI expressly "request[ed] the Court [to] confirm the default judgment against LeoTran based on the documents," consisting solely of the affidavit of Brian Menard and the exhibits annexed thereto.

We find that the documentation submitted by ASI does not comply with the mandated requirements of La. C.C.P. art. 1702.1. ASI failed to provide in itemized form a certification that the suit was based on a conventional obligation, indicating the type and date of service on LeoTran, and the date the preliminary default was entered. ASI also failed to include a certification by the clerk that the record was examined, the date of examination, and that no responsive pleadings had been timely filed. These same type of omissions were made by the plaintiff in Lonergan , supra , and this Court held these deficiencies were fatal to the plaintiff's judgment. Even assuming these deficiencies could have been cured by introduction of the entire record into evidence, ASI's motion failed to request that the entire record of these proceedings be made a part of its motion or that the entire record be considered by the court prior to its rendition of judgment. The requirements of La. C.C.P. art. 1702.1 are mandatory. Lonergan , 729 So.2d at 83. ASI's failure to comply with these requirements requires this Court to vacate the final default judgment. Id. ; see also VSA, Inc. v. Catalanotto , 97-897 (La. App. 5 Cir. 1/27/98), 708 So.2d 1090, 1092.

DECREE

For the foregoing reasons, because we find the final default judgment to be procedurally fatally flawed, we vacate the judgment and remand the matter for further proceedings.

JUDGMENT VACATED; MATTER REMANDED

      In this litigation, defendant, LeoTran, is sometimes spelled "Leotran," and at other times spelled "LeoTran." For consistency within this opinion, we will refer to the defendant as "LeoTran."

      In December 2015, Leonard Tolleson and his son, who was not an employee of LeoTran, were arrested for stealing ASI's cash. They posted bail and, according to the parties, have not been seen since.

      Prior to ASI's filing of the instant suit, in order to resolve its coverage claims against Underwriters, on July 18, 2016, ASI instituted an action against Underwriters in the 24th Judicial District Court Parish of Jefferson, bearing docket number 762-957, Division "B," seeking a declaratory judgment that the Policy provides coverage for ASI's loss (the "Coverage Suit"). On December 14, 2017-two weeks after the trial court in the instant matter confirmed ASI's default judgment against LeoTran finding LeoTran liable to ASI for the $1,348,000 that was lost or damaged while in LeoTran's care, custody, and control-the trial court in the Coverage Suit granted summary judgment in favor of ASI finding that ASI was a customer of LeoTran, and that ASI's property was lost or damaged while in the care, custody and control of LeoTran. Finding that the directors and officers exclusion did not apply, the trial court declared that Underwriters is liable to ASI and that the Policy affords coverage for ASI's loss, including money lost or damaged while in the care, custody and control of LeoTran. Underwriters have appealed the trial court's declaratory judgment, which appeal is currently pending in 18-CA-164 c/w 18-CA-306, and is assigned to this same appellate panel.

      Though ASI's petition asserts a breach of contract claim against LeoTran, there is no mention in ASI's motion for confirmation of the preliminary default that its demand against LeoTran is based, even in part, on a conventional obligation or that it was pursuing a default judgment on a conventional obligation pursuant to La. C.C.P. art. 1702(B)(1).

      In its petition for intervention, Underwriters averred that, despite the ongoing litigation between ASI and Underwriters in the Coverage Suit, ASI failed to notify Underwriters that it was seeking a default judgment, and ASI also failed to apprise the trial court in the instant matter of the pending Coverage Suit when it moved to confirm the default. As noted, in the final default judgment, the trial court found LeoTran liable to ASI for the $1,348,000 that was lost or damaged while in LeoTran's care, custody or control. One of the arguments asserted by Underwriters in the Coverage Suit was that ASI failed to prove that LeoTran was liable to ASI for the loss of the money, which liability Underwriters claimed was a prerequisite to triggering coverage under the Policy. Moreover, though ASI maintains in its appellate brief that the trial court dismissed Underwriters' petition of intervention, with prejudice, on January 22, 2017, the record does not support this contention. To the contrary, the record shows that on that date, the trial court denied ASI's proposed order to dismiss Underwriters' petition of intervention, with prejudice.

      La. C.C.P. art. 1913(B) provides, in pertinent part, that "[n]otice of the signing of a final default judgment against a defendant ... on whom citation was served through the secretary of state, and who filed no exception, answer, or other pleading, shall be served ... in the case of a defendant originally served through the secretary of state, by service on the secretary of state." In the instant matter, because ASI perfected service upon LeoTran through the secretary of state, pursuant to La. C.C.P. art. 1913(B), the notice of signing of the default judgment was required to be served upon the secretary of state.

      La. C.C.P. art. 1974 states that "[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913."

      La. C.C.P. art. 2087(A)(2) states, in pertinent part, that "[e]xcept as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or execution of an appealable order or judgment may be taken within sixty days of ... [t]he date of the mailing of notice of the court's refusal to grant a timely application for a new trial ...."

      La. C.C.P. art. 1001 provides, in pertinent part, that "[a] defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law." La. C.C.P. art. 1002 states that "[n]otwithstanding the provisions of Article 1001, the defendant may file his answer or other pleading at any time prior to the signing of a default judgment against him."

      La. C.C.P. art. 1701(A) provides that "[i]f a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, a preliminary default may be entered against him. The preliminary default may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the preliminary default shall consist merely of an entry in the minutes." In an ordinary proceeding, such as in the case sub judice , a defendant is generally required to file an answer or other responsive pleading within fifteen (15) days after service of citation upon him. La. C.C.P. art. 1001.

      La. C.C.P. art. 1702, Confirmation of Default Judgment, provides, in pertinent part:
      B. (1) When a demand is based on a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
      (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

      A "conventional" obligation is "an obligation that results from the actual agreement of the parties; a contractual obligation." BLACK'S LAW DICTIONARY, 1102 (7th ed. 1999).

      A "delictual" obligation is an obligation constituting a tort. BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE, Second Edition, 262 (Oxford University Press 2001) (1987).

      La. C.C.P. art. 194(6) was amended by 2018 La. Act. 195, effective August 1, 2018, to remove the exception requiring a judgment granting or confirming a default to be signed in open court.

      We note that the copy of ASI's motion for entry of preliminary default contained in the record on appeal is not a stamped copy and does not evidence that the pleading was actually filed or the time that it was filed. The certificate of service attached to the motion, however, which was signed by ASI's counsel of record, is dated November 14, 2017.

      Even though ASI's motion made various references to the record, we find these references are insufficient to constitute a request that the entire record be made a part of the motion.

      We note that our brethren on the First and Second Circuit Courts of Appeal have taken a contrary position and held that if a plaintiff fails to meet all of the procedural requirements set forth in La. C.C.P. arts. 1702 or 1702.1, the trial court has the option to reject consideration of the submittal of the request for confirmation of default or it may review the record to be certain that confirmation is warranted. See McCann v. Anderson , 07-1378 (La. App. 1 Cir. 6/6/08), 991 So.2d 1086, 1089-1090 ; Discover Bank v. Peters , 38,366 (La. App. 2 Cir. 4/14/04), 870 So.2d 602, 606. See also Ernest N. Morial New Orleans Exhibition Hall Auth. v. New Limits Enterprise, LLC , 16-0706 (La. App. 4 Cir. 4/5/17), 215 So.3d 974, 978, wherein the Fourth Circuit, in accord with this Court, ruled that "the legislative use of the term 'shall' makes clear that a party moving for confirmation of a default judgment must strictly comply with La. C.C.P. art. 1702.1." The Third Circuit is also in agreement with this Court's position. See John Guidry Const. Co., Inc. v. Rivertown Properties, Inc. , 517 So.2d 853, 855 (La. App. 3d Cir. 1987).


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. McKinley EFFERSON, Appellant
    No. 52,306-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY JAN JOHNSON, MONIQUE YVETTE METOYER, MEKISHA SMITH CREAL, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

McKinley Efferson (the "defendant") was charged with second degree murder, but was convicted of manslaughter and sentenced to 36 years' imprisonment at hard labor. He now appeals his sentence and conviction and urges two assignments of error: (1) the trial court erred in excluding evidence of the victim's "dangerous character" pursuant to La. C.E. Art. 404 ; and (2) his sentence is unconstitutionally excessive. For the reasons stated herein, we affirm.

FACTS

Reginald Wess ("Mr. Wess"), the victim, was engaged to marry the defendant's mother, Mattie Efferson ("Ms. Efferson"). Mr. Wess and the defendant were not related. At the time of the murder, Mr. Wess had lived in the same house with Ms. Efferson, the defendant, and all or some of Ms. Efferson's other children for approximately 4½ years. At the time of the murder, the members of the household were Ms. Efferson, Mr. Wess, the defendant, and Maurice Efferson, who is the defendant's brother. Mr. Wess and Ms. Efferson shared a bedroom while the defendant and Maurice Efferson each had his own separate bedroom.

Mr. Wess's employment required him to be at work at approximately 4:00 a.m. He normally went to bed before 10:00 p.m. and woke around 2:30 a.m. to prepare for work and feed the dogs.

The defendant admitted to police in a recorded interview that he used his mother's 9 mm handgun to shoot Mr. Wess multiple times. This occurred in their home in Shreveport, Louisiana, between 2:00 and 3:00 a.m. on January 16, 2015. Awakened by the gunshots, Ms. Efferson came out of her bedroom. Upon doing so, she saw Mr. Wess dressed in his work uniform lying on the floor near the doorway between the kitchen and the carport. She also saw the defendant, holding her gun, standing on the opposite side of the room from where Mr. Wess was lying. She asked the defendant what he had done, and the defendant replied that Mr. Wess was "messing with him."

Emergency services received two 911 calls regarding the shooting; one was by an unidentified male caller and the other by Ms. Efferson. Mr. Wess was transported to the emergency room where he was pronounced dead.

With Ms. Efferson's consent, the police searched the house. They found Ms. Efferson's 9 mm handgun under the defendant's mattress. They also found four spent 9 mm shell casings in his clothing hamper. The crime scene investigators had the house cordoned off and took measurements and pictures of the house, including the blood in the kitchen area.

Dr. Long Jin conducted the autopsy and, at trial, was admitted as an expert in forensic pathology. He stated that Mr. Wess was 50 years old, was 5'6" tall, and weighed 236 pounds. Mr. Wess's blood and urine tested negative for drugs and alcohol.

Dr. Jin recovered three projectiles (bullets) from Mr. Wess's body. He indicated that there were five wounds on Mr. Wess's body, and stated that one of the wounds could have been caused by a bullet's reentry into the body after passing through the arm. He also stated that two of the woundswould have been independently fatal, and that a third could have been independently fatal.

The three projectiles recovered from the Mr. Wess's body and the four spent shell casings recovered from the defendant's clothing basket were matched to Ms. Efferson's handgun.

After the jury was sworn, the trial court held a hearing (outside the presence of the jury) regarding the admissibility of evidence of Mr. Wess's "dangerous character" pursuant to the so-called "domestic violence exception" set forth in La. C.E. art. 404(A)(2). The trial court ruled that the exception was not applicable because the defendant and Mr. Wess did not have a "familial" relationship with each other. Finding the exception inapplicable, the trial court held evidence of Mr. Wess's supposed dangerous character inadmissible pursuant to the general rule of article 404(A). The defendant did not make a proffer or otherwise make known to the court the substance of the evidence which he sought to introduce pursuant to article 404(A)(2).

The state introduced and played for the jury the recording of the defendant's interview with the police. This interview was conducted approximately 2 ½ hours after the shooting. The defendant, who was 23 years old at the time of the trial, gave his story of what transpired between him and Mr. Wess in the minutes and hours prior to the shooting. Additionally, he detailed the nature of their relationship. The defendant also described instances of prior domestic violence involving the defendant and Mr. Wess. In addition to the defendant's statement, Ms. Efferson, Marisa Efferson (the defendant's sister), Officer Glass-Bradley, and Detective Joshua Mayfield testified regarding previous domestic violence between the defendant and Mr. Wess.

The jury found the defendant guilty of manslaughter, which is a responsive verdict to the charge of second degree murder. The trial court sentenced the defendant to 36 years of imprisonment at hard labor.

DISCUSSION

Admissibility of evidence of victim's "dangerous character"

In relevant part, La. R.S. 14:30.1 defines second degree murder as "the killing of a human being...when the offender has a specific intent to kill or to inflict great bodily harm." It also provides that second degree murder "shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence." La. R.S. 14:20(A)(1) provides a complete defense to murder "when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." When the defendant in a murder prosecution asserts self-defense, the prosecution bears the burden of proving beyond a reasonable doubt that the killing was not committed in self-defense. State v. Johnson , 41,428 (La. App. 2d Cir. 9/27/06), 940 So.2d 711, 716, writ denied , 2006-2615 (La. 5/18/07), 957 So.2d 150.

Manslaughter is defined in relevant part in La. RS 14:31 as:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed.

Thus, for murder to be reduced to manslaughter, the following elements must be proved: (1) the homicide was committed "in sudden passion or heat of blood"; (2) that sudden passion or heat of blood was immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection; (3) the defendant's blood did not cool between the provocation and the killing; and (4) an average person's blood would not have cooled between the provocation and the killing. In a prosecution for murder, a defendant who claims provocation (as a means of reducing murder to manslaughter) bears the burden of proving these elements by a preponderance of the evidence. State v. Leger , 2005-0011 (La. 7/10/06), 936 So.2d 108, 170-2.

Article 404(A)(2), in relevant part, states:

A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
...
(2) Character of victim ... [E]vidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence . (Emphasis added).

If the victim does not make a "hostile demonstration" or commit an "overt act" at the time of the offense, a criminal defendant may introduce evidence of the victim's "dangerous character" only if the defendant produces evidence sufficient to support a finding that: (1) there was a history of assaultive behavior between the victim and defendant; and (2) a familial or intimate relationship existed between the victim and the defendant. This is the so-called "domestic violence exception."

The trial court ruled that the domestic violence exception was inapplicable because there was no "familial" relationship between the defendant and Mr. Wess. In this appeal, the defendant argues that the relationship between the defendant and Mr. Wess was "familial." He characterizes his relationship with the Mr. Wess as a "stepfather-stepson type" relationship.

In relevant part, La. C.E. art. 103 provides:

A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
...
(2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.

Thus, if the trial court rules evidence inadmissible, the proponent must make known to the court the substance of the excluded evidence in order to preserve the issue for appellate review. State v. Magee, 2011-0574 (La. 9/28/12), 103 So.3d 285, 326. Otherwise, the proponent's right to argue the matter on appeal is waived. The issue can be preserved for appeal by proffer (or "offer of proof") either in the form of a complete record of the excluded evidence or a statement of what the proponent believes the excluded evidence would have established. Id. The purpose of a proffer "is to create a record of the excluded evidence so that the reviewing court will know what the evidence was and will thus be able to determine if the exclusion was improper, and if so, whether the improper exclusion constituted reversible error." Id. at 327.

If the proponent of erroneously excluded evidence does make a proffer, an appellate court will not reverse unless that error affected a substantial right of the proponent. "The determination is whether the error, when compared to the entire record, has a substantial effect on the outcome of the case, and it is the complainant's burden to so prove." Johnson v. Tucker , 51,723 (La. App. 2 Cir. 11/15/17), 243 So.3d 1237, 1243, writ denied , 2017-2075 (La. 2/9/18), 236 So.3d 1262, and writ denied , 2017-2073 (La. 2/9/18), 236 So.3d 1266. In Johnson , we further explained:

The concept of substantial right, as used in Louisiana Code of Evidence article 103, is akin to the harmless error doctrine applicable in both civil and criminal matters. Error has been defined as harmless when it is trivial, formal, merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case. Prejudicial error affects the final result of the case and works adversely to a substantial right of the party assigning it. Error is prejudicial when it consists of the exclusion of evidence related to a material point in issue and adversely affects the substantial rights of the party opposed to the exclusion. (Internal citations and quotation marks omitted).

Johnson , supra at 1243.

In this case, the defendant failed to make a proffer of the evidence that he sought to introduce pursuant to the "domestic violence exception" contained in article 404(A)(2). Accordingly, the defendant has waived his right to challenge the trial court's ruling regarding the domestic violence exception on appeal.

Furthermore, the record reveals that the jury was, despite the trial court's ruling, presented with evidence of specific prior instances of conduct and domestic violence between the defendant and Mr. Wess. Specifically, that evidence consisted of the defendant's recorded interview with police, the trial testimony of the defendant's mother and sister, and the trial testimony of Detective Joshua Mayfield and Officer Glass-Bradley. Therefore, even if the trial court's ruling purporting to exclude article 404(A)(2) evidence was erroneous, it could not have prejudiced the defendant - except to the extent, if any, that he would have introduced evidence of prior instances of conduct or domestic violence, which were not presented to the jury. The defendant did not make a proffer and he does not allege any such instances in his brief. Accordingly, the defendant has failed to carry his burden of proving that the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case.

Excessiveness of sentence

The defendant faced a sentencing range of zero to 40 years' imprisonment at hard labor for his conviction of manslaughter. La. R.S. 14:31(B). Had the defendant been convicted of second degree murder, he would have been subject to a mandatory life sentence without benefits. La. R.S. 14:30.1(B).

When a defendant's motion to reconsider sentence raises only a claim that the sentence imposed was constitutionally excessive, he is relegated to review of his sentence on that ground alone. La. C. Cr. P. art. 881.1 ; State v.Turner , 50,221 (La. App. 2 Cir. 1/20/16), 186 So.3d 720, writ denied , 2016-0283 (La. 2/10/17), 215 So.3d 700.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Shaikh , 2016-0750 (La. 10/18/17), 236 So.3d 1206 ; State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980).

To constitute an excessive sentence, a reviewing court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock the sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and, therefore, is nothing more than the needless imposition of pain and suffering. State v. Griffin , 2014-1214 (La. 10/14/15), 180 So.3d 1262. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , supra ; State v. Fontenot , 51,072 (La. App. 2 Cir. 1/11/17), 211 So.3d 1236.

In sentencing the defendant, the trial court stated that it felt the evidence supported a conviction of second degree murder. The defendant acknowledges that the sentencing judge may properly consider the benefit that the defendant received via conviction of a responsive verdict. Nonetheless, the defendant argues that, because the trial court did so in this case, "this sentence was a blatant usurpation of the jury's province as a fact-finder."

In State v. George , 33, 859 (La. App. 2 Cir. 9/27/00), 768 So.2d 748, 760, writ denied , 2000-2806 (La. 9/14/01), 796 So.2d 674, this court held that it is appropriate for the trial court, in sentencing a person convicted of manslaughter, to consider that the evidence might have supported a verdict of second degree murder. In State v. White , we elaborated on that point as follows:

In considering the nature of the offense, both the trial court and the reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. The fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration in a case such as this one in which the defendant has been convicted of the lesser offense of manslaughter.

State v. White , 48,788 (La. App. 2 Cir. 2/26/14), 136 So.3d 280, 282, writ denied , 2014-0603 (La. 10/24/14), 151 So.3d 599. Both George and White involved defendants who were convicted upon jury trial, not guilty pleas. George , supra at 768 ; White , supra at 280.

George and White hold that it is proper for a trial court, in sentencing a defendant on a responsive verdict, to impose a higher sentence than it otherwise would if evidence supported conviction for the charged offense. Our approach has not changed. This argument by the defendant is meritless.

The remainder of the defendant's argument consists entirely of the following legal conclusions: "the sentence imposed was unconstitutionally harsh and excessive given the facts and circumstances of this case" and "this sentence will not further the ends of justice. This sentence is nothing more than a needless and purposeless imposition of pain and suffering." In asserting these conclusions, the defendant does not assert any specific facts as support. Likewise, he cites no legal authority for the proposition that a 36-year sentence for the crime of manslaughter, given the facts of this case, is constitutionally excessive.

Like this case, White, supra, involved a defendant charged with second degree murder, but convicted of manslaughter and sentenced to the maximum of 40 years' imprisonment at hard labor. We affirmed. The defendant in White was a 19-year-old first felony offender. He and his two brothers, armed with a golf club and a chair, fought against the victim in physical combat. The victim bested all three brothers. As the victim, who was unarmed and wearing only a pair of shorts, walked away, the defendant produced a handgun and shot the victim to death. The defendant was charged with second degree murder, but the jury returned a responsive verdict of manslaughter. The defendant argued that the trial court improperly imposed the maximum sentence because it believed that the defendant should have been convicted of second degree murder. The defendant also argued that the trial court failed to take into account the defendant's young age, emotional disturbance at the time of the crime, and lack of criminal history. We held that it was proper for the trial court to consider that the evidence was sufficient to support a second degree murder conviction, and that the defendant had "benefited greatly" from the lesser verdict of manslaughter. Id. at 280-282.

State v. Jasper , 28, 187 (La. App. 2 Cir. 6/26/96), 677 So.2d 553, writ denied , 96-1897 (La. 2/21/97), 688 So.2d 521, involved a defendant who was charged with second degree murder, convicted of manslaughter, and sentenced to 35 years' imprisonment at hard labor. We affirmed. The defendant and his cohorts shot at a vehicle with multiple people inside as it drove past the defendant's group. The people in the car were unharmed, but an innocent bystander was killed. The trial court recognized, and this court agreed, that the evidence was sufficient to convict the defendant of second degree murder, which carries a mandatory life sentence without possibility of parole. Accordingly, the defendant benefited from his conviction of the responsive verdict of manslaughter. Id.

Based on the foregoing, we hold that the defendant's 36-year sentence for his conviction of the responsive verdict of manslaughter is not excessive. After reviewing the record, we agree with the trial court that the evidence could have supported a conviction of second degree murder, not manslaughter, and therefore defendant benefited greatly from the jury's manslaughter verdict.

CONCLUSION

The defendant's conviction and sentence are AFFIRMED.

      Ms. Efferson denied hearing any arguing, screaming, doors slamming, furniture moving, or bodies hitting walls prior to the gunshots waking her.

      La. Code of Evidence article 404 shall hereinafter be referred to as "article 404."

      La. C. Cr. P. art. 814(A)(3).