text:
    H. Steve SLAUGHTER, et ux., Plaintiffs-Appellants v. CENTRAL UNITED LIFE INSURANCE COMPANY, Defendant-Appellee
    No. 51,961-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    THE PESNELL LAW FIRM, APLC BY: Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Counsel for Appellants
    ADAMS and REESE, LLP BY: William B. Gaudet, Gerard J. Gaudet, Counsel for Appellee
    Before BROWN, WILLIAMS, and STEPHENS, JJ.
   BROWN, C.J.

Plaintiffs, Steve and Minnie Slaughter, husband and wife, appeal from a judgment sustaining an exception of prescription filed by defendant, Central United Life Insurance Company, dismissing all of Plaintiffs' claims for disability insurance benefits, surrender value, and refunds of premiums paid from the date of disability. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In October 1983, Plaintiffs purchased a guaranteed health and accident insurance policy insuring the life and health of Minnie Masters Slaughter against disability from Consolidated American Life Insurance Company. At oral argument, we were told that Mrs. Slaughter was employed by the Slaughters' own business, Steve Motors and Truck Parts, and this policy was part of a group insurance package. Consolidated American Life Insurance Company and the policy were subsequently acquired by Central United Life Insurance Company ("Defendant" or "Central United"), by and through a merger.

Plaintiffs paid all of the premiums due on or in connection with the policy and maintained the policy in full force and effect at all times through February 16, 2016. On that date, Plaintiffs filed their petition, alleging that in February 1994, Mrs. Slaughter became totally disabled as the result of a nervous breakdown and depression and has been totally and continuously disabled at all times since February of l994.

Plaintiffs sought to recover from Defendant the policy's limit of 60 months (five years) of indemnity payments at $940 per month for a total of $56,400, together with legal interest on those monthly payments from the date on which each of those monthly payments became due until paid. The petition did not specify which 60-month period for which Plaintiffs were seeking benefits.

However, in the alternative, Plaintiffs requested "a refund of all premiums paid by petitioners, from February of 1994 through March of 1999, which, under the Policy, were waived during her disability for a period of five (5) years, together with legal interest from the date of payment until the date of refund."

In their argument to the trial court and in their appellate brief, Plaintiffs urged that the written proof of loss sets out that Mrs. Slaughter's claim for continuous disability benefits could potentially be any 60-month period between 1994 and 2015, including the 60-month period immediately prior to January 1, 2015 (i.e., from January 2010 to January 2015).

Filed with the petition are a copy of the insurance policy, a copy of the "Individual Disability Claim Form," a list of treating physicians, a copy of the "Occupational Information" form, a copy of the "Attending Physician's Initial Report" form, and a copy of the "General Power of Attorney."

The physician's report indicates that Mrs. Slaughter's condition developed as a result of a "self-inflicted gunshot wound to the chest in 1994 due to her depression"

and the physician, Dr. Shane Carr, was first consulted in 1999. It also shows that Mrs. Slaughter had onset dementia in 2014. The doctor wrote, "Her husband is trying to get benefits for disability going back to 1994. My record of her illness is limited." As of a report dated January 20, 2015, Dr. Carr's diagnosis for Mrs. Slaughter was anxiety/depression and migraine headaches. He also wrote that she had been unable to perform any job duties since 1994 and will never return to work.

On the occupational form, Mr. Slaughter, who owned Steve Motors and Truck Parts, reported that his wife was "unable to perform any duties due to lack of mental capacity following nervous breakdown." He wrote that she gave up employment duties from 1994 to the present and that she had been a secretary, a bookkeeper, and an automobile title clerk.

On the claim form, Mr. Slaughter wrote February 1994 as the date of the accident and last work and indicated that "claimant suffered a nervous breakdown due in part to the stress from her employment and other stresses in life." She was hospitalized for depression and a gunshot wound at Christus Schumpert on St. Mary Place in February 1994.

Defendant filed "Peremptory Exceptions of No Cause of Action and Prescription," together with a memorandum in support thereof. Defendant argued that Plaintiffs' claims for disability benefits under the policy were barred by prescription, and there is no cause of action because the disability is not covered under the suicide exclusion provision. Defendant's exceptions were argued to the trial court, and then taken under advisement.

In its judgment after the hearing, the trial court found:

The Plaintiffs' disability in this case arose in February of 1994 and Plaintiffs are claiming benefits for the 60-month period from February of 1994 to March of 1999 according to Plaintiffs' Petition. Although the Plaintiffs attempt to argue that they are seeking benefits for the period of January 2010 to January 2015, this argument is futile since the Petition specifically references 1994 as the start of the alleged disability. Id. The fact that the Plaintiffs' disability continued beyond the sixty (60) month period for which she would be entitled to compensation under the Policy is immaterial.... This Policy has a maximum indemnity period of sixty (60) months and the policy does not provide indemnity payment for the Insured as long as the disability exists. Id. ... Since there were no issues involving Plaintiffs' lack of capacity to bring the claim or provide proof of loss to Defendant, Plaintiffs had one year and ninety days from the time proof of loss was required according to the Policy. Thus, the latest possible date for Plaintiffs to furnish proof of loss was June 29, 2000. However, Plaintiffs did not submit any proof of loss to Defendant until January 22, 2015. This was over twenty (20) years after Plaintiffs' claim arose and almost fifteen (15) years after the latest possible date to furnish proof of loss. Further, the Legal Action provision of the Policy provides that no action may be brought under indemnity Policy after ten (10) years after proof of loss was required. Thus, the latest possible date for Plaintiffs to file suit was June 29, 2010. Since Plaintiffs did not file suit until February 16, 2016, their claim is untimely and has prescribed based upon the face of the pleadings.

DISCUSSION

In the instant matter, Mrs. Slaughter's disability is a nervous breakdown and depression which rendered her "unable to perform any duties." Although Mrs. Slaughter's total disability began in February 1994, it has continued unabated to and through February 2016. The premiums have been consistently paid by Plaintiffs from 1994 until 2015. Plaintiffs claim that they are not limited to asserting disability claims due under the policy to the first 60 months after the disability arose. Rather, they argue that they are entitled to receive the disability benefits under the policy for each and every month during which Mrs. Slaughter has been disabled and the policy has been in full force and effect.

This Court in Jefferson v. Monumental General Ins. Co. , 577 So.2d 1184, 1187 (La. App. 2d Cir. 1991) (citations therein omitted) noted:

An insurance policy is a contract between the parties and the rules, established for the construction of written agreements, also apply to contracts of insurance. The intention of the parties is of paramount importance in interpreting insurance contracts. Their intention is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety. An insurance contract should not be given an interpretation which would act to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or which would lead to an absurd conclusion ... (Citations therein omitted).

The provisions regarding benefit payments and limit of the number of months of payments provide, in relevant part, as follows:

POLICY SCHEDULE ... MAXIMUM INDEMNITY PERIOD FOR SICKNESS 60 MONTHS ...
Part I-Monthly Indemnity-Sickness.
If, as a result of such sickness, the Insured suffers continuous total disability and is regularly attended by a physician, the Company will pay periodically during such continuous disability, Elimination Period for-Sickness; at the rate of the Monthly Indemnity, Total Disability, specified in the Policy Schedule. Indemnity shall be payable for up to the Maximum Indemnity. Period for Sickness specified in the Policy Schedule...

The notice of claim provision in the policy provides in relevant part:

NOTICE OF CLAIM. Written notice of claim must be given to the Company within thirty days after the occurrence or commencement of any loss covered by this policy , or as soon thereafter as is reasonably possible.... (Emphasis added).

The proofs of loss provision under the policy provides, in whole, as follows:

PROOFS OF LOSS. Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety days after the termination of the period for which the Company is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required. (Emphasis added.)

The legal action provision reads as follows:

LEGAL ACTION. No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of ten years after the time written proof of loss is required to be furnished.

Prescription Of Disability Claim

On appeal, Plaintiffs contend that the trial court erred in sustaining Defendant's exception of prescription and dismissing all of their claims. According to Plaintiffs, the issue of prescription involves contractual defenses and should be tried on the merits. Also, the trial court erred in interpreting and applying the law and facts of this case.

The court may not supply the objection of prescription, which shall be specially pleaded. La. C.C.P. art. 927(B). An objection of prescription may be raised through the peremptory exception at any stage of the proceeding prior to a submission of the case for a decision. La. C.C.P. arts. 927(A)(1), 928(B). The rules of prescription are designed to prevent old and stale claims from being prosecuted. Wells v. Zadeck , 11-1232 (La. 3/30/12), 89 So.3d 1145 ; Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo , 828 So.2d at 508 ; Williams v. Sewerage & Water Bd. of New Orleans , 611 So.2d 1383, 1386 (La. 1993). In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations contained therein are accepted as true. Wells , 89 So.3d at 1149-50.

Plaintiffs' argument that Mrs. Slaughter's disability is continuing does not alter the analysis. The contention that Plaintiffs can furnish proof of loss and claim benefits at any 60-month period from 1994 to 2015 would continue the claim indefinitely, regardless of their inaction. They have not shown that they did anything to pursue the claim or notify Defendant that they believed they had a continuing claim until the present. Because 22 years passed without any action from Plaintiffs, their claims have prescribed.

In the instant matter, based on the face of the pleadings, specifically Plaintiffs' petition, Mrs. Slaughter became totally disabled as the result of a nervous breakdown and depression and has been totally and continuously disabled at all times since February of l994. Thus, the trial court correctly ruled that the date of disability is February 1994, and the latest possible date for Plaintiffs to furnish proof of loss was June 29, 2000. Plaintiffs did not submit any proof of loss to Defendant until January 22, 2015, over 20 years after Plaintiffs' disability arose and almost 15 years after the latest possible date to furnish proof of loss. The Legal Action provision of the policy provides that no action may be brought under the policy after ten years and the latest possible date for Plaintiffs to have filed suit was June 29, 2010. The trial court correctly ruled that "[S]ince plaintiffs did not file suit until February 16, 2016, the claim is untimely and has prescribed based upon the face of the pleadings."

Other Relief Sought

In addition to disability benefits, in their petition, Plaintiffs sought a refund of all premiums paid by them "from and after ... the date of Petitioner Minnie Masters Slaughter's disability, which, under the Policy, were waived during her disability for a period of five (5) years, together with legal interest from the date on which each installment became due until paid ...". Plaintiffs also requested payment of the surrender value or benefits payable under the policy.

Rather than dismissing these claims outright without allowing the parties to further develop whether Plaintiffs are even entitled to recover such sums, we will reverse that part of the trial court's judgment and remand this matter so that Plaintiffs and Defendant can present their respective arguments on the viability of these claims to the trial court.

CONCLUSION

For the reasons set forth above, we affirm that part of the trial court's judgment granting the exception of prescription filed by Defendant as to Plaintiffs' claim for disability benefits. However, we reverse that part of the trial court's judgment dismissing Plaintiffs' remaining claims and remand the matter to the trial court for further proceedings regarding Plaintiffs' request in their petition for a refund of premiums paid and surrender value as per the policy rider. Specifically, the parties are to be given the opportunity to address whether Plaintiffs have a viable cause of action to recover these sums under Louisiana law. Costs of this appeal are assigned to Defendant.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      The transcript from the October 2016 hearing shows that Defendant's counsel focused mostly on the issue of prescription, did not withdraw the exception of no cause of action, and did not argue extensively about the disability claim being excluded from coverage.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Benjamin Michael FLOYD, Appellant
    No. 51,869-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    BENJAMIN MICHAEL FLOYD, Pro Se
    JAMES E. STEWART, SR., District Attorney, TRENEISHA J. HILL, JASON W. WALTMAN, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and McCALLUM, JJ.
   MOORE, J.

Following a jury trial, the defendant, Benjamin Michael Floyd, was convicted as charged of indecent behavior with a juvenile. The court imposed a sentence of 20 years hard labor without benefit of probation, parole or suspension of sentence. On the same day, the state filed a multiple offender bill, which was still pending when the defendant filed the instant appeal of his conviction. For the following reasons, we affirm the defendant's conviction for indecent behavior with a juvenile.

FACTS

The defendant pulled a float in a 2013 Mardi Gras parade held in Shreveport. While he and other float drivers were queued up to move their floats into a storage garage, Floyd went to the back of his truck to sit beside his 12-year-old niece, C.H. The girl testified that Floyd told her that she was his "new favorite toy," and he began groping her breasts, touching her legs and buttocks. Two witnesses, float driver Thelbert James Elmore, Jr., and his 16-year-old daughter, Casey Elmore, testified that they walked over to Floyd's truck to speak with him and saw him rubbing C.H.'s legs in an inappropriate manner. C.H. reported her uncle's advances to her mother, who in turn reported the incident to authorities.

The defendant was charged by amended bill of information with indecent behavior with a juvenile, La. R.S. 14:81. After a jury trial, he was convicted as charged by a unanimous jury.

Defense counsel assigned one error by the trial court in this appeal, while the defendant filed a separate brief alleging six pro se assignments of error.

DISCUSSION

Defendant's counseled assignment of error alleges that the trial court erred by admitting evidence of two previous alleged acts of sexual misconduct pursuant to La. C.E. art.412.2, particularly where one of the alleged acts involved conduct that was more serious than the offense for which Floyd was being tried. Both of the alleged prior acts involved the same victim, C.H., which she disclosed during a Gingerbread House interview. The more serious conduct described by C.H. occurred several years earlier while Floyd was temporarily living at the house with C.H. and her mother after he was released from prison in March of 2008. C.H. said that she was asleep in bed when she was awakened by a tickling sensation on her vagina and discovered Floyd was licking her vagina. She said her pants and underwear had been removed and she felt his penis between her legs. She also said that in early 2011 when she and her mother lived in Benton, Arkansas, Floyd told her she "had big breasts" and attempted to view her breasts by blowing under her shirt.

The defendant argues that because the evidence that he performed oral sex on the victim when she was around 5 years old was more serious than the instant offense for which he was charged, it was inadmissible under State v. Jackson, 625 So.2d 146 (La. 1993). In Jackson, the defendant was charged with molesting his granddaughters. The state sought to put on evidence of certain prior illicit sexual acts performed by the defendant with his daughters. The Louisiana Supreme Court held that the defendant's alleged prior acts of kissing his daughters and fondling their breasts were admissible, but his alleged prior acts of raping one daughter, showing his penis to another, and fondling their vaginas were inadmissible under La. C.E. art. 404(B)"because the prejudicial value of the testimony outweighs its probative force, considering that the defendant is charged only with kissing his granddaughters and fondling their breasts in the present case." Id. at 152. The court noted that the prior acts were "dissimilar and more serious than the current criminal charges," and stated that recitation of those prior acts would serve only to inflame the jury. Id. Hence, their admission would have violated La. C.E. art. 403, as their prejudicial effect would outweigh their probative value.

The state argues that Jackson is distinguishable from the instant case because the evidence of prior acts sought to be admitted did not involve conduct against the same victim in the crime charged, and furthermore, Jackson was decided prior to the enactment of La. C.E. art. 412.2, which requires a less stringent similarity requirement than La. C.E. art. 404(B), which is the general provision governing "other crimes, wrongs or acts" evidence.

Prior to trial, the state filed notice of its intention to use three prior sexually assaultive acts by the defendant at trial: (1) his prior performance of oral sex on C.H. and placement of his penis between her legs around March of 2008; (2) his statement to C.H. that she had "big breasts" and his attempt to view her breasts by blowing up her shirt around January of 2011; and (3) his remark to K.E., another juvenile, asking her if she had any naked photographs of herself on Facebook, which occurred in late 2012 or early 2013.

A hearing was held to determine the admissibility of the prior sexually assaultive acts pursuant to La. C. Cr. P. art. 412.2. Caddo Parish Sheriff Sgt. James Moore testified that he observed C.H.'s forensic interview at the Gingerbread House in Shreveport, Louisiana. He said C.H. told the forensic interviewer that sometime in January of 2011, when Floyd was helping her and her mother move to Benton, Arkansas, he and C.H. were left alone together when C.H.'s mother left to get pizza. Floyd lay down on a bed next to C.H., made comments about her breasts and then tried blowing up her shirt to see them.

On another occasion, when C.H. was approximately five years old, she recalled sharing a bed with Floyd and waking up feeling something tickling her vagina. She also said she felt his penis between her legs. When she woke up the next morning, her pajama pants were on the floor. Sgt. Moore confirmed that Floyd admitted in a post-Miranda statement to sleeping next to C.H. one or two nights. This incident occurred in March of 2008.

Sgt. Moore also testified that he spoke with another minor, K.E., who stated that Floyd had once asked her if she had any naked photographs of herself on Facebook.

The trial court also viewed the video recording of C.H.'s Gingerbread House interview which confirmed the testimony of Sgt. Moore. Following the hearing, the court ruled that the prior sexual acts involving C.H. were admissible at trial to show the defendant's lustful attitude toward her, but that the prior act involving K.E. could not be used at his trial because it was too far removed from the inappropriate conduct with C.H. The court appeared to place significant emphasis on the fact that the prior conduct involved the same victim.

The general rule regarding other crimes or acts is provided by La. C.E. art. 404, which provides in part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 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 such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 412.2(A) provides a narrow exception to Art. 404(B) in cases involving sexual offenses against children allowing the admission of certain relevant evidence of a defendant's lustful disposition toward children. The statute provides:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

However, admission of the evidence still turns on the balancing test provided by Art. 403, which reads:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Our review of a trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion; the introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis on appeal. State v. Davis , 44,656 (La. App. 2 Cir. 11/18/09), 26 So.3d 802, writ denied , 09-2768 (La. 6/25/10), 38 So.3d 355.

In State v. Wallace , 41,720 (La. App. 2 Cir. 1/24/07), 949 So.2d 556, a panel from this court upheld a trial court's ruling that prior sexual crimes evidence of a more serious nature than the charges faced by Wallace in the underlying case was admissible to show his lustful disposition toward children. Wallace was charged with indecent behavior with a juvenile because he removed his grandniece's panties, patted her bottom, and stuck his finger in her vagina. The state sought to introduce evidence that Wallace had done the same thing to his niece when she was the same age (10-11), and also took Polaroid pictures of him performing oral sex on his niece while she was nude. The panel explained:

Wallace's very similar prior conduct with a female child of a similar age was highly probative of the requisite intent for the crime. Also, in this case, the probative value of the evidence strongly outweighs the prejudicial effect because Wallace offered an alibi defense to the crime that tended to cast doubt on H.Y.'s entire story.
Id. at 560.

In State v. Wright , 11-0141 (La. 12/6/11), 79 So.3d 309, the Louisiana Supreme Court explained that the Legislature's enactment of La. C.E. art. 412.2 was in response to two of its previous opinions refusing to allow evidence to show a defendant's "lustful disposition" under La. C.E. art. 404(B). It found that the new statute did not "impose a restriction requiring such evidence to meet a stringent similarity requirement for admissibility," and concluded that Art. 412.2 was enacted to loosen restrictions on "other crimes" evidence, and to allow evidence of "lustful disposition" in cases involving sexual offenses. Id. at 317.

In this instance the trial court concluded that the evidence of Floyd's prior sexually assaultive acts on C.H., i.e., performing oral sex on her, commenting on her breasts and trying to manipulate her shirt to see her breasts were probative of his lustful disposition toward C.H. and constituted admissible evidence allowed under La. C.E. art. 412.2.

While the act of performing oral sex upon C.H. and touching her with his penis were somewhat dissimilar acts from the instant act, and also could have subjected him to a more serious prosecution for aggravated rape or molestation of a juvenile, Art. 412.2 was enacted after State v. Jackson , supra , and, as noted above, no longer requires such evidence to meet a stringent similarity requirement for admissibility. See State v. Wright, supra. Jackson is distinguishable because the sexual conduct was far more egregious than the acts by the defendant in this case, and involved the defendant's own three daughters, including the rape of one. Hence, while the probative value of the evidence in Jackson was outweighed by its extremely prejudicial nature, we do not find that to be the case in this instance. Additionally, unlike Jackson , the prior sexually assaultive behavior involved the same victim, C.H., and therefore its probative value is more substantial.

Accordingly, we conclude the trial court did not abuse its discretion by determining that the prior sexually assaultive act was admissible under La. C.E. arts. 403 and 412.2.

This assignment of error lacks merit.

Pro Se Assignments of Error

In his first pro se assignment, Floyd attacks the credibility of two of the state's witnesses, Thelbert James Elmore, Jr., and Casey Elmore, claiming that their trial testimony was conflicting and thus unreliable.

At trial, Thelbert testified that he pulled the float in front of Floyd's truck. When he walked back to talk to him, Floyd was sitting next to C.H. touching her legs in a way that Thelbert thought "just didn't look right." He recalled speaking with Floyd, but could not recall what was said.

Casey Elmore, Thelbert's daughter, corroborated her father's testimony. She stated that she saw Floyd rubbing C.H.'s inner thigh at the Mardi Gras parade. She explained that she stood beside her father during his encounter with Floyd, which lasted approximately 15 minutes.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000). A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the 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. Demery , 49,732 (La. App. 2 Cir. 5/20/15), 165 So.3d 1175, writ denied , 15-1072 (La. 10/17/16), 207 So.3d 1067.

On review, we find no merit to Floyd's claim in this assignment. Contrary to his claims, the testimony of Thelbert Elmore and his daughter, Casey Elmore, is both consistent and corroborative. Both testified that Floyd's truck was parked behind Thelbert's truck and that they saw Floyd touching C.H.'s leg in a sexual way. The jury was free to accept or reject the testimony of Thelbert and Casey, and this court will not impinge on the jury's discretion by assessing the credibility of their testimony.

This assignment of error lacks merit.

By his second pro se assignment of error, Floyd alleges that his rights were violated when the state refused to dismiss the charges against him despite the victim's mother's request to drop the charges.

At trial, C.S. (the victim's mother) testified that about a month after she reported Floyd's inappropriate touching of C.H. at the Mardi Gras parade, she filed a request to drop any charges against him. A document entitled "Request to Drop Charges" was admitted into evidence, which contained C.S.'s signature. C.S. stated that no one asked her to drop the charges, she chose to file the request without C.H.'s knowledge.

The district attorney has charge and control of every criminal prosecution instituted or pending in district court, and determines whom, when, and how he shall prosecute, subject only to the supervision of the attorney general. La. C. Cr. P. art. 61. Hence, the district attorney was under no obligation to dismiss the charge against the defendant based upon the request by C.S.

This assignment of error is without merit.

By his third assignment of error, Floyd complains that his right to remain silent was violated when his video-recorded interview with police was played at trial.

At trial, Sgt. Moore testified that he called Floyd on May 21, 2013, after observing C.H.'s Gingerbread House interview. Floyd came to the police station to be interviewed, Sgt. Moore read him his Miranda rights, and he waived them. Sgt. Moore testified that Floyd did not appear to be under the influence of any intoxicating substances. A video recording of his interview was played in open court, showing that he was advised of, and waived, his Miranda rights. Floyd then repeatedly denied wrongdoing, but ultimately admitted that he may have inadvertently touched C.H.'s breasts and buttocks while wrestling with her at the Mardi Gras parade; he denied performing oral sex on C.H. or blowing down her shirt. Sgt. Moore asked if he would submit to a lie detector test, and Floyd agreed; however, at trial, Sgt. Moore testified that he never intended on having Floyd take a lie detector test because they are not admissible in a court of law.

Before the state may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary, and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451 ; La. C. Cr. P. art. 703(D) ; State v. Blank , 04-0204 (La. 4/11/07), 955 So.2d 90, cert. denied , 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed. 2d 346 (2007) ; State v. Simmons, 443 So.2d 512 (La. 1983). If a statement is a product of custodial interrogation, the state also must show that the person was advised before questioning of his right to remain silent; that any statement he makes may be used against him; and that he has a right to counsel, either retained or appointed. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

In this instance, the video of Floyd's statement shows that he was advised of his Miranda rights, and he waived those rights prior to giving his statement. Moreover, the video demonstrates that his statement was not the product of fear, duress, intimidation, menace, threats, inducements or promises. Floyd understood the questions asked of him and appeared to be oriented as to time and place. Additionally, he demonstrated the mental aptitude to make small, seemingly benign admissions while adamantly denying more serious allegations. Any misstatements of fact by Sgt. Moore regarding his intention to subject Floyd to a lie detector test were insufficient to render his free and voluntary statement inadmissible. See State v. Lockhart , 629 So.2d 1195 (La. App. 1 Cir. 1993), writ denied , 94-0050 (La. 4/7/94), 635 So.2d 1132 ; State v. Sanford , 569 So.2d 147 (La. App. 1 Cir. 1990), writ denied , 623 So.2d 1299 (La. 1993).

This assignment of error lacks merit.

In his fourth pro se assignment of error, Floyd argues that the trial court erred in allowing the video recording of C.H.'s Gingerbread House interview to be played at trial. Specifically, he argues that the state failed to prove it had complied with La. R.S. 15:440.4 and La. R.S. 15:440.5 by failing to prove:

(1) C.H.'s statement was voluntary;
(2) there were no family members in the room where C.H. was interviewed;
(3) the recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement; and
(4) C.H.'s statement was not made in response to questioning calculated to lead her to make a particular statement.

Prior to its admission at trial, C.H. identified the video recording of her interview at Gingerbread House and testified that she was alone with the forensic interviewer when the interview took place. She also confirmed that what she stated during the interview was the truth. The video recording was then played for the jury and admitted into evidence without objection.

Jennifer Flippo, the forensic interviewer in the case, testified regarding the procedures followed when interviewing sexual assault victims. Flippo explained that she is alone in the interview room with the victim, but that a law enforcement officer watches the interview from another room via closed circuit television. The officer may instruct Flippo to ask the victim a question, but Flippo asks any questions in a child-friendly manner that is not intended to elicit a particular response.

La. R.S. 15:440.4 provides, in pertinent part:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement[.]

La. R.S. 15:440.5 provides, in relevant part:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if: * * *
(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement[.]

In this instance, C.H. identified the video recording of her Gingerbread House interview, stated that she was alone with Flippo during the interview, and testified that she told the truth during her interview. Flippo corroborated that she was alone with C.H. during the interview and that non-leading questions were asked of C.H. (which the video recording confirms). Additionally, the video recording of the Gingerbread House interview was admitted into evidence without objection; as such, the defendant is precluded from complaining of its admission on appeal. La. C. Cr. P. art. 841.

Accordingly, there is no merit to this assignment.

In his remaining two pro se assignments of error, Floyd complains that the defense should have been permitted to question C.H. about recanting her allegations against him two days before trial and charges that C.H. should have been allowed to have her attorney present when testifying. Floyd argues that without counsel present to advise C.H., she was likely afraid to testify that the allegations in her Gingerbread House interview were false because doing so would subject her to perjury charges.

Prior to C.H.'s testimony, the state notified the trial court that C.H. had retained an attorney, and requested that C.H.'s attorney be prohibited from making any objections on her behalf. The trial court agreed, explaining that because C.H. had never given testimony under oath prior to trial she could not be charged with perjury, and, therefore, she was not entitled to have an attorney make any objections on her behalf. The trial court agreed that C.H.'s attorney could be present in the courtroom.

Subsequently, during the state's direct examination of C.H., the prosecutor asked her if she had ever recanted the allegations she made during her interview at the Gingerbread House. C.H. confirmed that she had, two days before trial, because she was under the mistaken belief that she would not be allowed to stay at her house with her mother and grandmother if the trial proceeded against the defendant. During cross-examination, defense counsel also questioned C.H. regarding her recantation, and C.H. acknowledged that she told the prosecutor that she had lied during her Gingerbread House interview.

Accordingly, the record shows that, contrary to Floyd's factual assertions, defense counsel was permitted to question C.H. about her recantation. Additionally, because C.H. was a witness, and not subject to prosecution for perjury, she was not entitled to have a lawyer present during trial to advocate on her behalf.

These two assignments are without merit.

CONCLUSION

For the reasons stated, we find no merit to the assigned errors, and accordingly, affirm the defendant's conviction.

CONVICTION AFFIRMED.

      On the same date as the instant conviction, the state filed a habitual offender bill of information charging Floyd as a third-felony habitual offender; the court later adjudicated him as charged, vacated this 20-year sentence and resentenced him to life without benefit of probation, parole or suspension of sentence. That sentence has been appealed separately.

      C.H. said she was around 5 years old at the time of the incident. However, if the incident occurred in March of 2008 after the defendant was released from jail, C.H. would have been 7 years old at that time.

      We observe that in State v. Jackson, supra, the court held that certain evidence of prior sexual acts that did not involve the same victim was admissible because the illicit conduct or act was of a similar nature as the current offense charged. The court held that other evidence of past sexual conduct not involving the current victim was inadmissible because the conduct involved dissimilar sexual acts of a more serious nature and its admission into evidence would inflame the jury and outweigh its probative value. We do not find any requirement in La. C.E. art. 412.2 that the prior sexually assaultive conduct or acts must involve the same victim of the offense for which the defendant is being tried.


author: WINDHORST, J.

text:
    Clement Arthur DUGUÉ, III v. Avignon Marie DUGUÉ
    NO. 17-CA-525
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CLEMENT ARTHUR DUGUÉ, III, Roch P. Poelman
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

This appeal arises from a February 7, 2017 judgment from the Twenty-Fourth Judicial District for the Parish of Jefferson on custody, spousal support and child support issues between the parties. We vacate the trial court's judgment and remand for further proceedings.

Facts and Procedural History

On July 27, 2016, Clement A. Dugué, III ("Appellant") filed a petition for divorce, for temporary and permanent custody, for a temporary restraining order and for child support against Avignon M. Dugué ("Appellee"). On August 18, 2016, Appellee filed an answer and reconventional demand against appellant, seeking sole custody or alternatively joint custody, spousal support, child support and reimbursement of certain expenses. On October 14, 2016, the parties appeared before a hearing officer, after which the hearing officer made recommendations on several issues, including custody, spousal support, child support and reimbursement of certain expenses. Based on the hearing officer's recommendations, an interim judgment was entered awarding the parties joint custody of the children with the appellee designated as the domiciliary parent and the appellant granted unsupervised physical custody once to twice a week. Appellant was also ordered to pay child support, spousal support, and certain expenses. On October 18, 2016, Appellant filed an objection to the hearing officer's recommendations and the interim order regarding custody, child support, and spousal support, reserved his right to assert other objections, and requested a de novo hearing before the trial court.

On February 6, 2017, the parties appeared before the trial court for a hearing regarding appellant's objection. On February 7, 2017, the trial court signed a judgment, overruling most of appellant's objection, except as to visitation, which the trial court adjusted to give appellant an additional day of visitation every other week. As to the remaining issues, the trial court ordered that all other provisions of the October 14, 2016 interim judgment shall remain in effect. Appellant filed a timely motion for new trial on February 16, 2017, which the trial court denied on June 26, 2017. Pursuant to appellant's request, the trial court issued written reasons for judgment on March 6, 2017, stating that the court found that appellant did not prove a "material change in circumstances" to adjust the amounts of child support or spousal support. This appeal follows.

Discussion and Analysis

In his assignments of error, appellant asserts that the trial court erred in requiring that appellant show a material change in circumstance instead of conducting a de novo hearing on the issues of child support and spousal support, and in not dismissing appellee's child support and interim spousal support claims. Appellant also asserts the trial court erred in considering income appellant earned from overtime during the period August through October 2016 and certain part-time employment in determining appellant's gross income for purposes of calculating child support and spousal support.

Assignment of Error 1

In this assignment, appellant contends that "[t]he District Court erred by requiring the Appellant prove a material change of circumstances, even though there was no previous award." Appellant asserts that the "material change in circumstances" standard does not apply until an award has been granted by the trial court, which had not yet occurred. We find that Assignment of Error 1 has merit.

The trial court's Written Reasons for Judgment show that the trial court did apply the "material change in circumstances" standard. The trial court cited La. C.C. arts. 142 and 114, and La. R.S. 9:311(A)(1), all of which apply to circumstances in which a party seeks to modify a court's award of child support or spousal support. La. C.C. arts. 142 and 114 provide that an award may be modified if there is a material change in circumstances. La. R.S. 9:311(A)(1) provides that an award "shall not be modified unless the party seeking the modification shows a material change in circumstances...." In its analysis, the trial court stated that "the Court finds there presents no material change in circumstances" and "there is no evidence of a material change in circumstances."

La. R.S. 46:236.5(C) (6) and (7) provides:

(6) A copy of any written recommendations, orders, or uncontested judgments rendered by the hearing officer shall be provided to the parties and their counsel at the time of the hearing officer's ruling, if present. Any party who disagrees with a judgment or ruling of a hearing officer on a matter set forth in Paragraph (3) may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. The objection shall be heard by the judge of the district court to whom the case is assigned. Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.
(7) If no written objection is filed with the clerk of court within the time and manner established, the order shall become a final judgment of the court and shall be signed by a judge and appealable as a final judgment. The judgment after signature by a district judge shall be served upon the parties in accordance with law.

See also, Beaudion v. Beaudion, 2011-53 (La. App. 5 Cir. 12/29/11), 83 So.3d 355, 360 ; Short v. Short, 2009-639 (La. App. 5 Cir. 3/23/10), 33 So.3d 988. Louisiana District Court Rule 35.5 provides that "[a]ny objection to the written recommendation of a hearing officer and judgment of the domestic commissioner shall be filed with the clerk of court within five (5) days, exclusive of legal holidays, from the issuance of the recommendation." As to the trial court's de novo contradictory hearing on an objection to a hearing officer's recommendations, Rule 35.7 provides:

The judge shall not be bound by the recommendation of the hearing officer. Further, the judge may review the hearing officer's conference report, and shall accept, reject, or modify in whole or in part the findings of the hearing officer and give them such weight as deemed appropriate based on the evidence adduced at the hearing.

The record shows that appellant filed an objection to the hearing officer's recommendations within five days of the issuance of the recommendations. The hearing officer issued recommendations on October 14, 2016, and appellant filed his objection on October 18, 2016. Because the appellant timely objected to the hearing officer's recommendations, the recommendations did not become a final judgment and appellant was clearly entitled to a de novo review of the hearing officer's findings by the trial court. La. R.S. 46:236.5 (C) ; Dep't of Soc. Servs. Support Enforcement Servs., ex rel. A.M. v. Taylor, 2000-2048 (La. App. 1 Cir. 2/15/02), 807 So.2d 1156.

In Dep't of Soc. Servs. Support Enforcement Servs., ex rel. A.M. v. Taylor, the appellate court stated that "[u]nder Section 236.5(C)(6), if the defendant disagrees with the finding of the hearing officer regarding either the establishment of paternity or the establishment of support, he is entitled to de novo review of the findings of the hearing officer...." Id. As the statutory and case law clearly indicate, the trial court should review a hearing officer's recommendations de novo and it "shall accept, reject, or modify in whole or in part the findings of the hearing officer."

Considering this, we find the trial court erred in applying the "material change of circumstances" standard enunciated in La. C.C. arts. 142 and 114 and La. R.S. 9:311(A)(1) in this case. These statutes apply to cases in which a party seeks a modification or change in a pre-existing judgment of the trial court. It does not apply to a recommendation of the hearing officer, or the resulting interim judgment to which a timely objection was made. No judgment had been rendered by the trial court in this matter. Because the trial court applied the incorrect standard in evaluating appellant's objection to the hearing officer's recommendations and the interim judgment, the trial court committed an error of law with regard to the rulings in its February 7, 2017 judgment, which affected the outcome in this case and implicated the substantive rights of the parties. As a result, we vacate the trial court's February 7, 2017 judgment and reinstate the October 14, 2016 interim judgment of the hearing officer. We remand this case to the trial court to conduct a de novo hearing on appellant's objection to the hearing officer's recommendations.

Assignment of Error 2

In this assignment, appellant contends that "[t]he district court erred in not dismissing Appellee's claim[s] for child support and interim spousal support because she did not introduce any evidence to support her claim that she was owed any support by the Appellant." Under La. C.C. art. 224, "[p]arents are obligated to support, maintain, and educate their child." Thus, appellant's obligation to provide child support for his children cannot be dismissed. Consequently, we only address appellant's argument that the interim spousal support claim should be dismissed due to a lack of supporting evidence.

La. C.C. art. 111 provides that the court may award interim periodic spousal support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 113 provides that an award of interim spousal support is based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation and the standard of living of the parties during the marriage. The party seeking interim spousal support has the burden of proof. Gordon v. Gordon, 2007-272 (La. App. 3 Cir. 10/3/07), 966 So.2d 1216.

Appellant filed a timely objection to the hearing officer's recommendations and the interim judgment challenging the recommendations on custody, child support and interim spousal support, and the trial court held a de novo hearing. At the de novo contradictory hearing, appellant testified and, because appellee was not represented, she personally cross-examined him. The appellee also testified under oath.

Appellant testified that $1,730 of his salary goes to spousal support and child support payments. He also testified that the rent for the house that the appellee and their children live in is paid from his support payments to appellee. During appellee's cross-examination of appellant, appellant testified that after they were separated, he continued to pay the rent, the utility bills and the auto insurance on appellee's vehicle. Even though he was not living in the house, he knew when the utility bill had not been paid, and that he would go to Entergy to pay it because it was necessary, and he was trying to be responsible for his family by taking care of household payments. This testimony seems to be undisputed, and suggests that appellant knew appellee struggled to pay the household bills on her own, and that she and the children relied on him for continued support.

Appellee testified that she was not represented because she could not afford her attorney, and that when appellant did not make his payments to her as ordered by the interim judgment, she had to pay late fees for various bills and expenses which were due. This testimony indicates that appellee was unable to pay certain bills and expenses unless and until she received support payments from appellant. This also appears to be undisputed.

We disagree with appellant's Assignment of Error 2 contention that there is not any evidence in the record to support appellee's claim for spousal support. Based on the aforesaid testimony, the record contains some evidence in support of possible findings that the appellee is in need of support, that appellant has the ability to pay support, and of whether support is necessary to maintain the standard of living during the marriage. Whether the appellee has met her burden of proof under La. C.C. arts. 111 and 113 involves primarily questions of fact. Because the trial court applied the "material change in circumstances" standard in error, no findings of fact as to the above criteria for awarding spousal support were made.

In addition to the aforesaid testimony, La. R.S. 46:236.5(C)(6) provides that at the contradictory hearing, "the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer." Louisiana District Court Rule 35.7 further provides that the trial judge "may review the hearing officer's conference report, and shall accept, reject, or modify in whole or in part the findings of the hearing officer and give them such weight as deemed appropriate based on the evidence adduced at the hearing ." [Emphasis added.] Thus, in addition to the testimony, the findings of the hearing officer could be taken into consideration by the trial court to the extent allowed by law and rule.

While there is not enough evidence in the record for us to render a decision on spousal support due to the misapplication of law, we do not agree with appellant's contention in Assignment of Error 2 that there is not any evidence in the record to support appellee's claim for spousal support. Because there is some evidence in the record supporting the grounds for her spousal support claim, as well as the prerogative of the trial judge to have considered the findings of the hearing officer to the extent allowed by law and by rule, we conclude that dismissal of appellant's claim for spousal support is not merited.

In addition, La. C.C.P. art. 2164 provides that an "appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." We conclude that this result can best be achieved by remand of this case to the trial court for a de novo evidentiary hearing on child and spousal support, including all provisions of the Interim Judgment to which the timely objection was made.

Considering the foregoing, we do not address appellant's assignments of error regarding the consideration of certain overtime and part-time income in determining child support and interim spousal support.

Conclusion

For the reasons stated above, we find merit in Assignment of Error 1 as it applies to both child and spousal support, and accordingly, we vacate the district court's ruling. We decline to reverse the trial court and render a dismissal of appellee's claim for spousal support, as pleaded in Assignment of Error 2. We pretermit the remaining assignments of error.

We therefore vacate the trial court's February 7, 2017 judgment and reinstate the October 14, 2016 Interim Judgment, and remand this case to the trial court for a de novo evidentiary hearing on appellant's objections to the Interim Judgment and hearing officer's recommendations.

VACATED; REMANDED

      Paragraph (3) provides that the hearing officer shall make written recommendations to the court concerning any domestic and family matters as set forth by local rule, including but not limited to the establishment of, the collection of, and the enforcement of child and spousal support, and child custody and visitation.