text:
    STATE of Louisiana v. Tommy GREEN
    No. 2018-KH-0036
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Christian Chase HENRY
    No. 2018-KH-0062
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Relator shows no lower court error.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Connie M. EASTERLY A/K/A Connie M. Eversberg
    NO. 2018-B-2090
    Supreme Court of Louisiana.
    January 8, 2019
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Connie M. Easterly a/k/a Connie M. Eversberg, and the Office of Disciplinary Counsel,

IT IS ORDERED that Connie M. Easterly a/k/a Connie M. Eversberg, Louisiana Bar Roll number 26278, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    STATE of Louisiana v. David PATTERSON
    No. 2018-KH-0065
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    James M. BIGLANE and Charlotte Biglane Nobile v. BOARD OF COMMISSIONERS, Fifth Louisiana Levee District
    NO. 2018-C-1767
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Charles Kenneth WALLACE, Sr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2018-CI-0047
    Supreme Court of Louisiana.
    January 8, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Robert E. MOSES v. STATE of Louisiana
    NO. 2017-KH-1917
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Melvin LOPEZ A/K/A Marvin Lopez
    NO. 2018-KO-0579
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Johnny E. DOLLAR v. John C. LAIRD
    NO. 2018-C-1727
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Robin Kerr PRINCE
    NO. 2018-KK-1764
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    YI-ZARN WANG v. J. Phillip BOUDREAUX, M.D., et al.
    Yi-Zarn Wang v. J. Phillip Boudreaux, MD; Ochsner Medical Center - Kenner, LLC; Ochsner Clinic Foundation; and Ochsner Health System
    NO. 2018-CC-1698
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Christopher and Lynn GRESHAM v. Donna DUFOUR; Safeco Insurance Company of America; the State of Louisiana, Through the Department of Public Safety and Corrections; Office of State Police; East Baton Rouge Sheriff's Office; Sid J. Gaureaux, III as Sheriff of East Baton Rouge; City of Baton Rouge and Horace Mann Insurance Company
    NO. 2018-CC-1729
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Jarvis TURNER
    NO. 2017-KP-1865
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    STATE EX REL. Frederick R. ROSS v. STATE of Louisiana
    NO. 2018-KH-0015
    Supreme Court of Louisiana.
    January 8, 2019
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Ross v. State , 16-0154 (La. 3/14/16), 186 So.3d 655.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Khaled ALMAWRI
    NO. 2018-KK-1703
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant in part.


text:
    Charles MALDONADO v. Leon A. CANNIZZARO, Jr. in His Official Capacity as District Attorney for Orleans Parish
    NO. 2018-C-1749
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Larky BICKHAM
    NO. 2018-KO-0412
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant in part.


text:
    WOODLANDS DEVELOPMENT, L.L.C., Anthony Reginelli, Jr., Shadna Landry Reginelli, Peter R. Steur and Lee R. Steur v. REGIONS BANK, Soundra J. Temple and Johnson Property Group, L.L.C.
    NO. 2018-CC-1758
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: GENOVESE, J., recused.

text:
    Pat COOPER v. LAFAYETTE PARISH SCHOOL BOARD
    NO. 2018-CC-1705
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Melvin SCOTT & Dakron D. Williams
    State of Louisiana v. Darron Williams
    NO. 2017-KP-1656
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    Rhonda JOHNSON v. MANITOWOC CO., D/B/A Frymaster and Sentry Insurance, a Mutual Company
    NO. 2018-C-1759
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Ronald LEE v. ABF FREIGHT SYSTEM, INC.
    NO. 2018-CC-1765
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Joshua THOMAS
    NO. 2018-KK-1730
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Asahel HARVIN
    NO. 2018-KO-0491
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: McDONALD, J.

text:
    STATE of Louisiana v. James Allen COOPER, Jr.
    2018 KA 0175
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Warren L. Montgomery, District Attorney and Matthew Caplan, Mary Watson Smith, Assistant District Attorneys, Covington, Louisiana, Attorney for Appellee, State of Louisiana
    Holli Herrle-Castillo, Marrero, Louisiana, Attorney for Defendant/Appellant, James Allen Cooper, Jr.
    BEFORE: McDONALD, CRAIN, and HOLDRIDGE. JJ.
   McDONALD, J.

The defendant, James Allen Cooper, Jr., was charged by bill of information with failure to properly register as a sex offender, a violation of La. R.S. 15:542.1.4(A)(1). The defendant pled not guilty. The defendant filed a motion to quash the bill of information, which was denied. The defendant withdrew his former plea of not guilty and entered a Crosby plea of guilty as charged, reserving his right to appeal the court's ruling on the motion to quash. See State v. Crosby, 338 So.2d 584 (La. 1976). The court sentenced the defendant to three years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.

FACTS

The defendant completed his sentence for a 2003 conviction for molestation of a juvenile (his eleven-year-old stepdaughter) and was released from River Correctional Center on February 15, 2017. Pursuant to La. R.S. 15:542, the defendant was required to register and provide notification as a sex offender. On February 20, 2017, the defendant went to the St. Tammany Parish Sheriff's Office (Office) and filled out the initial paperwork required for registration. He was staying with his sister, so he listed her Madisonville address as his address. The defendant was informed that he had to return to the Office by March 13, 2017, with proof of address, a State I.D. (listing sex offender status), and $628.62 (money orders) for sex offender notification.

The defendant did not have money for the notification expenses. He asked several family members for the money, to no avail. The defendant never reported back to the Office on March 13, 2017, and he never contacted the Office at any time between his initial registration on February 20 and March 13. During this period, the defendant had gotten into an argument with his sister and left her apartment. An arrest warrant for the defendant was prepared. The defendant's daughter contacted the Office to inform the police the defendant had called her to help him leave the area and to bring him to Mississippi. On March 17, 2017, with the defendant's daughter's help, the defendant was arrested at a gas station in Pearl River.

The defendant did not testify at the motion to quash hearing.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the court erred in denying his motion to quash the bill of information. Specifically, the defendant contends the court failed to consider his indigency and financial reasons for why he could not fulfill his sex offender registration obligations.

The defendant filed a motion to quash the bill of information, wherein he argued he was entitled to such relief under the Fourteenth Amendment to the United States Constitution. According to the defendant, in his motion, he was indigent and made "valiant efforts" to pay his sex offender registration fees and that, as such, he could not be imprisoned simply for being poor.

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2094, 99-2015, 99-2019, (La. 7/6/00), 766 So.2d 501, 504.

The defendant avers in brief that a person cannot be imprisoned for being unable to meet financial obligations imposed by the registration requirements without first considering his indigency. The defendant points out that he had no job upon being released from prison. He was receiving disability payments, but he did not begin receiving those until one month after being out of prison. The defendant sought financial help from his family, to no avail. The court, according to the defendant, did not consider whether or not he made a good faith attempt to legally obtain the funds necessary to comply with the sex offender registration law. Thus, according to the defendant, under Bearden v. Georgia, 461 U.S. 660, 674, 103 S.Ct. 2064, 2074, 76 L.Ed.2d 221, 234 (1983) and State v. Jones, 2016-0017 (La. 1/13/17), 206 So.3d 871 (per curiam), the failure of the trial court to consider his indigency and to grant the motion to quash violated the defendant's Equal Protection rights under the Fourteenth Amendment.

La. R.S. 15:542.1.4(A)(1) provides:

A person who fails to timely register, fails to timely provide any information required by the provisions of this Chapter, fails to timely and periodically renew and update registration as required by the provisions of this Chapter, fails to timely provide proof of residence, fails to timely provide notification of change of address or other registration information, or fails to provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information as provided in R.S. 15:542(C)(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.

In Beardon, 461 U.S. at 672-73, 103 S.Ct. at 2073, addressing whether a sentencing court can revoke a defendant's probation for failure to pay the imposed fine and restitution, the Supreme Court held:

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

In State v. Jones, 2015-500 (La. App. 5th Cir. 12/23/15), 182 So.3d 1218, 1219, the defendant pled guilty under Crosby for failure to maintain his registration as a sex offender by failing to provide community notification pursuant to La. R.S. 15:542. The defendant in Jones took writs, and the supreme court granted in part and remanded to the trial court for a hearing to determine if the defendant was indigent. Jones, 2016-0017 (La. 1/13/17), 206 So.3d 871 (per curiam). Specifically, the supreme court, Id., opined:

In the event that defendant is found to be indigent, the trial court is ordered to reconsider its ruling denying the motion to quash in light of Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983) (only if convict "willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay," could state punish him therefor with imprisonment). See also State v. Jones, 15-500, pp. 1-7 (La.App. 5 Cir. 12/23/15), 182 So.3d 1218, 1223-26 (Wicker, J., dissenting). In addition, in the event that defendant is determined to be indigent and entitled to relief under Bearden, he should be given the opportunity to withdraw his guilty plea.

Jones, 206 So.3d at 871-72.

In the present case, while the court at the motion to quash hearing did not specifically announce whether or not it found the defendant indigent, it clearly considered the defendant's indigency status. Much if not most of the hearing was about the defendant's effort to try to obtain funds.

The defendant was released from River Correctional Center on February 15, 2017. He filled out a sex offender registration form on February 20, 2017. His next scheduled registration was on August 21, 2017. At the motion to quash hearing, several witnesses for the defendant testified. Mary Martin, the defendant's sister, testified that the defendant, upon his release from prison, went to live with her in her apartment. On his sex offender registration, the defendant put her address. The defendant had disability benefits, according to Mary, but gave up those benefits to make more money fishing (as a commercial fisherman). The defendant had property, but lost it because taxes had not been paid on it during the five years the defendant was in prison. The defendant had three days to register as a sex offender when he was released from prison. The defendant registered within this time, and Mary paid the required $60 fee. The defendant, however, also owed $585 for flyers and $110 for newspaper notifications. Mary was not able to give the defendant the money for these two other requirements. Mary got into an argument with the defendant and left her apartment for six days. When she returned, the defendant was gone. According to Mary, the defendant's "bags and stuff" were still at her apartment; and the defendant had gone to their (other) sister's house. Mary testified that the defendant did not try to find a job when he was released from prison because he was very sick.

On cross-examination, Mary indicated that she had provided a written statement to Deputy Angelina Cook, with the St. Tammany Parish Sheriff's Office, who registered the defendant and was responsible for the defendant's continued obligations required under the sex offender registration law. The statement, written by Mary on March 14, 2017, provided: "Jim and I had words on 3-5 so I decided to leave on Monday around 430 pm[.] He was at my appartment [sic] when I left. I returned on home on 3-12 he was not at apartment and some of his belongings was gone." When asked about the defendant's belongings, Mary indicated she had found the defendant's bag under her bed, so she called Deputy Cook back to inform her of that.

Dennis Cooper, the defendant's brother, testified at the hearing that the defendant had asked him for money for the registration fees, but Dennis did not have the money because he had been totally disabled since 2012. In the past, Dennis had done commercial fishing with the defendant. Dennis had not been aware that the defendant had left Mary's apartment.

Elizabeth Cooper, the defendant's ex-wife, testified at the hearing that the defendant had asked for money, but she could not afford to give him any money. Elizabeth indicated that the defendant was required to continue to register (as a sex offender) because he had molested her daughter.

Joseph Cooper, the defendant's son, testified at the hearing that the defendant had asked him for money for the registration fees. Joseph, however, was a college student and did not have the money.

Deputy Angelina Cook testified for the State. According to her testimony, after being released from prison on February 15, 2017, the defendant went to her office on February 20, 2017 and filled out all the forms to register as a sex offender. He paid the $60 annual registration fee and put his sister's (Mary) address in Madisonville as his address. From that date (February 20), the defendant had twenty-one days to complete community notifications and obtain a Louisiana State I.D. card. The community notifications included postcards to mail out to surrounding areas of his residence, as well as newspaper notifications. The defendant was given a packet of information, and Deputy Cook went over that information with him. The defendant was also given the law of La. R.S. 15:542.1.2 in its entirety, which is signed and dated as acknowledgment of receipt thereof. Under the law, the defendant had three days to report any change in address.

The defendant was instructed to return to Deputy Cook's office with the fees on March 13, 2017. Between February 20, 2017 and March 13, 2017, the defendant made no contact with Deputy Cook or her office. According to Deputy Cook, on or around March 13, 2017, Corporal Bums of Special Operations went to the defendant's address (Mary's apartment). Mary was home, but the defendant was not there. Corporal Bums spoke to Mary, who said the defendant had left the residence and took his belongings with him; she was not sure where he had gone. Following this, Deputy Cook began calling Mary's apartment to make contact with the defendant. On one of Deputy Cook's calls, Mary answered and told the deputy that around March 6, Mary and the defendant had gotten into a verbal altercation. She left the apartment and, when she returned, the defendant had left, taking with him a majority of his personal belongings. The following day, Mary went to Deputy Cook's office and provided a written statement (discussed above).

Then on March 16, 2017, the defendant's daughter, Chassity, called Deputy Cook. Deputy Cook testified that Chassity told her she had heard the defendant was back in the area. The defendant had made contact with Chassity and had asked her for help to leave the area because he knew he was wanted by law enforcement for not having gone in to complete his registration. Chassity was living in Mississippi. Thus, according to Deputy Cook, the defendant had asked his daughter to come get him and bring him to Mississippi. At this point, Deputy Cook had still not had any contact or communication with the defendant. Deputy Cook explained that there are times when sex offenders contact their office to inform them they are having trouble paying the fees. They will do their best, according to the deputy, to work with the offenders to help them come into compliance. Deputy Cook also noted her office would offer an extension of time, but the offender has to ask for the extension.

On March 17, 2017, Deputy Cook prepared an arrest warrant for the defendant. On this same day, Chassity went to Deputy Cook's office to corroborate her phone statement. Deputy Cook testified "And it was at that point it was determined that he had gone to not just one address, he had gone to one address without making notice to our office and then again attempted to abscond from St. Tammany Parish."

Deputy Matthew Tanner, with the St. Tammany Parish Sheriff's Office, testified at the hearing that on March 17, 2017, he was dispatched to a gas station on La. Hwy 41 in Pearl River to meet Chassity. Chassity told Deputy Tanner that she was going to go get the defendant and bring him back to the gas station to turn him in. Chassity left and returned with the defendant, who was arrested and Mirandized . Deputy Tanner placed the defendant in the back of his patrol unit to transport him to jail. Without any prompting by Deputy Tanner, the defendant insisted that he had paid his fees. Further, according to the deputy, the defendant said he knew he did not update his information because he owned two residences in St. Tammany Parish.

Based on the foregoing, we find no abuse of discretion in the court's denial of the motion to quash. The defendant may have been indigent, but any alleged indigency was not the cause of his non-compliance with the sex offender registration law. Rather, the defendant willfully and deliberately failed to make any contact with Deputy Cook after leaving his sister's apartment, which the defendant had been using as his registered address. More importantly, the defendant attempted to, or at least made plans to, abscond from Louisiana to avoid his registration obligations. We find Bearden, 461 U.S. at 662-63, 103 S.Ct. at 2067, distinguishable in that, there, the defendant paid $200 (in restitution) of the $750 he owed. He worked, but about one month later, was laid off from his job. The defendant then notified the probation office that he was going to be late with his payment because he could not find a job.

There are none of those factors in Bearden present herein. Beyond the initial $60 yearly registration fee (paid by Mary), the defendant made no attempt to pay anything. Based on the record before us, the defendant asked a few family members for money, but from the record before us, these entreaties appeared to be the extent of the defendant's effort to obtain any money. Nothing in the record indicated the defendant worked or even tried to find work; yet the initial sex offender registration form he filled out indicated he was a brick layer employed by someone named Jason Brown. The defendant failed to contact Deputy Cook's office a single time after his initial visit to inform her he was having trouble coming up with the money he owed, or that he had changed his address. Cf. Jones, 182 So.3d at 1224-25 (Wicker, J. dissent). As the Bearden Court, 461 U.S. at 668, 103 S.Ct. at 2070, opined:

This distinction, based on the reasons for non-payment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. (Citation omitted.)

We find the court did not err or abuse its discretion in denying the defendant's motion to quash the bill of information. Accordingly, this assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Erik MOLLERBERG
    NO. 2018 KA 0256
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Ricky L. Babin, District Attorney, Donaldsonville, LA, Attorneys for Appellee, State of Louisiana
    Donald D. Candell, Lindsey D. Manda, Philip N. Maples, Assistant District Attorneys, Gonzales, LA, Jarrett P. Ambeau, Eric E. Vincent, Jr., Baton Rouge, LA, Attorneys for Defendant-Appellant, Erik Mollerberg
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

The defendant, Erik Mollerberg, was charged by bill of information with one count of simple criminal damage to property, a violation of La. R.S. 14:56 ; and one count of aggravated assault with a firearm, a violation of La. R.S. 14:37.4. He pled not guilty to the charges and waived his right to a jury trial. Following a bench trial, he was adjudicated guilty on both counts. The defendant filed a motion for new trial, which was denied. On each count, the defendant was sentenced to one-and-one-half years imprisonment at hard labor. The sentences were ordered to run concurrently. The trial court permitted the sentencing to be served via home incarceration, supervised and monitored through the Department of Corrections. The defendant was also ordered to make restitution to the victim in the amount of $1,500, and to pay court costs and supervision fees. The defendant now appeals, designating four assignments of error concerning his conviction for aggravated assault with a firearm. The defendant does not contest the simple criminal damage to property conviction.

FACTS

On May 8, 2016, Mother's Day, college student Calob Leindecker was driving home from college to his parents' house in Prairieville, Louisiana. Calob turned off of Old Jefferson Highway onto Oakland Drive, the street at the front of his parents' neighborhood. The first house to Calob's right was the defendant's house. Calob decided that he wanted an energy drink, so he turned into the defendant's side driveway and immediately turned his car around the other way to head to a gas station. There was an automatic sliding iron gate across the length of the defendant's driveway. As Calob was backing out of the driveway, the defendant's young son ran to the gate with his arms spread and was apparently telling Calob to leave.

As Calob drove toward the stop sign at the front of the neighborhood, he saw the defendant in his yard, following him and making gestures. Calob could tell the defendant was upset, so he backed up his car and stopped near the defendant's side driveway. He rolled down his window to talk to the defendant to find out what was wrong, but the defendant went inside. According to Calob, the defendant's wife, Shannon, who was near the back of the house by the swimming pool, began yelling and cursing at Calob. Since Calob was unable to speak to anyone, he drove on to the gas station. As Calob drove away, the defendant ran down the length of his driveway with an AR-15 rifle and then walked with the rifle back toward the house.

About five minutes later, the defendant's stepdaughter returned home and parked her vehicle on the side driveway so as to block the gate; she opened the iron gate and left it open. As three of the defendant's young children stood in the driveway near the gate, the defendant walked back onto the driveway, looking in the direction of where Calob had driven. Several seconds later, Calob returned from the gas station to head toward his parents' house. As Calob passed the defendant's house, the defendant walked down his driveway toward the street while loading the AR-15 rifle. The magazine fell out of the rifle, and the defendant picked it up and inserted it back into the rifle. At the same time, he flagged down Calob, and Calob stopped. The defendant walked from his driveway onto the street toward Calob's vehicle. The defendant was very upset with Calob. After a few seconds, Calob began to drive off, and the defendant jabbed the muzzle of his rifle into the passenger side door of Calob's vehicle, at which time, Calob hit his brakes. The defendant approached the passenger side window and pointed his AR-15 rifle at Calob. Calob then sped away. When Calob arrived at his parents' house and told them what happened, his mother called the police. The defendant was arrested. The entire incident was captured on the defendant's surveillance cameras outside of his house. There was no audio on the surveillance tapes.

The defendant's wife, Shannon, testified at trial that the family was celebrating Mother's Day by their pool, when Calob pulled into the driveway. According to Shannon, her son walked toward Calob and asked him to "please" not use their driveway. Her son then told his parents that Calob would not leave, and that is when the defendant walked out to tell Calob to leave. Calob pulled out, drove off, then put his car in reverse and came back. It was at this point that Shannon and Calob exchanged words. According to Shannon, Calob was yelling something about her "kids should not be going out there and telling him to leave." Shannon told Calob that he was trespassing and asked him to please leave or she would call the police. The defendant then came out with the gun. Shannon testified that she was scared and her children were very scared.

The defendant testified at trial that he had a simple burglary conviction in 2003, but he had been pardoned for that crime. According to the defendant, his son went to tell Calob to leave when he pulled in the driveway, and his son returned to inform him that Calob would not leave. The defendant walked through his breezeway toward Calob and yelled at him that he needed to go. Calob rolled down his window and said, "I don't have to go anywhere." The defendant went back inside, while Calob backed up his car and exchanged words with his wife, Shannon. The defendant then came outside with his AR-15 rifle and, according to the defendant, once Calob saw the rifle, he took off. Later, when Calob drove back down the street, the defendant took his rifle and went out to the street. According to the defendant, Calob stopped directly in front of him, began screaming at him, and stated that he was about to pull over so they could settle the matter with a fistfight. The defendant testified that when Calob started to pull over, the defendant took "the barrel end of the gun and nailed [Calob's] car with it, and [Calob] takes off, and that was it." According to the defendant, all of his family was scared, and it all happened fast. The defendant stated, "I've never dealt with someone so irrational to where a child and a woman and a husband, and then a husband with a rifle has asked you to leave and they still will not leave."

An estimator with Owens Collision and Service testified at trial that he looked at the damage to Calob's car door. The estimate for repairing the door was $1,658.88.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the trial court erred in denying his motion for new trial, in that the trial court refused to consider newly discovered evidence that would have clearly shown Calob was the aggressor in the incident. In his brief, the defendant avers that, after he was arrested, Calob and his mother made social media postings for the purpose of "tarnishing" the defendant's reputation. According to the defendant, they posted several negative comments about the defendant's and his wife's businesses, "incorrect statements regarding [their] criminal history," and "unfavorable statements regarding" their character. According to the defendant, these actions by the defendant after his arrest are consistent with Calob being the aggressor on May 8, 2016.

A defendant seeking a new trial based on newly discovered evidence must demonstrate: (1) that the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to the defendant's lack of diligence; (3) that the evidence is material to the issues at trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. See La. Code Crim. P. art. 851(B)(3) ; State v. Cavalier , 96-3052 (La. 10/31/97), 701 So.2d 949, 951 (per curiam). See also State v. Prudholm , 446 So.2d 729, 735 (La. 1984). In evaluating whether the newly discovered evidence warrants a new trial, the test to be employed is whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial. See State v. Brown , 522 So.2d 1110, 1118 (La. App. 1st Cir. 1988), writ denied, 548 So.2d 1222 (La. 1989). Furthermore, the trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. Id.

The trial court did not abuse its discretion in denying the motion for new trial in this case. There is nothing about the defendant's alleged new evidence that would have had anything to do with the completed bench trial. If Calob and his mother did indeed post negative comments about the defendant and the defendant's wife, it was after the incident and would have had no bearing whatsoever on the trial court's determination of whether or not the defendant had acted in self-defense. That is, such postings, if extant, were neither material to the issues at trial nor would they have produced a different verdict in the event of retrial. As the trial court noted in denying the motion for new trial, "All you're saying is basically that the victim allegedly had some attempt to ruin [the defendant's] reputation after the incident."

This assignment of error is without merit.

ASSIGNMENT OF ERRORS 2, 3, and 4

In these three related assignments of error regarding sufficiency of the evidence, the defendant argues, respectively that: (1) the trial court erred in its application of the law regarding justification in finding his actions were not reasonable and apparently necessary to prevent a forcible offense against persons or forcible offense or trespass against property; (2) the trial court erred in finding the defendant's actions on the day of the incident were unreasonable under the circumstances; and (3) there was insufficient evidence to convict him of aggravated assault with a firearm.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno , 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

Aggravated assault with a firearm is an assault committed with a firearm. La. R.S. 14:37.4(A). A discharge of the firearm is not an element of the offense. State v. Lafleur , 2016-467 (La. App. 3rd Cir. 1/4/17), 209 So.3d 927, 929-30, writ denied, 2017-0808 (La. 1/29/18), 235 So.3d 1104.

The defendant argues in brief that the trial court should have found that Calob was the aggressor in this case. According to the defendant, Calob interrupted his family and harassed and threatened them. Also, according to the defendant, his conduct was in defense of persons or property under circumstances of La. R.S. 14:19 through La. R.S. 14:22. The defendant avers that under La. R.S. 14:19, Calob's "threat of violence" gave him (the defendant) the right to use force or violence against him to protect himself and his property. The defendant suggests that La. R.S. 14:22 (defense of others) is applicable if the defendant's "family members could have acted similarly, and if it was reasonably believed that such intervention was necessary to protect them." According to the defendant, the trial court should have found that, under La. R.S. 14:19, the defendant satisfied both the subjective and objective inquires; that is, under the objective inquiry, the defendant's use of force was reasonable under the circumstances, and under the subjective inquiry, the defendant's use of force was apparently necessary.

Louisiana Revised Statute 14:19 provides in pertinent part:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.

Louisiana Revised Statute 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

Louisiana Revised Statute 14:22 provides:

It is justifiable to use force or violence or to kill in defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.

In the non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances, and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Pizzalato , 93-1415 (La. App. 1st Cir. 10/7/94), 644 So.2d 712, 714, writ denied, 94-2755 (La. 3/10/95), 650 So.2d 1174. In a homicide case, when self-defense is raised as an issue by the defendant, the State must prove, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Spears , 504 So.2d 974, 978 (La. App. 1st Cir.), writ denied, 507 So.2d 225 (La. 1987). However, Louisiana law is unclear as to who has the burden of proving self-defense in a non-homicide case, and what the burden is. State v. Barnes , 590 So.2d 1298, 1300 (La. App. 1st Cir. 1991). In previous cases dealing with this issue, this court has analyzed the evidence under both standards of review, that is whether the defendant proved self-defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. In this case, we need not and do not decide the issue of who has the burden of proving (or disproving) self-defense because under either standard the evidence sufficiently established that the defendant did not act in self-defense. See Pizzalato , 644 So.2d at 714.

We note initially that La. R.S. 14:22 (defense of others) has no application to this case, and that the defendant's suggestion on how that statute is to be applied to this case is erroneous. Calob attacked no one. The defendant, thus, was not defending someone else from any attack by Calob. We further point out that the defendant's brief, as well the testimony by the defendant and his wife, is wholly at odds with what was captured on the defendant's home surveillance video.

Our review of the video and testimony established the following. It was daytime with fair weather. When Calob pulled into the defendant's side driveway, an iron gate was closed across the driveway. The defendant's son ran to the gate, with arms waving, telling Calob to leave. When Calob pulled in, he immediately pulled out and turned around to go to the store (out of the neighborhood). As Calob drove off, the defendant's daughter then began waving off Calob. The defendant then hurried down his driveway, watching Calob drive away. About forty seconds later (after he first pulled in the driveway), Calob backed up his vehicle on the road and stopped near the driveway. According to Calob he wanted to know what he had done, if anything, and why everyone seemed so upset. When the defendant saw Calob, back up, he ran into his house. Calob tried speaking to Shannon, the defendant's wife, whom Calob could see by the pool, toward the back of the house. Calob, however, could not speak with Shannon because she kept yelling and cursing at him.

Calob drove away and went to the store. Just as Calob drove away, the defendant ran from his house with an AR-15 rifle. The defendant then went out of sight of the camera. About five minutes later, the defendant's stepdaughter pulled into the driveway and parked. She opened the iron gate and went in the house. The iron gate remained open. Forty-five seconds after the defendant's stepdaughter got home, the defendant began walking around his driveway again, with the AR-15 rifle in his hand. The defendant watched Calob turn back into the subdivision (after coming from the store), walked to the edge of his driveway, and flagged down Calob. Calob stopped in the street in front of the defendant's driveway, with his passenger side facing the defendant. It was not clear what was said because the defendant's surveillance video did not have any audio. In any event, Calob sat still for about four seconds, then began to drive away; as he did, the defendant smashed the driver's side door with the muzzle of his AR-15 rifle. Calob stopped again. The defendant walked a few feet to catch up with Calob and aimed his AR-15 rifle at Calob, through the front passenger side window. Calob then drove away.

Shannon testified that Calob yelled at her and the children and exchanged words with the defendant. The defendant testified that Calob's turning around in the driveway and exchanging words with Shannon had everyone shaken and that something like that had never happened before. According to the defendant, when Calob came back from the store, he stopped directly in front of the defendant and started screaming at him. According to the defendant, he felt like he was being bullied, and he was terrified.

Calob, on the other hand, indicated that Shannon was being belligerent and yelling at him and that the defendant was screaming at him and behaving erratically. Calob testified the defendant had a gun in his hand and "seemed like a crazy man." Calob did not have a gun, and, when the defendant pointed the AR-15 rifle at him, Calob feared for his life. When asked on direct examination if he thought the defendant might shoot him, Calob testified: "Definitely. He was foaming at the mouth screaming that day. He looked like a crazy lunatic." Both the defendant and Shannon testified that they did not have any problem with people turning in their driveway. However, it was clear from how the family reacted when Calob pulled in to turn around, that the defendant did not want anyone to use his driveway for that purpose. Detective Roger Oubre, with the Ascension Parish Sheriff's Office, was one of the officers at the defendant's house. Detective Oubre spoke to the defendant, who told the detective that "he was upset and he felt that he was being harassed because people turn around in his driveway all the time."

To Calob, the reactions of the children, the defendant, and Shannon were so excessive and unreasonable when he initially pulled in the driveway, that he thought he had done something - other than pulling in the driveway - to warrant such behavior. When Calob took off, then seconds later backed up to the defendant's house, he wanted to find out what was going on and to try to resolve the conflict before it became worse. Calob feared not only for himself, but for his family, who lived in the same neighborhood. He testified: "this man was screaming and yelling at me for pulling into a driveway. I decided at this moment that he's not right in his head, so I thought he could definitely follow me to my house or show up at my house at some time in the middle of the night and kill me or something. I had no idea."

Accordingly, despite the defendant's assertions in brief, we find nothing in the record before us to suggest that Calob was the aggressor or that the defendant was acting in defense of himself or his property. Except for the few seconds when Calob pulled onto the defendant's driveway, then immediately backed up and drove off in the other direction, Calob was never on the defendant's property. Calob never threatened the defendant, nor threatened his property in anyway. It was the defendant who waited for Calob to come back down the street, flagged Calob down, damaged Calob's vehicle, and pointed an AR-15 rifle at Calob.

Additionally, despite the defendant's claims that he felt threatened and acted out of fear for his and his family's safety, the defendant failed to contact the police after Calob drove away. It was Calob's mother who called the police. Moreover, when the police arrived at the defendant's house, Shannon would not open the iron gate for them, and the defendant would not come outside. Initially, Shannon told the police that she was actually the one who pointed the AR-15 rifle at Calob, and the defendant confirmed Shannon's account of the events. According to Deputy Seth Boudreaux, with the Ascension Parish Sheriff's Office, their seventeen-year-old daughter also told the deputy that Shannon pointed the gun. The defendant admitted at trial that it was his and Shannon's plan to let her go to jail. Only after the police went back to Calob's house, and then returned to the defendant's house to confront the defendant with the inconsistencies, did the defendant confess the truth about him being the one who had the weapon.

None of these actions by the defendant were consistent with someone acting in self-defense, and we find that any rational trier of fact could have concluded beyond a reasonable doubt that the defendant did not act in self-defense. See State v. De Gruy , 2016-0891 (La. App. 4th Cir. 4/5/17), 215 So.3d 723, 733-34, writ denied, 2017-0752 (La. 1/9/18), 231 So.3d 652. Accordingly, we find the force used by the defendant was neither reasonable under the circumstances nor apparently necessary for the protection of anything or anyone. See La. R.S. 14:19(A)(1)(a) ; Pizzalato , 644 So.2d at 714. As the trial court found when adjudicating the defendant guilty of aggravated assault with a firearm:

Aggravated assault with a firearm, the defendant has basically admitted that he's done that. Then the question becomes whether or not he had the right to do that under [the law], which counsel for the defendant has failed to read when he was citing the statute was his actions have to be reasonable under the circumstances, and I don't think there's any question that his actions were totally unreasonable.

Given some of the conflicting testimony, it is not possible to know precisely what words were exchanged between the parties. In any event, the trial court heard all of the testimony, viewed the video evidence, and adjudicated the defendant guilty as charged. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn , 479 So.2d 592, 596 (La. App. 1st Cir. 1985). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron , 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988).

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville , 448 So.2d 676, 680 (La. 1984). In finding the defendant guilty, it is clear the trial court rejected the theory that Calob was the aggressor, rejected the defendant's theory of self-defense and/or defense of others (and property), and reasonably concluded that the defendant's actions toward Calob were neither reasonable nor necessary under the circumstances. See Captville , 448 So.2d at 680. Further, lying has been recognized as indicative of a defendant's awareness of wrongdoing. Id. at 680, n.4.

After a thorough review of the record, we find that the evidence supports the trial court's finding of guilt. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of aggravated assault with a firearm. See State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

These assignments of error are without merit.

CONCLUSION

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

CONVICTIONS AND SENTENCES AFFIRMED.

      In State v. Freeman , 427 So.2d 1161, 1162-63 (La. 1983), the Louisiana Supreme Court, without resolving the issue, suggested that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. See Barnes , 590 So.2d at 1300-01.


author: KEATY, Judge.

text:
    Alicia Dawn MASON v. Robert MASON
    18-299
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Philip A. LeTard, Sr., Attorney at Law, Post Office Box 187, Vidalia, Louisiana 71373, (318) 336-8990, Counsel for Defendant/Appellant: Robert Mason
    Brandy McClure, Attorney at Law, Post Office Box 665, Jonesville, Louisiana 71343, (318) 339-7337, Counsel for Plaintiff/Appellee: Alicia Dawn Mason
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KEATY, Judge.

Former husband filed a motion to enforce a provision of his divorce judgment giving him a portion of his former wife's retirement. Former wife opposed the motion, arguing that they had entered into a subsequent oral agreement whereby former husband relinquished his interest in her retirement in exchange for her dismissal of an action against him to collect past-due child support. Following a hearing, the trial court rendered judgment denying former husband's motion. Former husband now appeals. Finding no manifest error in the trial court's ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

Robert Mason and Alicia Dawn Mason, now Alicia Dawn Ford (Ms. Ford), were married on August 24, 1979, and divorced on June 1, 1995. The two children born of the marriage were minors when their parents divorced. The divorce judgment ordered Mr. Mason to pay Ms. Ford child support in the amount of $150.00 per child per month and to reimburse Ms. Ford for one-half of the children's medical, dental, and medication bills not covered by the hospitalization insurance she maintained for them. The judgment further provided that Ms. Ford's retirement would be divided with Mr. Mason according to the formula set forth in Sims v. Sims , 358 So.2d 919 (La.1978).

On June 25, 2014, Mr. Mason filed a motion requesting that Ms. Ford be ordered to show cause why her retirement account should not be shared with him as per the terms of their judgment of divorce. A hearing on Mr. Mason's motion took place on March 7, 2016, at which time evidence was presented and the trial court heard the testimony of Ms. Ford; Ms. Ford's mother, Emma Jean Seal (Ms.

Seal); and Mr. Mason. By judgment dated June 3, 2016, the trial court denied Mr. Mason's motion, declaring that: "Mr. Mason is not entitled to any portion of Alicia Dawn Ford's retirement." Mr. Mason filed a motion for new trial, which the trial court denied after a hearing. Mr. Mason now appeals, asserting that the trial court erred: 1) in denying his claim to a portion of Ms. Ford's retirement benefits; 2) in accepting the testimony of Ms. Ford and Ms. Seal as proof that he and Ms. Ford entered into a subsequent and valid verbal agreement modifying their divorce judgment; and 3) "by not considering the unjust enrichment of such an agreement." Mr. Mason's first assigned error goes to the heart of this appeal and will be determined by considering the merits of his second and third assigned error.

DISCUSSION

The trial court's factual findings will not be disturbed on appeal absent manifest error. Moreover, the trial court's reasonable evaluations of credibility and inferences of fact will not be disturbed on review, even though the appellate court may believe its own evaluations and inferences are as reasonable. Rosell v. ESCO , 549 So.2d 840 (La.1989) ; Monroe v. Physicians Behavioral Hosp., LLC , 49,248 (La.App.2d Cir.8/13/14), 147 So.3d 787. The trial court reconciles conflicting evidence. The reviewing court does not determine whether the trial court was right or wrong, but whether its factual conclusions are reasonable in light of the record as a whole. Stobart v. State, through DOTD , 617 So.2d 880 (La.1993).

Schindler Elevator Corp. v. Long Prop. Holdings, L.L.C. , 50,199, pp. 11-12 (La.App. 2 Cir. 11/18/15), 182 So.3d 233, 240.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.

Rosell , 549 So.2d at 844. The Louisiana Supreme Court has gone so far as to declare that "[w]here the factfinder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous." Snider v. La. Med. Mut. Ins. Co. , 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323.

Louisiana Civil Code Article 1848 provides as follows:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

"Whether an oral agreement modified a written contract is a question of fact. The party asserting modification must prove by a preponderance of the evidence the facts or acts that gave rise to the modification." Schindler , 182 So.3d at 241 (citations omitted). "Parties are free to contract for any object that is lawful, possible, and determined or determinable." La.Civ.Code art. 1971. "It is not the province of the courts to relieve a party of a bad bargain, no matter how harsh." La. Power & Light Co. v. Mecom , 357 So.2d 596, 598 (La.App. 1 Cir. 1978).

Based on the foregoing principles, we must decide whether the trial court manifestly erred in finding that Ms. Ford met her burden of proving that she and Mr. Mason entered into an oral agreement whereby he relinquished his right to collect a portion of her retirement as set out in their divorce judgment. Ms. Ford's retirement account was unquestionably an asset of their former community that was subject to division upon the dissolution of their marriage. This principle was noted in their divorce judgment. Thus, Mr. Mason is entitled to receive a portion of that account unless he waived that right. The parties do not dispute that they came to an agreement in 2005 prompted by Mr. Mason's request that Ms. Ford drop the action pending against him for past-due child support. They also do not dispute that the agreement was not put in writing. The primary point of contention, however, is what consideration Mr. Mason agreed to give Ms. Ford in exchange for her assent to his request. Mr. Mason contends that Ms. Ford agreed to drop the child support action in exchange for him giving her $1,500.00 cash on the spot. Ms. Ford, on the other hand, insists that she did not accept Mr. Mason's proposal until he agreed to waive his right to receive a share of her retirement.

At Mr. Mason's request, Ms. Seal was sequestered at the start of the March 7, 2016 hearing. The first witness to testify was Ms. Ford. Ms. Ford explained that because Mr. Mason did not pay her "a penny" of child support for over a year after their divorce, she had to seek enforcement of the child support awarded her in the divorce judgment. Thereafter, Mr. Mason began paying her between $50.00 and $100.00 per month, but never the full amount that he was ordered to pay her. Ms. Ford stated that Mr. Mason came to her house in the summer of 2005 because he wanted to purchase something but was unable to secure a loan because "the child support was looming on his credit report." According to Ms. Ford, Mr. Mason asked her if she would waive any child support that he owed her if he would "relinquish any rights to any monies" from her, including her retirement. She denied that Mr. Mason offered to pay her $1,500.00 as part of their agreement. She accepted his verbal offer and approximately one month later, on September 20, 2005, she signed a Request for Closure that dismissed the child support case against Mr. Mason and deleted any arrearages that he then owed. The form did not list the amount of child support Mr. Mason owed at the time. Ms. Ford initially testified that the child support arrearages totaled in excess of $7,000.00, but she later clarified that some of that amount was for medical bills. Ms. Ford stated that her mother, Ms. Seal, was at her house and heard the oral agreement that she made with Mr. Mason.

Ms. Ford explained that she had worked as a registered nurse since 1980 and that she contributed twenty-five years of retirement benefits. She stated that she had not retired and, thus, was not receiving retirement benefits when the agreement was confected in 2005. According to Ms. Ford, she and Mr. Mason did not discuss how much her retirement was worth when reaching the oral agreement in 2005. Ms. Ford acknowledged that the Request for Closure did not reflect that Mr. Mason was giving up his interest in her retirement. She stated that in hindsight, however, she should have noted that fact on the form. Ms. Ford stated that she began collecting retirement benefits in June 2007, in the amount of approximately $2,700.00 per month.

Ms. Seal was the second witness to testify at the hearing. Ms. Seal stated that she had always gotten along well with her former son-in-law, Mr. Mason. Ms. Seal explained that one day when she was at her daughter's house in 2005, Mr. Mason came in to ask Ms. Ford if she would drop the child support case against him so that he could get a loan. According to Ms. Seal, her daughter initially told Mr. Mason "No," but she changed her mind after he agreed "not to fool with her retirement." Ms. Seal said that Ms. Ford and Mr. Mason did not discuss how much money he owed in child support at that time, and she did not recall Mr. Mason offering her daughter $1,500.00 as part of the agreement.

Mr. Mason testified that he went to Ms. Ford's house in 2005 to see if she would waive the child support he owed her, which he estimated to be about $2,000.00 at the time. According to Mr. Mason, he offered to pay Ms. Ford $1,500.00 in cash or $20.00 per month. He said Ms. Ford laughed at first, but then accepted $1,500.00 in cash and went with him to the courthouse that day to sign the papers dismissing the child support case. Mr. Mason claimed that he got a receipt for the money he gave Ms. Ford but that he had lost it. He denied that he and Ms. Ford discussed her retirement or that he agreed to give up his right to collect a portion of her retirement as part of the oral agreement that they reached. Mr. Mason acknowledged that he owed Ms. Ford back child support in the years between their divorce and when they made the oral agreement in 2005. When asked whether he paid for one-half of his children's medical and dental bills since their divorce, Mr. Mason answered, "I don't remember."

At the close of the hearing, the trial court accepted into evidence a Show Cause Summons (the Summons) directed to Mr. Mason that was signed on September 19, 2000. The Summons indicated that in lieu of serving six months in jail, Mr. Mason had been placed on supervised probation for five years in September 1998 by the Support Enforcement division of the Louisiana Department of Social Services. According to the Summons, Mr. Mason owed $6,102.00 in arrearages at that time, the last payment of $160.00 having been received in November 1999. Ms. Ford filed a post-hearing memorandum, to which she attached an affidavit dated March 31, 2016, wherein she attested that Mr. Mason owed $2,562.00 in past-due child support when she dismissed the child support case against him. She further attested that Mr. Mason owed her $6,178.58 for his portion of their minor children's medical expenses that were not covered by insurance. Finally, Ms. Ford attested that she and Mr. Mason agreed that she would dismiss any claim for past-due child support and medical expenses and that Mr. Mason would waive any right to her retirement. Although Mr. Mason told the trial court that he would supplement the record with certified copies of the history of his child support payments on record with Louisiana Automated Support Enforcement System (LASES) for the years 2002 to 2005, we have found no such supplementation in the record.

Did Ms. Ford Prove a Subsequent Oral Agreement Modified Their Divorce Judgment ?

On appeal, Mr. Mason argues that the truthfulness of Ms. Ford's and Ms. Seal's testimonies should be called into question because they both answered affirmatively when asked by his attorney whether they thought it was unfair for Mr. Mason to have any interest in Ms. Ford's retirement. Mr. Mason insists that his interest in Ms. Ford's retirement was not discussed at their 2005 meeting. He acknowledges that Ms. Ford and Ms. Seal both testified that he agreed to forfeit his rights to Ms. Ford's retirement in exchange for her agreeing to forgive the child support arrearages that he owed. Nevertheless, he argues that he was aware of the fact that the value of his interest in Ms. Ford's retirement account in 2005 greatly exceeded the amount of child support he owed at the time and that he would not have agreed to such an unfair tradeoff. Thus, he submits that the trial court should have credited his testimony that Ms. Ford agreed to dismiss the child support case against him after he paid her $1,500.00.

Ms. Ford counters, noting that despite the fact that her mother was sequestered at the hearing, they both testified that Mr. Mason came to Ms. Ford's house in 2005 because he could not get a loan because of the child support case against him. They, likewise, testified that Ms. Ford would not accept Mr. Mason's request until he agreed to waive his right to collect a portion of her retirement. Moreover, neither Ms. Ford nor Ms. Seal recalled Mr. Mason giving Ms. Ford a cash payment as part of the 2005 verbal agreement.

The trial court heard conflicting testimony regarding the terms of the oral agreement Mr. Mason and Ms. Ford entered into in 2005. It was able to observe the witnesses' demeanors and to assess their credibility. In addition, Ms. Ford provided the trial court with several exhibits to assist in its determination of the facts. Historically, Mr. Mason was unable and/or unwilling to keep current on his child support obligations. Because credibility determinations are left to the fact finder, the trial court was free to accept Ms. Ford's version of the facts and to reject the conflicting version presented by Mr. Mason. In view of the record as a whole, we cannot say that the trial court manifestly erred in accepting the testimonies of Ms. Ford and Ms. Seal as proof that Ms. Ford and Mr. Mason entered into a valid subsequent verbal agreement modifying their divorce judgment.

Mr. Mason's second assigned error lacks merit.

Unjust Enrichment

Mr. Mason next argues that even if the version of the 2005 agreement attested to by Ms. Ford and her mother were true, enforcement of the 2005 agreement results in an unjust enrichment to Ms. Ford and an impoverishment to him. As he testified to at the hearing and as he reiterates in brief to this court, Mr. Mason's health has declined since his divorce from Ms. Ford. He has had several surgeries, and he is no longer able to work as a wallpaper hanger and painter because of heart problems, a torn rotator cuff, and arthritis. According to his calculation of the Sims formula, Mr. Mason claims that he is entitled to receive at least $50,000.00 in benefits from Ms. Ford's retirement. As a result, he submits that it would be unconscionable to enforce an agreement whereby he waived $50,000.00 in exchange for Ms. Ford agreeing to not collect $8,740.58 in child support and medical bill arrearages from him.

Ms. Ford insists that Mr. Mason has miscalculated the amount of retirement benefits that he would stand to recover from Ms. Ford in the absence of their 2005 oral agreement. Her calculation of the Sims formula shows that Mr. Mason would be entitled to recover $19,879.89 of her retirement benefits. Thus, after subtracting the $8,740.58 in past due child support and medical bills that Mr. Mason owed her at the time they entered into the oral agreement, the amount Mr. Mason gave up was approximately $11,139.31. Given the fact that her dismissal of the child support case against Mr. Mason improved his financial position and allowed him to obtain the credit he desired, Ms. Ford argues that she was not unjustly enriched by their 2005 verbal agreement.

At the hearing before the trial court, Mr. Mason argued that he and Ms. Ford did not discuss her retirement when they reached the oral agreement in 2005. The trial court found to the contrary, and we have ruled that such finding was not manifestly erroneous. Now, on appeal, Mr. Mason would have this court look at his current medical and financial conditions and the current value of Ms. Ford's retirement account. In fact, at the hearing on Mr. Mason's motion for new trial, his attorney commented that because Mr. Mason "had no idea how long [Ms. Ford] was going to work[, he] couldn't figure out exactly what Mr. Mason's value in the retirement was until she stopped working."

Louisiana Civil Code Article 2298, titled "Enrichment without cause; compensation," provides in pertinent part as follows: "A person who has been enriched without cause at the expense of another person is bound to compensate that person." We have searched the record and can find no evidence that Mr. Mason pled or argued his theory of unjust enrichment to the trial court. Rather, he argued at the March 7, 2016 hearing that it would be "unconscionable for him to be stripped entirely of his right of this support." "This court will not consider an issue raised for the first time on appeal." Burch v. Burch , 51,780, p. 9 (La.App. 2 Cir. 1/10/18), 245 So.3d 1138, 1143.

In finding that Mr. Mason waived his rights to Ms. Ford's retirement, the trial court implicitly found that Mr. Mason had "cause" to enter into the 2005 oral agreement. Mr. Mason would have this court invalidate an agreement into which he willingly entered in 2005 based upon the circumstances that then existed, but which now, in hindsight, may not have been to his advantage. La. Power & Light Co. v. Mecom , 357 So.2d 596 (La.App. 1 Cir. 1978). In our view, Mr. Mason raised his unjust enrichment argument as an afterthought. Because Mr. Mason did not present the issue of whether enforcement of the 2005 oral agreement resulted in an unjust enrichment to Ms. Ford at his expense, we will not consider this issue on appeal.

DECREE

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are assessed against Appellant, Robert Mason.

AFFIRMED .

      In the record and briefs to the court, Ms. Seal is sometimes referred to as Emmogene Seal. We refer to her herein as "Ms. Seal."

      The record indicates that Mr. Mason's child support obligation for the parties' daughter ended in 1999, and his obligation for their son ended in 2001. Nevertheless, Mr. Mason acknowledged that he owed child support arrearages when Ms. Ford signed the Request for Closure on September 9, 2005.

      The Request for Closure was entered into evidence at the hearing.

      In conjunction with her testimony, Ms. Ford entered into the record a document outlining her retirement benefits that was issued in July 2007.

      As part of his probation, Mr. Mason was ordered to pay a $500.00 fine, $150.00 per month in child support, and $10.00 in arrearages starting on October 1, 1998. He was also ordered to notify his probation officer of any changes within ten days.

      In her brief to this court, Ms. Ford claims that she waived $12,000.00 in past-due child support and medical bills. We find it more appropriate to use the figure of $8,740.58 that results from the amounts noted in her March 31, 2016 affidavit.