author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. D'andrae MCGARR, Appellant
    52,641-KA 52,642-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    LOUISIANA APPELLATE PROJECT By: Douglas L. Harville, Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, KENNETH D. WHEELER, AMANDA M. WILKINS, Assistant District Attorneys, Counsel for Appellee
    Before STONE, McCALLUM, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

These consolidated criminal appeals arise from the Fifth Judicial District Court, Richland Parish, the Honorable Stephen G. Dean presiding. Defendant, D'Andrae McGarr, pled guilty to aggravated burglary and was sentenced to 15 years at hard labor ( No. 52,641 -KA); Defendant also pled guilty to simple burglary of an inhabited dwelling and was sentenced to 12 years at hard labor ( No. 52,642 -KA). Defendant has appealed, urging that the trial court erred in finding that his guilty pleas were knowing and voluntary and in denying his motion to withdraw his guilty pleas. For the reasons set forth below, Defendant's sentences are vacated and the case is remanded for further proceedings consistent with this opinion.

FACTS

On February 3, 2017, Defendant was charged by bill of information with Count One: aggravated burglary, Count Two: criminal conspiracy to commit aggravated burglary, Count Three: armed robbery, and Count Four: criminal conspiracy to commit armed robbery. ( No. 52,641 -KA). On March 22, 2017, Defendant was charged with Count One: simple burglary of an inhabited dwelling and Count Two: criminal conspiracy to commit simple burglary of an inhabited dwelling. ( No. 52,642 -KA). All of the alleged crimes occurred in 2016.

Proceedings for Guilty Plea

Defendant negotiated a plea agreement with the State, and on March 9, 2018, he pled guilty to aggravated burglary and simple burglary of an inhabited dwelling; all other counts were dismissed. ( No. 52,641 -KA, R.pp. 52-67.) Defendant was represented by attorney Micah Hoggatt. At the plea colloquy, the prosecutor stated:

This is our first priority trial case for March 19th. There has been a plea offer on the table for quite some time on Mr. McGarr's case... Mr. Hoggatt got involved pretty quickly. Met with Mr. McGarr. He's met with me. He negotiated over the last couple of weeks and final agreement is as follows: the defendant will be pleading guilty [in the first case] to the charge of aggravated burglary...the state will dismiss counts two, three and four against Dandrae McGarr. He'll also be pleading guilty [in the second case] to simple burglary of an inhabited dwelling... The state will dismiss count two.
A factual basis on the aggravated burglary is that Mr. McGarr, Bolathia Brown, and at least one other person went into a house of the victim in this case, Justin Richardson, and [sic ] with a weapon. So, they entered the residence with a weapon and with the intent to commit a theft or felony therein. Not only was the resident at home, the gun was involved and a battery was committed on the homeowner or the victim in the house. And items were in fact stolen from the residence. With regard to the charge of simple burglary of an inhabited dwelling, the evidence is that Rashad Naylor and Dandrae McGarr went into a residence of Deanna Hanson and Michael Ray Harrison... In Rayville and committed burglary of that residence.
....
And judge, I'll represent to the court that we had a plea in place. Mr. McGarr came here this morning. Counsel, he started rethinking it. He spoke to the attorney. He indicated to his attorney he wanted to speak to me and he did. He asked me some questions. He quite frankly he asked me for a little more leniency. He asked me to consider some additional facts. He asked me a variety of questions which his lawyer said [the prosecutor] is here. He'll answer any questions you have. He'll explain anything you want explained. And did answer all of his questions. Represented to him what we felt like the case was and what we would prove at trial. And he, after some period of time, indicated he did want-accepted the plea. And I did tell him, I said look, this case is a priority case. We're not going to wait until next week. If you're going to accept this plea, then we need to do it because otherwise we're going to be getting ready for trial this coming week. He indicated that he did want to take the plea. But, he said, I want to come back and be sentenced. I said, that's not a problem. Actually under the law he is entitled to do that. So, I told him we'll enter the plea today and you have a written plea agreement on your bench and he asked to come back and be sentenced on...March 14th.

(R.pp. 52-54.)

At the time of Defendant's plea, the trial court then ascertained his age (19), his education level (11th grade), his understanding of English, whether he had any difficulty communicating with his attorney, his work experience (none), whether he had taken any drugs, alcohol or medication within the past five days, and whether Defendant had any physical, emotional or mental problems that would affect his ability to understand the proceedings. (R.pp. 56-58.) The trial court found Defendant competent to enter his plea and waive his constitutional rights "freely, voluntarily and intelligently." (R.p. 58.)

After being sworn. Defendant affirmed that he had the opportunity to discuss with counsel his case, the charges, his potential defense, and the maximum and minimum sentences he could receive if he did not enter into the plea agreement. (R.p. 58.) Defendant asserted that he did not need additional time with his attorney and was completely satisfied with his services. (R.pp. 58-59.) The trial court then had the following exchange with Defendant:

TRIAL COURT: The charge against you in count one, to which you intend to plead guilty, state [sic ] that on or about December 14, 2016, you committed aggravated burglary of the dwelling belonging to Justin Richardson, located at Jones Street, Rayville, Louisiana, while armed with a dangerous weapon. Do you understand that, that's one of the charges we're talking about today?
DEFENDANT: Yes, sir.
TRIAL COURT: You are charged with committing the crime of simple burglary of an inhabited dwelling in that on or about December 31, 2016, you committed simple burglary of an inhabited dwelling belonging to Deanna Harrison and Michael Ray Harrison located at 308 Morgan Street, Rayville, Louisiana. Do you understand that, that's the other charge we're talking about today?
DEFENDANT: Yes, sir.
PROSECUTOR: Judge, on that, before you go ahead? My understanding is that talking with the witnesses in that case, the simple burglary of an inhabited dwelling, that the facts are that Rashad Naylor went into the house with him and Rashad actually had a weapon with him in that particular case but you didn't. Is that-am I stating that correctly?
DEFENDANT: Yes, sir. But neither of us had a weapon.
PROSECUTOR: Oh, neither one of you did?
DEFENDANT: No, sir.

(R.pp. 59-60.) The trial court then read the statutory provisions for each charge, La. R.S. 14:62.2 and La. R.S. 14:60, including the maximum and minimum sentences, and Defendant stated he understood the charges and the sentencing ranges. (R.pp. 60-61.)

Defendant affirmed his belief that he had been treated fairly with the plea agreement. (R.p. 61.) The trial court asked Defendant if anyone, including his attorney, the district attorney or sheriff's office, had made any threats or promises in order to persuade him to enter the guilty plea as stated by the district attorney. Id. Defendant affirmed that he had not been forced, threatened or tricked into pleading guilty, and that he was pleading guilty voluntarily and of his own free will because he was guilty. Id.

The trial court told Defendant that by pleading guilty, he was giving up certain rights, including the rights not to plead guilty and have a speedy and public trial by jury, to have the assistance of a lawyer that would be appointed if he could not afford one, that the state had the burden to prove his guilt beyond a reasonable doubt at trial, the right to confront his accusers, the right to testify at his trial, the privilege against self-incrimination, and the right to appeal his conviction if found guilty at trial. (R.pp. 61-63.) The court explained that Defendant would be forfeiting these rights by pleading guilty. Defendant stated that he understood he was giving up each of those rights. Id.

Defendant was then given an opportunity to discuss anything he did not understand with his attorney or the trial court, which Defendant declined to do. (R.p. 63.) Defendant stated that he understood that he would not be allowed to appeal or seek review of the length of his sentences, and that the trial court would not be able to amend, modify or reduce his sentences after Defendant had begun serving them. Id. Atty. Hoggatt affirmed that he found Defendant competent, able to discuss his case, and cooperative, and that he was able to advise Defendant of the nature of the charges against him and his constitutional rights, and that those rights had been observed. (R.pp. 63-64.) Atty. Hoggatt affirmed that Defendant understood the consequences of the plea agreement. (R.p. 64.)

The trial court stated that it found that the plea was "entered freely and voluntarily with an understanding of the nature of the charges as well as the consequences of the plea, including the defendant's understanding of the plea agreement, which he has signed in the presence of other witnesses, and signed in open court. It has a factual basis containing the elements of the crimes charged. And the plea is accepted." Id.

Sentencing Proceedings

On March 14, 2018, the trial court held a sentencing hearing. Atty. Hoggatt had a different attorney, John Ellis, stand in for him at the sentencing hearing, with the approval of Defendant and the trial court. (R.pp. 66-67.) Prior to sentencing, the following significant exchange occurred:

ATTY. ELLIS: Mr. McGarr has just informed me that he wishes to withdraw his plea. I have instructed him that it is up to the Court to determine if the Court is willing to allow him to do that. Consequences is that you will proceed to trial as the District Attorney's Office has charged you.
DEFENDANT: Yes, sir. I will.
ATTY. ELLIS: Apparently he has a statement here in which he would like to read. I would advise you not to do so. Anything you say in that...
THE COURT: Mr. Ellis, before we go forward, am I to understand that he's asking the Court to vacate his plea that was taken this past Friday?
ATTY. ELLIS: That's what he just informed me, Your Honor.
THE COURT: Mr. McGarr, is that correct?
DEFENDANT: Yes, sir.
THE COURT: The plea was actually entered and the sentence was also put in place under the plea. Everything was completed that day. Is that correct?
PROSECUTOR: Oh, yeah. It's final-all he is here to do is to be sentenced today. Yeah. The state is not going to agree to any sort of-and I knew this was coming. I mean, you could-you could see it coming a mile away, Judge. The fact of the matter is, he knowingly and voluntarily ...
....
PROSECUTOR: He knowingly and voluntarily waived his rights. He was here with counsel who had negotiated a plea. And it's a substantial reduction from what the original plea had been. He knew and you went through the entire Boykin process with him. And he's not entitled to withdraw his plea. You know, this was one of our first priority trial case[s] for Monday. And it's not the first time somebody has tried to do this. But the state is going to object and ask the Court to impose the sentence agreed upon.
....
THE COURT: Otherwise, the Boykin was successfully completed. The Court was satisfied that he was doing it knowingly and intelligently and of his own volition. He made those statements under oath to the Court. The agreed upon sentence is stated here. And the agreement was that he would have until today to be sentenced. Is that correct, [Prosecutor]?
PROSECUTOR: Yes sir, Judge.
THE COURT: My appreciation-and Mr. Ellis, I'm not ignoring you but I know you weren't present for the actual Boykin . Mr. Hoggatt was present.
....
THE COURT: Now, Mr. McGarr has now requested to make a statement to the Court as to why he's requesting this. Counsel has advised him not to do so. The Court is not going to receive that statement over the advise [sic ] of counsel.
....
THE COURT: So that is not going to be permitted into the record. And I'm prepared to sentence the gentleman today.

(R.pp. 70-73.)

Atty. Ellis then told the trial court that he had not had the opportunity to view Defendant's plea agreement. (R.p. 74.) Atty. Ellis then read the plea agreement, conferred with Defendant and stated that they were ready to proceed with sentencing. Id. Atty. Ellis, however, further stated that Defendant was maintaining his position that he wished to withdraw his guilty plea. (R.pp. 74-75.) The trial court then stated:

Mr. McGarr, we went through this process this past Friday with [sic ] the Court undertook not only a special fixing but a lot of time with you concerning this matter to accommodate you. Which I had no objection to doing. And I still have no objection to doing. Because I believe it is incumbent upon the court to make certain when I'm talking to a defendant that he not only knows what he's doing by he's doing this of his own volition. You're willing to do it. I had no indication at the sentencing [sic ] that you did not intend to do so. And you actually stated under oath to the Court several time that you were pleading guilty because you were guilty and no one was forcing or threatening or intimidating you into doing so. Therefore, I'm going to deny your motion. I'm not going to permit you to withdraw your guilty plea. And I'm going to impose sentence today as agreed in the plea agreement. Do you have any questions about that? Ask counsel if you do before I proceed.

(R.p. 75.)

The trial court then sentenced Defendant to 15 years at hard labor on the aggravated burglary charge and 12 years at hard labor on the simple burglary charge. (R.p. 76.) The sentences were to run concurrently, and Defendant was given credit for time served. Id.

The trial court did not inquire as to why Defendant wanted to withdraw his guilty plea, and Defendant was not allowed to give a statement to the trial court.

On March 22, 2018, Defendant filed a designation of record and a notice of intent to seek supervisory review with this Court, stating "Before being sentenced, [Defendant] moved to withdraw his plea of guilty tendered on March 5, 2018 based on factual grounds of being mislead [sic ] by counsel, the plea was not freely and voluntarily entered, and [there was a] lack of factual knowledge of the elements of the charges." Defendant then filed a writ for supervisory review with this Court.

On May 21, 2018, Defendant filed a motion for writ of habeas corpus ad prosequendum , requesting a hearing before the trial court. The trial court initially set a hearing date for the motion, but on June 1, 2018, the trial court issued an order stating that, upon review, Defendant was not entitled to the relief he sought, and a hearing on the motion to withdraw the guilty plea was "unnecessary." The trial court then denied the motion. On August 9, 2018, this Court granted Defendant's writ for supervisory review and converted Defendant's writ to an appeal. Defendant then perfected the instant appeal before this Court.

DISCUSSION

Defendant argues that his guilty pleas were not knowingly and voluntarily made because he was 19 at the time he pled guilty; he had a new attorney at the time he entered the pleas; defense counsel, and not Defendant himself, confirmed the factual basis for the guilty pleas; and, Defendant objected to part of the factual basis for the simple burglary of an inhabited dwelling charge, on which the trial court failed to question him further. Defendant states that, because the trial court failed to make such an inquiry, it failed to perfect the record during Defendant's guilty plea colloquy.

Defendant also contends that the trial court erred when it refused to consider his oral motion to withdraw his guilty pleas. According to Defendant, the trial court did not ask him why he wanted to withdraw his guilty pleas. Defendant argues that he was misled by counsel, the plea was not freely and voluntarily entered, and there was a lack of factual knowledge of the elements of the charges. Defendant also asserts that the trial court did not give him a full chance to raise his concerns at a contradictory hearing. Defendant asks this Court to vacate his convictions and sentences and remand this matter to the trial court for further proceedings.

The State argues that the record shows that the trial court followed each relevant statutory requirement for accepting Defendant's guilty plea. The State further avers that Defendant has no absolute right to withdraw his guilty plea, and the discretion to do so rests with the trial court. The State argues that, because the relevant statutory requirements were met regarding Defendant's guilty pleas, the trial court's denial of Defendant's motion to withdraw his guilty pleas cannot be reversed absent an abuse of discretion. According to the State, there was no such abuse of discretion in this case, and this Court should affirm Defendant's guilty pleas and sentences.

As amended in 2014 , La. C. Cr. P. art. 559(A) provides that, upon motion of the defendant and after a contradictory hearing , which may be waived by the state in writing, the court may permit a plea of guilty to be withdrawn at any time before sentence. (Emphasis added.) The discretion to allow the withdrawal of a guilty plea under La. C. Cr. P. art. 559(A) lies with the trial court and such discretion cannot be disturbed unless an abuse or arbitrary exercise of that discretion is shown. State v. Martin , 48,045 (La. App. 2 Cir. 05/15/13), 115 So.3d 750. A defendant has no absolute right to withdraw a guilty plea. Id.

Under La. C. Cr. P. art. 556.1, a valid guilty plea must be a voluntary choice by the defendant and not the result of force or threats. La. C. Cr. P. art. 556.1 also provides that prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. When the record establishes that an accused was informed of and waived his right to a trial by jury, to confront his accusers, and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ; State v. Cooper , 52,408 (La. App. 2 Cir. 11/08/18), 261 So.3d 975 ; State v. Martin, supra.

An express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra ; State v. Johnson , 51,430 (La. App. 2 Cir. 07/05/17), 224 So.3d 505 ; State v. Kennedy , 42,850 (La. App. 2 Cir. 01/09/08), 974 So.2d 203. A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Crosby , 338 So.2d 584 (La. 1976) ; State v. Johnson, supra ;

State v. Stephan , 38,612 (La. App. 2 Cir. 08/18/04), 880 So.2d 201. A validly entered guilty plea, or plea of nolo contendere , waives any right a defendant might have had to question the merits of the state's case and the factual basis underlying the conviction. State v. Bourgeois , 406 So.2d 550 (La. 1981) ; State v. Cooper, supra ; State v. Hardy , 39,233 (La. App. 2 Cir. 01/26/05), 892 So.2d 710.

When ruling on a motion to withdraw a guilty plea, the trial court should look beyond the Boykinization and consider all relevant factors. State v. Griffin , 535 So.2d 1143 (La. App. 2 Cir. 1988) ; State v. Green, 468 So.2d 1344 (La. App. 1 Cir. 1984) ; State v. Banks , 457 So.2d 1264 (La. App. 1 Cir. 1985). A court, when called upon to ascertain an accused's state of mind, has the power, notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent. State v. Lewis , 421 So.2d 224 (La. 1982) ; State v. Galliano, 396 So.2d 1288 (La. 1981) ; State v. Griffin, supra .

In order to properly exercise its discretion and in order for the appellate court to review the exercise of that discretion, the trial court should conduct a hearing or inquiry on defendant's motion to withdraw a guilty plea. State v. Lewis, supra ; State v. Griffin, supra . Reasons supporting withdrawal of the plea would ordinarily include factors bearing on whether the guilty plea was voluntarily and intelligently made, such as breach of a plea bargain, inducement, misleading advice of counsel, strength of the evidence of actual guilt, or the like. A mere change of heart or mind by the defendant as to whether he made a good bargain would not ordinarily support allowing the withdrawal of a bargained guilty plea. Id.

In State v. Griffin, supra , this Court set aside the sentence of a defendant who wished to withdraw his guilty plea. This Court remanded the case to the trial court, troubled by the fact that the defendant had made an oral motion to withdraw his guilty plea, which the trial court denied without conducting an inquiry into the reasons for the request. The record showed that the trial court had immediately denied the defendant's motion to withdraw his plea, stating that the court had already reviewed with the defendant in great detail all of his statutory and constitutional rights and the purported facts of the case. The record also showed a statement by defense counsel that the decision to withdraw the guilty plea was made by the defendant and was not in accordance with counsel's advice. Id.

The defendant in State v. Griffin, supra , pled guilty to second degree murder pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In State v. Griffin, supra at 1146, this Court stated:

Ordinarily it is the defendant's burden to present reasons for allowing withdrawal of the guilty plea. In this instance, however, considering the defendant's youthful age, his limited formal education, the fact that his attorneys were not supportive of his withdrawal of the plea, and the fact that the defendant did not admit guilt when entering the Alford plea, the trial court should have made some inquiry into the reasons for defendant's request, rather than denying the request without affording opportunity for further explanation by the defendant. Without a record reflecting such an inquiry and facts relating to the defendant's motion, this appellate court is unable to evaluate the exercise of discretion by the trial court. We therefore set aside the sentence and remand the case to the district court to hold a hearing on the defendant's motion to withdraw his guilty plea, with full opportunity to be afforded the defendant to present reasons and evidence of any pertinent facts in support of withdrawal of the plea. After such hearing the trial court shall exercise its discretion to either deny or allow withdrawal of the plea.

The Griffin case can be contrasted with State v. Davis , 31,848 (La. App. 2 Cir. 03/31/99), 731 So.2d 958, wherein the defendant also made an oral motion to withdraw his guilty plea. The oral motion was neither made, nor discussed on the record, but at a bench conference. During the sentencing hearing, the trial judge stated on the record that he had denied the motion to withdraw the guilty plea for the reasons stated at the sentencing hearing. Defense counsel noted for the record an objection to the trial court's denial of the motion. However, the record did not reflect that the defendant requested an evidentiary hearing on his motion to withdraw the guilty plea, that such a request was denied by the trial court, or that defendant objected to the denial of an evidentiary hearing. This Court stressed that defendant was given ample opportunity at a bench conference to present his reasons in support of his request to withdraw his guilty plea. Id.

Cases before this Court have included situations in which a defendant made an oral motion to withdraw a guilty plea, and the trial court was either made aware of the defendant's reasons for wanting to withdraw his guilty plea, or the court held a hearing on the motion before ruling. There are also other cases in which a defendant made an oral motion to withdraw a guilty plea, but the opinions do not reveal whether the trial judges were made aware of the defendants' grounds for seeking withdrawal of the plea, or whether there were hearings held on the motions. We note, however, that none of the cases this Court has considered arose after La. C. Cr. P. art. 559(A) was amended to include the "after a contradictory hearing" language that now mandates such a hearing once a defendant has made a motion to withdraw his guilty plea.

Defendant in this case pled guilty to aggravated burglary and simple burglary of an inhabited dwelling pursuant to the advice of Atty. Hoggatt. The record clearly reflects that Defendant was properly informed of his rights at the time his guilty pleas were accepted. However, there is nothing in the record to indicate why Defendant desired to withdraw his guilty pleas. Because Defendant orally moved to withdraw his guilty pleas, the trial court should have let Defendant state his reasons for making the request on the record, then made a decision with reasons in support thereof. The record reveals that Defendant was 19 at the time he entered his guilty pleas. Furthermore, the attorney representing defendant at the time he made his request to withdraw his guilty pleas, Atty. Ellis, was only standing in for the attorney who represented Defendant when he entered into the pleas. Atty. Ellis was not familiar with the details of Defendant's case, evidenced by the fact that Atty. Ellis had not read the plea agreement prior to the sentencing hearing. Defendant states in his brief that one of the reasons he wanted to withdraw his pleas was that he was misled by counsel.

Without a record of the required hearing reflecting an inquiry by the trial court into the reasons for Defendant's request to withdraw his guilty pleas, this Court is unable to evaluate the exercise of discretion by the trial court. We therefore are constrained to set aside Defendant's sentences and remand the case to the trial court to hold a hearing on Defendant's motion to withdraw his guilty pleas, with full opportunity to be afforded to Defendant to present reasons and evidence of any pertinent facts in support of the withdrawal of the pleas.

The trial court can then exercise its vast discretion to either deny or allow withdrawal of the pleas.

CONCLUSION

For the reasons set forth above, Defendant's sentences are vacated and the case is remanded to the trial court for a hearing on Defendant's motion to withdraw his guilty pleas and for further proceedings thereafter in accordance with law.

      Defendant's appeals were consolidated for briefing, docketing and disposition.

      Unless otherwise specified, in quoted portions, this opinion references the record in No. 52,641 -KA.

      See No. 52,392 -KH.

      See, State v. Johnson, supra ; see also, State v. Harris , 43,059 (La. App. 2 Cir. 04/30/08), 982 So.2d 245 ; State v. Moore , 32,707 (La. App. 2 Cir. 10/27/99), 743 So.2d 877, writ denied , 01-650 (La. 11/02/01), 800 So. 2d 872 ; State v. Cook , 32,110 (La. App. 2 Cir. 06/16/99), 742 So.2d 912 ; State v. Davis, supra ; State v. Bates , 29,252 (La. App. 2 Cir. 01/22/97), 711 So.2d 281.

      See , State v. Essex , 618 So.2d 574 (La. App. 2 Cir. 1993) ; State v. White , 552 So.2d 553 (La. App. 2 Cir. 1989).


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John Paul FLORES, Appellant
    No. 52,639-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019. Rehearing Denied May 16, 2019
    WHITLEY R. GRAVES, Benton, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, SENAE D. HALL, KODIE K. SMITH, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, COX, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal by John Paul Flores arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Flores was convicted by a unanimous jury of operating a vehicle while intoxicated, fourth offense, in violation of La. R.S. 14:98 and 14:98.4. He was sentenced to 20 years' imprisonment at hard labor, two years to be served without the benefit of parole, probation, or suspension of sentence, and a $ 5,000.00 fine. No motion to reconsider sentence was filed. On appeal, Flores challenges his sentence and conviction. For the following reasons, we affirm Flores's conviction and sentence.

FACTS

On the evening of June 24, 2016, officers with Caddo Parish Sheriff's Office, in response to a welfare call, approached John Paul Flores at Elsie's Auto & Truck Plaza ("Elsie's") in Shreveport, Louisiana. Flores was asleep in the driver's seat of a truck parked at the gas pumps in front of the store. After waking Flores and having him step out of the vehicle, officers located the keys on the center console of the vehicle and determined that Flores was at Elsie's alone. Flores was placed under arrest for suspected operation of a vehicle while intoxicated and subsequently charged by bill of information with operating a vehicle, fourth or subsequent offense, in violation of La. R.S. 14:98 and 14:98.4.

A six-person jury trial commenced on February 14, 2018, wherein seven witnesses testified. The state and the defense stipulated to Flores's three prior convictions of operating a vehicle while intoxicated. After closing arguments, the jury retired to deliberate without a copy of the jury instructions. The jury later wrote a note to the court which read, "Does the definition, by law, of 'control of a vehicle' include their sitting in driver's side with access to keys of vehicle?" The court declined to answer the jury's question, reasoning that the question was too specific and would border too closely on a comment on the evidence. Instead, the trial court elected to reread the relevant part of the original charge to the jury. After further deliberation, the jury unanimously found Flores guilty as charged. Following a presentence investigation, Flores was sentenced to 20 years' imprisonment, two years to be served without the benefit of parole, probation, or suspension of sentence, and a $ 5,000.00 fine. No motion to reconsider sentence was filed. This appeal by Flores ensued.

DISCUSSION

On appeal, Flores asserts that (1) the evidence at trial was insufficient to support his conviction; (2) the trial court erred in failing to properly instruct the jury; and, (3) the trial court erred in imposing an excessive sentence.

Trial Testimony

At trial, Detective Jeremy Edwards of the Caddo Parish Sherriff's Office testified that he was working as a patrol officer on the evening of June 24, 2016, when he was dispatched to Elsie's truck stop at 7101 Highway One in Caddo Parish concerning someone asleep in a truck at the gas pumps. Upon arrival at Elsie's, Det. Edwards made contact with Flores, who was asleep in the front driver side of a vehicle. No one else was in the vehicle. Det. Edwards knocked on the window several times to get Flores's attention. Det. Edwards stated he glanced inside the vehicle when Flores first exited but did not remember seeing any alcoholic beverages. He further testified that Flores exhibited bloodshot eyes, unsteady feet, and an alcoholic odor coming from his person. Det. Edwards attempted to conduct a field sobriety test, which Flores refused. Det. Edwards's contact with Flores at Elsie's was recorded with the mobile video surveillance device ("MVS") in his patrol car, which records everything in front of his vehicle as well as conversations. The DVD of the recording from Det. Edwards's MVS was introduced and played for the jury. Det. Edwards stated that he could not recall if Flores's vehicle was running when he approached it, but testified on cross-examination while viewing the MVS footage that as Flores exited the vehicle, he did not hear a beeping or any sound to indicate the keys were in the ignition. Det. Edwards placed a call to Flores's wife, Cynthia Flores, then transported Flores to Caddo Correctional Center ("CCC") for a chemical breathalyzer test. Det. Edwards testified that on the way to CCC, Flores was falling asleep. The interaction in the Intoxilyzer room at CCC was recorded with a camera system in the room, and the footage was introduced and played for the jury. Flores refused to sign the chemical rights form and refused to submit to the test.

Deputy James Norwood of the Caddo Parish Sheriff's Office testified that he is employed in the patrol division and was so employed on the evening of June 24, 2016. He testified that he was dispatched to Elsie's to investigate a "subject passed out in his vehicle at the gas pump." Dep. Norwood testified that he had made over 400 DWI arrests and that he looks for indications of bloodshot eyes, swaying while standing, and an alcoholic odor coming from one's person. Dep. Norwood observed Flores swaying while standing up, and that Flores's eyes were bloodshot. He described Flores's demeanor as being "kind of a jerk." Dep. Norwood was asked by Det. Edwards to check the store for Flores's wife because Flores said his wife drove him to Elsie's. Dep. Norwood checked the truck stop and the casino but could not find Flores's wife. He also testified that he did not recall seeing any alcoholic beverages inside the vehicle when he glanced inside.

Supervisor William Tuggle of the Louisiana Department of Probation and Parole identified bills of information for docket numbers 218,487 (driving while intoxicated, third offense), and 234,985 (driving while intoxicated, fourth offense). He testified that his office supervised Flores in both of those docket numbers and stated that supervision in docket number 218,487 began on May 31, 2003, and ended on May 14, 2011, and supervision in docket number 234,985 began in October of 2006 and ended in January of 2014.

The defense called Cynthia Flores, who testified she had been married to Flores for five years. She stated she and Flores had gotten into an argument which led to Flores moving out. On the morning of June 24, 2016, Flores's brother, Keith, came over to help Flores load a trailer. Cynthia testified that Keith was driving when the two men left the house in Flores's vehicle, which is registered to Cynthia. She stated she received a call from the sheriff's department that afternoon and then went to Elsie's to pick up the truck in which Flores had been found. Cynthia testified that she initially told the officer on the phone that she had dropped Flores off at Elsie's, but then admitted to him that she had been home all day. She stated that a loud sound is made when you open the door of the truck while the keys are in the ignition. Cynthia also testified that you cannot put the truck out of park or steer the wheel when the keys are not in the ignition. She testified that she did not remember seeing any alcoholic beverages in the front cab of the truck but did remember there being a case of beer in the bed of the truck. She did not remember if any beer was missing from the case. Cynthia further testified that she and Flores have a joint banking account. When presented with her bank statement, Cynthia testified that there was a charge for $ 47.61 at Elsie's on June 24, 2016. When asked if she would lie for her husband, Cynthia said she would not. On cross-examination, Cynthia testified that Flores almost died from internal bleeding about two weeks after his arrest. Cynthia stated that she "lied" when she previously testified that she had not seen Flores drink after the arrest and that he actually stopped drinking after his hospitalization.

Robert Keith Flores ("Keith") testified that he is Flores's brother and that he went to Flores's house on June 24, 2016. He stated that he drove when the two left Flores's house and the whole time he was with Flores that day. Keith testified that he did not see Flores drink during the day. He stated that he and Flores went to Elsie's twice that day and that on the last time, he parked on the side of the store next to the gas pump. Keith testified that he and Flores argued because Flores wanted Keith to drive him to Ashdown, Arkansas. After the argument, Keith left Flores and the truck at Elsie's. Keith testified that he threw the keys over on the console and walked home, which is a mile and a half or longer away from Elsie's. On cross-examination, Keith was unable to state the address of the home he walked to after leaving Flores at Elsie's.

Paula Flores testified that the defendant is her father and that he and Keith came to her house on June 24, 2016. She stated that Flores brought her money to help her pay her rent and that she did not smell any alcoholic beverages on Flores when she hugged him. Paula testified that she saw Keith driving the truck when the two arrived and left her home. Paula also testified that she would probably lie for Flores but that she had no reason to lie for him during her testimony.

Flores testified that he did not drive his truck on June 24, 2016. He stated that he had an argument with his wife but could not remember what the argument was about. He testified that Keith came to help him remove his belongings from the home and that Keith was driving when the two left Flores's house. Flores testified that he did not have a driver's license but was eligible to get one when he put a breathalyzer in his truck. Flores stated that he would not drive because he knew that if he got another DWI, he would be looking at serious time. When asked where he and Keith went on June 24, 2016, Flores stated that the day was "real sketchy" for him. He testified he knew that his brother was driving, that they went to Wal-Mart and to his mother's house, but he did not remember going to his daughter's house. Flores testified that "the blanks in that day" are due to him being a "full-fledged alcoholic" and "nearly drinking himself to death." He stated he was later hospitalized for a tear in the bottom of his esophagus and the top of his stomach caused by alcohol consumption.

Flores maintained that he had not had anything to drink that day. He testified that Keith was still driving when they got to Elsie's and that Keith later left. Flores recalled going into Elsie's and buying a 30-pack of beer and flavored vodka. When shown the checking account statement from Barksdale Federal Credit Union, he confirmed that the charge for $ 47.61 was for the purchase of beer and vodka. Flores testified he then went back to the truck and started drinking. He stated he was in and out of the truck several times that evening and drank enough that he was blacking out. Flores stated that he was sitting in the driver's seat and that he did not know where the keys were but that he had not put any keys in the ignition. He testified that he did not try to move the truck in any way. Flores also testified that he drank all of his life but is not currently drinking. On cross-examination, Flores testified that he had not enrolled in any alcoholic rehabilitation as of June 24, 2014.

Sufficiency of the Evidence

In his first assignment of error, Flores asserts the jury did not have sufficient evidence to convict him of operating a vehicle while intoxicated, fourth offense, because the keys to the vehicle were not in the ignition when he was approached by officers and there was no evidence he had otherwise operated the vehicle. Flores further asserts that even if he had driven the vehicle to Elsie's, the lack of evidence showing whether he became intoxicated prior to or after operating the vehicle prohibited the jury's guilty verdict. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v.Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. Ward, supra . The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442 ; Ward, supra . 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. Ward, supra . The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Henry , 46,406 (La. App. 2 Cir. 8/10/11), 73 So.3d 958.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717.

In cases resting on circumstantial evidence, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis fails, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Lewis , 2017-0081 (La. 10/18/17), 236 So.3d 1197, citing State v. Captville , 448 So.2d 676 (La. 1984). The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id. ; Henry , supra .

The offense of operating a vehicle while intoxicated is defined, in part, as the operation of any motor vehicle when the operator is under the influence of alcoholic beverages. La. R.S. 14:98. The term "operating" is broader than the term "driving." To "operate" a vehicle in Louisiana, a person must exercise or have exercised "some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion." State v. Lewis , supra , citing State v. Rossie , 1998-1253 (La. App. 5 Cir. 4/14/99), 734 So.2d 102. It is not necessary that the actions have any effect or cause the vehicle to move. State v. Traylor , 51,901 (La. App. 2 Cir. 2/28/18), 246 So.3d 665.

Here, based upon a review of the record in its entirety, we decline to find the presence of the keys on the center console while Flores was intoxicated in the driver's seat constituted operating the vehicle in the context of La. R.S. 14:98. Specifically, we find the circumstances do not support the finding that at the time he was approached by law enforcement, Flores was exercising control over the vehicle for the purpose of putting it into motion. However, when combined with the remaining evidence, the circumstantial evidence that Flores operated the vehicle while intoxicated, viewed in the light most favorable to the prosecution, nonetheless, supports the jury's verdict.

In order to convict, the jury had to determine that the evidence excluded every reasonable hypothesis of innocence. In an appropriate exercise of discretion and assessment of the credibility of witnesses, a reasonable trier of fact could have rejected the version of events presented by Flores and his witnesses-that Keith drove Flores to Elsie's, left him there with the truck, walked home, and that Flores then purchased alcohol at Elsie's and became drunk while sitting in the parked truck, without ever placing the keys in the ignition. It is reasonable that a rational factfinder could have found Flores and his witnesses lacked credibility. First, the totality of their testimony was unquestionably self-serving. Flores and his family all had an obvious interest in Flores's acquittal.

Second, their testimony was unreliable. Flores himself lied repeatedly to the officers about Cynthia driving him to Elsie's. Cynthia also initially lied about driving him to the store. Paula even testified that she probably would lie for her father. Keith could not state his home address, which he testified he walked to after leaving Flores at Elsie's.

Furthermore, though Flores refused to submit to the field sobriety and breathalyzer tests, the videos from the MVS and substation, which were played for the jury, corroborated the officers' testimony that Flores was unmistakably intoxicated at the time of their arrival. The possibility that Flores arrived at Elsie's sober, by way of his brother, wife, or someone else, purchased alcohol inside the store, then sat in the truck at the gas pump in the front of the store for a length of time sufficient to reach the level of intoxication evident in the videos is not sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. While there are conceivably additional exculpatory theories-Keith drove Flores, already intoxicated, to Elsie's then left him there and walked home or Flores drove himself, sober, to Elsie's and then became drunk after his arrival-a reasonable juror, likewise, would not have abused his or her discretion in rejecting these hypotheses and determining they were not sufficiently reasonable to prohibit a finding of guilt.

Based on the record, a rational factfinder could have found that the only sufficiently reasonable explanation of events was that Flores drove the vehicle himself to Elsie's while intoxicated. Moreover, there was sufficient proof at trial that the cleansing period had not lapsed between Flores's previous convictions for driving while intoxicated. Therefore, viewed in the light most favorable to the prosecution, all of the elements of driving while intoxicated, fourth offense, were proven beyond a reasonable doubt. This assignment of error is without merit.

Jury Charge

Flores asserts in his second assignment of error that the trial court failed to properly instruct the jury and thereby denied him of his right to be advised of the nature and cause of the accusation against him and his rights to due process. Flores argues that when the trial court refused to give a clarifying instruction to the jury as requested, it changed one of the elements of La. R.S. 14:98, near the end of the trial without giving prior notice to Flores of the nature and cause of the accusation. We disagree.

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. La. C. Cr. P. art. 801(C). It is well established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Colby , 51,907 (La. App. 2 Cir. 5/30/18), 244 So.3d 1260 ; State v. Holder , 50,171 (La. App. 2 Cir. 12/9/15), 181 So.3d 918, writs denied , 2016-0092 (La. 12/16/16), 211 So.3d 1166, 2016-0056 (La. 12/16/16), 212 So. 3d 1176.

A jurisprudential exception to the contemporaneous objection rule exists in cases where there have been fundamentally erroneous misstatements of the essential elements of the charged offense. In such cases, the Louisiana Supreme Court has adopted the view that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the fact-finding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates. "Such an error is of such importance and significance as to violate fundamental requirements of due process." State v. Williamson , 389 So.2d 1328 (La. 1980). The exceptions to Article 801's objection requirement exist in situations "where the error causes such a fundamental defect in the proceedings that the defendant is deprived of a fair trial." Id.

The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. La. C. Cr. P. art. 806 ; State v. Lee , 39,088 (La. App. 2 Cir. 10/27/04), 888 So.2d 305. Additionally, it is not error when a trial court declines to give an additional jury instruction as to a matter outside the scope of the jury's request for additional instructions. State v. Price , 2002-0360 (La. App. 4 Cir. 4/2/03), 842 So.2d 491, writs denied , 2003-1322 (La. 11/21/03), 860 So.2d 542, 2003-1517 (La. 12/12/03), 860 So.2d 1151.

The relevant portion of the jury charge reads:

The term "operating" is broader than the term "driving." In order to operate a motor vehicle, the defendant must have exercised some control or manipulation over the vehicle - such as steering, backing or any physical handling of the controls - for the purpose of putting the car in motion. It is not necessary that these actions have any effect on the engine, nor is it essential that the car move in order for the State to prove the element of operation.

The trial court repeated this same portion of the charge to the jury in response to their written inquiry. This language directly tracks the language sanctioned in jurisprudence; thus, it clearly does not contain a fundamentally erroneous misstatement of the essential elements of operating a vehicle while intoxicated. See Traylor , supra at 667 ; State v. Presson , 43,215 (La. App. 2 Cir. 6/4/08), 986 So.2d 843 ; City of Bastrop v. Paxton , 457 So.2d 168 (La. App. 2 Cir. 1984). Therefore, no due process violation has been shown and the jurisprudential exception to the contemporaneous objection rule does not exist in this case. After extensive discussion between the trial court and counsel from both sides and multiple drafts of the jury instructions, Flores did not object to the instructions prior to the jury retiring for deliberation. Accordingly, with no showing of due process violation, Flores's objection to the jury instructions is waived.

Further, under La. C. Cr. P. art. 806, the trial court was correct in refraining from answering the jury's question. The question asked by the jury -"Does the definition, by law, of 'control of a vehicle' include their sitting in driver's side with access to keys of vehicle?"-was so specific that answering could have determined the outcome of the case, which was the jury's duty as the trier of fact. The trial court's decision to reread the original jury charge was the least harmful option to both the state and the defense. Therefore, this assignment of error is without merit.

Sentence

In his final assignment of error, Flores argues the sentence imposed by the trial court is excessive because the trial court failed to recognize the futility of a lengthy imprisonment considering he had recently been diagnosed with a medical condition that could result in his death in the event he consumed any more alcoholic beverages. Flores further asserts his sentence was excessive because the trial court inappropriately considered certain factors as aggravating. We disagree.

The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of its discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 2015-0608 (La. 1/25/16), 184 So.3d 1289.

In the absence of a motion to reconsider sentence filed in the trial court, an appellate court's review is limited to the bare claim of constitutional excessiveness. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Smith , 46,343 (La. App. 2 Cir. 6/22/11), 71 So.3d 485, writ denied , 2011-1646 (La. 1/13/12), 77 So.3d 950. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith , 2001-2574 (La. 1/14/03), 839 So.2d 1 ; State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 2016-0959 (La. 5/1/17), 219 So.3d 332. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

Upon a conviction of a fourth or subsequent offense violation of La. R.S. 14:98, the offender shall be fined $ 5,000.00 and imprisoned, with or without hard labor, for not less than 10 years nor more than 30 years. Two years of the sentence of imprisonment shall be imposed without benefit of parole, probation, or suspension of sentence. La. R.S. 14:98.4(A)(1).

Flores is limited to a constitutional excessiveness review due to his failure to file a motion to reconsider sentence. In sentencing Flores, the trial court meticulously followed the criteria set forth in La. C. Cr. P. art. 894.1, and considered both mitigating and aggravating factors and circumstances. The trial court noted that while Flores was arrested in a parking lot, it did not find Flores's theory of the case compelling or truthful and believed, instead, that the state had proven Flores had operated the vehicle on the public roadway prior to arriving there, which created a risk of death or great bodily harm to all other motorists. The trial court also rejected the testimony regarding Flores's medical condition as a sufficient guaranty that Flores's criminal conduct is unlikely to recur. Significantly, the trial court noted Flores's multiple previous convictions for operating a vehicle while intoxicated, including a prior conviction of operating a vehicle while intoxicated, fourth offense, as well as his failure in the past to satisfy the requirements of probation and parole. The trial court also noted a prior conviction for domestic abuse battery. The trial court further stated it had examined the sentences of similarly situated defendants.

Flores was sentenced to a midrange term of 20 years' imprisonment at hard labor, two years to be served without the benefit of parole, probation, or suspension of sentence, and a $ 5,000.00 fine. He was also given credit for time served. We find that in sentencing Flores, the trial court thoughtfully and appropriately weighed and considered both aggravating and mitigating factors. Furthermore, considering this is Flores's second conviction for operating a vehicle while intoxicated, fourth offense, the sentence imposed does not shock the sense of justice. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, John Paul Flores's conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Felicia Toney Williams, Frances Jones Pitman, Jeanette Giddens Garrett, Jeff Cox, James Mark Stephens - Writing.

Rehearing denied.

      There was no stipulation regarding whether Flores's prior three convictions qualified under La. R.S. 14:98(C)(3), which requires in part that in order to be considered in the assessment of penalties, the prior conviction must have occurred within 10 years prior to the crime for which the defendant is being tried, but periods on probation or parole for one of the prior convictions to be used shall be excluded in computing the 10-year period.


author: STONE, J.

text:
    FRANKS INVESTMENT COMPANY, L.L.C., Plaintiff-Appellant v. Melba A. SHAW and Linda Shaw Porter, Defendants-Appellees
    No. 52,636-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    COOK, YANCEY, KING & GALLOWAY, By: John T. Kalmbach, By: David J. Hemken, Shreveport, Counsel for Appellant
    SEABUAGH, JOFFRION, SEPULVADO & VICTORY, LLC, By: B. Lee Carr, Jr., Shreveport, Counsel for Appellees
    Before STONE, McCALLUM, and BLEICH (Pro Tempore ), JJ.
   STONE, J.

The plaintiff, Franks Investment Company, L.L.C. ("Franks"), appeals the trial court judgment which found that the defendants, Melba A. Shaw ("Melba") and Linda Shaw Porter ("Linda," or collectively referred to as "the Shaws"), acquired ownership of a disputed strip of land by virtue of 30-years' acquisitive prescription. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This suit began as a boundary action instituted by Franks against the Shaws. Franks and the Shaws own neighboring tracts of land along Leonard Road in southern Caddo Parish. The plaintiff owns 432.617 acres of undeveloped land used for farmland ("Franks Tract"). The defendants own an adjacent 3-acre tract used for residential purposes ("Shaw Tract"). Both Franks and the Shaws' predecessors in interest purchased to a common boundary line represented by an old fence line. There is a disputed portion of land (the "disputed area") encompassing what the plaintiff asserts is the southeast portion of the Franks Tract, and what the defendants contend is the western portion of the Shaw Tract.

The Shaw Tract was originally purchased on January 20, 1977 by the Shaws' parents, William Shaw ("William") and Opal Shaw ("Opal," or collectively referred to as "the elder Shaws"), and the owners of the Franks Tract was owned by the Webb family. The property description in the elder Shaws' deed was based on a 1960 survey prepared by Paul Barber ("1960 Barber Survey"). The 1960 Barber Survey showed the western boundary of the Shaw Tract to be along a fence line. Currently, the fence identified in the 1960 Barber Survey no longer exists; however, an old fence post and "H brace" remains visible.

In addition to the old fence line, a north-south row of 50-plus-year-old pecan trees runs along the common boundary line between the two tracts. After the purchase, the elder Shaws began construction of a house, wooden metal tractor shed, and well. The construction was completed in 1978, and the tractor shed was built partially on the area in dispute. They also used the disputed area to go from Leonard Road to the northern portions of the Shaw Tract.

In 1977, the elder Shaws had three adult children: Melba, Linda, and William A. "Toby" Shaw ("Toby"), who visited but did not live on the property. After William passed away in 1987, Opal continued to live on the property and eventually remarried Jim Rhinehart ("Mr. Rhinehart").

Franks did not acquire the Franks Tract until 1998. At the time of acquisition, Franks conducted a boundary survey which showed the common boundary between the Franks Tract and the Shaw Tract to be the same north-south fence line identified in the 1960 Barber Survey. Since the purchase of the Franks Tract, Franks has leased the surface to various tenant farmers and the minerals to various mineral lessees.

Between the years 2003 and 2004, the City of Shreveport ("City") and the Port of Caddo/Bossier entered into a joint venture for the installation of a 24-inch water main located from Highway 1 to Flournoy Lucas Road. Franks and Opal executed servitude agreements of their respective tracts with the City in January and February of 2003.

Once Opal died in 2011, the three adult Shaw children became co-owners of the Shaw Tract. Also, in 2011, Melba moved into the house located on the Shaw Tract where she has continued to reside to this day. In 2013, Franks' property manager, Jacob Herrington ("Herrington"), observed a dirt road or worn area on the Franks Tract immediately west of the row of pecan trees, and notified the CEO of Franks. They subsequently hired a licensed surveyor, Doug Filler ("Filler"), who reviewed the property, staked the property line, and generated a survey plat showing the boundary between the Franks Tract and the Shaw Tract ("2013 Filler Survey"). On January 9, 2014, Herrington sent the 2013 Filler Survey to Melba and pointed out that a portion of the Shaws' shed appeared to straddle the boundary line and proposed a meeting to discuss this issue.

Subsequently, on January 27, 2014, the three Shaw children sent Herrington a letter informing him that they have occupied the property up to the pre-existing fence line for more than 30 years. Over a month later, on March 11, 2014, Toby sold his one-third interest in the Shaw Tract to Melba using the same property description contained in his parents' 1977 deed. On July 10, 2014, Herrington sent a letter to Melba explaining: (1) that the 2013 Filler Survey and the 1960 Barber Survey fully reconciled with each other; (2) that the two surveys established a common, north-south boundary line along the row of pecan trees (where the old fence line was previously located); and (3) that there is no evidence of any other existing or former fence line between the two tracts.

Photographs of the remnants of the old fence and a copy of the 2013 Filler Survey with a superimposed image of the 1960 Barber Survey were also enclosed with the letter. Herrington indicated that Franks intended to build a fence between the two tracts. Herrington further offered to move the encroaching shed, at Franks' expense, to a location of the Shaws' choosing but the Shaws refused. On April 19, 2016, Franks filed a boundary action citing Melba and Linda as defendants, and requesting that the court fix the common boundary line between the two tracts in accordance with the 2013 Filler Survey. On May 13, 2016, the Shaws answered the petition, contending that the boundary line, per the parties' respective titles, was farther to the west of the boundary line claimed by Franks.

Trial was held on March 16 and 17, 2017, where a total of eight witnesses testified before the court. During Franks' case in chief, Herrington was the first witness to testify. He testified that he first became concerned about a possible encroachment issue after noticing a dirt roadway had been utilized. He then notified his boss, and hired Filler to conduct a boundary survey. Based on the survey rendered by Filler, Herrington identified the property line between the Franks Tract and the Shaw Tract as an old, pre-existing fence line, and he stated that he found part of an old 'H brace' fence post at the northwest corner of the Shaw Tract. He also testified that the Filler survey showed a shed straddling the property line he drew.

Filler also appeared at trial and testified regarding the survey he conducted for Franks. He testified that the only survey he reviewed before conducting his own survey was the 1999 survey conducted by Ben Atchley which was provided to him by Franks. Based on his review of the disputed area, Filler found that the boundary between the Franks Tract and the Shaw Tract extends north on the adjacent Hearn Tract and Ervin Tract. Moreover, he unequivocally stated that he did not see any other physical evidence that would suggest a different property line than what he identified. Filler also testified that he found discrepancies between his own survey and the 1960 Barber Survey relied on by the defendants. Specifically, he found that the surveys were inconsistent in terms of bearings, and each survey cited a different location of the center line.

Franks' next witness to testify was the resident project representative for the Southern Loop Water Main project, Andrew Runnels. He testified that he was familiar with the servitude agreements between the City and the then-owners of the Franks Tract and the Shaw Tract. He was physically present on both the Franks Tract and the Shaw Tract and observed contractors install a 24-inch water main from Highway 1 to Flournoy Lucas Road which runs along the north side of Leonard Road.

According to his testimony, the water main pipeline was bored across the entire length of the Shaw Tract, including halfway between a pecan tree and manhole located in the disputed area. On cross-examination, he stated that the Shaws' agreement called for the contractors to bore under only one pecan tree. However, at Mr. Rhinehart's request, they actually bored under the entire property to ensure that there would be no damage to the Shaw Tract. During the two-year period when construction was taking place on the Shaw Tract, Mr. Rhinehart would also periodically inspect the disputed area to ensure that there was no damage to his pecan trees.

The remaining five witnesses to testify were all members of the Shaw family: Toby, Linda, Melba, Royal Rives, and Joseph W. Porter, III. In large part, the substance of each of their testimonies is identical. Each Shaw family member testified that they genuinely believed that they possessed and owned beyond the wooden metal shed located in the disputed area. Furthermore, they also testified that William built the family home and wooden metal tractor shed in 1978, and they have used and maintained the disputed area since 1977. The Shaws' maintenance of the disputed area included planting and mowing St. Augustine grass up to the crop line, picking up tree limbs, and installing a culvert in the dirt road. Moreover, the Shaws used the disputed area for a variety of events and occasions, including annual Easter egg hunts, pig roasts, crawfish boils, cookouts, and overflow parking.

At the conclusion of trial, the trial court invited post-trial briefs. On October 20, 2017, the trial court rendered a written judgment finding that the Shaws acquired ownership and adversely possessed the disputed area up to the crop line for themselves in an open, continuous, public, unequivocal, and uninterrupted manner for over 30 years. Franks lodged this instant suspensive appeal.

DISCUSSION

On appeal, Franks has raised five assignments of error. Because the first four assignments of error involve the issue of acquisitive prescription, they will be considered together. The issue before this Court is whether the trial court was manifestly erroneous in finding that the Shaws' activities on the disputed area were sufficient to constitute open, public, unequivocal, and peaceable possession, in light of the manifest error standard of review.

Applicable Law

Immovable property may be acquired by thirty years acquisitive prescription. La. C.C. art. 794 ; Ewald v. Hubbard , 31,506 (La. App. 2 Cir. 3/12/99), 737 So.2d 858, writ denied 99-1289 (La. 6/25/99), 746 So.2d 602 ; Bennett v. La. Pacific Corp. , 29,598 (La. App. 2 Cir. 5/9/97), 693 So.2d 1319, writ denied , 97-1552 (La. 10/3/97), 701 So.2d 199. The possessor need not have just title to the property or be in good faith. Bennett v. La. Pacific Corp., supra.

The party seeking title to a tract of land through acquisitive prescription bears the burden of proof. Fallin v. Pesnell , 27,814 (La. App. 2 Cir. 1/24/96), 667 So.2d 581 ; Livingston v. Unopened Succession of Dixon , 589 So.2d 598 (La. App. 2 Cir. 1991). To acquire possession, one must intend to possess as owner and take corporeal possession of the thing. La. C.C. art. 3424. One is presumed to intend to possess as owner unless he began to possess in the name of and for another. La. C.C. art. 3427.

The intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. Harper v. Willis , 383 So.2d 1299 (La. App. 3 Cir. 1980), writ denied , 390 So.2d 202 (La.1980).

Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. The party alleging acquisitive prescription must establish that his possession has been continuous and uninterrupted, peaceable, public and unequivocal. La. C.C. art. 3476 ; Pace v. Towns , 33,071 (La. App. 2 Cir. 4/5/00), 756 So.2d 680 ; Bowman v. Blankenship , 34,558 (La. App. 2 Cir. 4/4/01), 785 So.2d 134, writ denied , 2001-1354 (La. 6/22/01), 794 So.2d 794.

One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses. La. C.C. arts. 3426 ; 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. Brunson v. Hemler , 43,347 (La. App. 2 Cir. 8/13/08), 989 So.2d 246, 249-50, writ denied , 2008-2297 (La. 12/12/08), 996 So.2d 1119. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. La. C.C. art. 3426, comment (d), Revision Comments-1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 La. Civ. Law Treatise (2d ed. 1980).

The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Conway v. Crowell Land & Mineral Corp ., 93-1158 (La. App. 3 Cir. 4/6/94), 635 So.2d 544, writ denied , 94-1198 (La. 7/1/94), 639 So.2d 1166 ; Hill v. Richey , 221 La. 402, 59 So.2d 434 (1952) ; Brunson v. Hemler, supra.

Acquisitive prescription is interrupted when possession is lost. The interruption is considered never to have occurred if the possessor recovers possession within one year or if he recovers possession later by virtue of an action brought within one year. La. C.C. art. 3465 ; Bowman v. Blankenship, supra.

Standard of Review

Whether or not disputed property has been possessed for 30 years without interruption is a factual issue and will not be disturbed on appeal absent a showing of abuse of discretion or manifest error. Bennett v. La. Pacific Corp., supra ; Owens v. Smith , 541 So.2d 950 (La. App. 2 Cir. 1989) ; Luffey Timber Co., L.L.C. v. Florence , 47,482 (La. App. 2 Cir. 9/26/12), 106 So.3d 596 ; Beals v. New Fellowship Missionary Baptist Church of Delhi, Inc. , 51,868 (La. App. 2 Cir. 2/28/18), 246 So.3d 701.

With regard to findings of fact based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact's findings. Knight v. Tucker , 50,993 (La. App. 2 Cir. 11/16/16), 210 So.3d 407, writs denied , 2017-0241, (La. 4/7/17), 218 So. 3d 109 ; Beals, supra. 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." Knight, supra ; Beals, supra at 708.

To reverse a factfinder's determination under the manifest error standard, an appellate court must engage in a two part-inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and (2) the court must further determine that the record establishes a finding that is clearly wrong. Middlebrooks v. City of Bastrop , 51,073 (La. App. 2 Cir. 1/11/17), 211 So.3d 1231, writ denied, 2017-0286 (La. 5/1/17), 219 So.3d 331 ; Beals, supra.

Analysis

From our review of the record, we cannot conclude that the trial court was manifestly erroneous or clearly wrong in finding that the defendants and their ancestors in title possessed the property for over 30 years and that the possession was continuous, uninterrupted, peaceable, public and unequivocal. More specifically, we find that the uses described in the trial court's written opinion were sufficient to support adverse possession of the disputed area for over 30 years.

In this case, the defendants had the burden of proving that they acquired ownership of the disputed area through adverse possession in excess of 30 years. At trial, witness testimony established that the Shaws corporeally possessed the disputed area since 1977. Witnesses for both the plaintiff and the defendants testified that the wooden metal tractor shed was built on or around 1978 by William and encroached on the disputed area. More importantly, the doors for the wooden metal shed are facing west. Thus, the only method that the defendants had to access the shed is by traversing the disputed area.

Moreover, multiple witnesses for the Shaws testified that they spent countless weekends mowing the entire Shaw Tract, picking up limbs; picking and selling pecans; hosting Easter egg hunts, pig roasts, cookouts, and crawfish boils; and parking vehicles and farm equipment in the disputed area. From our view, Franks appears to have been willfully unaware of any uses of the disputed area until 2013 which was 11 years after it purchased the Franks Tract and 36 years after the elder Shaws purchased the Shaw Tract. The trial court is afforded great deference in accepting or rejecting witness testimony, and it is very evident that the trial court was within its great discretion in accepting the testimony of those witnesses who established that the Shaws had corporeally possessed the disputed area for over 30 years.

However, Franks argues that the Shaws have made unequivocal admissions through the 2014 letter and witness testimony that indicate they did not intend to possess the disputed area as owner. We disagree. First, pursuant to Article 3427, the defendants' intent to possess as owner is presumed and there is no evidence in the record that reflects the Shaws were possessing in the name of and for another. Next, the record is replete with evidence that indicates the Shaws have always believed that the disputed area was a part of the Shaw Tract in its entirety, including the installation of a culvert on the dirt road and the directional placement of the shed doors. Finally, the alleged "admissions" made by the Shaws fail to negate their intention to possess the disputed area as owner. While testifying, Toby stated that the Shaws did not intend to own what was not theirs. However, we find that their intention is axiomatic from that simple statement. It unambiguously implies the Shaws' honest and genuine belief that they owned the disputed area, in light of the activities they conducted on it.

Post-Trial Survey

In its remaining assignment of error, Franks argues that the trial court committed a clear and reversible error because the post-trial survey arbitrarily creates boundaries not supported by the record. We disagree.

The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession. La. C.C. art. 792.; La. C.C.P. art. 3693. One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. La. C.C. art. 531.

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794.

The issue of post-trial surveys conducted after trial was addressed by this Court in Roy v. Rasbury , 425 So.2d 1284 (La. App. 2 Cir. 1982), writ denied , 430 So.2d 78 (La. 1983), where this Court held that because the trial court essentially described the boundary in its written reasons for judgment, the survey conducted after the trial was merely the performance of a ministerial duty.

Boundary location is a question of fact and the determination of its location by the trial court should not be reversed absent manifest error. Pace v. Towns, supra ; Fallin v. Pesnell, supra ; Bowman v. Blankenship, supra.

To reiterate, the Shaws have successfully established their ownership of the disputed area by 30 years' acquisitive prescription; therefore, the boundary between the Franks Tract and the Shaw Tract must be fixed according to the limits established by possession. In its written opinion, the trial court concluded that the defendants adversely possessed the disputed area up to the crop line. Moreover, it is apparent from the record that the trial court heavily relied on evidence presented at trial by the defendants in making such a finding. Witness testimony established that the Shaws planted and mowed St. Augustine grass up to the crop line. Thus, the crop line created a natural boundary which gave notice of the character and extent of the Shaws' adverse possession.

Incidentally, the trial transcript also revealed that although Filler was a licensed surveyor, Franks failed to designate him as an expert witness, which would have allowed him to offer his opinion regarding the location of the boundary at trial. Instead, his testimony only concerned his own findings based on the survey he conducted. Beyond Filler's lay testimony, the record is lacks additional evidentiary support offered by the plaintiff at trial in support of an alternative boundary location.

Based on our review of the record, including the trial court judgment, we find that the survey was simply an illustration of the bounds described in the judgment. The language of the written judgment itself clearly stated that the survey is "attached hereto and made a part hereof." Consequently, since this case was initiated as a boundary action, the trial court performed its ministerial duty to set the boundary between the Franks Tract and Shaw Tract. See La. C.C.P. art. 3693 ; Roy v. Rasbury , supra. Therefore, under these circumstances, we cannot conclude that the trial court erred in incorporating and attaching the post-trial survey to its judgment.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court which found that the Shaws acquired ownership of the disputed area as a result of acquisitive prescription of 30 years. Costs of this appeal are assessed to the appellants, Franks Investments, L.L.C.

AFFIRMED.

      The term "pig roasts" is referred to as "Cochon de Lait" in the trial court record.