author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Rye G. COOPER v. Elizabeth L. CHAMBERLAIN
    Rye G. Cooper v. Elizabeth L. Chamberlain
    Rye G. Cooper v. Elizabeth L. Chamberlain
    Rye G. Cooper v. Elizabeth L. Chamberlain
    NO. 2018-CA-0617 NO. 2018-CA-0618 NO. 2018-CA-0619 NO. 2018-CA-0620
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2018
    DAVID M. PRADOS, ABIGAIL F. GERRITY, LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139, Counsel for Plaintiff/Appellant
    BENNETT WOLFF, WOLFF & WOLFF, 3017 21st Street, Suite 100, Metairie, Louisiana 70002-4939, Counsel for Defendant/Appellee
    (Court composed of Chief Judge James F. McKay III, Judge Roland L. Belsome, Judge Paula A. Brown )
   JAMES F. MCKAY III, CHIEF JUDGE

In this child custody case, the father, Rye G. Cooper ("Mr. Cooper"), appeals the February 27, 2018 judgment allowing the mother, Elizabeth L. Chamberlain ("Ms. Chamberlain"), to relocate with their minor son to Nashville, Tennessee. Mr. Cooper also appeals the April 20, 2018 judgment, which was rendered in connection with the granting of his motion for new trial. We affirm both judgments.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The parties were married on January 3, 2012. Their son was born on April 29, 2012. On June 9, 2017, Mr. Cooper filed a petition for divorce. A consent judgment for interim custody was issued on November 2, 2017, wherein the parties agreed to exercise shared, joint legal custody of the minor child. On November 13, 2017, Ms. Chamberlain filed a motion for relocation of the minor child to Nashville, Tennessee, where she was offered a post-doctoral fellowship at Vanderbilt University. Ms. Chamberlain has a Ph.D. in Earth and Environmental Science, specializing in luminescence dating.

Mr. Cooper objected to the relocation, and the matter was tried on January 8, 29 and 30, 2018. A judgment and separate reasons for judgment was rendered on February 27, 2018, granting Ms. Chamberlain's motion for relocation. The judgment further awarded joint custody, with Ms. Chamberlain designated as the domiciliary parent. A summer visitation schedule was also established, with Mr. Cooper receiving a block of time with his son. Finally, the judgment ordered Mr. Cooper to submit to random drug and alcohol screenings.

Following a hearing on Mr. Cooper's motion for new trial, the trial court rendered a judgment on April 20, 2018, amending the February 27, 2018 judgment to provide for a more specific plan of implementation/visitation schedule, and to address other ancillary matters in connection with the relocation of the minor child. All other aspects of the February 27, 2018 judgment remained in effect.

Mr. Cooper's appeal from the February 27, 2018 judgment and the April 20, 2018 judgment followed. He asserts the following assignments of error:

1. The trial court erred in denying Mr. Cooper's motion to apply the uncalled witness rule when Ms. Chamberlain failed to call her mother, whom she listed as a witness;
2. The trial court erred in denying Mr. Cooper's motion for involuntary dismissal at the conclusion of Ms. Chamberlain's case;
3. The trial court erred in granting Ms. Chamberlain's motion to relocate the minor child;
4. Alternatively, the trial court erred in failing to provide an adequate plan of implementation of joint custody;
5. The trial court erred in designating Ms. Chamberlain the domiciliary parent, when that issue was not before the court; and
6. Alternatively, the trial court erred in failing to apply the custody factors set forth in La. C.C. art. 134.

DISCUSSION

Standard of Review

"A trial court's determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion." Curole v. Curole , 2002-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096. "In conducting our review to determine whether the district court abused its discretion, we must accept each factual finding the district court made in arriving at its conclusion, unless a particular factual finding is manifestly erroneous." State ex rel. Dept. of Social Services v. Whittington , 2015-0118-119, p. 3 (La. App. 4 Cir. 5/18/16), 193 So.3d 1234, 1237 (citing LaGraize v. Filson, 2014-1353, p. 15 (La. App. 4 Cir. 6/3/15), 171 So.3d 1047, 1054 ).

Assignment of Error No. 1 : Failure to Apply the Uncalled Witness Rule

At the conclusion of Ms. Chamberlain's case, Mr. Cooper motioned the court to apply the adverse presumption against Ms. Chamberlain because she did not call her mother to testify despite listing her as a witness. The trial court denied the motion.

Ms. Chamberlain testified that her mother would be moving to Nashville with her to assist in caring for the minor child. Ms. Chamberlain's mother did not testify. Mr. Cooper questions whether Ms. Chamberlain's mother will relocate to Nashville, because she lives in Wisconsin on a farm that she owns with her husband.

In Taylor v. Entergy Corp. , 2001-0805, pp. 14-15 (La. App. 4 Cir. 4/17/02), 816 So.2d 933, 941, this Court explained the uncalled witness rule as follows:

The "uncalled witness" rule has been defined as an adverse presumption that arises when "a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence" and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof , § 4.3 (1999). A party's failure to call such witnesses gives rise to the presumption that "the witnesses' testimony would be unfavorable to him." Id. Although the advent of modern, liberal discovery rules has been recognized to limit this rule, it "remains viable." Id. Indeed, this court has recognized this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. Stewart v. Great Atlantic and Pacific Tea Co. , 657 So.2d 1327, 1330 (La. App. 4 Cir. 1995) ; Gurley v. Schwegmann Supermarkets, Inc. , 617 So.2d 41, 44 (La. App. 4 Cir.1993). We have also noted that "[t]he court may consider this presumption as it would any other relevant evidence in the case." Id.

The Louisiana Supreme Court has stated that "[a]n adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case." Driscoll v. Stucker, 2004-589, p. 18 (La. 1/19/05), 893 So.2d 32, 47 (citation omitted).

As this Court further explained in Moretco, Inc. v. Plaquemines Par. Council , 2012-0430, p. 18 (La. App. 4 Cir. 3/6/13), 112 So.3d 287, 296-97 (citations omitted),

Whether to apply such an inference is fully within the discretion of the trial court. Roth v. New Hotel Monteleone, LLC, 2007-0549, p. 6 (La. App. 4 Cir. 1/30/08), 978 So.2d 1008, 1012. Louisiana jurisprudence has held that the trial court's failure to apply the negative inference is not an abuse of discretion under any one of these circumstances: where the witness's testimony would be cumulative; where the party seeking to avail itself of the negative inference has the burden of proof on the issue that would be addressed by the witness's testimony;
and where the witness is equally available to the opposing party. As all of these circumstances are present here, and any one would have been sufficient to justify the trial court's refusal to apply the presumption, we cannot say that the court's failure to do so was an abuse of discretion.

Upon review of the record in the present case, we find no abuse of discretion in the trial court's failure to apply the uncalled witness rule. The trial court made a credibility determination based on Ms. Chamberlain's testimony that her mother would accompany her to Nashville. Furthermore, the record reflects that Ms. Chamberlain's mother was present in New Orleans during part of the trial, and Mr. Cooper could have issued a subpoena to ensure her testimony. In sum, we find that the facts presented here do not warrant the application of the uncalled witness rule.

Assignment of Error No. 2: Denial of the Motion for Involuntary Dismissal

Mr. Cooper argues that the trial court erred in denying his motion for involuntary dismissal. Mr. Cooper made the motion at the close of Ms. Chamberlain's case, asserting that she failed to prove by a preponderance of the evidence that relocation was in the child's best interest. We find no merit in this assignment of error.

In Crescent City Cabinets & Flooring, L.L.C. v. Grace Tama Develop. Co., L.L.C., 2016-0359, pp. 8-9 (La. App. 4 Cir. 10/19/16), 203 So.3d 408, 413-14, this Court explained the well-established principles of involuntary dismissal as follows:

Following a bench trial, a defendant may move for involuntary dismissal, pursuant to La. C.C.P. art. 1672(B), when the plaintiff has shown no right to relief based upon the facts and law. Cao v. Liberty Mut. Ins. Co., 12-954, pp. 4-5 (La. App. 5 Cir. 5/30/13), 119 So.3d 725, 728 (citing Brock v. Singleton , 10-550, p. 16 La. App. 5 Cir. 3/29/11), 65 So.3d 649, 660 ). The trial court must "evaluate all the evidence and render a decision based upon a preponderance of the evidence without any special inferences in favor of the opponent to the motion." Carollo v. Carollo , 13-0010, p. 11 (La. App. 1 Cir. 5/31/13), 118 So.3d 53, 61. "Proof by a preponderance of the evidence simply means that taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not." Id. (citing Connelly v. Connelly , 94-0527, p. 14 (La. App. 1 Cir. 10/7/94), 644 So.2d 789, 798 ).
The trial court is vested with much discretion in deciding a motion for involuntary dismissal. Ragas v. Hingle , 13-1577, pp. 4-5 (La. App. 4 Cir. 7/9/14), 146 So.3d 687, 690 (citing Guidry v. City of Rayne Police Dep't , 09-664, p. 2 (La. App. 3 Cir. 12/9/09), 26 So.3d 900, 902 ). A trial court's ruling on a motion for involuntary dismissal shall not be reversed unless there is no factual basis for its finding or that finding is manifestly erroneous or clearly wrong. Cao , 12-954, p. 5, 119 So.3d at 728 ; Carollo , 13-0010 at p. 11, 118 So.3d at 61. "The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable." Carollo , 13-0010 at p. 12, 118 So.3d at 62 (citing Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880, 881 (La. 1993).

As we will discuss more fully below, the trial court considered the twelve factors required in a relocation case, and found the majority of those factors to be in favor of Ms. Chamberlain and relocation. Moreover, it is undisputed that Ms. Chamberlain's request for relocation was made in good faith. Clearly, the record establishes a factual basis for the trial court's ruling in denying the motion for involuntary dismissal.

Assignment of Error No. 3 : Granting the Motion to Relocate

Mr. Cooper argues that it is not in the child's best interest to relocate given the short-term nature of the relocation and the fact that the child has stability and consistency in New Orleans in his school, friends and extended family network. Mr. Cooper further argues that Ms. Chamberlain failed to present any evidence as to how the child's life would be enhanced by the move.

"The person proposing relocation has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child." La. R.S. 9:355.10. La. R.S. 9:355.14(A) provides twelve factors that courts are to consider in ruling on whether a contested relocation is in the best interest of a child, as follows:

(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons of each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Over the course of three days, the trial court heard testimony from Ms. Chamberlain, Mr. Cooper, Mr. Cooper's mother, Bliss Higgins, and his stepsister, Danica Gerrity. As explained in the reasons for judgment, the trial court analyzed each of the above twelve factors, finding in favor of relocation. We will address each factor as follows:

(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.

The trial court found this factor to be neutral. More specifically, the trial court noted that both parents were active in the child's life and that Mr. Cooper and Ms. Chamberlain received help from both of their families. These findings were supported by the record. It is evident from the testimony that the minor child has more regular contact with his extended family members (grandparents, aunts, uncles and cousins) on Mr. Cooper's side, as they reside in Louisiana. However, while Ms. Chamberlain does not have family residing here, the child has had frequent and ongoing contact with his maternal grandparents. The record also reflects that Ms. Chamberlain and the child (not Mr. Cooper) traveled and vacationed quite often together with Ms. Chamberlain's parents.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development.

This factor was determined to be in favor of Ms. Chamberlain. The trial court considered the parties' testimony in finding that the proposed school in Nashville (a ten minute walk from Vanderbilt University) had a similarly excellent reputation to the child's current school (Luscher Charter School). Furthermore, the trial court noted that Ms. Chamberlain has a significant history of being involved in the child's education, while Mr. Cooper neglected to attend school activities and brought the child late to school on several occasions. Ms. Chamberlain testified that her position at Vanderbilt and the close proximity of the child's school will allow her continued involvement in the child's education and school activities.

The record reflects that Mr. Cooper was unable to attend many school functions at school due to his work schedule. He testified, however, that he could have altered his work schedule on occasion but chose not to attend some school functions if he knew Ms. Chamberlain would be attending. He thought that was best given their toxic relationship.

(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.

The trial court determined that this factor favored Ms. Chamberlain, finding that she appeared committed to facilitating Mr. Cooper's visitation with the child.

As she testified, Ms. Chamberlain proposed that Mr. Cooper have eight weeks of visitation during the summer, along with school holidays and one weekend each month. She further stated that she would transport the child from Nashville to New Orleans for the visits. Additionally, Ms. Chamberlain was open to allowing Mr. Cooper to communicate with the child via Skype.

(4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.

This factor was determined to be inapplicable given the child's age.

(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.

This factor was determined to be neutral. The trial court concluded that both parents had a shared desire for the child to have a relationship with the other parent. We agree. Ms. Chamberlain and Mr. Cooper encouraged the child's relationship with the other parent.

(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

The trial court found this factor to be in favor of Ms. Chamberlain. Here, the court determined that the relocation and post-doctoral fellowship allowed Ms. Chamberlain to advance her career. The court reasoned that the advancement would benefit the minor child financially.

Ms. Chamberlain testified that Vanderbilt offers reasonably priced comprehensive health insurance for herself and the child that she could not afford while working at Tulane University. She also testified that her field of study in geology has had a very positive influence on the child. Ms. Chamberlain introduced photographs showing how the child has been introduced to many different nature related activities, particularly while traveling with his mother.

(7) The reasons of each person for seeking or opposing the relocation.

This factor was also found to favor Ms. Chamberlain, given the prestigious opportunity offered in her unique field. Mr. Cooper believed that the relocation was only in Ms. Chamberlain's best interest, not the child's best interest. He stated that he saw no need for Ms. Chamberlain to obtain further schooling when she already had several degrees. The record before us demonstrates that Ms. Chamberlain's reasons for relocation were well-founded. Moreover, while Mr. Cooper does not agree with the relocation, he does not argue that the proposed relocation was necessarily made in bad faith.

(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

The trial court found this factor to be in favor of Ms. Chamberlain. Mr. Cooper testified that he earns $55,000.00 annually, with the potential for performance bonuses, as a general manager for a custom clothing warehouse. Ms. Chamberlain was earning less than $30,000.00 per year at Tulane University. The position at Vanderbilt University pays more than $50,000.00 annually, and offers affordable health insurance. The trial court determined that the increase in Ms. Chamberlain's income will inherently benefit the minor child. Both parties testified that they received financial assistance from their respective families and that they were not always able to afford health insurance for the child.

(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.

This factor was determined to be inapplicable. The parties do not currently have any obligations pertaining to child support, spousal support or community property.

(10) The feasibility of a relocation by the objecting person.

The trial court determined that this factor favored Ms. Chamberlain, finding that is was not impossible for Mr. Cooper to find a job in Nashville given his wider array of possible employment opportunities in the clothing and restaurant industries. Ms. Chamberlain testified that Mr. Cooper considered moving to Nashville. Mr. Cooper denied this assertion, stating that he had no desire to leave Louisiana and his family.

(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.

The trial court found this factor to "significantly" weigh in favor of Ms. Chamberlain. The record demonstrates that Mr. Cooper overdosed on heroine in 2012, just a few months after the minor child was born. Alcohol and cocaine were also found in his system at the time. As a result, he attended an outpatient rehabilitation center for six months. The record also demonstrates that Mr. Cooper was involved in two traffic stops, one in December 2014, and one in January 2016. In each instance, Mr. Cooper refused to use the breathalyzer and was arrested for DUI. The second arrest occurred while Ms. Chamberlain was traveling out of the country for two months and the minor child was in Mr. Cooper's care (with the help of his family). Mr. Cooper was ordered to attend Alcoholics Anonymous meetings. In spite of attending the meetings, Mr. Cooper stated that he did not abstain from drinking alcohol one hundred percent of the time. Mr. Cooper's driver's license was reinstated less than one month before this trial.

(12) Any other factors affecting the best interest of the child.

Of concern to the court was Mr. Cooper's 10:00 a.m. to 7 p.m. work schedule. The court also expressed concern over Mr. Cooper's actions in coming home late or staying out all night along with his numerous ATM withdrawals at bars. Text messages and credit card/ATM receipts introduced into evidence confirmed Mr. Cooper's late night activities. Mr. Cooper testified that he only went out late after work or stayed at a friend's house overnight because of the toxic relationship with Ms. Chamberlain. He acknowledged that he does have drinks with friends after work.

Our review of the record supports the trial court's determination that the relocation will have positive benefits for the child. We recognize that it is not ideal for the minor child to leave his home and his close family members to move to a new city. However, given the totality of the circumstances, we find no abuse of discretion on the part of the trial court in finding that the proposed relocation was made in good faith and is in the child's best interest.

Assignment of Error No. 4 : In the Alternative, Failure to Provide an Adequate Plan of Implementation of Joint Custody.

Mr. Cooper makes four separate arguments within this assignment of error, which we discuss separately below.

i. The judgment should have set a termination date for the relocation.

Mr. Cooper maintains that the February 27, 2018 judgment granted Ms. Chamberlain's motion to relocate, yet the reasons for judgment state that she was granted the right to relocate for a period of one year. Mr. Cooper argued in his motion for new trial that the judgment and reasons for judgment should be consolidated. The April 20, 2018 judgment on the motion for new trial denied that request. We find no error in that ruling.

The trial court properly rendered a judgment and separate reasons of judgment in accordance with La. C.C.P. art. 1918. Furthermore, it is well-established that appellate courts review judgments and not reasons for judgments. Wooley v. Lucksinger , 2009-0571, 2009-0584, 2009-0585, 2009-0586, pp. 77-78 (La. 4/1/11), 61 So.3d 507, 572.

Regarding the merits of Mr. Cooper's argument, we find no error in the trial court's failure to set an end date for the relocation in the judgment. Unlike the case cited by Mr. Cooper, LaGraize v. Filson , 2014-1353, (La. App. 4 Cir. 6/3/15), 171 So.3d 1047 , the fellowship offered to Ms. Chamberlain was open ended. Ms. Chamberlain testified that she was granted the one-year fellowship with a verbal offer to extend her program pending funding. Thus, the trial court did not err in leaving the relocation open. Furthermore, the April 20, 2018 judgment provides that "the Court retains the exclusive and ongoing jurisdiction of the custodial arrangement of the minor child." Thus, either party can seek modification of the custody arrangement in this jurisdiction if a change in circumstances so warrants.

ii. The implementation plan does not provide Mr. Cooper frequent and continuing contact with the child.

Mr. Cooper argued in his motion for new trial that his summer visitation is insufficient, because out of the ten summer weeks, Ms. Chamberlain has four weeks and he has six. The trial court denied his request for additional summer visitation. However, the trial court awarded Mr. Cooper visitation in alternating years for Easter, Thanksgiving, Christmas, and New Year's. It further awarded him custody with the minor child in Nashville on any three-day weekend upon providing a 48-hour notice. Finally, Mr. Cooper was allowed to contact the minor child once per day before the child's bedtime via telephone, FaceTime or Skype.

La. R.S. 9:355(2)(a) provides that "[T]he implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents." As this Court has recognized, "[T]he primary goal of joint custody is upheld so long as the non-domiciliary parent is assured of frequent and continuing contact with the child." Moreau v. Moreau , 2015-0564, p. 10 (La. App. 4 Cir. 11/18/15), 179 So.3d 819, 826 (citations omitted). "Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children." Id. Thus, an award of joint custody does not necessarily require equal sharing of physical custody. Id.

"Child custody determinations made by the trial court are entitled to great weight and, upon appellate review, that determination will not be disturbed absent a clear showing of abuse of discretion."

Hilkirk v. Johnson , 2015-0577, p. 25 (La. App. 4 Cir. 12/23/15), 183 So.3d 731, 746 (internal citations omitted). The goal of every child custody case is to determine what is in the best interest of the child, with each case viewed based on its own particular facts and circumstances. Id. (citing Mulkey v. Mulkey , 2012-2709, p. 15 (La. 5/7/13), 118 So.3d 357 ).

Considering the particular circumstances of this case, we find that the implementation order, as amended by the trial court in the April 20, 2018 judgment, provides Mr. Cooper with frequent and continuing contact with the child. Accordingly, we find no merit in this argument.

iii. Implementation order is impermissibly vague.

Mr. Cooper argues that the April 20, 2018 judgment provides for holiday visitation, but fails to set forth specific dates or duration of the holiday custody schedule and fails to specify the travel arrangements and costs of travel. It is further argued that Ms. Chamberlain should be required to make these trips with the child to ensure that the child has a continuing relationship with Mr. Cooper.

The implementation order in the present case sets forth the summer vacation and the holiday visitation schedules. The judgment further provides that the parties shall communicate with each other concerning the pick-up and drop-off for the major holidays. Based on the forgoing, we cannot conclude that the trial court abused its discretion in failing to include the specific details sought by Mr. Cooper. Moreover, the law is clear that Mr. Cooper can seek modification of the custody order if necessary.

iv. The trial court erred in ordering Mr. Cooper to submit to random drug and alcohol screening.

Mr. Cooper avers that he should not be made to submit to drug and alcohol screenings even during the school year when the child may not again be in his custody for months. Considering the record evidence of Mr. Cooper's past issues with drugs and his two prior DUI arrests, we find no abuse of discretion on the part of the trial court in rendering this order. As in all custody cases, the best interest of the child is paramount.

Assignment of Error No. 5 : Designation of Ms. Chamberlain as the Domiciliary Parent.

Mr. Cooper asserts that the trial court improperly issued a sua sponte judgment modifying the previous stipulated judgment to name Ms. Chamberlain as the domiciliary parent, when no such request was before the court. Ms. Chamberlain's motion to relocate did not include a motion to modify custody.

In support of this argument, Mr. Cooper cites Ganaway v. Ganaway , 2017-0875 (La. App. 3 Cir. 2/28/18), 238 So.3d 540. However, Ganaway is clearly inapposite to the present case, and does not support Mr. Cooper's argument. The Ganaways exercised a joint-domiciliary custody arrangement. Ms. Ganaway filed a motion to relocate with the minor child to Texas. The trial court denied Ms. Ganaway's motion for relocation and granted a sua sponte judgment naming Mr. Ganaway as the domiciliary parent. Ganaway does not involve a situation, as in the case sub judice , where domiciliary status was modified based on the child's relocation. There was no relocation in Ganaway .

La. R.S. 9:355.17 provides:

Providing notice of a proposed relocation does not constitute a change of circumstance warranting a change of custody. Relocating without prior notice if there is a court order awarding custody or relocating in violation of a court order may constitute a change of circumstances warranting a modification of custody.
Any change in the principal residence of a child, including one not meeting the threshold distance set out in R.S. 9:355.2, may constitute a change of circumstances warranting a modification of custody . (emphasis added).

The 2012 comments to La. R.S. 9:355.17 state that "courts have discretion to modify the current custodial arrangement after any move that makes an existing custody order unfeasible."

Clearly, the child's relocation to Nashville makes the previous shared custody arrangement unfeasible, requiring a modification of custody. Moreover, in Hodges v. Hodges , 2015-0585, p. 4 (La. 11/23/15), 181 So.3d 700, 703, the Supreme Court explained that once the trial court arrives at a decision to award joint custody, La. R.S. 9:335 governs the court's determination of the details of the custody arrangement. La. R.S. 9:335 provides in pertinent part:

B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.

Under the circumstances presented here, we find no abuse of discretion on the part of the trial court in naming Ms. Chamberlain the domiciliary parent.

Assignment of Error No. 6 : Failure to Apply the Custody Factors Set Forth in La. C.C. art. 134.

Mr. Cooper argues that the trial court erred in failing to analyze this case under both La. R.S. 9:355.14 (relocation factors) and La. C.C. art. 134 (best interest of the child factors) . He maintains that the article 134 factors weigh heavily in his favor. We find no merit in this assignment of error.

"Louisiana's relocation statutes, which are based on the American Academy of Matrimonial Lawyers Model Relocation Act, also retain the 'best interest of the child' standard as the fundamental principle governing decisions made pursuant to its provisions." Curole, 2002-1891, p. 4, 828 So.2d at 1096. This list of factors "parallels the listing of multiple factors found in La. C.C. art. 134, with special emphasis on the logistical and economic circumstances associated with a relocation, particularly an out-of-state relocation." Bonnecarrere v. Bonnecarrere , 2011-0061, p. 9 (La. App. 1 Cir. 7/1/11), 69 So.3d 1225, 1233 (citing Gray v. Gray , 45,826, p. 8 (La. App. 2 Cir. 11/17/10), 55 So.3d 826, 834 (on rehearing) ).

The record before us demonstrates that while only the twelve relocation factors set forth in La. R.S. 9:355.14 were specifically addressed in the reasons for judgment, the trial court overwhelmingly considered that child's best interest in ruling in favor of relocation. Thus, we cannot conclude that the trial court failed to consider the relevant factors of La. C.C. art. 134. Moreover, in determining the best interest of a child, it is well established that the list of factors provided in La. C.C. art. 134"have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. The court is not required to analyze mechanically all of the dozen factors; rather the court should balance and weigh the factors in view of the evidence presented." Hanks v. Hanks , 2013-1442, p. 9 (La. App. 4 Cir. 4/16/14), 140 So.3d 208, 215 (citation omitted).

CONCLUSION

After a thorough review of the record, and placing great weight on the trial court's findings of fact, we conclude that the trial court properly permitted the relocation. Additionally, for the reasons stated above, we find no error in the designation of Ms. Chamberlain as the domiciliary parent. Finally, we find no error in the trial court's implementation plan, as it provides Mr. Cooper with frequent and continuing contact with the child. Accordingly, we affirm the February 27, 2018 and April 20, 2018 judgments.

AFFIRMED

BELSOME, J., CONCURS WITH REASONS

BELSOME, J., CONCURS WITH REASONS.

I respectfully concur in the majority's opinion to affirm the trial court's judgment authorizing the relocation of the parties' minor child to Nashville, Tennessee with his mother, Ms. Elizabeth Chamberlain. However, while I hesitantly agree with the result reached in this case, I find that some of the relocation factors weighed heavily in favor of the father.

As correctly stated by the majority, there are twelve relocation factors to be considered. Eight of the factors were weighed in favor of Ms. Chamberlain; four were found to be either inapplicable or neutral; and none were found to be in favor of Mr. Cooper. Such an analysis belies the evidence in the record.

The undisputed evidence reflects the child had a strong paternal family support system in Louisiana, including his father, grandparents, aunts, cousins and extended family. In addition, he also had an established network of school friends. Accordingly, at a minimum, the first two relocation factors concerning significant persons in the child's life and the impact on physical and emotional development weigh in favor of Mr. Cooper.

Nevertheless, given the analysis of the other factors, I agree with the majority's finding that the trial court did not abuse its discretion in authorizing the relocation. For these reasons, I concur in the majority's opinion to affirm the trial court's judgment.

      Mr. Cooper concedes that Ms. Chamberlain's proposed relocation was made in good faith.

      La. C.C.P. art. 1918 provides: "A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment."

      In LaGraize , the mother was admitted into a three-year Ph.D. program in Venice, Italy. The trial court permitted the mother's 3-year relocation with the minor child.

      Pursuant to the November 2, 2017 consent judgment, the parties agreed to share joint legal custody, but did not designate a domiciliary parent.

      The applicable version of La. C.C. art. 134, prior to its amendment in 2018, enumerates the following factors for the trial court to consider in determining the best interest of the child:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      In support of Mr. Cooper's testimony, both Mr. Cooper's mother and step-sister testified regarding Ms. Chamberlain's indifference to fostering the child's relationships with his paternal family members. Although their testimony went uncontested, the trial court questioned their credibility. Meanwhile, without supporting testimony from her mother, the trial court accepted Ms. Chamberlain's self-serving testimony that her mother would move with her to Nashville to assist in childcare without hesitation.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Julius Jamal GARNETT
    18-61
    Court of Appeal of Louisiana, Third Circuit.
    January 23, 2019
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, Counsel for Defendant/Appellant: Julius Jamal Garnett
    Jeffrey M. "Jeff" Landry, Louisiana Attorney General, Colin Clark, Assistant Solicitor General & Chief of Criminal Appellate Section, Louisiana Department of Justice, Post Office Box 94005, Baton Rouge, Louisiana 70804-9005, (225) 326-6200, Counsel for Appellee: State of Louisiana
    Phillip Terrell, Jr., District Attorney, Michael Shannon, Assistant District Attorney, Post Office Box 7358, Alexandria, Louisiana 71306-7358, (318) 473-6650, Counsel for Appellee: State of Louisiana
    Julius Jamal Garnett, In Proper Person, 130053, Hickory-1, Louisiana State Penitentiary, 17544 Tunica Trace, Angola, Louisiana 70712, Defendant/Appellant
    Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.
   KEATY, Judge.

Defendant, Julius Jamal Garnett, appeals his conviction and sentence for first degree murder. For the following reasons, Defendant's conviction and sentence are affirmed, and appellate counsel's motion to withdraw is granted.

FACTS AND PROCEDURAL BACKGROUND

On May 9, 2014, Pamela Carnahan was found dead in her apartment located in Alexandria, Louisiana. She died from stab wounds, and items found at the scene of the crime contained Defendant's DNA. On September 25, 2014, Defendant was indicted for first degree murder, a violation of La.R.S. 14:30. Following a jury trial, a mistrial was declared on March 17, 2016. Thereafter, another jury was selected, and a second trial commenced. On July 14, 2016, Defendant was found guilty as charged by an eleven to one vote. On July 22, 2016, Defendant's motion for post-verdict judgment of acquittal was denied in open court. Defendant waived sentencing delays, and the trial court sentenced him to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence.

Appellate counsel has filed a motion and supporting brief, seeking to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no non-frivolous issues for this court to review. Additionally, Defendant has filed a pro se brief on appeal, asserting the following two errors.

(1) The evidence presented in this case is insufficient to sustain [Defendant's] conviction.
(2) The jury's verdict was not unanimous as required by Article I, §§ 2, 3, and 17(A) of the Louisiana Constitution of 1974, La. C.Cr.P. art. 782, and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

II. Pro Se Assignment of Error Number 1

In his first pro se assignment of error, Defendant contends that the evidence adduced against him at trial was circumstantial and insufficient to support his conviction. Defendant questions whether the State presented sufficient evidence to prove any underlying felony such that the homicide was first degree murder rather than second degree murder.

When the sufficiency of evidence claim is raised on appeal, this court in State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, discussed the following inquiry to be used by the reviewing court:

[T]he critical inquiry of the reviewing court 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, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

In State v. Hamilton , 03-1385, pp. 13-14 (La.App. 3 Cir. 3/3/04), 867 So.2d 151, 160, writ denied , 04-1227 (La. 4/22/05), 899 So.2d 567, this court explained:

Further, when the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp , 446 So.2d 1207 (La.1984) ; State v. Wright , 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror's reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence.

Additionally, the supreme court in State v. Neal , 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), noted:

As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Smith , 430 So.2d 31, 45 (La.1983) ; State v. Brady , 414 So.2d 364, 365 (La.1982) ; State v. Long , 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall , 523 So.2d 1305, 1311 (La.1988) (generally, one witness's positive identification is sufficient to support the conviction); State v. Ford , 28,724 (La.App. 2d Cir. 10/30/96), 682 So.2d 847, 849-50, writ denied , 99-0210 (La. 5/14/99), 745 So.2d 12.... The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the "fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law." Mussall , 523 So.2d at 1310 (La.1988).

At the time of the instant offense, first degree murder under La.R.S. 14:30 was defined as a homicide committed with specific intent during the commission of other listed felonies, including attempted aggravated rape, aggravated burglary, and armed robbery. Armed robbery under La.R.S. 14:64(A) was defined as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." Aggravated burglary is defined in La.R.S. 14:60, which states in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, ... where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Aggravated rape under La.R.S. 14:42 was defined, in pertinent part, as follows:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
....
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

An attempt under La.R.S. 14:27(A) was defined, in pertinent part, as follows:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Karen Frazier, Pamela's sister-in-law, testified on the State's behalf. Frazier advised that she was the sister of Pamela's husband, Daniel Carnahan. Frazier revealed that on the afternoon in question, she received a phone call from Jim Saints, the bus driver for Daniel and Pamela's daughter, who said that Pamela was not at the bus stop to pick up the child. Frazier revealed that she, along with her parents, met Saints at another location and retrieved the child. This was confirmed by Saints at trial. Frazier, her parents, and the child subsequently proceeded to Daniel and Pamela's apartment, which was located at the Chateau Deville Apartments. She advised that upon arrival, they knocked on the door; however, no one answered. At that point, Frazier went home, while her parents kept the child until Daniel was able to leave his job.

Frazier's testimony was confirmed by her and Daniel's father, Winston Carnahan, who also testified on the State's behalf. Winston revealed that "we" went to Daniel's second job to retrieve a key to the apartment. He advised that Daniel "started to give me the key," then decided to leave work early and return to the apartment with them. Winston advised that when they returned to the apartment, Daniel unlocked the door, went inside, and discovered Pamela's body. Winston said they subsequently called 9-1-1.

Daniel, who testified on the State's behalf, revealed that he, Pamela, and their daughter lived in Apartment 404 at Chateau Deville Apartments. Daniel testified that on the morning in question, he brought Pamela and their child to the bus stop and then proceeded to his first job at Pineville High School, where he worked as a custodian. Daniel testified that he tried calling Pamela multiple times throughout the day; however, she never answered the phone. Daniel noted that he worked until approximately 4:00 p.m., at which point he left the high school and proceeded to his second job. According to his testimony, it was during his second job when his parents "came over" and advised that Pamela failed to pick up their child at the bus stop. Daniel revealed that he subsequently returned to his apartment, unlocked the door, walked in, and discovered Pamela's body. Additional evidence admitted at trial by the State confirmed Daniel's whereabouts on the day in question.

According to the trial testimony of Officer Cherie Silas, she arrived at the crime scene located at Apartment 404 of the Chateau Deville Apartments around 5:40 p.m. Prior to entering the apartment, "in front of the door, [she] could see blood prints and drops." Upon entering the apartment, Officer Silas walked down the hall where she saw "blood prints" and eventually located "the victim on the floor in a pool of blood." Officer Silas secured the scene and waited for the crime scene detective.

Detective Wade Bourgeois, who testified on the State's behalf, was present at the crime scene. He revealed that an empty Atlas-brand condom wrapper and "a broken piece of a knife handle" were located near Pamela's body. He also testified that Pamela's body contained multiple stab wounds. He advised that the condom wrapper and knife were collected as evidence. The record before us shows that the items were submitted into evidence at trial. Detective Bourgeois indicated that a search warrant was executed for Defendant's Apartment 410, also located in the Chateau Deville Apartments. Detective Bourgeois revealed that Pamela's apartment keys and wallet were missing.

Lieutenant William Bates, who testified on the State's behalf, revealed that bloody footprints at the crime scene were in the shape of Air Force Ones, which is a type of shoe. A picture of a partial shoe print was submitted into evidence at trial. Photographs of Pamela and crime scene were also submitted into evidence, which Lieutenant Bates described as follows: "Her left leg is folded back next to her side.... there's a ... torn condom wrapper in between her legs on the floor" along with "a portion of the broken knife handle." He advised that the torn condom wrapper was empty as it contained no condom. According to Lieutenant Bates, a search of Pamela's apartment failed to reveal the presence of a condom or other condom wrappers. He testified that when Pamela's body was moved, "a couple more smaller pieces of the knife handle" along with a piece of a blue latex glove were exposed. He advised that the condom wrapper, pieces of the broken knife handle, and latex glove were collected as evidence and sent to the crime lab for analysis. Lieutenant Bates noted that he was present during Pamela's autopsy. He indicated that during the autopsy, a bite mark on Pamela's left hand was discovered. Lieutenant Bates testified that he swabbed the bite mark for DNA and sent it to the crime lab.

The State's expert in forensic DNA analysis, Dr. Candace Jones, testified that she worked for the crime lab where she performed DNA analyses of the condom wrapper, knife handle, latex glove, bite mark, and other obtained evidence. Dr. Jones testified that her analysis of all of the evidence enabled her to generate DNA profiles from some of the items. According to her testimony, the condom wrapper revealed Pamela as the major contributor of DNA found on the condom wrapper along with two other minor contributors. Dr. Jones testified that the two minor contributors could not be identified; however, two persons of interest, Michael Fells and Don Mosley, were excluded as possible contributors. Similarly, the results of her examination of the latex glove and the knife handle revealed Pamela as major contributor of DNA found on the latex glove and excluded Mosely and Fells as minor contributors. Dr. Jones agreed that when a struggle occurs, DNA from the victim's blood can overcome the minor contributor's DNA on items.

Dr. Jones testified that she submitted the DNA results obtained from the minor contributors into CODIS, a national DNA database. According to her testimony, the database matched the swab obtained from the latex glove and the knife handle to Defendant. With respect to the condom wrapper, Dr. Jones explained that, "due to the complexity of the DNA profile obtained from the swab from the condom wrapper, no significant conclusion can be made regarding the inclusion or exclusion of [Defendant]." With respect to the bite mark, Dr. Jones performed a Y-chromosome test, which revealed a DNA paternal profile of Defendant or someone in his paternal line.

Lieutenant Bates testified that, after receiving the results of the DNA database information, a search warrant was executed for an apartment believed to be Defendant's residence. He agreed that the apartment was Number 410, with an address of 4015 Lakeside Drive. According to Lieutenant Bates, the search revealed blue latex gloves, Atlas-brand condoms, Defendant's identification and other paperwork containing his name, and three different pairs of Air Force One shoes.

Vernechor Garnett, Defendant's sister, testified that the apartment that was searched actually belonged to her. Vernechor, one of two witnesses who testified on behalf of the defense, stated that although Defendant listed her apartment as his residence for probation and mail purposes, he did not live with her. She acknowledged that Defendant kept clothing at her apartment and "stayed there sometimes." Vernechor noted that she lived in her apartment with her three children and her older brother, Tavius Garnett, who was bipolar and schizophrenic. She also testified that although she did not have condoms, Tavius kept a supply in the apartment. She explained that she kept blue latex gloves in her apartment for cleaning purposes. Vernechor also revealed that she kept utensils at her apartment. The other witness who testified for the defense was Nedra Dotson, Tavius, Vernechor, and Defendant's mother. Nedra advised that Defendant did not have a twin brother. This information is important in light of Dr. Jones' testimony that DNA is "unique for every individual except identical twins."

Dr. Christopher Tape, the State's expert forensic pathologist who performed the autopsy, testified that Pamela sustained fourteen stab wounds to the face and neck. He opined that Pamela's death was homicide caused by stab wounds. Dr. Tape advised that there were no injuries to Pamela's genitals, but explained that "[y]ou can have injuries with consensual sex and no injuries with non-consensual sex and everything in between." He indicated the presence of a circular injury to Pamela's left hand that resembled a bite mark and would have been inflicted before she died.

Dr. Tape was unsure as to whether the bite mark was a defensive wound.

Based on the above evidence and testimony, we conclude that it was reasonable for the jury to find that the State proved beyond a reasonable doubt that Defendant was the person who killed Pamela. We also find that the jury reasonably believed that Defendant committed first degree murder based upon evidence showing that it occurred during Defendant's commission of other felonies, i.e., attempted aggravated rape, aggravated burglary, and/or armed robbery. According to the evidence and testimony presented at trial, Defendant could not be definitively excluded or included as one of the minor contributors of DNA found on the condom wrapper. However, DNA testing linked Defendant to the latex glove and knife handle, found in conjunction with the condom wrapper. It was, therefore, reasonable for the jury to conclude that the condom wrapper belonged to Defendant. The condom wrapper could be an indication that Defendant may have attempted some type of sex act. Although circumstantial evidence, the jury could have reasonably concluded that Defendant made an attempt of some type of sex act while armed with a dangerous weapon, i.e., the knife, and Pamela resisted to the utmost. Use of a weapon and the victim's resistance are factors that separately support aggravated rape pursuant to La.R.S. 14:42 as it existed at the time of the offense. The presence of the condom wrapper supports not only intent, but an act "tending directly toward the accomplishing" the crime as set forth in the attempt statute. La.R.S. 14:27(A). Additionally, testimony in the record revealed that Pamela's apartment keys and wallet were missing. This supports a finding that a theft of things of value had occurred; and if the Defendant was armed with a knife during the theft, it would be reasonable for the jury to conclude that Defendant was violating the armed robbery statute pursuant to La.R.S. 14:64(A). For similar reasons, the jury could have reasonably concluded that Defendant committed aggravated burglary as defined in La.R.S. 14:60.

Accordingly, Defendant's pro se assignment of error number one is without merit.

III. Pro Se Assignment of Error Number 2

In his second pro se assignment of error, Defendant contends that the jury's verdict was not unanimous as required by Article I, Subsections 2, 3, and 17(A) of the Louisiana Constitution of 1974, La.Code Crim.P. art. 782, and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The record before us indicates this issue was not raised in the trial court. As such, it cannot be raised on appeal. State v. Hatton , 07-2377 (La. 7/1/08), 985 So.2d 709. Additionally, La.Code Crim.P. art. 782(A) provides, in pertinent part: "Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict." That particular statute was ruled constitutional in both State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738 and Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

Accordingly, Defendant's pro se assignment of error number two is without merit.

IV. Anders Analysis

Appellate counsel has filed a motion and supporting brief seeking to withdraw pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, alleging that there are no non-frivolous issues for this court to review. The Anders analysis was explained in State v. Benjamin , 573 So.2d 528, 531 (La.App. 4 Cir. 1990), as follows:

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

In State v. Sanders , 16-470, p. 6 (La.App. 3 Cir. 12/7/16), 209 So.3d 143, 147-48 (alteration in original), writ denied , 17-218 (La. 11/6/17), 229 So.3d 470, this court further explained:

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

In this case, appellate counsel states that he has found no non-frivolous issues to present for review. He addresses a single issue involving the State's use of a written report in place of video that could not be downloaded. Over Defendant's objection, the trial court allowed a detective to testify from said report. Counsel states that even if an error occurred, it would be harmless in light of the other evidence introduced. We find that this contention is correct, as the video evidence had no direct bearing on the crime. The video evidence involved the whereabouts of Pamela's husband. However, as already discussed, Defendant's identity as the killer was supported by the DNA evidence. Thus, the husband's location at the time of the killing was not a core issue bearing on the verdict.

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, and Benjamin , 537 So.2d 528, we have performed a thorough review of the record, including transcripts, pleadings, minute entries, the charging instrument, and Defendant's pro se claims. Defendant was properly charged in an indictment. He was present and represented by counsel in all crucial stages of the proceedings. As discussed earlier, his pro se claims lack merit.

Thus, we have found no non-frivolous issues that counsel should have presented for appeal. Accordingly, Defendant's conviction and sentence are affirmed, and counsel's motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.


author: PER CURIAM

text:
    Neil S. KAVANAGH v. Roy Eugene HEBRON
    19-28
    Court of Appeal of Louisiana, Third Circuit.
    January 24, 2019
    Charles David Elliott, Charles Elliott & Associates, 720 Murray Street, Alexandria, LA 71301, (318) 704-6511, COUNSEL FOR DEFENDANT APPELLANT: Roy Eugene Hebron
    B. Gene Taylor, III, Attorney at Law, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR PLAINTIFF APPELLEE: Neil S. Kavanagh
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett and Phyllis M. Keaty, Judges.
   PER CURIAM

The defendant, Roy Eugene Hebron (Hebron), appeals the trial court's judgment in favor of the plaintiff, Neil S. Kavanagh (Kavanagh), on his request for injunctive relief regarding whether Hebron could take or hold public office under newly enacted La.Const. art. 1, § 10.1 with a felony conviction in 2011 and a sentence ending in December 2017. Finding no legal error or abuse of discretion on the part of the trial court, we affirm the judgment.

I.

ISSUES

We must decide:

(1) whether the trial court erred in applying La.Const. art. 1, § 10.1 ; and
(2) whether the trial court abused its discretion in granting the injunction requested by Kavanagh to prevent Hebron from taking and holding public office in January 2019.

II.

FACTS AND PROCEDURAL HISTORY

Kavanagh, Mayor of Ball, Louisiana, along with Hebron and Gene Decker, were opposing candidates in the November 6, 2018 mayoral election in Ball. Hebron won the election with 56% of the 1450 votes cast, and Kavanagh came in second. Also on November 6, 2018, Louisiana citizens voted statewide to approve a new constitutional amendment, La. Const. art. 1, § 10.1, which prohibits a convicted felon from holding public office until more than five years have elapsed since the completion of his sentence. The amendment was approved with over a million Louisiana citizens voting in favor of its enactment into law. In Ball, Louisiana, the amendment passed with 60% of the electorate voting it into law. Pursuant to La.Const. art 13, § 1 (C), the effective date of the new constitutional amendment was twenty days after the Governor proclaimed it law, which occurred in this case on November 21, 2018. The parties stipulated that the effective date of La. Const. art. 1, § 10.1, was December 12, 2018. Kavanagh filed suit against Hebron on December 17, 2018, seeking a declaratory judgment and an injunction to prevent Hebron from taking or holding office in January 2019.

The trial court heard the matter on December 21, 2018. The record reveals that in 2011, while Hebron was the sitting Mayor of Ball, he was convicted of conspiracy to defraud The Federal Emergency Management Agency (FEMA) in the town's application for disaster relief funds. Hebron served four years in prison and three years of probation, all of which were completed on December 18, 2017. Thus, when the new law became effective on December 12, 2018, less than one year had elapsed since the completion of Hebron's sentence for the felony conviction.

At the end of the hearing on December 21, 2018, the trial judge found that the new amendment, La.Const. art. 1, § 10.1, applied to Hebron. She indicated that proceedings for a declaratory judgment would be held separately at a later time. The trial court then signed a judgment in open court granting Kavanagh's injunction to prevent Hebron from taking and holding public office in January 2019. The December 21, 2018 judgment also denied Hebron's motion to strike and his exceptions of prematurity, no cause of action, no right of action, improper cumulation of actions, non-joinder of parties, and unauthorized use of summary proceedings. The trial court's judgment also ordered Kavanagh to remain in office as mayor, pursuant to La.R.S. 42:2, until further order of the court and/or further proceedings in accordance with law. While Kavanagh and the trial court agreed that this suit did not fall under the Election Code, Hebron's appeal requested an expedited hearing, which we granted. For the following reasons, we affirm the judgment of the trial court.

III.

STANDARDS OF REVIEW

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD , 617 So.2d 880 (La.1993) ; Rosell v. ESCO , 549 So.2d 840 (La.1989). "A trial court's determination as to whether to issue a preliminary injunctionis subject to the abuse of discretion standard of review." Ryan v. Calcasieu Par. Police Jury , 17-16, p. 4 (La.App. 3 Cir. 9/26/18), 256 So.3d 1044, 1048 (quoting Mount Zion Missionary Baptist Church v. Jones , 11-961, p. 4 (La.App. 3 Cir. 2/1/12), 84 So.3d 674, 678.) "Questions of law involving the correct interpretation of legislation are reviewed de novo, without deference to the legal conclusions of the trial court." State v. Merrill , 14-530, p. 4 (La.App. 3 Cir. 6/11/14), 140 So.3d 1237, 1239writ denied, 14-1227 (La. 9/19/14), 149 So.3d 249 (citing Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d 1159 ).

IV.

LAW AND DISCUSSION

Louisiana Constitution Article 1, Section 10.1

Louisiana Constitution Article I § 10.1, entitled, Disqualification from Seeking or Holding an Elective Office or Appointment, was added by Acts 2018, No. 719, § 1. It provides (emphasis added):

(A) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or hold elective public office or appointment of honor, trust, or profit in this state:
(1) A person actually under an order of imprisonment for conviction of a felony.
(2) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government, or country having such authority to pardon in the place where the person was convicted and sentenced.
(B) Exception. The provisions of Paragraph (A) of this Section shall not prohibit a person convicted of a felony from qualifying as a candidate for elective public office or holding such elective public office or appointment of honor, trust, or profit if more than five years have elapsed since the completion of his original sentence for the conviction.
(C) The provisions of Paragraph (A) of this Section shall not prohibit a person from being employed by the state or a political subdivision.

The Historical and Statutory notes state:

Constitution Art. 13, § 1 (C) provides in part, "If a majority of the electors voting on the proposed constitutional amendment approve it, the governor shall proclaim its adoption, and it shall become part of this constitution, effective twenty days after the proclamation..."

Hebron contends that La.Const. art 1, § 10.1 (A)(2) requires that the same felony conviction for the federal FEMA violations must also be prosecutable as a felony in Louisiana. He not only asserts that Louisiana must have a statute making it a state crime to violate the FEMA statutes, he also asserts that the state statute must have the exact same elements as the FEMA statute. We disagree. The amendment contains no such language nor the standard asserted by Hebron. More specifically, La.Const. art. 1, § 10.1 (A)(2) states that the crime must be "a crime which, if committed in this state, would be a felony." The new amendment is almost identical in language to its predecessor, La.Const. art. 1, § 10, entitled " Right to Vote; Disqualification from Seeking or Holding an Elective Office," which otherwise provided a longer waiting period for convicted felons, as follows (emphasis added):

(A) Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.
(B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold such office if the date of his qualifying for such office is more than fifteen years after the date of the completion of his original sentence.

The predecessor amendment was effective from 1998 until 2016, when it was declared null and void because the procedures for amending the constitution in 1997-98 had not been followed. Shepherd v. Schedler , 15-1750 (La. 1/27/16), 209 So.3d 752, on reh'g (May 2, 2016).

During the effective period of La.Const. art. 1, § 10, the Louisiana Supreme Court heard the contention at issue in this case in Touchet v. Broussard , 10-380 (La. 3/3/10), 31 So.3d 986. There, Touchet, a qualified elector of Abbeville, filed a petition under La.Const. art. 1, § 10, challenging the candidacy of Broussard for a city council position and asserting that Broussard had a felony conviction for aiding and abetting an illegal gambling business in violation of 18 U.S.C. §§ 1955(a) and (2). Touchet further asserted that Broussard had not been pardoned by the governor, nor had fifteen years passed since his federal conviction. The trial court found that in Broussard's federal plea agreement he had admitted guilt to the Louisiana felony offense of gambling as defined in La.R.S. 14:90, but a panel of this court of appeal reversed, finding that the Louisiana statute was not equivalent to the federal statute. Overturning the third circuit, the supreme court stated:

The court of appeal concluded that "Louisiana law does not contain an aiding and abetting statute comparable to the federal statute, and Mr. Touchet has pointed the court to no comparable Louisiana felony." Id. However, the court of appeal's ruling ignores a basic principle of Louisiana statutory criminal law that all persons who aid and abet in the commission of a crime are principals. See La. R.S. 14:24 ("All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals"). Thus, it is unnecessary for La. R.S. 14:90, or any other criminal statute, to additionally contain any aiding or abetting provisions as those actors are already considered principals to the crime.

Id. at 991.

In the present case, Hebron pled guilty to count 1 of the indictment against himself and four others for Conspiracy under 18 U.S.C. § 371 to defraud FEMA of disaster relief funds following Hurricane Gustav in 2008. Counts 2 and 3 were dismissed pursuant to the plea agreement, dated February 5, 2011, which required Hebron to appear in open court, plead guilty to count 1 of the indictment, and resign his position as Mayor of Ball, Louisiana.

The federal conspiracy statute, 18 U.S.C. 371, states as follows:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Count 1 of the indictment states that the defendants "did knowingly and willfully combine, conspire, confederate and agree together to commit offenses against the United States" in violation of 18 U.S.C. § 1040"by knowingly and fraudulently making materially false, fictitious, and fraudulent statements and representations to FEMA in an application for benefits authorized, transmitted, transferred, disbursed and paid with FEMA funds ...." Count 1 further states that the object of the conspiracy was to defraud FEMA and for the defendants to unlawfully enrich themselves. The manner and means used by the defendants were overstating the hours worked and overstating the usage of Ball vehicles and equipment during the emergency response to Gustav. One of the overt acts, among others, was attending a meeting of Ball employees and knowingly signing false timesheets for submission to FEMA for reimbursement.

In Louisiana, the criminal conspiracy statute, La.R.S. 14:26 (emphasis added), provides:

A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime ; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
B. If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.
C. Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years.
D. Whoever is a party to a criminal conspiracy to commit any other crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both.

In addition to the criminal conspiracy statute, La.R.S. 14:26, Louisiana has a government benefits fraud statute, La.R.S. 14:70.9, which states:

A. The crime of government benefits fraud is the act of any person who, with intent to defraud the state or any person or entity through any government benefits administered by any state department, agency, or political subdivision, does any of the following:
(1) Presents for allowance or payment any false or fraudulent claim for furnishing services, merchandise, or payments.
(2) Knowingly submits false information for the purpose of obtaining greater compensation than that to which he is legally entitled for furnishing services, merchandise, or payments.
(3) Knowingly submits false information for the purpose of obtaining authorization for furnishing services, merchandise, or payments.
(4) Knowingly makes or causes to be made a false statement or representation of material fact on an application or form for assistance, goods, services, or payments when the false statement or representation is made for the purpose of determining the person's eligibility to receive benefits or payments.
(5) Knowingly conceals or fails to disclose any material fact affecting the applicant's or recipient's initial or continued eligibility to receive benefits or payments.
B. Whoever commits the crime of government benefits fraud shall be imprisoned, with or without hard labor, for not more than five years, may be fined not more than ten thousand dollars, or both imprisoned and fined.
C. For the purpose of this Section, government benefits include any record, voucher, payment, money or thing of value, good, service, right, or privilege provided or administered by a state government entity.

Louisiana Revised Statutes 14:70.9 was enacted in 2018. But well before the enactment of La.R.S. 14:70.9, the theft of government benefits was a crime under the very broad theft statute pertaining to thefts without violence, La.R.S. 14:67. See State v. Judeh , 08-519 (La.App. 5 Cir. 11/12/08), 2 So.3d 434, where the defendant was convicted of theft by fraudulent conduct for falsifying her job status and income on an application for benefits from the Office of Family Support, thereby receiving benefits from the State to which she was not entitled. The theft statute broadly applies to many forms of theft, including fraudulent invoicing, billing, and collection of money for items and labor not performed. See State v. Hampton , 27,703 (La.App. 2 Cir. 2/28/96), 670 So.2d 1349, writ denied , 96-1063 (La. 11/15/96), 682 So.2d 758.

Louisiana Revised Statutes 14:67 (emphasis added) provides in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of twenty-five thousand dollars or more shall be imprisoned at hard labor for not more than twenty years, or may be fined not more than fifty thousand dollars, or both.
....
C. When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.
....

Pursuant to La. R.S. 14:2(A)(4), a felony in Louisiana is any crime for which an offender may be sentenced to imprisonment at hard labor. Thus, it is disingenuous to contend that the fraud perpetrated upon FEMA by Hebron would not be a felony if perpetrated upon the State of Louisiana in an application for government benefits. In addition to serving the four-year imprisonment and three-year probationary terms, Hebron was required to pay $25,000 in fines and $105,556 in restitution in connection with the federal offenses. He was also required to resign his position as mayor. He did not complete serving his probationary period until December 18, 2017, less than one year from the effective date of La.Const. art. 1, § 10.1, on December 12, 2018, and slightly over one year from the date in January 2019 that Hebron would be required to assume and hold the office of mayor, well under the five-year limitation established by the new amendment. Therefore, under La.Const. art. 1, § 10.1, Hebron was prohibited from assuming and holding the office of Mayor of Ball in January 2019, and the trial court did not err in so finding.

Injunctive Relief and Standing

Hebron contends that the Election Code in Title 18 provides detailed procedures for elections and for contesting elections, but that it contains no provision allowing for an injunction against a successful candidate to prevent that candidate from taking office. Therefore, Hebron contends, Kavanagh did not have standing or a right of action to bring the suit. Kavanagh asserts and has always asserted that his request for an injunction does not fall under the Election Code. He correctly points out that the Election Code provides registered voters with time-sensitive procedures for challenging a candidate's qualifications to run, and for contesting the election after the fact due to fraud or irregularity in the conduct of the election. See La.R.S. 18:491 -93, and La.R.S. 18:1401 -06, respectively. But as repeatedly asserted by Kavanagh, the Election Code does not provide the basis for his suit, as the constitutional amendment at issue did not become effective until December 12, 2018, and did not bar Hebron from qualifying to run back in July 2018. Nor did Kavanagh bring suit to challenge the election for fraud or irregularity in the election process.

Rather, Kavanagh, a registered voter, citizen, and current Mayor of Ball, sought a preliminary injunction on December 17, 2018, to restrain Hebron from illegally holding office in January 2019, and to prevent infringement on Kavanagh's statutory duty to continue to discharge the duties of his office until a lawful successor was inducted into that office. See La.R.S. 42:2.

The Code of Civil Procedure states, "An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law...." La.Code Civ.P. art. 3601(A). However:

A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.

Jurisich v. Jenkins , 99-76, p. 4 (La. 10/19/99), 749 So.2d 597, 599 (citations omitted).

In spite of the above law, and in furtherance of his argument that the Election Code provides no remedy for Kavanagh to seek an injunction, and he therefore has no remedy, Hebron points to State v. Gibson , 12-1145 (La. 1/29/13), 107 So.3d 574, a case decided during the effective period of the predecessor amendment, La.Const. art. 1, § 10. There, where the State brought suit against a convicted felon after the election but before he was sworn into office, the Louisiana Supreme Court stated:

The prohibition contained in Art. I, § 10 is two-fold. Article I, § 10 not only sets forth qualifications for office by prohibiting a felon from qualifying for public office unless certain conditions are met, but it goes further by expressly prohibiting such a felon from taking office. Although the provisions of the Election Code do not directly provide a method or cause of action for the State to prevent Mr. Gibson from taking office in violation of Art. I, § 10, we find the State can bring a direct action pursuant to that constitutional provision. A cause of action arises when Art. I, § 10 is violated because the constitutional prohibition contained therein is self-executing. A constitutional provision is self-executing when it can be given effect without the aid of legislation, and there is nothing to indicate that legislation is intended to make it operative.

Gibson , 107 So.3d at 581-82.

After analyzing numerous statutes in the Election Code, the Gibson court found that it provided no remedy for the State to bring suit under La.Const. art. 1, § 10 after a certain time frame, but that the State was not confined to traditional challenges under the Election Code. One of the statutes analyzed by the Court in Gibson , was La.R.S. 18:495. Paragraph (A) of La. R.S. 18:495 gave the State standing to immediately bring suit under La.Const. art. 1, § 10, if it learned that a convicted felon filed a notice of candidacy, but Paragraph (B) of La.R.S. 18:495 required the State to file suit within the seven-day period after the close of the qualifying period. Thus, the ruling in Gibson was that the State was not bound by the Election Code in enforcing a constitutional amendment. Similarly, Paragraph (D) of La.R.S. 18:495 gives standing to registered voters to bring suit under the same constitutional amendment, again couching it in terms of candidacy. Similar to Gibson , there must be a remedy outside the Election Code for citizens to protect their interests in the face of constitutional violations. While Hebron characterizes the holding in Gibson as applying only to the State's plenary power, Gibson does not make that power exclusive to the State, nor does it foreclose a right of action by a voter to seek injunctive relief in the face of a violation of La.Const. art. 1, § 10.1 in this case.

Here, the constitutional amendment which became effective on December 12, 2018, prohibits a person with a past felony conviction from holding public office until more than five years have elapsed from the date he completed his sentence. Hebron completed his sentence on December 18, 2017, thus he would not be able to lawfully hold the office when required to do so in January 2019. Because we find that Kavanagh made a prima facie showing under Jurisich , 749 So.2d 597, that Hebron's taking the oath of public office and holding the position of mayor in January 2019 is unconstitutional and reprobated by law under La.Const. art. 1, § 10.1, we find no abuse of discretion in the trial court's granting of injunctive relief.

V.

CONCLUSION

Based upon the foregoing, the trial court's judgment is affirmed. Costs of this appeal are assessed against the defendant, Roy Eugene Hebron.

AFFIRMED.

      Kavanagh's petition did not invoke the Election Code articles in Title 18, and he asserted at trial that he did not object to Hebron's candidacy in July 2018 because the constitutional amendment was not in law at that time to prohibit Hebron from qualifying to run. See, e.g. , La.R.S. 18:491 -93 addressing candidacy. Kavanagh further stated that he was not asserting fraud or irregularities in the conduct of the election held in November 2018. See, e.g. , La.R.S. 18:1401 -06 on contesting an election. Neither the trial court nor the parties have treated their filings as submissions under the Election Code; nor does this court.

      In the opinion from the United States Fifth Circuit in United States v. Hebron , 11-30513 (5th Cir. 2012), 684 F.3d 554, wherein Hebron appealed his sentence, the court affirmed, finding that the district court did not err in accepting an intended loss calculation of $320,000 from FEMA for reimbursement requests following Hurricane Rita in 2005 and Hurricane Gustav in 2008, though it agreed to provable fraud of less than $200,000 in the plea agreement. The FEMA claim also involved billing FEMA almost $10,000 for dumpsters following Hurricane Gustav while at the same time seeking and receiving reimbursement from Keep Louisiana Beautiful, Inc., a non-profit organization, for the same dumpsters.

      We further note that under the constitutional amendment now in effect, Hebron will not be able to qualify to run for public office until December 19, 2022.