source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kevin Q. MATHIS, Appellant
    No. 52,500-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    LOUISIANA APPELLATE PROJECT, By: Chad Ikerd, Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, AMANDA M. WILKINS, Assistant District Attorney, Counsel for Appellee
    Before MOORE, STONE, and COX, JJ.
   COX, J.

This criminal appeal arises from the Fifth Judicial District Court, West Carroll Parish, Louisiana. These crimes were committed in Franklin Parish. A pretrial motion to change venue was granted and the case was transferred to West Carroll Parish for trial. A unanimous jury convicted Kevin Q. Mathis of the aggravated kidnapping and attempted first degree murder of Kelli Longoria and possession of a firearm by a convicted felon. Mathis was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on the aggravated kidnapping conviction; 50 years' imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on the attempted first degree murder conviction; and 10 years' imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on the possession of a firearm by a convicted felon conviction. The sentences were ordered to be served concurrently. Mathis's motion for new trial was denied and this appeal followed. For the following reasons, we affirm Mathis's convictions and sentences.

FACTS

On July 16, 2016, Kelli Longoria stopped at the U-Pak-It/Citgo convenience store in Winnsboro, Louisiana, to get a lemonade on her way to a 7:00 a.m. meeting at her family's hardware store. Kelli was driving a dark-colored GMC SUV. Surveillance video introduced at trial shows Kelli purchase a lemonade with a blue debit card from Winnsboro Bank, exit the store, and get into her vehicle. Kelli stated a black male approached her and asked her for a ride to the hospital. Kelli agreed to give the man a ride, but he stated that he would drive. Kelli told the man that she could drive, and the man responded, "I have a gun, move over, I'm driving." Kelli testified that she crawled to the passenger side of her vehicle and the man drove them away from the convenience store.

The surveillance video also shows a black male enter and leave the store, look around, and sit/lean on a pole outside the store. A still shot taken from the video shows a handgun-shaped bulge in the man's right pant pocket. The man is wearing a dark shirt and long, baggy khaki shorts. The same man is seen on the video approaching Kelli's driver side door, the door opens, the man moves toward the open door and disappears off the screen, and then the door closes. He is not seen again outside the vehicle.

Kelli testified that when the two left the parking lot, she noticed that the man passed several turns that would have taken them to the hospital. During the drive, the man showed her the gun and said, "Hey, I told you I had this, here it is." Kelli testified that when he turned toward the cemetery, she knew he was not going to the hospital. Once in the cemetery, she stated that the man backed her SUV into some trees and brush and then took her debit card and phone. Kelli testified that the last thing she remembered was crouching down on the floorboard with the gun pointed at her. She described the events as follows:

[Kelli's cell phone] kept going off and he said "give me your phone." And I was like "well, I'm not answering anything. Why do you need it?" and he said "just give me your phone." And so I gave it to him because I mean I didn't want him to kill me. And so I gave him my phone and then he did the same thing, he was like "give me your money" I said "I don't carry cash on me but I have a debit card" and he said "okay, give me your debit card" and so I gave it to him and then he was like "what's the pin number?" And so I wrote it down for him and he had that on a piece of paper and my debit card.

Kelli testified that the next thing she remembered was waking up in the rehabilitation facility in Jackson, Mississippi. She confirmed that the man who approached her at the convenience store is the same man who abducted her and shot her. Kelli was not asked to identify Mathis as her assailant in court or before trial in a photographic lineup.

Timothy Singleton, a grave digger in Winnsboro, testified that he was in the cemetery that morning to dig a grave. Mr. Singleton stated that, for a reason he could not explain, he turned a different direction than usual while driving in the cemetery and observed a dark-colored SUV backed into the trees. The passenger door was open and he saw a body "hanging out." Mr. Singleton called his boss, Yolandes Davis, who told Mr. Singleton to call 911, which he did. Mr. Davis also testified and corroborated the presence of the vehicle and the body.

Investigating officers testified regarding the report of a suspicious, abandoned vehicle in the Gethsemane Cemetery with an injured white female inside. Upon arrival, officers found the SUV with Kelli in the passenger side, partially hanging out of the vehicle. The lemonade Kelli purchased was unopened in the cup holder and the crime scene photographs show blood spatter throughout the vehicle. Deputy Sheriff Jeff Wright was a responding officer and testified that Kelli suffered a trauma to the forehead, but officers could not tell the cause due to the amount of blood and the fact that the blood had already started coagulating and clotting.

Deputy Wright stated that although Kelli could not speak, she was able to hand gesture to officers that she had been shot. Kelli was ultimately transported to Jackson, Mississippi, for treatment. It was determined that Kelli suffered a gunshot to her head and doctors advised the family that she would likely not survive through the night. However, Kelli progressed and, after months of rehabilitation, relearned how to speak and feed herself.

Trooper Scott Brown, of the Louisiana State Police, testified regarding the crime scene investigation and identified the black male seen on the surveillance video as the defendant, Kevin Mathis. Trooper Brown advised that there was no DNA evidence or fingerprint evidence from the crime scene. He explained that fingerprint powder destroys DNA so instead of fingerprinting, he opted for DNA testing, which was inconclusive. Trooper Brown pointed out that by the time Mathis was arrested, he had taken a bath and changed clothes, ensuring that there would be no DNA evidence on his person. Trooper Brown stated that the crime lab does not perform gun residue testing because it is unreliable.

Ten days after the offense, a cell phone and case were located beside a path near the cemetery. The case had been removed and the phone destroyed. The pieces of the case were scattered near a ditch and the phone had been tossed into a culvert. Officers concluded it was Kelli's cell phone because it matched the phone Kelli was carrying in the surveillance video from the convenience store. Trooper Brown testified that because it had rained before the phone and case were found, there were no recoverable fingerprints or DNA evidence.

Franklin Parish Sheriff Kevin Cobb also testified that during the investigation, on the morning of the offense, the black male seen on the surveillance video was identified as Mathis. Sheriff Cobb made an in-court identification of Mathis as the person seen on the surveillance video. Sheriff Cobb described Mathis's behavior at the convenience store as "panning," or looking for an opportunity. He testified that the surveillance video showed Mathis enter and leave the store. When Kelli walked past him, Mathis put his hand in his pocket where the handgun-shaped object was seen. He stated that the video shows Mathis followed Kelli to her vehicle. After Kelli entered her vehicle and shut the door, Mathis approached the vehicle and "at that point[,] Mr. Mathis enters her vehicle." Sheriff Cobb stated that two witnesses, Torquill Boley and Lakeithrick McMillan, came forward that morning with information possibly linking Mathis to the crime. Sheriff Cobb testified that, based on the foregoing information, Mathis became a person of interest and a BOLO was issued for his arrest.

Officer Will Pearce, of the Winnsboro Police Department, testified that he was riding in a patrol car on the morning of the shooting and kidnapping when he observed Mathis. Officer Pearce knew Mathis before this offense. He exited the patrol car and Mathis fled. Officer Pearce caught Mathis, ordered him to the ground, and took him into custody.

Torquill Boley testified that he has known Mathis for "some years" because they live on the same street. Boley stated that he was approached by Mathis early in the morning of July 16, 2016, and the two rode together to Boley's house. Boley testified that Mathis asked him if he had any nine millimeter bullets. Boley told Mathis he did not have any bullets. He stated that Mathis then "flagged" down Lakeithrick McMillan and was gone. Boley identified Mathis in court as the man who asked him for the bullets.

Lakeithrick McMillan testified that he saw Mathis at Boley's house early that morning. He later saw Mathis on Gum Street and gave him a ride. Mathis asked McMillan to take him to the bank and told him that he had his Uncle Bobby's debit card and needed to use it. McMillan testified that Mathis told him that McMillan would have to pull up to the bank and Mathis would reach out the window. Mathis told him he would have to hide his face to use the card. On cross-examination, McMillan stated that Mathis did not seem nervous and he did not see a gun or any blood on Mathis. McMillan testified that he did see Mathis with a blue debit card, but that he did not take Mathis to the bank. Instead, he dropped Mathis off at his mother's house.

Through the testimony of Deputy Sheriff Todd Roberts, enlarged Google Earth photographs were introduced into evidence, depicting the location of Kelli's vehicle and the probable route taken by Mathis after fleeing the scene. The route follows a path out of the cemetery, past where the pieces of Kelli's cell phone were found, and ends where Boley testified he encountered Mathis.

Finally, Probation Officer Edward Esters testified regarding Mathis's August 3, 2012, conviction for simple burglary, forming the basis for the possession of a firearm by a convicted felon charge.

The State rested and the only witness called by the defense was Trooper Scott Brown. Trooper Brown returned to the stand, again testifying that there was no DNA or fingerprint evidence placing Mathis in Kelli's vehicle. Trooper Brown further testified that a search warrant was executed at Mathis's mother's home in the late morning hours of July 16, 2016. Clothing matching that worn by Mathis in the surveillance video-a dark shirt and khaki shorts-were found in the washing machine. A photograph of the clothes in the washing machine was introduced into evidence. Trooper Brown confirmed that the clothing appeared to be the same as the clothes worn by Mathis in the video.

Following closing arguments, the trial court read the jury charge, which instructed the jury on aggravated kidnapping as follows:

Aggravated kidnapping is the forcible seizing and carrying of any person from one place to another with the intent to force that person or another person to give anything of apparent, present, or prospective value.
* * *
Thus in order to convict the defendant of aggravated kidnapping you must find that the defendant forcibly seized Kelli Longoria and carried her from one place to another or the defendant imprisoned or secreted her and that the defendant did so with the specific intent to force Kelli Longoria or some other person to give up anything of apparent, present or prospective value.

During deliberations, the jury presented a question to the trial court concerning the definition of Count One, aggravated kidnapping, and the distinction between aggravated kidnapping and second degree kidnapping. The trial court responded to the question as follows:

Certainly a reasonable question. What I'm going to do is read you a synopsis of the definition of the two crimes. I'm reading from the definition in the Louisiana Criminal Code.... There are technical differences so I'm going to read slowly, listen carefully. Aggravated kidnapping is the forcible seizing and carrying of any person from one place to another or the imprisoning or forcible secreting of any person with the intent thereby to force the victim or some other person to give up something of apparent, present, or prospective value or to grant any advantage or immunity in order to secure a release of the person under the offender's actual or apparent control. Do you understand? All right. Now I'm going to read second degree kidnapping. Second degree kidnapping is the forcible seizing and carrying of another person from one place to another or the enticing or persuading of any person to go from one place to another or the imprisoning or forcible secreting of any person wherein the victim is physically injured or sexually abused. That is the two definitions. The first was aggravated kidnapping, the second was second degree kidnapping. If you have further questions write them down and we'll try to answer them.

The jury returned a verdict of guilty on all three charges. Mathis filed a motion for new trial, which was denied. After waiving sentencing delays, Mathis was sentenced by the trial court. This appeal followed.

DISCUSSION

Sufficiency of the Evidence and New Trial

Mathis's first, third, and fourth assignments of error will be discussed together because they involve the sufficiency of the evidence and denial of a new trial. He argues the State failed to sufficiently prove he was the person who kidnapped and shot the victim, as well as every element necessary for a conviction of aggravated kidnapping. He further argues that because the State failed to sufficiently prove its case, the trial court should have granted his motion for new trial.

Mathis argues that there was no identification of him as the person who kidnapped and shot Kelli. He notes that there was no photographic lineup and Kelli did not identify him at trial. Mathis points to the lack of physical or forensic evidence, including DNA and fingerprints, and notes that when he was arrested, he did not have possession of Kelli's phone, debit card, or a gun. He also asserts that the police did not attempt to "ping" his phone for his location and never located the gun involved in this offense. Mathis submits that the State's case was based on "tenuous circumstantial evidence" and that the State failed to exclude every reasonable hypothesis of his innocence. For these reasons, Mathis argues his conviction for aggravated kidnapping should be reversed and the trial court erred in denying his motion for new trial.

The State argues that the evidence presented supports the convictions and establishes that Mathis was the abductor/assailant. The State notes Kelli's testimony of the events on the morning of July 16, 2016, and her consistent testimony that the man who approached her at the convenience store was the same man who abducted her and shot her. The surveillance video shows Kelli and Mathis at the convenience store and Mathis is seen following Kelli to her vehicle. Trooper Brown and Sheriff Cobb both testified that the man in the surveillance video is Mathis.

When sufficiency of the evidence and one or more other trial errors are raised on appeal, the reviewing court should first determine sufficiency of the evidence. La. C. Cr. P. art. 821. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) ; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Dennis , 46,471 (La. App. 2 Cir. 9/21/11), 72 So.3d 968, writ denied , 11-2365 (La. 5/18/12), 89 So.3d 1189.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a 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 , supra ; State v. Tate , 01-1658 (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. Steines , 51,698 (La. App. 2 Cir. 11/15/17), 245 So.3d 224, writ denied , 17-2174 (La. 10/8/18), 253 So.3d 797. 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. Steines, supra.

The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 15-2291 (La. 4/4/16), 190 So.3d 1203. A reviewing court affords great deference to a trial court's decision to accept or reject the testimony of a witness in whole or in part. Steines, supra .

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Francis , 51,048 (La. App. 2 Cir. 1/11/17), 213 So.3d 1213. The testimony of a victim alone is sufficient to convict a defendant. State v. Lambert , 52,004 (La. App. 2 Cir. 5/23/18), 248 So.3d 621. Such testimony alone is sufficient even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Stephenson , 51,696 (La. App. 2 Cir. 11/15/17), 245 So.3d 296, writ denied , 17-2090 (La. 9/28/18), 252 So.3d 924.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the 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 viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; Steines, supra.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Mingo , 51,647 (La. App. 2 Cir. 9/27/17), 244 So.3d 629, writ denied , 17-1894 (La. 6/1/18), 243 So.3d 1064. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; Mingo, supra. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway , 07-2306 (La. 1/21/09), 1 So.3d 417 ; State v. Garner , 45,474 (La. App. 2 Cir. 8/18/10), 47 So.3d 584, 587, writ not considered , 12-0062 (La. 4/20/12), 85 So.3d 1256.

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. Weary , 03-3067 (La. 4/24/06), 931 So.2d 297, cert. denied , 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006) ; State v. Bass , 52,014 (La. App. 2 Cir. 5/23/18), 248 So.3d 639. Positive identification by only one witness is sufficient to support a conviction. Bass, supra .

La. R.S. 14:44, Aggravated kidnapping, provides:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or (3) The imprisoning or forcible secreting of any person.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The Louisiana Supreme Court has held that the crucial question in determining whether an aggravated kidnapping has occurred is "whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim's fear and hope of eventual release in order to gain compliance with his demands." State v. Arnold , 548 So.2d 920 (La. 1989) ; State v. Johnson , 50,005 (La. App. 2 Cir. 8/12/15), 175 So.3d 442, writ denied , 15-1687 (La. 9/16/16), 206 So.3d 203. Proof of intent to extort can be shown by "analyzing whether a reasonable person in the victim's position would believe that she would not be safely released unless she complied with the kidnapper's demands." Arnold, supra . In Arnold , the Louisiana Supreme Court expressly rejected the requirement that the offender "explicitly communicate" to the victim that compliance would lead to release; rather, the inquiry is whether the kidnapper intended to extort something from the victim "by playing on the victim's hope for release." Id. ; State v. Baker , 49,841 (La. App. 2 Cir. 5/20/15), 166 So.3d 1152, writ denied , 15-1219 (La. 3/4/16), 185 So.3d 745.

In the case before us, the evidence excludes every reasonable hypothesis of innocence and the State met its burden of negating any reasonable probability of misidentification. Admittedly, it would have been preferable for the authorities to have prepared a photographic lineup for Kelli to identify Mathis or for her to have made an in-court identification of Mathis as her abductor/assailant. Nonetheless, there is ample evidence identifying Mathis as the offender:

1. Sheriff Cobb and Trooper Brown, both of whom were familiar with Mathis prior to this offense, identified Mathis as the man on the surveillance video seen panning the store with a gun-shaped bulge in his pocket, following Kelli to her vehicle, and then disappearing off the screen as he entered the vehicle. Mathis is not seen again outside of the vehicle.
2. Kelli consistently testified that the same man who approached her and got into her vehicle is the one who took her phone, blue Winnsboro Bank debit card and PIN number, and then shot her.
3. Pieces of Kelli's cell phone and case were located along the route out of the cemetery that ends where Boley testified he encountered Mathis that morning. Mathis asked Boley for nine millimeter bullets.
4. McMillan testified that Mathis asked him to take Mathis to a bank so that he could "get money off" of a blue debit card that he stated his uncle had given to him. Mathis told McMillan he would have to hide his face to use the card. McMillan took Mathis to his mother's house rather than the bank.
5. A search of Mathis's mother's residence revealed clothes freshly washed and still in the washing machine-clothes matching the ones Mathis was seen wearing in the surveillance video.
6. When Officer Pearce encountered Mathis on the road, Mathis fled.

Despite the lack of forensic evidence and identification by the victim, the above evidence supports a rational factfinder's conclusion that there was no reasonable hypothesis of Mathis's innocence and that there was no reasonable possibility of misidentification.

The record supports the jury's reasonable conclusion that the evidence sufficiently proved the extortion element of the offense that Mathis demanded something of value. Kelli testified that she did what Mathis told her to do so that he would not kill her. Mathis threatened Kelli by telling her he had a gun and then showing it to her while the two were riding in the car. Mathis demanded Kelli's phone and money while she was crouched on the floorboard with a gun pointed at her. Kelli's testimony established that Mathis sought something of value in preying upon Kelli's hopes that her compliance would lead to her release. Viewed in the light most favorable to the prosecution, all of the elements of the crime of aggravated kidnapping were proven beyond a reasonable doubt. For these same reasons, the trial court properly denied Mathis's motion for new trial. These assignments are without merit.

Jury Charge

Mathis argues that he suffered a deprivation of fundamental due process because the jury charge failed to include the final element of aggravated kidnapping, the extortion element, as discussed above. He argues that the jury charge must include every essential element of the crime and its deficiency in this case violated his constitutional rights. Mathis acknowledges that his counsel did not contemporaneously object to the jury charge, but argues that this Court should review the assigned error because it was not harmless. He argues that the guilty verdict was directly related to the error.

The State argues that any challenge to the jury charge was not preserved for appeal because there was no contemporaneous objection at trial. The State further asserts that if this Court reviews the jury charge, any error was harmless, as the verdict in this case was surely not attributable to the error. The State points out that the jury questioned the court about the difference between aggravated kidnapping and second degree kidnapping. When questioned by the jury, the trial court read the definitions of each crime from the criminal code and explained the differing element, i.e., the extortion element about which Mathis complains. The State argues that even if an error in the actual charge is found, the error was cured by this explanation to the jury.

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 , 16-0092 (La. 12/16/16), 211 So.3d 1166, 16-0056 (La. 12/16/16), 212 So. 3d 1176.

Errors in jury instructions are subject to the harmless error analysis. State v. Mosley , 51,168 (La. App. 2 Cir. 6/21/17), 223 So.3d 158. The harmless error analysis evaluates whether the guilty verdict actually rendered in the trial was surely unattributable to the error. State v. Chisolm , 49,043 (La. App. 2 Cir. 5/14/14), 139 So.3d 1091, writ denied , 14-1203 (La. 3/13/15), 176 So.3d 1031.

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.

In Williamson, supra , the Louisiana Supreme Court found a fundamental due process violation where the judge, prosecutor, and defense counsel labored under the misconception that a prior version of the law was applicable and the jury charge reflected that mistake. Because all parties were mistaken, defense counsel failed to object to the erroneous jury charge. Under those facts, the Court explained that the error went to the very definition of the crime for which the defendant was convicted. The Court reversed the conviction and ordered the defendant be retried.

The relevant portion of the jury charge is as follows:

Aggravated kidnapping is the forcible seizing and carrying of any person from one place to another with the intent to force that person or another person to give anything of apparent, present, or prospective value.
* * *
Thus in order to convict the defendant of aggravated kidnapping you must find that the defendant forcibly seized Kelli Longoria and carried her from one place to another or the defendant imprisoned or secreted her and that the defendant did so with the specific intent to force Kelli Longoria or some other person to give up anything of apparent, present or prospective value.

The charge omitted the element of aggravated kidnapping that requires the kidnapper's demands be made "in order to secure a release of the person under the offender's actual or apparent control."

Defense counsel failed to contemporaneously object to the omission and, unless the exception to Article 801 created in Williamson, supra , applies, Mathis has waived his right to review. We find that the exception does not apply under the facts of this case. Unlike Williamson , none of the parties here labored under any misconception of the elements or definition of aggravated kidnapping. The bill of indictment, the opening remarks to the jury and, most critically, the response to the jury's question during deliberation, correctly defined the offense for the jury. The trial court specifically referenced the technical distinction between aggravated and second degree kidnapping in its response to the jury's question and ensured that the jury understood. This is not the situation contemplated by the Louisiana Supreme Court, where the defendant is denied a fair trial due to the jury's lack of knowledge of the elements of the crime based on a faulty instruction. The Mathis jury knew the elements of aggravated kidnapping, including the extortion element, and unanimously convicted him of that crime. As a result, we decline to review the issue under the contemporaneous objection rule. This assignment is without merit.

Error Patent

On the conviction for possession of a firearm by a convicted felon, the trial court failed to impose the mandatory fine of not less than $1,000, or more than $5,000. La. R.S. 14:95.1(B). Because it was imposed without the mandatory fine, Mathis's sentence is illegally lenient. Louisiana C. Cr. P. art. 882(A) provides that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, this court is not required to take such action. State v. Reynolds , 49,258 (La. App. 2 Cir. 10/1/14), 149 So.3d 471. The State did not object to the error, and Mathis is not prejudiced by the trial court's failure to impose the mandatory fine. This Court need not remand the case for correction of the sentence to include such a fine. We decline to remand the case for correction of the sentence to include the fine.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Kevin Q. Mathis are affirmed.

AFFIRMED.


author: BLEICH, J. (Pro Tempore )

text:
    John David KNIGHT, Plaintiff-Appellee v. Barney TUCKER and Donald, Tucker, Betts, Fuller & Knight, A.P.A.C., Defendants-Appellants
    No. 52,438-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 16, 2019
    DONALD L. KNEIPP, Monroe, Counsel for Appellants
    PHELPS DUNBAR, LLP, By: H. Alston Johnson, III, Thomas H. Kiggans, Baton Rouge, Counsel for Appellee
    Before PITMAN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This action was filed by Plaintiff, John David Knight, under the Louisiana Wage Payment Act ("LWPA"), seeking unpaid wages/salary, accrued vacation, expenses, and overtime compensation, as well as penalty wages, interest, and attorney fees from Defendants, Barney Tucker and Donald, Tucker, Betts, Fuller & Knight, A.P.A.C. In a previous appeal, this Court: (1) acknowledged the trial court's determination that Knight was entitled to unpaid wages of $49,500; (2) affirmed the trial court's denial of Knight's request for overtime, penalty wages, and liquidated damages; (3) reversed the denial of Knight's status as an employee, request for accrued but unused vacation leave, and attorney fees; and (4) remanded the matter to the trial court with instructions. See, Knight v. Tucker , 50,993 (La. App. 2d Cir. 11/16/16), 210 So.3d 407, writs denied , 17-0241 (La. 4/7/17), 218 So.3d 109. On remand, the trial court awarded Knight unused vacation pay of $2,596.16 and $80,000 in attorney fees. Defendant, Donald, Tucker, Betts, Fuller & Knight, A.P.A.C. ("the Firm"), has appealed this award as excessive, and Plaintiff has answered the appeal, urging that the award is inadequate and seeking an increase for work done in connection with this appeal. For the reasons set forth below, we affirm the trial court's judgment and award $4,500 in additional attorney fees to Knight for defense of the appeal.

FACTS AND PROCEDURAL BACKGROUND

The underlying facts and procedural background are set forth in this Court's prior opinion, Knight , supra , a copy of which is attached hereto as an Appendix. Following the rendition of Knight, supra , on November 8, 2017, Plaintiff filed a "Motion to Set Amount of Attorney's Fees and Vacation Pay." A hearing was held on this motion on March 23, 2018. Judgment was rendered by the trial court on April 20, 2018, granting Plaintiff vacation pay in the amount of $2,596.16, together with judicial interest from the date of judicial demand, and attorney fees in the amount of $80,000.

DISCUSSION

The Firm urges that, because attorney fees are only awarded on a "well-founded" claim for unpaid wages, and the $49,500 awarded regarding Knight's unpaid salary/wages was under a contractual arrangement, this amount was not in dispute at trial or on appeal, and took almost no effort by either party's counsel. Therefore, the "unpaid wages" contemplated by La. R.S. 23:632(B) does not include the $49,500, and the trial court erred in awarding attorney fees based on anything other than Knight's entitlement to unused vacation pay of $2,596.16.

Knight, however, correctly points out that both the trial court, in its ruling on remand, and this Court in its first opinion, clearly stated that the award of attorney fees to which Knight was entitled was based on his successful claim for $49,500 in unpaid salary and $2,596.16 in unused vacation pay, both of which constituted "wages" under the LWPA. As observed by this Court in Knight , 210 So.3d at 420, "Plaintiff's suit is 'well-founded' in that he has already recovered on his claim for unpaid wages and, in this appeal, is successful in his claim for vacation pay , if not overtime or penalty wages. (Emphasis added). Furthermore, for the purposes of the LWPA, wages are any amounts due under the terms of employment which are earned during a pay period. Hanks v. Louisiana Companies , 16-334 (La. App. 3d Cir. 12/14/16), 205 So.3d 1048, writ denied , 17-0260 (La. 5/19/17), 220 So.3d 749 ; Williams v. Dolgencorp., Inc. , 04-139 (La. App. 3d Cir. 9/29/04), 888 So.2d 260, amended on reh'g , (La. App. 3d Cir. 12/22/04), writ denied , 05-0174 (La. 3/24/05), 896 So.2d 1042. We find, therefore, that he is entitled to an award for attorney fees." This assignment of error is without merit.

We next turn to an analysis of whether the trial court's attorney fee award of $80,000 constitutes an abuse of discretion as excessive or inadequate.

Reasonable attorney fees are to be awarded for a well-founded suit for any unpaid wages. La. R.S. 23:632(C) ; Webb v. Roofing Analytics, LLC , 48,248 (La. App. 2d Cir. 7/24/13), 121 So.3d 756 ; Smith v. Acadiana Mortgage of Louisiana, Inc. , 42,795 (La. App. 2d Cir. 1/30/08), 975 So.2d 143 ; Hanks, supra ; Saacks v. Mohawk Carpet Corp. , 03-0386 (La. App. 4th Cir. 08/20/03), 855 So.2d 359, writ denied , 03-2632 (La. 12/12/03), 860 So.2d 1158.

Factors to be considered in determining the reasonableness of an attorney's fee award include the following: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. State, Dept. of Transportation and Development v. Williamson , 597 So.2d 439 (La. 1992); U.L. Coleman Company, Ltd. v. Gosslee , 51,396 (La. App. 2d Cir. 11/3/17), 244 So.3d 783, writ denied , 18-0239 (La. 4/16/18), 240 So.3d 180 ; Smith, supra .

The trial court is vested with considerable discretion in setting attorney fees and will not be disturbed absent an abuse of that discretion. U.L. Coleman Company, Ltd., supra ; Webb, supra ; Smith, supra .

The following is excerpted from the trial court's oral reasons for judgment:

The court has thoroughly reviewed Mr. Knight's attorney's motion to fix the attorney's fees. I considered the amounts, and I've also considered the charges set forth by Mr. Jeff Koonce, Mr. Thomas Kiggans, Brandy Bells Cole, Jessica Houghman, Paul LeBlanc, Jr., and Shelby Guidry. The court likewise remembers the testimony of Attorney James Carroll who indicated, paraphrasing in this court's view, that Mr. Kiggans' bill was upwards to the top or at the top end of the billing chart in his view. When asked was his bill reasonable both Mr. Carroll and Ms. Allison Jones found that they had reviewed the bill of Mr. Kiggans and found that it was in their view, professional opinion, reasonable under the circumstances. The court likewise heard from Attorney Tom Hayes, III. Mr. Hayes noted that he was familiar personally with the charges of both of paralegals as well as ... very capable attorneys in the area. He cited several attorneys' names that had done and participated in federal suits ... who had received and been granted [fees of] approximately $150-$200 an hour....
[D]uring the original suit Mr. Kiggans and Mr. Knight prevailed on the $49,500 unpaid salary at trial. Mr. Kneipp indicated that had been satisfied with judicial interest from the date of demand. Likewise on appeal Mr. Knight wanted the vacation pay and this court does set the vacation pay at $2,596.16 plus judicial interest from the date of demand ... The court also notes that under the Louisiana Wage Payment Statute attorney's fees are mandated, and the court is mandated to award reasonable attorney's fees for "a well-founded suit for unpaid wages;" ... the Court of Appeal Second Circuit found that this suit was "well founded" ...
[I]f you tally it up and you add up the figures that were actually awarded before and after trial [Knight] won on his $49,500 unpaid salary/wage claim, and he also won and will be awarded $2,596.16 [for unpaid vacation] plus judicial interest from date of demand. That total is $52,096.16. The matters that were not won total $20,000 for reimbursement expense claims, unpaid overtime claim of $13,583.64, liquidated damages claim of $13,583.64, and he further lost on the penalty wages ... claim of $25,961.58... [for a total of] $73,687.87. The difficulty that this court faces is I have a tremendously large bill and a portion of that which is alleged to have been written off, and if I take Mr. Kiggans at his word as an officer of the court I believe that to be the case, an additional $35,000. I also have an award of back wages in the amount of $49,600 which was granted by this court as well as the additional $2,596.16 in vacation pay that was granted by the Court of Appeal....
Mr. Kiggans comes and presents to the court that he and his firm have worked for some six years. They have gone to the Court of Appeal. They've gone to the Supreme Court through Writs. They took the court's original judgment and trial court's ruling up. They did receive additional relief. They were determined to be an employee rather than a partner ...
Reasonable attorney's fees will be set at this time. I attempted to do the best that I could, and I carefully considered all of the pleadings filed, the testimony, evidence presented, as well as the arguments of counsel, the witnesses that did appear in front of this court, and the applicable State and Federal case law at the March 23rd hearing as well as the briefs that I had mentioned earlier....
[I]t is ordered that the plaintiff's request for reasonable attorney's fees as determined by the court after having reviewed the testimony in full, considering their entire presentation, skill, efforts and in Kneipp's view possibly overworking the case I factored both arguments in and I will award the sum of $80,000 [in attorney fees] and vacation pay in the sum of $2,596.16 plus judicial interest from the date of judicial demand. This case has gone on for some six years. It was fully litigated in a day and a half. These attorneys are out of town, and the billing records are and have been considered fully by the court.

It is obvious that the trial court gave thoughtful consideration to the applicable factors in its determination of a reasonable attorney fee. The trial court specifically discussed: the relief sought and the results ultimately obtained by counsel for Knight; the amount of money involved; the length of this litigation and the number of appearances made; the intricacies of this case; the diligence and skill of counsel (for both parties); and the court's own knowledge. We find no abuse of discretion in the trial court's award of $80,000 in attorney fees in this case. While this amount was obviously a compromise between the awards urged by Knight and the Firm, it is well-supported by the record and will not be disturbed.

Knight, in his answer to the appeal, has sought an additional award of $10,000 in attorney fees for the costs he incurred in defending this appeal. It is within this Court's discretion to award attorney fees for defending an appeal. U.L. Coleman Company, Ltd., supra ; Webb, supra ; Hanks, supra . The skill exercised by the attorney and the time and work done on the appeal are factors to be considered in determining the amount of the award for attorney fees. Webb, supra . Considering the work required in defending this appeal, we find that an increase of $4,500 in attorney fees is warranted, which brings the total attorney fee award in this matter to $84,500.

CONCLUSION

For the reasons set forth above, we affirm the trial court's judgment and award additional attorney fees to Plaintiff, John David Knight, for defense of this appeal. Costs of the appeal are assessed against Defendant, Donald, Tucker, Betts, Fuller & Knight, A.P.A.C.


author: GARRETT, J.

text:
    Virginia A. GREEN, Plaintiff-Appellant v. LOUISIANA WORKFORCE COMMISSION and Minden Medical Center, Defendants-Appellees
    No. 52,439-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    BARRY W. DOWD, Monroe, Counsel for Appellant
    J. JEROME BURDEN, DANELLE L. GILKES, Counsel for Appellee, Louisiana Workforce Commission
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   GARRETT, J.

The claimant, Virginia A. Green, was denied unemployment compensation benefits in an Appeals Tribunal decision, and she appealed. However, due to the inaudibility of the recording of the Appeals Tribunal hearing, the Board of Review vacated that decision and remanded for another Appeals Tribunal hearing before an administrative law judge ("ALJ"). Following the hearing on remand, the Appeals Tribunal again denied her claim. The claimant did not appeal from that ruling for almost a year and a half. Consequently, the Board of Review dismissed that appeal as untimely. The claimant now appeals from a district court judgment which affirmed the Board of Review's decision. We affirm the district court judgment.

FACTS

The record indicates that the claimant began working at Minden Medical Center ("MMC") as a certified nursing assistant in 2011. She was terminated on November 5, 2015, for unsatisfactory job performance. Thereafter, she filed a claim with the Louisiana Workforce Commission ("LWC") to obtain unemployment compensation benefits.

On December 14, 2015, a notice was mailed to her stating that she was denied benefits because she was discharged for misconduct connected with her employment, i.e., she failed to perform the work assignment as expected and continued to neglect her duties after warnings. See La. R.S. 23:1601(2). She was informed that she had 15 days to appeal this determination by the Agency. She filed a timely appeal, pursuant to La. R.S. 23:1629.

On January 21, 2016, a telephone hearing before an ALJ was held, during which the claimant and a representative of her employer, Director of Human Resources Mary Winget, participated. John Crumpler, MMC's senior care nurse manager, and Terry Miller, the director of senior care, served as witnesses for the employer. On January 25, 2016, the Appeals Tribunal decision of the ALJ was mailed to the parties. Based on the evidence presented, the ALJ concluded that the claimant was discharged for misconduct connected with her employment. Consequently, the decision affirmed the Agency's determination that the claimant was disqualified for unemployment compensation benefits effective November 5, 2015. The documentation with the written ruling informed the claimant that the decision to dismiss was final "unless an appeal is filed within 15 days of the mail date shown on the first page of this notice." On February 16, 2016, the LWC mailed to the claimant an acknowledgment that she had filed an appeal.

Also, on February 16, 2016, the Board of Review mailed its decision. It determined that it could not review the matter due to the inaudibility of the recording of the Appeals Tribunal hearing. As a result, it vacated the Appeals Tribunal decision and remanded the matter for another hearing.

On April 15, 2016, another hearing was held before the Appeals Tribunal. All of the same parties and witnesses participated again. The Appeals Tribunal decision was mailed to the parties on April 19, 2016. The findings of fact were essentially the same. In the conclusion of law section, the ALJ wrote a slightly more detailed analysis. However, she again concluded that the claimant was discharged for misconduct connected with the employment. The decision affirmed the Agency's determination that the claimant was disqualified for unemployment compensation benefits, effective November 5, 2015, to November 5, 2016. This decision was accompanied by the same appeal notice as the previous Appeals Tribunal decision.

On December 6, 2017, the claimant faxed a letter to the LWC, addressed to the "Appeals Board of [Review]." It stated that she "just did not know any better that I had to file the second appeal. Call center told me to go ahead and file."

On December 13, 2017, the Board of Review mailed its decision dismissing the claimant's request for appeal on the basis that it was filed untimely. In its findings of fact, the Board of Review found that the Appeals Tribunal decision was rendered and mailed to the claimant at her correct address on April 19, 2016. However, she did not file her appeal to the Board of Review until December 6, 2017, which was 596 days after the expiration of her appeal rights. Citing the jurisprudence, the Board of Review held that the 15-day period for appeal found in La. R.S. 23:1630(A) was a period of peremption and its running destroyed the claim so completely that any right of action ceased to exist and was lost.

On December 15, 2017, the claimant sought judicial review of the Board of Review's decision before the district court in Webster Parish where she was domiciled, pursuant to La. R.S. 23:1634(A). The LWC Administrator filed an answer and return in judicial review asserting that the Board of Review's decision should be affirmed. A certified copy of the administrator's record was filed into the record. On April 23, 2018, the district court issued a judgment affirming the Board of Review's decision. It stated that, having conducted a thorough review of the record, it found that the Board of Review's findings of fact were supported by sufficient, legal competent evidence as a matter of law. Based upon those findings, the district court found that the Board of Review's legal conclusions were correct as a matter of law.

The claimant, now represented by counsel, appealed the district court decision to this court, as permitted by La. R.S. 23:1634(B). She contends that her appeal should not have been dismissed by the Board of Review and she further contests her disqualification for benefits.

LAW

In relevant part, La. R.S. 23:1630(A) states:

The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal referee, initiate a review of such decision. The board of review may otherwise allow an appeal from such decision to be filed, within fifteen days after the date of notification or of mailing of a decision of an appeal referee, by any party entitled to notice of such decision, if such appeal is either mailed, as evidenced by the postmarked date, or is delivered by any such party.

This 15-day period is a period of peremption and its running destroys the claim so completely that any right of action ceases to exist and is lost. Jackson v. Office of Employment Sec. , 48,869 (La. App. 2 Cir. 4/9/14), 137 So.3d 180 ; Bullock v. Adm'r, Dep't of Employment Sec. , 628 So.2d 190 (La. App. 2 Cir. 1993) ; Thompson v. Adm'r, Louisiana Office of Employment Sec. , 514 So.2d 723 (La. App. 2 Cir. 1987) ; Jones v. Blache , 480 So.2d 894 (La. App. 2 Cir. 1985). See also Martin v. State Office of Employment Sec. , 554 So.2d 85 (La. App. 3 Cir. 1989), writ denied , 556 So.2d 43 (La. 1990) ; Mack v. Winn Dixie of Louisiana, Inc. , 442 So.2d 756 (La. App. 1 Cir. 1983) ; Delta Air Lines, Inc. v. Brown , 115 So.2d 903 (La. App. Orl. Cir. 1959).

There is a legal presumption that the decision of the ALJ was mailed on the date stated in the decision. Menyweather v. Office of Employment Sec. , 43,170 (La. App. 2 Cir. 4/30/08), 981 So.2d 814.

DISCUSSION

Because she received an acknowledgment of appeal mailed on February 16, 2016 (which pertained to the decision rendered following the first Appeals Tribunal hearing in January 2016), the claimant contends that she did not know that she had to appeal the decision issued after the second Appeals Tribunal hearing, which took place in April 2016. She further claims that, as a lay person, she was not put on notice that she needed to appeal a second time because the second telephone conference and the second decision were basically the same as the first ones. According to the claimant's brief, the district court should have found, as a matter of law, that the appeal from the first Appeals Tribunal decision was sufficient to interrupt the time delays "as it related to any of the proceedings related to this matter." She argues the statutes governing payments of unemployment compensation benefits are to be liberally construed in favor of the employee and to extend benefits as far as possible.

The LWC argues that the district court correctly affirmed the Board of Review's dismissal of the claimant's appeal. Although the claimant apparently filed a timely appeal from the January 2016 Appeals Tribunal decision, that decision was vacated. Thereafter, the claimant participated in the new hearing in April 2016, which resulted in a new decision. The new decision contained instructions for filing a further appeal and warned of the 15-day time limit. Yet the claimant failed to file an appeal from the second decision for approximately a year and a half. The LWC cites the jurisprudence that established that the 15-day period provided in La. R.S. 23:1630 is peremptory and that expiration of the period destroys the claim.

We agree with the position of the LWC and the decisions rendered below by both the Board of Review and the district court. We have carefully reviewed the record and all of the documents and relevant dates. The jurisprudence cited above is well established and has been uniformly consistent in this area. The claimant in this case was fully advised of the appeal delays following her receipt of the two Appeals Tribunal decisions. She failed to timely exercise her appeal rights after the second hearing. The claimant's failure to file an appeal from the April 2016 Appeals Tribunal decision within the 15-day peremptive period established in La. R.S. 23:1630(A) destroyed her claim. Accordingly, we find that the district court decision, which affirmed the Board of Review, was legally correct and fully supported by the record.

We pretermit as unnecessary any discussion of the claimant's other arguments.

CONCLUSION

The district court judgment is affirmed. Costs of this appeal are not assessed. La. R.S. 23:1692 ; Menyweather v. Office of Employment Sec. , supra .

AFFIRMED.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Jamie Roshard WOODS, Appellant
    No. 52,440-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, ALEXANDRA AIELLO, JOHN MICHAEL LAWRENCE, Assistant District Attorneys, Counsel for Appellee
    Before STONE, McCALLUM, and BLEICH (Pro Tempore), JJ.
   STONE, J.

The defendant, Jamie Roshard Woods, pled guilty to one count of illegal possession of stolen goods in excess of $1,500 pursuant to La. R.S. 14:69(B)(1). He was sentenced to 8 years at hard labor with credit for time served. The defendant now appeals his sentence on the grounds of constitutional excessiveness. For the following reasons, we affirm his conviction, vacate his sentence and remand for resentencing in accordance with the penalty provisions in effect at the time of the commission of the offense.

FACTS

On November 5, 2017, Jamie Roshard Woods attempted to sell a stolen four-wheeler to law enforcement officers in Bossier Parish. Woods was arrested and charged with one count of illegal possession of stolen things valued over $1,500. On February 27, 2018, Woods pled guilty as charged after being informed of and waiving his constitutional rights with no agreement as to sentencing, and the trial court ordered a presentence investigation report.

Woods appeared for sentencing on May 22, 2018. Prior to imposing sentence, the trial court noted its review of the presentence investigation report and consideration of the guidelines of La. C. Cr. P. art. 894.1, which required the court to balance aggravating and mitigating factors to determine Woods' overall sentencing exposure.

During sentencing, the trial court noted that consideration was given to the defendant's social history, including upbringing, education and background, and that "a lot of weight" was given to criminal history. To that point, the trial court expressed that Woods lacked "a good criminal history." Although the present offense is Woods' only crime in Louisiana, the trial court noted Woods' criminal history began in 2004 and even spanned across "several cities throughout Oklahoma and Texas."

After reviewing Woods' criminal history, the trial court determined that Woods was not eligible for probation, had several previous crimes of violence on his record and that any lesser sentence than the one imposed would deprecate the seriousness of the present offense. The trial court considered the "repetitive nature" of Woods' criminal history and imposed a sentence of 8 years at hard labor, with credit for time served.

Thereafter the trial court informed Woods of his appellate delays including delays for seeking post-conviction relief."

On May 24, 2018, Woods filed a motion to reconsider sentence raising only an excessive sentence claim, but without any specific argument. On May 24, 2018, the trial court summarily denied Woods' motion. This appeal ensued.

DISCUSSION

On appeal, Woods argues that his 8-year sentence for illegal possession of stolen things with a value of $1500 or more is excessive under the circumstances pointing out that under the current version of La. R.S. 14:69(B), the maximum sentence exposure is only 5 years with or without hard labor. For this reason, Woods asserts that the penalty change is dramatic because it reduces the maximum sentence that can now be imposed by half under the statute and warrants consideration in determining whether his sentence is excessive.

It is the settled rule in Louisiana that an offender's punishment is determined according to the law in effect at the time he committed his crime. State v. LeBlanc , 14-0163 (La. 1/9/15), 156 So.3d 1168, citing State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518 ; and State v. Parker, 03-0924 (La. 4/14/04), 871 So.2d 317.

From June 29, 2015 until July 31, 2017, La. R.S. 14:69(B)(1) provided:

Whoever commits the crime of illegal possession of stolen things, when the value of the things is one thousand five hundred dollars or more, shall be imprisoned with or without hard labor for not more than ten years, or may be fined not more than three thousand dollars, or both.

2017 La. Acts 281 § 1, effective August 1, 2017, re-designated La. R.S. 14:69 to include Section (B)(3) which now provides as follows:

When the value of the stolen things is one thousand dollars or more, but less than a value of five thousand dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than three thousand dollars, or both.

This Court can on its own motion review errors discoverable by a mere inspection of the pleadings, such as a sentence not sanctioned by statute. La. C. Cr. P. art. 920(2) ; State v. Cain , 382 So.2d 936 (La. 1980) ; State v. Wymore , 377 So.2d 283 (La. 1979), cert. denied , 447 U.S. 935, 100 S.Ct. 3038, 65 L.Ed.2d 1130 (1980) ; State v. Lindsey , 351 So.2d 1178 (La. 1977).

In the matter sub judice , the record does not reflect the value of the property involved in the crime. The law in effect at the time Woods committed the present offense on November 5, 2017, permitted a maximum sentence of not more than 5 years under La. R.S. 14:69 (B)(3), if the property value was $1, 000 or more, but less than $5, 000. The record reveals that the trial court sentenced Woods to 8 years at hard labor, with credit for time served. Thus, the trial court erroneously sentenced Woods under La. R.S. 14:69(B)(1), which had been restructured July 31, 2017. As such, we pretermit any discussion of the defendant's claim of excessive sentence.

Accordingly, we affirm Woods' conviction, vacate his sentence, and remand this matter to the trial court for resentencing in accordance with the penalty provisions in effect at the time of the commission of the offense. At the resentencing, the trial court is not precluded from conducting a full evidentiary hearing to determine the value of the stolen items prior to reimposing the sentence. See State v. Brown, 98-1633 (La. App. 1 Cir. 5/14/99), 737 So.2d 882 ; State v. Wimberly , 618 So.2d 908 (La. App. 1 Cir. 1993), writ denied , 624 So.2d 1229 (La. 1993) ; State v. Young , 556 So.2d 1321.

CONCLUSION

For the foregoing reasons, Woods' conviction is affirmed, his sentence is vacated and this matter is remanded to the trial court for resentencing in accordance with the penalty provisions in effect that the time of the commission of the offense and the actual property value.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      At the time of sentencing, the trial court also denied Woods' motion to withdraw his guilty plea.

      The trial court's instruction to Woods regarding the time limits for filing post-conviction relief was incomplete for failing to properly advise Woods that he had two years from the date that his "judgment of conviction and sentence become final," to seek post-conviction relief under La. C. Cr. P. art. 930.8. State v. Mazique , 09-845 (La. App. 5 Cir. 4/27/10), 40 So.3d 224, writ denied , 10-1198 (La. 12/17/10), 51 So.3d 19 ; State v. Grant , 04-341 (La. App. 5 Cir. 10/26/04), 887 So.2d 596. However, Woods' sentence is being vacated and he will be resentenced; therefore, any corrective action on this error patent is unnecessary at this time.


author: MOORE, J.

text:
    Mercedes BROWN, Plaintiff-Appellant v. AFFIRMATIVE CASUALTY INSURANCE COMPANY, et al., Defendant-Appellees
    No. 52,446-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 16, 2019
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellant
    TOMMY G. ZENTNER, JR., Counsel for Appellees
    Before MOORE, STONE, and COX, JJ.
   MOORE, J.

Mercedes Brown appeals a Monroe City Court judgment that rejected her claim for damages arising from a two-car accident. For the reasons expressed, we affirm.

FACTS

The accident occurred shortly before 6:00 pm on November 5, 2014. Ms. Brown was driving her 2003 Dodge Intrepid and carrying two passengers. They had just shopped at Advance Auto Parts, on Winnsboro Road, and were leaving to go to Ms. Brown's mother's house, on Marx Street, about five blocks west. This entailed making a left turn out of the Advance Auto Parts parking lot and onto Winnsboro Road, a four-lane, east-west artery. Ms. Brown successfully crossed the two eastbound lanes and entered the left westbound lane. However, she then collided with a 1998 Ford Mustang being driven west by Archie Keaton. Ms. Brown and Keaton gave vastly different accounts of exactly where the impact occurred, and this is essentially the issue on appeal.

Ms. Brown testified by deposition that before she left the Advance Auto Parts parking lot, she stopped, looked to make sure the road was clear, and noticed the Mustang in the parking lot of Mac's Fresh Market, almost directly across from Advance Auto Parts. However, she saw the road was clear, made her left turn, and got halfway into the left westbound lane when the Mustang hit her. She admitted she did not see the Mustang coming until it hit her; she assumed the driver had been pulling out of the driveway of Mac's, making a right turn. After impact, she could not move the Intrepid because the axle was broken.

Keaton, a 78-year-old retired trucker, testified by deposition that he was driving home from his brother's house, in Richwood, and had not been in the Mac's parking lot that evening. Driving in the right westbound lane, he saw the Intrepid trying to exit from Advance Auto Parts; he thought the driver was cutting straight across to ABC Auto Parts, directly across the street (and next to Mac's). When he saw her continuing to move through the left lane, he slowed almost to a stop. Even so, she ran into his left front, breaking his Mustang's headlight and parking light and bending its strut and hubcap. Keaton was somewhat ambiguous about whether he came to a complete stop, or just to a slow crawl, and would not say that the Intrepid "fully entered" the right lane before impact. However, he was consistent that he was always in the right lane, and if Ms. Brown had stayed in the left lane, there would have been no collision. He also testified that by the time police arrived, about seven minutes later, both vehicles were still in place.

PROCEDURAL HISTORY

Ms. Brown filed this suit in Monroe City Court against Keaton and his liability carrier, Affirmative Casualty Insurance Co. Affirmative Casualty went into receivership; its claims are now being administered by Louisiana Insurance Guaranty Association ("LIGA"). In September 2017, LIGA moved for summary judgment. In support, it offered the depositions summarized above. It also offered the deposition of Officer Tarra Smith, who worked the accident and wrote the accident report. Her diagram, on page 7 of the report, showed the Intrepid turning left and crossing 3 ½ lanes before striking the Mustang in the far right lane. Ofc. Smith also stated that she ticketed Ms. Brown for failure to yield and no driver's license. Ms. Brown, in deposition, admitted that she paid the ticket.

Ms. Brown opposed the MSJ, offering her affidavit to reiterate that she saw Keaton backing out of a parking space at Mac's but did not feel she needed to "keep him under observation." She also asserted that Keaton must have tried to make a right turn into the "inside" lane, and if he had stayed in the right lane, there would have been no accident.

The City Court denied summary judgment, ruling that it "cannot determine in what lane of traffic the accident occurred."

The case proceeded to trial before a different judge of the City Court in January 2018. The parties stipulated that they would submit the case "on the entire record," using the depositions developed on MSJ. Ms. Brown's counsel said he had subpoenaed one of the passengers in the Intrepid, Caryette Wilson, but had been unable to find her for service.

LIGA's counsel filed in evidence a compact disc of documents about insurance claims arising from this accident. These showed that Ms. Brown's two passengers, her friend Caryette Wilson and Ms. Wilson's one-year-old daughter, had filed a personal injury claim against Ms. Brown's insurer, GoAuto; GoAuto settled with them for $3,605 and made no claim that Keaton was partly responsible. Also, Keaton made a property damage claim, which GoAuto settled for $1,506. LIGA argued that these settlements, the police officer's report, and Ms. Brown's guilty plea to failure to yield proved that she was solely at fault in the accident.

The City Court rendered judgment stating that the sole cause of the accident was Ms. Brown in "making entry onto and across a roadway when she could not safely negotiate such a maneuver, and in failing to keep a proper lookout." The court also found that Keaton "rightfully occupied the lane of travel" at the time of the collision. The court dismissed Ms. Brown's claims.

Ms. Brown has appealed, raising two assignments of error.

DISCUSSION

By her first assignment of error, Ms. Brown urges the court committed manifest error in finding her solely at fault in causing the collision. She concedes that a left-turning motorist has a duty to proceed with great caution and to keep a proper lookout, but argues that a right-turning motorist also owes a certain duty: not to make a wide turn that crosses into the left lane. Smart v. Calhoun , 49,943 (La. App. 2 Cir. 7/29/15), 174 So.3d 168. She also asserts that every driver must stay in his own lane, Graves v. Page , 96-2201 (La. 11/7/97), 703 So.2d 566, and use ordinary care to avoid hazards ahead, Updegraff v. State , 2001-1048 (La. App. 4 Cir. 10/2/02), 828 So.2d 693, writs denied , 2002-2909, -2916 (La. 2/7/03), 836 So.2d 103, 105. She contends that Keaton was either turning right or going straight ahead; either way, he breached a duty of care.

In support, she cites the view advanced in her own deposition and affidavit that Keaton was trying to pull out of the Mac's driveway just as she was entering the left westbound lane, and he turned too wide into her lane. She stresses Keaton's reluctance to state that the Intrepid fully entered the right lane, and notes some inconsistencies between his deposition and the police report (such as saying he was at almost a complete halt, when the police report said he was doing about 30 mph, or saying that a fire truck was sent to the scene, a point not noted at all in the police report). She also argues that Ofc. Smith had no training in accident reconstruction, so her conclusion (which, according to Ms. Brown, does not match either party's testimony) should be disregarded. Finally, she denies that paying the traffic ticket was an admission against interest, as she did so without legal representation.

If the facts are viewed in this manner, she submits, a trier of fact could conclude only that the accident occurred in the left lane , and Keaton was simply not being honest about how far he strayed to the left when he made his right turn. In the alternative, she submits that if the accident happened on the centerline, then there should be comparative fault. She asks for judgment finding Keaton was 100% at fault, or at least 50% at fault.

A reviewing court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State , 617 So.2d 880 (La. 1993). To reverse a factual finding, the appellate court must find from the record that (1) a reasonable factual basis does not exist for the finding of the trial court and (2) the finding is clearly wrong or manifestly erroneous. Id. ; Read v. Willwoods Cmty. , 2014-1475 (La. 3/17/15), 165 So.3d 883, 40 IER Cases 1022. The reviewing court cannot merely review the record for some evidence that supports the finding; it must review the entire record to determine whether the finding is manifestly erroneous or clearly wrong. The manifest error standard applies even when a case has been submitted solely on a written record. Shephard v. Scheeler , 96-1690 (La. 10/21/97), 701 So.2d 1308 ; Chaney v. Vaughn , 51,795 (La. App. 2 Cir. 2/28/18), 245 So.3d 1208.

We have closely examined the evidence regarding where the collision occurred. Ms. Brown stated in deposition that she "turned into the lane close to the - the inner lane" and "was almost halfway in the lane before he struck [me]." She admitted she saw the Mustang backing out of a space at Mac's; later, by affidavit, she added, "then I looked away instead of keeping him under observation and I didn't see him again until we collided." Finally, she disagreed with Ofc. Smith's rendition of the accident.

Keaton's deposition is, admittedly, not a model of clarity. He consistently stated that he was in the right lane, but, when asked by Ms. Brown's counsel if the Intrepid entered his lane of travel, he replied, "No. She stayed in the right-hand lane - I mean the left-hand lane when she hit - when she hit me. She stayed in the left-hand lane because I had done stopped." Moments later, counsel asked what lane he was in when the accident occurred; he replied, "The right-hand lane," but "No, she didn't enter the right lane. She [was] on the line of the right lane." When Affirmative Casualty's counsel asked if the other driver came into his lane, Keaton again said, "No, not in the lane," and stated that the diagram in the police report was inaccurate because the Intrepid "slidded over there" after impact, but the diagram was accurate in showing his Mustang in the right lane.

Both parties agreed that their vehicles were still in place when Ofc. Smith arrived, and her diagram put the point of impact in the middle of the right lane. Moreover, Ofc. Smith wrote that Keaton told her he was "traveling west on Winnsboro Rd in the far right lane when he was struck by" the Intrepid. This supports Keaton's deposition testimony that he was in the right lane on impact, and counters Ms. Brown's view that they were in the left lane or straddling the centerline.

It is significant that Ms. Brown's own insurer, GoAuto, paid her passengers' personal injury claims as well as Keaton's property damage claim, never asserting that anybody but Ms. Brown was at fault.

Finally, Ms. Brown strongly argues that the damage to the two vehicles was more consistent with a collision in the left lane. We have closely examined the photocopied snapshots attached to Ms. Brown's affidavit and cannot say they are at all conclusive. The minor damage around the right front wheel well of the Intrepid is not distinctive enough to show whether the impact occurred in the right or left lane.

Although there is some evidence that would undermine the City Court's finding, there is not enough to make that finding clearly wrong or manifestly erroneous. We cannot say that the City Court abused its discretion in accepting Ofc. Smith's report of the accident, a portion of Keaton's account, and the decisions of Ms. Brown's own insurer, in favor of Ms. Brown's account. This assignment of error lacks merit.

By her second assignment of error, Ms. Brown urges the court erred in failing to award damages. As we have affirmed the portion of the judgment finding Ms. Brown 100% at fault, we pretermit any consideration of damages.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, Mercedes Brown.

AFFIRMED .

      She also cites an "Accidental Injury Report," filled out by her adult passenger, Ms. Wilson, to get treatment with a chiropractor, as corroborating her (Ms. Brown's) version of the accident. On close examination, however, we do not see that this item was actually filed into evidence at trial, but only attached to Ms. Brown's posttrial brief. Neither this court nor the City Court is authorized to consider it as evidence. Denoux v. Vessel Mgmt. Servs. Inc. , 2007-2143 (La. 5/21/08), 983 So.2d 84 ; Swaggart v. Doe , 50,739 (La. App. 2 Cir. 4/5/17), 216 So.3d 1118, writ denied , 2017-0758 (La. 9/22/17), 227 So.3d 822.