text:
    STATE of Louisiana, Appellee v. Stephen Michael MCGILL, Appellant
    No. 52,169-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT, By: Chad Ikerd, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MONIQUE Y. METOYER, RACHEL KING, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STEPHENS, and MCCALLUM, JJ.
   STEPHENS, J.

This criminal appeal by Stephen Michael McGill arises from the First Judicial District Court, Caddo Parish, State of Louisiana. Following a jury trial, McGill was convicted of aggravated second degree battery, in violation of La. R.S. 14:34.7, and subsequently adjudicated a fourth-felony habitual offender and sentenced to the mandatory term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. McGill appealed, and this Court affirmed his conviction but vacated his habitual offender adjudication and sentence. On remand, McGill was adjudicated a third-felony offender and sentenced to 27 years at hard labor, without benefit of probation, parole, or suspension of sentence, with credit for time served. McGill now appeals his adjudication as a third-felony offender. For the following reasons, we affirm McGill's habitual offender adjudication and sentence.

FACTS

Following a jury trial, McGill was convicted of aggravated second degree battery, in violation of La. R.S. 14:34.7, for stabbing and severely beating his girlfriend, Cynthia Darby. McGill was subsequently adjudicated a fourth-felony habitual offender based on the following predicate offenses:

• Aggravated battery, Criminal Docket No. 168,402: pled guilty on May 25, 1994; four years at hard labor, three years suspended with three years' probation;
• Possession of a firearm by a convicted felon, Criminal Docket No. 189,131: convicted on August 20, 1997; ten years at hard labor;
• Possession of Schedule II CDS, Criminal Docket No. 257,640: pled guilty on September 10, 2007; five years at hard labor; and,
• Attempted possession of a firearm by a convicted felon, Criminal Docket No. 290,195: pled guilty on October 28, 2010; five years at hard labor.

McGill was sentenced to the mandatory term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, this court affirmed McGill's conviction, but found that the repeated use of predicate offenses in his habitual offender adjudication constituted double enhancement. Notably, the aggravated battery conviction in Docket No. 168,402 was used as an element in the possession of a firearm by a convicted felon conviction in Docket No. 189,131, and the possession of a firearm by a convicted felon conviction in Docket No. 189,131 was used as an element in the attempted possession of a firearm by a convicted felon conviction in Docket No. 290,195. Therefore, this court vacated the habitual offender adjudication and sentence and remanded the matter for further proceedings. State v. McGill , 50,994 (La App. 2 Cir. 1/11/17), 213 So.3d 1181, writ not cons. , 2017-0455 (La. 4/24/17), 219 So.3d 329.

Following remand, the state filed a third-felony habitual offender bill of information based on the following predicate offenses:

• Possession of a firearm by a convicted felon, Criminal Docket No. 189,131: convicted August 20, 1997; ten years at hard labor; and,
• Possession of Schedule II CDS, Criminal Docket No. 257,640: pled guilty on September 10, 2007; five years at hard labor.

A second habitual offender hearing was held, during which the trial court took judicial notice of both the prior habitual offender hearing and the trial on the merits. The trial court subsequently adjudicated McGill a third-felony offender and sentenced him to 27 years at hard labor. This appeal by McGill ensued.

DISCUSSION

McGill brings only one assignment of error, arguing that the trial court erred in finding he was a third-felony habitual offender. Specifically, he maintains that the state did not sufficiently prove he was the same person who had been convicted of the two predicate convictions alleged at the second habitual offender adjudication hearing. We disagree.

At the first habitual offender hearing, the state presented certified copies of the bills of information with fingerprints and certified copies of the court minutes of the two predicate convictions alleged here. Lieutenant Owen McDonnell, an expert in fingerprint analysis, testified that he had taken McGill's fingerprints in open court prior to the hearing and compared them to McGill's fingerprints located in the two prior conviction records. He testified that the fingerprints in the documents related to Docket No. 189,193, possession of a firearm by a convicted felon, matched those of McGill taken in court and that the date of conviction in that docket number was August 20, 1997. Lt. McDonnell further testified that the fingerprints in the documents related to Docket No. 257, 640, possession of a Schedule II CDS, also matched those of McGill taken in court and that the date of conviction in that docket number was September 10, 2007.

On remand at McGill's second habitual offender hearing, the state, again, presented certified copies of the bills of information with fingerprints and certified copies of the court minutes for both prior convictions. Like Lt. McDonell, Sergeant Danny Duddy, an expert in fingerprint identification and analysis, testified that he had taken McGill's fingerprints in open court prior to the hearing and compared them to McGill's fingerprints located in the two prior conviction records. He testified that the fingerprints in the documents related to Docket No. 257,640, possession of a Schedule II CDS, matched those of McGill taken in open court and that the date of conviction for that drug offense was October 3, 1997. Sergeant Duddy further testified that he was not able to make a comparison of the fingerprints contained in the documents related to Docket No. 189,131, possession of a firearm by a convicted felon, because the fingerprints, presented on a microfilm copy of the bill of information, were too small and of low quality. While Sgt. Duddy testified that based on the fingerprints, he was not able to determine if McGill was the person who was actually charged in that case, he did note that McGill's full name was on the bill of information and the minutes showed McGill was convicted of that offense on September 10, 2007. Notably, during his testimony, Sgt. Duddy inadvertently transposed the dates of McGill's two prior felony convictions-the conviction for possession of a firearm by a convicted felon occurred on August 20, 1997, and the sentence was imposed on October 3, 1997, while the conviction for possession of a Schedule II CDS occurred on September 10, 2007.

Following arguments at the second hearing, the trial court reviewed the record from the first hearing and took judicial notice of the prior habitual offender hearing but stated it did not consider the exhibits from that hearing because although they were introduced into evidence, they were apparently never provided to the clerk to be made a part of the record and were believed to still be in the possession of the state. The trial court additionally reviewed the transcript and took judicial notice of McGill's trial on the merits, specifically McGill's testimony during which he admitted to both prior convictions. Thereafter, the trial court held that the state had met its burden of proof to establish beyond a reasonable doubt that McGill was the same person who was convicted of the two prior felonies in docket numbers 189,131 and 257,640.

To meet its burden under the Habitual Offender Act, the state must establish both the prior felony conviction and the defendant's identity as the same person who committed that prior felony. State v. White , 2013-1525 (La. 11/8/13), 130 So.3d 298 ; State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 2014-0990 (La. 1/16/15), 157 So.3d 1127. Both the identity and the prior conviction alleged must be proven beyond a reasonable doubt. La. R.S. 15:529.1(D)(1)(b) ; State v. Brown , 2011-1656 (La. 2/10/12), 82 So.3d 1232 ; State v. Broome , supra . The trial court's determination of this question of fact will only be reversed if it is clearly wrong. State v. Collins , 48,782 (La. App. 2 Cir. 2/26/14), 136 So.3d 912, writ denied , 2014-0645 (La. 10/31/14), 152 So.3d 150.

The Louisiana Supreme Court has repeatedly held that the Habitual Offender Act does not require the state to use a specific type of evidence to carry its burden at a habitual offender hearing. Rather, prior convictions may be proved by any competent evidence. State v. White , supra . Various methods of proof establishing identity have been recognized as sufficient to sustain the state's burden of proof, including testimony of witnesses, expert opinion as to fingerprints, photographs contained in duly authenticated records, and evidence of identical driver's license number, sex, race, and date of birth. State v. Payton , 2000-2899 (La. 3/15/02), 810 So.2d 1127 ; State v. Collins , supra .See also State v. Stanfield , 2013-1193 (La. App. 4 Cir. 3/26/14), 137 So.3d 788, writ denied , 2014-0833 (La. 11/21/14), 160 So.3d 969 (matching the fingerprints on the bill of information from the initial crime is not required for the state to prove that a defendant charged as a habitual offender is the same person previously convicted); State v. George , 2015-1189 (La. App. 4 Cir. 11/9/16), 204 So.3d 704, writ denied , 2016-2242 (La. 3/24/17), 216 So.3d 814 (certified conviction packet and the defendant's trial testimony admitting his prior conviction were sufficient to support the defendant's adjudication as a second-felony habitual offender).

The trial court can properly take judicial notice of the defendant's trial testimony admitting his prior convictions in finding that the state presented sufficient proof at the habitual offender hearing that the defendant was the same person who had pled guilty to the predicate offenses. State v. Brown , supra , citing State v. Jones , 332 So.2d 461 (La. 1976) (A trial judge may take judicial notice during habitual offender proceedings "of any prior proceeding which was a part of the same case he had previously tried."). See also State v. Roland , 49,660 (La. App. 2 Cir. 2/27/15), 162 So.3d 558, writ denied , 2015-0596 (La. 2/19/16), 186 So.3d 1174 ("On remand in habitual offender proceedings, another habitual offender hearing presenting evidence to readjudicate is not necessarily required.").

McGill argues that Sgt. Duddy's failure to identify his fingerprints on the bill of information regarding the conviction for possession of a firearm by a convicted felon as well as Sgt. Duddy's incorrect testimony regarding the dates of McGill's prior convictions should have precluded the trial court from determining the state sufficiently proved he was a third felony offender. However, although Sgt. Duddy was unable to match McGill's fingerprints taken the day of the second hearing with those from McGill's firearm conviction, McGill admitted at the trial on the merits that he was previously convicted of possession of a firearm by a convicted felon in 1997 and of possession of cocaine in 2007. Likewise, despite Sgt. Duddy's incorrect testimony as to the dates of McGill's prior convictions, McGill's testimony was consistent and corresponded with the certified documents introduced by the state at both the first and second habitual offender hearings which reflect the correct dates of the convictions. The trial court properly took those admissions into account in finding that the state presented sufficient competent evidence to establish McGill's identity and prior convictions.

Furthermore, the trial court was clearly permitted to take judicial notice during the second habitual offender hearing of any prior proceedings which were a part of the same case. Our prior opinion vacating the first habitual offender adjudication was based only on double enhancement and not the sufficiency of the evidence of identity; as such, the trial court was not required to conduct an entirely new hearing when the evidence introduced at the first hearing would have been sufficient to establish identity. Nevertheless, the trial court appropriately took judicial notice of the evidence admitted in McGill's first habitual offender hearing and his admissions during the trial on the merits.

The trial court gave appropriate weight to witness testimony, properly took judicial notice of the record and the prior proceedings, including the trial court's own personal knowledge of McGill's admissions during trial, and considered the exhibits, including the fingerprints, the certified minutes, and the bills of information for each prior conviction. Sergeant Duddy's failure to match McGill's fingerprints during the second habitual offender hearing does not lessen the weight of the other evidence presented-notably, that McGill admitted to the convictions at the trial on the merits and that proof of McGill's prior offenses was already in the record from the first habitual offender hearing. Louisiana law is clear that there is not an exclusive method required to prove prior felony convictions. Here, the abundant evidence, accumulated over three proceedings, was clearly sufficient to prove beyond a reasonable doubt that McGill was the same person who was convicted of both predicate felony convictions. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Stephen Michael McGill's adjudication as a third-felony habitual offender and sentence are affirmed.

AFFIRMED.

      The fingerprint identified by Lt. McDonnell at the first hearing was a full-size image of better quality.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF D.E. and H.E.
    No. 52,305-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    ROSS E. SHACKLETTE, Bossier City, Counsel for Appellant, Harold Echols, III
    D. TOMLIN WILSON, Counsel for Appellant, Mary Slater
    LAURA M. NANDA, Counsel for Appellees, D.E. and H.E.
    JAMES E. STEWART, SR., District Attorney, SARAH M. HOOD, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee, State of Louisiana
    Before BROWN, PITMAN, and McCALLUM, JJ.
   McCALLUM, J.

In this child in need of care proceeding, Mary Slater ("Slater") and Harold Echols, III ("Echols"), appeal a judgment awarding guardianship of their two minor children to Slater's cousin.

We affirm the judgment of guardianship, but remand the matter to the lower court to set specific supervised visitation.

FACTS

Slater and Echols, who are unmarried, are the biological parents of D.E., who was born on March 11, 2012, and H.E., who was born on November 13, 2017. Slater, who is 25 years old, has no other children. Echols, who is 37 years old, has two other children: a 13-year-old over whom Echols' parents have guardianship, and a 19-year-old.

On November 14, 2017, the Louisiana Department of Children and Family Services ("Department") learned that the newborn H.E.'s urine drug screen test was positive for opiates, and that Slater did not have a prescription for the medication. Slater, who tested positive for amphetamines and opiates, denied past drug use and claimed that she had borrowed pain medication from her grandmother for tooth pain. She also claimed that she tested positive for amphetamines because she had been taking Lipozene. It was noted by the attending physician that H.E. displayed withdrawal symptoms.

Slater had no prior history with the Department, while Echols had been the parent of two children who had been placed in foster care because of neglect. On November 21, 2017, the Department made a home visit. Slater and Echols admitted to a history of drug use, with heroin as their drug of choice, but denied recent use of illegal substances. Test results were received on that date showing that Slater tested positive by hair screen and urine screen for amphetamine and methamphetamine. When Slater was confronted on November 30 about her test results, she admitted that she had lied earlier about her drug use and had used methamphetamine the week before H.E. was born.

A hair sample was obtained from Echols on November 22 after he failed to produce enough urine for a specimen. Results received on November 29 showed that he was positive for amphetamine, THC, and methamphetamine on the rapid screen. Echols was positive for amphetamine, methamphetamine, cocaine, and marijuana metabolite on the hair screen.

On December 6, all four of the family members were screened for drugs. Slater and Echols submitted to rapid urine screenings, and hair samples were taken from the children. Slater's screen was negative for all substances. Echols submitted a substitute sample, and after being confronted, he admitted to having used methamphetamine, marijuana, and Subtex. A rapid screen of his valid urine sample was positive for amphetamine, methamphetamine, methadone, and opiates. The Council on Alcoholism and Drug Abuse ("CADA") was contacted when Echols expressed interest in inpatient substance abuse treatment, and he was placed on a waiting list.

On December 8, Slater and Echols were referred to Active Recovery for outpatient substance abuse treatment. On December 13, CADA found Echols to be inappropriate for treatment there because of his social anxiety, multiple personality, and bipolar disorders. These mental health issues had gone untreated for 15 years. He was referred to a behavioral hospital, and it was recommended by CADA that he obtain medication for his mental health disorders before he would be accepted for treatment.

On December 13, the results of D.E.'s hair drug screen were received. He tested positive for methamphetamine. The next day, the results of H.E.'s hair drug screen were received. She tested positive for amphetamine and methamphetamine.

On December 14, the Department obtained the results of Echols' urine drug screen. He tested positive for amphetamine, methamphetamine, and marijuana metabolite.

An oral emergency instanter order was issued on December 15 removing D.E. and H.E from their parents. An instanter order was signed on December 18.

A continued custody hearing was held on December 19. The attorney for the children told the court that D.E. wanted to be placed with Donald Clarke ("Donald") and Wendy Clarke, who live in Dallas, Texas. Donald, who is Slater's cousin, is the husband of Wendy. Donald's sister, who was willing to be a placement resource, appeared at the hearing. She told the court that Donald had a relationship with D.E. and had supported D.E. since he was a newborn, and that she thought placement with the Clarkes would be in D.E.'s best interest. The court placed the children in the legal custody of the Clarkes, with visitation at the Clarkes' discretion. The court ordered an ICPC home study of the Clarkes, and set a hearing for adjudication and disposition. The court also ordered both parents to be evaluated for substance abuse treatment; if treatment was recommended, they were to successfully complete the drug program at Family Preservation Court ("FPC").

Slater and Echols submitted to drug tests on January 23. Slater's rapid screen was negative for all substances. Echols' rapid screen was positive for methamphetamine. The results of the hair screens and send-off urine screens were received on January 30. Slater's hair drug screen was again positive for amphetamine and methamphetamine, albeit at a lower level than her hair screen in November. Echols'

send-off urine drug screen was positive for methamphetamine, and his hair drug screen was positive for amphetamine, cocaine, marijuana metabolite, and methamphetamine.

In January, the court ordered Slater and Echols to participate in and follow all rules of substance abuse treatment and the FPC. Slater was found appropriate for treatment on January 25, and began substance abuse treatment through the FPC on January 31. She also began working at a local restaurant. On January 24, Echols was found appropriate for treatment, and began substance abuse treatment through the FPC on January 31. He also began working at the same restaurant on a part-time basis. Both parents were referred to Bridges to Recovery for mental health counseling and treatment.

The Department wrote to the court on February 5, noting that the ICPC Home Study request for the Clarkes had not been submitted to their office. The Department also noted that Slater and Echols had attended all scheduled visits with the children, and that all interaction had been observed to be appropriate.

The State filed a petition on January 18 asserting that the children should be adjudicated in need of care. An adjudication hearing was held on February 6. The parties stipulated that the parties named in the petition would testify as set out in the petition if they were called to testify. The court adjudicated the children to be in need of care, set a disposition hearing for March 6, and ordered custody to be continued with the Clarkes.

The disposition hearing was held as scheduled on March 6. The Department recommended that the court maintain the status quo and that the parents continue to work their case plans. The Department representative reported: (1) the parents were "doing pretty well" in the FPC program; (2) Slater was testing negative for drugs, and was attending groups regularly with any absences being excused; (3) Echols was attending groups regularly with any absences excused; (4) Echols had a positive test for alcohol on February 21, but had tested negative for other substances; and (5) Echols, who was working part time at a restaurant, was currently taking medication, and had completed inpatient psychiatric treatment.

The children's attorney informed the court at the disposition hearing that Donald desired guardianship of the children. Donald told the court that for several reasons he thought it was in the children's best interest to remain with them. First, D.E. had been in and out of their lives for five years as he had been going from house to house and staying with different families, which affected D.E. mentally and possibly physically. Second, the parents had been struggling with their issues for a long time. Third, he felt the children would have a great chance in life by remaining with the Clarkes. Fourth, D.E. wanted stability, which he was getting with the Clarkes, and was doing well in school. Donald, who stated he would be open to overnight visits, acknowledged that the children love their parents, but he thought they preferred more stability and guidance in life. Slater said she agreed to an extent, but that in light of the personal changes that she had made, she did not think the children were ever in need of care. She did not contest that their drug use had affected the children. Echols also agreed, but thought if guardianship were granted it would be harder for them to regain custody; thus, he wanted to keep things as they were while they continued to work their case plan. The father's attorney suggested to the court that it was premature to discuss the permanency of guardianship, and it would be better to await the review hearing scheduled for June 14. The attorney for the mother pointed out that H.E. had not been subjected to a long life of turmoil as she was only three months old.

The Department reported to the court that both parents were receiving counseling at Milestones. The Department acknowledged that because Slater had been using illegal substances for 10 years, and Echols for 20 years, it was their opinion that it would take some time for the parents to adjust and obtain sobriety. The Department told the court it could no longer provide supervision and case management if guardianship was granted; however, the Department acknowledged that even under guardianship, the parents would still be able to receive counseling and be ordered to continue in drug court. The Department reiterated that it was concerned that if guardianship were granted at that early date, the parents would not be given the opportunity to work their case plans. The Department believed it was very early in the matter to make that recommendation.

The attorney representing the children agreed with the Department that it was early in the case plan for guardianship; however, she noted that the children had lived with turbulence and chaos for a long time, so the sooner they received permanency in the case, the better off they would be in the long term. She added that children do better when there is stability and consistency, and that was what the Clarkes were offering. Finally, she stated that if guardianship were not granted at the disposition hearing, then she would request it at the next hearing.

The juvenile court placed the children in guardianship with the Clarkes. The court ordered that the Clarkes allow any visitation that they think is appropriate based on the parents' progress at the time, whether it was overnight, weekends, extended, not extended, or supervised by them in a public place. The court also noted that it encouraged the parents to continue doing what they were doing, because it was obvious that they had something working really well, and the court was extremely pleased and proud of them. The court added that the parents were clearly on the right path.

A judgment of guardianship in favor of the Clarkes was rendered on March 21. The court determined: (1) the children continued to be in need of care; (2) the Department had made reasonable efforts to prevent removal and reunify the family; (3) other efforts could not have prevented or shortened separation of the family because of the serious, emergent danger to the children at the time of removal, and the time required for the parents to comply with the case plan could not protect the health and safety of the children; (4) the Department had made reasonable efforts to reunify the family since removal; (5) the Department had made reasonable efforts to finalize a permanent plan and the guardianship was a permanent plan; (6) guardianship was the least restrictive disposition and was consistent with the rights of the children and their needs, health, safety, and welfare; (7) granting guardianship was in the best interest of the children because it provided a safe and stable home for the children and did not continue them indefinitely in foster care; and (8) there was a legitimate purpose and factual basis to support guardianship because the children could not be safely returned to the custody of the parents at the time or wait any longer for their parents to rehabilitate.

The Department's custody was vacated and its supervision was terminated. The parents were given the right of supervised visitation at the discretion of, and upon a reasonable request and notification to, the Clarkes.

Echols appealed, arguing that the juvenile court erred in awarding guardianship after less than three months had elapsed since removal and when the Department recommended that the parents receive additional time to work their case plan. Slater argues that the juvenile court manifestly erred in finding that guardianship was the least restrictive disposition pursuant to La. Ch. C. art. 683. It is also contended that no deference should be given to the placement because the juvenile court committed legal error as no ICPC study was completed and the court did not find or attempt to explain how it had been shown the La. Ch. C. art. 722 grounds by clear and convincing evidence. In the alternative, the parents argue that the juvenile court erred in not setting specific visitation for them.

DISCUSSION

Award of guardianship

Guardianship under the Children's Code is a custodial arrangement that is intended to be a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest, although it is not immutable. In re L.M.M., Jr. , 2017-1988 (La. 6/27/18), 2018 WL 3154776, --- So.3d ----. The Louisiana legislature has set forth stringent criteria for any change or modification to a guardianship. Id. Guardianship is a dispositional alternative under La. Ch. C. art. 681 as well as the third priority of placement for a permanent plan under La. Ch. C. art. 702.

A disposition hearing may be conducted immediately after the adjudication and shall be conducted within 30 days after the adjudication. La. Ch. C. art. 678(B). At the disposition hearing, the court shall consider the report of the predisposition investigation, the case plan, any reports of mental evaluation, and all other evidence offered by the child or the state relating to the proper disposition. La. Ch. C. art. 680. The court may consider evidence which would not be admissible at the adjudication hearing. Id.

La. Ch. C. art. 681 provides that when a child has been adjudicated to be in need of care, the child's health and safety shall be the paramount concern, and the court may do any of the following:

.....
(4) Grant guardianship of the child to a nonparent.
(5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
.....

The court shall impose the least restrictive disposition of the alternatives enumerated in Article 681 which the court finds is consistent with the circumstances of the case, the health and safety of the child, and the best interest of society. La. Ch. C. art. 683(A).

La. Ch. C. art. 702(C) states that the court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child. That article lists placement with a legal guardian behind reunification and adoption in the priorities of placement.

The purpose of guardianship is set forth in La. Ch. C. art. 718(A), which provides:

The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department.

To reverse a trial court's permanency plan determination, an appellate court must find from the record that the trial court's finding is clearly wrong or manifestly erroneous. State in Interest of N.B. , 51,374 (La. App. 2 Cir. 2/15/17), 215 So.3d 398 ; State in Interest of C.S. , 49,955 (La. App. 2 Cir. 3/18/15), 163 So.3d 193. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State in Interest of P.F. , 50,931 (La. App. 2 Cir. 6/22/16), 197 So.3d 745 ; State in Interest of N.C. , 50,446 (La. App. 2 Cir. 11/18/15), 184 So.3d 760. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. State in Interest of N.C. , supra . If the juvenile court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Although the juvenile court did not hear sworn testimony from the parties, the court did question the parents and Clarkes during the disposition hearing. Accordingly, deference is proper in these circumstances.

The parents complain on appeal that the juvenile court did not give them adequate time to work their case plans. The Department also essentially argued at the disposition hearing that awarding guardianship was premature and would prevent the parents from having the opportunity to work their case plans. Nevertheless, in terms of time, there was no legal impediment to the juvenile court awarding guardianship within a few months following adjudication of the children in need of care.

In State ex rel. C.M. v. Willis , 41,908 (La. App. 2 Cir. 12/27/06), 946 So.2d 316, writ denied , 2007-0190 (La. 2/16/07), 949 So.2d 413, this court affirmed the awarding of a guardianship three months after the children were removed from their home. This court noted that while determination of a permanent placement occurred in a relatively short time following the child in need of care adjudication, a disposition hearing may be conducted immediately after adjudication and must be conducted within 30 days. Because guardianship is a dispositional alternative and considered a permanent placement, it may be determined in a short time frame if in the best interest of the children.

In State in Interest of K.P. , 51,853 (La. App. 2 Cir. 11/15/17), 246 So.3d 627, the juvenile court awarded guardianship of three siblings at the same hearing when the court found the youngest child was in need of care, conducted a review of two of the children, and conducted a disposition hearing on the youngest child. Affirming the judgment, this court concluded that a permanent placement may be determined in a short time frame if it is in the best interest of the children. In reaching this conclusion, this court noted that La. Ch. C. art. 678 allows disposition immediately after adjudication and mandates that it be conducted within 30 days after adjudication. Further, guardianship is a dispositional alternative under La. Ch. C. art. 681 and also considered a permanent placement.

Slater argues on appeal that the juvenile court was manifestly erroneous in finding that the guardianship was the least restrictive disposition as required by La Ch. C. art. 683(A). She contends that retaining the children in the Clarkes' custody and allowing the parents the opportunity to continue to work their case plans is a less restrictive dispositional alternative that is consistent with the circumstances of the case and the best interest of the children.

Although the juvenile court complimented the parents for being on the right path, we are mindful that, as this court asserted in State in the Interest of C.S. , 49,955 at p. 11, 163 So.3d at 199, "[m]ore than simply protecting parental rights, our judicial system is required to protect the children's rights to thrive and survive." Furthermore, La. Ch. C. art. 601 states that the health, safety, and best interest of the child shall be the paramount concern in all child in need of care proceedings.

The parents' recent progress in their battles against drug addiction is laudable, but it is still in the inchoate stages. Both parents have a significant drug history. Their drug use was so extensive that D.E. and H.E. tested positive for drugs, endangering their health and safety. Slater even used methamphetamine the week before H.E.'s birth. For his part, Echols attempted to thwart the Department's testing by submitting a substitute urine sample when the Department first became involved. He also tested positive for methamphetamine on his urine tests almost a month after removal.

There was never any objection to the suitability of the Clarkes as guardians at the disposition hearing. Rather, any objections focused on how guardianship would affect the parents' ability to regain custody. The Clarkes offered permanence and stability to the children by maintaining their custody since the continued custody hearing. H.E. had also been with the Clarkes at various other points in his five years. Donald persuaded the juvenile court that he and his wife offered the children the stability that they needed.

In reference to permanency hearings, La. Ch. C. art. 702(E) requires the court to determine whether the Department has made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan. The juvenile court concluded in the judgment of guardianship that the Department had made reasonable efforts to prevent removal and reunify the family.

The guardianship was in the best interest of the children, was consistent with their needs, health, safety, and welfare, and was the most suitable of the least restrictive alternatives. Accordingly, we cannot conclude that the juvenile court was manifestly erroneous in awarding guardianship of D.E. and H.E. to the Clarkes.

Echols argues on appeal that the juvenile court did not comply with La. Ch. C. art. 721, which required a home study report. We note that the court ordered an ICPC home study when custody was granted to the Clarkes. While this study was apparently not completed or provided to the court if it was completed, the parents have not questioned the Clarkes' suitability as guardians.

The parents also argue on appeal that the juvenile court committed legal error by granting guardianship without finding that the grounds of art. 722(A) were supported by clear and convincing evidence. That provision states that the mover has the burden of proving by clear and convincing evidence that

(1) The child has been adjudicated to be in need of care.
(2) Neither adoption nor reunification with a parent is in the best interest of the child.
(3) The child has resided for at least six months with the proposed guardian, unless the court waives the residence requirement for good cause.
(4) The proposed guardian is able to provide a safe, stable, and wholesome home for the child for the duration of minority.

That the juvenile court found the mover met his burden on the motion is implicit in the court's ultimate conclusion which we have already determined was not manifestly erroneous. The children were adjudicated in need of care on February 6, 2018. In the judgment of guardianship, the court stated that guardianship was in the children's best interest because it provided them with a safe and stable home. Although adoption was not considered, we note that no suitable person willing to adopt the children came forward. Moreover, guardianship is less restrictive than adoption as a permanent placement as the guardianship can be revisited by the juvenile court under art. 724. The judgment did not address the requirements that the child resided for at least six months with the proposed guardian unless the court waives the residence requirement for good cause. However, the children had resided with the Clarkes for approximately 2.5 months between the dates when the children were placed in their legal custody and when guardianship was awarded. Without specifying the exact periods, Donald testified that he had been in and out of D.E.'s life for five years. We also note that H.E. was not even six months old at the time of the dispositional hearing. Finally, there were no issues raised concerning the Clarkes' suitability as guardians to provide a safe, stable, and wholesome home for these children who had been directly exposed to drug abuse by both parents during their short lives.

La. Ch. C. art 710(A)(3) requires the court to make a finding of fact in a written judgment regarding whether an out-of-state placement is safe, appropriate, and otherwise in the best interest of the children. The juvenile court specifically stated in the judgment that guardianship was in the children's best interest and would provide the children with a safe and stable home.

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Evans v. Lungrin , 1997-0541, 1997-0577 (La. 2/6/98), 708 So.2d 731. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Id.

On this record, we discern no legal error warranting de novo review.

Visitation

The parents also argue on appeal that the juvenile court erred in setting the visitation by allowing it to be arbitrarily determined by the Clarkes. This argument has merit.

La. Ch. C. art. 723(B) requires that the guardianship judgment address the frequency and nature of visitation or contact between the children and their parents, as necessary to ensure the health, safety, and best interest of the children.

The juvenile court left the specific terms of visitation up to the Clarkes' discretion. We remand this matter to the juvenile court to set specific supervised visitation periods and conditions while taking into account the travel distance between the Clarkes' home in Dallas, Texas, and the parents' home in Shreveport.

CONCLUSION

At the appellants' costs, the judgment of guardianship is affirmed and the matter is remanded to the juvenile court to set specific supervised visitation.

AFFIRMED AND REMANDED.

      Most of the facts come from the affidavit in support of an instanter order by Ashlei Kimble with the Louisiana Department of Children and Family Services, and from a letter to the trial judge from the Department.

      A motion for guardianship may be filed by the attorney for the child. La. Ch. C. art. 720(A).


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Edward K. JOHNSON, Appellant
    No. 52,128-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLANT PROJECT By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA ARMAND EDWARDS, BRITNEY A. GREEN, PAMELA ROXANNE MOSER, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STONE, and MCCALLUM, JJ.
   STONE, J.

A jury found Edward K. Johnson guilty of aggravated rape in violation of La. R.S. 14:42. He received a mandatory life sentence at hard labor without benefit of probation, parole or suspension of sentence. Johnson now appeals asserting four assignments of error. For the following reasons, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On June 18, 2015, 53-year-old Edward K. Johnson ("Johnson") was indicted for the aggravated rape of A.D., who was born on April 22, 2008. The bill of indictment alleged the offense occurred between January and March of 2015, when A.D. was six years old. On August 16, 2017, a jury unanimously found Johnson guilty as charged. On September 11, 2017, Johnson filed a motion for new trial and motion for post-verdict judgment of acquittal. Both were denied by the trial court. Thereafter, the trial court sentenced Johnson to mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Johnson now appeals asserting four assignments of error: 1) there was insufficient evidence to support the conviction; 2) the trial court erred in denying his request to allow an expert to review A.D.'s Gingerbread House interview prior to trial; 3) the trial court erred in allowing the state to reference other crimes evidence outside the scope of its La. C. E. art. 412.2 notice; and 4) the trial court erred by denying him the opportunity to conduct a Daubert hearing as to Kiersten Prochnow's testimony.

DISCUSSION

Sufficiency of the Evidence

The state is required to prove beyond a reasonable doubt that Johnson engaged in anal or oral sexual intercourse with A.D. without his lawful consent because it was committed when A.D. was under the age of 13 years. La. R.S. 14:42(A)(4). After a review of the evidence presented at trial, we find it sufficient to support Johnson's conviction.

Johnson's trial began with the testimony of A.D, who testified he was now nine years old. A.D. identified Johnson in open court and stated Johnson was "his momma's boyfriend." The state then played the videos of A.D.'s Gingerbread House interviews. A.D. testified he remembered talking to the interviewer, Alex Person ("Person"), on more than one occasion and that everything he told her was true. A.D. was interviewed by Person at the Gingerbread House on three separate occasions; those interviews are summarized as follows:

Statement # 1 on April 2, 2015 : A.D. stated he was six years old and living with his grandmother, his uncle, "E.N.," and his aunt, Jaime. A.D. stated he used to live with Johnson and his mother, K.H., at Johnson's house. A.D. stated he would ride with Johnson in one of his two trucks. During the interview, Person assured A.D. that it is her job to help keep kids safe and make sure no one is doing things they are not supposed to do. After Person demonstrated what private parts were, A.D. denied anyone touched his private parts.
Statement # 2 on April 6, 2015 : Person spoke further with A.D. about his home life and the people in it. A.D. did not disclose any sexual abuse. Prior to ending the interview, Person told A.D. she knew something had happened to him, and they would come back later that afternoon to talk about it.
Statement # 3 on April 6, 2015 : Person again told A.D. she knew something had happened to him and that they had to talk about it. Person showed A.D. a piece of paper with a boy drawn on it and asked A.D. to draw a circle around the boy's private parts. Thereafter, she asked A.D. to identify the private parts that no one is supposed to touch. Person told A.D. that if someone ever touched his private parts, A.D. had to tell someone. When asked again if anyone had touched his private parts, A.D. answered yes, his "Grandpa, Ed." A.D. stated Johnson put his private in his "butt." A.D. stated Johnson did this multiple times and at different places, while no one else was around. A.D. stated it happened multiple times at Johnson's house in his bedroom. A.D. said Johnson made him lie down, and Johnson was behind him. A.D. said he would tell Johnson to stop but Johnson said no. A.D. stated the abuse also happened multiple times at Johnson's Bossier City shop, "behind the bowling alley." Additionally, A.D. said the sexual abuse happened multiple times while they were in Johnson's truck in the parking lot of Albertsons. A.D. said Johnson had a blue truck and a black truck. A.D. said "He put his penis in my butt." A.D. stated Johnson would sometimes put something clear from a "big, plastic bottle," on his private. A.D. said he was six years old when Johnson started doing this behavior and that he told his mother, but she did nothing about it so he told his grandmother. A.D. stated Johnson warned him not to tell anyone because he would get taken away.

During cross-examination, A.D. testified he and Johnson were alone when Johnson abused him in the Albertsons parking lot, and that no one walked by as it happened. He testified the abuse at Johnson's house would occur at night in Johnson's bedroom when no one else was home. A.D. testified the abuse at Johnson's shop occurred when he was alone with Johnson in "this little place" at the shop that "had a couch and a few chairs and the bathroom." A.D. testified Johnson would make him lie down on the couch without clothes. At the end of cross-examination, A.D. reiterated that everything he said in his Gingerbread House interviews was true.

The state presented the testimony of A.D.'s grandmother, D.N. Besides K.H., D.N. had three other children: Brandon, Jamie, and E.N. D.N. testified K.H. was married to Johnson's stepson but her daughter was "intimately involved" with Johnson. D.N. testified she has known Johnson for about seven years and had considered him a friend. She stated Johnson had done a lot to help her family financially, and that they all spent a lot of time together at Johnson's house and shop.

D.N. testified A.D. disclosed the sexual abuse to her "a little at a time." D.N. testified she first learned of the abuse in April of 2015 when A.D. told her, in his own words, Johnson "stuck his dick in my ass." She also testified A.D. told her that while K.H. was in Albertsons shopping, Johnson would make A.D. put his mouth on Johnson's penis. At the time A.D. first disclosed the abuse, he was still living with K.H. and Johnson at Johnson's home. D.N. stated she responded to A.D.'s allegations by calling K.H. to come home so A.D. could tell his mother what had happened. Two days later, when K.H. had not removed A.D. from the home, D.N. took A.D. to her home and reported the abuse to authorities.

The state presented the testimony of E.N., A.D.'s 15-year-old uncle. E.N. testified he had been friends with Johnson for years, and that he and his family often hung out at Johnson's house and shop. E.N. testified that in early 2015, he had been staying at Johnson's house for several months. E.N. was not in school at the time and had been using an online home-schooling program. E.N. testified in January or February 2015, he had been working with Johnson at his shop all night. E.N. testified that while he was sitting in Johnson's car hauler, Johnson came into the car hauler, dropped his pants, and said, "Well, come on, just suck it." E.N. testified Johnson asked him to have anal sex with him and told him that "It's just like doing it with a girl, just stick it in me." E.N. detailed the incident to Person at the Gingerbread House. A video of E.N.'s Gingerbread House interview was played for the jury. E.N.'s recollection of the incident during his Gingerbread House interview was consistent with his trial testimony.

E.N. testified that after the incident he called his mother and told her that he was ready to come home, but he was hesitant to upset his mother by telling her what happened. He testified that when he told his mother what happened several days later, she appeared shocked. E.N. further stated when A.D. heard about what happened between him and Johnson, A.D. disclosed what Johnson did to him. From his mother's reaction, E.N. thought this was the first time his mother had heard about what Johnson did to A.D., but he did not know this for certain.

The state presented the testimony of Person, a forensic interviewer and educational coordinator for the Gingerbread House Children's Advocacy Center in Shreveport; she was accepted without objection as an expert in forensic interviewing, delayed and reluctant reporting, and child sexual assault. Person stated she was trained to conduct forensic interviews of children who were physically or sexually abused. Person testified she was trained to use a "non-leading narrative practice" which avoids the use of leading questions so that the child's statement is in the child's own words. The forensic interviewer uses open-ended questions and allows the child to narrate through his or her answers. Person testified that, by using this technique, the interviewer avoids giving the child information that the interviewer already knows, so that the child's disclosure is not interrupted or coached.

Prior to interviewing A.D., Person had been informed that A.D. had already disclosed the sexual abuse to family members. Person determined A.D. was reluctant to talk about the abuse because he looked down and shook his head no in response to her questions, instead of simply saying "No." Consequently, she determined an extended forensic interview, done in three separate interviews, was appropriate. Person testified she interviewed A.D. once on April 2, 2015, and twice on April 6, 2015. Person testified that during the third interview, A.D. reported a person he called "Grandpa Ed" stuck his private part in his butt. Person testified A.D. told her the sexual abuse occurred at "Grandpa Ed's" house and shop and in the parking lot at Albertsons.

Kiersten Prochnow ("Prochnow") testified she was a mental health counselor assigned to A.D.'s elementary school. Prochnow stated A.D. was referred to her for counseling, and that she treated him from September 2016 to April 2017. Prochnow testified A.D. was shy, reserved, closed off, and angry. She also stated A.D. displayed aggression, destructive behavior, anxiety, and bedwetting. Prochnow stated she began "trauma-focused" treatment after A.D.'s responses to a trauma and behavior screening indicated he had been sexually abused. Prochnow testified A.D. indicated to her that he was "most" bothered by Johnson's sexual abuse, and that the abuse had happened more times than he could remember.

Prochnow used toy dolls to demonstrate to the jury what A.D. showed her in therapy when she asked him what happened. She stated A.D. placed two dolls violently together, one under the other, and told her that one doll was Johnson and the other was himself. In another scenario, he demonstrated one doll, who A.D. told her represented himself, giving oral sex to the other doll, who A.D. told her represented Johnson. Prochnow testified that as A.D. demonstrated these acts with the dolls, he would turn his head away as far as he could. Prochnow testified A.D. specified that one doll was Ed, his grandpa, and the other doll was himself. Prochnow testified A.D.'s demonstration with the dolls represented to her the acts of oral sex and anal sex.

Jennifer Rodriguez, M.D. ("Dr. Rodriguez"), testified she is a pediatrician with the LSU Health Sciences Center and the Cara Center, an offsite clinic for the evaluation of suspected child abuse and neglect. Dr. Rodriguez was accepted without objection as an expert in pediatrics, specializing in child abuse. Dr. Rodriguez testified she examined A.D. at the Cara Center on April 7, 2015, to evaluate allegations of anal abuse. She stated her findings were normal. Dr. Rodriguez asserted the majority of children who are sexually abused have no acute or chronic findings unless the exam is done immediately after the assault. She also noted the anus heals quickly. Dr. Rodriguez further stated painful bowel movements can be consistent with anal abuse, but can also be caused by constipation, hemorrhoids, pinworms, and poor hygiene.

Detective Michael Jones ("Detective Jones") of the Shreveport Police Department testified he investigated the sexual abuse allegations against Johnson. Detective Jones testified A.D.'s statement alleged sexual abuse at Johnson's house in Shreveport, at Johnson's shop in Bossier City, and in Johnson's trucks while parked at an Albertsons near Johnson's house. Johnson was interviewed by Detective Jones and another detective from the Bossier City Police Department. The audio of the interview was played for the jury. During the interview, Johnson denied he sexually abused A.D., but admitted the incident alleged by E.N. "could have happened."

After the state rested its case, the defense presented the testimony of several witnesses. Notably, Krystal Ard ("Ard"), Johnson's niece, testified she lived with Johnson at his home for a brief period of time while A.D. and K.H were living there. Ard testified A.D. was a troubled, angry, and destructive child, who would scream, throw tantrums, and beat his head on the floor and wall. Ard also testified A.D. tried to hurt the pets at the house, and that he once set his clothes on fire with a lighter. She stated A.D. followed Johnson around like a puppy, and that he would cry to stay at Johnson's house when his grandmother D.N. would come to get him. Johnson testified on his own behalf and stated he did not have oral or anal sex with A.D. He also denied the allegations made by E.N.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Carter, 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086 ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, 719, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78. 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. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297 ; State v. Robinson,supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983) ; State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299 ; State v. Robinson,supra .

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So.2d 1255,cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed. 2d 90 (2004). The appellate court neither assesses the credibility of witnesses nor reweighs evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913 ; State v. Hill , 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529. 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. Wiltcher , 41,981 (La. App. 2 Cir. 5/9/07), 956 So.2d 769 ; State v. Burd , 40,480 (La. App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied , 2006-1083 (La. 11/9/06), 941 So.2d 35.

At Johnson's trial, the evidence presented by the state established all of the elements necessary to prove beyond a reasonable doubt that he committed the offense of aggravated rape. Since A.D. was six years old at the time of the alleged sexual abuse, he was unable to lawfully consent to oral or anal sex with Johnson. A.D.'s Gingerbread statement and testimony courageously detailed multiple acts of anal rape at three different locations and specifically named Johnson as the offender. Due to the consistency of the allegations A.D. made to his grandmother, Person, and Prochnow, any rational trier of fact could have concluded Johnson committed acts constituting anal rape upon A.D.

Johnson argues the state's case rests solely on A.D.'s testimony, which alone is insufficient to support his conviction. To the contrary, this court has repeatedly held the sole testimony of a sexual assault victim is sufficient to support a requisite factual finding. State v. Norman, 51,258 (La. App. 2 Cir. 5/17/17), 222 So.3d 96, writ denied , 2017-1152 (La. 4/20/18), 240 So.3d 926 ; State v. Demery , 49,732 (La. App. 2 Cir. 5/20/15), 165 So.3d 1175. Moreover, this court has stated 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. Norman,supra ; State v. Ponsell , 33,543 (La. App. 2 Cir. 8/23/00), 766 So.2d 678. The unanimous verdict in the instant matter indicates the jurors found A.D.'s testimony credible, and their decision should not be disturbed on appeal. Eason,supra; Hill,supra .

Denial of Motion to Allow Expert Witness to Review Gingerbread House Video

In La. R.S. 15:440.1, et seq. , the Louisiana Legislature declared that protected persons who were the victims of violent crime should not be subjected to more "intrusion" than necessary, so a hearsay exception was created to allow the videotape of an interview conducted with the victim to be presented as evidence at trial when the victim is 17 years of age or younger or has a developmental disability. See State v. Roberts , 42,417 (La. App. 2 Cir. 9/19/07), 966 So.2d 111, 119.

The admissibility of such video statements is explained in La. R.S. 15:440.5. The statute provides the following: 1) conditions under which a protected person's videotaped statement will be admissible; 2) protections afforded a defendant in regards to his constitutional right to confront and cross-examine his accuser; and 3) specific restrictions on individuals granted access to the protected person's video statement. The statute stipulates that the video statement is only admissible if the protected person is available to testify. La. R.S. 15:440.5(A)(8). The statute further specifies that the defendant may call the protected person as a witness and specifies that nothing in the statute may be construed to preclude the defendant's right to confrontation. La. R.S. 15:440.5(B).

On July 28, 2017, Johnson filed a pretrial motion requesting his expert witness, Dr. Shelly Visconte ("Dr. Visconte"), be allowed to review the video of A.D.'s three Gingerbread House statements. Johnson argued La. R.S. 15:440.5 allows his attorney's regular staff, secretary, and investigator to view the video statements and that there would be no added intrusion to the privacy of the protected person, A.D., by allowing his expert to view them. Johnson further argued that access to the video statements was necessary so that Dr. Visconte could provide the proper preparation for trial that all expert witnesses would be expected to provide. The state opposed the motion, arguing expert witnesses were not included within the restrictive list of persons allowed to view the video statements.

After a hearing on the matter, the trial court denied the motion because Dr. Visconte did not fall within the restricted list of persons allowed access to the video statements under La. R.S. 15:440.5. On August 7, 2017, this court denied Johnson's application for supervisory review of the ruling. On appeal, Johnson argues that the trial court erred in denying his motion.

La. R.S. 15:440.5(C) provides a restricted list of the persons who are granted access to the protected person's video statement.

If the defendant's attorney is provided a copy of the videotaped statement by court order or by permission of the district attorney, only the following persons involved in preparing the defense of the instant charges shall be permitted to view the videotape: the attorney and his regularly employed staff, the defendant, the defense investigator designated to work on the case, the defense paralegal designated to work on the case, and other staff members of the attorney who are transcribing the videotaped oral statement.
(Emphasis added.)

La. R.S. 15:440.5(C) is quite specific as to whom access to the protected person's video statements will be granted to: regularly employed staff, the defense investigator assigned to the case, the paralegal assigned to the case, and staff members who are transcribing the videotaped oral statement. Due to the particularity of the statute, it is clear the legislature did not intend for every person hired by the defendant's attorney to have access to the protected person's video statements. Since the statute does not specify that expert witnesses may have access to the statements, the trial court did not err in denying Johnson's motion.

We note Johnson argues the trial court's ruling impinged on his right to prepare a defense and his confrontation right under the Sixth Amendment and La. Const. art. 1, § 16. However, Johnson's right to prepare his defense was not compromised because Johnson, his attorney, and his attorney's staff had access to the video before trial. Moreover, Johnson's constitutional right of confrontation was not violated because the video statement was only admissible if A.D., the protected person, was available to testify and be cross-examined at trial; A.D. testified and was cross-examined at trial. Furthermore, Johnson's attorney was able to cross-examine Person, the person who conducted the interview. This assignment of error is without merit.

Denial of Motion for Mistrial

During its opening statement at Johnson's trial, the state made the following remark:

Ladies and gentlemen, the evidence will also bring forth another witness, E.N., who was A.D.'s teenage uncle. And E.N. will tell you all about what the defendant did to him as well. How he propositioned him for sex and how he even gave this teenage boy illicit drugs, methamphetamine.

The remark was in reference to E.N.'s Gingerbread House interview in which E.N. asserted prior to Johnson asking him for oral and anal sex, Johnson insisted E.N. smoke methamphetamine with him.

Johnson objected to the statement and immediately moved for a mistrial arguing the prosecution improperly referenced evidence of other crimes without first providing him with notice pursuant to La. C.C. 412.2. The state responded by asserting it properly notified Johnson of its intent to introduce such evidence in its "412.2 Notice" filed on July 17, 2017. Additionally, the state argued the statement was permissible without notice under La. C. Cr. P. art. 720 because Johnson's providing E.N. with methamphetamine was an integral part of his propositioning E.N. for oral and anal sex. The trial court overruled Johnson's objection and denied his motion for a mistrial.

On appeal, Johnson again argues the state's reference to his drug use with E.N. in its opening statement was inadmissible evidence because the state failed to give reasonable notice, as required under La. C.E. art. 404(B) and La. C.E. art. 412.2. Johnson also argues the state's comment about the inadmissible evidence before the jury, in violation of La. C. Cr. P. art. 770(2), warranted a mistrial.

La. C.E. art. 404(B) provides that, except as provided in La. C.E. art. 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 412.2 provides that when an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403. In a case in which the state intends to offer evidence under the provisions of Article 403, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

In its "412.2 Notice" filed on July 17, 2017, the state notified Johnson of its intent to introduce at trial evidence of Johnson's sex offense against E.N. The notice specifically referred to police reports provided in discovery which revealed E.N.'s Gingerbread House statement disclosed Johnson offered and insisted E.N. smoke methamphetamine prior to exposing himself to E.N. and asking for oral and anal sex.

Prior to admitting the video of E.N.'s Gingerbread House statement into evidence, the trial court asked if there were any objections to its admission and the defense responded, "only previous objections." The trial court then ordered the video be played for the jury. Thereafter, the video was admitted into evidence without any additional objections. Since the trial court found the video admissible and the state provided adequate notice of its intent to introduce the "other crimes evidence" discussed in the video, we cannot find the trial court erred in denying Johnson's motion for a mistrial.

Denial of Motion to Conduct a Daubert Hearing

During discovery, Johnson's defense learned A.D.'s school counselor, Kiersten Prochnow, had treated A.D. for post-traumatic stress disorder ("PTSD") resulting from his sexual abuse. On July 28, 2017, Johnson filed a pretrial motion requesting a Daubert hearing to determine whether Prochnow's testimony at trial regarding the sex abuse allegations and treatment for PTSD would comply with the Daubert standards.

At a hearing on July 31, 2017, the state announced Prochnow was not being called to testify about A.D.'s PTSD. Instead, the state said Prochnow was only being called as a fact witness to testify about what A.D. told her regarding the acts of sex abuse and the identity of the person who committed the acts. Since Prochnow was not testifying as an expert witness, the state argued a Daubert hearing was unnecessary. The defense objected on grounds that the jury would still believe Prochnow was testifying as an expert since she was a mental health professional and had treated A.D.

Relying on the state's assertion that Prochnow would only testify as a fact witness, the trial court denied Johnson's motion for a Daubert hearing. The trial court ordered the state to instruct Prochnow that she could not make any statements as to whether or not she believed A.D. was raped. On August 7, 2017, this court denied Johnson's application seeking supervisory review of the ruling.

On appeal, Johnson argues despite the state's agreement that Prochnow would be called only as a fact witness, he still had the right to challenge the methodology that Prochnow used in her therapy sessions with A.D. Johnson contends that the trial court's denial of his motion limited his rights to a fair trial and impinged upon his constitutional rights to confront and cross-examine his accusers.

The trial court is obligated to act as a gatekeeper to ensure that any scientific testimony or evidence admitted is reliable and relevant, in order to regulate the subjects and theories about which an expert may testify. Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed. 2d 469 (1993). Reliability of expert testimony is assessed according to whether there is a valid scientific connection between the expert testimony and the issues and whether the reasoning or methodology is scientifically valid and can be properly applied to the facts of the case. State v. Foret , 628 So.2d 1116 (La. 1993).

"It is important to note, however, that there is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play." Robertson v. Doug Ashy Bldg. Materials, Inc. , 10-1552 (La. App. 1 Cir. 10/4/11), 77 So.3d 339, writ denied , 11-2468 (La. 1/13/12), 77 So.3d 972, and writ denied , 11-2430 (La. 1/13/12), 77 So.3d 973.

The party demanding a pretrial Daubert hearing requesting the determination of the reliability of evidence must set forth sufficient allegations showing the necessity for such a determination. State v. Hampton , 15-1222 (La. App. 4 Cir. 12/23/15), 183 So.3d 769, writ denied , 16-0124 (La. 3/14/16), 189 So.3d 1073. The trial court has discretion on whether or not to hold a Daubert - Foret hearing. Id.

Since the state agreed to present Prochnow as only a fact witness, and limited her testimony to what A.D. disclosed to her regarding the acts of sexual abuse and who committed the acts, the trial court did not err in denying Johnson's motion to conduct a Daubert hearing. Johnson makes no argument on appeal that Prochnow's testimony exceeded the scope of the state's agreement. Moreover, Johnson's right to confront Prochnow was not impinged because Johnson was still free to question Prochnow during cross-examination about her methodologies.

CONCLUSION

For the foregoing reasons, Johnson's conviction and sentence are affirmed.

AFFIRMED.

      Pursuant to La. R.S. 46:1844(W), initials are used in place of the names of all minors and victims of sexual abuse, as well as the names of their family members, in order to protect their identity.

      E.N. was a minor at the time of trial and this matter includes evidence of sexual abuse allegations made by him against Johnson.

      La. C. Cr. P. art. 720 provides: "Upon written motion of defendant, the court shall order the district attorney to inform the defendant of the state's intent to offer evidence of the commission of any other crime admissible under the authority of Code of Evidence Articles 404 and 412.2. However, that order shall not require the district attorney to inform the defendant of the state's intent to offer evidence of offenses which relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted."

      La. C. Cr. P. art. 770(2) provides that upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

      Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed. 2d 469 (1993).

      In Foret,supra, the Louisiana Supreme Court adopted the requirements set forth in Daubert .


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Germylun K. HAWKINS, Appellant
    No. 52,086-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Carey L. Ellis, III, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, Counsel for Appellee
    JOHN M. LAWRENCE, R. RANDALL SMITH, HUGO A. HOLLAND, JR., Assistant District Attorneys
    Before BROWN, PITMAN, and McCALLUM, JJ.
   BROWN, C.J.

This criminal appeal arises from the 26th Judicial District Court, Parish of Webster, the Honorable Parker Self presiding. On April 26, 2017, following a jury trial, Defendant, Germylun K. Hawkins (a.k.a. "Geno"), was convicted as charged of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. On June 12, 2017, Defendant was sentenced to serve 15 years at hard labor. For the following reasons, Defendant's conviction and sentence are affirmed.

FACTS

On December 1, 2016, Defendant was charged by bill of information with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. The case proceeded to trial and on April 26, 2017, a jury found Defendant guilty as charged by a 10 to 2 vote.

On May 26, 2017, Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, alleging that the evidence adduced at trial was insufficient to prove that he had possessed a firearm.

On June 12, 2017, the trial court denied both motions. On July 24, 2017, following a hearing, the trial court sentenced Defendant to 15 years at hard labor. On July 31, 2017, Defendant filed a motion to reconsider sentence, which was denied on September 6, 2017.

The instant appeal followed.

DISCUSSION

Defendant argues that the State failed to prove his possession of a firearm because the testimony of the State's witnesses was internally contradictory and irreconcilable with the physical evidence. Defendant notes that police found six .380 shell casings in one location and a 9mm handgun incapable of firing .380 bullets in a separate location on a different date. Defendant claims that the State failed to establish through any type of scientific analysis that he ever possessed the 9mm handgun or handled the .380 shell casings.

Defendant further contends that although one of the state's witnesses, LaQuisha Kimble, testified that she saw him shooting a gun in her direction, her testimony is not credible given the testimony of other witnesses and based on Ms. Kimble's admission that she does not know Defendant. Defendant also discounts the testimony of Felicia Sims, who stated that she saw Defendant running away from the scene of the shooting, given her distance from the alleged shooting and the fact that it was dark outside.

The State counters that the jury accepted the testimony of the State's witnesses that a shooting occurred near where six .380 shell casings were located, and that the shooter was Defendant.

The following evidence was adduced at trial.

On October 23, 2016, the Minden Police Department received a call regarding a shooting on Chestnut Street in Minden, Louisiana. When Officer Brandon Coker responded to the scene, he was approached by several people who stated that Defendant, Germylun K. Hawkins (a.k.a. "Geno"), was shooting at a house on Chestnut Street. Officer Coker searched the area and discovered six .380 shell casings on the pavement in the intersection of Chestnut Street and Long Street. No gun was recovered.

On the evening of November 6, 2016, while investigating a tip regarding Defendant's whereabouts, Officer Coker encountered a crowd of people a few blocks from where the shooting had occurred. As he approached, the group quickly dispersed. Officer Coker found an unloaded weapon, a Hi-Point 9mm handgun, lying in a yard near where the crowd had been gathered.

Several days later, Officers Coker, Jesse Cutrer, and Shawn Jenkins went to Defendant's house to execute a warrant for his arrest. Defendant took off running as the officers began approaching him. Defendant was caught and arrested after a brief foot pursuit.

During cross-examination, Officer Coker stated that LaQuisha Kimble, one of the witnesses he spoke to at the scene of the shooting, told him that the car she had been riding in had been struck by a bullet and that her son was struck by a stray bullet. These statements were not supported by the physical evidence, however, because Officer Coker found no bullet holes or evidence of property damage and did not find any signs of physical injury on the child. Officer Coker conceded that the .380 shell casings he found on the scene of the shooting could not have been discharged from the 9mm handgun he recovered a few days later.

Owen McDonnell, an expert in crime scene reconstruction and analysis, opined that it would be highly unlikely to find DNA or fingerprints on either the .380 shell casings or the 9mm handgun and therefore, the investigators reasonably chose not to send the evidence to a crime laboratory for analysis.

Donald "Juice" Sims testified that two days before the shooting, he had an argument with Defendant, who had attempted to "jump" Donald's 15-year-old cousin, Arien "A.J." Kimble. Donald offered to fight Defendant in place of the teenager, but Defendant declined. Later, however, Defendant told Donald that he wanted to fight him.

Donald testified that on the evening of October 23, 2016, he got a ride to his house at 609 Chestnut Street from family friend Destiny Butler. Also in the truck were his aunt LaQuisha Kimble, and his sister Kiara Sims. LaQuisha and Kiara stayed in Destiny's truck while Donald went inside the house. His cousin Christopher, LaQuisha's son, was standing outside of the truck. Donald forgot his cell phone in the truck and had to go back outside to get it. As soon as he went back inside the house, Donald heard gunshots. He went back outside and overheard his cousin, Wytianna Kimble, say that she saw Defendant running on the side street after the shooting. Donald testified that he never saw Defendant at his house at 609 Chestnut that evening.

Felicia Sims, Donald's mother, testified that she was inside her house on October 23, 2016, when she heard four or five gunshots. She called the police, walked outside and saw Defendant, who was wearing a dark hooded sweatshirt, running away. Felicia also saw Wytianna Kimble and a group of boys walking "up the road." Felicia stated that she overheard Wytianna tell the boys that "[m]y man not going to jail for that." Felicia testified that Wytianna referred to her "man" as "Geno".

Kiara Sims testified that she was sitting in Destiny Butler's truck on October 23, 2016, when she saw Defendant shooting in the direction of Destiny's truck. A day or so later, Kiara saw a group of people on the street. In the center of the group she saw her cousin Henry Brown. Kiara then saw "them" hit Brown over the head with a gun. Henry later told Kiara that Defendant had been the one to "pistol whip" him. Kiara admitted on cross-examination that she suffers from psychiatric issues and had taken Seroquel, a prescription medication that makes her sleepy and unfocused, the night she saw Henry Brown. Kiara testified that she saw who was in the crowd, but not who was hitting Henry with the gun. Kiara stated that she had not consumed any medication on the night of the shooting. Kiara, who was reluctant to testify at first, stated that someone in Defendant's family had threatened to harm her if she came to court and testified truthfully.

Arien "A.J." Kimble corroborated Donald Sims' testimony and confirmed that he "had words" with Defendant in October of 2016. A.J. stated that he saw Defendant holding a B.B. gun on the same day as, but before the time of, the shooting. However, A.J. testified that he never saw Defendant shoot a gun.

LaQuisha Kimble testified that on the day of the shooting, Defendant had followed her, Donald Sims, Kiara Sims, and Destiny Butler to LaQuisha's home on Chestnut Street. Donald went into the house while the others stayed in the truck. Donald came back out to the truck to get his cell phone. As Donald was going back into the house, LaQuisha saw Defendant walking toward the truck. According to LaQuisha, Defendant then "just started shooting." LaQuisha's son Christopher, who was standing outside the truck, thought that he had been shot. LaQuisha pulled her son into the car and told Destiny to drive off. As Destiny drove, LaQuisha called 911. When asked whether she was sure that Defendant was the person who shot at her, LaQuisha stated, "I know he was." LaQuisha said she had known of Defendant for about three years, but didn't know him well. She admitted that it was dark on the night of the shooting.

Wytianna Kimble testified next. When asked what kind of relationship she has with defendant, she stated, "I don't know him like that. I know of him." She denied having a romantic relationship with Defendant. She also denied being present when the shooting occurred or telling anyone that her "man" shot at anyone. Wytianna admitted that she had maintained a Facebook account under the name "Serinity Williams" for about a year, and that a message was sent from her FB account to Defendant. According to Wytianna, her FB account was "hacked," because she did not send the message (or any of the romantic messages to Defendant) from the account. The message read:

Tried to hit me with a felony charge 'cause of the gun they found. But lay low, brother, they stay on feet. They asked me were you with us last night. I said no.

Henry Brown, who at the time of trial was in jail for a probation violation, confirmed that he told police that Defendant had beaten him over the head with a gun on October 25, 2016. The attack left Henry with a concussion and a fractured wrist. However, at trial Henry said that he was not sure who hit him. He also denied telling the prosecutor and Detective Barnette a couple of days before trial that he witnessed Defendant firing shots on Chestnut Street on October 23, 2016.

Minden Police Detective Ryan Barnette testified that, contrary to his trial testimony, Henry Brown told him that he saw Defendant commit the shooting on Chestnut Street and that it was Defendant who beat him over the head with a handgun several days after the incident on Chestnut Street. Henry Brown's interview, which took place the day after he was attacked, was recorded and the video recording was played in court for the jury. In the recording, Henry said that he was "100% positive" that he saw Defendant commit the shooting on Chestnut Street and "100% positive" that Defendant was the person who hit him over the head with a gun. According to Henry, Defendant was wearing a hoodie when he fired the shots on Chestnut Street.

Detective Barnette also identified an audio recording of a telephone conversation that Defendant had with his mother, Makeisha Hawkins, while he was in jail awaiting trial. In the recording, Defendant told his mother that he believed his charges would be reduced, and that he "might cop out" and plead guilty to possession of a firearm by a convicted felon.

On cross-examination, Detective Barnette testified that Destiny Butler told him something different than what she initially told responding officers. What she told Det. Barnette was that she could not see the shooter to identify him.

Destiny Butler testified for the defense. She stated that on October 23, 2016, she took LaQuisha Kimble and Kiara Sims to the store and was in the process of dropping them off at their house on Chestnut Street. Donald Sims came out to her truck and then went back inside the house. As LaQuisha and Kiara were preparing to get out of the truck, Destiny heard gunshots. Everyone put their heads down, LaQuisha grabbed her son from outside the truck, and Destiny drove away. Destiny testified that it was dark outside, and that her truck was facing away from the shooter, so she could not identify the shooter. Destiny did not see Henry Brown or Wytianna Kimble in the area where the shooting occurred. Destiny claimed that she never told police that Defendant was the shooter. Instead, according to Destiny, police officers showed her a photograph which she confirmed to be a photograph of Defendant. According to Destiny, she was not saying the Defendant did the shooting, just that it was him in the photograph.

Officer Coker testified as a rebuttal witness for the state. According to Off. Coker, Destiny told him when he arrived at the scene the night of the shooting that Defendant was the shooter. Officer Coker stated that he never showed Destiny any photographs.

At trial, the State and the Defense stipulated that Defendant pled guilty to simple burglary, a felony, on May 22, 2015. Peter Goeders, Defendant's probation officer, testified that Defendant was advised that he was not permitted to carry a firearm because he had a felony conviction.

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 v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2d Cir. 06/22/16), 197 So.3d 717, writ denied , 16-1479 (La. 05/19/17), 221 So.3d 78. 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. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Robinson , supra .

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Mitchell , 50,188 (La. App. 2d Cir. 11/18/15), 181 So.3d 800, writ denied , 15-2356 (La. 01/9/17), 214 So.3d 863. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Mitchell , supra ; State v. Eason , 43,788 (La. App. 2d Cir. 02/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed. 2d 1068 (2010).

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Crossley , 48,149 (La. App. 2d Cir. 6/26/13), 117 So.3d 585, writ denied , 13-1798 (La. 02/14/14), 132 So.3d 410 ; State v. Speed , 43,786 (La. App. 2d Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/06/09), 21 So.3d 299. 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. Johnson , 47,913 (La. App. 2d Cir. 04/10/13), 113 So.3d 1209.

To support a conviction of possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. La. R.S. 14:95.1 ; State v. Husband , 437 So.2d 269 (La. 1983) ; State v. Robert , 42,036 (La. App. 2d Cir. 05/09/07), 956 So.2d 750.

The stipulation by the parties that Defendant pled guilty to simple burglary, a felony, on May 22, 2015, proved two of the four requisite elements of possession of a firearm by a convicted felon. The remaining elements, Defendant's possession of a firearm and his general intent to commit the offense, were established through the testimony of various trial witnesses. Both LaQuisha Kimble and Kiara Sims testified that they were sitting in Destiny Butler's truck when they saw Defendant shooting a gun. Their testimony was corroborated by the six .380 shell casings found at the scene, and by the testimony of Felicia Sims, who stated that she saw Defendant flee the scene immediately after the shooting. The jury's decision to accept the testimony of LaQuisha, Kiara, and Felicia as credible is entitled to great deference. Furthermore, and contrary to Defendant's assertions, their testimony was not internally contradictory, nor was it irreconcilable with any physical evidence. Destiny Butler's contradictory testimony, i.e. , that the shooter could not be seen due to the time of night and the direction of her vehicle, was reasonably rejected by the jury, particularly considering the testimony of Officer Coker that Destiny Butler told him upon his arrival at the scene of the shooting that Defendant was the shooter.

This assignment of error lacks merit.

CONCLUSION

For the reasons set forth above, Defendant's conviction and sentence are affirmed.

AFFIRMED.

      The motion for reconsideration of sentence was denied after a hearing. The record does not contain a transcript of the hearing, but the minutes indicate that the State and Defendant submitted on their briefs.

      Caddo Parish Sheriff's Deputy Roston Roby testified that he transported Defendant and Henry Brown from Bayou Dorcheat Correctional Center to court for trial and that the men sat next to each other in the back seat of the patrol car.

      The video recording was admitted into evidence as State's Exhibit 18.

      The audio recording and a corresponding transcript were admitted into evidence as State's Exhibits 19 and 20.


author: COX, J.

text:
    Johnny E. DOLLAR, Plaintiff-Appellant v. John C. LAIRD, Defendant-Appellant
    No. 52,097-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 15, 2018
    JAMES G. BUCKLEY, Monroe, Counsel for Appellant
    DONALD L. KNEIPP, Monroe, Counsel for Appellee
    Before WILLIAMS, GARRETT, and COX, JJ.
   COX, J.

This appeal arises from the Fourth Judicial District Court, Ouachita Parish, Louisiana. The appellant, Johnny Dollar ("Dollar"), appeals a judgment from the trial court wherein it granted Appellee's dilatory exception of prematurity, dismissing Dollar's suit with prejudice. On appeal, Dollar argues that the trial court erred in granting Appellee's exception of prematurity and dismissing his action with prejudice. For the following reasons, we reverse and remand the suit without prejudice for further proceedings.

FACTS

Dollar and John Laird ("Laird") were members of Chapel Hill, L.L.C. ("Chapel Hill"), in which Laird owned a 7.75% membership interest. On September 21, 2009, Laird executed a Transfer and Assignment, wherein he purported to transfer his membership interest in Chapel Hill to Dollar. Paragraph 7 of the Transfer and Assignment states:

Assignor represents and warrants that it is not under any legal impediment or subject to any agreements that prevent its transfer and assignment of the interest herein described and Assignor shall indemnify and holds Assignee harmless from any and all claims resulting from any claims of third parties in connection therewith.

At the time of the transfer, litigation was pending between Laird and his ex-wife regarding a divorce and division of community property. Subsequently, Dollar was made a defendant in the suit.

On March 14, 2013, the trial court rendered judgment in favor of Mrs. Laird, finding that the Chapel Hill membership interest was community property and recognizing her as a co-owner in indivision. As a result of that judgment, Dollar purchased Mrs. Laird's community membership interest in Chapel Hill for a "sum certain."

On December 30, 2014, Dollar filed an indemnity action against Laird. On March 26, 2015, Laird filed a dilatory exception of prematurity, stating that the action was premature due to a lack of final judgment regarding the Chapel Hill interest and its valuation. The exception was heard on July 28, 2017, and the trial court granted the exception, dismissing Dollar's suit with prejudice.

On April 10, 2018, the trial court rendered a final judgment in Laird v. Laird, which addressed the Chapel Hill interest. Dollar now appeals.

DISCUSSION

In his sole assignment of error, Dollar argues that the trial court erred in granting Laird's exception of prematurity and dismissing his action with prejudice.

Louisiana C.C.P. art. 926 provides for the dilatory exception raising the objection of prematurity. The exception of prematurity addresses the issue of whether a judicial cause of action has yet come into existence because a prerequisite condition has not been fulfilled. An action will be deemed premature when it is brought before the right to enforce it has accrued. Prematurity is determined by the facts existing at the time the lawsuit is filed. Heacock v. Cook , 45,868 (La. App. 2 Cir. 12/29/10), 60 So.3d 624.

Because the trial court rendered a final judgment regarding Chapel Hill, this matter is ripe for litigation. We, therefore, reverse the trial court's judgment dismissing Dollar's suit under the exception of prematurity. Additionally, the trial court erred in dismissing the suit with prejudice. At oral argument, both parties agreed that if the suit were dismissed, it should have been dismissed without prejudice. Thus, we remand the action to the trial court for further proceedings pertaining to Dollar's indemnity action.

CONCLUSION

For the foregoing reasons, we reverse the trial court's judgment dismissing Dollar's indemnity action with prejudice and remand the action for further proceedings. Costs of this appeal are assessed to the Appellee, John Laird.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before Henry N. Brown Jr., Felicia Toney Williams, Jeanette Giddens Garrett, Shonda D. Stone, and Jeff Cox - Writing, JJ.

Rehearing denied.

      The record does not contain the date on which Dollar purchased Mrs. Laird's community interest of Chapel Hill. It also does not state the amount for which Dollar purchased the interest.

      This Court was made aware by counsel during oral argument that a final judgment had been rendered in Laird v. Laird. The panel requested a certified copy of the judgment, which was subsequently made part of the record on July 10, 2018.