author: GREMILLION, Judge.

text:
    D.K.P. v. T.G.L.
    No. 09-1385.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2010.

      Shane Michael Mouton, District Attorney’s Office-Non-Support Division, Lafayette, LA, for Appellee, State of Louisiana.
    Gregory Francis Williams, Sr., Attorney at Law, Lafayette, LA, for Defendant/Appellant, T.G.L.
    D.K.P., Lafayette, LA, In Proper Person.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

11The defendant, T.G.L., appeals the judgment in favor of the plaintiff, D.K.P., awarding him a refund of $7,202 in child support payments for K.P. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

K.P. was born in August 2003, when T.G.L. and D.K.P. were in a relationship and lived together. The relationship ended in July 2004, and D.K.P. was ordered to pay child support in the amount of $234 per month. In April 2008, D.K.P. filed a petition for custody and requested that the parties submit to DNA testing, which revealed that D.K.P. was not K.P.’s father. In May 2008, T.G.L. filed a motion to terminate D.KP.’s parental rights. In March 2009, D.K.P. filed a suit for disavowal of paternity. Following a hearing on the disavowal action, the trial court granted the disavowal and ordered the State of Louisiana, Department of Social Services, Support Enforcement Services, to refund D.K.P. $1,107, which was being held pending resolution of the disavowal action. The trial court further ordered T.G.L. to reimburse D.K.P. $7,020. T.G.L. now appeals and assigns as error the trial court’s judgment reimbursing D.K.P. $7,020 for past child support payments.

DISCUSSION

T.G.L. and D.KP.’s relationship has been a tumultuous one in which T.G.L. appears to be the aggressor. Although not relevant to the legal question at hand, it is clear that the trial court considered these facts in refunding D.KP.’s payments to T.G.L. The trial court apparently chose to disregard the classification of the payments as “child support” because of the fact that T.G.L. knew all along that RD.K.P. was not the father and because of unfounded allegations she made against D.K.P. that resulted in the trial court sentencing D.K.P. to jail time. The trial court stated:

The deceit to the Court is where this lady needs to be penalized. The deceit on this Court. And he only asked for the affiliation or for the paternity action because she said he wasn’t the father.
I don’t want money from the child, but I am going to order that the mother’s money goes back to the dad, not the child’s money.
I don’t want the child to come up with the money. It was child support that she did not — she did not give it to the child. This Court is not recognizing that she gave that money to the child. You got that?

Although we are quite sympathetic with D.KJP.’s plight, there simply does not exist a legal basis for the refund of child support payments. Additionally, reclassifying the child support paid via court-order directly to the Department of Social Services, Support Enforcement Services, as “money paid to the mother” does not change its inherent status as child support payments.

In Gallo v. Gallo, 03-0794 (La.12/3/03), 861 So.2d 168, the ex-husband found out he was not the father of the child and requested a refund of $22,125 paid on behalf of the child. In Gallo, the supreme court, in discussing State, Department of Social Services v. Bradley, 95-872 (La.App. 5 Cir. 4/30/96), 673 So.2d 1247, ‘writ denied, 96-1318 (La.6/28/96), 675 So.2d 1129 (man claiming reimbursement was not married to the mother of the child), stated:

The bottom line in Bradley, as in the instant case, is that although the child support payments were made to the mother, they were made for the benefit of the child, and the mother is under no obligation to refund the monies. Because the child support payments were received by the child, through the mother, the mother was not a person who received a payment not owed her, a requirement imposed by LSA-C.C. art. 2299 for reimbursement to be made.

J¿Gallo, 861 So.2d at 178.

The supreme court did not provide for an exception if a factual determination could be made that the monies did not actually benefit the child. Moreover, it noted “that the most vulnerable person in this unfortunate litigation is [the child].” Id. at 179. It is clear that it would be against public policy to authorize the refund of child support payments in this instance. We can only hope that D.K.P. can take some satisfaction in knowing that the money he paid in child support may have benefitted K.P. in some way.

CONCLUSION

The judgment of the trial court is hereby reversed. The defendant-appellant, T.G.L., does not owe the plaintiff-appellee, D.K.P., reimbursement. Costs of this appeal and costs at the trial level are to be borne equally between the parties.

REVERSED.

      . In accordance with Uniform Rules-Courts of Appeal, Rule 5-1 and 5-2, initials are used throughout this opinion to protect the identity of the minor.


source: Caselaw Access Project

author: CHATELAIN, Judge Pro Tempore. GREMILLION, Judge,

license: Public Domain

text:
    Rosalind Reed THIBODEAUX v. Lauren O’QUAIN.
    No. 09-1266.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2010.
    Rehearing Denied May 12, 2010.

      Jack Derrick Miller, Attorney at Law, Crowley, Louisiana, for Defendant/Appel-lee, Lauren Wade O’Quain.
    Nicole B. Breaux, Cox, Fitzgerald, L.L.C., Lafayette, Louisiana, for Defendant/Appellee, Lauren Wade O’Quain.
    Darhlene M. Major, Attorney at Law, Jarreau, Louisiana, for PlaintiffiApp ell ant, Rosalind Reed Thibodeaux.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

hln the present case, the mother appeals the trial court’s joint custody plan and designation of the father, her former husband, as domiciliary parent of their son. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Rosalind Reed Thibodeaux (Rosalind) and Lauren O’Quain (Lauren) were married in August 2003. On October 14, 2004, their only child, Patrick, was born. The parties physically separated in December 2005, when Rosalind left the marital domicile. In January 2006, Lauren filed for divorce, and a judgment of divorce was rendered on June 22, 2006. By mutual agreement, Rosalind and Lauren shared equal custody of Patrick on alternating weeks.

Prior to leaving the matrimonial domicile, Rosalind was romantically involved with a co-employee, Kyle Thibodeaux (Kyle), whom she married in June 2007. In September 2008, Lauren married Elsie Thibodeaux, Kyle’s former wife.

Rosalind and Kyle live in St. Martin Parish together with Rosalind’s twelve-year-old daughter from a previous marriage, Clélie, and Kyle’s daughters from his marriage to Elsie, Nasia, who is fifteen years of age, and Kylie, who is fourteen years of age.

Lauren lives with Elsie in Lafayette Parish. Pursuant to recommendations of Dr. Ron Ray, court-appointed psychologist, Nasia and Kylie visit with Elsie every other weekend from 9:00 a.m. to 5:00 p.m. Saturday and Sunday. Until a few weeks prior to trial, Lauren was not allowed to be present when the girls visited Elsie. Shortly before trial, the psychologist modified his recommendation and allowed Lauren to be present for one-half of each day of the girls’ visitation with Elsie.

|2On August 5, 2008, Rosalind filed suit for sole custody or, in the alternative, joint custody with her being designated the domiciliary parent of Patrick. Lauren reconvened, seeking sole custody with Rosalind having supervised visitation and requesting that Rosalind be drug tested. If Rosalind tested negative for drugs, Lauren sought joint custody with him being named domiciliary parent. Rosalind filed a rule for child support on October 22, 2008.

A hearing-officer conference was held on November 24, 2008, and the parties continued sharing physical custody of Patrick on alternating weeks. The trial court ordered Dr. Kenneth Bouillion, a psychologist, to conduct psychological evaluations of Rosalind, Lauren, and Patrick. The order instructed Dr. Bouillion to conduct a custody evaluation of the parties and Patrick, consider the factors listed in La.Civ. Code art. 134, and render a written report to the court.

Trial was held on July 23, 2009. Rosalind, Lauren, Dr. Ray, Elsie, Rosalind’s first husband, Patrick’s former babysitter, and the owner of Patrick’s current day care testified at trial. Dr. Bouillion’s report and deposition were introduced into evidence. The trial court took the matter under advisement, issued written reasons for judgment, and thereafter awarded joint custody of Patrick to Rosalind and Lauren. Lauren was designated the domiciliary parent, and Rosalind was awarded visitation three weekends per month during the school year and alternating weeks during the summer months. The holidays are shared equally by the parties (to supersede regular visitation in the event of a conflict). Rosalind was taxed with all costs; child support was not set.

Rosalind appeals and assigns six errors with the trial court’s judgment: 1) the trial court did not apply the correct principles of law set forth in Louisiana Civil Code | sArticles 131 and 134 because it failed to analyze all factors relevant to Patrick’s best interest and placed undue weight on one of the twelve nonexclusive factors of La.Civ.Code art. 134; 2) the trial court committed legal error and abused its discretion in granting Lauren domiciliary status; 3) the trial court erred in its findings of fact regarding the issues raised by factors (4) and (10) of La.Civ.Code art. 134, specifically on the issues of the stability of the parents’ households and her willingness and ability to facilitate and encourage a close and continuing relationship between Patrick and Lauren; 4) the trial court based its determination of custody on speculation, innuendo, and conjecture for which there is no reasonable basis in the evidence; 5) the trial court abused its discretion in failing to adopt or give any weight or consideration to Dr. Bouillion’s recommendations; and 6) the trial court abused its discretion in placing undue weight on the testimony of Dr. Ray.

DISCUSSION

Trial court determinations in child custody matters are entitled to great weight, and appellate courts will not disturb an award of child custody “in the absence of a clear showing of abuse.” Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La.1986). In a custody proceeding, the trial court’s focus is the best interest of the child. La.Civ.Code art. 131; Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731. All factors relevant to the child’s best interest must be considered. La.Civ.Code art. 134. As provided in Article 134, the factors considered “may include”:

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

Article 134 Factors

Rosalind urges that the trial court’s alleged failure to apply the correct principles of law entitles her to a de novo review of the record. She argues that the twelve factors enumerated in Article 134 are of equal weight and must be considered by the trial court in its determination.

From the outset, we observe that contrary to her argument, Article 134 mandates only that all factors relevant to the best interest of the child be considered; it then enumerates twelve factors which may be relevant to the best interest | ¡^determination. As explained in Cooper v. Cooper, 43,244, p. 6 (La.App. 2 Cir. 3/12/08), 978 So.2d 1156, 1160 (citations omitted):

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court.

See also, Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245; Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365 (holding that the factors of Article 134 are illustrative and serve as a guide to the trial court).

Our review of the trial court’s written reasons indicates that it did address all the relevant factors enumerated in Article 134. While the trial court did not specifically address all the factors enumerated in Article 134, it did address all factors that favored one party over the other. As discussed below, a review of the record shows that with respect to the applicable Article 134 factors, Rosalind and Lauren are essentially equal in many respects.

The trial court addressed factors one, two, and three together in its reasons for judgment, stating:

Rosalind testified that Lauren loves their son and the love is mutual. However, he is not qualified to be primary custodian of Patrick because he is emotional, fun to be with, and has mental problems. |fiWhile there is no substantiation of any mental problems with Lauren, Rosalind’s opinion is obviously bourne [sic] of her expertise derived from having majored in psychology and anthropology. She does not seriously dispute [Lauren’s] ability to care for the child, but maintains that he does not provide a stable structured environment or spiritual guidance. She, to the contrary, maintains a strict and structured environment in her home, so much so that she has published a set of rules/restrictions for all in her household to adhere to. She believes in structure, adherence to structure, and therefore in this Court’s impression, her control. Emotion on her behalf was not mentioned in her testimony, only structure, rules and adherence thereto. In fact, she doesn’t have the opportunity to have fun with Patrick like he does with his father because of the structure and discipline which she feels it is her duty to impose.

Based on the history of the parties the fifth factor (permanence, as a family unit, of the proposed custodial home), the eighth factor (home, school, and community history of the child), the eleventh factor (the distance between respective residences of the parties), and the twelfth factor (the responsibility for the care and rearing of the child previously exercised by each party), do not favor either party. Notwithstanding, as elaborated more fully herein, the trial court found that Rosalind and Kyle have had a negative effect on Nasia and Kylie’s relationship with Elsie which may have a negative effect on Patrick’s relationship with Lauren.

Our careful review of the record reveals that Rosalind testified that she did not have concerns about Lauren’s moral fitness. As reflected by the evidence, she and Kyle are raising their children in the Catholic faith, and they regularly attend church. Therefore, the sixth factor is also equal.

Likewise, there is no evidence that either party’s physical health would affect his or her relationship with Patrick. Although Rosalind testified that Lauren may have some mental issues and that he exhibits emotional and irrational behavior at times, stating that he threatened to burn her house, take Patrick, ruin her life and her family, and bankrupt her, she did not explain those claims or give facts to estab-lishjjthat the claimed behavior actually occurred. Moreover, the trial court did not find her credible. Therefore, there is no evidence that the seventh factor, mental or physical health of either party, favors one over the other.

After reviewing the aforementioned factors outlined in Article 134, we come to the focal point of this appeal: the trial court’s assessment of the fourth and tenth factors. The fourth factor is the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment; the tenth factor is the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

As the trial court noted in its reasons for judgment, Rosalind contends that she would provide Patrick more stability. Elaborating on its determination, the trial court concluded that, contrary to Rosalind’s contention, her idea of stability equated to control. After considering the evidence, including its observation that Rosalind’s insistence on control excluded emotion and that her insistence on structure and discipline negated the opportunity for Patrick to have fun, the trial court weighed the stability factor in favor or Lauren. Although it may be appropriate and fitting for Rosalind to publish rules and consequences for her older, teenage girls, we cannot say it was unreasonable for the trial court to have concluded that such a degree of control and lack of emotional investment were not necessarily in the best interest of Patrick, a much younger child.

Next, Rosalind argues that the trial court attributed too much weight to the willingness and ability of each party to facilitate and encourage a close and | ^continuing relationship between the child and the other parent. She complains that the trial court disregarded her testimony as to her willingness and ability to facilitate and encourage a close and continuing relationship between Patrick and Lauren; however, the trial court addressed this issue, in part, in his credibility determinations, finding Lauren and Elsie credible, but finding Rosalind not to be credible.

Rosalind also complains that the trial court’s consideration of evidence regarding the relationship of Patrick’s stepsisters, Nasia and Kylie, with Elsie, his stepmother, was inappropriate. To the contrary, as elaborated upon more fully below, we view this relationship and the impact that Rosalind and Kyle have had on it as being central to the trial court’s designation of Lauren as domiciliary parent.

In the present case, the trial court determined that Rosalind and Kyle’s actions amounted to “deliberate and willful alienation,” which “led to the complete rejection by the two girls of their mother, Elsie.” This conclusion is fully supported by the record which shows that Nasia and Kylie resent and disrespect Elsie to such an extent that after two and one-half years of counseling with Dr. Ray, they only visit their mother every other weekend for eight hours a day and that Rosalind and Kyle have contributed to and continue to contribute to that resentment and disrespect.

Elaborating upon the background facts which form the basis of these parties’ relationships, Elsie testified that Kyle and Rosalind started dating while she and Kyle were married. She also stated that their relationship devastated her and caused her to become depressed. Dr. Ray verified these facts. Because of Elsie’s depression, Kyle became Nasia and Kylie’s primary caregiver. According to Elsie, Kyle either lived with Rosalind or in a trailer next to her home before their marriage. Even though Rosalind claims that the evidence fails to establish these facts, our review of 19the record shows that Elsie’s and Dr. Ray’s testimonies on this issue were not disputed.

Dr. Ray testified that Kyle admitted to him that he and Rosalind were previously openly disrespectful of Elsie in front of Nasia and Kylie. He explained that much of what Nasia and Kylie resent with regard to Elsie occurred when Elsie was depressed. Dr. Ray pointed to negative comments Rosalind and Kyle made to the girls prior to Elsie’s marriage to Lauren as being indicative of the overt disrespect shown by Rosalind and Kyle for Elsie to the girls. Dr. Ray further testified that although Kyle assured him that he and Rosalind had ceased that detrimental behavior, he believed otherwise.

Rosalind seeks to deny the negative impact that she and Kyle have had on Nasia and Kylie. She argues that Nasia and Kylie’s alienation from Elsie was caused by Elsie’s own actions. In other words, Rosalind denies that she and/or Kyle bear any responsibility for Elsie’s depression which, as verified by Dr. Ray, was caused by Kyle’s infidelity. She also denies that they continue to contribute to the girls’ anger and hostility toward Elsie. The evidence establishes that this is not the case.

The weekend before the trial of this matter, Nasia and Kylie had scheduled visitation with Elsie. Due to the girls not obeying her instructions, Elsie told them they could not bring their cell phones with them when they visited her. Despite her instructions, when Elsie arrived to pick up the girls, they had their cell phones. Elsie instructed them to return the cell phones to their home. Rather than doing as instructed, the girls attempted to contact their father. When they could not contact their father, Kylie called Rosalind. Elsie testified that she was within earshot when she heard Rosalind tell Kylie that she and Nasia did not have to leave their cell |inphones because Elsie did not pay the bill for them. To resolve the issue, Elsie had to drive from St. Martinville to Whiskey Bay, some thirty to forty miles, to speak with Kyle. Eventually, the girls left their cell phones home, but Kyle called them four to five times during their visitation with Elsie to make sure they were okay. When presented with this scenario, Dr. Ray opined that such behavior undermines Elsie’s authority with the girls and insinuates to them that they may not be safe while with their mother.

We would be remiss if we did not observe that Dr. Ray’s testimony also established that all the parents have engaged in poor behavior toward each other at times and that he acknowledged that Elsie and Lauren have also contributed to the problem, stating, “there’s still so much animosity between the parties that the girls cannot not pick up on it.” He also explained that some of the girls’ resentment arises from Elsie’s not informing them when she started dating Lauren and that Elsie did not follow his recommendation to slow down her relationship with Lauren. Elsie explained that her relationship with the girls was strained before she met Lauren and that she did not inform them when she began dating Lauren because classes she attended in conjunction with her divorce from Kyle suggested that she should not do so. As to her marrying Lauren, she acknowledged that Dr. Ray recommended that she slow down her relationship with Lauren but defended her actions by explaining that she waited almost a year before marrying Lauren. Furthermore, Dr. Ray testified that Elsie had apologized to Nasia and Kylie more than once for her prior behavior and that Elsie was trying to be a good mother, but the girls were not relenting in their attitude toward her.

.^The trial court found it “incomprehensible” that Nasia and Kylie have anger only toward Elsie, not Kyle “who broke up the family,” and explained its concerns, stating: “The Court is not convinced that Patrick’s relationship can be maintained living primarily in an atmosphere where the two teenage girls who primarily reside with Rosalind and Kyle, have been ingrained with such anger and disdain toward both their mother, (Patrick’s stepmother), and for Lauren, (Patrick’s father).” On the other hand, the trial court found Lauren to be “genuine in looking out for the best interests of Patrick and preserving [Patrick’s] relationship with both of his parents.”

Rosalind strenuously argues that Nasia, Kylie, and Elsie’s relationship and Dr. Ray’s testimony regarding the dynamics of this relationship are irrelevant and have no bearing on what is best for Patrick. We disagree and find that the trial court did not err in its determination that this relationship is, as supported by Dr. Ray’s testimony, indicative of .what may become of Lauren and Patrick’s relationship if Rosalind is designated the domiciliary parent. We also find no merit to Rosalind’s argument that Dr. Ray’s opinions are speculation and conjecture. As borne out by the record, Dr. Ray’s opinions are based on his expertise in family counseling and his involvement in the relationship of most of these parties for more than two and one-half years.

It is obvious that Rosalind wants to separate her behavior with Patrick from her behavior with Nasia and Kylie, claiming that it has no bearing on her relationship with Patrick and Lauren. In this court’s eyes, the trial court properly considered Rosalind and Kyle’s behavior with regard to Nasia and Kylie as it reflected on their maturity level and their indiscretion as parents and exemplified their disrespect for Elsie as the girls’ mother. More importantly, Rosalind and Kyle’s behavior shows a |12lack of understanding of the significance that relationship bears on the best interest of Nasia and Kylie. Accordingly, we find that the trial court properly concluded that Rosalind and Kyle’s continuing negative behavior toward Elsie with Nasia and Kylie may have a negative effect on Patrick and his relationship with his stepmother, Elsie, and that this conclusion is reasonably based on the record.

We also find it was reasonable for the trial court to conclude that Rosalind’s and Kyle’s negative behavior with Nasia and Kylie may negatively affect Patrick’s relationship with Lauren. Furthermore, we find that if Rosalind and Kyle have no qualms utilizing such behavior and actions with Nasia, Kylie, and Elsie, it is reasonable to conclude that they would employ such negative behavior with Patrick regarding Lauren should they decide to do so.

The trial court’s assessment of the relevant factors set forth in Article 134 and its ultimate determination are reasonably supported by the record. Therefore, we find no error with the trial court’s best-interest assessment under Article 134 or its designation of Lauren as domiciliary parent.

Court-Appointed Expert

Rosalind further asserts that the trial court erred in failing to adopt or give any weight or consideration to Dr. Bouil-lion’s opinion that she be designated as the domiciliary parent. She contends that Dr. Bouillion’s assessment and recommendation were not contradicted by other competent expert testimony.

The trial court has much discretion in its assessment of expert testimony. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). “The weight to be given expert testimony depends, ultimately, on the facts on which the testimony is based, as well as the professional qualifications and experience of the expert.” Miller v. Miller, 01-356, p. 8 (La.App. 3 Cir. 10/31/01), 799 So.2d 753, 758 (citing Meany v. Meany, 94-251 (La.7/5/94), 639 So.2d 229). After weighing and evaluating an expert’s opinion in light of all the evidence presented at trial, the trial court may accept or reject the opinion expressed by any expert. Kramer v. Petroleum Helicopters, Inc., 08-133 (La.App. 3 Cir. 11/26/08), 999 So.2d 101, writ denied, 09-402 (La.5/1/09), 6 So.3d 811.

The trial court’s reasons for judgment establish that the trial court did consider Dr. Bouillion’s recommendation and testimony. However, it is equally clear that Dr. Bouillion did not have all the relevant evidence available to him when he formulated his recommendation. For example, Dr. Bouillion considered it important that Rosalind had a routinely-structured home with a normal family environment. Neither Dr. Bouillion’s report nor his testimony establish that he was aware of the extent of the structure imposed by Rosalind in her household. In another instance, the record shows that Dr. Bouillion was informed during his deposition that Kyle and/or Rosalind had instructed Nasia or Kylie to take pictures of Patrick’s room at Lauren and Elsie’s home. When presented with that evidence, Dr. Bouillion opined that such behavior was a violation of boundaries. He was also informed during his deposition that Rosalind and Kyle “badmouthed” Lauren. In his opinion, this was an important factor, and he testified that he would recommend no negativity by the parents. While Dr. Bouillion did receive a note from Dr. Ray and had a telephone conference with him the morning of his deposition, the record does not establish the extent of what Dr. Ray related to him in his note or during the telephone conference. It is likewise clear that Dr. Bouillion also did not know of the cell phone incident that occurred the weekend before trial.

| i4After considering the record as a whole, we find that the trial court did not abuse its discretion in its evaluation of Dr. Bouillion’s testimony and recommendation. As shown by the record, the trial court was keenly aware of the facts Dr. Bouillion had before him when he made his recommendations. Therefore, we find no error in the trial court’s decision not to adopt Dr. Bouillion’s opinion.

Rosalind also faults the trial court’s acceptance of Dr. Ray’s opinions and not Dr. Bouillion’s opinions. In support of her argument, she contends that Dr. Bouillion had contact with her, Lauren, and Patrick and that Dr. Ray did not. We disagree. Although Dr. Ray’s testimony and opinions were not directed to the trial court’s award of Patrick’s custody and he did not make a recommendation regarding that question, the record bears out his familiarity with most of the personalities at play in this custody case, his understanding of the complex familial relationships at work, and his keen awareness of the psychological interplay among these individuals.

Lastly, we acknowledge that the trial court made findings of fact that are not clearly established by the record, e.g., Patrick being disrespectful to Lauren. Notwithstanding this factual error, the trial court’s ultimate conclusion that it is in Patrick’s best interest for Lauren to be the domiciliary parent is borne out by the record. Accordingly, this assignment of error is without merit.

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to Rosalind Reed Thibodeaux.

AFFIRMED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

concurs.

| ,In this matter, the trial court was required to determine a custody arrangement for a four-year-old little boy. The trial court appointed Dr. Kenneth Bouil-lion, a clinical psychologist who felt that the boy’s mother, Rosalind, should be the domiciliary parent, but concluded that “Rosalind and Lauren are both competent parents in that they are knowledgeable of Patrick’s needs and fully capable of meeting those needs.” Based on that conclusion, I cannot say that the trial court abused the vast discretion reserved to it in making determinations regarding custody. I therefore concur in the majority’s result.

Having concurred, I do wish to state my concern that both the trial court and the majority were needlessly harsh in their treatment of Rosalind Reed Thibodeaux. For example, the evidence showed that Rosalind insisted on rigid structure and discipline in her household. I am unable to conclude, as the trial court and majority did, that this is a strike against Rosalind. Likewise, Dr. Bouillion clearly believed that young Patrick would benefit from the fact that Rosalind’s “home environment” was “stable and structured.”

This matter did not involve the custody of Rosalind’s two teenaged stepdaughters. Thus, I respectfully disagree with the decision of the trial court and the majority to focus most of their time and energy on issues relating to those girls. However, once both this court and the court below determined that the family life of |2the two teenagers was important, they should have considered all the evidence introduced regarding these two girls, including their preferences in living arrangements. In fact, while the trial court concluded that the structure Rosalind provided was excessively rigid, her stepdaughters preferred living in Rosalind’s household to their mother’s.

The trial court clearly took issue with the fact that Rosalind’s testimony was “rehearsed” and consequently, “not credible.” I find it unsurprising that a mother would rehearse her testimony when the welfare of her small child is at stake. Nevertheless, I am constrained by the applicable standard of review to concur in the ruling of this court.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . The cases that Rosalind cites as support for the proposition that the twelve factors identified in Article 134 are mandatory, Thibodeaux v. Thibodeaux, 00-82 (La.App. 3 Cir. 6/1/00), 768 So.2d 85, writ denied, 00-2001 (La.7/26/00), 766 So.2d 1262, and Bynog v. Bynog, 95-173 (La.App. 3 Cir. 7/26/95), 663 So.2d 86, reference Article 134, but fail to recognize that Article 134 uses the permissive "may” to introduce the twelve factors.

      . Because of Patrick's young age, the ninth factor, the reasonable preference of the child, is inapplicable.

      . In making this statement, we are not impugning Rosalind's use of rules and consequences. We are keenly aware that "[a]n award of custody is not a tool to regulate human behavior.’’ Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). Our comment in this regard is to be understood in light of the trial court's duty under La.Civ.Code art. 134 to utilize those factors to determine the best interest of this child at this time.


author: TERRI F. LOVE, Judge. MURRAY, J.,

text:
    STATE of Louisiana v. Erskine L. ROBINSON a/k/a Erskine Robertson.
    No. 2009-KA-1137.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.
    Rehearing Denied April 28, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad M. Scott, Assistant District Attorney, New Orleans, LA, for The State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

ItThe State filed a bill of information charging the defendant, Erskine Robinson, with possession of crack cocaine. The defendant entered a plea of not guilty and filed motions to suppress the evidence and statement. After a hearing, the trial court denied the defendant’s motions and found probable cause to hold the defendant for trial.

The defendant appeals, arguing that the trial court erred in allowing the State to question Erica Jones as to her knowledge of his prior criminal convictions. The defendant argues that the State failed to present sufficient evidence to support his conviction for possession of cocaine, alleging that the police officers fabricated the facts in order to frame him. The defendant also maintains that his conviction and sentence should be reversed because he was arrested and charged with possession of “crack”, a substance for which there is no statutory prohibition.

We find that the jury’s credibility finding as to the officers’ explanation of what led up to the defendant’s arrest for possession of cocaine is supported by evidence in the record before us. We further find that the State satisfied its burden of proving the elements of the crime beyond a reasonable doubt and the evidence was sufficient to support the conviction. We find no error in the defendant’s 12conviction, as the State and defense counsel stipulated that the substance in the defendant’s possession tested positive for cocaine, a controlled dangerous substance the possession of which is prohibited by law. We affirm the defendant’s conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2007, the defendant, Ers-kine Robinson, was charged with possession of crack cocaine, a violation of La. R.S. 40:967(0(2). The defendant entered a plea of not guilty. The district court denied the motions to suppress the. evidence and statement and found probable cause to hold the defendant for trial. The defendant was later found guilty as charged.

The State filed a multiple bill of information charging the defendant with being a fourth felony offender. The district court adjudicated the defendant as a fourth felony offender, and he was sentenced to serve twenty years at hard labor with credit for time served but without benefit of probation or suspension of sentence and concurrent with any other sentence.

TESTIMONY ADDUCED AT TRIAL

In 2007, Officer Brumfield and his partner, Officer Kelsey Lewis, were on pro active patrol in the vicinity of Mars Place, an area known for drug activity. The officers observed the defendant crawling out from under a house at 9 Mars Place. Because home owners in the area had experienced copper pipe thefts, the officers decided to conduct an investigatory stop of the defendant. The officers exited their vehicle, approached the defendant and asked him if he owned the | .¡house. The defendant responded that he did not own the house and the officers testified that the defendant replied in an agitated manner asked the officers if they had anything better to do than mess with him.

Officer Brumfield noticed that both of the defendant’s fists were clenched. Because of the defendant’s agitated manner and for safety purposes, Officer Brumfield asked the defendant to open his fists, and the defendant reluctantly complied. A glass pipe commonly used for smoking crack cocaine and a piece of plastic containing a rock-like substance consistent with crack cocaine fell from the defendant’s fists; the items were immediately seized. The defendant was read his Miranda rights and placed under arrest for possession of crack cocaine.

Officer Brumfield further testified that he was not familiar with the house located at 9 Mars Place, but it appeared to be an inhabited dwelling. After securing the defendant inside their police unit, the officers knocked on the door of the house at 9 Mars Place in an attempt to locate the owner, however, no one answered the door. Using their flashlights, the officers looked under the house for evidence of other illegal activity or pipe thefts, and none was found. Officer Lewis testified that no burglar tools or cut pipe were found under the Mars Place house.

The state and defense stipulated that the substance seized from the defendant tested positive for cocaine.

Erica Jones (“Ms. Jones”), owner of the house located at 9 Mars Place, testified that she knew the defendant from the neighborhood but did not have any personal interaction with him. She further testified that the defendant performed l4odd jobs for some neighbors such as washing cars, running errands such as going to the store, and generally checking on neighbors. Ms. Jones stated that she lived in the house with her children and adult niece. She testified that she was home on the evening of the defendant’s arrest, however she did not see or hear anyone under her house. She also testified that she did not see or hear the police outside, nor did she hear a knock on her door.

Ms. Jones testified that on the date in question, she was employed by Harrah’s as a housekeeper. She stated that she worked a shift from 8:30 a.m. to 5:30 p.m. so that she could be home in the evening with her children and never worked the evening shift. Ms. Jones testified that she had no knowledge of the defendant’s use of drugs or his prior convictions for drug possession, and she was shocked to learn that he had been arrested for drug possession. Ms. Jones testified that she had no knowledge of the defendant’s prior convictions for possession of cocaine in 1995, for theft in 1991 and 1999 and for escape from police custody in 1998. She further testified that the defendant never watched her children; however, she stated that he had been inside her house on two occasions and that her relationship with him was friendly. Ms. Jones testified that the police never attempted to contact her and stated that she believed the defendant was a nice person because he never did anything bad in the neighborhood.

ERRORS PATENT

A review for errors patent reveals none.

| .MOTION TO SUPPRESS

The defendant argues that the trial court erred in denying the motion to suppress the evidence. Specifically, the defendant asserts that the request by Officer Brumfield that he relax his clenched fists constituted an illegal search and warrants a suppression of the cocaine that was seized. The defendant points to Officer Lewis’ testimony at the motion to suppress hearing that he was not afraid of the defendant as proof that the request for him to relax his clenched fists was not justified as a reasonable search for weapons. The defendant further argues that he was not free to refuse.

If a police officer’s observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, the officer may detain that person briefly to investigate the suspicion-provoking circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the instant case, the officers saw the defendant in an area that had experienced an increase in the theft of copper pipe from residences. The defendant was crawling backwards from under a house late at night. This observation was sufficient to initiate an investigatory stop of the defendant. The defendant denied that he owned the house, and the officers described his demeanor and tone as aggressive. The defendant’s aggressive verbal responses exhibited that he was not happy with the situation. As a safety precaution, Officer Brumfield asked the defendant to relax his clenched fists; the defendant reluctantly complied. Thus, the issue posed is 1 .whether the officers obtained the contested evidence by way of a request or a demand.

The critical aspect of that inquiry turns on whether a reasonable person would feel free to decline the requests or otherwise terminate the encounter with the law enforcement personnel. Furthermore, a defendant’s subjective belief is irrelevant; the encounter should be judged from the viewpoint of a reasonable, innocent person. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Taking into account all of the other circumstances the court must determine whether the police conduct would have communicated to a reasonable person that he was not at liberty to disregard the officers and go about his business. Id. Although most citizens will respond to a police solicitation, and do so without being told that they are free to decline, that fact hardly eliminates the consensual nature of the response. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The determination of voluntariness depends upon the overall facts and circumstances of the particular case. State v. Franklin, 95-1876 (La.1/14/97), 686 So.2d 38. On appellate review of such an issue, the trial court’s factual determination is entitled to great weight. Id.

In the instant case, we find that no illegal search occurred. In fact, no search took place. Officer Brumfield requested (as opposed to directed, ordered, instructed or demanded) that the defendant relax his clenched fists. Officer Lewis testified that the defendant was asked to relax his clenched fists because “[w]e just wanted to make sure he didn’t take a swing at us.” Officer Lewis’ testimony [ 7supports the officers’ concern that the defendant may become violent and hit them. No guns were drawn, no threats were made, and no repercussions were threatened. Although the defendant was less than delighted with the situation, Officer Brumfield made only a request regarding the contents of his hands. The defendant complied with the request. Thus, we find no merit in this assignment of error.

DEFENDANT’S CHARACTER

The defendant asserts that the trial court erred in allowing the state to question Erica Jones as to her knowledge of his prior criminal convictions. Over defense objections, following a sidebar discussion, the trial court ruled that defense counsel put the defendant’s character at issue on direct examination and, therefore, opened the door for the state to question Jones about his prior convictions. In overruling defense counsel’s objection, the trial court stated the following:

THE COURT:

Counsel, I have to beg to differ with you on that. Once you did, you did. I can’t disagree with Mr. Bair on that and once you go into that — I’ll [sic] just calling it the good neighbor questioning, the loving people, washing cars, watching out for everybody in the neighborhood; that you put his character into evidence ... but knowing there is a clear case where the counsel has opened up the door to character evidence, that you — the questions were very clear and planned and it wasn’t like you were shocked because you mentioned those kind [sic] of things in your opening statement.

The record reflects that the defense opened the door to evidence concerning the defendant’s character. A witness may be cross-examined on any matter relevant to any issue in the case. La. C.E. art. 611. Character witnesses may be cross-examined concerning relevant specific instances of conduct. La. C.E. art. | ⅜405. The State has the right to rebut testimony elicited from a witness by the defense. State v. Koon, 96-1208, p. 25 (La.5/20/97), 704 So.2d 756; see also, State v. Asberry, 99-3056, (La.App. 1 Cir. 2/16/01), 808 So.2d 472. We find that under the instant circumstances, the questions were proper.

SUFFICIENCY OF EVIDENCE

The defendant asserts that the State failed to present sufficient evidence to support his conviction for possession of cocaine. Specifically, he alleges that the officers fabricated the facts in order to frame defendant.

The Louisiana Supreme Court set forth the standard for evaluating a claim of insufficient evidence in State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). See also State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Sykes, 2004-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

[ ¡The defendant was charged with and convicted of possession of cocaine. The State had to prove that the defendant knowingly and intentionally possessed cocaine. See La. R.S. 40:967 C; State v. Williams, 2007-0700 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101. Here, the officers testified that they observed defendant crawling from under a house at 9 Mars Place. Because the area had experienced an increase in stolen copper pipe, the officers initiated an investigatory stop. Further, due to the defendant’s aggressive demeanor, Officer Brumfield, for safety reasons, asked the defendant to open his closed fists. When the defendant complied, a glass pipe and a piece of plastic containing two rock-like substances dropped to the ground. The items were retrieved and later found to be cocaine. There was no evidence presented at trial that refuted these facts. As for the defendant’s claim that the officers lied and fabricated the facts, as noted in Williams, at p. 6, 977 So.2d at 1108: “A reviewing court is not called upon to decide whether it believes the witnesses. State v. Rose, 2005-0396, pp. 2-3 (La.App. 4 Cir. 4/13/07), 955 So.2d 270, 272.” In addition, this Court has repeatedly held that a fact-finder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The jury apparently believed the officers’ explanation of what led up to the defendant’s arrest for possession of cocaine, and there is nothing in the record before this court to indicate that the jury’s credibility finding is clearly contrary to the evidence.

IrnGiven the officers’ testimony, the jury could have reasonably found that the State proved beyond a reasonable doubt that the defendant possessed and dropped the crack cocaine. This assignment of error is without merit.

STATUTORY PROHIBITION

The defendant asserts that his conviction and sentence should be reversed because he was arrested and charged with possession of “crack”, a substance for which there is no statutory prohibition. The bill of information reflects that defendant was charged with possession of a controlled dangerous substance, to wit: cocaine. At trial, the State and defense counsel stipulated that the substance in the defendant’s possession tested positive for cocaine, a controlled dangerous substance the possession of which is prohibited by law. La. R.S. 40:964(A)(4); Schedule II, La. R.S. 40:967(0(2). We therefore find this assignment of error is without merit.

DECREE

The defendant’s conviction and sentence are affirmed.

ARMSTRONG, C.J., concurs.

MURRAY, J., Concurs with Reasons.

MURRAY, J.,

Concurs with Reasons.

|, The defendant, Mr. Robinson, asserts that Officer Brumfield’s request that he relax his clenched fists constituted an illegal search and warrants a suppression of the cocaine that was seized. The majority states that this issue turns on whether “the officers obtained the contested evidence by way of a request or a demand” and concludes that the seizure was valid because it was a request. Although I agree the seizure was valid, I disagree with the characterization of Officer Brum-field’s instruction as a request. Given that Officer Brumfield gave the instruction not once, but twice, I believe it was a demand that Mr. Robinson was not free to ignore.

Nonetheless, the evidence was properly seized as part of the valid Terry stop of Mr. Robinson. Under somewhat similar circumstances, this court in State v. Bridges, 610 So.2d 827 (La.App. 4th Cir. 1992), held that officers were justified in forcing a defendant to open his clenched fist during a Terry stop. In that case, one of the officers testified that “he believed that defendant could have had a weapon, such as a pocketknife, in his hand.” Bridges, 610 So.2d at 829. Similarly, Officer Brumfield indicated that he asked Mr. Robinson to open his clenched fist as a safety precaution. Accordingly, I agree with the majority’s finding that the trial court did not err in denying Mr. Robinson’s motion to suppress the evidence that was seized.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Richard W. BLACK.
    No. KA 09-923.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2010.

      Van H. Kyzar, District Attorney, Cloyd Benjamin, Jr., Assistant District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant Richard W. Black.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   COOKS, Judge.

hFACTS AND PROCEDURAL HISTORY

The facts of the instant offense stem from those in a previous appeal. In State v. Black, an unpublished opinion bearing docket number 08-989 (La.App. 3 Cir. 3/4/09), Defendant, Richard W. Black, appealed his conviction for aggravated assault upon a peace officer with a firearm. In the lower court, the Defendant filed a “Motion for Post-Verdict Judgment of Acquittal and for New Trial” and a “Supplemental Motion for New Trial,” attaching the affidavit of Ruth Ann Brimzy, and asked that she be examined at the hearing on the Defendant’s post-trial motion. The affidavit indicated that Ms. Brimzy was with the victim, Wildlife Agent McAlpin, who reported that he and another game warden lied about the Defendant pointing a gun at them-the fact which formed the basis for his conviction. It is this affidavit which forms the basis for the instant convictions.

In the instant case, the State alleged in the bill of information that Defendant falsified the statements in the affidavit and then filed the affidavit in the record of the proceeding, along with his “Motion for Post Verdict Judgment of Acquittal and for New Trial,” in an effort to manipulate the judicial process. At sentencing, the trial court confirmed that the affidavit was prepared by the Defendant with false statements, signed by Ms. Brimzy, and then presented to the court. The trial court stated:

The statement falsely impugned the integrity and the morality of uh, Wildlife Agent, David McAlpin, who was the victim of the aggravated assault conviction. And all of this was done with the intent of influencing the Court’s decision uh ... both, I think, on the Motion for New Trial, and (inaudible) that was denied ultimately on sentencing Mr. Black on that aggravated assault charge.

On March 4, 2008, Defendant was charged by bill of information with filing false public records, a violation of La. R.S. 14:133(A) and 14:24, and with perjury, a | ¡.violation of La. R.S. 14:123 and 14:24. A motion for the appointment of a sanity commission was filed by Defendant. After a hearing, the motion was denied.

Defendant pled guilty to the charges in exchange for the State’s agreement not to charge him as a habitual offender and that the sentences would run concurrently with each other. Defendant was subsequently sentenced to serve five years at hard labor for each conviction, to be served concurrently with each other, but consecutively to his prior sentence in an unrelated docket number. Defendant did not file a motion to reconsider his sentences.

Defendant is now before this court on appeal, asserting that his convictions violate double jeopardy and that the trial court erred in denying his motion for a sanity commission. After reviewing the record, we find Defendant’s conviction and sentence for perjury should be affirmed; but his conviction and sentence for filing false public records should be reversed.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, Defendant argues the double jeopardy clauses of the federal and state constitutions protect against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because his guilty plea for creating a false affidavit was taken under both perjury and filing a false public record, Defendant maintains his convictions violate double jeopardy. As such, Defendant argues his single act of filing a false affidavit cannot be the basis for two felony charges.

In opposition to Defendant’s appeal, the State argues Defendant waived his right to appeal his convictions and sentences when he voluntarily entered his guilty plea, citing State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577 (La.11/5/99), 751 So.2d 232, writ denied, 01-2178 (La.4/19/02), 813 So.2d 1081. The State maintains Defendant read and signed a plea agreement which contained both charges and which expressly waived an appeal of his convictions and sentences.

As noted in State v. Crosby, 338 So.2d 584, 588 (La.1976), “[a] defendant normally waives any non-jurisdictional error by his plea of guilty.” An unqualified plea of guilty, however, does not preclude review of jurisdictional defects, those which do not permit a defendant’s conviction of the offense charged. According to Crosby, a conviction which represents double jeopardy, is an example of a jurisdictional defect. As such, we will review this assignment of error to determine if Defendant’s convictions constitute double jeopardy-

In State v. Barton, 02-163, pp. 17-18 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201-02, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817, the court summarized the two tests used by Louisiana courts in examining violations of double jeopardy as follows:

The “distinct fact” test, commonly referred to as the Blockburger test, is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Accord, State v. Knowles, 392 So.2d 651, 654 (La.1980).
The second test is the “same evidence” test. In State v. Steele, 387 So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained that test as follows:
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for | ^conviction, not all the evidence introduced at trial....
The “same evidence” test is broader than Blockburger, “the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” State v. Steele, 387 So.2d at 1177. Although the Louisiana Supreme Court has accepted both the Blockburger test and the same evidence test, it has principally relied on the “same evidence” test to evaluate double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990).
The offense of filing or maintaining false public records is defined in La. R.S. 14:133, which reads in pertinent part:
A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:
(1) Any forged document.
(2) Any wrongfully altered document.
(3) Any document containing a false statement or false representation of a material fact.
Perjury is defined in La. R.S. 14:123, which reads in pertinent part:
A. Perjury is the intentional making of a false written or oral statement in or for use in a judicial proceeding, any proceeding before a board or official, wherein such board or official is authorized to take testimony, or before any committee or subcommittee of either house or any joint committee or subcommittee of both houses of the legislature. In order to constitute perjury the false statement must be made under sanction of an oath or an equivalent affirmation and must relate to matter material to the issue or question in controversy.
B. It is a necessary element of the offense that the accused knew the statement to be false, but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false.

To avoid double jeopardy under Blockburger, each provision must require proof of an additional fact which the other does not. In the instant case, perjury requires that the false statement be made under oath and be related to a material issue in the judicial proceeding. These elements are not required for filing false public | .^records. As such, Defendant’s convictions would not constitute double jeopardy using the Blockburger analysis.

Under the same evidence test, however, the evidence required to support a finding of guilt of one crime must not also support conviction of the other. In the instant case, the conception and subsequent utilization of Ms. Brimzy’s affidavit was used to convict the Defendant of filing false public records and to convict him of perjury. Although the elements of the offenses are not identical, the evidence needed to convict Defendant of the offenses is the same. Thus, Defendant’s convictions constitute double jeopardy using the same evidence test.

As noted by this court in State v. Pierce, 01-94, p. 29 (La.App. 3 Cir. 10/31/01), 799 So.2d 732, 750, unit denied, 01-3312 (La.1/10/03), 834 So.2d 427, “To remedy a violation of double jeopardy, this court must vacate the conviction and sentence of the less severely punishable offense and affirm the conviction and sentence of the more severely punishable offense. State v. Doughty, 379 So.2d 1088 (La.1980); State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990).” See also State v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ dsnied, 08-602 (La.9/4/09), 17 So.3d 948. In the instant case, a conviction of perjury is the more severely punishable offense, which carries a maximum hard labor sentence of five years or a maximum fine of $10,000, or both. La. R.S. 14:123(0(3). Filing of false public records carries a maximum possible sentence of five years, with or without hard labor, or a fine of not more than $5,000, or both. La. R.S. 14:133(C). Accordingly, Defendant’s conviction and sentence for perjury is affirmed and his conviction and sentence for filing of false public records is reversed.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, Defendant argues the trial court erred in not | ^ordering a sanity commission despite objective medical evidence that he suffered from a neurological deficit and impaired memory. Further, Defendant contends the trial court unfairly considered his criminal conduct as somehow showing that he had no mental health problems.

On March 26, 2008, Defendant, while incarcerated in the Natchitoches Parish Detention Center, was arraigned by video. Defendant waived arraignment and entered a plea of not guilty to the charges. After the trial court advised him of his right to a jury trial and the date set for trial, Defendant advised the trial court he had no memory of what was going on and asked how he could get some kind of mental or physical help.

That same day, counsel for Defendant filed a “Motion for Psychiatric Examination,” stating he believed that Defendant suffered a mild stroke while incarcerated on or about the second week of March, was held at LSU Medical Center for two days, and then returned to prison. According to defense counsel, when he spoke with Defendant on March 14, 2008, Defendant did not appear to have any recollection of his pending charges or why he was incarcerated, and could not intelligently communicate with defense counsel. A hearing on the motion was ordered to be held on April 16, 2008.

At the hearing, a three-page discharge summary from LSU Medical Center, dated March 13, 2008, was admitted into evidence. The discharge diagnoses were lumbar radiculopathy and neuropathy. The report indicates Defendant was transferred from another hospital to LSU Medical Center complaining of right-sided numbness and weakness and a throbbing headache all over his head. Defendant also complained of stabbing, substernal chest pain, that radiated to his back. Defendant stated he was unable to remember why he was in the hospital and that he thought the 17year was 1998. The laboratory data from the transferring hospital was reported to be within normal limits. His physical exam on admission reflects that he was disoriented to time, only, was cooperative with good eye contact, but “clearly unreliable.” Although Defendant’s neurological exam was normal, he reported decreased touch and pain sensation on the right upper and lower extremities and was unable to walk due to his weakness and lower back pain. The physician reported, again, that “the patient was unreliable on examination.”

During the course of his hospitalization, Defendant was admitted to neurology. An MRI of the brain and lumbar spine, a carotid doppler and echocardiogram were all normal. After showing remarkable improvement, Defendant was discharged to be followed in the neurosurgery outpatient clinic.

At the hearing, the trial court heard the testimony of Defendant’s sister, Aline Slaughter. In its written ruling denying Defendant’s motion, the trial court referred to Ms. Slaughter’s testimony about the Defendant’s mental status during his hospitalization. According to Ms. Slaughter, when she went to visit Defendant with his wife, Patricia Black, Defendant believed that Mrs. Black was his girlfriend, not his wife. Also, the Defendant thought the year was 1998, and that his deceased father was still alive. Following his discharge, she stated she visited him twice and believed his mental status had not changed. According to Ms. Slaughter, Defendant continued to believe his father was alive. Ms. Slaughter indicated, however, that Defendant knew his wife and that he had the mental wherewithal to call Ms. Slaughter at home.

The trial court also considered the discharge summary regarding the Defendant’s mental status, his negative test results, and his significant improvement during his hospital stay. The trial court noted that no other evidence was introduced.

In reaching its ruling, the trial court referred to La.Code Crim.P. arts. 641 and |s643. Louisiana Code of Criminal Procedure Article 641 reads, “Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” Louisiana Code of Criminal Procedure Article 643 provides:

The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. Prior to the ordering of any such mental examination, the court shall appoint counsel to represent the defendant if he has not already retained counsel.

The trial court also relied on this court’s ruling in State v. Normand, 04-840, pp. 3-4 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100, writ denied, 05-231 (La.5/6/05), 901 So.2d 1094, which explains:

The appointment of a sanity commission “is not a perfunctory matter or a ministerial duty of the trial court nor is it guaranteed to every accused in every case.” State v. Nix, 327 So.2d 301, 323 (La.1975); State v. Sepulvado, 93-2692 (La.4/8/96), 672 So.2d 158. The burden of proof lies with the defendant. The defendant must show “by a clear preponderance of the evidence reasonable grounds for the trial judge to believe he is mentally deficient.” State v. Cyriak, 96-661, p. 8 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 47. Moreover, “[t]he fact that the defendant’s capacity to proceed is called into question does not, for that reason alone, require the trial court to order a mental examination of the defendant.” State v. Lott, 574 So.2d 417, 424 (La.App. 2 Cir.), writ denied, 580 So.2d 666 (La.1991), affirmed after remand, 27,849 (La.App. 2 Cir. 4/3/96), 671 So.2d 1182. The trial court has great discretion in ruling on a determination of competency, and its decision will not be overturned on appeal absent an abuse of discretion. State v. Comeaux, 514 So.2d 84 (La.1987); State v. Lowenfield, 495 So.2d 1245 (La.1985).

The trial court then concluded “[t]hat while there was some evidence of earlier mental confusion on defendant’s part, defendant has not proven that as of the time of the hearing, he lacked the mental capacity to proceed as defined in Article 641.”

On appeal, Defendant contends the trial court imposed the wrong burden on him, testing his request for a Sanity Commission as if it required him to prove incapacity. However, considering the limited evidence presented at the hearing, we |9find Defendant did not meet his burden of showing, by a clear preponderance of the evidence, reasonable grounds for the trial court to believe he was mentally deficient to proceed. Even if the trial court believed that Defendant suffered from some sort of medical event in March of 2008, which rendered him incapable of proceeding, there was no evidence that the Defendant suffered from any mental deficiency at the time of the hearing. Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence for perjury is affirmed. His conviction for filing false public records is reversed.

AFFIRMED IN PART; REVERSED IN PART.


author: PICKETT, Judge. THIBODEAUX, Chief Judge, COOKS, J.,

text:
    Andre ALEXANDER, et al. v. The ESTATE OF Maurice D. McNEAL, et al.
    Nos. 09-941, 09-942.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2010.

      Dale G. Cox, Bradley Murchison Kelly & Shea LLC, Shreveport, LA, for Defendants-Appellees, Althea Dupar, Jerod Du-pai*, Paige Dupar.
    John W. Munsterman, Attorney at Law, Alexandria, LA, for Defendant-Appellee, Tyler Timber, Inc.
    Donald Armand, Jr., S. Michael Cooper, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, LLP, Shreveport, LA, for Defendant-Appellant, Praetorian Specialty Insurance Co.
    Cory Paul Roy, Attorney at Law, Marksville, LA, for Plaintiffs-Appellees, Andre Alexander, Phaetra Moore.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, BILLY H. EZELL, Judges.
   PICKETT, Judge.

I,The appellant, Praetorian Specialty Insurance Company, appeals the trial court’s ruling granting a motion for partial summary judgment.

STATEMENT OF THE CASE

Maurice D. McNeal and Marvin Dupar were both killed when the vehicles they were driving collided on December 7, 2007. At the time of the accident, McNeal was an employee of Tyler Timber, driving a vehicle owned by Tyler Timber in the course and scope of his employment. The Tyler Timber vehicle was insured under a policy issued by Praetorian Specialty Insurance Company (Praetorian).

The heirs of Dupar filed two separate suits in district court, which were consolidated. Among the defendants named in the suits were Tyco Centures, the parent company of Tyler Timber, and Praetorian. Additionally, Tyler Timber filed a third party demand against Regions Insurance, Inc., its insurance agent, and Praetorian. After some discovery, the plaintiffs and Tyler Timber filed a motion for partial summary judgment asking the court to find that a certain endorsement in the policy issued to Tyler Timber was unenforceable. This endorsement required Tyler Timber to give notice to Praetorian of any new drivers in order for the coverage limits of one million dollars to apply; otherwise, the statutory minimum coverage of $100,000 would apply to that driver. The trial court heard the matter on March 20, 2009, and at the conclusion of the hearing he granted partial summary judgment in favor of the plaintiffs and Tyler Timber. A second hearing was held on April 26, 2009, when Praetorian opposed certification that the partial summary judgment was immediately appealable pursuant to La.Code Civ.P. art. 1915(B). The trial court certified the judgment as immediately appealable. Praetorian now appeals.

| ^ASSIGNMENTS OF ERROR

Praetorian asserts four assignments of error:

1.The trial court impermissibly decided a disputed issue of material fact. Specifically, the trial court believed the testimony of Tyler Timber employee Donna Desselle over the testimony of Regions employees Nancy Green and Caren Hebert, and concluded that Regions received notice that McNeal was to be added as a “specified operator.” Based on this factual conclusion on a disputed issue of fact, the trial court granted partial summary judgment.

2. The trial court erred in finding that Regions had apparent and/or actual authority to bind coverage for Praetorian.

3. The trial court erred to the extent it found the Auto 100A endorsement ambiguous or unenforceable.

4. The trial court erred in certifying the Partial Summary Judgment as final.

Althea Dupar, Jared Dupar and Paige Dupar have filed an answer to the appeal arguing that this court should “approve a second grounds upon which the appellees’ partial motion for summary judgment should be granted, in addition to the grounds cited by the trial court, to-wit: that the fifteen day requirement in the Praetorian endorsement leads to an absurd result.”

DISCUSSION

Certification as Immediately Appealable

We shall address Praetorian’s final assignment of error first, since resolution of that issue in favor of Praetorian would end our consideration of this case. When the trial court gives explicit reasons for certifying a partial judgment as final, the proper standard of reviewing that determination on appeal is whether the trial court abused its discretion. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113. Following the hearing on April 26, the trial court found that the ruling on summary judgment was “a crucial and threshold issue” that should be resolved |3before proceeding to the trial on the merits. We find no abuse of discretion in the trial court’s determination. This assignment of error lacks merit.

Standard of Review

The supreme court discussed the applicable standard of appellate review in summary judgments involving insurance contracts in Robinson v. Heard, 07-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith 639 So.2d at 750.
Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Sanchez v. Callegan, 99-0137 (La.App. 1 Cir. 2/18/00), 753 So.2d 403, 405. When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Sanchez, 753 So.2d at 405.

The motion for partial summary judgment filed by the plaintiffs and Tyler Timber asserted three distinct reasons that the policy limits of one million dollars should apply. First, they argued that there was no genuine issue of material fact that Tyler Timber notified Regions that McNeal had been hired, and that as Regions was an agent for Praetorian, notice to Regions was sufficient to meet the notice requirements of the endorsement. Second, the movers argued that the notice provision violated Louisiana public policy by reducing Praetorian’s liability exposure. Third, the movers argued that the endorsement was ambiguous because it was impossible for Tyler Timber to give notice to Praetorian as required in the | .(endorsement. Alternatively, they argued that the fifteen day limit to add new drivers to the policy was arbitrary.

Disputed Issue of Material Fact

In its first assignment of error, Praetorian alleges that the trial court erred when it decided a genuine issue of material fact in reaching its decision to grant summary judgment. The endorsement at issue requires the insured, Tyler Timber, to notify the insurer, Praetorian, when it adds a new driver to its policy in order to be covered under the policy limits of one million dollars. Failure to properly notify Praetorian would result in the limits of coverage being reduced to the statutory minimum of $100,000. The notification clause that is at issue in this case is:

Should you decide to add a “specified operator” (who is regularly furnished with a covered “auto” for use in the course and scope of employment) to this policy, you shall provide to us the following information in writing within fifteen (15) days of either 1] the initial hire date or 2] the first date the operator or driver begins regularly operating a covered “auto” on your behalf, whichever occurs first:
—Full Name, and
—Driver’s License Number.
In the event you fail to give us such written notice within the timeframe specified above, the individual concerned shall be considered a “non-specified operator”, rather than a “specified operator” under this policy.

We find that the trial court did in fact make a credibility determination in deciding that the evidence proved that Tyler Timber faxed the document adding McNeal as a “specified operator” to Regions, where employees of Regions disputed in their depositions that they ever received that document. In determining that the one million dollar policy limits applied, the trial court stated:

I believe there is no issue of fact as far as Tyler giving, giving and going through the appropriate channels to specify Mr. McNeal as an operator. Now, whether there was a failure between Regions and Praetorian I |sdon’t think should bind or prejudice the plaintiffs. It is a matter for a cross claim.

Thus, we find that the trial court improperly granted summary judgment on the grounds that Tyler gave notice adding McNeal as a “specified operator” to its agent, Regions, where there is a disputed issue of material fact about whether that notice was ever transmitted.

Ambiguity of the Endorsement

At the hearing on the motion for partial summary judgment, the trial court pointedly refused to reach the issue of whether the policy language was ambiguous or against public policy for the reasons assigned in the motion and repeated in the answer to the appeal filed by the Dupars. Inasmuch as discovery is still ongoing in this case and further information may be developed regarding the endorsement and notice requirement therein, we reserve to the trial court the opportunity to rule on those issues in the first instance once discovery has been completed.

Motion to Remand

Given our ruling on the merits, we find Praetorian’s Motion to Remand moot.

CONCLUSION

The judgment of the trial court granting the plaintiffs partial summary judgment is reversed. The matter is remanded for proceedings consistent with this opinion. Half of the costs of this appeal are assessed to the plaintiffs, Althea Dupar, Jared Dupar, Paige Dupar, Andre Alexander, and Phaetra Moore, and half of the costs of this appeal are assessed to Tyler Timber.

REVERSED AND REMANDED.

THIBODEAUX, C.J., and COOKS, J„ dissent with written reasons.

THIBODEAUX, Chief Judge,

dissenting.

_JjThe Auto 100A endorsement, written by Praetorian, is subject to more than one interpretation. Thus, it is not clear and unambiguous and must be interpreted in favor of coverage.

I respectfully dissent.

COOKS, J.,

dissenting.

hi dissent from the majority’s decision to reverse the trial court’s judgment granting summary judgment and remand for further proceedings. I find summary judgment was appropriate in this matter, albeit for different reasons than the trial court’s factual assumption. Summary judgment is appropriate because the policy required a mechanism of notice that was not possible. Deep South Surplus, Inc. was the exclusive managing general agent in Louisiana for Praetorian. Michael Du-gan, the president of Deep South, testified unequivocally that they did not accept notice for Praetorian. The real issue in this case is was notice possible if the policy is read as Defendant insists? I believe the answer is no, because Deep South clearly said they would not accept notice on behalf of Praetorian. Thus, whether Regions received a faxed notice from Tyler Timber may be a disputed fact, but this fact is neither material nor genuine because notice was not possible, as contemplated by the policy and as Defendant, the author of the policy, interprets it. Therefore, I would affirm the grant of summary judgment.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Paul Jacoby BROUSSARD.
    No. 09-1012.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant-Appellant, Paul Jacoby Broussard.
    Michael Harson, District Attorney, Keith States, Assistant District Attorney Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

1T Defendant, Paul Jacoby Broussard, appeals his conviction for second degree battery. For the reasons set forth herein, we overturn the conviction for second degree battery, render judgment finding Defendant guilty of simple battery, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted of committing a second degree battery upon his girlfriend, Alydia Menard.

Defendant was charged by bill of information filed on October 7, 2008, with second degree battery, in violation of La. R.S. 14:34.1. On October 10, 2008, Defendant entered a plea of not guilty. Defendant waived his right to trial by jury on January 22, 2009, proceeded to trial before the bench, and was found guilty as charged. On May 21, 2009, Defendant was sentenced to serve five years at hard labor and ordered to pay a fine of $2,000. A Motion to Reconsider Sentence was filed on May 26, 2009, and denied on May 28, 2009.

A Motion for Appeal and Designation of Record was filed on June 11, 2009. The motion was subsequently granted. Defendant is now before this court asserting two assignments of error. Therein, he contends the evidence was insufficient to support his conviction.

DISCUSSION

Errors Patent

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

| ⅞Sufficiency of the Evidence

In his first assignment of error, Defendant contends the evidence was insufficient to support any conviction for battery. In his second assignment of error, Defendant contends the evidence was insufficient to support a conviction for second degree battery.

Louisiana Revised Statutes 14:34.1 provides that:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

(Emphasis added).

The Louisiana Supreme Court has held that the phrase “extreme physical pain” as used in the statute is not unconstitutionally vague since it “describes a condition which most people of common intelligence can understand.” State v. Thompson, 399 So.2d 1161, 1168 (La.1981).

When considering a claim of insufficient evidence, a reviewing court must determine 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 600 So.2d 1319 (La.1992). It is not the function of an appellate court to assess credibility or re-weigh the evidence. State v. Rosiere, 488 So.2d 965 (La.1986).
| ¡¡According to Jackson v. Virginia, supra, the State has the burden of proving each element of the crime beyond a reasonable doubt. As stated above, the State must prove that: 1) the defendant committed a battery; 2) without the victim’s consent; and 3) the victim suffered serious bodily injury.

State v. Helou, 02-2302, pp. 4-5 (La.10/23/03), 857 So.2d 1024,1027-28.

Chassidy Menard, Alydia Menard’s sister, testified that she called Defendant’s phone on August 10, 2008, and he answered. Chassidy heard Alydia in the background saying, “Stop, Jacoby.” Defendant then stated that Alydia could not speak to her and that he had “just beat the fuck out of her.” Defendant then hung up.

Chassidy subsequently went looking for Alydia at the homes of Baby Menard and Defendant’s brother. After being told that Alydia was not at either place, Chassidy called the police. Chassidy later saw Aly-dia at the hospital. Photographs of Aly-dia’s injuries were introduced into evidence at trial.

Chassidy testified that she had seen Aly-dia the previous night and that Alydia was fíne at that time. She further stated that she spoke to Alydia the following morning and did not detect anything in her voice that would suggest she had trouble talking because her face was swollen or her lips were bruised. She next saw Alydia that afternoon at the hospital. Between the date of the incident and trial, Alydia told Chassidy that Defendant did not cause her injuries.

Corporal Jason Airhart testified that he was dispatched to a residence on August 10, 2008. He was brought inside the house and to the bedroom where Defendant and Alydia were supposed to be located. The man accompanying Corporal Airhart tried to open the door, but it was locked. The man eventually pulled the doorknob off and entered the room. Defendant got out of bed, and Officer Courtney |4Smith entered the room to speak to Alydia, who was in bed. When Defendant stepped out of the room, Corporal Airhart noticed what appeared to be dried blood on his shirt. Defendant had no injuries to his body. However, Alydia had fresh cuts and severe bruising to the face. Corporal Airhart further testified that he had “no idea the extent of her injuries,” but that he thought she should receive medical treatment. Corporal Airhart testified that it was difficult to understand Alydia because of her injuries and that her speech was slurred. He was worried that she might have a concussion or a brain injury.

The record reflects that Alydia gave Corporal Airhart several different stories about what happened to her including one about fighting with some girls the previous day. Corporal Airhart testified that Aly-dia never told him that Defendant hit her. Alydia’s story kept changing, and she did not identify the person with whom she claimed that she fought.

Sergeant Ricky Rees testified that he photographed Alydia at the scene and transported her to the hospital. Alydia told Sergeant Rees several different stories about what happened to her. She told him that she was asleep and woke up like that. She also told him that she had been beaten by some unknown females on the street. Alydia never implicated Defendant when speaking to Sergeant Rees. However, he overheard a conversation at the hospital wherein she implicated Defendant.

Sergeant Rees stated that he could not leave Alydia unattended because of the extent of the lumps on her head. He further testified that he was stunned by the difference in Alydia’s appearance on the date in question when compared with that on her identification card, which was issued eighteen months earlier.

| .^Officer Courtney Smith testified that when she encountered Alydia at the residence, Alydia kept her face covered with a blanket. After Officer Smith asked several times, Alydia revealed her face. Officer Smith testified that the bruises on Alydia’s face were a lot darker than what was depicted in the photographs admitted into evidence.

Alydia Menard testified that on August 10, 2008, she was dating Defendant. On that date, she and Defendant laid down to take a nap, and one of them locked the door. Police later arrived, waking her up.

Alydia indicated that she never told Sergeant Rees that she woke up with the bruises. She testified that she told him she fought with several girls the night before and did not know their names.

Alydia additionally testified that Defendant spoke to her sister but that Alydia did not know it was her sister at the time Defendant received the call. She stated that she did not say, “Stop it Paul. Don’t do that, Paul,” while Defendant was on the phone. Additionally, she said that she did not remember Defendant saying that he had beaten her.

Alydia further testified that Defendant did not cause the injuries depicted in the photographs introduced by the State. She told police the same thing. She went to the District Attorney’s Office in September of 2008, and requested that the charges against Defendant be dismissed. She further testified that she and Defendant had been together for three years, “and things he might have been guilty of in the past ... but he — this incident was not him.”

| fiUpon questioning, Alydia admitted that her mouth and eyes were swollen, that she had blue lumps on her forehead and that she needed, but did not want, to go to the hospital.

Defendant asserts that the State did not exclude all reasonable possibilities that someone other than him inflicted the injuries upon Alydia. He further asserts there was no evidence, other than photographs, regarding the extent or severity of her injuries. Defendant admits it is possible to obtain a battery conviction without the victim’s testimony. However, he argues that the only evidence that could possibly support the conviction is Chassi-dy’s testimony that she heard Alydia tell Defendant to stop and his remarks that he had beaten her. Defendant submits that this evidence is not sufficient to support his conviction because the State relied solely on photographs to prove the extent of Alydia’s injuries.

Defendant asserts that in the event this court finds the evidence was sufficient to prove he committed a battery upon Alydia, the evidence was not sufficient to prove it was a second degree battery.

The State asserts that Defendant’s statement that he beat Alydia proves he committed a battery upon her. The State contends that the trial court did not find the hypothesis that Alydia was injured in a fight with several girls to be reasonable. The State further asserts that Alydia’s statement, “Stop Jacoby,” provided proof that the battery was committed without her consent. Further, Alydia suffered serious bodily injury, which was proven by the bruising and contusions to her face and head as depicted in the photographs admitted at trial. The State contends that those injuries rendered her “despondent” to questioning, causing an inability to communicate coherently with police and hospital personnel. We note that there is no evidence in 17the record regarding Alydia’s ability to communicate with hospital personnel. The State then discusses Alydia’s injuries as follows:

The determination by the trial court that the victim suffered “serious bodily injuries” was based, in part, upon circumstantial evidence. No reasonable hypothesis is offered nor exist[s] in the record to suggest that the victim, reasonably, did not suffer “extreme physical pain”. The direct and circumstantial evidence regarding the injuries suffered by the victim at the hand of the defendant was sufficient evidence to sustain the decision of the trial court. It is respectfully submitted that the trier of fact was reasonable in concluding that the violent blows to the face, mouth, lips and eyes of the victim inflicted with such force as to cause immediate and obvious disfigurement, loss of blood, and disorientation and inability to speak clearly, was sufficient to be “extreme physical pain” within the ordinary experience and common intelligence of the trier of fact.

There is nothing in the record regarding “immediate” disfigurement or loss of blood by Alydia. Sergeant Rees testified that she did not look like she did in her identification dated eighteen months earlier, but he did not elaborate. Additionally, there was suspected blood on Defendant’s shirt, but it was not tested. Further, Alydia did not testify that there was any bleeding as a result of her injuries.

Although Alydia testified that Defendant did not inflict the injuries she suffered, Chassidy testified that Defendant said that he beat Alydia, and Sergeant Rees testified that he overheard Alydia implicate Defendant. Based on the verdict rendered, the trial court apparently chose to believe that Defendant struck Alydia. This court will not second-guess that credibility determination. Therefore, we find that the State proved Defendant committed a battery upon Alydia.

The State was further required to prove that Defendant caused serious bodily injury. Louisiana Revised Statutes 14:34.1 defines “serious bodily injury” as involving: “unconsciousness, extreme physical pain or protracted and obvious | ^disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.”

In the case at bar, there was no testimony that Alydia lost consciousness and no evidence of disfigurement or permanent disability; protracted loss or impairment of the function of a member, organ, or mental faculty; or a substantial risk of death. Therefore, the State was required to prove that Alydia suffered extreme physical pain.

Alydia was not asked about her injuries and, although she sought medical treatment, no medical evidence was submitted. Corporal Airhart testified that Alydia had fresh cuts and severe bruising to the face. He had no idea of the extent of her injuries but thought she should receive medical treatment. He also testified that it was difficult to understand her because of the injuries. Sergeant Rees would not leave Alydia unattended due to the lump on her head, and he was stunned at her appearance when compared with that from eighteen months earlier. Further, Officer Smith testified that the bruises on Alydia’s face were darker than those depicted in the photographs admitted by the State.

Accordingly, we find that the State failed to prove Alydia suffered extreme physical pain and, therefore, failed to prove that Defendant committed second degree battery.

However, while the evidence was insufficient to uphold a conviction of second degree battery, it is sufficient to support a conviction for simple battery. Under La. Code Crim.P. art. 814(A)(15), simple battery is an authorized responsive verdict to a charge of second degree battery. A battery is defined as “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. Louisiana Revised ^Statutes 14:35 defines simple battery as a “battery committed without the consent of the victim.”

As in State v. Vidaurri, 05-742 (La.App. 3 Cir. 12/30/05), 919 So.2d 803, writ denied, 06-573 (La.10/27/06), 939 So.2d 1270, no evidence even remotely suggests that Aly-dia consented to the attack. See also State v. Odom, 03-1772 (La.App. 1 Cir. 4/2/04), 878 So.2d 582, unit denied, 04-1105 (La.10/8/04), 883 So.2d 1026. Therefore, we vacate Defendant’s conviction for second degree battery, we render a conviction for simple battery, a statutory responsive verdict pursuant to La.Code Crim.P. art. 814(A)(15), and we remand the case for resentencing.

CONCLUSION

For these reasons, Defendant’s conviction for second degree battery is overturned. Judgment is rendered finding Defendant guilty of simple battery. The case is remanded to the trial court for resen-tencing.

VACATED, RENDERED, AND REMANDED.

      . LSA-R.S. 14:33 provides that a battery is the intentional use of force of violence upon the person of another.

      . Corporal Airhart did not know if the shirt had been tested and did not know how long the substance had been on the shirt.