               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44918

STATE OF IDAHO,                                 )   2017 Unpublished Opinion No. 590
                                                )
       Plaintiff-Respondent,                    )   Filed: September 22, 2017
                                                )
v.                                              )   Karel A. Lehrman, Clerk
                                                )
TIMOTHY DURETTE,                                )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Boundary County. Hon. Barbara A. Buchanan, District Judge.

       Judgment of conviction and unified sentence of five years, with a minimum
       period of confinement of two years, for unlawful possession of a
       firearm, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                     Before GRATTON, Chief Judge; GUTIERREZ, Judge;
                                  and HUSKEY, Judge
                   ________________________________________________

PER CURIAM
       Timothy Durette pled guilty to unlawful possession of a firearm. Idaho Code § 18-
3316(1). The district court sentenced Durette to a unified term of five years with two years
determinate. Durette appeals asserting that the district court abused its discretion by imposing an
excessive sentence.
       Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-

                                                1
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
       Therefore, Durette’s judgment of conviction and sentence are affirmed.

                                                   2


              Case: 15-13868    Date Filed: 10/13/2016   Page: 1 of 2

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                               _________________

                                 No. 15-13868
                             Non-Argument Calendar
                              _________________

                    D.C. Docket No. 6:14-cr-00248-JA-GJK-l

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

JEAN ROUSSEL ELOI,

                                                             Defendant-Appellant.
                               _________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                             _________________

                                (October 13, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Robert Godfrey, appointed appellate counsel for Jean Eloi, has filed a motion

to withdraw on appeal, supported by a brief prepared pursuant to Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Our
                 Case: 15-13868         Date Filed: 10/13/2016        Page: 2 of 2

independent review of the entire record reveals that counsel's assessment of the

relative merit of the appeal is correct. Because independent examination of the

entire record reveals no arguable issues of merit, counsel's motion to withdraw is

GRANTED, and Eloi's convictions and sentences are AFFIRMED. All pending

motions are DENIED as moot.1

       1
          We acknowledge that Eloi expressed dissatisfaction with trial counsel’s performance
and that he might wish to argue that his counsel was ineffective. Such claims, however,
generally “are not considered for the first time on direct appeal,” but rather are best reserved for
postconviction proceedings. United States v. Tyndale, 209 F. 3d 1292, 1294 (11th Cir. 2000);
see Massaro v. United States, 538 U.S. 500, 504-05 (2003).
                                                 2


52 F.3d 315
Betty Jean Murphyv.International Fidelity Insurance Company, Leonard Shaw Bonding Company
NO. 94-5348
United States Court of Appeals,Third Circuit.
Mar 24, 1995

Appeal From:  D.N.J., No. 94-cv-02162,
Lifland, J.

1
AFFIRMED.


709 S.W.2d 613 (1986)
Charles W. DAVIS by limited guardian, F. Robert DAVIS, Plaintiff-Appellant,
v.
CITY OF CLEVELAND d/b/a Cleveland Utilities and Bradley County, Defendants-Appellees.
Court of Appeals of Tennessee, Eastern Section, at Knoxville.
February 20, 1986.
Permission to Appeal Denied April 28, 1986.
*614 Paul H. Dietrich, Cleveland, Sidney Gilreath, Knoxville, for plaintiff-appellant.
Mike Callaway, Cleveland, for City of Cleveland.
Mayo Mashburn, Cleveland, for Bradley County.
Permission to Appeal Denied by Supreme Court April 28, 1986.

OPINION
RUSSELL, Special Judge.
In this case, the plaintiff, suing by his limited guardian, appeals the judgment of the Circuit Court of Bradley County granting summary judgment in favor of the defendants City of Cleveland d/b/a Cleveland Utilities and Bradley County.
This action arises out of the collision of a tractor-trailer and the vehicle driven by plaintiff at the intersection of State Highway 74 and Durkee Road, located about one-half mile outside the city limits of Cleveland in Bradley County. The driver and owner of the tractor-trailer were also named as defendants but were later dismissed.
In his complaint, plaintiff alleged that as the tractor-trailer was proceeding south on State Highway 74 and approaching the intersection in question, the traffic light changed such that the tractor-trailer entered the intersection on a red light and collided with plaintiff's vehicle which had entered the intersection on the green light traveling east on Durkee Road.
The plaintiff further alleged that the City of Cleveland and Bradley County owned, operated and controlled the traffic light at this intersection and that they
6... . were negligent, in that the light was set so that the yellow caution interval between green and red was too brief to give adequate warning to traffic traveling within the speed limit, and that they were negligent in failing to follow the recommendations of the State of Tennessee Department of Transportation at the time said traffic light was installed and likewise intentionally refused to follow said recommendations. This negligence was one of the contributing factors and proximate causes of this accident.
7. Plaintiffs further allege that the defendants City of Cleveland and Bradley County, Tennessee have been guilty of negligence per se in their failure to comply with the Tennessee Manual on Uniform Traffic Control Devices as prescribed by Tennessee Code Annotated.
The Complaint alleges these two governmental entities are liable for plaintiff's injuries under T.C.A. § 29-20-203, part of the Governmental Tort Liability Act.
Both the City of Cleveland and Bradley County filed motions for summary judgment on the ground that based on the undisputed facts, neither the City nor the County had actual or constructive notice of any defective or dangerous condition of the traffic light as required under T.C.A. § 29-20-203(b). There was no evidence in the record to show that either the City or the County had actual notice of the condition of the traffic light. The single issue considered by the trial court on the summary judgment motions was whether there was a genuine issue of fact as to whether the City or County had constructive notice of the allegedly dangerous condition of this particular traffic signal.
The court below, citing Mowdy v. Kelly, 667 S.W.2d 489 (Tn.App. 1983, perm.app. den. 1983) and the unreported opinion of Moore v. City of Knoxville, Eastern Section, May 20, 1983, Matherne, Sp.J., granted summary judgment in favor of both defendants on the ground that neither the installation of a negligent traffic device nor the failure to inspect when there is no duty to inspect can serve as constructive notice of a dangerous condition.
*615 This case was decided in the trial court and briefed in this court only on the issue of whether there had been constructive notice of an allegedly dangerous or defective condition. For the reasons set out below, we agree only with the result reached by the court below and therefore affirm the summary judgment in favor of both defendants.
Although all the parties have treated this action as coming under T.C.A. § 29-20-203, dealing with removal of immunity for injury from unsafe streets and highways, including traffic control devices, we do not believe that this action is properly considered under T.C.A. § 29-20-203, but rather that it must be considered under T.C.A. § 29-20-205, dealing with removal of immunity for injury caused by the negligent act or omission of governmental employees.
The substance of plaintiff's allegations is that the governmental employee who was responsible for setting the timing sequence on this traffic signal negligently set the yellow caution interval at too short an interval for traffic to clear the intersection. Plaintiff's position also seems to be that the governmental entities, through their employees, were negligent in failing to inspect and/or re-evaluate the timing sequence on this signal after its original installation in 1978. It is clear to us that the complaint is directed at negligent acts or omissions of employees of either the City of Cleveland or Bradley County, acting in the course and scope of their employment, rather than upon a defective condition of the traffic signal light. The light worked perfectly, as set. Therefore T.C.A. § 29-20-205 is the proper starting point here.
Under the Governmental Tort Liability Act, and in particular T.C.A. § 29-20-201, governmental entities are clothed in absolute immunity, except in those instances where such immunity is specifically removed.
T.C.A. § 29-20-205 provides:
Immunity from suit for all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury:
(1) Arises out of the exercise or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
... .
(4) Arises out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property;
... .
Since the record in this case clearly shows that the timing sequence for the yellow caution interval on this particular traffic light was set within the range prescribed by the state manual on traffic devices, we think that both the original setting of the yellow caution interval and any failure to reset such timing sequence in this instance represented a judgment call by the person responsible for such setting in the exercise of his professional judgment, and is thus a discretionary act within the meaning of T.C.A. § 29-20-205(1), for which immunity has not been removed by the legislature. Any claim predicated on a failure to inspect the traffic light would come under T.C.A. § 29-20-205(4) and thus be barred.
We think our interpretation of T.C.A. § 29-20-205 and § 29-20-203 is required under Mowdy v. Kelly, supra. There plaintiffs sought to recover for injuries suffered while traveling over a bridge, alleged to be in a dangerous condition, which collapsed. There plaintiffs alleged that the county road superintendent breached his duty by allowing such bridge to remain open. The Court there found T.C.A. § 29-20-205 to apply rather than the provisions of T.C.A. § 29-20-203, since it was the road superintendent's negligent act or omission in failing to inspect the bridge which was the proximate cause of plaintiff's injury. Thus the Court in Mowdy found the action to be barred since immunity under T.C.A. § 29-20-205(4) is not removed for a failure to inspect.
*616 In this case, it is the acts or omissions of the employees in setting the yellow caution interval that are really claimed to be the proximate cause of plaintiff's injuries. The traffic signal itself operates properly according to the timing sequence previously set, and is itself not defective. Thus this case must be considered under T.C.A. § 29-20-205. Since the acts or omissions for which the plaintiffs claim the City of Cleveland and Bradley County are liable are acts or omissions for which immunity has not been removed under T.C.A. § 29-20-205, this action is barred.
For the foregoing reasons, we affirm the judgment of the trial court in granting summary judgment in favor of both defendants.
Costs of this appeal are taxed to the plaintiff.
PARROT, P.J., concurs.
FRANKS, J., concurs and dissents.
FRANKS, Judge, dissenting.
The majority opinion correctly states "the complaint is directed at negligent acts or omissions of employees of either the City of Cleveland or Bradley County, acting in the course and scope of their employment", and the negligence alleged is the failure of the governmental employees to set the traffic light so as to give adequate warning to approaching drivers.
Further, the majority is correct in its assertion that disposition of the dispute is governed by the immunity provisions of T.C.A., § 29-20-205, but not correct in concluding the governmental entities retained immunity under the code section because the setting of the time interval and the alleged failure to reset the timing sequence "represented a judgment call by the person responsible for such setting in the exercise of his professional judgment, and is thus a discretionary act... ."
Apparently, no reported decisions in this jurisdiction have construed the "discretionary function" language of the statute. Numerous other jurisdictions, however, have interpreted the phrase in the context of federal and state tort claims statutes. Several courts have adopted a "planning-operational" test as the standard for applying the discretionary act exception under state tort claims statutes. This test was succinctly articulated by the Alaska Supreme Court in Carlson v. State, 598 P.2d 969 (Alas. 1979): "[D]ecisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational in nature are not considered to be discretionary acts and therefore are not immune from liability." Id., at 972. The rationale for this distinction rests upon the fact that certain acts or decisions of a "planning" nature are committed to a coordinate branch of government and should not be subject to judicial interference. Id.; State v. I'Anson, 529 P.2d 188 (Alas. 1974).
The federal courts have adopted essentially the same approach in delineating the contours of "discretionary function". As one federal court observed, "a duty ... is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if some degree of professional expert evaluation is required." Estrada v. Hills, 401 F. Supp. 429 (N.D.Ill. 1975). The Third Circuit echoed this analysis in Griffin v. United States, 500 F.2d 1059 (3rd Cir.1974):
Liability, in such cases, is predicated not on a negligent or unwise policy determination, but on the failure of Government employees to conform to and act consistently with the authority delegated. We do not hold that the Government may be liable for policy determinations made by its officials. Rather, we hold only that the Government may be liable where its employees, in carrying out their duties, fail to conform to pre-existing statutory and regulatory requirements. Id., at 1069.
A wide array of "operational" acts or decisions of public employees have been held "non-discretionary" and therefore not exempt from tort liability. See e.g., Bigelow v. Ingersoll, 618 P.2d 50 (Utah 1980); *617 Carlson, supra, at 973; Andrus v. State, 541 P.2d 1117 (Utah 1975); I'Anson, supra; State v. Abbott, 498 P.2d 712 (Alas. 1972); Mills v. American Playground Device Co., 405 N.E.2d 621 (Ind. App. 1980).
In the instant case, the government employee's setting of the traffic light interval was not a "basic policy decision" but an "operational" act, and any failure on the part of the employee to comply with regulations governing the setting of the traffic light intervals could constitute operational negligence. The mere fact that the employee might, in setting the device, make "a judgment call" is insufficient to warrant the majority's characterization of the employee's act as discretionary within the meaning of the statute.
The record reveals the caution light was set at an interval of 3.6 seconds, which was within the time frame set by the state's Manual on Uniform Traffic Control Devices; however, the manual states "[g]enerally the longer intervals are appropriate to higher approach speeds." The manual established the regulatory requirements and the factual issue is whether the employee failed to conform to these requirements in carrying out his duties. See Gorman v. Adams, 259 Iowa 75, 143 N.W.2d 648 (1966); Pritchard v. Sully-Miller Contracting Co., 178 Cal. App.2d 246, 2 Cal. Rptr. 830 (1960).
The affidavit of appellant's expert witness advances the opinion that the 3.6 second interval was deficient under current standards, particularly in light of the traffic volume and approach speed at the intersection. The witness concluded "[t]he proper yellow time ... would have allowed the Jackson truck to clear the intersection before Mr. Davis was shown a green signal." Thus, a disputed issue of material fact as to whether the city or county, through its employees, acted negligently in setting the caution light interval under these conditions was established.
I would vacate the summary judgment and remand to the trial court for further proceedings, not inconsistent with the foregoing.


J-S25013-20
J-S25014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 T.A.                                     :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 J.D., P/K/A J.G.                         :
                                          :
                     Appellant            :    No. 296 MDA 2020

             Appeal from the Order Entered January 24, 2020
   In the Court of Common Pleas of York County Civil Division at No(s):
                            2018-FC-183-03

                                     *****

 T.A.                                     :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 J.D.                                     :
                                          :
                     Appellant            :    No. 297 MDA 2020

             Appeal from the Order Entered January 24, 2020
   In the Court of Common Pleas of York County Civil Division at No(s):
                            2018-FC-183-03

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 27, 2020

        J.D., p/k/a J.G., (Mother) appeals from the order, entered in the Court

of Common Pleas of York County, denying her petition for relocation and

granting T.A. (Father) primary custody of the parties’ child, C.A. (born
J-S25013-20
J-S25014-20

3/2015). Mother also appeals from the order finding her in contempt.1 After

our review, we affirm.

        Mother and Father resided in York, Pennsylvania, when C.A. was born.

The parties ended their relationship in December 2017.           On February 26,

2018, the parties entered into a stipulated custody agreement, which provided

for shared legal and physical custody of C.A.

        In July 2018, Mother married and moved to Danville, Pennsylvania, to

reside with her new husband.             N.T. Custody, Contempt and Relocation

Hearing, 1/19/2020, at 35. In April 2019, Mother and her husband moved to

Bloomsburg, Pennsylvania.2 Id.           Mother did not provide statutory notice of

relocation to Father prior to either of these moves. Id. at 41. See 23 Pa.C.S.

§ 5337(c) (outlining notice requirements for relocation in child custody

matters).

        On September 4, 2019, Father filed a petition for special relief, raising

the issue of Mother’s relocation and seeking relief due to Mother’s violation of

the parties’ custody agreement. The court held a hearing on this petition on

October 18, 2019, after which the court entered an order continuing the
____________________________________________

1 Mother filed two notices of appeal from the same order and same family
court docket number, one from the custody determination and one from the
contempt determination. These consecutively listed appeals involve identical
parties and they emerged from the same hearing. Thus, we have consolidated
the cases sua sponte for ease of disposition. See Pa.R.A.P. 513.

2   Both Bloomsburg and Danville are approximately a two-hour drive from York.

                                           -2-
J-S25013-20
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matter, setting a new custody schedule, and requiring Father’s custody be

supervised.3

       On December 5, 2019 and January 22, 2020, the court held hearings on

Father’s petition for contempt and Mother’s petition for relocation. Mother and

Father both testified, as did Mother’s husband, Mother’s mother-in-law,

Father’s mother, CYF caseworker Kala Ciletti, and Detective John Bumsted,

who investigated the abuse report with respect to C.A.’s broken collarbone.

See n.3, supra.

       On January 24, 2020, after considering the testimony and statutory

custody and relocation factors, see 23 Pa.C.S.A. §§ 5238, 5337, the court

entered an order awarding Mother and Father shared legal custody, awarding

Father primary physical custody and Mother partial physical custody during

the school year, and awarding the parties shared physical custody during the

____________________________________________

3 C.A. suffered a broken collarbone while in Father’s custody, apparently from
falling out of bed. Additionally, York County Children, Youth and Families
(CYF) received a referral regarding “pornographic pictures that supposedly
may have been taken by an eight-year-old half[-]sibling and that the
caseworker talked to [F]ather about the photos and appropriate supervision
for C.A. and her being able to access an iPad that had those on [it].” N.T.
Custody, Contempt and Relocation Hearing, 1/22/20, at 9-17. A Childline
report of abuse was determined to be unfounded. Id. at 17. See also N.T.
Contempt and Relocation Hearing, 12/5/19, at 17. In fact, Mother testified
Father had told her about the pictures he had found. N.T. Custody, Contempt
and Relocation Hearing, 1/22/20, supra at 44. The trial court, noting on the
record that there was no medical evidence suggesting abuse, id. at 9, stated:
“I am finding as a matter of fact that there was no harm by [F]ather
whatsoever relative to the collarbone or to any pictures that may have been
taken by the eight-year-old[,] so those simply are not issues anymore.” Id.
at 53.

                                           -3-
J-S25013-20
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summer (two weeks with Mother and one week with Father, throughout the

summer). The court denied Mother’s petition for relocation and required the

parties to engage in co-parenting counseling. The court also found Mother in

contempt and ordered her to pay $500 toward Father’s attorneys’ fees and

the first $1,000 toward the cost of co-parenting counseling.

      On February 13, 2020, Mother filed two notices of appeal, one from the

contempt order and one from the custody order. Both Mother and the trial

court have complied with Pa.R.A.P. 1925. Mother raises the following issues

for our review:

         1. Did the trial court err by considering relocation despite the
            fact that it was undisputed that Mother moved in July 2018,
            and the parties had discussed the move and modified the
            custody schedule at that time due to the move?

         2. Did the trial court abuse its discretion in determining a
            drastic change in custody following the court’s own position
            and order after the first half-day of trial?

         3. Did the trial court err by considering various facts that were
            either inaccurate or not supported by the testimony?

Appellant’s Brief, at 4.

      In her first issue, Mother claims the court erred in considering the

relocation issue because Father was aware of Mother’s move and she believed

they “had reached an agreement.” Appellant’s Brief, at 20.     She argues that

Father’s failure to object rendered the relocation issue moot. Mother refers to

the trial court’s statement in its order, which reads:

      The [c]ourt was very candid in saying at first [it] was inclined to
      perhaps approve [M]other’s relocation because a year and two

                                      -4-
J-S25013-20
J-S25014-20

      months went by that [F]ather did not protest the relocation, and,
      therefore, the [c]ourt at the beginning of this case surmised that
      [F]ather had slept on his rights to do so. However, the [c]ourt
      heard credible testimony from [F]ather that [M]other did not
      always keep him apprised of where she resided until sometime in
      2019. I don’t recall the exact month, but sometime in the year
      2019 [F]ather still assumed [M]other lived in Lancaster. Father’s
      reasons and motivations for opposing a relocation we find to be
      good. Mother’s reasons and motivations for seeking the relocation
      benefits her, but not [C.A.]. And, also, she moved without getting
      permission. All of that weighs against the relocation.

Order, 1/14/2020, at 10.

      Section 5337(c) of the Custody Act, which addresses the notice the

party proposing relocation must provide to the non-relocating party, states,

in pertinent part, as follows:

      (1) The party proposing the relocation shall notify every other
      individual who has custody rights to the child.

      (2) Notice, sent by certified mail, return receipt requested, shall
      be given no later than:

         (i) the 60th day before the date of the proposed relocation;
         or

         (ii) the tenth day after the date that the individual knows of
         the relocation, if:

            (A) the individual did not know and could not reasonably
            have known of the relocation in sufficient time to comply
            with the 60–day notice; and

            (B) it is not reasonably possible to delay the date of
            relocation so as to comply with the 60–day notice.

23 Pa.C.S.A. § 5337(c) (emphasis added). Here, Mother did not file a notice

of relocation before she moved to Danville or before she moved to

Bloomsburg. Mother testified that she moved to Danville on July 19, 2018,

                                     -5-
J-S25013-20
J-S25014-20

and “mentioned” her move to Father at “the beginning of July 2018.”         N.T.

Contempt and Relocation Hearing, 12/5/19, at 59. Thus, Mother complied

with neither the form nor the time requirement for notice of relocation as set

forth in section 5337(c).         Mother acknowledged that the custody order

contained two pages of provisions with respect to relocation requirements,

and she realized that she had misinterpreted the provisions, stating, “I realize

that, now, looking back on it, I had to [provide notice] either way.” Id.

       The language in section 5337 is mandatory; it provides no exception for

a claim that the party entitled to notice was “aware of” or had “agreed to” the

move. Further, since Mother did not provide notice, Father was not provided

with a counter-affidavit for objection to the proposed relocation.4     Mother

acknowledged that Father was unaware of her second move, from Danville to

Bloomsburg, until “after the fact.” N.T. Contempt and Relocation Hearing,

12/5/19, at 111. Finally, Mother has acknowledged the mandatory statutory

notice requirement, but in arguing that the trial court erred in considering

relocation, she continues to press this issue on appeal. We find no error. The

trial court properly considered the statutory relocation factors, as well as the
____________________________________________

4 Section 5337(c)(3)(x) provides: “Except as provided by section 5336
(relating to access to records and information), the following information, if
available, must be included with the notice of the proposed relocation: [] A
counter-affidavit as provided under subsection (d)(1) which can be used to
object to the proposed relocation and the modification of a custody order.” 23
Pa.C.S.A. § 5337(c)(3)(x). If the non-relocating party does not file a counter-
affidavit to object to the proposed relocation within thirty (30) days after
receipt of notice, the non-relocating party will be foreclosed from objecting
the relocation. 23 Pa.C.S.A. § 5337(c)(3)(xi). Here, the court noted Father
had not “slept on his rights” since he was never given the proper notice.

                                           -6-
J-S25013-20
J-S25014-20

statutory custody factors, in reaching its custody decision. See S.S. v. K.F.,

189 A.3d 1093 (Pa. Super. 2018); A.M.S. v. M.R.C., 70 A.3d 830 (Pa. Super.

2013).

      Next, Mother argues the custody order was an abuse of discretion.

Specifically, Mother contends that the order was a “drastic change in custody

following the court’s own position and order after the first half-day of trial.”

Appellant’s Brief, at 23. This claim is meritless.

      Our standard of review in child custody cases is as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is whether
      the trial court’s conclusions are unreasonable as shown by the
      evidence of record. We may reject the conclusions of the trial
      court only if they involve an error of law, or are unreasonable in
      light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

Furthermore, we are guided by the following principles:

      We have stated that the discretion that a trial court employs in
      custody matters should be accorded the utmost respect, given the
      special nature of the proceeding and the lasting impact the result
      will have on the lives of the parties concerned. Indeed, the
      knowledge gained by a trial court in observing witnesses in a
      custody proceeding cannot adequately be imparted to an appellate
      court by a printed record.

      The primary concern in any custody case is the best interests of
      the child. The best-interests standard, decided on a case-by-case

                                      -7-
J-S25013-20
J-S25014-20

       basis, considers all factors that legitimately have an effect upon
       the child’s physical, intellectual, moral, and spiritual wellbeing.

       We must accept the trial court’s findings that are supported by
       competent evidence of record, and we defer to the trial court on
       issues of credibility and weight of the evidence.

R.L.P. v. R.F.M., 110 A.3d 201, 207-208 (Pa. Super. 2015) (quotations and

citations omitted).

       After the first day of trial, the court entered an order maintaining the

status quo pending the completion of trial. At that point, the court had

not heard all the witnesses; in particular, the court had not heard the

testimony of Detective John Bumsted, who investigated the abuse report, and

who had been contacted by Mother’s new husband’s mother.5

       Detective Bumsted testified as follows:

       I was informed that Children, Youth & Families was involved. . . .
       The allegation was that the victim child had a broken collarbone,
       or there was an injury to the collarbone. There was also an
       allegation that there were some type of photos on an iPad or
       something of some sort. . . . Regarding the broken collarbone I
       reached out to – at that time the child was living with [M]other in
       the Bloomsburg area, so I contacted the children’s advocacy
       center [CAC] in that region. I scheduled an interview through the
       Bloomsburg Police Department. The child was interviewed up
       there. Then I received a recorded interview of that. . . . [T]he
       written report that I received from the CAC, was that there was
       no disclosure of abuse. . . . [I] followed up, I requested the
       medical records from the child’s visit to OSS, I believe. Doctor
____________________________________________

5 Detective Bumsted did not know at the time of the investigation that this
concern about the unfounded determination was from Mother’s new husband’s
mother. See N.T. Custody, Contempt and Relocation Hearing, 1/22/20, at 9
(“Q: And did you know that was the new mother-in-law? A: At that time,
no.”). Notably, the new mother-in-law’s report to Detective Bumsted stated,
in an email: “I am writing this email to make you aware I am very concerned
regarding the unfounded result of your investigation of [Father].” Id. at 11.

                                           -8-
J-S25013-20
J-S25014-20

      Bixler was the physician. I then placed a phone call to him. . . .
      I had a brief conversation with Doctor Bixler regarding the injuries.
      I asked him if he suspected any abuse. He stated no. . . . After
      discussing this case and this matter with the district attorney’s
      office in York County the decision was made to make the case
      unfounded and inactive. I explained [this] to [M]other. I
      explained to [the mother-in-law] that the case is inactive at this
      time[.] It lacked sufficient evidence to proceed criminally.

N.T. Custody, Contempt and Relocation Hearing, 1/22/20, at 4-8, 15. The

court also confirmed that Dr. Bixler’s medical records had been submitted at

the prior hearing. Id. at 8.

      Here, following the two-day hearing, the trial court set forth a full and

contemporaneous analysis of each of the section 5337 relocation factors and

each of the section 5328 custody factors, including discussion of the credible

evidence introduced by the parties and articulation of its reasons for deciding

if a factor favored Mother or Father, or if it was neutral and favored neither

party. See Trial Court Opinion, 3/13/20, at 3-11. See also 23 Pa.C.S.A. §

5323(d) (court shall delineate reasons for decision on record in open court or

in written opinion or order). Mother’s argument, that the court’s order is an

abuse of discretion because it varied considerably from the order maintaining

the status quo pending the second day of trial, suggests that the court should

have ignored the full record. This claim is baseless. The court found Father’s

testimony credible, and after weighing the various factors, the court entered

an order it believed was in C.A.’s best interests. The court’s determination is

supported by competent evidence of record. R.L.P., supra. We find no error

or abuse of discretion. V.B., supra.

                                      -9-
J-S25013-20
J-S25014-20

        In her appeal from the contempt order, Mother raises one issue:

“Whether the trial court erred and/or abused its discretion by finding Mother

in contempt despite the fact that no evidence of intent to violate the order

was presented.” Appellant’s Brief, at 4.

        As with child custody orders in general, we review a custody contempt

order pursuant to an abuse of discretion standard of review. Garr v. Peters,

773 A.2d 183, 189 (Pa. Super. 2001). To support a finding of civil contempt,

the trial court must determine “(1) that the contemnor had notice of the

specific order or decree which she is alleged to have disobeyed; (2) that the

act constituting the contemnor’s violation was volitional; and (3) that the

contemnor acted with wrongful intent.” Harcar v. Harcar, 982 A.2d 1230,

1235 (Pa. Super. 2009). See 23 Pa.C.S.A. § 5323(g).6

        Mother argues there was no evidence of intent to support the court’s

finding of contempt.         In her testimony, Mother acknowledged that she

____________________________________________

6   Section 5323(g) provides:

    (g) Contempt for noncompliance with any custody order.—

        (1)   A party who willfully fails to comply with any custody order
              may, as prescribed by general rule, be adjudged in
              contempt. Contempt shall be punishable by any one or more
              of the following:

                                         ****

              (v) Counsel fees and costs.

23 Pa.C.S.A. § 5323(g)(1)(v).

                                          - 10 -
J-S25013-20
J-S25014-20

neglected to inform Father that C.A. was attending counseling, that she had

enrolled C.A. in a Head Start program in the Bloomsburg area, and that she

had enrolled C.A. in speech therapy. N.T. Custody, Contempt and Relocation

Hearing, 1/22/20, at 41-42; N.T. Contempt and Relocation Hearing, 12/5/19,

at 78. The court found Mother in contempt of the parties’ February 26, 2018

stipulated custody agreement to share legal custody of C.A., and stated the

following on the record:

       [W]e find [M]other in contempt on three counts. The first count
       of [M]other’s contempt is her entering [C.A.] into counseling
       without notifying [F]ather. The second count is [M]other enrolling
       [C.A.] in [H]ead [S]tart without notifying [F]ather. The third
       count is [M]other entering the [C.A.] into speech therapy without
       notifying [F]ather.

N.T. Custody, Contempt and Relocation Hearing, 1/22/20, at 107.7

       As detailed above, the record supports the trial court’s findings of

contempt. It is undisputed that Mother was subject to the stipulated custody

order and was aware that it specified that she and Father shared legal custody.

See 23 Pa.C.S.A. § 5322(a) (defining “Legal custody” as “the right to make

major decisions on behalf of the child, including, but not limited to, medical,

religious and educational decisions.”). As such, Mother was required to inform

____________________________________________

7 In its Rule 1925(a) opinion, the trial court misunderstood Mother’s claim in
her Rule 1925(b) statement of errors complained of on appeal, and responded
to this claim in terms of Mother’s failure to comply with relocation notice
requirements. Mother’s Rule 1925(b) did not specify whether her claim
referred to custody or relocation. Nonetheless, and as noted above, the court
specifically determined on the record that Mother was in contempt of the
custody order.

                                          - 11 -
J-S25013-20
J-S25014-20

Father about enrolling C.A. in counseling, speech therapy, and the Head Start

program, and yet she proceeded to make unilateral decisions affecting C.A.’s

education and welfare. Mother’s intent can be inferred from her actions. The

record supports the court’s finding of contempt.        We find no abuse of

discretion. Garr, supra.

      Based on the foregoing, we conclude the trial court did not commit an

error of law or an abuse of discretion. Therefore, we affirm the court’s January

24, 2020 order.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/27/2020

                                     - 12 -


                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1625
                             Filed August 17, 2016

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TODD ALAN WOODWORTH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Floyd County, Christopher C. Foy,

Judge.

      Todd Woodworth appeals the sentence imposed following a stipulated

agreement entered into between the State and Woodworth at postconviction

relief proceedings. AFFIRMED.

      Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.

      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                       2

DANILSON, Chief Judge.

         Todd Woodworth appeals the sentence imposed following a stipulated

agreement entered into between the State and Woodworth at postconviction

relief (PCR) proceedings. We affirm.

         On September 21, 2015, a hearing was held for purposes of sentencing

Woodworth for his 2004 convictions for first-degree arson and second-degree

arson.

         The offenses occurred more than a decade ago.        On two separate

occasions, Woodworth was involved in setting fire to homes. On December 16,

2002, the State charged Woodworth, as a principal or aider/abetter, with first-

degree arson, second-degree arson, five counts of attempted murder, and two

counts of conspiracy involving the fires set on two of his neighbors’ properties.

The date of offense for the first-degree arson charge (count 1) was October 11,

2001, and the date of offense for the second-degree arson offense (count 5) was

October 13, 2001. Woodworth rejected a plea offer. A jury trial was held, and

Woodworth was found guilty of all charges. The conspiracy counts merged with

the arson convictions, and on January 20, 2004, the district court sentenced

Woodworth to serve the sentences on counts 1 through 3 concurrently to each

other but consecutively to the concurrent sentences imposed on counts 5

through 8.

         On direct appeal, among other things, Woodworth challenged the

sufficiency of the evidence of four of the five convictions for attempted murder.

State v. Woodworth, No. 04-0096, 2006 WL 228769, at *3 (Iowa Ct. App. Feb. 1,
                                          3

2006). We concluded there was substantial evidence to support the attempted-

murder convictions. Id. at *3-6.

       In a PCR action, Woodworth asserted he would have taken the State’s

plea offer had he been properly informed as to the sentences involved in the plea

agreement. On February 2, 2015, an order was filed in the PCR action, which

provided in part:

       The parties reached an agreement whereby the application for
       postconviction relief will be dismissed and the defendant will be
       resentenced to count I, first degree arson, a class “B” felony, and
       count V, second degree arson, a class “C” felony, following the
       completion of the presentence investigation report [PSI]. At the
       time of sentencing, the State will recommend that these sentences
       run concurrently inasmuch as that offer was made to the defendant
       prior to the original trial commencing in this matter. The court
       advised the defendant on the record that any recommendation by
       the State was not binding upon this court. The parties have
       previously stipulated that the assistance of trial counsel was
       ineffective and the defendant had been incorrectly advised
       regarding the potential consequences of the offer.

Pursuant to the parties’ stipulation, the district court entered an order granting the

PCR application and a sentencing hearing was scheduled.1

       At the time of sentencing on January 12, 2016, Woodworth had served

twelve years in prison. The PSI recommended consecutive sentences on the

two arson convictions.       Per the stipulation, the State recommended the

sentences be run concurrently. Woodworth argued for concurrent sentences.

The sentencing court observed,

1
 We do not have access to the record of the PCR action or any record for that matter to
explain the unusual resolution of the PCR action, that is, the parties stipulated to a
dismissal but the court granted the PCR. But clearly, a dismissal would not have
afforded the ability to resentence the defendant, which was the essence of their
agreement due to prior ineffective assistance of counsel.
                                         4

              And it’s the court’s opinion that even though the other crimes
       that the jury found Mr. Woodworth guilty of have since been, um,
       dropped, withdrawn, basically addressed in the agreement that was
       reached as part of the disposition in the postconviction relief action
       brought by Mr. Woodworth, I don’t think as a judge that I can ignore
       the fact that the State presented evidence that a jury found
       established beyond a reasonable doubt that Mr. Woodworth had,
       um, attempted to murder [named people].”
              ....
              And while it appears to the Court you have made significant
       strides towards rehabilitation during your incarceration, um, given,
       um, the conduct that you engaged in, even if I focus only on the
       arson offenses for which I’m sentencing you, these were two
       separate offenses, happened on two separate days and showed a
       disregard on your part for, um, certainly others’ property.

       The court imposed a twenty-five year term on count 1 and a ten-year term

on count 5, which were to be served consecutively to each other. The court

emphasized:

              It’s clear from the—the PSI that you are attempting to make
       constructive positive use of your time. That you’re trying to find
       help and assistance that will allow you to stay on the right track
       once you are released. . . .
              For the reasons I’ve stated earlier though, I do believe that
       consecutive sentences are most appropriate in this case, primarily
       due to the seriousness of the crimes themselves and the fact that
       they were committed on separate dates. It wasn’t part of a single
       course of conduct. And I think to . . . to send the appropriate
       message to others that . . . the court will treat these offenses
       seriously. It’s—It’s necessary to run the sentences consecutive.

       Woodworth appeals, claiming the court improperly considered the

attempted-murder convictions because they “were dropped as part of successful

postconviction relief.”

       A sentencing court may not consider an unproven or unprosecuted

offense in sentencing a defendant unless there are facts presented to show the

defendant committed the offenses or the defendant admits to the charges. State

v. Washington, 832 N.W.2d 650, 659 (Iowa 2013). This case, however, comes to
                                         5

us in a unique procedural posture. We agree with the sentencing court that it

was not required to ignore charges that had been proved beyond a reasonable

doubt to a jury and affirmed on appeal. State v. Grandberry, 619 N.W.2d 399,

401 (Iowa 2000) (“We have recognized that, ‘when a challenge is made to a

criminal sentence on the basis that the court improperly considered unproven

criminal activity, the issue presented is simply one of the sufficiency of the record

to establish the matters relied on.’ The standard of proof during the sentencing

stage is lower than the standard used during trial.” (citations omitted)). We

affirm.

          AFFIRMED.


                             2018 IL App (2d) 160919

                                   No. 2-16-0919

                          Opinion filed December 20, 2018

______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kendall County.
                                       )
      Plaintiff-Appellee,              )
                                       ) No. 14-CF-289
v.                                     )
                                       )
MICHAEL A. NAJAR,                      ) Honorable
                                       ) Timothy J. McCann,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Justices McLaren and Spence concurred in the judgment and opinion.

                                            OPINION

¶1     Defendant, Michael A. Najar, appeals his conviction of unlawful failure to report as a sex

offender under section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West

2014)). Defendant contends that the trial court committed reversible error in denying his request

for two Illinois Pattern Jury Instructions where defendant asserted the affirmative defense of

mistake of fact and testified that he mistakenly believed that the required reporting date was after

the actual 90-day deadline. For the reasons that follow, we affirm.

¶2                                     I. BACKGROUND

¶3     Defendant was charged on September 22, 2014, with unlawful failure to register as a sex

offender under section 3(a) of the Act (730 ILCS 150/3(a) (West 2014)).             Defendant had
2018 IL App (2d) 160919

previously been convicted of aggravated criminal sexual abuse and was required to register every

90 days.

¶4     Defendant filed a discovery answer prior to trial in which he asserted the affirmative

defense of mistake of fact.     On August 19, 2016, the State added a second count against

defendant, alleging his violation of section 6 for knowingly failing to report as a sex offender on

August 16, 2014.

¶5     On August 22, 2016, defendant’s jury trial began. The State dismissed the count alleging

a violation of section 3(a) and proceeded on the count alleging a violation of section 6. The State

called Detective Caleb Waltmire to testify.

¶6     Waltimire’s duties with the Kendall County Sheriff’s Office included completing sex-

offender registration forms with registrants and investigating those in violation of the Act. On

May 16, 2014, defendant reported to the sheriff’s office as required under the Act. Waltmire

filled out a sex-offender registration form with defendant. Defendant was given a copy of the

registration form upon its completion.

¶7     The State then introduced People’s Exhibit No. 1, defendant’s registration form

completed on May 16, 2014. The second page of the two-page form has a space for defendant’s

signature. Above the signature space, the form reads as follows:

       “I HAVE READ AND/OR HAD READ TO ME, THE ABOVE REQUIREMENTS. IT

       HAS BEEN EXPLAINED TO ME AND I UNDERSTAND MY DUTY TO REGISTER

       ON OR BEFORE 8/16/2014.”

Waltmire testified that defendant signed the form in his presence and then left the sheriff’s office

with a copy of the form while Waltmire kept the original.

                                               -2
2018 IL App (2d) 160919

¶8     On September 2, 2014, Waltmire began an investigation of defendant for his failure to

report. Defendant had failed to report to the sheriff’s office or any other law enforcement agency

by August 16, 2014. Defendant was not at his home address when Waltmire attempted to

contact him on September 2.        Waltmire left a card at the residence with instructions for

defendant to contact him. On September 3, 2014, defendant went to the sheriff’s office and

completed a registration form with Waltmire.

¶9     Following Waltmire’s testimony, outside the presence of the jury, the trial court admitted

People’s Exhibit Nos. 3, 4, and 5. People’s Exhibit No. 3 is a certified copy of defendant’s July

19, 2000, conviction of aggravated criminal sexual abuse. People’s Exhibit No. 4 is a certified

copy of defendant’s August 24, 2009, conviction of failure to notify of a change of address in

accordance with section 6 of the Act. People’s Exhibit No. 5 is a certified copy of defendant’s

March 30, 2006, conviction, also of failure to notify of a change of address in accordance with

section 6. The State then rested its case.

¶ 10   Following the trial court’s denial of defendant’s motion for a directed verdict, defendant

testified in his own defense. On direct examination, defendant acknowledged meeting with

Waltmire and completing a registration form on May 16, 2014. He received a copy of the form

and, because he had recently moved and had not fully unpacked, placed it in a filing cabinet. On

September 3, 2014, he contacted Waltmire, who told him to come to the sheriff’s office, as he

was in violation of his duty to report as a sex offender. Defendant told Waltmire that he forgot to

report, as he “got the days confused.” Defendant testified that he thought the reporting date was

not until later in September.

¶ 11   On cross-examination, defendant acknowledged his signature on the May 16, 2014,

registration form, which indicated August 16, 2014, as his next required reporting date. He said

                                               -3
2018 IL App (2d) 160919

he “probably wasn’t” mistaken about the reporting date when he left the sheriff’s office but “just

didn’t look at it.” Defendant did not write down or otherwise memorialize the reporting date,

although he admitted that nothing prevented him from doing so. The State then asked defendant

whether he “knew August 16th was the next date?” Defendant answered that he did. He also

acknowledged that he knew the consequences of failing to report by the deadline.

¶ 12   On redirect examination, defendant said that he failed to report because he thought his

move had occurred in June, not May. He calculated 90 days from June and thought that he had

until sometime in September. On recross-examination, defendant admitted that he did not move

in June.

¶ 13   Following defendant’s testimony and the trial court’s denial of another motion for a

directed verdict, the trial court held a jury-instruction conference with the parties. Defendant

tendered defendant’s instruction Nos. 2 and 3. Defendant’s instruction No. 2, based on Illinois

Pattern Jury Instructions, Criminal, No. 24-25.24 (4th ed. 2000) (hereinafter IPI Criminal 4th),

provided: “A defendant’s mistake as to a matter of fact is a defense if the mistake shows that the

defendant did not have the knowledge necessary for the offense charged.”             Defendant’s

instruction No. 3, based on IPI Criminal 4th No. 9.43H, provided:

               “To sustain the charge of Failure to Report pursuant to the Sex Offender

       Registration Act, the State must prove the following propositions:

               First Proposition: That the defendant is a sex offender; and

               Second Proposition: That the defendant knowingly failed to report in person to the

       law enforcement agency with whom he last registered no later than 90 days after the date

       of his last registration; and

                                               -4
2018 IL App (2d) 160919

                Third Proposition: That the defendant was not mistaken as to a matter of fact that

        would show he did not have the knowledge necessary for the offense charged.

                If you find from your consideration of all of the evidence that each of these

        propositions has been proven beyond a reasonable doubt, you should find the defendant

        guilty[.]

                If you find from your consideration of all the evidence that any of these

        propositions has not been proven beyond a reasonable doubt, you should find the

        defendant not guilty.” (Emphasis added.)

¶ 14	   The trial court denied defendant’s instruction Nos. 2 and 3 by stating:

        “I don’t see [defendant’s memory lapse] as a mistake of fact. I see it as a knowledge

        issue. So I’m inclined to *** deny Defendant’s [instruction Nos.] 3 and 2 because I don’t

        think that the fact that he was given the proper information but forgot it makes it a

        mistake of fact. *** I think it goes to his issue of whether he knowingly failed to

        register. That’s subject to a different instruction.”

¶ 15    Following closing arguments, the jury returned a guilty verdict. On September 6, 2016,

defendant filed a posttrial motion claiming, in part, that the trial court erred in denying

defendant’s instruction Nos. 2 and 3. On October 27, 2016, defendant’s posttrial motion was

heard and denied. Defendant was sentenced to 42 months in prison. This appeal followed.

¶ 16                                       II. ANALYSIS

¶ 17    Defendant’s sole contention in this appeal is that the trial court abused its discretion in

denying defendant’s instruction Nos. 2 and 3. Defendant argues that he presented some evidence

to support the mistake-of-fact defense and thus was entitled to mistake-of-fact jury instructions.

                                                 -5
2018 IL App (2d) 160919

¶ 18   “The purpose of jury instructions is to provide jurors with correct principles of law that

apply to the evidence that has been submitted to them.” People v. Bauer, 393 Ill. App. 3d 414,

423 (2009). “A defendant is entitled to an instruction on his theory of the case if there is some

foundation for the instruction in the evidence, and if there is such evidence, it is an abuse of

discretion for the trial court to refuse to so instruct the jury.” Id. Where the instructions are not

supported by the evidence or the law, the instructions should not be given to the jury. Id. In

determining whether the trial court abused its discretion, a reviewing court must review the

relevant evidence. People v. McDonald, 2016 IL 118882, ¶ 32. An abuse of discretion occurs

where the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no

reasonable person would agree with it. Id.

¶ 19   Defendant argues that this court’s holding in People v. Atherton, 261 Ill. App. 3d 1012,

1016 (1994), necessitates reversing defendant’s conviction. In Atherton, the defendant was

charged with burglary and his theory of the case was mistake of fact where he testified that he

mistakenly thought he was helping another person move. The defendant’s landlord also testified

that the defendant was asked to help the person move. The defendant asked for a jury instruction

on mistake of fact, and the trial court denied his request. Id. at 1015-16. On appeal, this court

held that the trial court abused its discretion in denying the instruction, because there was some

foundation in the evidence to support his theory. Id. at 1016. We noted that there was nothing

inherently unbelievable about the defendant’s testimony that he thought he was helping another

person move, which the defendant’s landlord’s testimony bolstered. Id. at 1018.

¶ 20   The present case is distinguishable from Atherton. Here, defendant’s testimony that he

was mistaken about the August 16, 2014, reporting date was not legally tenable. Defendant

acknowledged his signature on the May 16, 2014, registration form, which indicated August 16

                                                -6
2018 IL App (2d) 160919

as his next required reporting date. He said he “probably wasn’t” mistaken about the reporting

date when he left the sheriff’s office on May 16 but “just didn’t look at it.” He admitted that he

filed the form away, as he was still unpacking from his move. When the State then asked

defendant whether he knew that August 16 was the next reporting date, he said that he did.

Further, unlike in Atherton, defendant presented no evidence to corroborate any belief that the

reporting date was sometime later than August 16. If anything, defendant’s testimony amounts

to a long-winded explanation of how he forgot to report. The trial court correctly determined

that what allegedly occurred was a lapse of memory and not a mistake of fact.

¶ 21   Additionally, defendant argues that People v. Nash, 282 Ill. App. 3d 982 (1996), confirms

his position that the trial court erred in denying defendant’s instruction Nos. 2 and 3. In Nash,

the defendants were charged with violating the Timber Buyers Licensing Act (225 ILCS

735/5(b) (West 1992)) by knowingly taking another person’s timber without consent. Nash, 282

Ill. App. 3d at 983. The defendants said that they were attempting to cut down trees belonging to

a neighboring property and claimed a mistake of fact. Id. at 983-84. Their belief that the trees

belonged to the neighboring property was based on information received from the neighboring

property’s owner. Id. Although there was a litany of available information delineating the two

properties’ boundary lines, the defendants were not aware that they were cutting down trees on

the wrong property. Id. The defendants were ultimately convicted of violating the Timber

Buyers Licensing Act. Id. at 985.

¶ 22   On appeal, the court overturned the defendants’ convictions. The court held that, where a

statute requires the accused to have acted knowingly, “a mistake of fact constitutes a valid

defense if that mistake negates the requisite knowledge.” Id. The court went on to say that

“[t]he term ‘knew or should have known’ is commonly used in civil cases; however, it should

                                              -7
2018 IL App (2d) 160919

not be equated with the requisite mental state of ‘knowledge’ in criminal prosecutions.” Id. at

986. The court held that, although the defendants perhaps should have further investigated the

boundaries of the two properties, their failure to do so would amount to an issue of civil liability

rather than criminal culpability based on knowledge. Id. at 987.

¶ 23   Nash is inapposite to the present case.               Here, defendant’s testimony and

acknowledgement memorialized on the May 16, 2014, registration form illustrate his actual

knowledge of the next reporting date. In other words, the question is not whether defendant

should have known that he was required to report by August 16, 2014, but, rather, whether

forgetting his actual knowledge amounts to a mistake of fact. We hold that it does not.

¶ 24   “A person’s ignorance or mistake as to a matter of either fact or law *** is a defense if it

negatives the existence of the mental state which the statute prescribes with respect to an element

of the offense.” 720 ILCS 5/4-8(a) (West 2014). As described above, defendant was not

ignorant or mistaken as to the fact that he needed to report by August 16, 2014. Defendant

signed the registration form acknowledging his duty to report by that date, and he admitted in his

testimony that he was aware of the consequences of failing to do so. His forgetfulness did not

negative the existence of his admitted knowledge of that date when he left the sheriff’s office on

May 16, 2014. Therefore, the trial court’s denial of defendant’s instruction Nos. 2 and 3 was not

an abuse of discretion, as the evidence was insufficient to support a mistake-of-fact defense.

¶ 25                                     CONCLUSION

¶ 26   The judgment of the circuit court of Kendall County is affirmed.

¶ 27   Affirmed.

                                               -8
2018 IL App (2d) 160919

                            -9


879 So.2d 390 (2004)
Cathy DARDEN
v.
R. Craig SMITH and The Ferriday Villa Partnership.
No. 2003-1144.
Court of Appeal of Louisiana, Third Circuit.
June 30, 2004.
*392 Daniel G. Brenner, Bolen, Parker & Brenner, Ltd., Alexandria, LA, for Plaintiff/Respondent, Cathy Darden.
Thomas M. Hayes, III, Hayes, Harkey, Smith & Cascio, Monroe, LA, for Defendant/Applicant, R. Craig Smith.
David L. Guerry, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendant/Applicant, The Ferriday Villa Partnership.
Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, MARC T. AMY, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
AMY, Judge.
The plaintiff, a member of the Concordia Parish Police Jury, filed a suit for defamation, intentional infliction of severe emotional distress, malicious prosecution, and abuse of process. The defendants filed a motion to strike under La.Code Civ.P. art. 971 and a motion for summary judgment, alleging that the statements at issue were matters of public concern as they related to matters before the Police Jury. The trial court denied the motions. For the following reasons, we grant the motion to strike pursuant to the dictates of La.Code Civ.P. art. 971 and award attorney's fees as is required by the article.

Factual and Procedural Background
The instant matter relates to the proposed construction of a low-income housing development in Ferriday, Louisiana. After approval of the project was rejected by the Concordia Parish Police Jury, the project proponent, Ferriday Villa Partnership, and its general partner, R. Craig Smith, filed suit in federal court alleging that the denial of the permit was [B]ased solely on discriminatory policies toward entities that provide federally-assisted-low-income housing. The Police Jury and its individual Police Jurors' actions in denying Ferriday Villa the opportunity to provide low-income housing in Concordia Parish is part of a policy and custom by them to prevent federally-assisted-low-income persons from finding housing within Concordia Parish. This policy and custom has no articulable or protected basis or foundation.
The complaint pointed out that the Police Jury did not require an allegedly "similarly *393 situated" developer, Macon Ridge Community Development Corporation, to deposit monies into an escrow account prior to approval of a permit as it did Ferriday Villa. This allegation was the basis for the equal protection claims brought in the suit. Furthermore, the federal complaint alleged that "[t]he action of the Police Jury and its individual Police Jurors, in denying the building permit for Ferriday Villa, was racially motivated and has a racially discriminatory impact upon Concordia Parish and its citizens." The Police Jury and its members were named as defendants. The federal lawsuit was ultimately dismissed through summary judgment in favor of the Police Jury and its members. The federal trial court's memorandum ruling reveals a finding that the Police Jury's actions were not "arbitrary, capricious, or motivated by ill will." Furthermore, the ruling indicates that "the Police Jury's actions related to the legitimate purpose of ensuring that funds would be available for improving and maintaining the physical and fiscal integrity of the water and sewer system of the Town of Ferriday."
Also, in March 2001, R. Craig Smith filed a complaint with the Louisiana Board of Ethics, alleging that Police Juror Cathy Darden considered the building project while employed by Macon Ridge, a competitor of Ferriday Villa. Although Ms. Darden had not voted on an allegedly similar project approved for Macon Ridge, Mr. Smith alleged that certain provisions of the Code of Governmental Ethics had been violated. The matter was closed, after the Board of Ethics found no violations.[1]
Cathy Darden filed the instant matter in June 2002, seeking damages related to defamation, intentional infliction of severe emotional distress, and malicious prosecution and abuse of process. Mr. Smith and Ferriday Villa were named as the defendants. Subsequently, the defendants filed a "Motion to Strike and Motion for Summary Judgment, or Alternatively, for Partial Summary Judgment." Primarily, the defendants sought dismissal of the plaintiff's claim through operation of La.Code Civ.P. art. 971, which provides a mechanism for dismissal of a claim when it stems from an act in furtherance of the defendant's "right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue." The motions were denied by the trial court. The record provides no reasons for ruling.
The defendants filed a writ application with this court, seeking review of the trial court's denial. A panel of this court ordered that the matter be considered after full briefing and oral argument. The defendants present the following assignments of error for review:

*394 1. The Trial Court erred by failing to determine whether the plaintiff established a probability of success as required by La.C.C.P. Art. 971(A)(1).
2. The Trial Court erred in denying the Special Motion to Strike Darden's defamation claim based upon the federal suit.
3. The Trial Court erred in denying the Special Motion to Strike Darden's defamation claim based upon the Ethics Complaint.
4. The Trial Court erred in denying the Special Motion to Strike Darden's emotional distress claim.
5. The Trial Court erred in denying the Special Motion to Strike Darden's malicious prosecution claim.
6. The Trial Court erred in denying defendants' Motion for Summary Judgment on all of Darden's claims.
7. The Trial Court erred in not awarding attorney fees to Applicants under La.C.C.P. Art. 971(B).

Discussion

Motion to Strike
At issue is whether La.Code Civ.P. art. 971 extends to all of the claims in the plaintiff's petition or whether it is limited to the defamation claim. If extended to all of the claims, the defendants contend, the plaintiff failed to sustain the burden of proof required of her in order to have her petition for damages survive under Article 971.
Enacted by the legislature to promote participation in matters of public concern,[2] La.Code Civ.P. art. 971 provides:
A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
B. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney's fees and costs to a plaintiff prevailing on the motion.

*395 C. The special motion may be filed within sixty days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.
D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with any issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) "Petition" includes either a petition or a reconventional demand.
(3) "Plaintiff" includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) "Defendant" includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

Scope of Article 971
We first address the plaintiff's contention that Article 971 relates only to the defamation claim contained in the petition. In support of her assertion that the intentional infliction of emotional distress and malicious prosecution claims are not subject to the motion to strike, she points to an "Editor's Note" indicating that the Article is limited to defamation actions.[3]
We find no merit in the plaintiff's contention that Article 971 is limited to a cause of action in defamation. While the reported cases on Article 971 are focused on defamation claims, the language of Article 971(A)(1) itself is broad, stating that it applies to "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition *396 or free speech ..." (Emphasis added). Even if we were to find this language ambiguous, which we do not in this context, reference to the declaration of legislative intent indicates a desire for the Article to be "construed broadly." Acts 1999, No. 734. As we determine that all of the causes of action alleged by the plaintiff's petition are subject to the motion to strike if the merits of that motion are established, we turn to consider the parties' respective burdens of proof.

Burden of Proof under Article 971
In order to succeed under Article 971, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Thomas v. City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282. See also Baxter v. Scott, 37,092 (La.App. 2 Cir. 5/16/03), 847 So.2d 225, vacated on other grounds, 03-2013 (La.11/14/03), 860 So.2d 535.
We first consider the defendants' initial burden in this case, i.e. demonstrating that the subject matter of the suit stems from an action relating to free speech and in relation to a public issue. The defendants supported their motion to strike by submitting various exhibits. Notwithstanding these exhibits, reference to the plaintiff's petition alone demonstrates that the causes of action arise from acts in furtherance of the defendants' right of free speech and in connection with a public issue. This is true as the statements at issue in the plaintiff's suit relate to actions of the Police Jury and its individual Police Jurors; in particular, motives allegedly underlying the Police Jury's decision making process.[4] Whether truthful or *397 not, the statements clearly relate to a "public issue" as defined by the examples of such an act provided under La.Code Civ.P. art. 971(F)(1). Thus, as commenting on such an issue is a matter in furtherance of the right of free speech guaranteed in the United States and Louisiana Constitutions, the burden of proof shifts to the plaintiff to demonstrate the probability of her success on each of the claims alleged by her petition.

Defamation
The Louisiana Supreme Court has explained that in order for a plaintiff to prevail on a defamation claim, he or she must prove: "(1) a false or defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury." Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. Furthermore insofar as a plaintiff is a public official, the supreme court has observed that:
A public official plaintiff cannot recover for a defamatory statement relating to his or her official conduct, even if false, unless the public official proves actual malice by clear and convincing evidence. Kidder v. Anderson, 354 So.2d 1306, 1308 (La.1978). At the very least, the public official plaintiff must prove that the defendant published the false statement with a high degree of awareness of its probable falsity. Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2686, 105 L.Ed.2d 562 (1989). Or the public official plaintiff must prove that "the defendant in fact entertained serious doubts as to the truth of the publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
Even if a public official plaintiff demonstrates that a defendant was grossly negligent in publishing false statements, that showing is insufficient to prove that the defendant acted with reckless disregard for the truth. Masson v. New Yorker Magazine, Inc., 501 U.S. at 510, 111 S.Ct. at 2429. Instead, a public official plaintiff must clearly prove that the defendant actually knew the published statements were false or that the defendant was highly aware that the statements were probably false.
Davis v. Borskey, 94-2399, p. 10-11 (La.9/5/95), 660 So.2d 17, 23.
We find no merit in the plaintiff's assertion that because the statements at issue were false, an element we do not consider here, and related to a matter that would affect public confidence in her or injure her in her occupation, the statements were defamatory per se. Due to this, she contends, she was not required to demonstrate malice, either actual or otherwise. In support of this argument she references an excerpt from the fourth circuit's opinion in Sassone v. Elder, 601 So.2d 792 (La.App. 4 Cir.1992), reversed, 626 So.2d 345 (La.1993), wherein it discussed the definition of defamatory words and those that are defamatory per se. However, this concept is inapplicable to the case at bar as its discussion of malice is not in the context of a public official. The supreme court's direction in this regard is clearly articulated in Davis, 660 So.2d 17. Thus, in order for her defamation *398 claim to survive the motion to strike, the plaintiff was required to demonstrate a probability that she would be able to establish actual malice by clear and convincing evidence.
The evidence presented by the plaintiff does not indicate that she would be able to do so. Notably, there is an absence of evidence indicating that the defendants' statements were made with a reckless disregard for the truth. Recall that, according to Davis, "a public official plaintiff must clearly prove that the defendant actually knew the published statements were false or that the defendant was highly aware that the statements were probably false." Davis, 660 So.2d at 23. Ms. Darden only contests the accuracy of the statements made and does not offer proof indicating that she would be able to satisfy this considerable burden. Accordingly, the motion to strike was erroneously denied in this regard.

Intentional Infliction of Emotional Distress
Turning to the cause of action for intentional infliction of emotional distress, the plaintiff would be required to demonstrate:
(1) [T]hat the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
LaBove v. Raftery, 00-1394, p. 16-17 (La.11/28/01), 802 So.2d 566, 577, quoting White v. Monsanto, 585 So.2d 1205 (La. 1991).
Our review of the parties' respective exhibits in support of and in opposition to the motion to strike indicates that the plaintiff has failed to demonstrate a probability of success as to this claim. In her affidavit, Ms. Darden explained that:
Appearer attests that the filing of the lawsuit, the filing of the ethics complaint, and the comments contained in those documents, caused appearer extreme concern and emotional upset. Appearer attested that she was concerned as to her financial responsibility in connection with the lawsuit, and for her position as Police Juror in response to the ethics complaint. She was further concerned and upset regarding the reporting of the events in the local paper, which disseminated the information contained in the lawsuit to the Concordia Parish Community. Darden attests that she was extremely distraught over the impact these actions may have had and still have on her reputation and credibility within the community. Appearer further attests that she is concerned over potential impact of these statements on her political career. Darden further attested that she was required to expend her personal funds in defense of the ethics complaint.
Even if the court were to accept that the defendants' conduct was "extreme and outrageous" or that the plaintiff's emotional distress was severe, issues we need not reach, there is no evidence that the defendants desired to inflict such emotional distress or knew that it was likely to follow. Again, the plaintiff did not sustain her burden of proof as to this cause of action.

Malicious Prosecution
Finally, on her claim for malicious prosecution, the plaintiff would be required to prove:
(1) [T]he commencement or continuance of an original criminal or civil law judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the *399 absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.
Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).
Again, Ms. Darden's evidence fails to demonstrate the presence of "malice" in the filing of the ethics complaint or the federal lawsuit. While the other matters were, in fact, resolved in the plaintiff's favor, the above standard requires the presence of malice.[5] Her evidence is simply inadequate in this regard. Accordingly, this cause of action is also subject to the motion to strike.
As we have concluded that the plaintiff's causes of action are subject to the motion to strike and that she failed to rebut the burden of proof sustained by the defendants in this case, we find that the trial court was in error in failing to grant the motion to strike.

Attorney's Fees
As can be seen above, La.Code Civ.P. art. 971(B) indicates that "a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs." (Emphasis added). *400 Additionally, the defendants have requested the assessment of attorney's fees in this case. In light of the mandatory language of the article, we award attorney's fees and costs.[6] Our review of this matter indicates that an award in the amount of $5,000 is appropriate.

DECREE
For the foregoing reasons, the defendants' writ application is granted. We grant the motion to strike, dismissing the plaintiff's petition with prejudice. Attorney's fees in the amount of $5,000 and all costs of this matter are assessed to the plaintiff, Cathy Darden.
WRIT GRANTED AND MADE PEREMPTORY.
COOKS, J., concurs in part in the result, and dissents, in part.
COOKS, J., concurs in part in the result, and dissents in part.
I concur with the result reached by the majority opinion, however, I differ with the opinion in two respects. I would not have awarded attorney's fees to Mr. Smith and FVP under La.Code Civ.P. art. 971 or, alternatively, I would have decided the case by way of the motion for summary judgment. The inquiry by the court under La.Code Civ.P. art. 971 is whether the "plaintiff has established a probability of success on the claim" while the test for summary judgment is whether there are any genuine issues of material fact. Both procedural vehicles require an examination of the underlying elements of proof required to support the cause of action. On its face, it may appear only a question of semantics. However, such is not the case, according to the result reached by the majority opinion. La.Code Civ.P. art. 971(B) provides, in relevant part:
In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs.
By mandating the award of attorney's fees to a prevailing defendant, in every case, as the majority has done, we risk penalizing individuals for asserting their constitutional right to petition the court for redress of an alleged grievance. Although Ms. Darden did not present enough evidence to sustain her cause of action, she had every right to defend her character and reputation against a perceived attack. She had a reasonable belief in the rightness of her cause evidenced by the fact that both the federal petition and the ethics complaint were resolved in her favor. I would find the award of attorney's fees a discretionary matter based on the individual facts of the case and, in this case, I would have declined an award. This is the view of the Fourth Circuit in Stern v. Doe, XXXX-XXXX (La.App. 4 Cir. 12/27/01), 806 So.2d 98. In Stern, a high school student was mistakenly featured on a television program as a truant. He sued *401 the station on a claim of false light, invasion of privacy. The television station filed a motion to strike and asked for attorney's fees. The court found the legislative "intent of this statute is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process." Id. at 101. The court used this standard in affirming the trial court's denial of attorney's fees, finding "there is insufficient evidence that plaintiff's claim was attempting to abuse the judicial system." Id. at 103. To mandate attorney's fees as a penalty in every case would chill a plaintiff's right to petition the court. If, in the alternative, La. Code Civ.P. art. 971 does mandate an award of attorney's fees in every case to a prevailing defendant, I would have used the motion for summary judgment to decide this case.
NOTES
[1]  A letter from the Board of Ethics, dated September 28, 2001, and entered into the record as an exhibit, indicates:

Based on the information obtained, the Board concluded, and instructed me to inform you, that no apparent violation of the Code of Governmental Ethics occurred, since Ms. Darden did not participate in the vote to issue Macon Ridge Community Development Corporation a building permit. Also, it did not appear that either Macon Ridge Economic Development Region, Inc. and/or Macon Ridge Community Development Corporation had a substantial economic interest in the conditional denial of a building permit to Ferriday Villa. The Code defines "substantial economic interest" as "an economic interest which is of greater benefit to the public servant or other person than to a general class or group of persons, except ... [t]he interest that a person has as a member of the general public." LSA-R.S. 42:1102(21). As it does not appear that Ms. Darden participated in a vote in which her employer had a substantial economic interest, the Board instructed the staff to close the file.
[2]  Noted in the legislation enacting Article 971, Acts 1999, No. 734, Section Two provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.
[3]  The "Editor's Note" provides:

This article appears to establish a specialized defense motion akin to a motion for summary judgment, but limited to defamation actions and allowing a more liberal time for bringing the motion than the motion for summary judgment allows. It appears that witnesses can be heard. See Lee v. Pennington, 830 So.2d 1037, ([La.]App. 4 Cir.2002).
[4]  The plaintiff's petition references the following statements of the defendants:

10. In the Ferriday Villa suit, R. Craig Smith and the Ferriday Villa Partnership stated that the decision by petitioner to delay awarding the building permit to defendants was "racially motivated" (paragraph 21), "based solely on discriminatory policies towards individuals" (paragraph 25), that the actions were "arbitrary and capricious" (paragraph 26) and was "racially motivated" (paragraph 27). (Ferriday Villa Partnership lawsuit attached hereto).
11.
On or about March 12, 2001, R. Craig Smith filed an ethics complaint against Cathy Darden with the Louisiana Board of Ethics, requesting an investigation which Smith asserted, "... will reveal that multiple violations of the Code of Governmental Ethics have occurred." (Complaint of R. Craig Smith March 8, 2001 to the Louisiana Board of Ethics)(attached hereto as Exhibit 3)
12.
In the ethics complaint, defendant Smith asserted that ". . . Ms. Darden violated Section 1112, 1113, 1114, and 1120 of the Code of Governmental Ethics." (Ethics complaint of defendant March 8, 2001, page 2).
13.
In the ethics complaint, defendant Smith asserted that "Ms. Darden influenced a vote of the Police Jury that resulted in a building permit being granted to her employer, even though she was not present at the time the Police Jury voted on the project." (Ethics complaint of defendant March 8, 2001, page 2)
14.
In the ethics complaint, defendant Smith stated that ". . . these actions on Ms. Darden's part constitute violations of the aforementioned sections of the Code of Governmental Ethics." (Ethics Complaint of defendant March 8, 2001, page 2)
15.
An investigation of the ethics complaint ensued, resulting in a finding in favor of Ms. Darden ". . . that no apparent violation of the Code of Governmental Ethics occurred, since Ms. Darden did not participate in the vote to issue Macon Ridge Community Development Corporation a building permit." (Opinion of the Louisiana Board of Ethics dated September 28, 2001)(attached hereto as Exhibit 4)
[5]  Bearing on the question of malicious prosecution, and touching on the other claims is the affidavit of R. Craig Smith, in which he states, in part:

6. Prior to the presentation of the application to the Police Jury for a building permit, I spoke to Cathy Darden, who told me that her constituents were concerned about the type of housing. I am informed that the members of Darden's constituency who opposed the issuance of the building permit were Caucasian.
7. The inferences that I drew from these facts led me to the conclusion that the Caucasian residents north of the town of Ferriday did not want low income, primarily black residents, residing in the area, and that they were pressuring the Police Jury to deny the permit.
8. The Police Jury denied the FVP building permit in August, 1998. Thereafter, the Police Jury delayed approval of the FVP application, and refused to grant it even after Town of Ferriday had passed a resolution on July 7, 2000 to provide water and sewer for the project, and after Fire Marshall approval had been obtained. Later, on August 28, 2000, the Police Jury made a requirement that FVP escrow $20,000 for improvement of a Town of Ferriday lift station as a condition for issuance of the building permit. Ultimately, the Police Jury made no requirement with respect to the condition of the roadway, one of the reasons given by the Police Jury as a basis for denying the application initially.
9. In 2000, while FVP was seeking a building permit, another developer, Macon Ridge Economic Development Region, Inc. (hereafter "Macon Ridge"), sought and was granted a permit to construct housing for the elderly on Lincoln Road, across the street from the proposed FVP project. Macon Ridge was not required by the Police Jury to escrow $20,000 for payment to the Town of Ferriday for improvement of the lift station. At that time, Cathy Darden was an employee or a business affiliate of Macon Ridge, and the Macon Ridge project was financed through the U.S. Department of Agriculture's Rural Development and was to serve the elderly and handicapped.
10. At the time that FVP filed its suit in federal court, I believed that the Police Jury's opposition to the FVP project was a pre-text, that the real reasons for the Police Jury's opposition to and denial of the permit was that it bowed to pressure from Caucasian citizens of the area around Lincoln Road who opposed the project because of the race of a majority of the occupants of the proposed apartments, and that the Police Jury's denial of the FVP building permit had a racially discriminatory impact upon the Parish and its citizens.
11. Despite compliance with the requirements imposed by the Police Jury and the Town of Ferriday, FVP was denied a building permit. FVP filed suit against the Police Jurors and its members on November 7, 2000. After a status conference with the federal judge, the Police Jury finally granted the permit in September, 2001, over three years after the initial application.
[6]  The plaintiff points to a fourth circuit case in which attorney's fees were not assessed, see Stern v. Doe, 01-914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98. In Stern, the plaintiff appeared before the court in forma pauperis, influencing the court's conclusion that he would likely be unable to pay attorney's fees. In that case, notably, the fourth circuit referenced State, DOTD v. Williamson, 597 So.2d 439 (La. 1992), for the proposition that the courts may consider the reasonableness of attorney's fees even in the face of statutory language authorizing their assessment. In Williamson, however, the statute at issue, La.R.S. 48:453(E), provided that attorney's fees "may" be awarded. La.Code Civ.P. art. 971(B) provides that a prevailing party "shall be entitled to reasonable attorney's fees and costs." (Emphasis added). In light of the clear language of Article 971, we conclude that Stern is not persuasive here.