State of Louisiana v. Travon D. Manuel

STATE OF LOUISIANA * NO. 2021-KA-0273

VERSUS *
COURT OF APPEAL
TRAVON D. MANUEL *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 533-848, SECTION “H”
Honorable Camille Buras, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins,
Judge Dale N. Atkins)

Jason Rogers Williams
DISTRICT ATTORNEY
G. Benjamin Cohen
ASSISTANT DISTRICT ATTORNEY
Brad Scott
ASSISTANT DISTRICT ATTORNEY
Orleans Parish District Attorney’s Office
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT
P. O. Box 2333
Marrero, LA 70073

COUNSEL FOR DEFENDANT/APPELLANT

VACATED IN PART; AFFIRMED IN PART; REMANDED

APRIL 6, 2022

SCJ
RML
DNA

Defendant, Travon Manuel, was convicted, by a non-unanimous jury, of

attempted manslaughter and, by a unanimous jury, of attempted obstruction of

justice. Defendant now appeals his convictions and sentences. In accordance with

Ramos v. Louisiana, 590 U.S. __, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), which

declared that non-unanimous jury verdicts in state felony trials are

unconstitutional, we vacate defendant’s conviction for attempted manslaughter.

See State v. Donovan, 19-0722 (La. App. 4 Cir. 5/27/20), 301 So.3d 541. In

regards to his conviction for attempted obstruction of justice, we find no error and

affirm his conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On November 27, 2016, during the weekend of the Bayou Classic football

game, a mass shooting occurred at approximately 1:30 a.m., in the 100 block of

1

Bourbon Street in the French Quarter. Ten people were struck by gunfire, one of

whom was killed.1

New Orleans Police Department (“NOPD”) Detective Colleen Formanek

testified that on the night of the shooting, she was patrolling in the 100 block of

Bourbon Street. Det. Formanek had just broken up a fight between two individuals

and was placing one of the individuals in custody, when several gunshots were

fired. At the time of the shooting, Det. Formanek’s body worn camera was

activated and recorded the shooting incident. The recording, played for the jury,

reflected at least five gunshots were fired. Det. Formanek described the aftermath

of the shooting as chaotic, but she remained on the scene to locate victims and

witnesses to the shooting.

NOPD Detective Barret Morton testified that he was assigned to investigate

the shooting and homicide that occurred on Bourbon Street on November 27, 2016.

When he arrived at the scene of the shooting, Det. Morton observed five .40 caliber

spent shell casings in the middle of Bourbon Street and one .40 caliber spent bullet

on Iberville Street, at the corner with Bourbon Street. Det. Morton and other

officers went to several businesses in that area to interview potential witnesses and

recover any surveillance footage.

At a restaurant located in the same block where the shooting occurred,

officers recovered video surveillance that captured the shooting. The video, played

1
Seven of the surviving victims testified at trial regarding their locations and actions at the time
of the shooting as well as the extent of their injuries, the details of which are not relevant to the
assignments of error raised on appeal and are not discussed herein. As discussed infra, two of
the surviving victims, Brittney Ben and Deion Ben, knew Jordan Clay, the other shooter, and
witnessed the shooting.

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for the jury, showed an individual, later identified as defendant, walk into a crowd,

approach and “face off” with another man, later identified as Jordan Clay. The

video then shows defendant raise a weapon and begin shooting towards Clay, who

returns gunfire with a weapon; also, as the crowd and Clay begin to flee from the

gunfire, defendant remains in position, shooting several rounds. The .40 caliber

spent casings were recovered from where defendant was standing on Bourbon

Street during the shooting.

Det. Morton further testified that all surviving shooting victims were

interviewed. Based upon interviews with two of the victims, Brittany Ben and

Deion Ben, Det. Morton identified the two shooters as defendant, who was known

by the nickname of “Tiki”, and Clay. Brittney and Deion Ben were with Clay at

the time of the shooting.2 The other seven surviving shooting victims did not have

any connection to either Clay or defendant.

During his investigation, Det. Morton learned that defendant and Clay knew

each other from Lafayette, Louisiana, from which both had travelled to New

Orleans for the Bayou Classic weekend. Defendant and Clay had “an ongoing

feud” that involved defendant’s girlfriend, who had a prior relationship with Clay.

In the weeks prior to the shooting, the two men had an altercation at a park in

2
Brittney Ben testified at the trial that she knew of Clay prior to the shooting. On the night of
the shooting, she was with her nephew, Deion Ben, who also knew Clay. They saw Clay and
defendant have an argument before the shooting. Brittney also testified that she sustained five
gunshot wounds during the shooting. While she was being treated in the hospital, defendant
came to see her and apologized to her, stating that he was shooting at somebody else.

Deion Ben testified that he knew Clay from Lafayette, they were friends, and they were together
on Bourbon Street at the time of the shooting. Deion denied seeing an argument before the
shooting, but he stated he was standing by Clay when he was shot.

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Lafayette, during which Clay punched defendant and knocked him unconscious.

Based upon the information gathered during his investigation, Det. Morton

contacted the Lafayette Police Department and Louisiana State Police Investigator

Anthony Pardo, who was assigned to the Lafayette region, to assist in locating

defendant and Clay.

Investigator Pardo testified that, within days of the shooting, he located,

interviewed, and arrested Clay. Investigator Pardo and other officers also searched

for defendant at several locations, finally locating him at the house of his child’s

mother in Lafayette. Investigator Pardo observed defendant getting out of a gold

Mercedes-Benz vehicle and walking up to the entry of the house. As Investigator

Pardo approached him, defendant appeared nervous and stated, “[y]ou know, I was

about to come turn myself in” and “I just wanted to say bye to my little boy.”

Investigator Pardo then transported defendant to State Police Region 2

headquarters for a recorded interview, which was played for the jury.

Investigator Pardo also procured a search warrant for defendant’s gold

Mercedes-Benz. In the search of the vehicle, officers discovered a backpack,

inside of which was a clear Ziploc bag with “a large amount of marijuana.” Also

within the vehicle, officers located a 9-millimeter handgun with an extended, high-

capacity magazine.

Louisiana State Trooper Christopher Ledet testified that he assisted in

serving a search warrant at the house of defendant’s mother, who also signed a

consent to search form when they arrived. Defendant’s mother informed them that

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defendant had a bedroom he used when he stayed at the house. In that room, under

the bed, Trooper Ledet recovered a Glock .40 caliber semi-automatic handgun with

an extended magazine.

The section chief of the Forensic Firearms Unit for the NOPD Crime Lab,

Sean McElrath, testified as an expert in the field of firearms, ballistics analysis and

identification. McElrath stated that he examined the spent ammunition at the scene

of the shooting as well as the two guns recovered during the execution of the

search warrants, and he prepared a report of his findings. In his examination of the

five bullet casings found at the scene of the shooting, McElrath concluded that they

were all fired from the same weapon, a Glock .40 caliber handgun. McElrath also

test-fired the Glock handgun, seized in the search of defendant’s mother’s home,

and, upon analyzing the results in comparison to the spent bullet casings,

concluded that the five spent casings from the shooting were fired from that

particular Glock.

After defendant was arrested in connection with the shooting, he was held in

custody at Orleans Parish Prison, where his jail calls were recorded. The custodian

of the recorded jail calls, Jim Huey, testified to authenticate three jail calls placed

by defendant to his girlfriend. The recordings were played for the jury. In one call

recorded on December 5, 2016, defendant stated he was going to “beat this” and

his girlfriend agreed, saying to defendant that he “played it smart”, to which

defendant replied, “by leaving the gun,” and she replied “yeah.” Defendant then

cut off the conversation, saying “shhh.”

5

Testifying in his own defense at trial, defendant stated he knew Clay from

Lafayette, and he admitted that they had a fight at a basketball court a few weeks

before the shooting, but he denied having an ongoing feud with Clay. On

November 26, 2016, defendant joined some friends on a trip from Lafayette to

New Orleans for Bayou Classic festivities. Defendant admitted he had his gun, a

.40 caliber Glock, with him and stated he had been carrying it since his cousin had

been killed, not because of any altercation.

Upon arriving in New Orleans around midnight on November 27, 2016,

defendant and friends started walking to Bourbon Street, where defendant saw

people he knew from Lafayette, including Clay. When he noticed Clay, defendant

stated that he and Clay “exchanged words,” but that he walked away after that

exchange. Defendant returned a little later to look for another friend, and he saw

Clay who was “backing up pulling out a gun.” Defendant stated that Clay fired

first but when he heard a gunshot, “[defendant] most definitely did shoot back.”

Defendant stated he did not know how many shots he fired but, when he got back

to the car, he looked and noticed five or six shells missing from his gun.

Defendant also admitted that he and his friends returned to Lafayette that night.

Defendant acknowledged that he was taken in for questioning by police on

December 2, 2016. He admitted that, at first, he was not truthful with police about

his involvement in the shooting, but that he eventually told them that he was

“acting in self-defense.”

6

On cross-examination, when asked where he went after the shooting,

defendant stated he did not realize anything was wrong, so he and his friends

stopped by the Waffle House, which was not letting people in, then they kept

walking and, eventually, they got in the car and went back to Lafayette. Defendant

claimed he did not know that he was involved with the shooting or that police

would want to talk to him; he also claimed he did not hear any news of the

shooting, which was covered in the local and national news. When asked why he

hid his gun, defendant asserted that, if he were trying to get rid of evidence, he

would have discarded the gun, but he did not, and he put it back where he always

kept it. However, defendant admitted that he lied to State Police investigators

about the gun, claiming he did not have a weapon on the night of the shootings;

then, when confronted by video of the shooting, claiming that he shot his gun into

the air rather than into the crowd; and telling them that the gun he used was

“finito.”

On March 30, 2017, the State filed a grand jury indictment charging

defendant and Clay, as a co-defendant, with one count of carrying a concealed

firearm, in violation of La. R.S. 14:95; one count of second-degree murder, in

violation of La. R.S. 14:30.1; one count of attempted second-degree murder, in

violation of La. R.S. 14:(27)30.1; and one count of obstruction of justice in a

second-degree murder investigation, in violation of La. R.S. 14:130.1. At

arraignment, defendant pled not guilty to all charges.

7

Subsequently, defendant filed a motion to sever his trial from the trial of

Clay. The State did not file an objection to the motion to sever, and the trial court

granted defendant’s motion to sever the trials.

Defendant’s trial commenced on June 25, 2019. At the conclusion of a four-

day trial, the jury rendered verdicts on two of the three felony counts in the

indictment. The jury could not reach a verdict on the count of second-degree

murder. On the count of attempted second-degree murder, the jury returned a non-

unanimous verdict (11-1) of guilty of attempted manslaughter. On the count of

obstruction of justice, the jury returned a unanimous verdict of attempted

obstruction of justice. After the jury rendered its verdict, the trial judge found

defendant guilty of the misdemeanor count of carrying a concealed firearm.

On September 20, 2019, the trial court held a sentencing hearing and

imposed sentences of twenty years for each conviction, to run consecutively with

each other. The trial court then set a pre-trial date for a retrial on the charge of

second-degree murder.

In October 2020, defendant filed a notice of appeal of his convictions for

attempted manslaughter and attempted obstruction of justice.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920(2), this Court reviews all appeals for

errors patent on the face of the record. A review of the record reveals one error

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patent—defendant’s conviction by a non-unanimous jury verdict—which

defendant also raises as his first assignment of error, discussed infra.3

DISCUSSION

On appeal, defendant raises three assignments of error: (1) his conviction for

attempted manslaughter by a non-unanimous jury verdict is unconstitutional; (2)

the evidence presented at trial is insufficient to sustain his conviction for attempted

obstruction of justice; and (3) his twenty-year sentence for attempted obstruction of

justice is unconstitutionally excessive.

Assignment of Error No. 1: Non-unanimous conviction

Defendant argues that his conviction for attempted manslaughter by a jury

verdict of 11-1 is unconstitutional and must be vacated, pursuant to Ramos v.

Louisiana, supra. We agree.

At the time of defendant’s trial, in June 2019, Louisiana law allowed for

non-unanimous jury verdicts in felony trials. In addition, the controlling Louisiana

jurisprudence consistently upheld the constitutionality of non-unanimous jury

verdicts. See State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738.

Prior to the filing of defendant’s appeal, on April 20, 2020, the United States

Supreme Court rendered its decision in Ramos v. Louisiana, supra, setting forth a

new constitutional rule: the Sixth Amendment right to a jury trial, as incorporated

against the states through the Fourteenth Amendment, requires a unanimous jury

3
See State v. Varnado, 20-00356, p. 1 (La. 6/3/20), 296 So.3d 1051 (“If the non-unanimous jury
claim was not preserved for review in the trial court or was abandoned during any stage of the
proceedings, the court of appeal should nonetheless consider the issue as part of its error patent
review.”).

9

verdict to convict a defendant in state felony trials. Moreover, the new

constitutional rule announced in Ramos applies retroactively to all criminal cases,

state or federal, pending on direct review. See State v. Donovan, 19-0722, pp. 5-6

(La. App. 4 Cir. 5/27/20), 301 So.3d 541, 544-45.

Applying Ramos to this direct appeal, we find that defendant’s non-

unanimous conviction and sentence for attempted manslaughter are

unconstitutional. Accordingly, we vacate that conviction.

Assignment of Error No. 2: Insufficient evidence

In his second assignment of error, defendant argues that the State failed to

produce evidence sufficient to support his conviction for attempted obstruction of

justice.

When reviewing the sufficiency of the evidence to support a conviction,

appellate courts are controlled by the standard enunciated in Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard,

the appellate court “must determine that the evidence, whether direct or

circumstantial, or a mixture of both, viewed in the light most favorable to the

prosecution, was sufficient to convince a rational trier of fact that all of the

elements of the crime have been proven beyond a reasonable doubt.” State v.

Pigford, 05-0477, pp. 5-6 (La. 2/22/06), 922 So.2d 517, 520-21. All evidence,

direct and circumstantial, must meet the Jackson standard. State v. Carter, 99-

2234, p. 30 (La. App. 4 Cir. 1/24/01), 779 So.2d 125, 144.

10

When circumstantial evidence forms the basis of a conviction, such evidence

must consist of “collateral facts and circumstances from which the existence of the

main fact may be inferred according to reason and common experience.” Carter,

99-2234, p. 31, 779 So.2d at 144. “[I]n cases relying on circumstantial evidence to

prove one or more elements of the crime, when the fact-finder reasonably rejects

the hypothesis of innocence advanced by the defendant at trial, that hypothesis

fails, and the verdict stands unless the evidence suggests an alternative hypothesis

sufficiently reasonable that rational jurors could not find proof of defendant’s guilt

beyond a reasonable doubt.” Pigford, 05-0477, p. 6, 922 So.2d at 521. Ultimately,

“[t]he rule as to circumstantial evidence is: assuming every fact to be proved that

the evidence tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.” La. R.S. 15:438.

In this appeal, defendant argues that the circumstantial evidence presented

by the State is insufficient to sustain a conviction for attempted obstruction of

justice, a responsive verdict to, and a lesser included offense of, the charge of

obstruction of justice. See La. R.S. 14:27(C).4 It is well-settled that if the evidence

adduced at trial was sufficient to support a conviction of the charged offense, then

the evidence “will necessarily support conviction of a lesser and included offense.”

State v. Jones, 15-0123, p. 37 (La. App. 4 Cir. 12/2/15), 182 So.3d 251, 276.

4
“An attempt is a separate but lesser grade of the intended crime; and any person may be
convicted of an attempt to commit a crime, although it appears on the trial that the crime
intended or attempted was actually perpetrated by such person in pursuance of such attempt.”
La. R.S. 14:27(C).

11

The crime of obstruction of justice is defined in La. R.S. 14:130.1, in

pertinent part, as follows:

A. The crime of obstruction of justice is any of the following when
committed with the knowledge that such act has, reasonably may,
or will affect an actual or potential present, past, or future criminal
proceeding as described in this Section:

1. Tampering with evidence with the specific intent of
distorting the results of any criminal investigation or
proceeding which may reasonably prove relevant to a
criminal investigation or proceeding. Tampering with
evidence shall include the intentional alteration, movement,
removal, or addition of any object or substance either:

a. At the location of any incident which the perpetrator
knows or has good reason to believe will be the
subject of any investigation by state, local, or United
States law enforcement officers;

Obstruction of justice under La. R.S. 14:130.1 is a specific intent crime. To

support a conviction for the offense, the State must prove beyond a reasonable

doubt that defendant intentionally altered, moved, or removed evidence from a

location he had reason to know would be the subject of investigation, with the

specific intent of distorting the results of any criminal investigation.

Defendant asserts that the State failed to prove the necessary element of

specific intent to distort the criminal investigation. “‘Specific intent’ is the state of

mind that exists when circumstances indicate the offender actively desires

prescribed criminal consequences to follow his act. Specific intent need not be

proven as fact but may be inferred from the circumstances of the transaction and

the actions of defendant.” State v. Dorsey, 20-0029, p. 12 (La. App. 4 Cir.

12/9/20), 312 So.3d 652, 660 (citations omitted).

12

At trial, defendant admitted that he was involved in the shooting on

November 27, 2016. He further admitted that, rather than remaining on scene, he

fled the area, returning to Lafayette, instead of staying on scene to assert his claim

of firing shots in self-defense. Thereafter, he learned that authorities were looking

for him, having learned of Clay’s arrest, but he did not turn himself into

authorities. At trial, he asserted that he put the .40 caliber Glock gun back where

he always kept it; however, he admitted to lying to investigators about having a

gun, its whereabouts, and his involvement in the shooting. Moreover, the jury

heard the jail calls between defendant and his girlfriend in which he stated he

would “beat this shit” and agreeing with her that he “played it smart.”

Defendant’s actions of fleeing the scene of the shooting, concealing the

weapon in his mother’s house underneath a bed, and lying to investigators about

his involvement in the shooting as well as the gun he used, all indicate his specific

intent to distort the results of the criminal investigation of the shooting. In

addition, the trier of fact’s “determination as to the credibility of a witness is a

question of fact entitled to great weight, and its determination will not be disturbed

unless it is clearly contrary to the evidence.” Dorsey, 20-0029, p. 10, 312 So.3d at

659. “The testimony of a single witness if believed by the trier of fact, is sufficient

to support a conviction.” State v. Wells, 10-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64

So.3d 303, 306.

From our review of the record of this case, viewing all evidence and

testimony in the light most favorable to the prosecution, we find that a rational trier

13

of fact could have found, beyond a reasonable doubt, that defendant attempted to

obstruct justice by tampering with evidence with the specific intent of distorting

the results of the criminal investigation of the shooting. Accordingly, we find no

merit to this assignment of error.

Assignment of Error No. 3: Excessive sentence

In his third and final assignment of error, defendant asserts that his sentence

of twenty years for attempted obstruction of justice, the maximum statutory term of

imprisonment for the offense, is excessive.

Before reviewing the merits of the claim, our review of the record reflects

that defendant failed to object to the sentence at the time it was imposed and,

thereafter, failed to file a motion to reconsider sentence. Pursuant to La. C.Cr.P.

art. 881.1, a defendant’s failure to make or file a motion to reconsider sentence

shall preclude defendant from urging on appeal any grounds of objection to the

sentence. See State v. Kirkling, 04-1906, pp. 5-6 (La. App. 4 Cir. 5/18/05), 904

So.2d 786, 790. Due to his failure to object and file a motion to reconsider his

sentence, appellate review of defendant’s sentence is “limited to a bare review for

constitutional excessiveness.” State v. Zeitoun, 17-0366, p. 10 (La. App. 4 Cir.

11/8/17), 231 So.3d 934, 945.

Both the Eighth Amendment to the United States Constitution and Article I,

§ 20 of the Louisiana Constitution prohibit the imposition of cruel and unusual

punishment. Additionally, the Louisiana Constitution explicitly prohibits

“excessive punishment.” State v. Wilson, 14-1267, p. 23 (La. App. 4 Cir. 4/29/15),

165 So.3d 1150, 1165. A sentence is excessive, even when it is within the

14

applicable statutory range, if it is “grossly disproportionate to the severity of the

offense or constitutes nothing more than needless infliction of pain and

suffering.” Id., p. 25, 165 So.3d at 1166 (quoting State v. Hackett, 13-0178, p. 14

(La. App. 4 Cir. 8/21/13), 122 So.3d 1164, 1174). In reviewing a sentence for

excessiveness, the appellate court must consider the punishment and the crime in

light of the harm to society and gauge whether the penalty is so disproportionate as

to shock the court’s sense of justice. State v. Wilson, 11-0960, p. 9 (La. App. 4 Cir.

9/5/12), 99 So.3d 1067, 1073 (quoting State v. Colvin, 11-1040, p. 7 (La. 3/13/12),

85 So.3d 663, 667-68).

The trial court is afforded wide discretion in determining sentences, and the

appellate court will not set aside a sentence for excessiveness if the record supports

the sentence imposed and there is no manifest abuse of discretion by the trial

judge. State v. Bradley, 18-0734, pp. 8-9 (La. App. 4 Cir. 5/15/19), 272 So.3d 94,

99-100 (quoting State v. Williams, 15-0866, pp. 12-13 (La. App. 4 Cir. 1/20/16)

186 So.3d 242, 250).

In this case, the trial court imposed the maximum statutory sentence of

twenty years for defendant’s conviction of attempted obstruction of justice. See

La. R.S. 14:27(D)(3), La. R.S. 14:103.1(B)(1).5 Upon review of the sentencing, we

find that the trial court adequately complied with statutory guidelines in La.

5
La. R.S. 14:27(D)(3) provides, in pertinent part, that a person convicted of attempting to
commit a crime shall be imprisoned in the same manner as for the offense attempted; however,
such imprisonment shall not exceed “one-half of the longest term of imprisonment prescribed for
the offense so attempted ….”

La. R.S. 14:130.1(B)(1) provides, in pertinent part, that when “the obstruction of justice involves
a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the
offender shall be … imprisoned for not more than forty years at hard labor ….” In this case, the
criminal proceeding in which defendant was charged with obstruction of justice involved a
second degree murder charge, for which a sentence of life is mandatory. Consequently, the
maximum possible sentence to be imposed on defendant was forty years for obstruction of
justice, and twenty years for attempted obstruction of justice.

15

C.Cr.P. art. 894.1 by articulating several factors considered in its determination of

defendant’s sentence. The trial court took into account defendant’s youth and

“relative lack of criminal history.” But, the trial court noted that such mitigating

factors were tempered by the fact that defendant possessed two weapons: the

murder weapon, which he hid under his bed at his mother’s house; and a handgun

with an extended magazine, which was found in his vehicle at the time of his

apprehension. The trial court also took note of the suffering of the innocent

victims, in particular, the decedent, acknowledging that while the second-degree

murder count was not “before the [c]ourt,” it was “part and parcel of the totality of

the aggravating circumstances that this [c]ourt considers in imposing sentence.”

Upon review, this Court will not set aside a sentence for excessiveness if the

record supports the sentence imposed. The record of this case reflects defendant’s

callous and reckless disregard for life in firing several shots on Bourbon Street,

during which incident nine people were injured and one person was killed.

Defendant then fled back to Lafayette and concealed the weapon he fired that

night. We find no error in the trial court’s consideration of “the totality of the

aggravating circumstances” in imposing the maximum twenty-year sentence for

defendant’s conviction of attempted obstruction of justice. See State v. Berry, 630

So.2d 1330, 1334-36 (La. App. 4th Cir. 1993) (finding the trial court could

properly consider evidence adduced in connection with offenses for which

defendant was acquitted). Thus, we find no merit to defendant’s claim of an

excessive sentence.

16

CONCLUSION

For the foregoing reasons, we vacate defendant’s conviction for attempted

manslaughter and remand for further proceedings. However, we affirm

defendant’s conviction and sentence for attempted obstruction of justice.

VACATED IN PART; AFFIRMED IN PART; REMANDED

17