author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Terry CHEATHAM, Appellant.
    No. 38,413-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Terry Cheatham, Pro Se.
    Louisiana Appellate Project by Carey J. Ellis, III, Rayville, for Appellant.
    Walter E. May, Jr., District Attorney, James R. Hatch, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS & HARRISON (Pro Tempore), JJ.
   PEATROSS, J.

Defendant, Terry Cheatham, was charged with attempted first degree murder for the shooting of Doyree Sturges in Haynesville, Louisiana. The charge was based on the facts that the shot was fired from an automobile and the victim was older than 65 years of age. See La. R.S. 14:27, infra, and 14:30 A(l) and (5). After trial, the jury found Defendant guilty of attempted manslaughter, La. R.S. 14:27 and 14:31, infra, and he was subsequently sentenced to nine years at hard labor, with credit for time served. Defendant appeals, challenging the sufficiency of The evidence and the denial of his requested jury instruction relating to self-defense. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS AND TESTIMONY

It is not disputed that on September 17, 2001, in the town of Haynesville, Defendant shot and seriously wounded the victim, Doyree Sturges. Mr. Sturges and Defendant, however, testified at trial and | ¡.presented to the jury two very different versions of the shooting. Mr. Sturges testified that, on that day, he had contractors working at his home and, at about 12:30 p.m., he decided to go to Lisa’s Kitchen, a local restaurant, to get a cup of coffee. Mr. Sturges testified that, at about 12:45 p.m. on September 17, he had his coffee in one hand and a cigar in the other and was walking across the street to sit and drink his coffee when Defendant drove by and called out that Mr. Sturges was a “son-of-a-bitch.” Mr. Sturges testified that he paid no attention to the insult and sat down beside the sidewalk (on the curb), as was his usual routine, in the bank parking lot.

After sitting down, Mr. Sturges looked up and saw that Defendant had turned his vehicle around and was approaching him. As Mr. Sturges stood up, his hands in front of him holding the coffee and cigar, he saw a gun pointing out of the window of Defendant’s car. According to Mr. Sturg-es, Defendant shot him with a high powered rifle, striking him in the right arm and abdomen causing extensive damage. The bullet also pierced his colon and liver and his right arm was nearly severed by the bullet. Mr. Sturges testified that Defendant drove away leaving him staggering in the parking lot. Mr. Sturges walked a few steps and fell to the concrete. He testified that he thought that two shots were fired, but admitted |3that he could not recall exactly because he was “out of it” after being shot and simply could not recall much after being hit.

Roy Shepherd testified on behalf of the State that he was at Lisa’s Kitchen on the afternoon of September 17, 2001. He noticed Mr. Sturges when he came in and ordered a cup of coffee. Afterwards, Mr. Shepherd was sitting in the restaurant when he heard a loud noise. He turned and saw Mr.- Sturges across the street, staggering and bleeding. Mr. Shepherd did not see Defendant or Defendant’s ear.

Ruben Lewis, Kay Ivory and Julianka Robinson also testified for the State. At about 1:20 p.m., Mr. Lewis was standing in Lisa’s Kitchen where he visited with Mr. Sturges for two or three minutes as Mr. Sturges bought a cup of coffee. Mr. Lewis also testified that he thought Mr. Sturges had a cigar with him. Ms. Ivory and Ms. Robinson were working in the restaurant that afternoon and Ms. Robinson served Mr. Sturges. The three testified that, a few minutes after Mr. Sturges left the restaurant, they heard a loud noise. They looked out the window of the restaurant and saw that Mr. Sturges had been shot. None of them saw the shooting and no one saw anyone around Mr. Sturges. Ms. Robinson called 911 and Mr. Lewis and Ms. Ivory ran to assist Mr. Sturges. Mr. Lewis helped Mr. Sturges to the ground and stayed with him until the ambulance and police arrived. When Mr. Sturges was asked who shot him, he replied, “Terry Cheatham.” Neither Mr. Lewis nor Ms. Ivory saw any weapons around Mr. Sturges.

Detective Ben Booth with the Claiborne Parish Sheriffs Office, together with Chief James Garner, Officer David Mills and Officer Alan [ ¿Nations with the Haynesville Police Department, testified at the trial about the investigation. At the location Mr. Sturges was shot, the officers found a large pool of blood, a foam coffee cup and a cigar. The officers did not find any weapons at the crime scene or in Mr. Sturges’ personal effects.

Anthony Smith testified for the State that he was employed with the ambulance service that treated Mr. Sturges for his injuries. Mr. Smith transported Mr. Sturges to the hospital. He testified that he did-not see any weapons on or near Mr. Sturges.

When the officers learned that Mr. Sturges had identified Defendant as the shooter, they immediately went to Defendant’s home. They found Defendant on his porch waiting for them. After being read his rights, Defendant told the officers that he had shot Mr. Sturges with a .223 caliber rifle and that the gun was in a shed behind the house. Defendant consented to a search, which revealed the .223 caliber single-shot rifle in the shed with a fired shell casing, still in the chamber. Defendant told Detective Booth that he had not cleared the rifle after firing it.

Defendant gave a voluntary statement to the officers, the tape of which was played for the jury. In this statement, Defendant told the officers that he used to cut Mr. Sturges’ hair, but they had a misunderstanding about a lady, Almarie Russ. Defendant contends that Mr. Sturges had tried to start a relationship with Ms. Russ, with whom Defendant was romantically involved. He believed she was seeing both men. Defendant told the officers that he was alright with the situation, but that Mr. Sturges had been harassing Defendant over the issue. According to Defendant, this | ¡¡harassment included following him and coming into his driveway a couple of months before the shooting.

. In his initial statement to the officers and during his trial testimony, Defendant said that, on the afternoon of September 17, 2001,-he had .gone to the hardware store to buy a- saw blade he needed to do some roofing work on his house. He had the rifle on the front seat of his car because he carried it for safety when he closed his barbershop after dark. On the way back home, Defendant saw Mr. Sturg-es in the bank parking lot and Mr. Stages “beckoned” Defendant to stop. Defendant stated that, when he stopped his vehicle, Mr. Stages began walking toward his car. Defendant further testified that he pointed his rifle at Mr. Stages, not to shoot him, but to make him stop. Defendant testified that he told Mr. Stages to stop, but Mr. Stages continued to advance, stating, “I ought to shoot you.” Defendant admitted that he did not see a weapon in Mr. Stages’ hand, but he testified that Mr. Stages had his hands behind his back, giving Defendant the impression that he had a weapon. Defendant further testified that, when he pulled the trigger, he honestly believed that Mr. Stages had a gun. Defendant acknowledged that, after he shot Mr. Stages, he realized that Mr. Stages’ hand had been empty. Defendant testified that he did not want to wait to find out if Mr. Stages had a weapon before firing.

Defendant admitted that he shot Mr. Stages once; and, in his initial statement to officers, Defendant stated that he drove off after shooting Mr. Stages. At trial, Defendant testified that, when Mr. Stages was about three feet away from the car, he did not think, but closed his eyes and pulled | fithe trigger. When he opened his eyes, he saw Mr. Stages was leaning up against his car, holding his stomach. Defendant testified that he was very upset, never having shot anyone before. Not knowing what to do, Defendant decided to drive to his house, which was about three blocks away. When asked why the crime scene photographs did not show any blood near where he stopped his car, Defendant had no explanation other than that the blood must have been in Mr. Stages’ clothes. On cross-examination, Defendant acknowledged that he did not tell the police in his statement that Mr. Stages had made it to his car or that Mr. Stages had leaned up against his car after being shot.

Regarding the contact between the two men prior to the shooting, Defendant testified that, beginning in 2000, he overheard a phone call between Ms. Russ and Mr. Stages about Mr. Stages’ possible relationship with Ms. Russ. The next morning, Mr. Stages came to the Defendant’s barber shop and denied he was doing anything with “that woman.” Defendant testified that, thereafter, Mr. Stages began making gestures and pointing at him when they would meet. Defendant testified that, prior to November 24, 2000, he had not done anything to harass Mr. Stages. As far as Mr. Stages harassing him, Defendant described how Mr. Stages had come into his yard, followed him downtown and had told him that, not only would he come into his yard, he would come into his house.

Freddie Henderson testified on behalf of Defendant. He testified that three or four months prior to the shooting, he saw Defendant with a rifle in his car. When Mr. Henderson asked Defendant why he carried a rifle in his |7car, Defendant told him that he carried it to protect himself when he closed his business late.

Jimmy Meadors, who was helping Defendant put a new roof on his house on the day of the shooting, testified that, shortly before 1:00 p.m., he discovered that he needed a saw blade and Defendant offered to go buy the blade. Mr. Meadors noticed nothing unusual about Defendant’s behavior prior to his leaving. When Defendant returned, he was very upset and told Mr. Meadors that he had just shot someone and that the police would be there soon. Mr. Meadors further testified that Defendant paid him for the roofing work, and he left before the police arrived.

Mr. Stages’ testimony significantly contradicted Defendant’s version of the shooting. Mr. Stages denied saying anything to Defendant before he was shot, and he further denied signaling Defendant to stop or moving towards Defendant’s vehicle after it was stopped. Mr. Sturges denied ever harassing or threatening Defendant prior to the shooting. He further denied knowing any reason why Defendant would want to shoot him.

While he denied ever arguing with Defendant prior to the incident, Mr. Sturges did describe “run-ins” with Defendant wherein Defendant would harass him in public and by telephone. Mr. Sturges could not place a time frame on any of these threats, but estimated that it had been going on for about a year before the shooting. He reported the harassment to the police and it slacked off for a while, but did not stop completely. In this regard, Jason Branch, with the Haynesville Police Department, testified that, before the shooting, Mr. Sturges came to the police station and made a | ^complaint about Defendant harassing him. On November 24, 2000, Officer Branch and Officer Mills found Defendant at a football game and told him about the complaint. At that time, Defendant told the officers he would “drop everything and leave it alone.”

Mr. Sturges also denied knowing Ms. Russ or ever seeing her with Defendant. It was undisputed that Ms. Russ had a romantic relationship with Defendant, but there was conflicting testimony as to whether or not Mr. Sturges knew her and/or had tried to have a relationship with her. Mr. Sturges denied any attempt to date Ms. Russ, stating that he would not know her if she walked in the room. He denied ever following Defendant to his home or making any kind of threats to Defendant.

Ms. Russ testified that she had an ongoing relationship with Defendant and that Mr. Sturges had tried to date her. She further testified that she was not aware that Defendant knew that Mr. Sturges had tried to date her. She also denied knowing that there were any problems between the two men. On cross-examination, however, Ms. Russ testified that, on several occasions when she was in a vehicle with Defendant, they would pass Mr. Sturges and he would shake his fist or make gestures at her and Defendant. Ms. Russ testified that Defendant complained to her about Mr. Sturges harassing him. Ms. Russ also described a phone call to Mr. Sturges where Defendant was also listening in to determine if Mr. Sturges had been attempting a relationship with Ms. Russ.

IsAfter both sides rested, a charge conference was held outside the presence of the jury. Defendant offered a proposed jury instruction which stated:

The State has the burden of proving, in a case of this nature, beyond a reasonable doubt, that the defendant did not act in self-defense.
See State v. Lombard, 486 So.2d 106 [(La.1986)].

The trial court denied the proposed instruction, finding that it did not correctly state the law in non-homicide cases.

As previously stated, the jury found Defendant guilty of the responsive verdict of attempted manslaughter. The trial court ordered a presentence investigation report and subsequently sentenced Defendant to nine years at hard labor, with credit for time served. This appeal ensued. We note that, in addition to the brief filed by counsel on behalf of Defendant, this court granted Defendant leave to file a supplemental pro se brief, which has been reviewed on appeal.

DISCUSSION

Assignment of Error Number One: The state failed to present sufficient evidence to support the verdict, a conviction of attempted manslaughter.

Defendant argues that the evidence was insufficient to prove that he had the specific intent to kill or cause the victim great bodily harm in light of suspicious and inconsistent testimony of the victim which creates reasonable doubt concerning Defendant’s guilt of attempted manslaughter. In his pro se supplemental brief, Defendant argues inconsistencies in the victim’s testimony as a basis that he should not have been convicted. On the other hand, the State argues that specific intent is a jury question, and |inthe jury was able to evaluate Defendant’s and the victim’s testimony as to the crime, and the jury’s credibility determinations leading to Defendant’s conviction of attempted manslaughter should not be disturbed.

La. R.S. 14:27 provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

La. R.S. 14:31(A) provides, in pertinent part:

A. Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or ...

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, unit denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Specific intent to commit a crime is an element of an attempted offense. La. R.S. 14:27. Hence, a conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. La. R.S. 14:10, 14:27. See State v. Parish, 405 So.2d 1080 (La.1981), appeal after remand, 429 So.2d 442 (La.1983).

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d , 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). Specific intent is that | ¶ «state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir. 1993).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Bidler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

In the present case, this issue can be resolved by applying the law regarding specific intent to Defendant’s own version of the shooting. Defendant argues that the State did not prove he had the requisite specific intent; however, it is apparent that the jury chose to believe Defendant’s version of the shooting when it rendered a reduced verdict of attempted manslaughter. Although the evidence presented could have supported a greater verdict, when considering Defendant’s version of the facts in a light most favorable to the State, there still is sufficient evidence to support a reasonable jury’s verdict of attempted manslaughter.

11 «Manslaughter is defined as a homicide that would have been “either first or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection.” La. R.S. 14:31(A)(1). Mr. Sturges described the classic case of an attempted first or second degree murder. Defendant drove past him, turned his car around, stopped, pointed a rifle out the window and shot him at point-blank range without provocation. In addition, Mr. Sturges was over the age of 65. This evidence clearly would have been sufficient to have supported a jury verdict of either attempted first or second degree murder, based on Defendant’s engaging in a drive-by shooting and the victim being over 65 years of age.

On the other hand, Defendant described how he drove into town to buy a saw blade, was beckoned over by Mr. Sturges, who then allegedly threatened him. Defendant testified he shot Mr. Sturges because of an impression that he might have been armed. Defendant described to the jury a history of alleged problems with Mr. Sturges. He also described to the jury how he shot Mr. Sturges without thinking and without ever seeing any weapon. In reaching the lesser verdict of manslaughter, the jury chose to give less weight to Mr. Sturges’ testimony denying any involvement in an ongoing dispute with Defendant and as to how the shooting occurred.

Defendant argues that, because of alleged inconsistencies in Mr. Sturges’ testimony, the jury could not have reasonably found that he had the specific intent to kill or to cause great bodily harm when he fired. The fact that Mr. Sturges’ testimony may have had inconsistencies, | uhowever, does not support Defendant’s claim that the State failed to prove he had the specific intent to kill or cause great bodily harm when he shot Mr. Sturges. This court has repeatedly held that the discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or to inflict great bodily harm upon that person. State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020; State v. Johnson, 27,522 (La.App.2d Cir.12/6/95), 665 So.2d 1237. The jury could have easily inferred that Defendant, in shooting Mr. Sturges at very close range with a high-powered rifle, had the specific intent to kill him.

This assignment is without merit.

Assignment of Error Number Two: It was error to deny Defendant’s requested jury instruction pertaining to the State’s burden of proof in relation to the claim of self-defense.

Defendant argues” that the trial court erred in not shifting the burden of proving self-defense to the State. Specifically, he argues that the trial court erred by refusing to instruct the jury that the State had the burden of proving that his shooting of Mr. Sturges was not in self-defense. The trial court refused Defendant’s proposed jury instruction, noting that the cited law was applicable in homicide cases, not non-homicide cases. We find no error in the trial court’s action.

La. R.S. 14:19 provides:

The use. of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonably and 1 ^apparently necessary to prevent such offense, and that this article shall not apply when the force or violence result in a homicide.

Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La. App.2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir. 1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346. The state has the affirmative duty of proving beyond a reasonable doubt that a killing was not in self-defense. State v. Arnold, 30,282 (La.App.2d Cir.1/21/98), 706 So.2d 578.

Based on La. R.S. 14:19, supra, however, this court, along with other courts, has held that the burden of proof of self-defense in a non-homicide case rests upon the defendant, not the state. State v. Mason, 499 So.2d 551 (La.App. 2d Cir.1986). In Mason, this court based its ruling on the earlier case of State v. Freeman, 427 So.2d 1161 (La.1983), wherein the supreme court held:

... [i]n the non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; and subjective inquiry into whether the force used was apparently necessary ... The burden of persuasion in proving self-defense in a non-homicide situation pursuant to La. R.S. 14:19, which entails a subjective as well as an objective inquiry, could arguably, in fairness to the State, be upon the defendant, since a subjective inquiry is involved.

This court has most recently followed this ruling in State v. Robinson, 37,043 (La.App.2d Cir.5/14/03), 848 So.2d 642, where we also noted fithat the defendant’s burden of proving self-defense in a non-homicide case is by a preponderance of the evidence, not beyond a reasonable doubt.

We also note that not shifting the burden of proving self-defense to the defendant in non-homicide cases would result in an onerous burden on the State to disprove subjective influences on the defendant since it would only be the defendant who has these facts at his disposal to produce to the court. See State v. Rainey, 98-436 (La.App. 5th Cir.11/25/98), 722 So.2d 1097, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28.

The burden of meeting the objective inquiry as to whether the force used by the defendant was reasonable under the circumstances fails if it reasonably appears from the facts that the crime could have been prevented by any other available means, such as by a warning, by a show of force or by the use of any force short of the shooting of the victim. State ex rel. D.P.B., 02-1742 (La.5/20/03), 846 So.2d 753.

In the case sub judice, Defendant’s own version of the shooting fails to meet this initial objective inquiry, since Defendant clearly had several, non-violent options readily available. First, when being “beckoned” by a man with an alleged history of harassing him, Defendant could have merely driven away. Second, after stopping to talk, and finding Mr. Sturges to be threatening, Defendant could have easily driven off and contacted the police. Third, even if Defendant was justified in stopping his car and pointing his rifle at Mr. Sturges because of an alleged belief that Mr. Sturges held a weapon behind his back, Defendant could have waited until he was certain that Mr. Sturges was armed with a weapon before 1 -^shooting him. Defendant clearly had the advantage of already having his rifle pointed at Mr. Sturges and the advantage of being in a running vehicle that he could have driven away. This gave Defendant the option of warning Mr. Sturges not to act rashly. Had Mr. Sturges pulled out a stick or pocket knife or even a gun from behind his back, Defendant, sitting in his car and armed with a high-powered rifle, could still have driven away and sought the authorities to resolve the matter.

For these reasons, we conclude that the trial court was not in error to deny Defendant’s proposed instruction on self-defense. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Defendant’s, Terry Cheatham, conviction and sentence are affirmed.

AFFIRMED.

      .La. R.S. 14:30 A states, in pertinent part:
      A. First degree murder is the killing of a human being:
      (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, drive-by shooting, first degree robbery, simple robbery, or terrorism.
      (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve or sixty-five years of age or older.

      . The uncontradicted testimony of several witnesses at trial established that Mr. Sturges had a daily routine of buying a cup of coffee at Lisa's Kitchen and sitting in the parking lot of the nearby drive-thru Hibernia Bank to drink it before getting back in his truck and leaving.

      . Other evidence established that the rifle was a single shot and that only one shot was fired. The bullet caused both injuries.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. LaTerrance T. HILL, Appellant.
    No. 38,400-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Jerry Jones, District Attorney, R. Nicolas Anderson, Assistant District Attorney, for Appellee.
    Before BROWN, LOLLEY, and HARRISON (Pro Tempore), JJ.
   BROWN, C.J.

Defendant, LaTerrance T. Hill, charged with possession of phencyclidine (“PCP”), was found guilty by a jury of a lesser and responsive charge of attempted possession of PCP. He was sentenced-to two and one-half years at hard labor. Defendant has appealed his conviction and -sentence. We affirm defendant’s conviction, but set aside his sentence and remand for further proceedings.

Facts

The state’s case consisted of the testimony of Monroe Police Department Officers Dewayne Crowder, Joey Hawkins, and Jeffery Dowdy. Officer Crowder testified that he is part of a special neighborhood action program and that he works strictly in one area of town. On the afternoon of August 27, 2002, Officer Crowder was working traffic detail. Around 3:00 p.m. that afternoon, Officer Crowder was westbound on Thomas Street, which runs parallel to Bernstein Park, when he observed an eastbound vehicle without an inspection sticker, which is a violation of both state and city statutes. Officer Crowder turned his patrol car around and got behind the offending vehicle, a blue Chevrolet Caprice. There were no cars between the Caprice and the patrol car. Officer Crow-der saw a white or clear plastic bag being tossed out of the passenger side window of the Caprice in the 1300 block of Thomas Street.

At the time the bag was tossed, Officer Crowder was about 20 yards behind the blue Caprice, and there were no obstructions to his view. Officer Crowder called for assistance in locating the discarded package while he proceeded to stop the Caprice. Officers Hawkins and Dowdy responded, ^searched the area, and found a plastic bag containing a vial of what was suspected to be PCP in a ditch about eight to ten feet from the street.

Officer Crowder testified that the Caprice was occupied by Edgar Lewis, who was driving, and defendant, who was in the front passenger seat. The men were separated, and advised individually of their Miranda rights. When asked about the package tossed out of the car, each man implicated the other, and did so again once the discarded item was located and identified as a vial containing what the officers thought was PCP. Both occupants of the vehicle were arrested for possession of PCP. Officer Crowder testified that there were no pedestrians or any other vehicles in the area at the time the bag was tossed.

Officer Hawkins testified that while he and his partner, Officer Dowdy, were on patrol the afternoon of August 27, 2002, they responded to a call from. Officer Crowder requesting assistance. Pursuant to Officer Crowder’s request, Officers Hawkins and Dowdy searched the ditch running along the south side of the 1300 block of Thomas Street for what Officer Crowder described as a small white bag possibly containing an illegal substance. The officers- confined their search to the area depicted by - Officer Crowder and found a white bag containing a small vial, the contents of which they suspected to be PCP. Officer Hawkins testified that they radioed' Officer Crowder to inform him of their find. Officer Dowdy’s testimony was the same as that of Officer'Hawkins.

[¡¡Defendant did not present any evidence, choosing instead to cross-examine the state’s witnesses.

The jury returned the responsive verdict of attempted possession of PCP. Defendant was sentenced to two years at hard labor. Defendant filed a motion to reconsider sentence. In response, the state alleged that the sentence was illegally lenient. The trial court agreed with the state and resentenced defendant to two and one-half years at hard labor. This sentence was ordered to run consecutively to a previously probated sentence.

Defendant has appealed his conviction and sentence.

Discussion

Sufficiency of the Evidence

Defendant argues that the state did not prove guilty knowledge or negate a reasonable hypothesis that the drugs belonged to the driver of the car instead of him.

Due process requires a reviewing court to examine the evidence to determine if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992).

La. R.S. 40:966 makes it unlawful for any person to knowingly or intentionally possess certain controlled dangerous substances. POP is a controlled dangerous substance listed in R.S. 40:966. To support a |4conviction for possession or attempted possession, the state need not prove that the defendant was in physical possession of the drugs. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910; State v. Manning, 38,083 (La.App.2d Cir.03/12/04), 868 So.2d 283. The term possession is broad enough to encompass both actual and constructive possession. State v. Brisban, 00-3437 (La.02/26/02), 809 So.2d 923; State v. Blanchard, 99-3439 (La.01/18/01), 776 So.2d 1165; State v. Manning, supra.

“Actual possession” means having an object in one’s possession or on one’s person in such a way as to have direct physical contact with and control of the object. State v. Parfait, 02-348 (La. App. 5th Cir.10/16/02), 831 So.2d 360. Constructive possession may be found where the material is not in a person’s physical possession, but is under his dominion and control. State v. Toups, supra; State v. Manning, supra. A person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. State v. Toups, supra.

Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. A defendant’s guilty knowledge, as in any criminal case, must be inferred from the known facts according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Manning, supra; State v. Anderson, 36,969 (La.App.2d Cir.04/09/03), 842 So.2d 1222.

This was a daytime traffic stop. Although there was no testimony as to which occupant of the vehicle had the drugs in his control or where in the ^vehicle the contraband had been, there was uncontro-verted evidence that the drugs were thrown from the passenger side of the vehicle and that defendant was seated on that side of the car. Officer Crowder noted that the trajectory of the package being tossed out of the window was still rising, i.e. it had not yet reached its highest point, indicating to him that it was the passenger, not the driver, who made the throw. Officer Crowder further testified that the drugs were tossed out of the vehicle as soon as it was evident that the patrol car was turning around in pursuit, suggesting to him that the drugs were out in the open and readily accessible.

The evidence presented in this case, viewed in the light most favorable to the prosecution, was sufficient to convince a rational fact finder that the essential elements of the crime of possession of POP were proved beyond a reasonable doubt.

Sentence

Defendant was first sentenced to two years and then on reconsideration to two and one-half years, which the judge believed to be the statutory minimum.

The supreme court in State v. Callahan, 95-1331 (La.03/29/96), 671 So.2d 903, found that La. R.S. 14:27 did not provide a minimum sentence for attempt. Because La. R.S. 40:979 (providing for attempted possession) now reads the same as 14:27, we reluctantly must follow Callahan and conclude that the trial court was in error in finding that there was a minimum sentence of two and one-half years. See State v. Howard, 37,580 (La.App.2d Cir.09/24/03), 855 So.2d 881, on rehearing in part (La.Ap.2d Cir.10/23/03). Although both the original and subsequent sentences were within the sentence parameters for attempted possession of phency-clidine, we nonetheless will remand the matter for resentencing because of the mistaken belief that a statutory minimum term had to be given.

Conclusion

For the reasons set forth above, defendant’s conviction is affirmed, but his sentence is vacated and the matter is remanded for further proceedings consistent with this opinion.

      . Subsequent laboratory testing confirmed that the substance in the vial was in fact PCP.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Solomon MOORE, Appellant.
    No. 38,355-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Kenota P. Johnson, for Appellant.
    Jerry L. Jones, District Attorney, Geary Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   WILLIAMS, J.

The defendant, Solomon Moore, was charged by bill of information with conspiracy to commit armed robbery, a violation of LSA-R.S. 14:64 and 14:26, attempted armed robbery, a violation of LSA-R.S. 14:64 and 14:27 and attempted second degree murder, a violation of LSA-R.S. 14:30.1 and 14:27. After a jury trial, the defendant was found not guilty of the conspiracy to commit armed robbery charge. He was found guilty as charged of attempted armed robbery and guilty of the responsive verdict of aggravated battery, a violation of LSA-R.S. 14:34. The trial court sentenced the defendant to serve 45 years at hard labor for the attempted armed robbery conviction and 10 years at hard labor for the aggravated battery conviction. The sentences were ordered to be served consecutively. The defendant appeals his convictions and sentences. We affirm.

FACTS

At approximately 9:00 p.m. on January 17, 2002, the defendant, Solomon Moore, telephoned Torwinshell Jackson, his ex-girlfriend, to pick him up at Earl Har-grove’s home in West Monroe, Louisiana. Jackson was five and one-half months pregnant with the defendant’s child. Because Jackson’s mother did not approve of her dating the defendant, Jackson told her mother that she needed to borrow her van to return a video tape to a friend. Jackson used her mother’s burgundy van and drove to Earl Hargrove’s home, where she picked up the defendant and two of his friends, Danny Hargrove and Luther Warren. The defendant then instructed Jackson to drive to Willie Ethridge’s home to pick him up. When the group arrived at Ethridge’s house, the defendant got out of the van and Ethridge met with 13him in the carport. After the defendant and Eth-ridge spoke for a few minutes, Hargrove and Warren got out of the van and joined them in the carport. Shortly thereafter, all four men returned to Jackson’s van. The defendant was sitting in the front passenger seat of the van. The men asked Jackson to take them to the Economy Inn on DeSaird Street in Monroe. According to Jackson, Ethridge stated that they were going to rob or “jack” an individual whom he referred to as Poochy or Pookey.

When the group arrived at the Economy Inn, Ethridge got out of the van and knocked on the door. According to Jackson, Ethridge was supposed to determine whether Poochy or Pookey had any guns and money, however, no one answered the door. When Ethridge came back to the van, Jackson left the area and drove toward a set of apartments. Jackson testified that the defendant told her to stop the van because he recognized someone who owed him money. Jackson turned the van around in the driveway of the apartments and drove right behind a parked 1991 Caprice Classic. The victim, sixteen-year-old Michael Richard, was sitting in the driver’s seat of the parked car. Jackson drove behind the car so that Richard could not move his vehicle out of the parking space. According to the victim’s testimony at trial, he and two of his friends, Reginald Coleman and Marvin Perkins, had just entered the vehicle and were going to Mc-Donalds to get something to eat. He testified that he saw the defendant get out of the front passenger side of the van. The defendant placed the hood of his black jacket on his head, went to Richard’s vehicle and opened the driver’s side door. The defendant put a gun to Richard’s head and stated, “Break 13yourseIf.” Initially, Richard pushed the gun out of his face; however, when he felt the gun, he realized that it was real and began to panic. Richard turned to his friends sitting in the vehicle and told them that the gun was real. Defendant then stepped back, removed the hood from his head and fired three shots into the car. As Richard crawled toward the passenger side of the vehicle, he was shot in the upper thigh area. Pellets from the bullets were lodged in both of Richard’s thighs and could not be removed.

When she heard the gunshots, Jackson drove away in the van. However, Har-grove instructed her to stop so the defendant could get into the van. The defendant got into the van and the group drove back to West Monroe. According to Jackson, when the defendant returned to the van, he stated, “I got that n ... r, I don’t know if he was pulling his wallet or a gun.” Jackson testified that she also saw the defendant give the gun to Warren. The victim later identified the defendant from a photographic line-up as the perpetrator of the crimes.

DISCUSSION

By his first assignment of error, the defendant contends the evidence was insufficient to sustain his convictions. Specifically, he argues that the state failed to present sufficient evidence of his identity as the perpetrator of the crimes.

Although the record does not reflect that the defendant filed a motion [ 4for post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Clower, 30,745 (La.App.2d Cir.06/24/98), 715 So.2d 101. That standard, initially enunciated in Jackson and now legislatively embodied within LSA-C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Perry, 612 So.2d 986 (La.App. 2d Cir.1993).

It is always the function of the jury to assess the credibility of witnesses and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993). Where the trier of fact has made a rational determination, an appellate court should not disturb it. Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Clower, supra; State v. Thomas, supra; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

The determination of whether the requisite intent is present in a | r,criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Maxie, 30,877 (La.App.2d Cir.8/19/98), 719 So.2d 104; State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

Under Jackson v. Virginia, supra, the state bears the burden of negating any reasonable probability of misidentification in cases where the defendant asserts he was not the perpetrator or he remains silent. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, unit denied, 96-1807 (La.2/21/97), 688 So.2d 520. However, positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. James, 33,262 (La.App.2d Cir.3/10/00), 754 So.2d 429; State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (LaApp. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990).

In order to convict a defendant of attempted armed robbery, the state must prove that the defendant, having the specific intent to commit armed robbery, did or omitted 'an act for the purpose of and tending directly toward the taking of anything of value belonging to another, from the person of another or in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64 and 27; State v. Young, 27,237 (La.App.2d Cir.8/23/95), 660 So.2d 548.

In order to convict the defendant of aggravated battery, the state must prove that the defendant intentionally used force or violence upon the victim, that the force or violence was inflicted with a dangerous weapon and |r,that the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. McGee, 37,919 (La.App.2d Cir.12/10/03), 862 So.2d 452.

During the trial, the victim testified that it is understood “on the street” that the term “break yourself’ means to give up all of your money. Both Jackson and the victim placed the defendant at the scene of the crime and established that he actually shot the victim. Jackson testified that immediately after he entered the van the defendant stated that he had to shoot the victim. The victim knew the defendant by his nickname or alias, Bird. As stated previously, Jackson is the defendant’s ex-girlfriend.

Based on the testimony presented at trial, the evidence was sufficient to prove beyond a reasonable doubt that the defendant was the perpetrator of the attempted armed robbery and aggravated battery. There was no reasonable possibility of mis-identification in this case. This assignment of error lacks merit.

By the remaining five assignments of error, the defendant complains of the sentences imposed by the trial court. In challenging the sentences as excessive, the defendant argues that the record does not reflect the required articulation by the trial court for adherence to LSA-C.Cr.P. art. 894.1 and the trial court failed to give particular justification for the imposition of consecutive sentences for crimes arising out. of the same conduct. He also questions the trial court’s decision to impose the maximum sentence for each conviction.

The test imposed by the reviewing court in determining the Lexcessiveness of a sentence is two- ' pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

After a careful review of this record, we find that the trial court was very thorough during the sentencing hearing. The defendant’s argument that the trial court failed to follow Article 894.1 is without merit. The trial court specifically stated:

In its sentencing deliberations the court has specifically charged itself with the relevant provisions of article 894.1 of the Louisiana Code of Criminal Procedure and has reviewed the contents and revelations of the pre-sentence investigative report, the entire case file and all submissions on behalf of the defendant.

The trial court recited the facts of the case and weighed the defendant’s degree of involvement and any degree of cooperation with law enforcement and/or prosecution agencies. The trial court stated, “The court finds applicable article 894.1(A)(1)(2) and (3) and subsection (B)(1),(5),(6),(10),(18) and (19). The court’s review of all other relevant factors contained in article 894.1 showed there to be no mitigating factors present whatsoever.” 1 sThus, contrary to defendant’s assertions, we find that the trial court took cognizance of the criteria of Article 894.1 and articulated a factual basis for the sentences imposed.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280. In addition, the trial court retains the discretion to impose consecutive sentences in cases in which the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Green, 614 So.2d 758 (La.App.2d Cir.1993).

The trial court noted that consecutive sentences for offenses arising out of the same transaction are “reserved only for those most egregious of offenses and offenders.” In stating its reasons for requiring that the sentences be served consecutively, the court considered the defendant’s criminal history, the gravity and viciousness of the offenses committed, and the fact that the defendant is an unusual risk of danger to the public. Based on this record, we find that there was a factual basis for the imposition of consecutive sentences.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of 19proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). Here, the defendant is classified as a fourth felony offender. Several of his prior felony convictions were crimes against the person. He was out of jail on bond for two days when he committed the instant offenses and the offenses of kidnapping, armed robbery and attempted second degree murder against a pizza delivery person later in the same day. Considering the background of this defendant and his blatant disregard for human life, coupled with the facts of the instant case, the maximum sentences imposed by the trial court do not shock the sense of justice nor are the sentences the purposeless and needless infliction of pain and suffering. The sentences are not constitutionally excessive. The defendant’s assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . A short while after committing the instant offense, the defendant, Hargrove, Ethridge and Warren, kidnapped a female Johnny’s Pizza delivery driver, robbed her at gunpoint, shot her three times and left her for dead in a ditch in a rural part of West Monroe. The defendant was tried and convicted of attempted second degree murder, armed robbery and second degree kidnapping. This Court affirmed his convictions on appeal. State v. Moore, 37,935 (La.App.2d Cir. 1/28/04), 865 So.2d 227.


author: HARRISON, J. (Pro Tempore).

text:
    Samuel Lee ALBERT, Plaintiff-Appellant, v. TRANS MET, INC., Defendant-Appellee.
    No. 38,261-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Samuel Lee Albert, In Proper Person, Appellant.
    Troy A. Broussard, Lafayette, for Ap-pellee.
    Before STEWART, DREW and HARRISON (Pro Tempore), JJ.
   HARRISON, J. (Pro Tempore).

In this workers’ compensation case, plaintiff, Samuel Lee Albert, appeals a judgment from the- Office of Workers’ Compensation, District 1W granting a motion for summary judgment against him and in the favor of the defendant, Trans-Met, Inc., dismissing his claim for medical and disability benefits. For the following reasons, we affirm.

FACTS

The plaintiff was employed by Trans-Met, Inc. as a line-haul driver. His job entailed unloading freight containers from airplanes owned by Airborne Express at a hub in Shreveport, Louisiana. He put the containers onto a truck and delivered them to various destinations. At these destinations, he would unload his truck and pick up other loads. On May 2, 1996, plaintiff sustained an on-the-job injury in Alexandria, Louisiana, while loading his truck. When he reported his injury, plaintiff states that he mainly complained of pain and swelling in his right knee, but he said he also mentioned slight pain in his right shoulder. According to plaintiff, he was instructed to go to St. Francis Cabrini Hospital (“Cabrini”), in Alexandria. There he was diagnosed with a knee strain and given anti-inflammatory medication. He received continued treatment at Cabrini and it was determined that his knee injury was more than a simple strain. In August 1996, plaintiff chose to be treated at the Bone and Joint Clinic, where Dr. William Bundrick, an orthopaedic surgeon, was his treating physician. Plaintiff continued to perform his normal work duties until he underwent arthroscopic surgery on his right knee to repair tears on December 4, 1996. He received workers’ compensation benefits and ^continued medical benefits during his recovery period. Plaintiff states that he received physical therapy and work hardening therapy at Tri-State Physical Therapy (“Tri-State”). This treatment physically prepared him to return to work. During recovery from his knee surgery, plaintiff stated that he was referred by his physical therapist to Dr. Ken Wojcik, a chiropractor, in an effort to help alleviate some of his pain. The plaintiff returned to work without restrictions on April 16, 1997. Plaintiff stated that he still had shoulder complaints and was later examined by Dr. Warren Long, a neurologist. Dr. Long diagnosed him with shoulder spasms. An MRI on his right shoulder revealed micro-tears. On November 11, 1998, plaintiff underwent arthroscopic surgery on his right shoulder to repair the tears. He again received workers’ compensation benefits and continued medical benefits. He returned to physical therapy at Tri-State. Plaintiff resumed work in approximately January 1999 with a restriction that he drive only. The record shows that he continued to work in the same position with this restriction until June 2002. At that time, plaintiff was laid off with all the other line-haul drivers, because the company lost its contract with Airborne Express.

On July 24, 2002, plaintiff filed a Disputed Claim for Compensation form with the Office of Workers’ Compensation, District 1W. The defendant entered general denials and filed an exception of No Cause of Action. The exception was granted by the workers’ compensation judge (“WCJ”). Plaintiff then submitted an amended Disputed Claim of Compensation form on November 1, 2002. In his amended claim, plaintiff | Ralleged that he was denied proper medical treatment for his injuries. He alleged that he was denied supplemental or differential workers’ compensation payments from 1999 through June 2002. He further contended that he is unable to work in similar positions due to the injuries he sustained and requested workers’ compensation disability payments from June 2002 through the present.

On February 24, 2003 plaintiffs treating physician, Dr. William Bundrick, was deposed. In his deposition, Dr. Bundrick stated that when he initially examined plaintiff in August 1996, he complained of pain in his right knee and right shoulder. He stated that the first time plaintiff made complaints to him regarding his left shoulder was in March 1999. Dr. Bundrick said he was unable to make a causal link between plaintiffs left shoulder complaints and the original accident on May 2, 1996.

On May 22, 2003, the defendant filed a Motion for Summary Judgment. It asserted that the plaintiff has received medical benefits and workers’ compensation benefits for injuries to his right knee and right shoulder. The defendant contends that plaintiff is not entitled to the medical benefits he claimed for his left shoulder because it was unrelated to the May 2, 1996 accident. The defendant further asserted that plaintiff was not entitled to disability benefits. It claimed when the plaintiff returned to work, he was offered a work schedule that would allow him to earn 90% or,more of his pre-accident wages and he voluntarily elected to work fewer hours. On July 22, 2003 the Office of Workers’ Compensation granted ^¿defendant’s motion and dismissed plaintiffs claims with prejudice. He appeals this judgment.

DISCUSSION

On appeal, plaintiff asserts that the WCJ erred in granting the defendant’s Motion for Summary Judgment. He claims that the judge acted without considering all the facts and that key witness testimony that would have assisted him was excluded.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land and Development, Inc., 579 So.2d 1115 (La.App. 2d Cir.1991); Zadeck v. Arkansas Louisiana Gas Co., 338 So.2d 303 (La.App. 2d Cir. 1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). The motion should be granted if, and only if, the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Ouachita National Bank, supra. A fact is material if its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are “material” if they potentially insure or preclude | ¡^recovery, affect the litigants’ ultimate success, or determine the outcome of a legal dispute. Jones v. Estate of Santiago, supra.

A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Emilien v. U.R. Construction, 2002-0278 (La.App. 4th Cir.10/30/02), 832 So.2d 345; Qualls v. Stone Container Corporation, 29,794 (La. App.2d Cir.9/24/97), 699 So.2d 1137; Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992); Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991). Proof by a preponderance of evidence means that the fact or cause sought to be proved is more probable than not. James v. McHenry, 36,098 (La.App.2d Cir.9/18/02), 828 So.2d 94. He must establish a causal link between the work-related accident and his injury. Rhodes v. Terrebonne Parish Sheriff, 2001-2279 (La.App. 1st Cir.6/21/02), 822 So.2d 114; Qualls, supra. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Emilien, supra; Shelton v. Wall, 614 So.2d 828 (La.App. 2d Cir.1993); Williams v. Louisiana Coca-Cola Co., 94-810 (La.App. 5th Cir.3/1/95), 652 So.2d 108.

It is not in dispute that the plaintiff injured his right knee and right shoulder while in the scope of his employment on May 2, 1996. It is also not in dispute that the plaintiff received both workers’ compensation and medical benefits for these injuries. The dispute is whether or not plaintiffs left shoulder injury is related to the May 2,1996 accident.

|fiThe records do show that plaintiff complained of left shoulder problems during his work hardening therapy in 1997. However, this was approximately 10 months post-accident. We also note that plaintiff did not complain to Dr. Bundrick about left shoulder pain until March 1999, almost three years post-accident. In order to meet the preponderance burden, the evidence must show sudden objective findings of an injury, rather than mere manifestation of a gradual deterioration or progressive degeneration. Qualls, supra; Jones v. AT & T, 28,059 (La.App.2d Cir.2/28/99), 669 So.2d 696. The record does not show plaintiff had any immediate complaints of left shoulder pain after the May 2,1996 accident.

The defendant relies on plaintiffs treating physician regarding whether his left shoulder injury was caused by the accident. During Dr. Bundrick’s deposition, he was asked:

Q. Okay. Would it be safe to say, Dr. Bundrick, that in your medical opinion the left shoulder injury, though perhaps related to some type of overuse syndrome, is probably not related to his original accident of May 2,1996?
A. By history you’d have to say that, you know, because we can’t definitely peg it to — to one of — that original injury.

Furthermore, when speaking about the causal link between plaintiffs left shoulder injury and the May 2, 1996 accident, Dr. Bundrick stated, “Well, on that you couldn’t definitely go back to the original injury because we didn’t have a history of it ...”

The plaintiff did not offer any medical opinion to support his claim that his left shoulder injury was caused by the May 2, 1996 accident. Also, during his deposition, he admitted that he is unsure if his left shoulder injury |7occurred during the May 2, 1996 accident. When asked how he believed his left shoulder injury occurred, he stated that it could have occurred during the initial accident, during work hardening therapy, or when he returned to work after his knee surgery. The WCJ reviewed the record, along with supporting exhibits submitted by plaintiff and found summary judgment proper on this claim. We agree.

The plaintiff also claimed disability benefits, including supplemental earnings benefits (“SEB”) and temporary total disability benefits (“TTD”). An employee is entitled to receive TTD benefits only if he proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/9/98), 722 So.2d 358; Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657; Johnson v. Temple-Inland, 95-948 (La.App. 3rd Cir.1/31/96), 670 So.2d 388. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than is nonexistence. Nelson v. City of Grambling, supra; Knotts v. Snelling Temporaries, supra; Johnson v. Temple-Inland, supra.

Since the 1989 amendment to 23:1221(l)(d), maximum medical improvement alone has not been the standard for the termination or eligibility of TTD benefits. Rather, an employee is ineligible for TTD benefits when his physical condition has resolved itself to the point that a “reasonably reliable determination of extent of disability” may be made and 1 ¿‘continued, regular treatment by a physician is not required,” or six months after the injury, whichever occurs first. Mitchell v. AT & T, 27,290 (La.App.2d Cir.8/28/95), 660 So.2d 204. However, upon reaching maximum medical improvement (“MMI”), an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB. Nelson v. City of Grambling, supra; Foster v. Liberty Rice Mill, 96-438 (La.App. 3rd Cir.12/11/96), 690 So.2d 792.

To qualify for SEB, a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. LSA-R.S. 23:1221(3)(a); Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The purpose of SEB is to compensate the injured employee for the wage-earning capacity he 'has lost as a result of his accident. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra.

Under LSA-R.S. 23:1221(3)(a), an employer may preclude SEB by establishing that the employee is physically able to perform a certain job and that the job was offered to the employee, or that the job was available to the employee, in his or the employer’s community or reasonable geographic region. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra. Once the employer demonstrates the employee is capable of work, and appropriate work is available, then the claimant must prove by clear and convincing evidence, unaided by a | presumption of disability, that he is unable to perform the employment offered.

The defendant contends that plaintiff is not entitled to disability benefits. The record shows that on October 30, 2000 plaintiff underwent an examination to determine if he was able to perform the essential functions of his job without accommodation. He passed the examination. Furthermore, plaintiff saw Dr. Bundrick on April 15, 2003 and the doctor noted that plaintiff had reached MMI on his right shoulder. Dr. Bundrick suggested that a disability rating was needed, however, such rating is not in the record.

Plaintiff stated that when he returned to work after his knee surgery, the schedule for the line-haul drivers was changed. In order to receive the same number of work hours he received prior to his accident, plaintiff would have to work on Saturdays. This schedule change was applicable to all line-haul drivers. The defendant asserts that plaintiff refused to work on Saturdays and thus voluntarily reduced his income and is therefore not entitled to SEB. The plaintiff has failed to submit any documentation to oppose defendant’s position that his reduction in wage earnings was voluntary. In addition, in his deposition plaintiff stated that he did not want to work on Saturdays and would do so only when it was mandatory. Plaintiffs decision not to work on Saturdays to maintain his pre-injury wages was a preference, not due to his injuries. Defendant asserts plaintiff is not entitled to TTD because his loss of income was a result of a lay-off, not a disability. Plaintiff said after he returned to work from his knee [^surgery in April 1997, he worked until approximately November 1998 when he took off to have surgery on his right shoulder. He returned to work approximately in January 1999 with restrictions that he drive only. He worked his same position with restrictions from January 1999 until defendant lost its contract with Airborne Express in June 2002. At that time, plaintiff and all of the other line-haul drivers were laid off.

Plaintiff stated that he is unable to perform the duties he performed when employed by the defendant without restrictions. However, he did not present any medical evidence to support this contention, nor did he present any evidence to show that he cannot engage in any other type of employment.

Based on the record, we find that plaintiff failed to submit any evidence which created a genuine issue of material fact regarding his claim for disability benefits. Summary judgment was proper on plaintiffs claims. The WCJ’s findings are supported by the record.

CONCLUSION

Accordingly, the Office of Workers’ Compensation ruling granting summary judgment in favor of the defendant and against the plaintiff is affirmed.

AFFIRMED.


author: LOLLEY, J.

text:
    WALTER BANKS, Plaintiff-Appellant, v. The BLOCKER COMPANY, Defendant-Appellee.
    No. 38,607-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Brittain & Sylvester by Russell Sylvester, Natchitoches, for Appellant.
    Weiner, Weiss & Madison by Larry Feldman, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

After a fall at work, Walter Banks (“Banks”) sought workers’ compensation benefits, penalties and attorney fees. The Office of Workers’ Compensation, District 1W (the “OWC”), the Hon. Larry Butler presiding, denied his claim, and Banks now appeals. For the following reasons, we affirm.

Facts

Banks, a laborer in Homer, Louisiana, has worked for various employers around Homer in the wood products and petroleum industries. In September 2002, Banks went to work for the Blocker Company (“Blocker”), in a job which he described as “labor, toting cement and stuff like that. What they needed.” Banks was hired for Blocker by J.T. Grieder (“Grieder”), Banks’ cousin and supervisor on the job. On October 24, 2002, Banks, who was 44 years old at the time, was working for Blocker on the roof of a church in Bossier City when he tripped and fell. Banks fell backwards but did not fall off of the roof. On January 27, 2003, Banks filed a Disputed Claim for Compensation with the OWC in connection with that accident, and the matter proceeded to trial on September 2, 2003.

At the trial, Banks testified that as a result of the workplace accident, he suffered an injury and was disabled. However, Grieder, who was standing next to Banks at the time and saw the accident happen, testified that Banks said that he was not hurt and declined to be taken to the doctor, saying “I’m all right.”

Banks worked the rest of the day on the job but never returned to work for Blocker after that day, claiming that he became more sore later on |athe day of the accident. He also described that he obtained a pain pill from another employee, took another pain pill that night, and continued self-medicating with his wife’s prescription pain medications. Banks said that the next day, he saw Grieder at a store and told him that he had not returned to work because he had injured himself. Grieder denied that this happened.

On October 28, 2002, Banks went to the emergency room at Homer Hospital complaining of pain in his back and both shoulders, which he attributed to his fall at work. An x-ray of his back revealed “Mild lumbar spondylosis. No acute abnormality.” The emergency room report noted back spasms in the cervical and lumbar areas. The emergency-room physician diagnosed Banks with “(1) lumbar strain (2) myoligamentous pain (3) shoulders,” and prescribed medication. Banks was told -to seek further attention if he did not improve.

Banks testified that he called Blocker after the emergency room visit and got the company to pay for the prescriptions, and he claimed the Blocker representative told him to call back for approval of further treatment. He testified that he subsequently made an appointment with a physician but that he never heard from Blocker about authorizing this appointment.

Banks saw Dr. Larry C. Croxton, a chiropractor, on November 7, 2002, with continuing complaints of back and shoulder pain and an additional complaint of leg pain. Including that visit, Dr. Croxton treated Banks nine times during approximately the next month. Dr. Croxton’s notes [ .^indicate that Banks received some temporary relief from his complaints of pain from the treatment. However, on December 5, 2002, Dr. Croxton wrote a “to whom it may concern” letter for Banks, stating that he should be excused from work due to a work-related injury. On December 12, 2002, the doctor suggested further evaluation of Banks’ condition. Banks claims that he was unable to get Blocker to authorize any further treatment.

At the time of the trial, Banks said that he continued to have pain in his back and in his legs, and he would not be able to return to work with the pain. His wife, Casandra Banks, testified that he never complained of any type of back problems prior to the accident.

After hearing the testimony and considering the other evidence, the OWC rejected Banks’ claim for compensation. Although the court found that Banks did suffer a fall at work, the court concluded that Banks had not suffered a compensa-ble injury. A judgment was entered dismissing Banks’ claims, and he now appeals.

Discussion

In Banks’ first assignment of error, he argues that the trial court erred in failing to find that he was disabled as a result of his on-the-job injury. Specifically, Banks claims that his disability was established by his and his wife’s testimony, as well as the objective medical evidence presented at trial.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal | connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Thompson v. Dillard’s Dept. Store, 32, 974 (La.App.2d Cir.05/10/00), 759 So.2d 1074.

The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared and sufficient medical evidence exists to show a reasonable possibility of a causal connection between the accident and the disabling condition. Harris v. Casino Magic, 38,137 (La.App.2d Cir.01/28/04), 865 So.2d 301, writ denied, 2004-0502 (La.04/08/04), 870 So.2d 275. However, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Id. When the claimant proves that he had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a pre-exist-ing infirmity to produce his disability. Id.

| sWhether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Coushatta Indus. Sand, Inc., 31,977 (La.App.2d Cir.06/16/99), 741 So.2d 143. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag & Supply Co., 1997-1225 (La.03/04/98), 708 So.2d 375. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. “Thus, ‘if the [factfin-der’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Id., citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551.

In this case, although the trial court recognized that Banks had an on-the-job accident, the trial court rejected Banks’ claim of disability due to his accident based upon Banks’ prior history and the inconsistencies in Banks’ testimony. The court’s conclusion was based almost entirely on its impression of Banks’ credibility as a witness. The court observed numerous instances in Banks’ testimony where “he had not exactly told the truth.” The court cited, among other things, inconsistencies in Banks’ testimony | (¡about prior complaints of pain and even that he was Grieder’s cousin. The court concluded:

The medical records reflect either of two possibilities with Mr. Banks. First, he has back problems that necessitate treatment and has had those problems since at least 1996. These problems are no worse today than they were the day before the October 24, 2002 fall. The fall at issue here has neither caused nor exacerbated these problems.
The second possibility is that Mr. Banks has learned through 12 years of experience how to say the right things to doctors to have them diagnose him with these problems. Neither of these scenarios would entitle Mr. Banks to any further compensation benefits.
As a trier of fact given the numerous misstatements of facts by Mr. Banks as pointed out by counsel for the defendant and those I have discovered upon my own review, the testimony of the depositions, statements and records, I find the second scenario more likely than not correct.

This decision was well within the discretion of the trial court given the evidence presented.

As noted by the trial court, Banks had a long history of accidents followed by extended periods of unemployment and subsequent financial settlements. Additionally, his history of accidents resulted in a long history of back problems essentially identical to his complaints that he relates to the instant incident. Most recently pri- or to his fall at work, Banks had been in a car accident on January 11, 2002, and reported complaints of neck, back and leg pain. An emergency room report from the next day reflects that Banks had a second car accident on the same day as the first, where he hit his head on the dashboard. However, Banks denied that there had been a second car accident but said that he had been injured a second time that same day when he hit his head after falling off the top of his car. He was off work for a 17period of time as a result of the car accident. He was treated by a physician for approximately six weeks and released for work in March 2002. Banks ultimately received a monetary settlement for the claim on the car accident.

In an earlier incident in 2001, Banks was injured when a porch roof fell onto his shoulder, for which he complained of right shoulder and neck pain. Banks was off work for an unspecified period after this incident and, again, received a monetary settlement.

Prior to that in 1999, during a period of incarceration, Banks fell off of a top bunk bed and complained of severe pain in his left shoulder and lower back as well as numbness in his left upper leg. In a separate incident that same year, Banks was hit in the head with a pool stick and “had something fall on him.” In connection with that incident, he had complaints of headache and lower back pain.

In September 1995, Banks slipped and fell at his girlfriend’s house. An x-ray-revealed that he had a “normal lumbar spine,” although he complained of pain in his back and his right leg, and he was off work until at least February 1996. At that time, his orthopedist recommended surgery for what was believed to be a herniated lumbar disk, but this surgery was evidently never performed. He had continued complaints of back pain through December 1996. Again, Banks eventually settled a claim for this incident.

Finally, in October 1991 Banks was off work for at least a year and obtained extensive medical treatment after a log fell on him while cutting timber. In connection with that incident, he again complained primarily of |sback and leg pain. Medical records from March 1992 reflect the opinion of the physician that, “[ajside from the patient’s subjective complaints his objective findings are minimal.” Banks’ complaints of back and left leg pain persisted, and he was off work, until at least October 1992. A functional capacity evaluation conducted in June 1992 reflects the opinion of the examiner that Banks was magnifying his symptoms based on the results of the objective tests. After a steroid injection in November 1992, Banks reported in January 1993 that his back pain “comes and goes.” He ultimately settled this claim with his employer.

Other evidence as well supports the trial court’s conclusion that Banks had not suffered any disability as a result of his workplace accident. Grieder reported that Banks claimed to be uninjured immediately after the fall and did not thereafter make any complaint of pain during their numerous fishing trips together. Indeed, Grieder said that he and Banks were regular fishing partners, that they had been fishing “every other day like” since the accident and that Banks had never discussed any injury with him despite long periods of both standing and sitting. Finally, and perhaps most importantly, there was no objective finding of an acute injury to Banks’ back in an x-ray taken on October 28, 2002.

Given the totality of the evidence, the trial court was not manifestly erroneous in concluding that Banks failed to prove that he suffered a disability as a result of his fall. The record supports the trial court’s conclusion that Banks suffered no new injury as a result of his accident on the Blocker worksite. Additionally, as a result of our findings herein, the |flremainder of Banks’ assignments of error are rendered moot. Accordingly, the decision of the OWC is affirmed. Costs of this appeal are assessed to Banks.

AFFIRMED.


author: MOORE, J.

text:
    Earl P. WIMBERLY, Plaintiff-Appellee, v. Johnnie CLARK and Allstate Insurance Co., Defendant-Appellants.
    No. 38,583-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Law Offices of Harold G. Toscano, Baton Rouge by S. Curtis Mitchell, for Appellants.
    Davis Law Office, LLC by S.P. Davis, Sr., Shreveport, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

The defendants, Mrs. Johnnie Clark and Allstate Insurance Company, appeal a Shreveport City Court judgment in favor of Rev. Earl P. Wimberly for damages arising out of an auto accident. For the reasons expressed, we reverse and render.

On the afternoon of April 2, 2001, Rev. Wimberly, an elderly pastor, was driving his Ford Taurus south on St. Vincent Avenue near 79th and 80th Streets. According to Rev. Wimberly, Mrs. Clark’s Pontiac Catalina came off 80th St., made a wide right turn onto St. Vincent, crossed the center line and struck his Taurus in the southbound lane. He also testified two men were in the Catalina’s front seat; the driver, a short, dark-skinned man, fled on foot before the police arrived, while Mrs. Clark, the owner of the car, stayed in the back seat. This account was largely corroborated by an eyewitness, Kenneth Ferris, who was two streets away, removing his pants leg from his bicycle chain when the accident happened.

Mrs. Clark testified that she and her husband, John Clark, were going north on St. Vincent; John was driving, she was in the front passenger seat, and there was nobody else in the car. She testified that the Taurus crossed the center line and struck them in the northbound lane. Mrs. Clark’s account was corroborated by Officer Farquhar, who testified that accident debris was lying in the northbound lane. The officer also testified that both Mrs. Clark and her husband were sitting in the front seat of the Catalina when he arrived on the scene.

Rev. Wimberly filed suit in city court against Mrs. Clark and Allstate, alleging that she “had an existing valid outstanding automobile insurance |2policy of liability issued by defendant insurer Allstate.” An attached request for production of documents sought “a certified copy of all liability policies * * * covering the vehicle driven by the defendant.” Allstate’s answer admitted that it “issued a policy of insurance, wherein the named insured appeared as Johnnie Clark; said policy is a written document and as such, is the best evidence of what it purports to contain, and that accordingly, the entire contents of the policy are pled herein as if copied in extenso.” Allstate’s response (if any) to the request for production is not in the record.

The case was tried in September 2003. Rev. Wimberly never offered a copy of the Allstate policy into evidence, and there was no stipulation as to coverage. In addition to the facts noted above, Rev. Wimberly testified that the two men in the front seat of the Catalina got out of the car and kicked debris into the southbound lane, a depiction denied by Mrs. Clark. Neither Rev. Wimberly nor his witness, Kenneth Ferris, identified the driver of the Catalina, but both were certain that he fled the scene before police arrived.

In an oral ruling, the court accepted Rev. Wimberly’s account of the accident: there were three people in Mrs. Clark’s car; an unnamed person was driving it with her permission, and he negligently drove it into Rev. Wimberly’s car; parties in Mrs. Clark’s vehicle moved the debris after the accident. The court further found, “Allstate who is the insured of Mr. Clark is definitely liable for this accident.” The court found that Rev. Wimberly sustained soft-tissue injuries that caused discomfort for two to three months. It awarded general damages of $5,000 and medical expenses of $766.79. In ^response to counsel’s inquiry, the court specified that both defendants, Mrs. Clark and Allstate, should be cast in judgment.

Mrs. Clark and Allstate have appealed suspensively, raising five assignments of error. We find merit in the first two assignments.

By their first assignment, the appellants urge the court committed legal error by rendering judgment against Mrs. Clark when the evidence clearly showed she was not the driver of the vehicle. They correctly point out that every single witness identified somebody else — either John Clark or the unnamed man — as the driver.

The owner of a vehicle is not usually liable for damages occurring when another is operating the vehicle. Oaks v. Dupuy, 32,070 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, writ not cons., 99-2729 (La.11/24/99), 750 So.2d 993; Jones v. Western Preferred Cas. Co., 633 So.2d 667 (La.App. 1 Cir.1993), writ denied, 635 So.2d 1123 (1994). Exceptions to this rule occur when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Id. Rev. Wimberly offered no proof that the unnamed driver was Mrs. Clark’s agent or employee or that he was incompetent to drive. Mrs. Clark testified that before the accident, she and her husband had paid her insurance premium, but there was no evidence that they were still on that mission, or any mission for her, when the accident occurred. In short, the general rule applies, and the evidence does not support any of the exceptions. On this record, the city court was plainly wrong to find Mrs. Clark liable for the ^accident.

Rev. Wimberly further argues that whoever was driving the Catalina, it was with Mrs. Clark’s express or implied consent, thus making him a “permissive user.” In support he cites Norton v. Lewis, 623 So.2d 874 (La.1993), and Wells v. Kemper Casualty Ins., 35,304 (La.App. 2 Cir. 12/18/01), 803 So.2d 450, writ denied, 2002-0271 (La.3/28/02), 812 So.2d 634. These cases hold that a permissive user will obligate the owner’s liability insurer under the standard omnibus clause. They do not hold that the owner is personally liable for torts of the permissive user. That would require proof of an exception outlined in Oaks v. Dupuy, supra. As there was no such proof, Mrs. Clark cannot be liable for this accident.

By their second assignment, the appellants urge the court erred in entering judgment against Allstate when no policy was entered into evidence and there was no proof of coverage. They contend that a plaintiff suing on an insurance policy has the burden of establishing both the existence of the policy and its terms and provisions. Barber v. Best, 394 So.2d 779 (La. App. 4 Cir.1981); Richmond v. USAA Casualty Ins. Co., 2003-0708 (La.App. 4 Cir. 11/5/03), 860 So.2d 1170.

In Richmond, supra, the plaintiff alleged that USAA was the insurer of the named defendant; USAA admitted there was a policy in effect, but that the policy itself was the best evidence of its contents. At the start of trial, USAA stipulated that it issued a policy in favor of the named insured. However, the plaintiff identified someone other than the named insured as the driver of the car that rear-ended him. The plaintiff never offered a copy |sof any USAA policy showing that the person driving the car was an insured or subject to an omnibus clause. The city court rendered judgment against USAA on the basis of permissive use. The court of appeal, however, found that the plaintiff failed to prove the existence of a policy, and its terms and conditions, that would make it liable for the driver’s tort. The court therefore reversed the judgment against USAA.

The instant case is similar, except Rev. Wimberly’s showing was even weaker. By answer, Allstate admitted it issued “a policy of insurance, wherein the named insured appeared as Johnnie Clark,” but this ambiguous response does not even specify that it was an automobile liability policy. Although Rev. Wimberly requested a copy of the policy through discovery, there is no evidence that he pressed the matter by motion to compel or by subpoena duces tecum. Most importantly, Allstate did not stipulate any coverage at trial, thus making it incumbent on Rev. Wimberly to offer some evidence of coverage. None was ever produced. As in Richmond, supra, the evidence simply does not support a finding that Allstate issued coverage for this accident. The judgment is plainly wrong and must be reversed.

Because the judgment is reversed as to both named defendants, we pretermit any consideration of the other assignments of error, regarding causation, an evidentiary matter and damages. The judgment of the city court is reversed and judgment is hereby rendered in favor of the defendants, Johnnie Clark and Allstate Insurance Company, rejecting the demands of Rev. Wimberly at his costs.

REVERSED AND RENDERED.