author: | ^MCDONALD, J.

text:
    STATE of Louisiana v. Freddie Joe LOSTON.
    No. 2003 KA 0977.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      J. Phil Haney, District Attorney, Franklin, Counsel for Plaintiff/Appellee State of Louisiana.
    Jennifer Pate, Baton Rouge, Counsel for Defendant/Appellant Freddie Joe Loston.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | ^MCDONALD, J.

Freddie Joe Loston was charged by grand jury indictment with manslaughter in violation of La. R.S. 14:31. He pled not guilty. Following a jury trial, defendant was found guilty as charged and sentenced to eighteen years imprisonment at hard labor. Thereafter, defendant was charged and adjudicated as a second felony offender, pursuant to the provisions of La. R.S. 15:529.1. After his adjudication as a second felony offender, the previous sentence was vacated and defendant was sentenced to forty years imprisonment at hard labor.

On appeal, defendant asserts five assignments of error as a basis for reversal of his conviction and sentence, as follows:

1. The evidence presented was insufficient to establish beyond a reasonable doubt that the killing at issue was not committed in self-defense.
2. The trial court erred in failing to allow the defendant to introduce specific instances of violent conduct on the part of the victim.
3. The trial court erred in overruling defendant’s objection when the prosecutor impermissibly referred to defendant’s failure to take the stand.
4. The trial court erred in denying defendant’s motion to reconsider sentence.
5. The sentence imposed was excessive.

After a thorough review of the record and the errors assigned, we affirm defendant’s conviction, as well as his habitual offender adjudication and sentence.

laFACTS

On January 13, 2001, Edward Lewis, Jr., and the defendant, Freddie Loston, had a verbal dispute at a local establishment known as Johnny Bo’s in Four Corners, Louisiana. There is no indication that this “beef’ went any further than a verbal exchange. Berva Colar testified that the defendant requested a ride and Edward approached their car asking the defendant to give him “that man’s damned money.” Edward did not threaten the defendant and defendant gave him some money before they drove away. Edward and his brother, Gregory Lewis, left Johnny Bo’s on them bicycles and went home. Shortly thereafter, Edward told Gregory that he knew where to find the defendant and that he had a “beef’ with the defendant.

Between 8:00 and 9:00 p.m. that night, Edward and Gregory rode their bicycles to the residence of Gerald Colar at 186 Jones Road in Four Corners, where they expected to find the defendant. Edward was unarmed and a bit ahead of Gregory on the road. By the time Gregory arrived, Edward had already entered the Colar residence and was exiting, followed by the defendant and several others. Gregory observed them walking toward the road. “They started arguing. Then they started fighting.” Gregory did not see the start of the tussle, because he noticed that one of the women who had come outside, known to him as “Nici,” had a knife in her hand. Gregory protested to Nici that this was just a fight and that there was no need for a knife. Eventually, Gregory saw that his brother was on top of the defendant, choking him. He pulled his brother off of the defendant, and he and Edward left on their bikes for home. The defendant left the scene walking in the other direction. On the way home, Edward fell off of his bike and collapsed in the roadway.

LGregory did not see the defendant stab his brother and did not know that Edward had been wounded. Gregory went for help, asking a neighbor to watch over his brother until he returned. The neighbor, concerned, enlisted the help of two other men to bring the victim home, where he was placed on a sofa. Edward tossed and turned and was unresponsive. Eventually, Gregory noticed blood and took off some of his brother’s clothing, discovering blood on his chest. Edward’s heavy overcoat and warm winter clothing had absorbed the blood and disguised the fact that he was mortally wounded. The family called 911 for assistance. An ambulance arrived to take Edward to the hospital, where he was pronounced dead as a result of a stab wound that had nicked his heart and a major blood vessel.

Detective Robert Smith, of the St. Mary Parish Sheriffs Department, was dispatched to the Colar residence that night to investigate. He found a blue knit cap in the yard near scuffmarks in the mud and grass that was the apparent location of a scuffle. About ten feet away, closer to the residence, he found a steak knife. Defendant stipulated that this knife had the victim’s blood on it. An autopsy demonstrated that the fatal wound came from a single edged knife, like the kitchen knife found by officers at the scene of the homicide. Small cuts on the victim’s inner and outer layers of clothing corresponded to the knife’s entry points. The autopsy further revealed that the victim had a blood alcohol level in excess of .2 and had illegal controlled substances, including cocaine, in his bloodstream.

| A- number of persons visiting at the Colar residence that evening witnessed some or all of the surrounding events. Forest Lockett testified that Edward came to the door, was admitted, and asked defendant to give him his “packet.” Defendant replied that he had already given it to him at the store. Nici told the men to take their dispute outside and they did so. Lockett did not see either of them with a weapon. Willie Gabriel testified that between 8:00 and 9:00 p.m. he was watching TV at the Colar residence. Edward arrived and argued with the defendant about something. They were told to take it outside. Denise Archangel (“Nici”) likewise recalled the victim arriving and arguing with the defendant. She ordered the men out of the house, telling them that “they wasn’t going to start no fight” at her mother’s house. She followed them outside but saw no weapons. Berva Colar also remembered Edward arriving and fussing with the defendant about money. Edward was hollering and using profanities. After Nici told them to go outside, Berva saw Edward exit first. Before following Edward outside, the defendant picked up a knife from the table. Berva identified the steak knife found outside by the police as the one the defendant armed himself with right before he followed Edward outside. Gerald Colar, who was sleeping when Edward arrived, was awakened by Berva. He got up, went outside, and saw the two men on the ground fighting, with Edward on top, holding the defendant down. Gerald testified that Edward was holding defendant’s arms pinned to the ground to keep the defendant from hitting him. He did not see either man with a weapon at that time. Then he observed Gregory pull Edward off of the defendant.

Later that same evening, Theresa Wagner, the defendant’s cousin, informed the defendant that Edward had died. He admitted that he had stabbed Edward, but protested that he did not believe he had wounded him Lbadly enough to cause his death. He telephoned police and surrendered to them. There is no indication that defendant sustained any injuries during the fight with the victim.

Defendant did not present any witnesses or evidence at trial. Through cross-examination, however, defense counsel attempted to show that Edward had a reputation for fighting, and that the defendant acted to defend himself against Edward, who was drunk and on drugs. Berva Colar testified that the victim was drunk that night and that he was known for fighting, although not frequently. Gregory likewise admitted that his brother, Edward, was hard headed and had been in fights in the past. He also acknowledged that they had been drinking that day. Forest Lockett, however, testified that the victim appeared angry, but did not appear to be drunk or on drugs.

After a jury trial, defendant was found guilty of manslaughter by a unanimous vote of the jurors.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the evidence presented by the State was insufficient to prove the essential elements of manslaughter. Specifically, he argues the State did not disprove beyond a reasonable doubt his claim that he acted in self-defense. We disagree.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, assuming every fact to be proved that the evidence tends to prove, every reasonable hypothesis of innocence is 17excluded. La. R.S. 15:438; State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 and 00-0895 (La.11/17/00), 773 So.2d 732. When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

In this case, the defendant was found guilty of manslaughter. La. R.S. 14:31 defines manslaughter in pertinent part as follows:

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
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person ....

Defendant does not deny that he stabbed the victim, inflicting the fatal wound, while the two were engaged in an argument that led to a physical Isconfrontation. Thus, we are satisfied that there was sufficient evidence to establish all of the elements of manslaughter as described in La. R.S. 14:31 A(l). Moreover, it is apparent that at the time, defendant was in the course of committing, at the very least, an aggravated battery, a felony not enumerated in Article 30 or 30.1. Louisiana Revised Statute 14:33 defines battery to include the intentional use of force or violence upon the person of another. Louisiana Revised Statute 14:34 defines aggravated battery as a battery committed with a dangerous weapon. Alternatively, defendant was in the course of committing an aggravated assault, an intentional misdemeanor directly affecting the person. Assault is an attempt to commit a battery. La. R.S. 14:36. Aggravated assault is the attempt to commit a battery while armed with a dangerous weapon. La. R.S. 14:37 A. Thus, defendant’s conduct also constituted manslaughter pursuant to La. R.S. 14:31 A(2)(a). See State v. Montgomery, 499 So.2d 709, 719 (La.App. 3rd Cir.1986), writ denied, 502 So.2d 106 (La.1987). Where, as here, there is evidence that defendant had specific intent to commit a felony or an intentional misdemeanor not enumerated in Article 30 or 30.1, and a death results in the course of commission of the offense, the evidence is sufficient to support a manslaughter conviction, even if the mortal injury inflicted was accidental. See State v. Jordan, 00-282, pp. 14-15 (La.App. 5th Cir.10/18/00), 774 So.2d 267, 275, writ denied, 00-3329 (La.11/9/01), 801 So.2d 363; State v. Clark, 97-0359, p. 8 (La.App. 4th Cir.10/7/98), 720 So.2d 134, 138, writ denied, 99-0330 (La.6/18/99), 745 So.2d 617; State v. Major, 96-1214, p. 9 (La.App. 4th Cir.3/4/98), 708 So.2d 813, 818-819, writ denied, 98-2171 (La.1/15/99), 735 So.2d 647. Thus, we are satisfied that there was sufficient evidence to support defendant’s conviction for | Smanslaughter, unless the homicide was justifiable because committed in self-defense.

The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. Louisiana Revised Statute 14:20 provides, in pertinent part:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

However, if a person acts as the aggressor and provokes the situation which ultimately places him in danger, he or she may, under certain circumstances, be precluded from claiming the right to self-defense. Louisiana Revised Statute 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

When a defendant claims self-defense in a homicide case, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Rosiere, 488 So.2d 965, 968 (La.1986). Thus, the precise issue presented for our review is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved beyond a reasonable doubt that the defendant did not act in self-defense.

In this case, the defendant armed himself with a knife before leaving the Colar residence, in obvious anticipation of some kind of confrontation with the victim. No physical confrontation occurred inside the residence and |inthere is no evidence that the defendant was in imminent danger when he armed himself and went outside. Numerous witnesses testified to what went on inside and outside of the Colar residence. No one testified that the victim threatened the defendant with death or great bodily harm. Once outside, the defendant did not try to withdraw from the confrontation. Although there is no unqualified duty to retreat, the possibility of escape is a recognized factor in determining whether or not the defendant had a reasonable belief that deadly force was necessary to avoid danger. State v. Howard, 443 So.2d 632, 638 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 1215 (La.1984). Nor did the defendant at any point cry out for assistance, although there were numerous others outside observing the fight.

The physical evidence found at the scene consisted of a kitchen knife, the victim’s cap, and an area of scuffed grass and mud. The knife bearing the victim’s blood was found at least ten feet away from the area where the major part of the fight and its conclusion apparently occurred. The reasonable inferences from the evidence showed that the victim may have been stabbed at one location and the two men continued to struggle, falling to the ground some distance away. There the victim tried to restrain the defendant by pinning him to the ground, as described by Gerald Colar, until Gregory broke up the fight.

As the triers of fact, the jurors were free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 00-0829 (La.11/13/00), 774 So.2d 971. In this case, the jurors obviously did not choose to believe the defendant’s claim of self-defense. They may have determined that the aggressor doctrine applied, since the defendant escalated the conflict by arming himself with a knife without having been threatened and before Ingoing outside to continue a dispute. Alternatively, they may have determined that the defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm at the time he stabbed the victim, and did not act reasonably under the circumstances, particularly since the victim was unarmed and the fight was a one-on-one confrontation with many bystanders. Either of these determinations was reasonably supported by the evidence, viewed in a light most favorable to the prosecution. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded the State proved beyond a reasonable doubt that the defendant’s conduct was not justified.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends the trial judge erred in refusing to permit him to introduce evidence about specific incidents to demonstrate the violent character of the victim and his own state of mind at the time of the offense. At trial, he attempted to adduce testimony about an altercation between the victim and an unrelated third party in January 2000, in which the victim was reportedly the aggressor, as well as evidence of the victim’s criminal history.

Evidence of a person’s character generally is not admissible to prove that the person acted in conformity with his or her character on a particular | -^occasion. La. C.E. art. 404 A. However, there are several specific exceptions to this general rule. With respect to evidence of the dangerous character of the victim of a crime, such evidence is admissible (1) when the accused offers appreciable evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, or (2) when the accused, relying on the defense of self-defense, establishes (a) a history of assaultive behavior between the victim and the accused and (b) a familial or intimate relationship between the victim and the accused. State v. Rodrigue, 98-1558, pp. 4-5 (La.4/13/99), 734 So.2d 608, 610-611. The domestic violence exception is not applicable in this case. Thus, in order to introduce any evidence regarding the victim’s character, it had to first be shown that the victim made some hostile demonstration or overt act at the time of the offense charged. The term “overt act,” as used in connection with prosecutions where the plea of self-defense is involved, means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. State v. Edwards, 420 So.2d 663, 669 (La.1982).

In this case, there was no appreciable evidence to show that the victim initiated the physical confrontation. The fact that the victim, who was unarmed, sought the defendant out to settle a “beef’ does not establish that he committed an overt act against the defendant. Indeed, the evidence clearly established that no physical confrontation occurred inside the Colar residence, where the exchange between the defendant and the victim remained strictly verbal. Clearly this would not have suggested to a reasonable man that the unarmed victim had the intent to kill or inflict great bodily harm on the defendant.

11 ¡¡While there was evidence that the victim ended up on top of the defendant after the commencement of a physical struggle outside, the victim at that point might well have been reacting to the conduct of the defendant in attacking him with a knife. Thus, the defendant failed to establish the necessary foundation for introducing any evidence of the victim’s general reputation for violence, much less specific instances of conduct. Compare State v. Felder, 00-2887, pp. 5-10 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 366-369, writ denied, 01-3027 (La.10/25/02), 827 So.2d 1173 and State v. Jones, 451 So.2d 1181, 1185-1186 (La.App. 1st Cir.1984).

Moreover, even where a proper foundation is laid, the admissibility of a victim’s character trait depends on the purpose for which the evidence is offered. Once evidence of an overt act on the part of the victim has been presented, evidence of threats and of the victim’s dangerous character is admissible for two distinct purposes: (1) to show the defendant’s reasonable apprehension of danger which would justify the conduct; and (2) to help determine who was the aggressor in the conflict. State v. Anderson, 550 So.2d 797, 800 (La.App. 2nd Cir.1989), writ denied, 556 So.2d 1260 (La.1990). Only evidence of general reputation, and not specific acts, is admissible in order to show who the aggressor was in the conflict. State v. Boss, 353 So.2d 241, 243 (La.1977). Evidence of prior specific acts of the victim against a third party is inadmissible for this purpose. Jones, 451 So.2d at 1186. When evidence of a victim’s dangerous character is offered to explain defendant’s reasonable apprehension of danger, such evidence may be introduced to show the accused’s state of mind only if it is shown that the accused knew of the victim’s reputation at the time of the offense. | uWhen such a showing is made, some courts have held that evidence is not limited to general reputation, but may also include evidence of specific acts. See Anderson, 550 So.2d at 800. Other courts have held that, even when offered for this purpose, only specific acts committed against the defendant are admissible. State v. Montz, 92-2073, p. 3 (La.App. 4th Cir.2/11/94), 632 So.2d 822, 825, writ denied, 94-0605 (La.6/3/94), 637 So.2d 499. Here, there was no showing made that the defendant was aware of the victim’s criminal record or the prior specific incident of alleged victim aggression sought to be introduced. Accordingly, the trial judge did not err in excluding evidence of the victim’s criminal record and specific acts of violence against a third person, offered for the purpose of explaining defendant’s state of mind.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3

Defendant asserts the trial judge committed reversible error in overruling his objection to statements made during the prosecutor’s closing L ¿rebuttal argument and in not granting a mistrial. Defendant claims the prosecutor improperly commented on his failure to testify at trial.

Louisiana Code of Criminal Procedure article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney ..., during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense ....

In State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698, the Louisiana Supreme Court recently reviewed the law relative to granting a mistrial as a consequence of a prosecutorial comment on a defendant’s failure to testify at trial. Louisiana Code of Criminal Procedure article 770(3) provides that the trial court shall declare a mistrial when the prosecutor “refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense .... ” The purpose behind Article 770(3)’s prohibition against such a prosecutorial comment is to protect the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf. “Direct” and “indirect” references to the defendant’s failure to take the stand are prohibited by Article 770(3). When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence. When the reference to the defendant’s failure to take the stand is not direct, the reviewing court |1fiwill inquire into the remark’s intended effect on the jury in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from statements that are not (which are permissible, though not favored). State v. Mitchell, 00-1399 at pp. 4-5, 779 So.2d at 701.

In order to support the granting of a mistrial based on an indirect reference, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Smith, 327 So.2d 355, 362 (La.1975) (on rehearing).

There are indirect references which focus on, or are intended to focus on, a defendant’s failure to testify. One such instance is when the defendant is the only witness who can rebut the State’s evidence. In such a case, a reference to the State’s evidence as uncontroverted focuses the jury’s attention on the defendant’s failure to testify and warrants a mistrial. See State v. Fullilove, 389 So.2d 1282, 1284 (La.1980) and State v. Perkins, 374 So.2d 1234, 1237 (La.1979). However, there are and can be indirect references which are not intended to focus on a defendant’s failure to testify. One such frequently seen instance is a prosecutor’s emphasizing that the State’s evidence is unrebutted in a situation where there are witnesses other than the defendant who could testify on behalf of the defense, but have not. State v. Smith, 433 So.2d 688, 697 (La.1983).

Another such instance of an indirect reference that does not focus on the defendant’s not testifying is where the State points out, in order to explain the State’s inability to introduce evidence, that only the defendant knows where a particular piece of crucial evidence is. Mitchell, 00-1399 at pp. 4-6, 779 So.2d at 701-702. In such a case, the jurors are not likely to receive the words of the prosecutor as an invitation to draw an admission of guilt from the defendant’s failure to testify, but rather as a reason for [17why the jury should not penalize the State for its failure to introduce certain evidence. Taken in context, such a comment does not suggest an intent by the prosecutor to focus on the defendant’s failure to take the stand.

In this case, as in Mitchell, it is important to understand the context of the pros-ecutorial remarks in question. Defense counsel, in his closing statement to the jury, outlined the law concerning self-defense, including the element that the defendant must reasonably believe he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save him from that danger. He argued that defendant probably did not want to go outside to fight but went outside because he was ordered to leave the Colar home. He further argued that the victim had a reputation for drinking, drugging, and fighting, and that both the defendant and the victim lived in the community where that reputation was known. He contended that it was prudent, therefore, for defendant to arm himself before going outside, where he stabbed the victim in self-defense. On rebuttal, the prosecutor reviewed defense counsel’s argument regarding self-defense. He suggested that the position of the knife, found quite a distance from the victim’s cap and the scuffed grass and mud, suggested that the fatal stab wound was inflicted at the beginning of the confrontation, while the men were still standing and before the victim got on top of the defendant on the ground. The prosecutor inferred that the victim was holding the defendant down after being stabbed in order to protect himself. The prosecutor then commented:

Then finally, the defendant’s knowledge of dangerous character. Of course we don’t have any evidence of that. Not one word about that.

| ^Defendant objected that this constituted a comment on his client’s failure to take the stand and testify at trial. The trial judge overruled the objection.

In our view, the comment made by the prosecutor, viewed in context, was not an intentional indirect comment on the failure of defendant to testify at trial that compromised his Fifth Amendment privilege. Rather, we believe that in the context of the argument, the jurors would have regarded it as part of the prosecutor’s review of the evidence presented at trial. Although it was the State’s burden to prove beyond a reasonable doubt that defendant did not act in self-defense, the State had no means of introducing direct evidence of the negative proposition that defendant did not know of the victim’s dangerous character. In our view, the State was entitled to point out that there was no evidence that defendant had knowledge of anything that might have induced a state of mind consistent with the claim of self-defense. Moreover, the particular comment of the prosecutor at issue did not refer directly to the defendant.

Witnesses, other than the defendant, could conceivably have testified about defendant’s fearful state of mind and knowledge of the victim’s dangerous character based on past violent incidents that the defendant witnessed or claimed to know about, or based on the defendant’s conduct and statements at the time of this offense. Most of the witnesses called by the State knew the defendant very well. None indicated that defendant appeared frightened on the night of the homicide or that he did or said anything to indicate that he was aware of the victim’s reputation for violent conduct. In sum, the prosecutor’s remark did not necessarily refer to an absence of testimony by defendant. Thus, we cannot conclude that the prosecutor’s remarks required a mistrial when defendant was not the sole possible source of 119evidence to establish his knowledge of the victim’s character. State v. Triplett, 434 So.2d 1270, 1272-1273 (La.App. 1st Cir.1983).

There is no merit to this assignment of error.

ASSIGNMENTS OF ERROR NUMBERS 4 AND 5

In these related assignments of error, defendant contends his habitual offender sentence is excessive. He claims the trial judge abused his discretion in choosing the sentence imposed and in failing to reconsider his sentence, in view of his minor criminal history and the circumstances of the manslaughter offense. Defendant filed motions to reconsider both the original sentence imposed for his manslaughter conviction and the subsequent habitual offender sentence. Both were denied.

The Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La.C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Lewis, 489 So.2d 1055, 1061 (La.App. 1st Cir.), writ denied, 493 So.2d 1218 (La.1986).

The trial court has wide, although not unbridled, discretion in the imposition of a sentence within statutory limits. See State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or is nothing more than the needless imposition of pain and suffering. | ?,nThe determination turns upon the punishment and the crime in light of the harm to society and whether or not the penalty is so disproportionate that it shocks our sense of justice. State v. Waguespack, 589 So.2d 1079, 1086 (La.App. 1st Cir.1991), writ denied, 596 So.2d 209 (La.1992).

A sentence may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. Waguespack, 589 So.2d at 1086. A sentence imposed within the statutory limits will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La.App. 1st Cir.1990).

In this case, when the trial judge imposed the original manslaughter sentence, he considered the criteria set forth in La. C.Cr.P. art. 894.1. He also took into consideration defendant’s criminal history, including both offenses against property and aggravated offenses against the person. The trial judge expressed his view that there was an undue risk that during any suspended or probated sentence, another crime would be committed and that any lesser sentence than the one imposed would deprecate the seriousness of the offense. He particularly noted:

The offender knowingly created a risk of death and great bodily harm in the commission of the crime in that he armed himself before leaving the residence, knowing that he was going outside to engage in some kind of encounter with the victim and, of course, that he did, in fact, use a dangerous weapon which resulted in the death of the victim.

The trial judge imposed a sentence of eighteen years imprisonment at hard labor. The maximum sentence that could have been imposed for manslaughter was forty years at hard labor. La. R.S. 14:31 B. Subsequently defendant was adjudicated a second felony offender. The original sentence | g1was vacated, and the trial judge accepted evidence as to the appropriate habitual offender sentence to impose. The State introduced victim impact statements from the victim’s family. Defendant did not present any evidence or make any argument in mitigation. As a second felony offender, defendant could have received a sentence of not less than one-half the longest term of imprisonment for manslaughter, and not more than twice the longest term prescribed. La. R.S. 15:529.1 A(l)(a). Since the statutory maximum term for manslaughter was forty years, defendant was exposed to a term of twenty to eighty years imprisonment for his habitual offender sentence. The trial judge imposed a sentence of forty years at hard labor. He indicated that he relied upon, among other things, his original reasons for sentencing, the victim impact statements of the victim’s relatives, and defendant’s prior history with law enforcement, including the circumstances of his conviction for illegal possession of stolen property, the revocation of his probation for that offense, and his violations of parole through cocaine abuse.

On appeal, defendant’s only argument in support of his claim that the sentence imposed was excessive is that his prior criminal history is minor and that he acted in response to the physical threat presented by the victim. However, the jury rejected the defense of justification and the State presented evidence of numerous criminal offenses, including aggravated offenses against the person. After considering the circumstances of the instant offense and the reasons for sentencing given by the trial judge, we find no abuse of discretion in the sentence imposed. The trial judge adequately considered the sentencing guidelines and there was a sufficient factual basis in the record for the sentence imposed, which does not shock our conscience.

| jj2These assignments of error are without merit.

DECREE

For the foregoing reasons, defendant’s conviction, habitual offender adjudication, and sentence are affirmed.

CONVICTION, HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED.

      . The Information to Establish Habitual Offender Status alleged that on August 26, 1991, defendant was convicted and sentenced for felony possession of stolen properly over $500.00 in Docket No. 130,545 on the docket of the Sixteenth Judicial District Court for the Parish of St. Mary. The State introduced evidence of the defendant’s prior guilty plea, the transcript of the plea colloquy, and evidence of defendant's identity. On appeal, defendant does not contest the sufficiency of the evidence presented to support the habitual offender adjudication.

      . Defendant was granted leave to file an out-of-time appeal on January 7, 2003. We dismissed the appeal as untimely in an unpublished action. State v. Loston, 02-2595 (La.App. 1st Cir.1/27/03). Thereafter, defendant filed an application to the trial judge for post conviction relief and an out of time appeal was granted pursuant thereto on April 17, 2003.

      . The testimony of each of the three men involved in taking the victim home established that the victim did not sustain any additional injuries subsequent to his fight with the defendant.

      . The trial judge ruled that, although the defendant would be allowed to prove the general reputation of the victim, specific instances of the victim’s conduct could not be introduced if they did not involve the defendant.

      . We note that the trial judge did allow the introduction of general reputation evidence regarding the victim's character and the defendant did, through cross-examination of state witnesses, introduce evidence of the victim's general reputation for fighting.

      . Although many of the cases dealing with this issue were decided prior to the adoption of the Louisiana Code of Evidence, and were decided under former La. R.S. 15:482, the jurisprudence has recognized that the new Code does not appear to change the preexisting law on this point. State v. Gantt, 616 So.2d 1300, 1305 (La.App. 2nd Cir.), writ denied., 623 So.2d 1302 (La.1993).

      . Louisiana Code of Evidence article 405 describes methods of proving character, where evidence of a trait of character is admissible. Article 405 A expressly provides the general rule that such evidence may be presented only by testimony as to general reputation. Louisiana Code of Evidence article 405 B describes an exception that permits proof of specific incidents of conduct where the character trait at issue is a specific element of the crime. In this case, the defense of self-defense required proof that defendant acted based on a reasonable fear for his life. The character trait of the victim was not an essential element of the defense of self-defense. Defendant could have established that defense even if the victim had no history of being a dangerous character. See Lori J. Henkel, J.D., Admissibility of Evidence of Pertinent Trait Under Rule 404(a) of the Uniform Rules of Evidence, 56 A.L.R.4th 402 (1987) and' Admissibility of Evidence as to Other’s Character or Reputation for Turbulence on Question of Self-Defense by One Charged with Assault or Homicide, 1 A.L.R. 3rd 571 (1965) and cases cited therein. See particularly State v. Spinks, 79 Ohio App.3d 720, 607 N.E.2d 1130, 1137 (1992) and State v. Roy, 151 Vt. 17, 557 A.2d 884, 893 (1989). Compare dicta in State v. Carter, 97-2902, pp. 32-33 (La.App. 4th Cir.5/10/00), 762 So.2d 662, 682, writ denied, 00-1598 (La.6/15/01), 793 So.2d 1233, cert denied, 534 U.S. 1116, 122 S.Ct. 926, 151 L.Ed.2d 889 (2002).

      . Where, as here, defense counsel timely objects to the prosecutor's remarks and his objection is overruled, it is not necessary to move for a mistrial or request other corrective action in order to preserve the right to appellate review. State v. Johnson, 98-281, p. 4 (La.App. 5th Cir.9/29/98), 719 So.2d 1141, 1144.

      . The State introduced evidence of previous convictions for illegal possession of stolen property, battery, aggravated assault, aggravated battery, and resisting a police officer by fighting.


source: Caselaw Access Project

author: | .GUIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. George Henry MILLICAN, IV.
    No. 2003 KA 1065.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Doug Moreau, District Attorney, Creighton B. Abadie, Assistant District Attorney, Baton Rouge, Counsel for Plain-tiffiAppellee State of Louisiana.
    Gwendolyn K. Brown, Baton Rouge, Counsel for Defendant/Appellant George Henry Millican, IV.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .GUIDRY, J.

The defendant, George Henry Millican, IV, was charged by grand jury indictment with two counts of second degree murder, violations of La. R.S. 14:30.1, and pled not guilty. Following a jury trial on both counts, he was found guilty as charged by unanimous verdict. He was sentenced, on each count, to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, sentences to be served consecutively. He now appeals, designating one assignment of error. We affirm the convictions and sentences.

FACTS

On November 2, 2001, Travis Carr, the defendant’s cousin, was shot to death at Scotland Square, 1900 Blount Road, Baton Rouge, Louisiana. The State’s expert, Patrick Lane opined that the caliber of the gun used was in the range of .40-.41 caliber, stating, “which is not a caliber that we see real often.” Expert forensic scientist Dr. Michael Crammer testified that Carr suffered .41 caliber gunshot wounds to his left front chest, his right temple, his right shoulder (a grazing wound), and his left neck. Stippling around the wounds indicated the shots were fired from a distance of no more than two feet away. Additionally, three bullet holes and one impact mark were found on walls in close proximity to Carr’s body. No guns were found in the apartment, and no evidence in the apartment suggested that shots were fired from any weapon other than the murder weapon. Indeau Wilson, Carr’s live-in girlfriend of three years, testified that, to her knowledge, Carr did not have a gun.

On November 9, 2001, Antonio Wright, also a cousin of the defendant, was shot to death with what Dr. Crammer opined to be an assault rifle at the Cracker Barrel on Government Street. Wright suffered gunshot wounds to the left side of his back and abdomen, his right arm, which was believed to be a continuation of the gunshot wound from his left back, and his right buttock. Margaret Brown, a cashier at the store, saw the defendant exit a black Toyota Camry, lift what she | described as a large assault rifle, and shoot Wright in an unprovoked killing. Additionally, Jonathan Deshotels, who viewed the shooting from across the street, testified that he saw the defendant stand over the victim after he fell and fire at him from a distance of no more than four feet away. The defendant fired eight times and five shell casings were recovered from the crime scene. All of the shell casings were fired from the defendant’s father’s SKS assault rifle. A .32 caliber gun was recovered from Wright’s waistband. The evidence at the Wright shooting indicated Wright had a beer and cigars in his hands when he was shot.

The defendant confessed to killing Carr with a .44 caliber gun, but claimed he acted in self-defense after Carr retrieved a .38 caliber gun and fired at him. The defendant admitted that he fled from the scene of the Carr killing in his mother’s black Toyota Camry with a Southern University license plate. He claimed he took Carr’s alleged weapon with him and gave the weapon to Antonio Wright.

The defendant also confessed to the Wright killing, but again claimed he acted in self-defense after Wright came up behind him at the Cracker Barrel with a .25 caliber gun in his hand and attempted to shoot him. The defendant stated he had driven Wright to the Cracker Barrel in his mother’s black 2000 Toyota Camry. The defendant claimed he fired an SKS assault rifle at Wright from inside the Camry. Linda Wright, Wright’s mother, testified that the defendant left with Wright in a black Camry with Southern University license plate number 8992 on the night before Wright’s killing.

HEARSAY

In his sole assignment of error, the defendant contends the trial court erred in admitting into evidence, over the hearsay objection of the defense, a 911 tape. He argues a 911 tape is not excluded from the hearsay rule on the basis that it is a public record, citing La. C.E. art. 803. He further argues that the tape may have been admissible into evidence under the excited utterance exception to the hearsay rule, but the trial court failed to conduct the analysis required to reach that determination.

| ¿The issue of the admissibility of the 911 tape under La. C.E. art. 803(8)(a)(i) is res nova for this court.

The jurisprudence on this issue is not totally consistent. See, e.g., State v. Brown, 02-1217 (La.App. 4th Cir.5/28/03), 853 So.2d 8, 14 (court concludes it was error to admit a 911 tape, stating it was clearly hearsay, but further concludes it was harmless error); compare U.S. v. Bradley, 145 F.3d 889, 892-94 (7th Cir.1998) (court concludes 911 tape was neither confusing nor prejudicial, holding defendant’s challenges on those grounds were insufficient to justify its exclusion); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir.1995) (911 tapes admissible as either a public record or a business record, but because citizens making such calls are not under a duty to report, the statements on tapes must also satisfy a separate hearsay exception, such as present sense impression or excited utterance); U.S. v. Sallins, 993 F.2d 344, 347-48 (3rd Cir.1993) (even if the 911 record itself is admissible under Federal Rule 803(8), details as to the out-of-court statements made by the person who called 911 were not admissible unless covered by a separate hearsay exception); State v. Bollos, 230 Wis.2d 495, 505-07, 602 N.W.2d 117, 122-23 (App.9/21/99), review denied, 233 Wis.2d 84, 609 N.W.2d 473 (Wis.2/22/00) (911 tapes reporting fire and arson admissible as present sense impressions, excited utterances, or statements of recent perception exceptions to hearsay); State v. Parker, 1997 WL 195922 p. 5, 1997 WL 195922 (Tenn.Crim.App.4/23/97) (admission of a 911 tape as a public record was error, even though the contents of the tape qualified as an excited utterance, because the voices on the tape were not identified); State v. Smith, 868 S.W.2d 561, 576-77 (Tenn.1998) (affirms admission of 911 tape under excited utterance exception to the hearsay rule).

Initially, we note the 911 tape recording was not offered into evidence under La. C.E. art. 803(2), the excited utterance exception to the hearsay rule, and thus the trial court had no reason to consider whether the tape was admissible under that provision. Hearsay is a statement, other than one made by the declarant while |Ktestifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. La. C.E. art. 802.

Louisiana Code of Evidence article 803, in pertinent part, provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(8) Public records and reports, (a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
(i) Its regularly conducted and regularly recorded activities;
(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or
* * *
(b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
(i) Investigative reports by police and other law enforcement personnel.
(ii) Investigative reports prepared by or for any government, public office, or public agency when offered by that or any other government, public office, or public agency in a case in which it is a party.
(iii) Factual findings offered by the prosecution in a criminal case.
'(iv) Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

At trial, the State presented testimony from Terrie Jenkins, East Baton Rouge Parish E.M.S. 911 Custodian of Tapes. Jenkins was the custodian of exhibit S-50, the 911 tape recording at issue. The defense objected to admitting the 911 tape recording into evidence, arguing that the 911 tape recording contained hearsay and was violative of the defendant’s confrontation rights. The State contended the tape was a public record and Jenkins was its custodian. The trial court overruled the defense objection and the 911 tape recording was played for the jury.

The 911 tape recording contained a telephone call from an unidentified caller at Scotland Square Apartments. The caller reported getting the license plate number of a car that “took off’ approximately thirty minutes earlier. The caller | ^described the vehicle as a dark vehicle, either black or blue, with Southern University license plate number 8992, and responded affirmatively when asked if the car had left from the house “where the shot came from.” The 911 tape recording also included a telephone call to 911 from Indeau Wilson, Wilson gave her address as 1900 Blount Road, apartment 104, and stated she had found her boyfriend dead at the apartment. She indicated her boyfriend had been shot in the back.

The content of the 911 tape was hearsay within hearsay. In order for the contents of the 911 tape recording to be admissible, it must satisfy an exception to the hearsay rule. See La. C.E. art. 805. The exception cited by the State, La. C.E. art. 803(8)(a)(i), is not applicable because the statements on the 911 tape recording in question are those of an unidentified caller and Ms. Wilson, which implicate the defendant’s constitutional right to confrontation, rather than regularly recorded activity of the public agency, to which our law ascribes trustworthiness. Furthermore, La. C.E. art. 803(8)(a)(ii) is inapplicable because the State failed to show that the unidentified caller and Ms. Wilson were under a “duty to report[.j” See Bemis at 1372. Based on the record before us, the State has not shown that the contents of the 911 tape recording meet an exception to the hearsay rule. Therefore, the trial court erred in allowing the tape to be played for the jury.

However, confrontation errors are subject to a harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witnesses] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination 17otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Wills, 559 So.2d 1321, 1332 (La.1990). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

Error in admitting the 911 tape recording was harmless in this case. The defendant confessed to shooting Carr and admitted leaving the scene in his mother’s black Toyota Camry, which had the Southern University license plate. The portion of the 911 tape that incriminated the defendant, i.e., the portion concerning the vehicle with the Southern University license plate leaving the scene of the Carr killing added no additional information to what he had already admitted. The vehicle was also linked to the defendant by his reference to the vehicle in his confession to the Wright killing, as well as by testimony at trial from Linda Wright, the victim’s mother, and Brown. Further, the State’s cases against the defendant were strong. The defendant confessed to both shootings. Additionally, Brown identified the defendant as the shooter at the Cracker Barrel.

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.


author: laPARRO, J. B CARTER, C.J.,

text:
    STATE of Louisiana, Through the DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SUPPORT, SUPPORT ENFORCEMENT SERVICES, in the Interest of Jessica Perdue, Minor Child(ren) of Vonda Richard v. Jason LANGLOIS.
    No. 2003 CA 0849.
    Court of Appeal of Louisiana, First Circuit.
    March 3, 2004.

      Parris A. Taylor, Baton Rouge, for Appellant, State of Louisiana.
    Mazie Toussaint Roberson, Baton Rouge, for Appellee, Jason Langlois.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   laPARRO, J.

This is an appeal of a judgment annulling a default judgment for lack of proper service. We affirm.

FACTS

The State of Louisiana, through the Department of Social Services, Office of Family Support, Support Enforcement Services (the State), confirmed a default judgment against Jason Langlois in a support enforcement proceeding. Langlois later filed a petition for nullity, contending he was not served with the original petition to establish paternity and set child support. The sheriffs return of citation reflects domiciliary service on Langlois by delivering the citation and petition to his mother at 5011 Tristian Street in Baker, Louisiana, on March 21, 2000. Langlois admits he previously resided at that address, which is his mother’s home, but contends he moved to his current residence on Teak-wood Drive in Baker, Louisiana, in the early 1990s. After a hearing, the trial court determined that Langlois was not properly served with the petition in the enforcement proceeding and rendered judgment annulling the default judgment. The State appeals.

DISCUSSION

Absent an express waiver, citation and service are essential in all civil actions. LSA-C.C.P. art. 1201. A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity. See LSA-C.C.P. arts. 1201 and 2002; River City Fed. Sav. Bank (Cadle Co.) v. Video Assoc., Inc., 01-2453 (La.App. 1st Cir.11/8/02), 835 So.2d 781, 783-84, writ denied, 02-2966 (La.4/25/03), 842 So.2d 396. The plaintiff in a nullity action has the burden of proving his case by a preponderance of the evidence. There is a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

A sheriffs return reflecting service is considered prima facie correct. LSA-C.C.P. art. 1292; see also LSA-R.S. 13:3471(5). While the recitation on the return of citation is presumed to be correct, the presumption is rebuttable. The party attacking it bears the |3burden of proving its incorrectness by a preponderance of the evidence. Roper v. Dailey, 393 So.2d 85, 88 (La.1980)(on rehearing); Hall v. Folger Coffee Co., 02-0920 (La.App. 4th Cir.4/9/03), 843 So.2d 623, 632. In general, the uncorroborated testimony of the party attacking service, standing alone, is insufficient to rebut the presumption of prima facie correctness accorded the sheriffs return. Roper, 393 So.2d at 86; Hall, 843 So.2d at 632.

Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment. LSA-C.C.P. art. 1234. Persons might list an address other than their actual dwelling house or place of abode for mailing or other purposes. Valid domiciliary service depends on the actual and true facts at the time of service and not on information furnished by the defendant at some time prior to service. Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604, 607 (La.App. 2nd Cir.1972).

In this case, the sheriffs return of service reflects that domiciliary service was effected on Langlois by leaving the citation and petition with his mother at the Tris-tian Street address. The State also submitted documents showing Langlois had renewed his driver’s license three times since 1991, each time using the Tristian Street address. Hospital records in 2001 from Earl K. Long Hospital also show that address and bear his signature. A letter from the State, postmarked September 28, 2000, and addressed to him on Teakwood Drive, was returned with the notation, “Moved, Left no forwarding address.”

Langlois testified that in late 1991 or early 1992, he moved to Teakwood Drive to live with his girlfriend, Debbie, and said he had lived there with her continuously ever Lsince that time. Their seven-year-old daughter also lives there with them. He said that even when he left “to go stay at the camp or something,” his “stuff always stayed” at the Teakwood residence. Langlois said he had previously lived with his mother at 5011 Tristian Street, but had not moved back or lived there at any time since the early ’90s. According to Lan-glois, he only goes there to visit his mother. Langlois admitted that some “junk mail” for him still goes to his mother’s address, and that he had never changed his address on his driver’s license. Concerning the medical records from the hospital emergency room, Langlois pointed out that the handwriting on the top of the form, which showed his address as 5011 Tristian, was not his handwriting. An examination of that document confirms that he did not complete the address portion of any of the hospital forms. Langlois opined that whoever filled out those forms probably got the Tristian Street address from his driver’s license. He could not explain why mail addressed to him on Teakwood Drive might have been returned.

In addition to his testimony, Langlois offered that of Kay Herrington. Herring-ton testified that she owns the house on Teakwood Drive, that Debbie had leased it from her sometime in the 1980’s, and that Debbie had been her tenant at that address since that time. Herrington was certain that Langlois had lived on Teak-wood Drive since shortly before Hurricane Andrew, which was when she first met him and was told by her tenant, Debbie, that he was now living there with her. Her-rington testified that, “without a doubt,” Langlois had lived there with Debbie consistently since the early ’90s. She said she had seen him there on numerous occasions over the years when she stopped by to check on the house.

As the trial court noted, all the evidence of where Langlois actually resided showed he lived in the house on Teak-wood Drive. The State presented no testimony or other evidence to show he had actually lived at his mother’s address at any time since 1991-92. An address provided on a written document does not establish a person’s actual dwelling place for purposes of domiciliary service. We conclude, therefore, that by clear and convincing evidence, Langlois has overcome the prima facie presumption of correctness of the sheriffs return on service. Because the residence at | s5011 Tristian Street was not his usual place of abode, domiciliary service on someone else living at that address was legally insufficient. Accordingly, the default judgment rendered against him was an absolute nullity, and the trial court was correct in so concluding.

CONCLUSION

Considering the foregoing, the judgment of the trial court, which annulled the default judgment confirmed on May 10, 2000, is affirmed. Costs of this appeal, in the amount of $287.88, are assessed against the State.

AFFIRMED.

CARTER, J., dissents with reasons.

B CARTER, C.J.,

dissenting.

I respectfully disagree with the majority’s conclusion that Langlois overcame the prima facie correctness of the Sheriffs return of service. In particular, I disagree that all of the evidence of where Langlois actually resided showed that he lived in the house on Teakwood Drive. The record reflects that Langlois signed three driver’s license renewals and several medical consent forms, all listing his address as 5011 Tristian Street. Moreover, a letter addressed to Langlois on Teakwood Drive and postmarked September 28, 2000, was returned with the notation, “Moved, Left no forwarding address.”

There is strong circumstantial evidence that Langlois was purposefully and intentionally attempting to avoid service of process. It would be interesting to know what would have occurred if service had been attempted at the Teakwood Drive | ¡location. We know what occurred when mail was sent to him at that address. Further, it is interesting to note that Lan-glois did not call his girlfriend Debbie to testify.

Considering the record as a whole, including the documentary evidence, I do not believe that Langlois overcame the prima facie correctness of the Sheriffs return of service. Accordingly, I would reverse the judgment annulling the default judgment.

      . We note that a number of cases have stated that in order to overcome the presumption of correctness, the burden of proof is by clear and convincing evidence. See, e.g., Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451 (La.App. 1st Cir.6/20/97), 706 So.2d 999, writ denied, 97-2192 (La.11/21/97), 703 So.2d 1311; Billiot Bros., Inc. v. Bercier, 447 So.2d 1090 (La.App. 1st Cir.1983). This was, in fact, the standard enunciated by the Louisiana Supreme Court in its original opinion in the Roper case. Roper, 393 So.2d at 85. However, on rehearing, the burden of proof used was a preponderance of the evidence. Roper, 393 So.2d at 88. The Fourth Circuit observed that this was the latest pronouncement on this issue by the Louisiana Supreme Court. Hall, 843 So.2d at 632. In the matter before us, this may be a distinction without a difference, as we conclude that the evidence presented by Langlois concerning his actual usual place of abode was clear and convine-ing, and thus satisfied his burden of proof under either standard.

      . We also find no merit in the State's argument that Langlois’s "voluntary” acquiescence in the judgment precludes his nullity action, pursuant to Louisiana Code of Civil Procedure article 2003. The record shows Langlois was picked up on a bench warrant, after which he agreed to paternity tests and paid child support. Acquiescence in an absolutely null judgment to avoid contempt or criminal proceedings is not "voluntary.” See Ray v. South Central Bell Tel. Co., 315 So.2d 759, 762 (La.1975).


author: J^PETTIGREW, J. hDOWNING, J.,

text:
    Charles LABATUT, et al. v. AIR PRODUCTS, INC., et al.
    No. 2003 CA 0661.
    Court of Appeal of Louisiana, First Circuit.
    March 12, 2004.

      David L. Bateman, Vincent J. Sotile, Jr., Baton Rouge, for Plaintiffs-2nd Appellants Charles Labatut and Janet Labatut.
    Timothy E. Pujol, Alan J. Robert, Gonzales, for Defendant-lst Appellant Air Products, Inc.
    Before: CARTER, C.J., PARRO, PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

Plaintiffs, Charles and Janet Labatut, filed suit against defendant, Air Products and Chemicals, Inc. (“Air Products”), for injuries sustained in a work-related accident. After a jury verdict in favor of Air Products, the trial court granted plaintiffs’ motion for judgment notwithstanding the verdict (“JNOV”), assigning 10 percent of the fault for Mr. Labatut’s injuries to Air Products and awarding damages accordingly. Defendant appealed. Plaintiffs answered the appeal, seeking a reapportionment of fault. For the reasons set forth below, we reverse the JNOV and reinstate the judgment rendered in accordance with the jury’s verdict.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Charles Labatut was working as a welder for Pax Cryogenics Systems, Inc. (“Pax”). According to the record, Pax, a steel fabrication yard that specializes in fabricating process-piping skids for the industrial gas market, had been working on a skid for Air Products, one of Pax’s biggest clients. The skid, which was designed entirely by Air Products and built by Pax according to Air Products’ specifications, measured 14 feet wide by 30 feet long and was to be used by Air Products as a “pressure-swing absorption” to separate waste gas from good gas. Once the skid in question was completed by Pax, Air Products asked Pax to store the skid until they were ready for it.

On May 11,1998, three employees of Air Products went to Pax to conduct a final quality inspection of the skid in anticipation of finalizing the purchase. At that time, the Air Products’ employees conducted a visual inspection of the skid and arranged to return the next day to conduct an operational test. It was during the course of testing the skid that Mr. Labatut was assigned to weld a drain valve that had been inadvertently left off of the skid. As Mr. Labatut was attempting to weld the drain valve, he observed the valve handle on the instrument air header was obstructing his access to the area where he needed to work. To alleviate this problem, Mr. Labatut moved the handle out of the way, causing the valve on the instrument air header, which was pressurized, to open and | ^release a large volume of air. This release of pressure hit Mr. Labatut, knocking him backwards several feet.

As a result of the injuries sustained in this incident, plaintiffs, Charles and Janet Labatut, individually and on behalf of their minor child Tiffany Labatut, filed suit against Air Products on March 31, 1999. The matter proceeded to a jury trial in May 2001. Following three days of testimony and evidence, the jury returned a verdict in favor of Air Products, finding that although Air Products was at fault in causing the accident, this fault was not a cause in fact of the injuries sustained by Mr. Labatut. On May 29, 2001, the trial court signed a judgment in accordance with the jury’s findings, dismissing plaintiffs’ claims against Air Products with prejudice.

Subsequently, on June 1, 2001, plaintiffs filed a motion for JNOV, or alternatively, a new trial. The trial court granted the JNOV and denied the request for a new trial. In a judgment rendered on August 17, 2001, the trial court assigned 50 percent fault to Mr. Labatut, 40 percent fault to Pax, and 10 percent fault to Air Products. The court also found plaintiffs were entitled to damages totaling $724,081.00 and held Air Products liable for $72,408.00.

It is from this judgment that Air Products has appealed, assigning the following specifications of error:

I. The trial court committed manifest error in setting aside the Jury Verdict by granting the Motion for Judgment Notwithstanding the Verdict.
II. The trial court committed manifest error in its apportionment of fault and award of damages.

Plaintiffs have also appealed and assign error as follows:

I. The jury was manifestly erroneous in finding that the fault of Air Products was not a cause in fact of the plaintiffs injuries and the trial court abused its discretion in refusing to grant a new trial.
II. The trial court committed manifest error in its assessment of fault.

14APPLICABLE LAW

Article 1811(F) of the Louisiana Code of Civil Procedure authorizes a trial court to grant a JNOV on either the issue of liability or of damages or both. The jurisprudence has established the standard for issuance of a JNOV, and for review of a granted JNOV.

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Joseph v. Broussard Rice Mill, Inc., 2000-0628, p. 4 (La.10/30/00), 772 So.2d 94, 99.

In reviewing a JNOV determination, an appellate court must first decide whether the trial judge erred in granting the JNOV. A JNOV is proper only when the trial court determines that reasonable minds could not reach a contrary verdict. Neither the trial court nor an appellate court can substitute its evaluation of the evidence for that of the jury unless the jury’s conclusions totally offend reasonable inferences from the evidence. Templet v. State ex rel. Dept. of Transp. and Dev., 2000-2162, p. 6 (La.App. 1 Cir. 11/9/01), 818 So.2d 54, 58. Thus, in the instant case, this court must ask whether the facts and inferences point so strongly and overwhelmingly in favor of a finding that the fault of Air Products was a cause in fact of the injuries sustained by Mr. Labatut that no reasonable juror could have reached a different verdict on the issue. If the answer to this question is in the affirmative, the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the judgment rendered in accordance with the jury verdict should be reinstated. Simoneaux v. Amoco Production Co., 2002-1050, p. 11 (La.App. 1 Cir. 9/26/03), 860 So.2d 560, 567.

1 sWhen contemplating a JNOY, the trial court is prohibited from weighing evidence, making credibility determinations, drawing inferences therefrom, or substituting its own factual conclusions for those of the jury. Additionally, questions of fact should be resolved in favor of the non-moving party. Templet, 2000-2162 at 6, 818 So.2d at 58. The trial judge is not entitled to interfere with the verdict simply because he believes another result would be correct. See Davis v. Wal-Mart Stores, Inc., 2000-0445, pp. 12-13 (La.11/28/00), 774 So.2d 84, 95. This rigorous standard is based on the principle that “[w]hen there is a jury, the jury is the trier of fact.” Joseph, 2000-0628 at 5, 772 So.2d at 99.

REVIEW OF EVIDENCE

During the three-day trial of this matter, the jury heard testimony from various witnesses, including employees of both Air Products and Pax and a safety consultant expert. The jury also considered other documentary evidence concerning the accident.

Michael Frenzel, a safety consultant expert, testified on behalf of the plaintiffs. He indicated that the two primary written standards addressing procedures for the safe handling of pressurized air are promulgated by regulations of the Occupational Safety and Health Administration (“OSHA”) and the American National Standards Institute (“ANSI”). Mr. Fren-zel testified that OSHA and ANSI regulations apply to employers such as Pax, but that construction projects are exempted. Mr. Frenzel also discussed the “Multi-Employer Work Site Doctrine,” OSHA guidelines that address work sites where multiple employers work together. According to Mr. Frenzel, four questions are considered in connection with this doctrine, i.e., who created the hazard, who controls the hazard, who has the ability to correct the hazard, and whose employees have been exposed to the hazard.

Mr. Frenzel stated that as soon as the valve was pressured up, it became a potential hazard and should have been “tagged or locked or noticed in some way.” When asked how widespread the lock-out/tag-out system was in the industry in south Louisiana, Mr. Frenzel testified that these procedures were “widely-used methods of controlling an energy source” and that “any company of any size has very formidable lockout and tag-out procedures.” With regard to the specifics of this case, Mr. Frenzel testified as follows:

| fi[T]he general industry, although it doesn’t require a padlock ... it does require that tags or signs, which are warnings of hazards, temporary or permanent, affixed or placed at the locations where hazards exist, that this valve, which is the access to the hazard, should have had, as a minimum under either standard, either had a lock or a tag, and I would, in this ease, recommend a tag because of the relatively short duration and the close proximity which everybody is. I think a tag would have been sufficient that said, “Do not operate this valve.”

Mr. Frenzel opined that because Air Products was doing the testing, knew what valves would be involved, and were the “closest to the valve,” Air Products should have tagged or locked the valve as soon as Pax pressured up the skid. He admitted, however, that the determination of who actually had the obligation under OSHA and ANSI regulations to tag or lock the valve was a question of fact for the jury to decide.

James Cunningham, an Air Products’ instrumentation technician for the past 26 years, testified about his involvement in the testing of the skid in question. According to Mr. Cunningham, he and two engineers from Air Products, Mike Bolin-ski and Michael Dyzel, went to Pax on May 11, 1998, to conduct a final quality inspection of the skid in anticipation of finalizing the purchase. The function test was scheduled for May 12, 1998, at which time Mr. Cunningham asked Pax to “pressure up” the instrument air header so he could begin the testing. At around 11:00 that morning, while compiling a “punch list” of problems or errors in the skid, they discovered a missing drain valve that had been inadvertently left off of the skid. Michael Dyzel advised Shannon Allen, production manager/project engineer at Pax, of the missing valve and a few other problems with the skid that needed to be corrected by Pax.

After speaking with Mr. Allen, Mr. Dyz-el returned to the skid with Mr. Bolinski and Mr. Cunningham, who continued checking the valves to be sure they were “stroking correctly.” Approximately thirty minutes later, the Air Products’ employees walked away from the skid intending to leave for a lunch break. Mr. Cunningham testified that when he decided to leave for lunch, he did not ask anyone to take the pressure off of the instrument air header, nor did he request that the valve be locked or tagged so as to warn others that it was under pressure. Moreover, Mr. Cunningham acknowledged that he did not lock or tag the valve before leaving for lunch. When asked if he could have |7depressurized the instrument air header, Mr. Cunningham replied that pursuant to Pax’s rules and regulations in place at the time, he was told he could not. Mr. Cunningham indicated that although he had control of the skid to the extent that he could do his testing, he did not have exclusive control of the skid.

According to Mr. Alien, after speaking with Mr. Dyzel about the “punch list” compiled by Air Products, he went out to the skid with a fitter and Mr. Labatut to show them what needed to be done with regard to the missing drain valve. Mr. Allen testified that he told both the fitter and Mr. Labatut that while they would be working on the skid, Air Products’ employees were checking valves on the skid. He also advised them that the instrument air header was pressurized and pointed out the gauge on the line showing that it was pressurized. After telling Mr. Labatut what needed to be done, Mr. Allen walked away from the skid and returned to his office. Mr. Allen testified that although he did not see the accident, he walked out of his office after hearing a noise and found Mr. Laba-tut on the ground in front of the skid.

Mr. Labatut explained that on the day in question, he was at his workstation when his foreman told him about the missing drain valve on the skid. Mr. Labatut did not know that representatives from Air Products were there conducting the final inspection. He proceeded outside to the skid and met with Mr. Allen who told him what needed to be done. According to Mr. Labatut, Mr. Allen never told him that the skid was pressurized. Moreover, there were no warning signs, barricades, flags, tags, or locks on the valve in question. Mr. Labatut indicated he never saw the pressure valve and was unaware that the skid was pressurized.

While working on the drain valve, Mr. Labatut was unable to see all the way around the valve because the valve handle on the instrument air header was obstructing his view. Not knowing the line was under pressure, Mr. Labatut moved the handle out of the way. When asked what happened next, Mr. Labatut stated “once I opened it, I was thrown back and — and maybe knocked out for a second, and I got up, and I reached for the handle with my right arm, realized that I couldn’t— couldn’t move my arm, and then, I turned it off with my left arm.” With regard to what caused his accident, Mr. Labatut |Rwas asked if he claimed that Air Products did anything to cause the accident. He responded, “Not Air Products, no.”

Mr. Allen testified as follows about the procedures employed by Pax for assisting with the testing of skids:

Q. What procedures do you do if someone like, say, Air Products wants to come down to do a test on a PSA skid; what do you do? What role do you play in that?
A. Typically, I provide them with air supplies to the unit to test the unit with. I also supply them with the required electrical currents and voltages that they’ll be needing to test those skids with. I also supply them with manpower, as they are on my job site.
Q. Now, when you say you supply air to them, can you be a little bit more detailed with me as to where you put air and what’s aired up by you?
A. If a client were to require air to a particular system on a skid, I would physically or a representative of mine, an employee of mine, would physically go out and connect an air hose from an air compressor to that piece of equipment and physically charge that system, turn the air on, so to speak.
Q. Okay. Did that happen in the test of this particular skid that we’re dealing with that involved Mr. Labatut’s accident?
A. Yes, it did.
Q. Okay. And which employee is the employee of yours that aired it up that day?
A. Paul Bourque.
Q. Do you know what part of the skid he aired up?
A. He aired up what I directed him to air up, the instrument air system.
Q. Okay. And that’s previously been identified to the jury. Is that the same thing as the instrument air header?
A. Correct.
Q. Okay. And who’s job is it to depressurize that skid?
A. It’s mine or my representative, and typically, that would be Paul Bourque.
Q. Okay. Now, at what point would it be depressurized?
A. When all tests or function checks were complete or at the end of a shift typically.

19Paul Bourque also testified, confirming that he was the one who hooked the air hose to the instrument air header on the day of the accident. Mr. Bourque added that it takes about 10 to 15 minutes to pressure up the line in question. Mr. Bo-urque also indicated that he opened the valve on the instrument air header so that the gauge would show that it was pressurized.

Mr. Allen provided the jury with an overview of the weekly safety meetings that are conducted at Pax. According to Mr. Allen, he conducts the meetings and all Pax employees are to attend regularly. Mr. Allen was asked specifically about the safety meeting of May 11, 1998, the day prior to Mr. Labatut’s accident. The minutes from the meeting reflect that Mr. Allen conducted the meeting and that Mr. Labatut was in attendance. Mr. Allen indicated that among the topics discussed at the May 11 safety meeting was the risk of injury associated with compressed air. Mr. Allen also explained to Pax employees that during the course of the upcoming week, there would be representatives from Air Products in the shop to conduct a function check of the skid in question and that at some point, circuits would be energized to include pressurized lines.

Also testifying about safety procedures in place at Pax was Michael Person, safety director at Pax during the time in question. Mr. Person indicated he was familiar with the custom in the industry to follow lock-out and tag-out procedures when working with pressurized air. He acknowledged that these procedures were not employed in this case. With regard to the safety rules that all Pax employees were given, Mr. Person indicated that Mr. Labatut received a copy of same in February of 1995. However, there was nothing in the safety rules about opening or closing valves that might be under pressure or and references to lock-out or tag-out procedures.

With regard to the ownership of the skid, Mr. Allen emphasized that ownership of the skid had not yet transferred to Air Products. The skid was still on Pax’s premises and had not been delivered to Air Products. Rather, representatives of Air Products, as intended buyers, were allowed access to the skid to conduct tests. They had no control or authority over the Pax employees who were also working on the skid.

|inMr. Allen testified that he knew of no industry standard as far as what is required with regard to tagging or barricading skids that are under pressure. Mr. Alien acknowledged that although he knew the skid was under pressure, he did nothing to the skid that would serve to warn others about the pressurized line. The following colloquy occurred concerning this point.

Q. Let me ask you a couple of things about safety procedures. You testified earlier that you knew the skid was under pressure?
A. Correct.
Q. Okay. Now, the skid was not flagged or barricaded in any way; is that correct?
A. That’s correct.
Q. Okay. Now, could you have done that if you so chose; could you have flagged it and barricaded it, put up signs, ribbons, balloons?
A. Certainly.
Q. Okay. And you chose not to do that?
A. Correct.
Q. Okay. Could you have tagged the valve that’s in question?
A. Yes.
Q. And you chose not to do that?
A. Correct.
Q. Could you have locked the valve if you wanted to, put a lock on it so that no one could open it or close it?
A. Could have put a lock on it. The handle could have physically been removed.
Q. But you chose not to do that?
A. Correct.

In granting the JNOV in favor of plaintiffs, the trial court found that “although fault and cause in fact are separate issues, the jury’s decision is not one which reasonable minds could render and is also contrary to the law and evidence.” The court further noted that “ ‘but for’ the failure of Air Products either to release the air from the skid before going to lunch and allowing the Pax employees to work on the skid, or to Inlock or flag and tag the valve which Charles Labatut turned, the accident would not have happened.” The court determined that the fault of Air Products was a cause-in-fact of Charles Labatut’s injuries, concluding that “ ‘[b]ut for’ the negligence of Air Products, Charles Labatut would not have been injured.” We disagree.

Based on our review of the entire record, we must find that the trial court erred in granting the JNOV. Although we may have also found differently than the jury, neither this court nor the court below sat as the triers of fact. In this case, it was the jury’s role to accept or reject the testimony of the various witnesses, not the court’s. The facts and inferences do not point so strongly and overwhelmingly in favor of plaintiffs that reasonable persons could not have found against them. Specifically, considering all the evidence in the light most favorable to Air Products, the jury could have reasonably found that the fault of Air Products was not a cause in fact of the injuries sustained by Mr. Laba-tut. We conclude that the jury was presented with adequate evidence to decide that Air Products was not in control of the skid at the time of Mr. Labatut’s accident and that Mr. Labatut would have been injured regardless of what Air Products did or did not do. Considering all of the evidence as set forth above, and the reasonable inferences to be drawn therefrom in favor of Air Products, we cannot say the jury’s verdict was one that-reasonable people could not have reached. Thus, we reverse the JNOV and reinstate the May 29, 2001 judgment.

DECREE

For the above and foregoing reasons, the trial court’s August 17, 2001 judgment granting JNOV in favor of plaintiffs is hereby reversed. The original judgment dated May 29, 2001, incorporating the jury verdict in favor of Air Products and dismissing plaintiffs’ claims with prejudice is hereby reinstated. All costs associated with this appeal are assessed to plaintiffs.

JNOV REVERSED; JURY VERDICT AND MAY 29, 2001 JUDGMENT REINSTATED.

DOWNING, J., dissents and assigns reasons.

CARTER, C.J., dissents for reasons assigned by Judge DOWNING.

hDOWNING, J.,

dissents and assigns reasons.

I respectfully dissent and would affirm the trial court. The jury erred finding Air Products’ acts were not a cause in fact of Mr. Labatut’s injuries. The trial court was, therefore, correct in entering a judgment notwithstanding the verdict (JNOV). It was not manifestly erroneous in attributing 10% fault to Air Products. The JNOV is not legally or factually erroneous and should be affirmed.

As articulated by the Louisiana Supreme Court, the five elements of the duty/risk analysis are as follows:

1) the conduct in question was a cause in fact of the resulting harm,
2) the defendant owed a duty of care to the plaintiff,
3) the defendant breached that requisite duty,
4) the risk of harm was within the scope of protection afforded by the duty breached, and
5) the plaintiff suffered actual damages.

Pitre v. Louisiana Tech University, 95-1466, p. 8 (La.5/10/96), 678 So.2d 585, 589-590. “If the plaintiff fails to satisfy one of the elements of duty-risk, the defendant is not liable.” Pitre, 95-1466 at p. 9, 673 So.2d at 590.

| ¡.Here, the jury found that Air Products was legally at fault in causing the accident. This finding of fault is uncontested. The jury, however, concluded that this fault was not a cause in fact of Mr. Labatut’s injuries. The trial court was correct in concluding that these two findings are inconsistent and that Air Products’ fault was a cause in fact of Mr. Labatut’s injuries. Cause in fact is the only element of the duty/risk analysis in dispute.

The trial court correctly observed that cause in fact is a “but for” analysis. Perkins v. Entergy Corporation, 98-2081, 98-2082, 98-2083, p. 26 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 407. And as the trial court noted, had Air Products released the air from the skid before going to lunch and allowing the Pax employee to work on the skid, utilized a barricade, or had it locked or flagged and tagged the valve that Mr. Labatut turned, he would not be injured. The trial court correctly stated: “Had there been any verbal or visual warnings to Charles Labatut that the skid was pressurized, he would not have attempted to remove the valve. ‘But for’ the negligence of Air Products, Charles Labatut would not have been injured.”

Thus, whether or not Air Products was in control of the skid at the time of the accident, no reasonable juror could conclude that Air Products’ fault was not a cause in fact of the accident. How could the accident have happened absent Air Product’s negligence? It makes no difference that other parties may have been negligent also. The majority points to no evidence in the record, and we can find none, showing that “Mr. Labatut would have been injured regardless of what Air Products did or did not do.”

Accordingly, the trial court was correct in entering JNOV in favor of Mr. Labatut and against Air Products. I further conclude that the trial courts’ JNOV is not legally or factually erroneous, and I would affirm it.

      . Plaintiffs also filed suit against Mr. Laba-tut's employer, named in the original petition for damages as "Pax Inc., Pax Cryogenics Systems, Inc., and/or Pax-Fab, Inc.,” and National Union Fire Insurance Company of Louisiana, as insurer of Air Products. According to the record, all of these defendants were subsequently released as parties, and plaintiffs' claims against them were dismissed with prejudice. Thus, the instant appeal concerns only plaintiffs' claims against Air Products.

      . Because we reverse the JNOV and reinstate the May 29, 2001 judgment, we need not address the remaining issues raised by Air Products and plaintiffs.