text:
    In re James E. KURZWEG.
    No. 2003-B-2902.
    Supreme Court of Louisiana.
    April 2, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James E. Kurzweg, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

In March 1991, Ursula and Ralph Holmes retained respondent’s law firm to represent them in a personal injury matter. In January 1992, respondent filed a petition for damages on behalf of his clients, but thereafter he did nothing further in connection with the matter. Moreover, for a period of several years, neither respondent nor his law partner, who also worked on the clients’ file, communicated with Mr. and Mrs. Holmes regarding their case. In November 1999, the trial court dismissed the Holmes’ suit as abandoned due to respondent’s failure to take any steps in the prosecution of the case. Respondent did not advise his clients of his inaction or the dismissal of their case by the court.

In June 2000, Mrs. Holmes filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, necessitating the issuance of a subpoena to compel his response.

| .DISCIPLINARY PROCEEDINGS

On August 23, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

In its report, the hearing committee found the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3), and that respondent violated the Rules of Professional Conduct as charged in the formal charges. The baseline sanction for negligent misconduct causing injury or potential injury to a client ranges from a reprimand to a suspension. The committee Ufound no mitigating factors, but determined that two aggravating factors are present, namely prior disciplinary offenses and substantial experience in the practice of law (admitted 1974). Under these circumstances, the committee recommended that respondent be suspended from the practice of law for six months. The committee further recommended that respondent complete at least ten hours of continuing legal education in ethics or professionalism during the period of his suspension.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found that the deemed admitted facts support the conclusion that respondent neglected the Holmes’ legal matter, failed to communicate with his clients, and failed to expedite litigation, in violation of Rules 1.3, 1.4, and 3.2. The deemed admitted facts also support the conclusion that respondent failed to adequately cooperate with the ODC in its investigation, in violation of Rules 8.1(b) and (c) and 8.4(a) and (g). However, the board concluded that the deemed admitted facts do not support a finding that respondent violated Rule 1.2 (scope of the representation), as charged in the formal charges.

Respondent violated duties owed to his clients, to the legal system, and as a professional. His failure to pursue his clients’ lawsuit resulted in the loss of their claims, and his failure to inform them of the abandonment no doubt caused his clients frustration and added further delay to the resolution of the matter. His failure to pursue the lawsuit, allowing it to stagnate on the court’s docket for more than six years, hcaused damage to the court system. His failure to cooperate in the disciplinary investigation placed an unnecessary burden on the system, causing damage to the profession.

Although the facts alleged do not specifically set forth respondent’s state of mind, they suggest respondent knew or should have known that he had failed to take action in the pending lawsuit and that the suit would be subject to dismissal. The board concluded the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

The board concurred in the aggravating factors cited by the hearing committee, and agreed the record does not support any mitigating factors.

Considering the facts and circumstances of this case, particularly respondent’s ineligibility, the board concluded that he should be required to apply for reinstatement prior to resuming the practice of law. Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case establish that respondent neglected a legal matter, failed to communicate with his clients, and failed to cooperate with the ODC in its investigation. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

|fiIn determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record reveals respondent neglected and failed to expedite his clients’ legal matter, resulting in their suit being dismissed on grounds of abandonment. His actions caused actual injury to his clients. The baseline sanction for such misconduct is a suspension from the practice of law. In light of the aggravating factors present, and considering the absence of any factors in mitigation, we conclude that a one year and one day suspension is necessary to protect the public, the legal system, and the profession.

Accordingly, we will accept the disciplinary board’s recommendation of discipline.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that James E. Kurz-weg, Louisiana Bar Roll number 7891, be suspended from the practice of law in Louisiana for a period of one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent has been ineligible to practice law since August 1992 for failure to comply with the mandatory continuing legal education requirement; since'January 1994 for failure to pay the disciplinary assessment; and since September 1995 for failure to pay his bar dues.

      . In addition to these rule violations, the formal charges originally alleged that respondent's conduct also violated Rules 1.1(a) (failure to provide competent representation to a client) and 5.1(a)(b)(c) (responsibilities of a partner or supervisory lawyer) of the Rules of Professional Conduct. However, the ODC subsequently dismissed these charges.

      . In 1987, respondent was privately reprimanded by the Committee on Professional Responsibility of the Louisiana State Bar Association for neglecting a legal matter.


source: Caselaw Access Project

author: JjPER CURIAM.

license: Public Domain

text:
    In re Marvin L. SCHWARTZ.
    No. 2004-B-0519.
    Supreme Court of Louisiana.
    April 2, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Marvin L. Schwartz, an attorney licensed to practice law in the States of Louisiana and New York, based upon discipline imposed by the Supreme Court of the State of New York.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2008, respondent was convicted of a misdemeanor violation of New York General Business Law § 352-e(l)(c), and was placed on probation for a period of three years. On December 8, 2003, the Supreme Court of the State of New York, Appellate Division: Second Judicial Department entered an order suspending respondent from the practice of law based on his conviction of a serious crime, pending further orders of the court.

By letter dated January 28, 2004, respondent self-reported his interim suspension to the ODC. The ODC then filed a petition to initiate reciprocal discipline in Louisiana. By order of this court dated March 2, 2004, respondent was given thirty days to demonstrate why the imposition of discipline in this state would be unwarranted. On March 11, 2004, respondent filed a pleading consenting to the imposition of reciprocal discipline.

|,DISCUSSION

The imposition of reciprocal discipline against respondent based upon the New York judgment is clearly appropriate under the facts of this case. Following his conviction of a serious crime, the Supreme Court of the State of New York has suspended respondent from the practice of law in that state pending further proceedings. Respondent concedes that the imposition of identical discipline in Louisiana is appropriate, and there is no suggestion otherwise upon the face of the record. Accordingly, we will impose reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the petition for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Marvin L. Schwartz, Louisiana Bar Roll number 9906, be and he hereby is suspended from the practice of law on an interim basis, pending further orders of this court.


text:
    In re Larry E. BROOME.
    No. 2004-OB-0824.
    Supreme Court of Louisiana.
    April 8, 2004.
   ORDER

Considering the “Motion to be Reinstated to the Louisiana State Bar Association” filed by respondent,

IT IS ORDERED that the motion not be considered, as it does not comply with Supreme Court Rule XIX, § 24. Respondent should file his petition with the disciplinary board in accordance with the requirements of that section.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Alan GOLDEN, Chief Counsel, Indigent Defender Office and The Indigent Defender Office.
    No. 2004-CC-0248.
    Supreme Court of Louisiana.
    April 8, 2004.
   PER CURIAM.

Granted. It appears from the transcript of the hearing conducted on December 15, 2003, on the rule to show cause issued by the Hon. Leon L. Emanuel, that the Caddo Parish Indigent Defender’s Office, through its chief counsel, Alan Golden, was not prepared to go forward with its legal and factual objections to the rule adopted by Judge Emanuel for Section I of the Criminal Courts in Caddo Parish on December 3, 2003. The office had previously filed a motion to recuse Judge Emanuel, which had been referred to another section of the court, and took the position at the hearing conducted on the rule to show cause that the recusal issue needed to be resolved first before the merits of the rule proposed by Judge Emanuel could be addressed. The recusal motion was subsequently denied but only after Judge Emanuel considered the rule to show cause satisfied by the limited response of the Indigent Defender’s Office and that his rule was accordingly in place. We agree with the court of appeal that because of the limited response by the Indigent Defender’s Office, the question of whether Judge Emanuel 12had the inherent authority to dictate to that office policy and procedures with respect to the representation of indigent defendants in that section of court is not now directly at issue. However, retrial of the rule to show cause for purposes of allowing the Indigent Defender’s Office to make a full record of its reasons why Judge Emanuel should not, or may not, enforce his order may obviate the need for any further proceedings in any other court and will, in any event, provide an appellate court with an appropriate vehicle for resolving the issue in its exercise of supervisory authority over the lower courts.

Accordingly, enforcement of Judge Emanuel’s order of December 3, 2003, is hereby stayed and the district court is directed to reopen the rule to show cause for purposes of entertaining the Indigent Defender’s Office and reconsidering the propriety of its own rule.


author: | .PER CURIAM.

text:
    STATE of Louisiana v. ADVANCED RECYCLING, INC., James G. Trumps and Robert Parker.
    No. 2002 K 1889.
    Supreme Court of Louisiana.
    April 14, 2004.

      Charles C. Foti, Jr., Attorney General, Michael Harson, District Attorney, David M. Smith, Neal Johnson, for applicant.
    Jason W. Robideaux, William L. Goode, Lafayette for respondent.
   | .PER CURIAM.

The state has charged Advanced Recycling, Inc., and its corporate officers named in their individual capacity, with one count of theft over the amount of $500 and one count of filing or maintaining false public records in violation of La.R.S. 14:67 and 14:133, respectively. The charges stem from an investigation conducted by the Louisiana State Police and the Louisiana Department of Environmental Quality [Department or DEQ] in 1997 into the operations of Advanced Recycling, Inc. [ARI], a licensed waste tire processor owned and operated by respondents Trumps and Parker. In an agreement with the Department, ARI received compensation for the processing and marketing of waste tires to recycling facilities approved by the Department. The state alleges that in the course of operating ARI, respondents submitted several falsified manifests to DEQ in 1997 requesting payment for specified amounts of on-road tires shredded and shipped to an approved reeycler according to the Department’s regulations. In fact, the state alleges, respondents inflated their claims for | ¡.compensation by including in the specified amounts of processed tires waste off-the-road tires (OTRs) shipped unprocessed and whole to an unapproved site in Mississippi. According to the state, respondents thereby knowingly filed in a public office, and maintained at their facility under a duty imposed “by law, regulation, or rule,” records “containing a false statement or false representation of a material fact.” La.R.S. 14:133(A)(3).

Throughout these extended proceedings, respondents have claimed that the state may not charge them with an offense under La.R.S. 14:133 because they had no duty to maintain or file with the Department records pertaining to the collection and disposal of OTRs, which the legislature did not expressly authorize the Department to regulate until 1999. After their first attempt to quash the count charging the violation of La.R.S. 14:133 failed, see State v. Parker, 99-01619 (La. App. 3rd Cir.2/17/00), writ denied, 00-0770 (La.6/23/00), 765 So.2d 1039, respondents filed a motion in limine seeking clarification by the trial court of the Department’s authority to regulate the disposal of OTRs in 1997. The trial court concluded that respondents had no duty imposed on them by statute or Department regulation to file manifests or monthly reports regarding their handling and disposal of off-road tires. The court further ruled that it would prevent the state from offering at trial any evidence contrary to its findings on the motion in limine. The state unsuccessfully sought review of that decision. State v. Parker, 00-00985 (La.App. 3rd Cir.9/4/00), writ denied, 00-3051 (La.1/26/01), 781 So.2d 1263.

Thereafter, the respondents filed a second motion to quash on grounds that in light of the trial court’s rulings on the motion in limine, the state could not sustain its prosecution of them for filing or maintaining false public records. The 13trial court granted the motion and the court of appeal affirmed, in part because the state conceded that the Department was, in fact, not authorized to pay for the disposal of OTRs in 1997. State v. Advanced Recycling, Inc., 02-0183 (La.App. 3rd Cir.6/5/02), 819 So.2d 420. Despite this concession by the state, we granted its present application to reverse the decision below for the reasons that follow.

This prosecution of respondents takes place against the background of the legislature’s attempts to improve .the environmental quality of Louisiana by reducing landfills of solid wastes strewn around the state. In 1989, the legislature enacted Louisiana’s Solid Waste Recycling and Reduction Law, La.R.S. 30:2411-2422 [SWRRL], to remove “certain materials from the solid waste stream going into landfills currently being utilized for the disposal of solid waste in Louisiana,” and to conserve “energy by efficient reuse of these products, thereby benefitting all citizens of the state.” 1989 La. Acts 185, § 2411(A)(1). In pertinent part, the materials targeted for disposal by SWRRL include waste tires, defined as “a whole tire that is no longer suitable for its original purpose because of wear, damage, or defect.” La.R.S. 30:2412(23). In its original version, the act defined tire generally as “a continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle,” La.R.S. 30:2412(19), and specifically limited the definition of motor vehicle to “an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state.... ” La.R.S. 30:2412(5). The state and defense agree that in its original version, SWRRL did not govern so-called off-road tires U(OTRs) and would not until 1999, or after the acts charged against respondents in the present case.

In 1992, the legislature added subsections “G” and “H” to La.R.S. 30:2418. Subsection “G” established within the state treasury a Waste Tire Management Fund, drawing on the fees imposed on the sale of new tires among other sources of revenue, maintained for the “sole[ ] ... purpose of solving the state’s waste tire problem.” Subsection “H” authorized the Department to enact regulations governing the standards, requirements and permitting procedures for waste tire transporters, collections sites, and processors, and specifically authorized the Department to provide “incentives and assistance for collection and transportation of waste tires including, but not limited to, incentives and assistance for local governing authorities which shall be given the highest priority.” La.R.S. 30:2418(H)(5). The subsection further directed the Department to provide incentives and assistance to waste tire processing facilities, “but only if such facilities use, consume, or process the tires so that they may be reused as a raw material, product, or fuel source.” La.R.S. 30:2418(H)(7).

Acting under the authority of the 1992 legislation, the Department adopted regulations which in pertinent part provide for the payment of $0.85 per 20 pounds of tire for the processing of waste tire, ie., the shredding or cutting of the tire into four-by-four inch sections or smaller pieces. LAC 33:VII.10535(D)(4)(a). The regulations also provide for an additional $0.15 per 20 pounds of processed waste tire for the delivery of the scraps as raw material to a qualified recycler. | SLAC 33:VII.10535(D)(4)(c). A processor may therefore make a total of $1.00 per 20 pounds of waste tires processed and marketed in compliance with the Department’s regulations. As for whole waste tires, the Department’s regulations specifically provide that “[b]oth the processing and the marketing payments shall be made for whole waste tires or baled waste tires that are marketed and shipped to a qualified recycler by the processor.” LAC 33:VII.10535(D)(6). A processor may therefore make $1.00 per tire by baling whole waste tires and delivering them to a qualified recycler.

The Department’s regulations further provide that payments will be made “to the processor on a monthly basis, after properly completed monthly reports are submitted by the processor to the department ... [on] forms ... provided by the administrative authority.” LAC 33:VII.10535(D)(7). Finally, the Department’s regulations call for each qualified processor to submit monthly manifests, again on forms provided by the agency, indicating each shipment of more than 20 waste tires received at the processing facility. LAC 33:VII.10525(A). The manifest forms also record the shipment of waste tires, either processed into shreds or baled whole, from the waste tire processing facility to an approved recycler. LAC 33:VII.10515(C). These manifests then become part of the monthly waste tire facility reports to the Department certifying the pounds of waste tires processed during the month and the pounds of waste tire material marketed and delivered as raw material to a qualified recycler. LAC 33:VII.10525(B). The forms provided by the Department for the waste tire facility reports thus contain separate sections for a processor to list the total number of pounds processed (ie., shredded) waste tires delivered to a qualified recycler, compensated at a | (¡total of $1.00 per 20 pounds, and whole waste tires delivered to a qualified recycler, compensated at a total of $1.00 per tire. The Department’s regulations further provide that each processor must certify that the information provided on the manifests and monthly reports is accurate, on penalty of fine or imprisonment, and require the processors to maintain the records for a minimum of three years. LAC 33:VII.10533(B) and (F).

However, all parties to these proceedings agree that at some point in the mid-1990’s the Department began underwriting the recycling of off-road tires collected from qualified parish collection centers, without expressly adopting regulations to that effect and without apparent legislative sanction in La.R.S. 30:2418 before its 1999 amendment. The Department paid as much as $5.00 per OTRs which, as the state pointed out at the hearing on respondents’ original motion to quash, might weigh as much as 1,000 pounds. The state also conceded at the hearing on respondent’s original motion to quash that under its informal policy for OTRs, the Department compensated waste tire facilities for the processing and marketing of off-road tires in the same manner as on-road program tires, ie., $1.00 for every 20 pounds shredded and sent to an approved market. The apparent ultra vires nature of the Department’s off-road tire policy ultimately led both the trial court and the court of appeal to agree with respondents’ argument that they had no duty to file or maintain accurate records regarding collection and disposal of OTRs according to regulations governing only the collection and disposal of on-road, program tires. Specifically, the Third Circuit rejected the state’s argument that “DEQ’s general authority over solid waste authorized it to develop the procedure for OTRs,” in light of the state’s concession that “OTRs were not included in the [SWRRL] or the DEQ 17reguIations and that DEQ was not authorized to pay for OTRs through the waste tire fund.” Advanced Recycling, Inc., 02-0183 at 5, 819 So.2d at 424.

We need not reconsider here whether SWRRL gave the Department the authority before 1999 to regulate the disposal of off-road waste tires by requiring compliance with its rules and regulations for reporting the collection and disposal of on-road tires. Even assuming, arguendo, that the Department lacked such authority, the court of appeal failed to address a second aspect of the state’s argument outlined in its original answers to respondent’s motion for discovery and for bill of particulars filed into the record in early 1999. The state’s answers informed the defense that prosecution of both the theft and false public records counts against respondents focused on ARI’s waste facility reports submitted to the Department in July and October of 1997, and specifically on waste tire manifests attached to the reports purporting to show the shipment of waste tires from ARI to Earth Management, an approved recycler, on July 25, October 21, and October 23, 1997. Attached to these manifests were ARI invoices describing the shipments on those dates as “tire shreds.” The monthly waste tire facility reports for July and October requested compensation from the Department for the processing of specified amounts of waste tires shipped to an approved market, at $1.00 for every 20 pounds, but left entirely blank the section on the forms for reporting disposal of whole waste tires to approved recyclers, which the Department compensated at the lower rate of $1.00 per tire. The state informed respondents in its answers to their bill of particulars that it would show at trial that the waste tires listed on the manifests for July 25, October 21, and October 23 as tire shreds shipped to Earth Management were, in fact, whole, unprocessed waste tires “hauled away to an unapproved market in Mississippi.” In its memorandum | Rin opposition to the motion to quash, the state elaborated on its discovery answers as follows:

The defendants maintain that the tires at issue were ‘off the road’ tires (OTR’s) and that the[ir] status as OTR’s is of prime importance. In fact, the State has never alleged that the tires were OTR’s. The fact that the tires were OTR’s while perhaps factually correct is completely irrelevant to the issue in this case. What is relevant to both [counts] is that the defendants on the three occasions charged in the indictment, as supplemented by the three (3) bill of particulars, submitted documentation to the State of Louisiana, Department of Environmental Quality Waste Tire Management Fund (DEQ) asserting that they ‘processed’ tires, and ‘marketed’ them to a Lafayette company called Earth Management when in fact the tires represented on the documentation submitted to DEQ were not ‘processed’ tires, but were instead, whole, unprocessed tires which had been sent to an out-of-state facility that had not been approved by the DEQ as an acceptable after-market. ... [W]hile manifests were arguably not required to move the OTR’s, the manifests were required to be submitted to the DEQ with the ‘Waste Tire Facility Report and Application for Payment’ which the defendants were required to file in order to collect payment for processed, marketed tires from the DEQ Waste Tire Management Fund.... The defendants by submitting multiple ‘Waste Tire Facility Report and Application for Payment’ [forms] containing misrepresentations, fraudulently obtained monies from the DEQ which they were not entitled to obtain.

The state accompanied its answers to respondents’ motion for particulars with a notice of intent to introduce evidence of other criminal acts pursuant to La.C.E. art. 404(B). The notice alleged other instances at the end of 1996 and throughout 1997 in which ARI submitted monthly reports misrepresenting whole waste tires shipped to an unapproved market as processed tire material shipped to an approved recycler. The state eventually incorporated these other alleged acts in an amending and supplemental answer filed in 2002 as other instances of theft by misrepresentation charged in a single count under La.R.S. 14:67 which also encompasses the transactions on July 25, October 21, and October 23,1997.

IflAs clarified by its answers to respondents’ request for particulars, the gist of the state’s case against respondents is that by misrepresenting whole waste tires distributed to an unapproved market as processed or shredded tires sent to an approved recycler, respondents exploited for unjustified economic gain the incentive program established by the Department at the direction of the legislature to promote not simply the disposal of waste tires but the processing and recycling of those tires for beneficial end use as product or fuel. We agree with the state that deception of this nature constitutes a false representation of a material fact in a public record for purposes of La.R.S. 14:133(A)(3) because a processor of waste tires in Louisiana has a duty imposed by law and Department regulation to submit and retain accurate records of its processing and marketing of waste tires to approved recyclers as the basis for receiving state funds in accord with the Department’s incentive plan. See La.R.S. 44:1(2)(a); Lewis v. Spumey, 456 So.2d 206, 207 (La.App. 4th Cir.1984)(corporate records which “necessarily reflect business or transactions” concerning state funds are public records), writ denied, 457 So.2d 1183, 458 So.2d 488 (La.1984).

As a general rule, a motion to quash “is essentially a mechanism by which to raise pre-trial pleas of defense, ie., those matters which do not go to the merits of the charge.” State v. Perez, 464 So.2d 737, 739 (La.1985). The matter of “factual guilt or innocence of the offense charged is [therefore] not raised by the motion to quash.” Id., 464 So.2d at 740 (citations omitted). An exception exists for cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial. See State v. Legendre, 362 So.2d 570, 571 (La.1978)(quashing of bill of information for aggravated battery proper when state alleged that the dangerous weapon used was a concrete parking | inlot). In the present case, the trial court erred in granting the motion to quash as if the exception to the general rule applied. However, entirely apart from the controversy involving the Department’s authority to bring OTRs within its regulatory authority in 1997, the state has alleged at least one set of facts involving the Department’s undisputed authority in 1997 to promote the processing and marketing of on-road waste tires for recycling which may support a conviction for violation of La.R.S. 14:133(A)(3) if found credible by the trier of fact. Accordingly, the rulings of the courts below are reversed and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

JUDGMENT OF COURT OF APPEAL REVERSED; CASE REMANDED.

      . 1999 La. Acts 1015 amended La.R.S. 30:2412 to add off-road vehicles to the Act's coverage, defining the term as “construction, farming, industrial, mining, and other vehicles not normally operated on the roads of this state.” La.R.S. 30:2412(5.1). The term tire now means "a continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle or off-road vehicle.” La.R.S. 30:2412(19).


author: LPER CURIAM.

text:
    STATE of Louisiana v. Levi Joseph GARRICK.
    No. 2003-K-0137.
    Supreme Court of Louisiana.
    April 14, 2004.

      Charles C. Foti, Jr., Attorney General, Earl B. Taylor, District Attorney, Alisa A. Gothreaux, for applicant.
    Robert F. DeJean, Jr., Opelousas, for respondent.
   LPER CURIAM.

Although not required to do so by Louisiana law, if a prosecutor adopts an open file policy by which he or she makes the prosecution file available to the defense to satisfy the state’s discovery obligations as a matter of La.C.Cr.P. arts. 717-728, and its duty to disclose material exculpatory evidence as a matter of the Due Process Clause, Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), defense counsel “may reasonably rely on that file to contain all materials” the state is obligated to disclose. Strickler v. Greene, 527 U.S. 263, 283, n. 23, 119 S.Ct. 1936, 1949, 144 L.Ed.2d 286 (1999).

In the present case, the court of appeal reversed respondent-defendant’s conviction and sentence for armed robbery, a violation of La.R.S. 14:64, on grounds that the state did not fully and fairly comply with the open file procedure conducted with the defense and that its failure to disclose in a timely manner the exculpatory content of testimony provided by a former co-defendant turned prosecution witness at trial misled the defense and constituted “a legal defect in the | gproceedings of such a nature which makes the verdict reversible as a matter of law.” State v. Garrick, 02-0712, p. 16 (La.App. 3rd Cir.12/11/02), 832 So.2d 1110, 1120; see La.C.Cr.P. art. 775(3). We granted the state’s application to reverse that ruling because the record fails to support a finding that the late disclosure of the exculpatory evidence substantially prejudiced respondent and deprived him of a fundamentally fair trial.

The evidence at trial established that on the morning of March 27, 2001, two hooded and armed men entered the Washington State Bank in Palmetto, Louisiana, and took over $20,000. The men fled to a car parked outside occupied by respondent in the back seat. The vehicle sped away from the scene but was stopped shortly thereafter by West Baton Rouge Parish law enforcement officers. The police recovered all of the money taken in the robbery along with three sets of gloves and hoods, and three weapons, only one of which, a .45 caliber automatic, was actually loaded.

In a statement given to the police following his arrest, which the state did not introduce at trial, respondent identified the perpetrators as his friends and traveling companions, Hilton Kelly and Skyler Gui-dry, and claimed that he was an innocent victim of circumstances in which, on the spur of the moment after they drove into Palmetto, Kelly and Guidry decided to commit the robbery and then left him behind in the car as they walked into the Washington State branch bank. Testifying under a grant of immunity, and in return for sentencing concessions in his own case, Guidry told jurors that the three men spent the night before the robbery in a motel room in Lafayette drinking and consuming drugs with two female companions. During the evening, the men discussed robbing a drug dealer in Palmetto. At some point, either that evening, or later the next morning as they drove into Palmetto, the | ¡¡discussion turned to bank robbery. However, Guidry told jurors that after their vehicle circled the block around the First Washington branch several times, he and the defendant informed Kelly, who was driving, that they would not go through with the plan. Kelly brushed aside their objections and ordered Guidry out of the car. Guidry then joined Kelly in the bank because Kelly had the only loaded gun, the .45 caliber automatic, and because Kelly “has a mental problem.” “I know him to go off on people before in the past,” Guidry told jurors, “I didn’t know what he was capable of.” After the robbery, as the three men sped towards Baton Rouge, Kelly refused their repeated demands to get out of the vehicle and struggled to keep respondent’s head down after ordering both men to the floor of the car as the police approached.

The state subsequently charged all three men with armed robbery and jury selection in respondent’s case was completed on December 5, 2001. The court sent the jurors home with the evidentiary portions of the trial set to begin on December 13, 2001. On December 12, the state and defense filed into the record a joint stipulation acknowledging that the state had “provided a copy of the entire law enforcement agency investigative file in this matter to the defendant” in satisfaction of its discovery obligations, and had further agreed “to provide to the defense any additional law enforcement agency investigative material subsequently obtained ... [including] any exculpatory evidence discovered, irrespective of the source.” The agreement specifically excepted the state’s work product from the open file discovery.

However, unknown to the defense, the case file did not contain a copy of a motion submitted by the prosecutor to the Attorney General’s Office on December 6, 2001, the day after jury selection concluded, seeking approval of a grant of use | immunity to Guidry to compel his testimony at trial. La.C.Cr.P. art. 439.1. On the morning of December 13, 2001, after the returning jurors were impaneled and after the state filed its motion to compel signed by an assistant attorney general, the trial court conducted a hearing in chambers with respect to the pending immunity grant. Following a brief discussion with counsel, including the attorney who represented both Guidry and Kelly, the court signed the motion with the understanding that it would appoint new counsel for the co-defendants if either man testified at trial.

Proceedings then resumed in open court with the trial judge’s general instructions to the jury and the state’s opening remarks. At that point, the court conducted a second conference in chambers, evidently prompted by the prosecutor’s report that Guidry had agreed to testify as a state witness. From the subsequent questioning of Guidry in open court, it appears that the co-defendant had met with his attorney and an investigator for the District Attorney’s Office earlier that morning to discuss the immunity grant and had agreed to testify. Guidry had also provided a brief oral statement outlining the testimony he would provide the state. In the brief meeting which subsequently took place in the hallway outside the courtroom before he testified, Guidry did not discuss details of his testimony with the prosecutor but learned that the state had “sweetened the pot” with a promised sentencing cap of 25 years imprisonment at hard labor in his own case as an incentive for testifying.

Against this backdrop, the court reaffirmed its decision to grant Guidry limited use immunity and appointed new and separate counsel for both co-defendants as the result of a conflict arising out of their joint representation by a single attorney. Defense counsel responded to these developments by claiming surprise and moving for a mistrial or a continuance (or, more properly, a recess, as |fitrial had already begun with selection of a jury, see La.C.Cr.P. art. 708) “until such time that I can regroup with my client.” Counsel argued that “you can’t take [the motion] out of file and say here’s open file.... ” Counsel also asserted that he had not filed for a list of the state’s witnesses because he had relied on the state’s open file agreement which explicitly acknowledged the state’s duty to provide information “on a continuing basis.” However, the state argued that the defendant was aware of Guidry’s previous statement implicating respondent in the offense and further pointed out that Guidry’s name appeared on the state’s subpoena list which had been turned over to the defense. The trial court denied both a mistrial and a recess, and a jury subsequently found the defendant guilty as charged.

In reversing respondent’s conviction and sentence, the court of appeal observed that “[fjailure of full, good faith compliance [with open file discovery] cannot be looked upon as harmless error where the failure relates to a due process violation such as failure to divulge exculpatory evidence.” Garrick, 02-0712 at 14, 832 So.2d at 1118. We have no quarrel with the court of appeal’s premise that “when litigants [choose] to modify the discovery process and enter into an open file discovery agreement, it must be fully complied with in good faith.” Id. However, this Court has held generally that discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant. State v. Strickland, 398 So.2d 1062, 1067 (La.1981); State v. Norwood, 396 So.2d 1307, 1309 (La.1981). Even a discovery violation involving the state’s failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at 281, 119 S.Ct. at 1948. Strickler observes in this regard that 1 fiwhile “the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence .... [t]here are three components of a true Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] claim: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Id., 527 U.S. at 281-82, 119 S.Ct. at 1948.

In the present case, the state did not actually suppress the exculpatory portions of Guidry’s testimony and the prosecutor may not even have been aware of the mixed testimony his witness would present from the brief oral statement taken by his investigator shortly before Guidry appeared as the state’s first witness at trial. Moreover, the state’s strategy of turning one of the co-defendants in the case into a prosecution witness to increase the odds of convicting respondent arguably did not constitute part of the investigative file the state had committed itself to disclose as opposed to work product specifically exempted from the open file agreement. However, for present purposes, we assume that as part of its open file discovery the state should have provided specific notice to the defense that it had sought the approval of the Attorney General’s Office for immunity to compel Guidry’s testimony, that Guidry’s oral statement to the state’s investigator on the morning of December 13, 2001 anticipated the mixed testimony he would provide at trial, both implicating respondent in a conspiracy to commit armed robbery yet exculpating him on the charged offense, and that the prosecutor should have informed the defense immediately of the exculpatory content of Gui-dry’s account of the robbery before the evidentiary portions of trial began. Even if he lacked personal knowledge of the details of Guidry’s anticipated testimony, the prosecutor |7was charged with knowledge available to all of the members in the investigative team, Strickler, 527 U.S. at 281, 119 S.Ct. at 1948, and he had the duty to “make timely disclosure of the favorable evidence to provide the defense with adequate opportunity to present the material effectively in its case.” State v. Kemp, 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545.

Nevertheless, while late disclosure as well as nondisclosure of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense “must be evaluated in the context of the entire record.” Kemp, 00-2228 at 7, 828 So.2d at 545. In the present case, defense counsel sought a continuance or mistrial to “regroup” but the record shows that the testimony subsequently provided by Guidry meshed with the defense that counsel had painstakingly explained to prospective jurors during the voir dire examination conducted a full week before Guidry testified and, apparently, before open file discovery had occurred. Counsel had emphasized in jury selection that under the law of principals in Louisiana, see La.R.S. 14:24, mere presence at the scene of the crime, and mere knowledge that a crime is about to occur, does not mean that an individual is “concerned” in, or aided or abetted, the commission of an offense, State v. Schwander, 345 So.2d 1173, 1175 (La.1977). Counsel thus asked jurors whether they would automatically vote to convict if the evidence showed that at some point respondent knew what was about to happen but remained behind in the car without attempting to run away or hitchhike. Counsel advanced this defense of “mere presence” in accord with the statement respondent had given the police shortly after his arrest.

Guidry’s testimony changed the contours of that defense somewhat when the prosecutor impeached his own witness on the basis of Guidry’s post-arrest |sstatement in which he made no mention of any initial conspiracy to rob a drug dealer in Palmetto during the night of drinking and drug consumption in the Lafayette motel room. Guidry conceded on redirect that the discussion about robbing the Washington State branch bank took place in the Lafayette motel room and not as the men drove into Palmetto the next morning. However, even that concession by Guidry did not impact the core of the defense, which remained consistent from the beginning of jury selection to closing argument. In those final remarks, counsel asked jurors to consider that whatever else might have been said during the night of drinking in the Lafayette motel room, on the following morning, when respondent sobered up and found himself “over there in front of that bank that’s where the tire met the road legally speaking ... this young man, said no I’m not doing it, he is withdrawing. He is withdrawing from that act that they are contemplating committing.” Counsel also gave the same explanation for why respondent did not leap out of the car and run away that Guidry gave in his testimony. “Who is the only man with the bullets in the gun,” counsel reminded jurors, “The testimony you heard was Kelly was the only man with bullets in the gun.”

The record therefore shows that defense counsel integrated Guidry’s unanticipated testimony into his overall defense according to legal principles discussed with prospective jurors at the outset of the case. Counsel had deferred his opening statement to the defense case-in-chief and had therefore not made any specific evidentia-ry claims that Guidry’s testimony then undercut. Counsel had additionally prepared a special requested instruction on the defense of withdrawal from a conspiracy. The instruction drew on this Court’s decision in State v. Lobato, 603 So.2d 739, 746 (La.1992), which observed that (“[t]o prove | flwithdrawal, a defendant must show affirmative actions made by him which are inconsistent with the object of the conspiracy. ... Such affirmative actions include ... notification to the co-conspirators of abandonment or withdrawal.”). The trial court ultimately declined to give the instruction but gave counsel free rein to argue the concept of withdrawal from a conspiracy as part of a defense that respondent had been merely present at the scene of the bank robbery and therefore not concerned as a principal in the commission of the offense.

The record thus shows that the trial court’s denial of a mistrial or a postponement of the evidentiary portions of trial did not prejudice the defense or otherwise render the proceedings fundamentally unfair. The Third Circuit’s decision is therefore reversed and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermit-ted on original hearing.

DECISION OF THE COURT OF APPEAL REVERSED; CASE REMANDED.


author:
[ KIMBALL, Justice. | JOHNSON, Justice,
      11 KNOLL, Justice,

text:
    STATE of Louisiana v. Ean Lavar JOHNSON.
    No. 2003-K-1228.
    Supreme Court of Louisiana.
    April 14, 2004.

      Charles C. Foti, Jr., Attorney General, John Marvin, District Attorney, C. Sher-burne Sentell, III, Minden, for applicant.
    James E. Beal, for respondent.
   [ KIMBALL, Justice.

In this case, we are asked to review the correctness of the court of appeal’s decision reversing the unanimous conviction and sentence of a defendant in violation of La. R.S. 14:95.1, felon in possession of a firearm. For the reasons that follow, we hold that the court of appeal erred by making credibility determinations based on witnesses’ testimony at trial and acted outside the scope of its duty to review the trial court’s decision by substituting its opinion for that of the trier of fact.

FACTS AND PROCEDURAL HISTORY

On July 10, 2000, the defendant, Ean Lavar Johnson, was charged by a bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 in connection with his arrest on June 29, 2000. On the night in question, at approximately 1:45 a.m., the Minden Police Department answered a disturbance call from the Southern Inn Motel. Upon arrival, the officers saw a car leaving the scene, which they stopped for a child restraint violation after seeing a small child standing up in the vehicle. Officer Wayne Chandler approached the automobile and noticed the strong smell of marijuana and that the driver appeared to be intoxicated. The officers placed their spotlights on the car, and throughout their investigation and | ^search did not observe any furtive movements by any of the occupants of the car. Because Officer Chandler recognized the defendant, a passenger in the backseat of the vehicle, from past narcotics arrests, he focused his flashlight on him to see if he attempted to dispose of narcotics while everyone else was removed from the car. When the defendant finally exited the vehicle, Officer Chandler looked inside it and found a small, .25 caliber automatic pistol on the floorboard of the car where the defendant’s feet had been. None of the occupants of the vehicle responded when Officer Chandler asked to whom the gun belonged.

During the trial, Officer Chandler testified that he did not see the defendant make any type of furtive movements but the officer felt that the defendant “appeared nervous and [was] hiding something.” As the others were exiting the vehicle, the officers testified that the defendant “was reluctant to leave, and repeatedly asked ‘why do I have to get out?’ ”

Officer Tim Morris testified at trial that he was assisting in removing and searching the occupants of the vehicle and noted that the defendant was the last person to exit the vehicle. Officer Morris did not recall seeing any objects being passed between any of the passengers and he testified that he did not observe the defendant making any furtive movements.

Sergeant Marvin Garrett also testified that the defendant was the last person to be removed from the vehicle and that it appeared that the defendant was reluctant to exit the vehicle. Sergeant Garrett also testified that he did not observe the defendant making any furtive movements and that none of the vehicle’s passengers admitted owning the pistol.

The State’s first adverse witness at trial, Monica Eason, testified that she was in the car, sitting in the middle of the backseat next to the defendant, on the night in 13question. She stated that they had just picked up the defendant to give him a ride home when they were stopped by the police. She further testified that the pistol belonged to her and that she had found it near a trash dumpster three months before the night of the incident. Eason testified that she had been carrying the pistol in her purse, but as she “scoot[ed] across the backseat to get out of the car, [she] took the gun out of [her] purse, and attempted to push it up under the driver’s seat.” She also testified that the officer removed the defendant from the car first and placed him in a patrol car. Further, she admitted that she remained silent when the officer asked to whom the gun belonged and it was not until six days after the defendant’s arrest that she went to the police station to make a written statement that the pistol was hers and not the defendant’s. During the State’s questioning, Eason stated that she did not know how the pistol worked nor did she know where the safety was located.

Tinyia Reeder was also called by the State as an adverse witness at trial. She testified that she was also seated in the backseat of the vehicle with the defendant on the night of his arrest. She testified that as the police removed the defendant from the car, Eason whispered to her that she had a gun, and that Eason put the gun under the seat. Reeder also stated that she never saw the gun herself and was unable to recall which seat she was sitting in, but later testified that she was sitting on the right of the backseat.

The defendant testified that on June 29, 2000, he never saw or possessed the .25 caliber pistol found in the vehicle. He stated that his friends, Eason and Reeder, stopped to give him a ride and just moments later the car was stopped by the police. The defendant stated he was sitting in the backseat with Eason and Reed-er, but that he did not see either of them with the pistol.

The matter was submitted to the jury, which returned a verdict of guilty as |4charged and the defendant was later sentenced to 15 years at hard labor without benefit of parole, probation or suspension of sentence. The defendant’s motion to reconsider the sentence was denied and the defendant appealed.

On appeal, the second circuit, with one judge dissenting, overturned the defendant’s conviction and sentence. See State v. Johnson, 36,854 (La.App. 2 Cir. 3/14/03), 839 So.2d 1247. The appellate court found the defendant’s first assignment of error meritorious holding that “[t]he evidence was not sufficient to prove either who possessed the firearm or that it was the defendant, and not the other passengers in the car, that had sufficient dominion and control over the firearm to constitute constructive possession.” Johnson, 36,854 at p. 13, 839 So.2d at 1255.

On the application of the State, we granted certiorari to review the correctness of the court of appeal’s decision reversing the defendant’s conviction and sentence in violation of La. R.S. 14:95.1. State v. Johnson, 03-1228 (La.11/21/03), 860 So.2d 537.

LAW AND DISCUSSION

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sylvia, 01-1406, p. 2 (La.4/9/03), 845 So.2d 358, 361; State v. Captville, 448 So.2d 676, 678 (La.1984). Therefore, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361; Captville, 448 So.2d at 678. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may Rimpinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361 (citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988)).

In this case, to prove a violation of La. R.S. 14:95.1, the State must show that the defendant was in possession of a firearm and is a convicted felon. The controverted issue here is whether the defendant had the requisite intent to possess the weapon either through actual possession or through constructive possession. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337, 338-39; State v. Bell, 566 So.2d 959, 960 (La.1990). Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. State v. Hearold, 603 So.2d 731, 735 (La.1992); State v. Trahan, 425 So.2d 1222, 1226 (La.1983); State v. Goiner, 410 So.2d 1085, 1086-87 (La. 1982).

Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. See State v. Mose, 412 So.2d 584, 585 (La.1982) (gun located in defendant’s bedroom sufficient for constructive possession); State v. Frank, 549 So.2d 401, 405 (La.App. 3 Cir. 1989) (constructive possession found where gun was in plain view on front seat of a car the defendant was driving but did not own); State v. Lewis, 535 So.2d 943, 950 (La.App. 2 Cir.1988) (presence of firearm in defendant’s home, statement by defendant that gun belonged to his wife, and discovery of shoulder holster in the master bedroom indicated defendant’s awareness, dominion and control over the firearm). Louisiana cases hold that a defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. State v. Bailey, 511 So.2d 1248, 1250 (La.App. 2 Cir.1987), writ denied, 519 So.2d 132 (La.1988); State v. Melbert, 546 So.2d 948, 950 (La.App. 3 Cir.1989). However, mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. State v. Walker, 369 So.2d 1345, 1346 (La.1979).

On appeal in the present case, the defendant argued, and the court of appeal agreed, that the State’s case as to actual possession of the firearm by the defendant was “very weak,” citing the fact that no one testified to seeing the defendant holding the gun and the State could not place his fingerprints on the gun. The court of appeal also found that the State’s constructive possession argument was weakened by the fact that the car was not the defendant’s. Further, the court of appeal found that as to both actual and constructive possession the only evidence supporting the conviction was that the gun was found near the defendant’s seat in the car after his removal from the vehicle. That evidence, the court of appeal concluded, could not exclude other reasonable hypotheses of innocence including that the firearm was on the floorboard when the defendant got into the car or had been “discreetly” dropped by one of the passengers even as the officers scanned them to detect any such movement.

On the other hand, the State asserts that based on Officer Chandler’s account of the incident there was evidence that the defendant had actual possession of the firearm because his feet were on top of it in an effort to conceal it from detection which coincides with his reluctance to exit the vehicle. The State contends that the court of' appeal, instead of viewing the evidence in the light most favorable to the prosecution, considerably understated the strength of the prosecution’s case when it noted that the firearm had been found on the floorboard “near” where the defendant had been sitting. In fact, review of the trial transcript supports this argument, as |70fficer Chandler testified, in pertinent part:

A. We found a small .25 caliber pistol laying where his feet were ... He appeared to be hiding something from us. He refused to make eye contact. We had to ask him several times to get out of the vehicle. It was like he was scared to get out. We assumed there was narcotics in the vehicle, is what we were looking for ... He kept asking “why do I got to get out? Why do I have to get out of the car?”
Q. And the gun — the gun was located then right where his feet were? It that correct?
A. Yes, sir.
Q. So ... is it obvious to you then that if the gun was there his feet were either on it hiding it from your light or ... right located underneath his feet?
A. Yes, sir.

Tr. At 15-16.

Thus, the State argues in its application that any rational trier of fact could conclude from this testimony that the defendant knew the weapon was in the vehicle and had exercised dominion and control over it by attempting to conceal it from the police.

We find the State’s argument to be well-founded in that it appears the court of appeal erred by substituting its appreciation of the evidence presented at trial for that of the jury when it concluded that the State had failed to prove the defendant’s dominion and control over the gun sufficient to place it in his constructive possession. State v. Mose, 412 So.2d 584, 585 (La.1982); State v. Day, 410 So.2d 741, 743 (La.1982). The evidence presented by the State was sufficient to prove that the defendant was in fact in possession of the weapon and that this possession was enough to sustain a conviction on the charge of a felon in possession of a firearm, La. R.S. 14:95.1. In its opinion, the court of appeal even concedes that it was “apparent from the guilty verdict that the jury chose not to believe the two witnesses [Eason and Reeder].” In this matter, the jury made a credibility determination and found Eason and Reeder’s accounts unconvincing. Consequently, it was inappropriate for the | scourt of appeal to impinge on the fact finder’s discretion to rely instead on the testimony of Officer Chandler absent a showing that the defendant was not granted the fundamental due process of law. See Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361; Mussall, 523 So.2d at 1310.

CONCLUSION

Accordingly, we hold that the court of appeal erred by making credibility determinations based on witnesses’ testimony at trial and acted outside the scope of its duty to review the trial court’s decision by substituting its opinion for that of the trier of fact.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed and the defendant’s conviction and sentence are reinstated.

REVERSED; CONVICTION AND SENTENCE REINSTATED.

JOHNSON and KNOLL, JJ., dissents and assigns reasons.

| JOHNSON, Justice,

dissenting.

I agree with the court of appeal’s conclusion that the evidence is insufficient to support a finding, beyond a reasonable doubt, that the defendant had either actual possession of the firearm or sufficient dominion and control over it to constitute constructive possession. The police officer did not testify that the firearm was seen protruding out from beneath the defendant’s feet. According to the officer’s testimony, after the defendant exited the vehicle, a small .25 caliber automatic pistol was discovered where the defendant’s feet had been. The officer merely assumed that the defendant had been hiding it under his feet.

Moreover, in my opinion, the evidence is woefully inadequate to prove that the defendant possessed the requisite intent to possess the firearm. There is no evidence that he intentionally hid the gun under his feet or that he even knew that the gun was on the floorboard of the vehicle. The vehicle was stopped at night, for a child restraint violation, mere moments after the defendant was given a ride. It is axiomatic that the defendant did not enter the vehicle with the gun, as his fingerprints were not found on it. Thus, it is unbelievable that he would intentionally hide it almost as soon as he entered the vehicle. Moreover, Monica Easton, who was seated in the backseat of the vehicle next to the defendant, testified at trial that the gun belonged to her.

12For the foregoing reasons, I respectfully dissent.

11 KNOLL, Justice,

dissenting.

I respectfully dissent from the majority opinion. I find the State failed to prove beyond a reasonable doubt the defendant either had actual or constructive possession of the firearm, an essential element to the crime of possession of a firearm by a convicted felon. State v. Husband, 437 So.2d 269, 271 (La.1983). Admittedly, the circumstances appear suspicious for the defendant, but suspicion falls short of proof beyond a reasonable doubt.

When the defendant has not carried the firearm on his person, the State has the burden of proving the defendant’s intent amounted to an intent to possess rather than a mere acquiescence that there was a firearm in his presence. State v. Heacox, 543 So.2d 101 (La.App. 3 Cir.1989). In Heacox, the defendant argued the evidence was insufficient to support his conviction under La.Rev.Stat. AnN. § 14:95.1, because the gun was partially covered by a holster, and it was lying on the car seat between him and the driver/owner of the car. In addition, the gun was found to belong to the mother of the driver. In reversing the defendant’s conviction, the Third Circuit noted there was no evidence introduced to show the defendant was aware that the gun was in the ear, or that if he was aware of its presence “there was no evidence that Heacox’s intent amounted to an intent to possess rather than a mere acquiescence to the fact that [the driver] had a gun in his truck ... Therefore, the evidence falls short of proving |2beyond a reasonable doubt that Heacox was in constructive possession of the weapon.” Hea-cox, 543 So.2d at 105.

Other cases determining the sufficiency to support a conviction under La.Rev.Stat. Ann. 14:95.1 have required an intentional or knowing possession of the firearm or concealed weapon. In State v. Hills, 451 So.2d 1346 (La.App. 1 Cir.), reversed in part as to sentence, 457 So.2d 1183 (La. 1984), the court found the defendant possessed the gun found on the floorboard next to the accelerator of the car the defendant was driving. The defendant, as the sole occupant of the car, had dominion and control over the gun, especially because the gun was positioned in such a way that anyone driving the car “could not have failed to notice it.” Id. at 1347. In State v. Cobb, 419 So.2d 1237 (La.1982) the Court found sufficient evidence of a violation of La.Rev.Stat. ANN. § 14:95.1 where the defendant admitted he knew his wife’s gun was in the car he was driving. In State v. Lewis, 535 So.2d 943 (La.App. 2 Cir.1988), writ denied, 538 So.2d 608 (1989), cert. denied, Lewis v. Louisiana, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 370 (1989), the defendant contended he was unaware of the guns found in his house because he had been out of town in the days prior to the execution of the search warrant for the house which uncovered the guns. He also argued his wife had the guns for her protection. The Second Circuit rejected these arguments, finding that the location of several high-tech weapons in the master bedroom of the house, while being allegedly for the wife’s protection, was such that the defendant must have been aware of their presence. In State v. Frank, 549 So.2d 401 (La.App. 3 Cir.1989), the court rejected the defendant’s argument he was unaware the gun was in his car in which the police found him. The gun was lying on the seat right next to the defendant, who was unconscious, and the defendant was the sole occupant of the car. In State v. Hayes, 561 So.2d 184 (La.App. 5 Cir.1990), the court rejected the defendant’s contention | she did not know a gun was in the car he was driving. Although the owner of the car testified the defendant merely borrowed the car and that he (the owner) had put the gun in the car, the gun was on the floorboard of the car on the driver’s side, and the defendant was seen leaving ammunition next to a pay telephone which he had used just prior to being stopped by the police.

A cursory examination of these cases shows that in those instances where the defendant’s guilt was upheld, there was evidence that excluded every reasonable hypothesis of innocence. In the present case, I find that viewed in the light most favorable to the State, the evidence does not exclude other reasonable hypotheses of innocence. As noted in the appellate court opinion in the case mb judice, other reasonable hypotheses were: (1) the weapon was on the floorboard of the car prior to defendant’s entry into the vehicle; (2) one of the other passengers or the driver dropped the firearm on the floorboard pri- or to the arrival of law enforcement; (3) one of the other passengers discretely dropped the firearm while the police officers attention focused on defendant. Johnson, 839 So.2d at 1254. Moreover, if the evidence showed that defendant was in possession of the weapon, why did the officer have to ask who owned the gun? After no one answered, the officer arrested defendant for possession of the gun because the weapon was under or near his feet. Notwithstanding, the State presented no evidence to show that defendant knew the gun was under or near his feet. While this evidence is certainly suspicious, it is not, in my view, proof beyond a reasonable doubt.

For these reasons, I would affirm the appellate court’s decision in this matter.

      . The defendant had been previously convicted of Felony Possession of Marijuana on October 12, 1998, in the 26th Judicial District Court, Webster Parish, Louisiana, and convicted of Two Counts of Felony Possession of Marijuana on May 8, 1998, in the 26th Judicial District Court, Webster Parish, Louisiana.


author: hWEIMER, Justice.

text:
    Davy JONES, Individually and on Behalf of his Minor Children v. The ESTATE OF Eliud Tony SANTIAGO, et al.
    No. 2003-CC-1424.
    Supreme Court of Louisiana.
    April 14, 2004.

      Ronald E. Corkern, Jr., Steven D. Crews, Corkern & Crews, for applicant.

      Elvin C. Fontenot, Jr., Leesville, Bonita PreuetU-Armour, Alexandria, for respondent.
   hWEIMER, Justice.

This matter is before the court following the denial of a motion for summary judgment in the trial court and denial of a writ of certiorari in the court of appeal. We granted certiorari in order to determine the propriety of those actions. Jones v. Estate of Santiago, 03-1424 (La.10/10/03), 855 So.2d 346. For reasons that follow, we reverse the lower court judgments and enter summary judgment in favor of State Farm Fire & Casualty Company (State Farm).

FACTS AND PROCEDURAL BACKGROUND

This case involves determining whether the shooting death of a wife and mother was intentional or accidental.

Davy Jones and his wife, Annissa, had been estranged for a period of several months. During that time she moved into the home of Eliud Santiago. Two days before the tragic shooting, Annissa and Davy reconciled and she agreed to move back to the Jones household. At some point, that decision was conveyed to Eliud Santiago. | aAnnissa, accompanied by her then eight year old daughter, Kaitly, went to the Santiago home to retrieve some clothing and personal belongings. While the two were at the Santiago residence a series of events unfolded. In the end, Kaitly was the only survivor.

Eliud Santiago took his own life with a single gunshot to the head. Prior to shooting himself, Santiago shot Annissa Jones as well as his two young daughters. All of the victims died of gunshot wounds to the head.

Davy Jones filed suit to recover damages sustained on behalf of himself and his minor children as a result of the death of Annissa Jones, his wife and the mother of his children. The petition alleges that on or about June 20, 1999, Eliud Santiago, for unknown reasons, shot and killed Annissa Jones before shooting himself. The petition further alleges the death of Annissa Jones was caused by the negligence of Eliud Tony Santiago in (a) firing a firearm and striking Annissa Jones causing her death, (b) an intentional battery which resulted in the death of the minor children’s mother, and (c) discharging a firearm in a negligent or reckless manner. Named as defendants were the Estate of Eliud Tony Santiago and State Farm Insurance Company, the insurer providing homeowner’s insurance coverage to Eliud Santiago.

State Farm filed a motion for summary judgment seeking to have plaintiffs’ claim dismissed on the basis that the killing of Annissa Jones was not a covered occurrence under the insurance policy issued to Eliud Santiago and was specifically excluded by the intentional act exclusion. In support of its motion, State Farm submitted a number of exhibits including selected pages of the deposition testimony 13of the plaintiff, Davy Jones, as well as selected pages of the depositions of two officers employed by the Vernon Parish Sheriffs office who conducted an investigation at the scene of the shooting. State Farm also submitted a certified copy of the policy of insurance issued to Eliud Santiago arguing that the exclusion contained therein applies to the facts of this case. In a supplemental memorandum in support of its motion for summary judgment, State Farm submitted selected passages from the deposition of Dr. Terry Welke, the Calcasieu Parish Coroner who conducted the autopsy on three of the decedents.

In opposition to the motion for summary judgment, plaintiff submitted the entirety of the deposition of Dr. Terry Welke and the deposition of Kaitly Jones, the daughter who accompanied Annissa to Mr. Santiago’s residence on the afternoon of the shooting.

The court heard argument on the motion for summary judgment on October 22, 2002. Defendant argued Annissa’s death was the result of an intentional shooting by the insured and the policy exclusion applied to deny coverage for the intentional act. Plaintiff argued the shooting was accidental rather than intentional and thus coverage under the homeowner’s policy was not prohibited by the exclusion for intentional acts. The court took the matter under advisement to review the exhibits which had been offered in support of and in contravention to the motion.

|4On January 31, 2003, the court signed a judgment denying the motion for summary judgment based on the deposition testimony of Kaitly Jones. The court indicated that “if this witness is found to be credible it would tend to support plaintiffs version of the pertinent events.”

State Farm applied for writ of certiorari to the court of appeal. The court of appeal denied the writ with the following notation: “We find no error in the trial court’s ruling.” State Farm then applied to this court for writ of certiorari.

DISCUSSION

A motion for summary judgment will be granted “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 mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B); Gootee Construction, Inc. v. Amwest Surety Insurance Company, 03-0144, p. 3 (La.10/10/03), 856 So.2d 1203, 1205; Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-231. Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966(A)(2); Gootee Construction, Inc., 03-0144 at 3, 856 So.2d at 1205; Racine v. Moon’s Towing, 01-2837, p. 4 (La.5/14/02), 817 So.2d 21, 24.

In 1997, the legislature enacted LSA-C.C.P. art. 966(C)(2) which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, (La.2/20/04), 866 So.2d 228; Hardy v. Borne, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610.

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law. In Smith v. Our 6 Lady of the Lake Hospital, Inc., 93-25121 (La.7/5/94), 639 So.2d 730, 750, this court recognized that a “genuine issue” is a “triable issue.” The court continued: “An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.” The court further explained that a “fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, this court acknowledged in Smith that “summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith, 639 So.2d at 751, citing Simoneaux v. E.I. du Pont de Nemours and Company, Inc., 483 So.2d 908, 912 (La.1986) (The court held that summary judgment is an appropriate method for disposing of a case wherein intent is a critical question if con-clusory statements of a plaintiff are insufficient to support a finding of intent by reasonable minds.).

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967.

In this case, State Farm submitted a number of exhibits in support of its motion for summary judgment. Selected pages of the deposition testimony of Davy Jones, plaintiff in this matter, were submitted and established that he and Annissa were legally married at the time of the incident. He had been working in Texas and would return to Louisiana to visit the children when he was off of work. The two families (Jones ]7and Santiago) lived about five houses apart and had become Mends. At some point during the time the families lived near each other, Annissa had moved in with Eliud Santiago. However, on the Friday prior to the shooting, Annissa and Davy reconciled. She had gone to the Santiago house to retrieve clothes for herself and the children to go to Texas with Davy on the Sunday afternoon of the shooting.

Selected pages of the deposition testimony of Detective Hilton were also submitted. He was one of the deputies dispatched to the scene to investigate. He identified photos of Eliud Santiago and testified that Santiago’s two young daughters were found shot in the bathroom which was connected to the bedroom where Mr. Santiago’s body was found. The gun, recovered near Santiago’s body, was a 9 millimeter Ruger. The detective testified that two pages of paper containing contact numbers were found in the dining/kitchen area. These pages included instructions to close Santiago’s checking account and send the balance to his son and daughter. Additionally, two boxes were found with a note to “Mr. Wadman” to mail the packages to Santiago’s two other children. Detective Hilton was of the impression that this was a murder/suicide. He testified he did not see any evidence of a struggle in the master bedroom — the room in which Annissa’s body was found.

Selected pages of the deposition of Detective Hagan were also submitted. He testified that he “interviewed the husband of the deceased, one of the victims, and interviewed one of the daughters.” He assisted the lead detective at the crime scene by collecting evidence. Detective Hagan testified that Annissa was found inside a large walk-in closet. He believed there was women’s clothing in the closet, but did not know to whom the clothes belonged. He testified that Annissa was shot on the front top of the head and it appeared she was facing him (Santiago) when shot. From past experience, the detective indicated the shots were fired at close range. A cartridge was |sfound within three feet of the body. There was no indication of a struggle in the room, no overturned furniture, but he did not examine the body for bruises or cuts which might indicate a physical struggle.

State Farm submitted selected portions of Dr. Terry Welke’s deposition; however, the plaintiff submitted the entirety of the deposition. Thus, the trial court had the benefit of the doctor’s entire deposition for consideration.

Dr. Terry Welke, the Calcasieu Parish Coroner, was tendered as an expert in the field of pathology. He performed a partial autopsy, on the head and neck area of Annissa Jones, at the request of Frank Labbe, Coroner for Vernon Parish. Prior to conducting the autopsy, Dr. Welke was provided with a history of the events, including the number of people shot and that the shooter committed suicide. He testified there was nothing consistent with suicide in the death of Annissa Jones. There were two wounds to the left side of the head and another on the back of the right arm just above the elbow. He did not note any bruises, cuts, scrapes, or defensive wounds, but acknowledged there could have been a struggle with or without noticeable injuries. He determined the wounds to be from an intermediate range gunshot, medium caliber weapon, with the muzzle of the gun about 18-24 inches from the skin. The trajectory of one shot was from left to right, back to front and downwards; the other head wound trajectory was left to right, back to front with no significant deviation up or down. There was no soot or gunpowder within the wound which would be consistent with discharge of a firearm at contact or close range. He determined the manner of death to be homicide, which, according to the medical interpretation, is death of one individual caused by another — not a natural death. Dr. Welke was unable to indicate the sequence of the shots or whether they were fired immediately after one another. Nor could he say which gunshot caused death, although he indicated either | flshot to the head could have caused death. Since the body had been partially embalmed prior to the partial autopsy, Dr. Welke could not tell which wounds were post mortem. As a coroner, Dr. Welke acknowledged he is not called upon to make a determination of whether a shooting is accidental or intentional. Because the shooting involved three shots, Dr. Welke indicated it would be extremely difficult to classify it as an accidental shooting. Of the accidental cases he had examined, none involved more than one shot.

The court also had the deposition of Kaitly Jones which was taken on December 5, 2001, approximately two and a half years after the incident. A thorough reading of Kaitly’s deposition reveals confusion and scant recall of the events on the day her mother was shot. Understandably, she has been seeing various doctors to try to cope with this tragedy. Although she said she remembers the day of the shooting and remembers talking to someone from the sheriffs office, many answers to questions posed were that she could not remember. She initially stated she and her mother were unloading clothes from the closet when her mother found a gun under the clothes. Her mother and Tony started fighting and the gun went off. She could not remember who was holding the gun, how many shots she heard, or what she told the police that day. The only thing she remembers is “that he shot her on acc — the gun went off on accident.” She related that no one told her the shooting was an accident, stating: “I just thought it up myself.” At one point she said she saw her mother get shot, but then she said she did not see the actual shooting. She indicated that her mother and Tony were fighting (by that she explained she meant they were arguing) because he did not want her to leave. When questioned about when she remembered that they were fighting, she responded, “In my — I can’t even remember that. I was in my dreams.” When questioned about where she was when her mother was shot she gave a variety | inof answers. She said she was standing beside the bed, in the bedroom right beside the door, halfway outside, and in the hallway. She said Tony gave her a portable telephone and told her to call 911. She ran outside screaming. She was unable to use the phone to call out because of an incoming call. A neighbor helped her call 911.

Following a de novo review of Kaitly’s deposition, one can only conclude that her statement characterizing the shooting as accidental is mere speculation. When her deposition is reviewed in its entirety, it is clear she was not privy to the facts which would enable her to testify the shooting was accidental. She stated many times that she did not actually see what occurred and could not remember anything. Her physical location at the scene at the time of the shooting cannot be determined by her testimony. Her deposition testimony consists of her belief as to what occurred rather than on personal knowledge of the events. See, McLaughlin v. French Riviera Health Spa, Inc., 99-546 (La.App. 5 Cir. 10/26/99), 747 So.2d 652. (Plaintiff filed an affidavit indicating she “believed” certain assertions included therein. The court acknowledged that affidavits submitted in summary judgment proceedings are to be made on “personal knowledge,” making plaintiffs “belief’ speculation and of no probative value.)

Previously, this court considered a matter in which speculation was the basis for denying a motion for summary judgment. In Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p. 5 (La.6/30/00), 764 So.2d 37, 40, plaintiff slipped and fell on plastic toothpick boxes in a grocery store aisle. At a motion for summary judgment defendant pointed out the absence of factual support for an essential element of plaintiffs cause of action under LSA-R.S. 9:2800.6. Since plaintiff was unable to produce factual support sufficient to establish he would be able to satisfy his In evidentiary burden of constructive notice at trial, the trial court granted Winn Dixie’s motion. On appeal, the court speculated that plaintiff could show there was a possibility the boxes had been on the floor for some period of time and Winn Dixie’s employee was negligent for failing to observe the boxes. The court of appeal reversed the trial court’s ruling granting summary judgment. On review, this court found that “such speculation falls far short of the factual support required to establish that plaintiff will be able to satisfy his evidentiary burden of proof at trial[,]” reversed the court of appeal, and reinstated the trial court judgment. Id.

We note that the Court of Appeal, First Circuit, considered the situation in which deposition testimony was contradicted by physical evidence. In Scott v. McDaniel, 96-1509 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991, plaintiff argued the trial court improperly relied on the testimony of the investigating officer because that testimony was directly contradicted by the testimony of Kevin Scott, an occupant of the vehicle involved in the accident with a logging truck. Mr. Scott testified that pri- or to the collision, the driver of the vehicle in which he was riding took evasive action and the vehicle was struck in the rear. The trooper who investigated the accident testified the physical evidence at the scene indicated the vehicle operator took no evasive action prior to impact with the logging truck and the vehicle was not damaged in the rear. The court of appeal affirmed the granting of summary judgment in favor of the defendant representing the logging truck, finding the deposition testimony was inaccurate based on the physical evidence.

As indicated, Annissa Jones was shot three times. Although Dr. Welke could not conclusively say this was an intentional shooting, he opined that it was not an | ^accidental shooting. The fact that more than one individual was shot, the fact that Annissa suffered two gunshot wounds to the head and another to the arm, and the fact that there were no signs of a struggle and no defensive wounds on the body led him to the conclusion that this was not an accidental shooting. Dr. Welke stated, “Well, it’s more consistent with a homicide or — -it’s difficult for me to call it an accidental shooting. One shot, I would say yes, the possibility is there. Three shots, I find it extremely difficult for an accidental — for this firearm to be discharged accidentally three times.” Dr. Welke indicated he had never seen a case where a person had been accidentally shot more than one time.

Additional physical evidence includes three other deaths, all caused by gunshot wounds to the head.

In Breland v. Schilling, 550 So.2d 609, 610 (La.1989), this court stated:

The purpose of the intentional injury exclusion is to restrict liability insurance coverage by denying coverage to an insured in circumstances where the insured acts deliberately and intends or expects bodily injury to another. The exclusion is “designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will ‘pay the piper’ for the damages.” [Citing ] Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181, 186 (1984). Accord, United Servs. Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986).

Although the insured bears the burden of proving a policy of insurance affords coverage for an incident, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. Doerr v. Mobil Oil Corporation, 2000-0947, p. 5 (La.12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g 00-0947 (La.3/16/01), 782 So.2d 573. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence |13supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

An insured party who shoots someone, generally, is not entitled to insurance protection because a shooting is ordinarily considered an intentional act intended or expected to cause bodily injury. This principle is explained in 15 WilliaM Shelby Moeenzie & H. Alston Johnson, Louisiana Civil Law Treatise: InsuRance Law and PRACTICE § 164 at 344 (2d ed.1996), as follows: “Insureds who pull loaded guns and shoot other persons have not found the courts receptive to their exculpatory explanations, even in defense of the insurer’s motion for summary judgment.”

The facts of this case are tragic. However, when all the evidence is considered de novo, there can be no question that the shooting was intentional. To find the shooting was accidental would require the extraction of one conclusory, speculative statement from Kaitly’s deposition while ignoring the inconsistent and confusing statements throughout the deposition, as well as the uncontroverted physical evidence. Based on our review of the record, we conclude that defendant made a prima facie showing that the motion should be granted. At that point, the burden shifted to the plaintiff to present evidence demonstrating there remained a material issue of fact as to the issue of whether the shooting was accidental such that the 114exclusion did not apply. Based on the state of the evidence, we find reasonable persons could reach only one conclusion — Anissa’s death was the result of an intentional shooting. The lower courts erred when defendant’s motion for summary judgment was denied.

CONCLUSION

For the foregoing reasons, we reverse the ruling of the trial court and enter summary judgment in favor of State Farm Fire & Casualty Company.

REVERSED AND RENDERED.

JOHNSON, Justice, concurs.

      . The child's name is spelled a number of different ways (Kaitlan, Kaitlyn, Katilyn) in various documents in the record. We use the spelling which appears in the petition for damages.

      . In its answer to the petition, State Farm Fire & Casualty Company acknowledged it had been incorrectly named as State Farm Insurance Company.

      . State Farm Fire & Casualty Company Homeowners policy # 18-B9-9302-0, with an effective date of August 29,1998, and an expiration date of August 29,1999, contained an exclusion which provided in part:
      1. Coverage L [personal liability] and Coverage M [medical payments to others] do not apply to:
      a. bodily injury or property damage:
      (1) which is either expected or intended by an insured; or
      (2) to any person or property which is the result of willful and malicious acts of an insured;

      . This court has stated:
      Article 966 was amended in 1996 to provide that summary judgment procedure is favored. LSA-C.C.P. art. 966(A)(2). Since a 1997 amendment to Article 966, Louisiana's standard for summary judgment has been closely aligned with the federal standard under Fed. Rule Civ. Proc. 56(c). When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties equally, without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610, quoting Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

        Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228 n. 2.

      . LSA-C.C.P. art. 966(C)(2) provides:
      The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

      . Hutchinson, recently decided by this court, considered whether plaintiffs’ affidavits, submitted in opposition to defendants' motion for summary judgment, were sufficient to defeat the granting of the motion. The Hutchinson case involved competing affidavits requiring credibility determinations that are inappropriate considerations on a motion for summary judgment.
      This case is distinguishable because there were no competing affidavits requiring credibility evaluations. As will be discussed in greater detail, consideration of the entirety of the evidence based on de novo review reveals the physical evidence contradicts the speculative deposition testimony of the child.

      . See Cavin v. Elliot, 597 So.2d 1255, 1257 (La.App. 3 Cir.1992) wherein the court observed:
      Louisiana courts have consistently held that the aggressive act of pulling a loaded gun and firing it at a third party, in and of itself, supports the conclusion that the defendant/insured intended the resulting injuries because such consequences are almost certain to follow as the result of such actions.

      . We are not insensitive to the fact that the deposition testimony was elicited from a young child who was subjected to a traumatic experience. However, we cannot ignore the physical evidence which overwhelmingly points to this being an intentional act.