author: hMOORE, J.

text:
    STATE of Louisiana, Appellee, v. Jackie V. LEE, Appellant.
    No. 38,114-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Louisiana Appellate Project by Margaret S. Sollars, for Appellant.
    Paul J. Carmouche, District Attorney, Hugo Holland, Lisa Rule, J. Thomas Butler, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, DREW and MOORE, JJ.

      . Prior to trial, Lee declined a plea bargain for 40 years at hard labor on a responsive plea of forcible rape and 45 years at hard labor on one count of armed robbery, all without benefits, but to be concurrent.

   hMOORE, J.

Jackie V. Lee was indicted on one count of aggravated rape and four counts of armed robbery arising from a drug-related home invasion in Shreveport’s Ingle-side neighborhood. A unanimous jury found him guilty as charged on all counts. He was later adjudicated a third felony offender and sentenced to 105 years at hard labor on the first armed robbery and 45 years each on the other three armed robberies, all without benefits and to be served concurrently. On the aggravated rape charge, he was sentenced to life at hard labor without benefits, to be consecutive to the other sentences. He now appeals, advancing three assignments of error through the Louisiana Appellate Project and three assignments pro se. For the reasons expressed, we affirm.

Factual Background

Shortly before 5 a.m. on Tuesday, May 11, 1999, three men (later identified as brothers Joseph and Lonnie Little, and defendant Jackie Lee) broke into a house on Queen’s Highway. Lee kicked in the front door and all three rushed in, demanding drugs and money from the four occupants of the house. All the assailants were wearing bandanas over the lower portion of their faces.

Jason Stewart, who was sleeping on a couch near the front door, testified that one of the assailants, armed with a chrome revolver, demanded money at gunpoint and then knocked him out; the assailants dragged him into the kitchen and then into the bathroom. Jason testified that Michael Murdoch (initially identified as Jason’s brother), who was sleeping on a smaller couch in the front room, was also hit in the head and dragged to the | ¡..bathroom. The actual tenant of the house, Merrick Hines, was sleeping in the bedroom with his 18-year-old girlfriend, P.L., when they heard the commotion in the front room. One of the assailants, carrying a machete, burst into the bedroom; Hines recognized him as Joseph Little. Joseph held Hines at knifepoint, demanded his “money and dope,” and marched him into the bathroom. The assailant carrying the chrome revolver then entered the bedroom, struck P.L. in the mouth with the weapon, and raped her at gunpoint; then Joseph returned to the bedroom and raped her at knifepoint. While this was occurring, the other men ransacked the house for drugs and cash; finding no drugs, they took about $300, a Nintendo 64 and some games from the entertainment center in the bedroom; also missing were a ring and necklace from the bedroom and about $20 from Jason Stewart’s pants, which had been draped on a table in the front room. Finally, the assailants shut all four victims in the bathroom and fled.

Hines immediately identified Joseph Little as one of the assailants, and testified that he knew Jackie Lee well from having been in jail with him twice. Shortly after the incident, he told Officer Brown that Lee had raped P.L. He added that he, Lee, Lonnie Little and Jason Stewart were all in the same gang, the Rolling Sixties Crips. He admitted he was known “on the street” for selling marijuana, but was not doing so on May 11.

Police prepared three photo lineups; Hines selected Lee and Joseph Little as two of the assailants; he could not pick Lonnie Little out of the third lineup. P.L. selected Lee out of the first lineup, but did not know his name and testified she had never met Lee before that morning. The other latwo victims, Jason Stewart and Michael Murdoch, did not identify any of then’ assailants. However, a lady who lived across the street, Felicia Simpson, testified that her dog woke her up early that morning. She looked out her window and saw three men walk up to the house, kick the door in and enter; later, she saw them leave, carrying a plastic grocery bag with perhaps a video game in it. She recognized all three men as being from the neighborhood, and positively identified Lee, Joseph and Lonnie Little from the photo lineups.

Based on this information, Detective Wray obtained arrest warrants for Lee and the Littles. Lee was arrested three days later in Richmond, California, when he went to a police station and used a false name to ask for directions to a relative’s house. Richmond Police detained him after Lee’s cousin told them Lee was wanted for a crime in Shreveport. Lee waived extradition and returned to Louisiana. The Littles were apprehended separately in Dallas, Texas nearly two months later. None of the stolen items or weapons were ever recovered.

The state indicted Lee and the Littles on four counts of armed robbery, and Lee and Joseph Little on one count of aggravated rape. The Littles’ charges were severed and Lee proceeded to jury trial in November 2002. In addition to the evidence outlined above, DNA analyst Dr. Pat Wojtkiewicz testified that a vaginal swab taken from P.L. shortly after the crime contained sperm with DNA consistent with Lee. The chances that the |4sperm came from a black male other than Lee were one in 553 quadrillion. He also testified that a condom recovered from the floor of the bedroom contained epithelial tissue with DNA also consistent with Lee, yielding the same infinitesimal odds of coming from any other black male.

Lee took the stand in his own defense, testifying that he did not go to the Queen’s Highway house on the morning of May 11, and knew nothing about the crime. However, he admitted that he knew all the victims, had bought marijuana from Jason Stewart in the past, and had done time with Hines. He maintained that he had consensual sex with P.L. the morning before this incident at his cousin Charles Taylor’s house in the Moaretown neighborhood. Lee claimed this was retribution, as Hines had made a pass at Lee’s girlfriend, Denise Gates (he did not specify when); he also asserted that P.L.’s brother murdered Charles Taylor a year later. He admitted he never reported this homicide. He also claimed he had been in Hines’s bedroom the night before the crime, to have sex with a girl called Stacy (he did not know her last name); Lee said this was when he dropped the soiled condom on the floor.

Lee was found guilty as charged on all counts and later adjudicated a third felony offender. As noted above, he was sentenced to 105 years at hard labor on the third-felony armed robbery, concurrent 45-year sentences on the other armed robberies, and a consecutive life sentence for aggravated rape, all without benefits.

| aDiscussion: Sufficiency of the Evidence

By his second assignment of error, Lee urges the evidence was insufficient to establish beyond a reasonable doubt that he committed these crimes. He argues that testimony of all the state’s witnesses was so tainted by lies and riddled with inconsistencies that no rational fact finder could have accepted their version of events. He also contends that the evidence does not support the finding that an aggravated rape occurred, as his DNA on P.L.’s vaginal swab is explained by their consensual sex the morning before; also, the DNA evidence exonerates him because there was none of P.L.’s DNA on the condom recovered from the bedroom floor. Finally, he suggests that no armed robbery occurred because two of the victims, Jason Stewart and Michael Murdoch, did not report anything missing, and the initial police report listed the incident as an aggravated burglary.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The Jackson standard applies both to direct and circumstantial evidence. State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50. In the recent case of State v. Davis, 2002-1043 (La.6/27/03), 848 So.2d 557, the supreme court reiterated:

[T]he task of an appellate court reviewing the sufficiency of the evidence is not to second-guess the credibility choices of the trier of fact “beyond * * * sufficiency evaluations under the Jackson standard of review.” State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). A victim’s or eyewitness’s testimony alone is therefore usually sufficient to support a verdict. State v. Bright, 98-0398, p. 24 (La.4/11/00), 776 So.2d 1134, 1148 [additional citations omitted ].

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27; State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. When the defendant claims that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misiden-tification in order to carry the burden of proof. State v. Powell, 27,959 (La.App. 2 Cir. 4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

Lee has pointed out various inconsistencies between the witnesses’ initial statements to police and their trial testimony. He seriously questions Ms. Simpson’s ability to identify him, since she maintained he was wearing 17a red baseball cap, a distinctive item not noticed by any other witness. He also challenges Hines’s ability to identify him, since the assailant’s face was partly concealed with a bandana. He contends the state’s witnesses were generally not credible, as Ms. Simpson claimed to be unaware of drug dealings in the house; Jason Stewart denied being a member of the Rolling Sixties Crips, but other witnesses confirmed that he was; and Merrick Hines was an admitted drug dealer and gang member.

The jury heard, however, Ms. Simpson’s testimony that she knew the assailants and gave them names to the police. The jury also heard Hines’s testimony that he was very close to Joseph Little, he knew Jackie Lee from doing time together with him, and all were in the same gang. Positive identification by two witnesses who knew the defendant very well was sufficient to exclude any reasonable probability of misidentifieation. State v. Powell, supra. P.L. also selected Lee from a photo lineup. This evidence is sufficient to support the finding that Lee was one of the assailants. State v. Davis, supra.

As to the particular offenses, Lee urges the state failed to prove he committed an aggravated rape of P.L., citing his own testimony that the two had consensual sex the day before. He argues that the prior encounter explains the presence of his DNA on the victim’s vaginal swab, and submits that the absence of the victim’s DNA from the condom found on the bedroom floor proves that it was not used to penetrate her.

P.L. testified that she had never seen Lee before the morning of May 11. • Believing her, the jury was entitled to reject Lee’s claim of a prior, | Rconsensual encounter. Moreover, the jury could rationally conclude from the DNA evidence that Lee first put on the condom, leaving some epithelial cells but no sperm, removed and tossed it to the floor, and then raped P.L., depositing his sperm DNA to be traced on the vaginal swab. There was absolutely no evidence to support Lee’s claim of consensual sex with P.L. the morning before the crime, or his facially implausible story of taking Stacy into Hines’s bedroom just hours before. Lee disputed neither his criminal record, his drug activity nor his gang affiliation, thus permitting the jury to discredit his self-serving testimony. We find no basis to disturb the jury’s rational credibility determinations and verdict that Lee committed the aggravated rape of P.L.

Finally, Lee urges the state faded to prove that he committed the armed robberies, as neither Jason Stewart nor Michael Murdoch reported that anything had been taken from them, and the police initially wrote up the offense as an aggravated burglary. He suggests that this defeats the essential element of “taking of anything of value.” La. R.S. 14:64.

P.L., however, testified that she saw “the guy with the gun” take a Nintendo game and about $200 of Hines’s money from the entertainment center in the bedroom. This is direct evidence of a taking. Jason Stewart and Merrick Hines both testified that all three assailants burst in and demanded money. They did not actually observe a taking, but after the assailants ransacked the house, Stewart discovered $20 missing from his pants pocket, and Hines reported a ring and necklace missing from his bedroom. The demands for money and rifling through.the house, followed |c|by the disappearance of money and other items, are circumstances that support the finding that Lee took things of value from the victims. Finally, Hines was positive that Lee was wielding a large gun, thus satisfying the “dangerous weapon” element of the offense. Any rational trier of fact could have found every essential element of the offenses of armed robbery.

This assignment does not present reversible error.

Photographic Lineup

By his first assignment Lee urges the district court erred in denying his motion to suppress the photographic lineup. He contends the lineup was unduly suggestive because his photo depicted an upper body image, while the others were just faces; he also suggests that Merrick Hines and Ms. Simpson could have told P.L. which photo to pick. Finally, he urges that P.L.’s identification was unreliable because she did not know him prior to the rape and, at any rate, her rapist never removed his mask.

The defendant has the burden of proof on a motion to suppress an out-of-court identification. La.C.Cr.P. art. 703 D. In State v. Bright, supra, the supreme court summarized the applicable law:

An identification procedure is suggestive if it unduly focuses a witness’s attention on the suspect. State v. Neslo, 433 So.2d 73, 78 (La.1983); State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Smith, 430 So.2d 31, 43 (La.1983); State v. Guillot, 353 So.2d 1005, 1008 (La.1977). The question for the reviewing court is to determine whether the procedure is so conducive to irreparable misidentification that due process was denied. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); State v. Martin, 595 So.2d 592, 595 (La.1992); State v. Prudholm, 446 So.2d 729, 738 (La.1984). A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738; State v. Chaney, 423 So.2d 1092, 1098 (La.1982).

Factors considered in assessing the reliability of the identification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of his or her prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, supra; State v. Turner, 37,162 (La.App. 2 Cir. 10/29/03), 859 So.2d 911.

On review of a trial court’s ruling on a motion to suppress, the appellate court is not limited to evidence adduced at the hearing on the motion, but may also consider pertinent evidence presented at trial. State v. Turner, supra, and authorities therein.

P.L. was not the only witness to identify Lee. Merrick Hines and Ms. Simpson, both of whom knew Lee before this incident, immediately and positively identified him as one of the assailants. They testified that he was the one carrying the gun; P.L. also identified Lee as the armed assailant. All the other witnesses described Lee as “stocky” or “heavy set”; P.L. told police her rapist was “fat.” Although Lee’s face was partly obscured by a mask, P.L. had no choice but to pay close attention to him during the whole |nsordid criminal episode; this strongly supports her identification. State v. James, 592 So.2d 867 (La. App. 2 Cir.1991). The district court was not plainly wrong to find that P.L.’s identification met the Manson v. Brathwaite factors.

We have closely reviewed the lineup. Contrary to Lee’s assertion in brief, his photo (# 5) is not the only one depicting upper body or shoulders; photo #2 is a similar wide shot. Photo # 6 is a close-up. All photos are the same size; the fact that the defendant’s image is slightly smaller (or larger) than the rest does not make the procedure suggestive. State v. Lee, 35,333 (La.App. 2 Cir. 1/23/02), 807 So.2d 359, writ denied, 2002-0644 (La.1/31/03), 836 So.2d 60; State v. Johnson, 2000-0680 (La.App. 1 Cir. 12/22/00), 775 So.2d 670, writ denied, 2002-1368 (La.5/30/03), 845 So.2d 1066. This lineup does not draw special attention to Lee and is not suggestive.

Finally, there is no record evidence to support Lee’s suggestion that P.L. “could not have known who raped her at that time unless she had been told which picture to look for.” Although Detective Harlow did not state when he showed the lineup to P.L., no one testified that Hines (or anyone else) influenced her or tainted her identification. We decline to indulge this speculation. The district court did not err in finding the identifications reliable. This assignment does not present any error.

Reference to Lee’s Post-Arrest Silence

By his third assignment, Lee urges reversible error occurred when the state made references to his right to remain silent. He argues that the state | ^wrongly sought to impeach his exculpatory account, told for the first time at trial, by exploiting his failure to give similar information after receiving his Miranda warnings at the time of arrest, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

On direct examination, Lee testified that he and P.L. had consensual sex the morning before the crimes at his cousin Charles Taylor’s house in Mooretown, but that Charles Taylor had been killed in July 2000. He justified his activity with P.L. by explaining that Merrick Hines had previously made a pass at his (Lee’s) girlfriend, Denise Gates. He also testified that the night before the crimes, he went to Hines’s house, smoked marijuana, and took Stacy into the bedroom and attempted to have sex with her; that was when he dropped the soiled condom that was found to contain his 'DNA.

On cross examination, the prosecutor asked Lee why he did not give a statement to Detective Wray after he agreed to be extradited; over objection, the prosecutor asked why this information was never provided to the police to verify Lee’s alibi. Lee explained that at the time, he was charged with only a parole violation. The prosecutor remarked that Charles Taylor was dead, and no éffort had been made to locate Denise Little or the woman called Stacy; there were no witnesses to verify Lee’s story. On redirect, Lee added that he thought those people had nothing to do with the crime, and maintained that he chose to exercise his Miranda rights. In summation, the prosecutor reiterated that Lee’s trial testimony was unbelievable because, in part, Lee “had the chance to give the explanation, but * * * didn’t.” After | iathe jury retired, the district court said it overruled the defense objection because defense counsel had “opened the door” by earlier asking Detective Wray whether Lee made any statement.

The state maintains that despite his objection, Lee never requested an admonishment or mistrial under La.C.Cr.P. art. 770(3). The state also contends that even if its line of questioning was improper, this constituted trial error (as opposed to “structural error”) and is subject to harmless error analysis. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); State v. Iverson, 37,369 (La.App. 2 Cir. 9/24/03), 855 So.2d 835. Given the balance of overwhelming evidence against Lee, and the fact that he opened the door to the inquiry, the state submits that the verdict was “surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94.

Lee has correctly identified a violation of Doyle v. Ohio, supra. A prosecutor cannot make reference to the fact that an accused exercised his constitutional right to remain silent, after he had been advised of the right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version related by the accused for the first time at trial. State v. Arvie, 505 So.2d 44 (La.1987); State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207. Moreover, the fact that Lee opened the door on direct examination to offer reasons for his silence is not sufficient to cleanse the impermissible references to his silence on cross examination and in closing argument. State v. Crotwell, 2000-2551 (La.App. 1 Cir. 11/9/01), 818 So.2d 34.

| uThe error, however, arose in the presentation of evidence to the jury. The supreme court explained in Brecht v. Abrahamson, supra:

Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant’s post -Miranda silence. Doyle thus does not bear the hallmarks of a prophylactic rule.
Instead, we think Doyle error fits squarely into the category of constitutional violations which we have characterized as “ ‘trial error.’ ” Trial error “occur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis because it “may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].” At the other end of the spectrum of constitutional errors lie “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process. Since our landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we have applied the harmless-error-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type.

507 U.S. at 629-630, 113 S.Ct. at 1717 (internal citations and footnotes omitted).

Applying this standard, we find no reversible error. We will not belabor the sufficiency of the evidence already analyzed in extenso. Three victims graphically described Lee’s violent criminal acts. Merrick Hines and P.L. positively identified him as the perpetrator; an independent witness, Ms. Simpson, also identified him and provided incriminating testimony. The DNA evidence was strong enough to eliminate any other person from the accusation of rape. Lee’s serious credibility problems, coupled with the absence of objective evidence, neutralized his claims of innocence. The evidence of guilt was so overwhelming that the [ 1sprosecutor’s questions, though improper, cannot possibly have tainted the verdict. In short, the verdict was “surely unattributable to the error.” State v. Iverson, supra; State v. Crottuell, supra; State v. Olivieri, supra.

This assignment does not present reversible error.

Pro Se Assignments

By his first pro se assignment, Lee urges the district court erred in accepting a defective verdict form that was not signed by the foreman of the jury. However, the signature of the jury foreman, Mr. Huckabee, clearly appears on the back of each verdict form, along with the handwritten verdict, in complete compliance with La.C.Cr.P. art. 810. This argument is devoid of merit.

By his second pro se assignment, Lee urges the district court erred in accepting an illegal indictment in that the minutes do not reflect that it was brought in open court by the grand jury. However, the indictment is clearly indorsed “a true bill” by the grand jury foreman and-the record plainly indicates that it was brought in open court, in full compliance with La. C.Cr. P. arts. 382 A, 383. This argument is devoid of merit. State v. Mills, 505 So.2d 933, 941 (La.App. 2 Cir.), writ denied, 508 So.2d 65 (1987).

By his third pro se assignment, Lee urges the district court erred in overruling defense counsel’s objection to “introducing a firearm that was not used in the crime.” Lee urges this demonstrative evidence was inflammatory and extremely prejudicial to his defense and mandates reversal. State v. Manieri, 378 So.2d 931 (La.1979).

|1(iIt is error to introduce into evidence weapons which are allegedly “similar” to the ones used in the crime. State v. Manieri, supra. In the case sub judice, the prosecutor showed the witnesses two weapons (a Smith & Wesson Model 629 stainless steel .44 mag. and a Ruger Model SP 101 stainless steel .357 mag.). All witnesses replied that the larger gun resembled the one used in the crime. The state did not introduce these into evidence but offered them solely for the demonstrative purpose of showing that the victims could hear the weapon being clicked, thus proving the element of intimidation. This is an appropriate use of demonstrative evidence. State v. Duncan, 99-0778 (La.App. 4 Cir. 4/19/00), 761 So.2d 586; State v. Hawkins, 97-726 (La.App. 3 Cir. 10/29/97), 702 So.2d 1121, writ denied, 97-2976 (La.4/3/98), 717 So.2d 230. This assignment does not present reversible error.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For the reasons expressed, we affirm Jackie V. Lee’s convictions, third felony offender adjudication and sentences.

AFFIRMED.

      . Dr. Wojtkiewicz testified that the historical world population, or total number of humans ever born, was only 20 to 30 billion.

      . Specifically, Merrick Hines did not tell the police that the assailants were looking for drugs, only money, but testified they demanded both; Jason Stewart told police that Michael Murdoch was actually his brother, "Michael Stewart”; both initially described the gun as black, but testified it was chrome; neither of them initially said anything was taken from the house; and P.L. gave the police a different description of her "position” in the first rape than she described at trial. Michael Murdoch did not testify at trial.

      . Lee does not argue that the jury could have found only one armed robbery rather than four. In the absence of an objection or a showing of prejudice (all four sentences were made concurrent), there is no error. State v. Davis, 336 So.2d 805 (La.1976). He also does not contest the finding that the things of value were taken “from the person of another er * * * the immediate control of another.” The victims exercised sufficient control over the money and other items taken that, absent violence or intimidation, they could have prevented the taking. State v. Long, 36,167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552, and citations therein.

      . The district court initially sustained the objection, when the state showed Jason Stewart only the Smith & Wesson.


source: Caselaw Access Project

author: |1AMY, Judge.

license: Public Domain

text:
    BUCKSKIN HUNTING CLUB v. Buddy BAYARD, et al.
    No. 03-1428.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Rehearing Denied April 7, 2004.

      James W. Sehwing, New Iberia, LA, For PlaintiffAppellee, Buckskin Hunting Club.
    Frank Edward Barber, New Iberia, LA, For Defendants/Appellants, Buddy Ba-yard, Carrol Bayard, Kurt Boudreaux, Oswald Buteaux, Cory Bourque and Ossie Romero.
    Roger Boughton, Jr., pro se.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   |1AMY, Judge.

The defendants appeal the issuance of a permanent injunction issued which, in part, ordered them to refrain from hunting on property leased by the plaintiff hunting club. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Buckskin Hunting Club, holds several hunting leases on approximately 14,000 acres on various pieces of property in the Atchafalaya Basin. In December 2000, the plaintiff filed a Petition for Injunction, alleging that the defendants, Buddy Bayard, Carrol Bayard, Oswald Buteaux, Ossie J. Romero, Jr., Roger Boughton, Jr., Kurt Boudreax, and Cory Bourque, had repeatedly entered the leased property without permission. The petition sought a temporary restraining order and, ultimately, an injunction prohibiting the defendants from entering the leased property. The petition alleged that the “defendants, have entered the leased premises in the past and, despite warnings, have indicated that they intend to continue to do so in the future.”

The requested temporary restraining order was entered by the trial court, prohibiting the defendants from entering the leased premises. The defendants answered the petition, setting forth several affirmative defenses, including an assertion that “a portion of the land allegedly leased is on navigable streams.” The defendants filed a reconventional demand, seeking damages associated with the wrongful issuance of a temporary restraining order or preliminary injunction. Although the trial court set a hearing on a rule to show cause why a preliminary injunction should not be ordered on the petition for injunction, the hearing was refixed by agreement of the parties several times. All orders previously rendered by the trial court were ordered to remain in effect during this time.

|2In December 2001, the plaintiff filed a Rule for Contempt of Court, asserting that the defendants violated the temporary restraining order by trespassing on the property, in particular, hunting with dogs. A hearing was held on the matter at which the defendants failed to appear. The trial court found in favor of the plaintiff. The defendants sought a new trial on the matter. Subsequently, the plaintiff filed an additional rule for contempt asserting ongoing violations of the temporary restraining order.

The merits of the original Petition for Injunction, the defendants’ Motion for New Trial, and the plaintiffs rule for contempt were heard by the trial court over the course of several hearing dates. The trial court also considered an exception of no right of action filed by the defendants, alleging that the plaintiff failed to demonstrate that it complied with La.R.S. 9:1051. The trial court issued written reasons for ruling in January 2003. The trial court granted the defendants’ request for a new trial, finding that the defendants received inadequate notice of the original contempt hearing. Furthermore, with regard to the remaining contempt issue, the trial court found in favor of the defendants. The exception of no right of action was denied, Uwith the trial court concluding that La. R.S. 9:1051 was inapplicable to the acquisition of leases by the organization.

With regard to the merits of the case, the trial court found in favor of the plaintiff, granting the permanent injunction. The trial court considered several issues inherent in the request for injunction, concluding that banks along navigable rivers within the leased premises are not subject to public use for all purposes; that man-made pipeline canals within the leased premises are private property and that the lessees, through contractual obligation, are required to prevent trespassers from entering the canal; and finally, that any preliminary injunction issued would apply to the hunting dogs entering the property without the permission of the plaintiff. Finally, the trial court found that irreparable injury would result without the issuance of the permanent injunction.

The defendants appeal, assigning the following as error:

I. The trial court erred in finding that the plaintiff/appellant, BUCKSKIN HUNTING CLUB, an unincorporated association, had the legal capacity to assert the causes of action because of the limitations provided by La.R.S. 9:1051.
|4II. The trial court erred in finding that the man-made, navigable waterways located on private land are owned and exclusively controlled by the landowner therefore giving the landowner or other interest holder the right to restrict access to the waterways.
III. The trial court erred in issuing a permanent injunction, prohibiting the defendants/appellants from going on the banks of navigable waterways or in the man-made canals at issue.

Discussion

No Right of Action

The defendants filed a no right of action, alleging that the plaintiff lacked capacity to bring the present action against the defendants. They contend this lack of capacity is due to the plaintiffs failure to demonstrate that it was in compliance with La.R.S. 9:1051. In the event this court finds merit in the exception, the defendants seek damages for wrongful issuance of a temporary restraining order or preliminary injunction pursuant to La.Code Civ.P. art. 3608.

La.R.S. 9:1051, entitled “Unauthorized corporations; unincorporated nonprofit associations; powers and liabilities,” provides:

A. Corporations unauthorized by law or by an act of the legislature enjoy no public character, although these corporations may acquire and possess estates and have common interests as well as other private societies.
Unless otherwise provided by its constitution, charter, bylaws, rules, or regulations under which it is organized, governed, and exists, any unincorporated nonprofit association may alienate or encumber title to immovable property to any person. For the purposes of this article, immovable property includes, without limitation, mineral rights, predial servitudes, and predial leases, and a transaction to alienate or encumber | Bshall include, without limitation, transactions to mortgage, hypothecate, donate, or transfer title to immovable property. Any such transaction shall be authorized by resolution adopted by a majority of the members of the association who vote on the resolution at a special meeting called and held for that purpose. The resolution may designate a person or persons to act as agent for the purpose of effectuating the transaction. Notice of the special meeting, including the date, time, and place of the meeting and the substance of the contemplated resolution, shall be published, on two separate days at least fifteen days prior to the date of the meeting, in the official journal of the parish in which a majority of the members reside or, if none, in a newspaper of general circulation in the parish. A copy of the resolution and proof of publication as required herein shall be attached to each act effectuating the transaction.
B. The provisions of this article applicable to transfers of immovable property by unincorporated nonprofit associations shall not apply when the transfers are part of an incorporation of the association in which substantially all of the assets of the unincorporated nonprofit association are transferred to the new corporation. In such eases, R.S. 12;1207(C) shall govern the transfer.

In ruling on the exception of no right of action, the trial court reviewed La.R.S. 9:1051 and concluded that: “[T]he statute is aimed at the divesting of some form of title to immovable property rather than acquiring an interest to immovable property such as leases. The Court finds that this provision is not applicable to the acquisition by Buckskin of leases of the character sued upon where Buckskin is acting as Lessee rather than Lessor.”

IfiOur review of the plain wording of the statute indicates that the trial court correctly denied the exception of no right of action. La.R.S. 9:1051 specifically indicates that its requirements are in effect at the point the organization chooses to “alienate or encumber title to immovable property to any person.” (Emphasis added). This reference anticipates a divesting of interest rather than the acquisition of an interest. This assignment lacks merit.

| ^Issuance of Permanent Injunction

The majority of the defendants’ arguments in brief address the merits of the trial court’s ruling insofar as the court granted the permanent injunction. The defendants do not appear to contend that the plaintiff failed to demonstrate its burden with regard to the permanent injunction. Rather, the defendants’ arguments focus on the trial court’s rejection of their affirmative defense of navigability. They assert that the ruling is in error insofar as it limits their access to the man-made “navigable” waterways located on the leased property. They contend that these waterways are subject to the ebb and flow of the tides, a fact in dispute, and should be treated as a navigable waterway subject to public use. In addressing this issue within their second assignment of error, the defendants make various arguments, including those related to whether the property at issue is navigable in law or fact and whether the privately constructed canals located on the property became subject to public use through the expenditure of public funds or their alleged diversion of waters from • navigable | ^waterways. Much of the defendants’ argument relates to factual determinations made by the trial court.

We first turn to the Louisiana Civil Code, which provides a general framework for consideration of private and public things. For example, the Civil Code provides, in part:

Art. 449. Common things
Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used by everyone comfortably with the use for which nature has intended them.
Art. 450. Public things
Public things are owned by the state or its political subdivisions in their capacity as public persons.
Public things that belong to the state are such as running waters, the luaters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
Public things that may belong to political subdivisions of the state are such as streets and public squares.

(Emphasis added.)

Art. 452. Public things and common things subject to public use
Public things and common things are subject to public use in accordance with applicable laws and regulations. Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the property of adjoining owners.
The seashore within the limits of a municipality is subject to its police power, and the public use is governed by municipal ordinances and regulations.
Art. 455. Private things subject to public use
Private things may be subject to public use in accordance with law or by dedication.
|flArt. 456. Banks of navigable rivers or streams
The banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank.

While this case is argued to be about many things, the central question is whether the property at issue is subject to public use under these Civil Code articles. Insofar as this assignment is concerned, the crucial inquiry is Article 450 and whether, considering the jurisprudence, the property is a navigable water body of the State. We are mindful that navigability is not presumed. Rather, it is a burden to be carried by the party asserting navigability. See Shell Oil Co. v. Pitman, 476 So.2d 1031 (La.App. 3 Cir.1985). See also Kieff v. Louisiana Land and Exploration Co., 99-2947 (La.App. 4 Cir. 1/24/01), 779 So.2d 85.

At trial, the plaintiff presented evidence to the trial court of their leases, along with maps it considered illustrative of the lands on which the leases are held and those of adjoining landowners. The plaintiff, through testimony of various club members, testified as to various encounters with the defendants and their hunting dogs within the property they assert is subject to the leases. The trial court also heard from officials from the Louisiana State Land Office as to the Office’s position as to portions of the leasehold property it contends are property of the State. While it is important to note that there are various areas of the property to which the State lays | inclaim, neither those contested areas nor the merits of those contests are at issue in this case. The alleged violations by the defendants have occurred elsewhere on the property. The defendants also testified, personally, as to their history in the basin, their knowledge of the changes in water level, and their contentions regarding the navigability of the various waterways.

In ruling, the trial court recounted the testimony and considered the above Civil Code dictates, along with related jurisprudence and scholarly writings, explaining:

USE OF PRIVATE LANDS PERIODICALLY INUNDATED WITH WATER
Courts have held that the banks of navigable river are private things subject to public use, while swamp lands subject to overflow are private things. Cf. State v. Barras, 615 So.2d 285 (La.1993). The Court in Barras stated that the public has the traditional right to fish from boats in navigable waters of [the] state. Professor Yiannopoulos points out in his Louisiana Civil Law Treatise on Property that the banks of a navigable river are private things subject to public use, while swamp lands subject to overflow are private things. A.N. Yiannopoulos, W.R. Irby Professor of Law, Tulane University, Louisiana Civil Law Treatise, Yol. 2, Property, § 69 (3rd ed., West Publishing Company, St. Paul,-Minnesota, 1991). In the Barras case, the Court held that the Defendants were guilty of trespassing when they refused to leave while craw-fishing in the Atchafalaya Basin on property belonging to Williams, Inc.
In this case, it was acknowledged that the water levels in the Basin may cover land areas, from time to time, anywhere from six inches to twelve feet. This does not convert all of the land that becomes covered with water to “banks” which are subject to public use. See Barras, swpra.
There is no issue in the Court’s mind but that this privately leased land is not subject to use by the public merely because during some periods of the year it is flooded swampland. This Court recognizes the difference between the banks of a navigable river and the flood plains of a navigable river, in this case, the Atchafalaya River.
As to those banks which are along navigable rivers within the leased premises, the use of these banks are limited to navigation and not hunting.
JjjUSE OF PRIVATE CANALS
The next issue within this discussion is the use of private canals located within the leased premises. Defendants argue[ ] that if a man-made canal system destroyed the navigability of surrounding natural waterways, this may constitute a defense to trespass by use of the private canal because the private canal becomes subject to public use. There was testimony from some of the defendants[ ] regarding the fact that previous navigable waterways were silted up for much of the year. They believed this was due to the construction of man-made canals in the vicinity; however, they also acknowledge that the Corps of Engineers began controlling the water level in the Basin. Further, Defendants did not present any expert testimony or specific factual bases to support this claim. While it is important that the Basin remain traversable so that individuals may get to their private land and the public may access State land, this does not allow the public to use privately owned canals at will and to hunt from within these privately owned canals.
Defendants argue[ ] that there was an expenditure of public funds for cleaning up the banks of some of the man-made canals after Hurricane Andrew. However, the Defendants did not present any evidence of the express or tacit agreement of the private landowners. The use of public funds does not convey greater rights than those contracted for by the parties. To hold otherwise would allow the taking of private ownership rights without the consent of the owner and without just compensation in violation of our State and United States constitutions. Without establishing consent of the private landowners, the state cannot unilaterally spend money on private waterways thereby converting them to public use without the agreement of the landowner and/or some exercise of imminent domain which would necessarily involve just compensation. See Amigo Enterprises, Inc. v. Gonzales, 581 So.2d 1082, (La.App. 4 Cir.1991) Defendants established no such agreements.
Additionally, the fact that the canal is navigable in fact does not thereby render it public. In National Audubon Society v. White, 302 So.2d 660, 667 (La.App. 3rd Cir.1974), writ denied, 305 So.2d 542 (La.1975), the court held that a privately owned canal, though navigable in fact, may not be subject to public use for the same reasons that a private road, though used by commercial traffic, may not be subject to public use.
The obligations arising from water being a public thing requires the owner through whose estate running waters pass to allow water to leave his estate through its natural channel and not to unduly diminish its flow; however, this does not mandate that landowner allow public access to waterway. LSA-C.C. arts. 450, 452, 658. People For Open Waters, Inc. v. Estate of Gray, 643 So.2d 415 (La.App. 3 Cir.1994). Landowners and members of [the] general public have [the] right to use h ¿running water for their needs, if they have access to it, but neither landowners nor members of general public have the right to cross private lands in order to avail themselves of running water, and such right may only be established by agreement, destination of owner, or prescription. No public rights to use of a canal located ■ on private property arises from the fact that water flows through channel. Cf. People For Open Waters, Inc., supra.
Defendants also contend that by virtue of the regulations of the Corps of Engineers, these man-made canals fall within the definition of navigable waters subject to public use. One of the tests Defendants[ ] argue, is whether the manmade canals constructed on private land is connected to a natural navigable waterway. They argue that in previous cases, the Court held that the Corps would have jurisdiction over such canals if they connected to a natural navigable waterway but if they were landlocked, the Corps would not have jurisdiction over it. The regulations cited by Defendants merely allow the Corps to seek to exercise regulatory control should it determine that in fact, the waterway is within its jurisdiction and regulatory powers. Additionally, this would be something that would be sought by the Corps, on a canal by canal basis. There is no such issue involved in this case and the Court will not venture afield to answer an issue which is not before it. The Defendants have no basis to assert the right of the Corps of Engineers to control or regulate the private waterways herein, especially in view of the fact that the Corps has not seen fit to do so.
In Vaughn v. Vermilion Corporation, 444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365 ([ ] 1979), the court held that no general right of use in the public to a private canal arises by reason of the authority over navigation conferred upon Congress by the Commerce Clause of the constitution.
The Court therefore finds that the man-made pipeline canals in question are privately owned and the Petitioners by virtue of the leases have not only a right but an obligation to keep trespassers off of the leased property, which necessarily includes the private canals.

Our review of the record reveals support for the trial court’s appreciation of the testimony and application of those facts to the relevant law. The testimony is undisputed that, at various times of the year, the property in question may be traversa-ble by the defendants and others in various size boats. This fact, however, does not make those waterways navigable as that term is used in the jurisprudence and La.Civ.Code art. 450. Reference to the Louisiana Supreme Court’s discussion in State v. Barras, 615 So.2d 285 (La.1993), a criminal trespass case, is demonstrative of the concept that the presence of water during a portion of the year does not, alone, qualify an area as a navigable waterway. See also Cenac v. Public, Access Water Rights Ass’n, 02-2660, p.. 10 (La.6/27/03), 851 So.2d 1006, 1013, wherein the Louisiana Supreme Court recently stated: “Although [a] canal is navigable, this fact alone does not render it public.” Neither do we conclude that the trial court was required to credit the defendants’ testimony regarding their opinion as to the diversion of natural waterways through the construction of the privately owned canals. The credibility/weighting assessments of these lay statements were certainly permissible in light of the complexities of the geographical features at.issue.

In short, our review of the entirety of the record, the applicable law, and each of the defendants’ various arguments, indicates no manifest error in the trial court’s determination that the defendants’ affirmative defense of navigability was not demonstrated. This assignment lacks merit.

Banks of Navigable Waterways

In a somewhat brief assignment of error, the defendants contend in full that:

Because the right to use the public waterways described herein has been granted to the public, and in this case, the defendants/appellees, they have the right to use the navigable waterways and to use the banks of the waterways as provided by Louisiana law. Therefore is [sic] this court agrees with the defendants/appellants then the injunc-tive relief should not have been granted.

While this is the assignment in full, it appears that the defendants are making argument relating to their prayer for relief, wherein they contend that this court should “reverse the decision of the trial court which found that the Defendants/appellants had no right to hunt on the banks of navigable waterways.”

114Iir ruling, the trial .court determined that, while the public may enjoy the right to use the banks of a navigable river, pursuant to the dictates of the Civil Code, those uses are limited to those incidental to navigation. We find no error in this determination. As can be seen from the text of La.Civ.Code art. 456: “The banks of navigable rivers or streams are private things that are subject to public use.” However, referencing language from the Louisiana Civil Code of 1870 and subsequent jurisprudence, the comments to Article 456 support the trial court’s determination that the public use associated with a bank of a navigable river/stream is not without limit. Comment (b) provides, in part:

According to well-settled Louisiana jurisprudence, which continues to be relevant, the servitude of public use under this provision is not “for the use of the public at large for all purposes” but merely for purposes that are “incidental” to the navigable character of the steam and its enjoyment as an avenue of commerce. See State v. Richardson, 140 La. 329, 72 So. 984 (1916); Lyons v. Hinckley, 12 La.Ann. 655 (1856); Chinn v. Petty, 163 So. 735 (La.App. 2d Cir.1935).

See also Edmiston v. Wood, 566 So.2d 673 (La.App. 2 Cir.1990); 2 YIANNOPOULOS CIVIL LAW TREATISE: PROPERTY § 85 (4th ed.2001). In light of this support, we find no error in the trial court’s determination to prohibit the defendants from hunting on the banks of those waterways found to be navigable.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this proceeding are assessed against the defendants, Buddy Bayard, Carrol Bayard, Kurt Boudreaux, Oswald Buteaux, Cory Bourque and Ossie Romero.

AFFIRMED.

COOKS, J., concurs.

      . In denying the request for contempt of court, the trial court reasoned, in part:
      The Court in this case cannot find that the Defendants, intentionally, knowingly and purposefully disobeyed the Temporary Restraining Order by allowing their dogs to roam or chase deer on the Buckskin lease. The Temporary Restraining Order did not specifically address the issue of dogs on the leased property. With the acknowledged tradition of deer dogs roaming free in the Atchafalaya Basin during hunting season, the Court does [] not find that Defendants continuing with this tradition constituted a knowing and intentional violation. Moreover, the presence of one or more of the Defendants in a duck blind which Buckskin claims to be within its lease and the Defendants claim to be on Segu-ra property, and which neither of the State employees could give convincing evidence of the location of the duck blind, does not convince the Court that the Defendants knowingly and intentionally violated the Restraining Order. Therefore, the Court finds the Defendants not to be in contempt of court.

      . The judgment provides, in part:
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a permanent injunction be and is hereby issued, prohibiting Defendants, BUDDY BAYARD, CARROL BAYARD, OSWALD BUTEAUX, OSSIE J. ROMERO, JR., ROGER BOUGHTON, JR., KURT BOU-DREAUX and CORY BOURQUE from:
      (1) hunting in the private man-made canals, or on or along the banks of navigable rivers, bayous or streams, or in or upon any of the private land situated within the boundaries of the property leased to the Buckskin Hunting Club, which is more fully identified in "Exhibit A” hereto, even if such lands are periodically inundated by water, to include the shooting of deer or other wildlife on such private lands' — including the banks of navigable rivers, bayous, streams and canals — from boats in the waters of such rivers, bayous, streams and canals; and
      (2) allowing dogs owned, used or in any way under the custody and control of said Defendants or any one of them, to enter upon the leased property of the Buckskin Hunting Club to hunt or chase deer or other wildlife or for any other purpose.

      . La.Code Civ.P. art. 3608 provides, in part:
      The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or in a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

      . Also bearing on the issue of whether the plaintiff has a right of action, the trial court found: By agreement of counsel certain of the Buckskin leases were introduced into evidence as being representative of all leases involved.
      The Court has reviewed the sample leases which were introduced into evidence as well as the extract of all other leases held by Buckskin Hunting Club. The language from the sample lease provides:
      4. LESSEE is given the exclusive right and privilege to hunt and fish on the leased premises except that LESSOR reserves the right for LESSOR and LESSOR'S family to hunt and fish on said premises. LESSEE shall have the right to permit others to hunt or fish as his guest provided that LESSEE is present. LESSEE shall post the land in accordance with all applicable state, parish, and local posting regulations and ordinances, and shall evict all trespassers from the leased premises.

      5. As a material consideration of this lease, LESSEE agrees that LESSEE shall patrol the premises and use LESSEE’S best efforts to keep trespassers therefrom. In the event LESSEE constructs barriers to limit ingress and egress to the leased premises, LESSEE shall provide LESSOR with any keys or other instruments necessary to open such barriers. LESSEE shall notify LESSOR immediately of the existence of any trespassers upon the property.
      Another sample lease provides:
      ... Lessor hereby leases and lets unto Lessee for the term hereinafter mentioned and only for the purpose of recreational deer hunting, and for no other purpose ...

      Lessor, its successors and assigns, does not guarantee Lessee the possession of the property against trespassers or poachers; nor will Lessor be bound to undertake any proceedings or actions to maintain Lessee in possession of said property. It is understood however that Lessee shall have the right as Lessee, to proceed agains[t] trespassers and poachers and to eject them by all legal means, and to institute such action or actions in Lessee's name as will protect Lessee's possession, all such acts or actions, however, to be at the cost and expense of Lessee.
      Yet another lease provides:
      2) In addition to the rental above stipulated, Lessee agrees to diligently patrol the premises and keep the same free of trespassers and poachers, and to promptly notify Lessor of any such on premises.
      3) Lessee will, during the term of this lease, use the property for private noncommercial hunting purposes only and for no other purposes whatsoever.
      The remaining representative leases contain these exact provisions with regard to the object of the lease and the duty to keep the property free from trespassers and poachers.
      There is no doubt but that the Lessee, in this case, Buckskin Hunting Club, has the right to bring an action to stop third parties from interfering with their rights to use the property for hunting. In addition, all of the leases in question confer upon Buckskin, the obligation to patrol the property and to keep it free from trespassers and poachers. To that extent, Buckskin, is entitled to a preliminary injunction if it proves the requisite trespass and irreparable harm keeping all third parties, such as the Defendants!], off of the leased property.

      . With regard to the issuance of an injunction,La.Code Civ.P. art. 3601 provides:
      An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency, or any officer, administrator or head thereof, or any officer of the State of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
      During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
      Except as otherwise provide by law, an application for injunctive relief shall be by petition.
      The manifest error standard of review is applicable in consideration on appeal of the issuance of a permanent injunction. See Parish of Jefferson v. Lafreniere Park, 98-146, 98-147 (La.App. 5 Cir. 7/28/98), 716 So.2d 472;

      . In Vaughn v. Vermilion Corp., 444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365 (1979), the United States Supreme Court indicated that, given proof, a privately constructed canal that diverts a naturally occurring navigable waterway may offer a defense under federal law to an attempt to obtain injunctive relief.

      . See also La.Civ.Code art. 665, which addresses legal public servitudes and provides:
      Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works.
      All that relates to this kind of servitude is determined by laws or particular regulations.

      . With regard to this assignment, the trial court found:

        USE OF LAND ADJACENT TO NAVIGABLE WATERWAYS

      Defendants contend that they could arguably be entitled to use all the land between the eastern and western guide levees of the Atchafalaya Basin and that they-are entitled to use the banks of navigable rivers or streams pursuant to this statute. However, the nature of the use of the banks of navigable rivers and streams is not for use of the public at large for all purposes, but rather for purposes incidental to the navigable character of the stream and its enjoyment- as an avenue of commerce. Although the banks can be used for temporary mooring, etc., it does not include the right to hunt banks of rivers. The reason is historic and it goes back to the old days when the streams and rivers were a major source of commerce up and down the bayous and the rivers of this State, more so than it was on the highways, which were largely undeveloped in those days; and that it was necessary that the traffic on the navigable streams could have access to the banks for various reasons: in case of ship wreck, to dry nets, to rest from the waters, etc. See State v. Barras, 602 So.2d 301, 304 (La.App. 3 Cir.1992). In Edmiston v. Wood, 566 So.2d 673 (La.App. 2 Cir.1990), a case involving similarly situated lands and similar issues, the De-fendantsf], owner and lessor of lands which became inundated periodically from backwaters of the Mississippi, were allowed to post the property against trespassers and to prevent individuals from traversing their vessels over that property when neighboring navigable bodies of water overflow their natural bed and bottoms and covered the Defendants' land. The Court determined that hunting and fishing the adjacent overflowed lands are not incidental to the navigable character of the stream and its enjoyment as an avenue of commerce. The court further determined, as this Court does, that merely because a bank of a navigable stream overflows does not subject it to public use in accordance with La. Civil Code Art. 456.


author: pMICHAEL E. KIRBY, Judge. h MURRAY, J.,

text:
    Terry Lynn HAYLES v. SONAT EXPLORATION COMPANY, Applied Coating Services, Inc. and Southern Natural Gas Company.
    No. 2002-CA-1890.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.
    Rehearing Applications Denied April 7, 2004.

      Robert J. Young, Jr., Young, Richaud & Myers, New Orleans, LA, for Plaintiff/Ap-pellee.
    David L. Reisman, Michael A. Golemi, Liskow & Lewis, New Orleans, LA, for Defendants/Appellants, Southern Natural Gas Co. and Zurich American Insurance Co.
    H.F. Foster, III, Hugh M. Glenn, Jr. Bienvenu, Foster, Ryan and O’Bannon, New Orleans, LA, for Intervenor/Apellant, Zurich American Insurance Co.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge Pro Tempore MOON LANDRIEU).
   pMICHAEL E. KIRBY, Judge.

The plaintiff, a paint foreman and roustabout by trade, injured his back on a platform in the Gulf of Mexico while lifting a spool piece within the course and scope of his work. After receiving workmen’s compensation, the plaintiff, alleging to be a Jones Act seaman, sued his employer and its insurer. The trial court found the plaintiff was a Jones Act Seaman, and awarded him over one million dollars. We find the trial court committed a legal error by excluding impeachment evidence and it was manifestly erroneous in finding the plaintiff to be a seaman. Therefore, we reverse the trial court.

STATEMENT OF THE FACTS

On March 8, 1999, Terry Hayles was working on the Vermillion 149 fixed platform of Southern Natural Gas Company (“SNG”). Mr. Hayles alleges he injured his back while helping to lift a section of pipe, called a spool piece, on the platform. At the time of the incident Mr. Hayles was a payroll employee of | ¡Applied Coating Services, Inc. (“Applied Coating”), performing roustabout work on the platform.

The plaintiff saw physicians for his lower back problems, but no surgery was ever performed.

Terry Hayles filed suit against SNG and Zurich American Insurance Company (“Zurich”). Zurich was the workmen’s compensation insurer of Applied Coating and had paid medical expenses and workmen’s compensation benefits to plaintiff as a result of the alleged accident pursuant to the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq.

At issue in the suit is whether the plaintiff is a Jones Act seaman, thereby allowing him to sue his employer. If the plaintiff does not quality as a Jones Act seaman, then he has no action against his employer and the workmen’s compensation claim is his sole remedy for injury.

ACTION OF THE TRIAL COURT

On February 15, 2001, the trial court granted the plaintiffs motion for summary judgment declaring that Mr. Hayles was a Jones Act seaman. The trial court ruled in favor of the plaintiff despite deposition and affidavit testimony from four witnesses that the plaintiff (1) was permanently assigned to a fixed platform, (2) spent no more than 20% of his work time aboard any vessel, (3) had no vessel related duties, and (4) was employed solely for the purpose of servicing, repairing and maintaining fixed platforms. We granted the writ application of the defendant, SNG, and reversed the trial court’s ruling. On April 15-18, 2002, a bench trial | ^occurred, after which the trial court again found the plaintiff was a Jones Act seaman. The trial court also found SNG was negligent and awarded damages of over One Million Dollars ($1,128,311.48).

ASSIGNMENTS OF ERROR

The defendants/appellants assign several errors to the trial court. First, they deem clearly wrong and manifestly erroneous the trial court’s refusal to admit the plaintiffs social security disability application to impeach the plaintiffs testimony. Second, they assert the trial court committed manifest error and was clearly wrong in finding that the plaintiff was a Jones Act seaman. Third, they claim the trial court was manifestly erroneous and clearly wrong in finding SNG negligent for asking an experienced roustabout to lift a piece of equipment weighing about 50 pounds, and in failing to allocate any fault to the roustabout or his employer. Fourth, they aver the trial court abused its discretion in awarding $325,000 in pain and suffering damages in this unoperated back case in which the independent medical examiner concluded that Hayles was a malingerer with no physical impairment or limitations. Also, Hayles was videotaped engaging in physical activity just three days before he testified that he had been unable to engage in any physical activity for more than eight months. The defendants assign error to several other of the trial court’s findings concerning plaintiffs failure to mitigate damages, travel expenses and the award of pre-judgment interest on awards of future damages.

j 4STANDARD OF REVIEW -

Appellate courts review factual findings under the manifest error rule. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

DISCUSSION:

At trial, Hayles testified that he spent sixty percent (60%) of his work time operating, maintaining, repairing, and cleaning a vessel. To impeach Hayles, •Southern Natural sought to use a Social Security Form (the “Form”) filled out by Hayles in connection with his application for -Social Security Disability Benefits. The Form required Hayles to detail his daily job duties. The Form was properly authenticated: Hayles identified it as “what I filled out for disability.” La.Code Evid. Art. 901(B)(1). The Form is not hearsay, rather it is an admission of a party opponent. La.Code Evid. Art. 801(D)(2)(a). The Form directly contradicted Hayles’ trial testimony in which he said he worked on the engines and generators, drove the boat, handled lines, fixed water pumps, and cleaned the boat. On the other hand, in response to the question on the Form ‘What did you do all day in this job?”, Hayles stated: “lift heavy weight, filled out paperwork, climbed a lot of stairs, operated crane.”

The trial court excluded the Social Security Form stating: “I don’t want to hear anything about social security.” It is clear from the record that the Form is relevant and probative as concerns Mr. Hayles’ job description, it also aids in evaluating the veracity of Mr. Hayles’ self-serving testimony. The Form falls within the ambit of La.Code Evid. Art. 801(D)(2)(a). The trial court was clearly | ¡^erroneous in excluding it. Thus, we find the trial court’s exclusion of the Social Security Form from the record to be legally erroneous.

In any event, our review of the record reveals that even if the Form had not been excluded the trial court would have been manifestly erroneous and clearly wrong in finding plaintiff to be a seaman.

As the La. Supreme Court recognized in Stobart, supra:

However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Stobart 617 So.2d at 882.

As our discussion reveals below, the record reasonably supports one finding alone: plaintiff was a roustabout working on a platform, and not entitled to an action under the Jones Act.

The Jones Act, 46 U.S.CApp. § 688(a) provides that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law....” Thus, the threshold issue of this case is whether plaintiff meets the requirements of a seaman.

In order for the plaintiff to be a seaman under the Jones Act, he had to meet the requirements of Chandris v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). In Chandris the United States Supreme Court set out a two-part test for seaman status:

First ... an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission ... Second, ... a seaman must have a eon-nection to a vessel in navigation (or to an identifiable group of |fisuch vessels) that is substantial in terms of both its
duration and its nature.

515 U.S. at 368, 115 S.Ct. at 2190. (Emphasis added.) The Court explicitly held that seaman status “necessarily includes a temporal element.” 515 U.S. at 370, 115 S.Ct. at 2191; see also Richard v. Mike Hooks, Inc., 2001-0145 (La.10/16/01), 799 So.2d 462, 465. Thus, a “worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Chandris, 515 U.S. at 371, 115 S.Ct. at 2191. We have followed the Chandris ruling and held that workers who spend less than 30% of their time on a vessel do not qualify as seaman. Powell v. Metropolitan Life Ins. Co., 1998-1755, 2-3 (La.App. 4 Cir. 10/6/99), 746 So.2d 114, 115; Burgess v. C.F. Bean Corp., 98-3072 (La.App. 4 Cir. 8/18/99), 743 So.2d 251. Since the Chandris interpretation of the Jones Act, we know of no reported decisions in which a worker who spent less than 30% of his time working on a vessel was found to be a seaman.

The only evidence in the record that supports plaintiffs claim of seamanship status is his own testimony and that of his brother. The testimony of several disinterested witnesses, the erroneously excluded social security application form, contemporaneous records made by the plaintiffs own hand, and the vessel log, all contradict the plaintiffs testimony. Not much, according to the documents and testimony, was done in furtherance of the M/V Sea Bulk Tallahassee’s mission.

Part of Hayles’ ordinary duties while working for Applied Coating consisted in filling - out the Foreman’s Daily Report. Upon reviewing his daily reports in deposition testimony, Mr. Hayles, had this exchange:

Defense Attorney: Twenty-eight time entries through June and July of 1997, every one of them indicated that your work was on the Vermillion 149 platform. Correct?
Plaintiff: Yes.

This exchange occurred after the plaintiff had gone through the daily reports he and his brother filled out for the winter of 1997, in which plaintiff admitted he spent all of his time on the platform, Vermillion 149.

In the twenty pages of daily reports covering several years that were filled out by Mr. Hayles, nowhere does he ever mention he is assigned to the MTV Sea Bulk Tallahassee (a/k/a Sea Robin III). The only mention of a boat was in conjunction with loading or unloading. To the contrary, the daily reports are filled with detailed information about his work on the platform. The following is an example of the work plaintiff signed off on in his daily reports: “worked on pressurization vent on cellar;” “Cleaned up platform;” “Pressure washed roof deck and living quarters platform, top deck and cellar deck;” “Winterizing;” “Helped work on k-105 blowcase compressor. Hung tarps. Drained recovery tank for generator coolant fans.”; “Put heat lights on water pumps at living quarters;” “Empty helicopter transport tank;” “Changed out glass window in door going to control room;” “Cut out & welded braces for chemical lines going to chemical Istanks.” Such roustabout work clearly does not meet the Chandris seaman requirements for connection to a vessel and duration coupled with maritime nature.

The testimony of disinterested parties such as James Kirby and Dan Brown paint a coherent picture, that while the plaintiff did ride on the MTV Sea Bulk Tallahassee, he used it as a crew boat, or water taxi, to get from work site to work site. The testimony of the plaintiffs coworkers is that the majority of plaintiffs work was not maritime in nature, but that of platform work This is also reflected in the nature of the contract between the plaintiffs employer and the company to whom he was contracted out to work.

Upon thoroughly reviewing the record, we find a dearth of evidence supporting the plaintiffs contention that he spent a sufficient amount of time aboard the M/V Tallahassee, and that the time he did spend aboard the vessel, does not meet the functional requirements of Chandris, supra, in that he used the vessel only as a means to arrive at platforms.

Plaintiff cites Buford v. Cardinal Services, Inc., 2001-0738 (La.App. 3 Cir. 12/12/01), 801 So.2d 1269, for the proposition that he meets the requirements for seaman status. Plaintiff is mistaken in two respects: first, Buford states that seaman status is a mixed question of law and fact, and that the trial court was incorrect in granting summary judgment under those facts; second, those facts can be distinguished from these since Buford was assigned to five vessels over a period of several years. The plaintiff in this case was never assigned to any vessel.

CONCLUSION

Also, we find the documentary evidence and the non-interested testimony in the case so overwhelmingly contradict the plaintiffs testimony that a reasonable fact-finder could not credit it. The trial court was manifestly erroneous in finding plaintiff to be a seaman.

For the foregoing reasons, we find that plaintiff is not a Jones Act seaman and we reverse the Judgment of the trial court.

REVERSED.

MURRAY, J., Dissents and Assigns Reasons.

ARMSTRONG, C.J., concurs in the Result Reached by the Majority.

h MURRAY, J.,

dissents and assigns reasons.

I do not agree that the trial court committed manifest error by finding the plaintiff, Mr. Hayles, to be a Jones Act seaman.

The evidence showed that Mr. Hayles, was a painter assigned to the M/V SEAB-ULK TALLAHASSEE, a “paint” boat, and that he performed both traditional seaman’s duties aboard the vessel and general roustabout work aboard the fixed platform to which the vessel was attached. The primary issue, therefore, is whether Mr. Hayles spent a sufficient amount of time aboard the vessel to satisfy the temporal guideline of Chandris v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), which holds that to be classified as a seaman, a maritime worker must spend at least thirty percent of his time working aboard the vessel (or group of vessels) to which he is attached.

The majority holds that the trial court’s finding of seaman status is not reasonable because it is based almost exclusively upon the testimony of Mr. Hayles and his brother, which was contradicted by the testimony of Mr. Hayles’ coworkers and by documentary evidence such as daily foreman reports and vessel logs. However, the trial court’s Reasons for Judgment clearly indicate that the court’s decision was based primarily on credibility determinations. Mr. Hayles testified that he spent sixty percent of his time aboard the vessel, including | ¡¡virtually all of his time during the painting season, which lasted approximately seven months each year, as well as all the pig runs and chemical runs, which the trial court calculated to be approximately sixteen weeks each year. The plaintiffs brother, also a coworker, corroborated Mr. Hayles’ testimony.

Counteracting this testimony were the daily foreman reports filled out by the plaintiff himself, the vessel logs and the testimony of others who worked with the plaintiff. However, the plaintiff testified that the foreman reports were used solely to record the number of hours he worked so that he could be paid; because of this, he often filled them after the fact for several weeks at a time, and therefore they did not accurately reflect the actual duties he performed, but only the hours he worked. Mr. Hayles also testified that the vessel meal and lodging logs were not always accurate. The trial judge clearly believed this testimony.

As for the other witnesses, mainly platform workers who testified that Mr. Hayles spent eight-five to ninety percent of his time on the platform with them, the trial court did not find their testimony to be credible, expressly stating in the Reasons for Judgment:

... [T]he witnesses supplied by defendants. . .were stereotypical in their answers, most of which were so similar they seemed to be rehearsed, particularly in details and percentages and particularly since all of the defendants’ witnesses worked different schedules from plaintiff.

It is axiomatic that an appellate court owes great deference to the finder of fact with regard to the credibility of witnesses, and that we are not to substitute our own evaluations of credibility of witnesses, and that we are not to substitute our own evaluations of credibility or inferences of fact for those of the trial court, as long as those of the trial court are reasonable. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). In the instant case, although there is documentary evidence that contradicts the plaintiffs testimony, I cannot say that the plaintiffs explanation for the contradiction is so implausible or unreasonable that a reasonable factfinder |scould not credit it. See Rosell, supra at 845. Therefore, I do not find manifest error in the trial court’s conclusion that Mr. Hayles is a Jones Act seaman.

Accordingly, as there is clearly sufficient evidence of employer negligence under the Jones Act standard to support the trial court’s finding of liability on the part of defendants, I respectfully dissent from the majority’s reversal of the district court’s judgment.

      . The term roustabout is defined as a dockworker or deckhand laborer, especially in the oil field.

      . This is with the sole exception of the plaintiff’s self-serving testimony.

      .Prior to trial, Judge Berrigan of the U.S. Eastern District Federal Court, ordered the plaintiff be deposed on the issue of whether there was a fraudulent claim of Jones Act status. This was done despite objections by plaintiff's counsel.

      . Unloading, and loading of boats falls squarely within the ambit of the Longshoreman and Harbor Worker’s Act, 33 U.S.C. § 901, et sequitur.

      . James Kirby is no relation to the author of this opinion.


author:
      1 .BROWN, C.J.
      h GASKINS, J.,

text:
    STATE of Louisiana, Appellee, v. Edward MANNING, Appellant.
    No. 38,083-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2004.

      Margaret Smith Sollars, Thibodaux, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicolas Anderson, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   1 .BROWN, C.J.

A jury found defendant, Edward Manning, guilty of attempted possession of cocaine, a responsive verdict to the charge of possession with intent to distribute. Defendant was sentenced by the trial court to 18 months with a recommendation that he be allowed to participate in a work release program. A motion for reconsideration of sentence was denied. Claiming that it was error to allow an officer to give an opinion as an expert witness and that the evidence was insufficient to convict, defendant appealed. We affirm.

Discussion

Sufficiency of the Evidence

This incident occurred at approximately 6:00 p.m. on December 14, 2001. Detective David May testified that he was the case agent in a “buy bust” operation targeting the College Point area of West Monroe, an area known for heavy drug trafficking. Officer Nikki Johnson and Det. Triche Passman, working undercover, occupied a vehicle outfitted with audio and video equipment. As this vehicle approached the intersection of Ridge and Tippit Streets, Leroy Warren was standing next to defendant’s truck. Defendant and Don Washington were sitting in defendant’s white truck, which was parked in a vacant lot near the intersection. The agents asked Warren for a $20 rock. Warren went to the white truck, got a rock of cocaine and returned to the agents’ vehicle at which time the sale was completed. When the agents said they would be back for another buy, | ¡Warren replied that he would be there. As the undercover agents left, other officers moved in on defendant’s truck. Warren ran. As Lt. James Purvis approached the truck, he smelled burning marijuana which defendant admitted he had been smoking. • A search of the truck revealed 51 rocks of cocaine under a small pillow in the console area between the driver and passenger seats. Both defendant and Washington were arrested for possession with the intent to distribute cocaine. After a short chase, Warren was caught and arrested for distribution of cocaine. The money used in the drug exchange, two $10 bills identified by serial numbers, was found near defendant’s front left tire.

Det. Triche Passman was one of the undercover officers who made the buy. He got the cocaine from Leroy Warren, who got the rock from someone in the white truck. Det. Passman acknowledged that he never saw which person in the truck passed the rock to Warren.

Sgt. Harold Freeman testified that he found two $10 bills oh the ground next to the left front tire of defendant’s truck. He did not know how the money ended up on the ground. The money was identified as that used by Det. Passman in the buy from Warren. Lt. Purvis and Detective Matt Downhour also testified that they participated in the arrests of defendant and Washington. Lt. Purvis stated that he smelled marijuana as he approached the truck. Defendant was in the driver’s seat and Washington in the front passenger seat. Lt. Purvis ordered defendant out of the vehicle and asked about the marijuana. Defendant admitted that he had been smoking | ..¡marijuana and pointed out where the remainder of the blunt could be found. Defendant did not give the officers any trouble and gave consent to a search of the truck. Det. Downhour seized the blunt and found 51 rocks of crack cocaine under a small pillow between the front seats. He found no paraphernalia associated with drug use in the truck. Defendant was the registered owner of the truck.

Detective May was qualified as an expert in the distribution of narcotics, particularly crack cocaine. He personally counted the number of rocks found in the truck, 51 in all, and determined that each one had a value of $20, for a total retail value of $1,020. After a defense objection, Det. May expressed his belief that the number and value of the rocks were inconsistent with personal use. When asked to explain why, another objection was made. The objection was overruled by the trial court and Det. May testified that the quantity found was more than would be in the possession of a user. Detective May explained how crack cocaine is used and testified that the items associated with use, such as glass pipes, needles, syringes, pieces of cotton or Brillo pads, were not found in the truck. Washington was in possession of $539. No money was found on defendant.

Det. May also noted that he did not find any cell phones or pagers on defendant and that the bag containing the 51 rocks of cocaine was small. He said that defendant readily admitted to Lt. Purvis that he had been smoking marijuana.

Leroy Warren, the last witness for the prosecution, waived his right against self-incrimination. Warren, who was currently in jail on armed | ¿robbery and attempted murder charges, agreed to testify in exchange for the hope of a lighter sentence.

Warren testified that both defendant and Washington are his cousins. He further admitted that he participated in the drug transaction by flagging down the undercover agents’ vehicle and selling them the rock of cocaine which he got from Washington. Warren stated that Washington was in the truck on the passenger side and was speaking with T.J. (no last name given). Warren went to the driver’s side, leaned into the truck, and got the rock from Washington. He said defendant was sitting on the driver’s side. Warren testified that defendant did not appear surprised by what he saw, did not get out of the truck, or make Washington leave the vehicle. After selling the rock, Warren gave the money to T.J. at the rear of the truck because Washington told T.J. to hold on to it.

On cross-examination, Warren testified that he had smoked marijuana before and that it put him in a “zone,” sort of like being in another world. Warren said that he had seen many people who were smoking marijuana ignore what was happening around them and that it was possible that defendant never knew what transpired.

Defendant testified after the state rested. Defendant stated that Don Washington and Leroy Warren were his cousins. Defendant related that after he got off work at 4:00 p.m., he went home and then went to get a haircut. On the way, he picked up Washington. He parked his truck and went into the barber shop, but was told that there were two ahead of him. Defendant returned to the truck to finish his marijuana cigar. Defendant [ ^testified that the undercover officers’ truck pulled up and Warren made contact with the persons inside the truck. Defendant knew that Warren sold drugs. When Warren came to his truck, he leaned in the driver’s window across defendant and spoke to Washington and T.J., who was standing outside of the passenger’s side window. Warren got the “stone” and returned to the undercover officers’ vehicle to make the sale. When Warren came back, defendant heard someone say, “Oh shit!” and then Warren took off running. “That’s when it all happened.” Defendant testified that he thought T.J. had given the drugs to Warren.

After he got to the jail, defendant learned that Warren told the officers that Washington had given him the drugs. Defendant stated that he wasn’t really paying attention to what was going on until the police arrived. He stated that he was employed driving a dump truck and had gotten off work that day around 4:00 p.m. This incident occurred at about 5:55 p.m. Defendant agreed that he was able to drive to the barber shop and understand that he had two persons ahead of him in line. Smoking marijuana made him mellow and put him in a daze, and he claimed that he didn’t realize that anyone had any cocaine until Warren leaned into the truck. The only thing he told the police was that he had been smoking weed. He reiterated that he never knew Washington had cocaine in his truck.

Due process requires that no person suffer a criminal conviction except upon sufficient proof, that is, such evidence from which a rational | (juror could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, unit denied, 98-2723 (La.02/05/99), 737 So.2d 747.

To support a conviction for possession with intent to distribute or attempted possession, the state need not prove that the defendant was in physical possession of the drugs. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. The term possession in La. R.S 40:967 is broad enough to encompass both actual and constructive possession. State v. Brisban, 00-3437 (La.02/26/02), 809 So.2d 923; State v. Blanchard, 99-3439 (La.01/18/01), 776 So.2d 1165; State v. Sandifer, 95-2226 (La.09/05/96), 679 So.2d 1324. Constructive possession may be found where the material is not in a person’s physical possession, but is under his dominion and control. State v. Toups, supra; State v. Brisban, supra. A person may be deemed to be in joint possession of a drug which is in the physical custody of a |7companion, if he willfully and knowingly shares with the other the right to control. State v. Toups, supra. Packages of controlled dangerous substances found in a car near the driver generally are found to be in the driver’s constructive possession. State v. Daniels, 614 So.2d 97 (LaApp. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993) (citations omitted). Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. State v. Toups, supra; State v. Brisban, supra, citing State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). Guilty knowledge must necessarily be inferred from the circumstances. State v. Toups, supra; State v. Anderson, 36,969 (La.App.2d Cir.04/09/03), 842 So.2d 1222.

This case was based upon direct evidence; however, defendant’s guilty knowledge, as in any criminal case, must be inferred from the known facts according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Anderson, supra. A determination of whether there is possession, actual or constructive, depends on the peculiar facts of each case. State v. Toups, supra.

Analyzing the facts of this case, we make the following observations. Defendant, the owner and driver of the parked truck, Leroy Warren, who sold the cocaine which he obtained from the parked truck to the undercover officers, and Don Washington, defendant’s passenger, from whom Warren got the cocaine, were all cousins.

The bag containing 51 rocks of cocaine was just inches from both defendant and Washington, under a pillow between the small truck’s bucket |sseats. Defendant admitted to having been smoking marijuana in the truck as he allegedly waited to get a haircut. We note, however, that defendant had no cash on his person with which to pay the barber.

When this incident occurred, defendant and Washington were 28 years old, while Warren was 18 years old. Defendant picked up Washington, drove to the street corner in question and waited with Washington in the truck while Warren stood outside waving down the undercover officers’ vehicle. This area was known for drug trafficking.

The jury could have determined that this was a typical street corner drug operation involving a vehicle, containing the drugs; a driver/lookout/bodyguard; an 18-year-old kid outside waving down buyers; and, of course, a dealer. When the undercover officers drove up, Warren, known by defendant to sell drugs, went to the officers, came back to defendant’s side of the vehicle, and spoke to Washington, who then handed Warren the rock, by literally reaching over defendant.

The standard of review as set forth in Jackson v. Virginia, supra, is whether a reasonable juror viewing the evidence, both direct and circumstantial, in the light most favorable to the prosecution could have found the essential elements proven beyond a reasonable doubt. There is no other standard of review. Under the circumstances presented we cannot say that the jurors’ findings were unsupported or unreasonable.

Expert Witness

Det. May testified that he has been a law enforcement officer for eleven years, the last seven of which he has been assigned to the FBI/Metro | ¡Narcotics Task Force. He has participated in numerous investigations of illegal drug activities and made numerous arrests of persons engaged in illegal drug activity. Det. May testified that he has spoken many times with individuals engaged in illegal drug activity and that he has specifically talked with them regarding the handling and sale of crack cocaine.

The courts have consistently allowed the expert testimony of narcotic officers to assist the jury in the common practices of drug trafficking. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165 (quantity of cocaine not for personal use); State v. Johnson, 34,902 (La.App.2d Cir.09/26/01), 796 So.2d 201 (officer’s testimony that quantity was inconsistent with personal use was a proper factor to consider).

Det. May was qualified to give this type of expert testimony, and his observations were relevant. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

GASKINS, J., concurring with written reasons.

h GASKINS, J.,

concurring.

I respectfully concur with the opinion penned by Chief Judge Brown. The jurisprudence supports a finding of constructive possession under the facts we have before us:

(A) That defendant is both driver and owner of the vehicle, and
(B) That the driver had access to the drugs, and
(C) That the drugs were found in close proximity to the defendant, and
(D) That, from the circumstances (drug sell in drug area), the defendant knew the drugs were in the vehicle.

If those were all the facts we had, we would undisputedly affirm a conviction. Yet, the defendant tried to convince the jury, and now us, that he had no dominion and control over the drugs because they belonged to his passenger. Evidence which supports the defendant’s defense is:

(A) Warren’s testimony that he got the drugs from defendant’s passenger and
(B) Warren’s testimony that the passenger told him to give the buy money to a third party, and
(C) The policy testimony that defendant had no money on him while the passenger had approximately $500 on him, and
(D) Defendant’s testimony that he had nothing to do with the cocaine and was so zoned that he didn’t know a drug deal had occurred.

The jury, in returning a guilty verdict to attempted possession of cocaine, apparently found that the defendant had the specific intent to possess drugs and did an act for the purpose of accomplishing the possession of drugs. While the exculpatory evidence may have convinced me as a trier of the fact that the defendant had no dominion and control, on |'¿review, it is our duty to reverse only when no reasonable evidence supports the jury’s findings. The jury, who is vested with the task of determining credibility, found the defendant did have, or at least shared, dominion and control over the 51 rocks of cocaine placed under his daughter’s pillow in his truck while he waited in a well-known drug area and while a drug transaction took place, literally, over him. The jury’s determination under a Jackson v. Virginia analysis, must be upheld.

      . When sufficiency of the evidence is raised on appeal, it should be addressed first because if the accused is entitled to an acquittal, the matter is ended. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

      . The truck, which was a compact size, had bucket seats.