author: 2CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Danny Eugene WINSTON.
    No. 02-KA-1161.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      John M. Crum, Jr., District Attorney, 40th Judicial District, Rodney A. Brignac, Assistant District Attorney, Laplace, LA, for State.
    Prentice L. White, Baton Rouge, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On May 21, 2001, the grand jury of St. John the Baptist Parish indicted defendant, Danny Winston, for the second degree murder of Sydonna Morris, a violation of LSA-R.S. 14:30.1, which allegedly occurred on January 5, 2001. Defendant was arraigned on May 23, 2001 and pled not guilty. On June 27, 2001, a sanity hearing was held, and the trial court found defendant competent to stand trial and to assist his defense counsel. On February 6, 2002, defendant was re-arraigned and pled not guilty and not guilty by reason of insanity. On May 21, 22, and 23, 2002, the case was tried before a jury which found defendant guilty as charged. On May 31, 2002, defendant filed a motion for post-verdict judgment of acquittal that was denied. Defendant filed a motion for new trial that was denied on July 2, 2002. On that same date, defendant waived sentencing delays, and the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On July 9, 2002, defendant filed a motion for appeal that was granted.

| ?FACTS

The state introduced evidence at trial which showed that on January 5, 2001, at approximately 7:30 p.m., defendant shot his live-in girlfriend, Sydonna Morris, and fled the scene.

Corporal Cleven Remondet III of the St. John Sheriffs Office testified that, when he arrived at the scene, he observed a black female lying on her back. He explained that the female had been severely beaten, that she had swollen eyes and blood dripping down her face, that she was gasping for air, and that medical personnel arrived and transported her to the hospital.

Corporal James P. Nolan III of the St. John Sheriffs Office testified that, when he arrived at the scene, he observed a black female with two swollen eyes and a wound in her forehead, a bullet easing, and a pillow with blood on it and a hole in it. Felix Joseph, who was formerly a sergeant with the St. John Sheriffs Office, testified at trial, and his testimony largely corroborated that of Corporals Remondet and Nolan. Mr. Joseph also testified he interviewed the victim’s sister, along with two young children.

Dr. Paul McCarry, a forensic pathologist, testified that he performed an autopsy on Ms. Morris, that Ms. Morris had sustained a gunshot wound, that the wound appeared to be a contact wound, that the bullet had gone into her head above the inner end of her right eyebrow, that the bullet ended up in the left rear of her head inside the skull bone, and that she died from massive brain damage.

Sergeant Michael Davis, a crime scene technician with the St. John Sheriffs Office, testified that he took photographs of the scene, and that he collected evidence, including, but not limited to, a clip to an automatic weapon, a box of bullets, .380 caliber, and an empty box for a Jennings firearm. He explained that he was unable to view the body, because by the time he was notified that the victim had passed away, the autopsy had already been done.

|4M.F., Ms. Morris’s nephew, and J.E., Ms. Morris’s daughter, testified that, on the day in question, defendant told them to go into J.E.’s bedroom. They further testified that defendant subsequently went into Ms. Morris’s bedroom with Ms. Morris, that M.F. and J.E. heard a loud “boom,” that defendant came out of Ms. Morris’s bedroom and shut the door, that defendant told them not to disturb Ms. Morris because she was sleeping, that defendant had his hand behind his back, and that defendant subsequently left the house. J.E. testified that she tried to open the door of her mother’s bedroom, but the door was locked, and that she heard her mother saying “hmmmm.” M.F. testified that he went to the door of Ms. Morris’s bedroom and heard a moaning sound.

Shannon Florent, Ms. Morris’s sister, testified that when she arrived at Ms. Morris’s house, the house was “trashed,” the telephone was unplugged, and that she kicked Ms. Morris’s bedroom door in to get to her.

Jay East, store manager for Cash America Pawn in LaPlace, testified that, on January 5, 2001, at approximately 3:05 p.m., defendant pawned some jewelry and borrowed $160.00.

Defendant testified that he and Ms. Morris were arguing on the day in question, that Ms. Morris threatened to kill herself, and that he could not remember anything else after that until he woke up in Ms. Morris’s car in Atlanta, Georgia. Defendant further testified that Ms. Morris had been threatening his wife and other girlfriend by calling them and writing them letters. Defendant also testified that he had bought a gun and cartridges at a pawn shop in the beginning of January 2001 for $100.00 to protect himself from Ms. Morris and her friends. Defendant testified that he could not dispute the testimony of J.E. and M.F. because he could not remember anything.

IfiDr. Harold Myron Ginzburg, a psychiatrist, testified that he examined defendant one year before trial, that a person who experienced a great shock or stress could lose his memory for a brief period of time, and that the condition was known as “acute stress reaction.” Dr. Ginzburg explained that he did not diagnose defendant as having acute stress reaction or temporary amnesia. He testified that defendant had told him that he had previously witnessed the deaths of his sister and mother. Dr. Ginzburg explained that, if that history was true, then witnessing Ms. Morris’s death would have increased defendant’s risk for temporary amnesia. He further testified that he could not determine whether defendant knew right from wrong at the time of the shooting.

Debbie Parsons testified that she and defendant lived together from May of 1995 until October of 1996 or 1997, and from September of 1999 until April of 2000, and that they had a 10-year-old son. She testified that she had received a letter and telephone calls from Ms. Morris while Ms. Parsons and defendant were living together.

Muriel Crowley, records custodian for the St. John Sheriffs Office, identified a document, dated November 11, 1999, which showed that defendant had advised he was getting threatening telephone calls.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence was legally insufficient to convict him of second degree murder. He contends that the state’s evidence did not preclude a finding that the victim committed suicide upon learning that defendant was leaving the state and not returning to her. Defendant further asserts: (1) the state’s evidence was incomplete because the state failed to conduct the proper DNA tests on the victim’s hand and fingernails for gunpowder residue or for skin samples of her assailant; (2) J.E. and M.F. were coached to testify adversely to defendant; (3) the witnesses gave conflicting statements; (4) evidence was altered; (5) evidence pthat defendant fled the scene does not indicate guilt in light of his psychiatric condition; and (6) there was no evidence defendant abused the victim.

The defendant was convicted of second degree murder in violation of LSA-R.S. 14:30.1, which provides in pertinent part: “A. Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.”

In this case, defendant’s actions indicate he was planning to kill Ms. Morris. Defendant admitted buying a gun for $100.00 at a pawn shop within a few days, or even hours, before the shooting. He admitted going to a pawn shop a few hours before the shooting to obtain a loan of $160.00. Defendant went to Ms. Morris’s home and sent the children to another bedroom. He subsequently went into Ms. Morris’s bedroom where he was alone with Ms. Morris. The children’s testimony placed defendant in the room alone with Ms. Morris when the gunshot was fired. Defendant testified that he could not dispute the children’s testimony because he had temporary amnesia. Also, the officers testified that Ms. Morris had been severely beaten in addition to being shot, and the evidence suggested that a pillow was used to muffle the sound of the gunshot.

The evidence indicates defendant tried to cover up the crime. Defendant locked the door of Ms. Morris’s bedroom when he left. He told the children not to disturb Ms. Morris because she was sleeping, which gave him time to escape. Defendant had his hand behind his back so the children could not see what he was hiding when he left the house. Ms. Florent found the telephone unplugged and observed that the house had been “trashed.” Defendant fled the scene in Ms. Morris’s car.

Based on the foregoing, it could be reasonably inferred from the evidence that defendant planned to kill Ms. Morris, that he did Mil Ms. Morris, that he covered up the crime, and that he fled the scene. Even though defendant claims he 17does not remember shooting Ms. Morris, that does not mean it did not happen, nor does it mean that defendant was insane at the time of the offense. Even assuming that defendant suffered from amnesia as a result of viewing Ms. Morris’s death, there was no evidence introduced at trial to show that defendant was insane, i.e., that because of a mental disease or mental defect defendant was incapable of distinguishing between right and wrong at the time of the shooting. LSA-R.S. 14:14. In fact, Dr. Ginzburg testified that he could not determine whether defendant knew right from wrong at the time the shooting occurred.

On appeal, defendant argues that the evidence does not preclude a finding that Ms. Morris killed herself upon learning that defendant was leaving her and not returning to her. However, it is reasonable to infer that Ms. Morris did not commit suicide, because it is highly improbable that she would put a pillow over her own head before shooting herself. Further, the issue of whether defendant killed Ms. Morris or whether Ms. Morris committed suicide was a factual matter to be determined by the jury. Here, the jury made a credibility determination and believed the testimony of the state’s witnesses rather than the defense -witnesses’ testimony. It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986); State v. Sampson, 95-58 (La.App. 5 Cir. 5/30/95), 656 So.2d 1085, 1088, writ denied, 95-1665 (La.11/27/95), 663 So.2d 730.

Defendant argues that Ms. Morris threatened him, his wife, and his girlfriend, Ms. Parsons, on several occasions by telephone and by letter, that she would not let defendant visit with his child despite the fact she was preparing to sue him for child support, that Ms. Morris had threatened to kill herself if defendant ever decided to leave her, and that Ms. Morris was mentally unstable due to her failing relationship with defendant.

IsDefendant testified that Ms. Morris wrote him a letter, that the letter was not dated, and that he received the letter in October of 1999 while he was living in Mississippi. Ms. Parsons testified that she received a letter from Ms. Morris in late September or early October of 1999. Ms. Parsons further testified that the calls from Ms. Morris were received while she was living with defendant, from May of 1995 until October of 1996 or 1997, and from September of 1999 until April of 2000.

Ms. Crowley, the St. John Sheriffs Office records custodian, identified a complaint from defendant regarding threatening telephone calls. She testified that Ms. Morris’s name was not on the complaint, and that it was dated November 11, 1999. The evidence indicates that the telephone calls and letters to defendant and Ms. Parsons were irrelevant to show Ms. Morris’s state of mind at the time of her death, as they occurred more than one year prior to Ms. Morris’s death. Additionally, there was. no evidence of stalking, pursuing, or harassing at or near the time of the offense, other than defendant’s self-serving testimony that Ms. Morris had threatened to kill herself while they were arguing on the day of her death.

Defendant contends that the state’s evidence was incomplete for the following reasons: 1) the state failed to conduct the proper DNA tests on Ms. Morris’s hand and fingernails; 2) the bullet casing found .near the victim’s body was either not tested for fingerprints, or tested, but revealed no fingerprints; 3) the crime scene technician was not able to view the body prior to the autopsy; 4) no samples were taken from the victim’s body; 5) the items taken from the victim’s bedroom were not tested even though they were sent to the Louisiana Crime Lab to be tested; and 6) no forensic tests were conducted on the pillow to determine whose fingerprints were on the pillow, what material was found on the pillow, or whether the pillow was used to silence the gunfire.

Defendant cites no law which provides that the state must conduct tests for DNA or fingerprints. The law only requires the state to prove the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). Further, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction or convictions. State of La. in the Interest of L.A., 95-409 (La.App. 5 Cir. 12/13/95), 666 So.2d 1142, 1144.

Defendant suggests that J.E. and M.F. were coached to testify adversely to him. He states that, during cross-examination, M.F. testified that he practiced standing up and pointing at the defendant with the district attorney a few days before trial. Defendant also states that M.E. admitted she was coached by the district attorney to stand and identify defendant in court.

The record reflects that both M.F. and J.E. testified that they practiced standing up and pointing to defendant prior to trial. During closing arguments, the prosecutor addressed the allegation that he coached the witnesses. He stated that the children were reliable witnesses, that there was nothing to indicate that the children were lying or that anybody put words in their mouths or coached them, that he met with the children prior to trial in order to prepare them for trial, that he was not going to put the children on the stand for the first time on the day of trial in front of a judge, lawyers, and 13 strangers, and that preparing them for trial did not taint their identifications of defendant, because defendant was not someone they had met on the street one time; they already knew who defendant was because they saw him everyday. The prosecutor’s explanation for meeting with the children to prepare for trial and having them practice pointing at the place where defendant was going to sit appears reasonable.

Defendant next contends that J.E. and M.F., the only witnesses to the incident, gave conflicting statements to the police about how the shooting occurred, even though they were in another bedroom playing at the time of the shooting. Defendant states in his brief that defense counsel brought out in J.E.'s testimony that there was nothing in her transcribed statement to the police about any moaning J.E. heard from the victim's room.

The record reflects that, during J.E.’s testimony, J.E. testified that she told the police officer she heard a humming sound coming from her mother’s bedroom. When defense counsel stated that he did not see anything about that in the transcribed statement, the prosecutor said defense counsel was trying to testify. The trial judge told defense counsel to ask questions. Defense counsel again asked J'.E. whether she was sure she told the police officer about the humming, and she said “Yes.” Mr. Joseph (formerly Sergeant Joseph) testified that J.E. told him that she heard a humming sound coming from the room where her mother was. Defense counsel did not ask Mr. Joseph why the information regarding the humming sound was not in J.E.’s statement, nor was J.E.’s statement introduced into evidence. Additionally, there was no evidence that the other officers who testified interviewed J.E. or M.F.

The statements of J.E. and Mr. Joseph do not conflict, because they both testified that J.E. told Mr. Joseph that J.E. heard a humming sound coming from her mother’s bedroom. Therefore, it is reasonable to conclude that the information regarding the humming was not in the transcribed statement, because J.E. told Mr. Joseph that information either prior to the recording of her statement or at some other time.

Another alleged discrepancy occurred, according to defendant, when J.E. testified that defendant left the apartment and drove off, but then later admitted on cross-examination that she did not see defendant get into the car. When asked who Intold her that defendant drove off in the car, J.E. testified, “No one. Cause I saw my mom’s car gone.” Apparently, J.E. assumed defendant took her mother’s car, because J.E. later saw that her mother’s car was gone. Therefore, J.E. provided a reasonable explanation for the conflict in her testimony.

Additionally, a review of the closing arguments and the pertinent testimony reflects other slight discrepancies in the testimonies of M.F. and J.E. M.F. testified that when he and J.E. went into J.E.’s bedroom, they played tic-tac-toe; however, J.E. testified that they did not play in the room, they just “sat around.” M.F. testified that defendant never drove them to school; however, J.E. testified that defendant did drive them to school in Ms. Morris’s car. J.E. and M.F. testified that M.F. called his mother after defendant left; however, Mrs. Florent testified that J.E. called her.

Although there were slight discrepancies in the testimonies of J.E. and M.F., the important parts of their testimonies were consistent. They both testified that defendant sent them to another room, that defendant went into the other bedroom with Ms. Morris, that they heard a “boom,” that defendant came out of the bedroom, that defendant told them not to disturb Ms. Morris, that defendant had his hand behind his back, and that defendant left.

Defendant suggests that the evidence was contaminated or altered. He states in his brief that Sergeant Davis testified that, at the time he viewed the body, there were certain modifications that the pathologist made to the victim’s body prior to him viewing the body, and that the victim’s forehead had been covered with some material from the mortuary in preparation for the funeral. The record reflects that Sergeant Davis did, in fact, make the above statements. However, there is no evidence to suggest that Sergeant Davis’s inability to view the body prior to the autopsy nor the modifications made to the forehead of the body prejudiced defendant.

Defendant argues that evidence that he fled the scene does not indicate guilt in light of his psychiatric condition, i.e., acute stress reaction. However, there was no evidence presented at trial that defendant did, in fact, suffer from acute stress reaction. Defendant claims that Dr. Harold Ginzburg testified that he diagnosed defendant as having acute stress reaction which was initiated when defendant witnessed the suicide deaths of his sister and mother at a young age, and that the acute stress reaction resulted in tern-porary amnesia.

However, contrary to defendant’s assertions, Dr. Ginzburg testified that he did not diagnose defendant as having acute stress reaction or temporary amnesia. Rather, Dr. Ginzburg testified that defendant had told him he had witnessed the deaths of his sister and mother at a young age. Dr. Ginzburg explained that, if that history was true, then witnessing Ms. Morris’s death would have increased defendant’s risk for a number of psychiatric signs or symptoms, including temporary amnesia. Dr. Ginzburg further testified that defendant’s history was uncorroborated, and that he could not determine whether defendant knew right from wrong at the time of the shooting.

Further, even if defendant had acute stress reaction or temporary amnesia, and therefore, that flight after the shooting would not necessarily indicate guilt, there was substantial other evidence that tended to show defendant was guilty, especially the testimony of J.E. and M.F.

Finally, defendant states that there was no evidence to suggest or support the allegation that he struck, threatened, or assaulted the victim during their brief relationship. However, Corporal Re-mondet testified that, when he arrived on the scene, he observed that the victim appeared to have been severely beaten, that her eyes were swollen shut, and that blood was dripping down her face. Corporal Nolan testified that the victim had two swollen eyes and a wound in her forehead. Mr. Joseph, formerly Sergeant Joseph, testified that he observed that the victim’s 113face was badly swollen, that he had seen the victim previously, and that the swelling on her face was more than what would have been caused by a bullet. Although no witness testified that he or she observed defendant physically abuse Ms. Morris, it is reasonable to infer that defendant beat Ms. Morris in light of their tumultuous relationship, their argument prior to the shooting, and the fact that Ms. Morris was alone in the room with defendant at the time of the shooting.

Based on the foregoing, we find that the evidence was legally sufficient to convict defendant of the second degree murder of Ms. Morris and this assignment of error lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

In accordance with the above, we affirm the defendant’s conviction of second degree murder.

AFFIRMED.

      . Because the witnesses were minors, their initials will be used to protect their identity.


source: Caselaw Access Project

author: 2THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Desiree BLACK v. STOLT-NIELSEN, INC., Romeo Salac, Avondale Industries, Inc., ABC Insurance Company and DEF Insurance Company.
    No. 02-CA-1135.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Craig J. Mordock, The Mordock Law Firm, New Orleans, LA, for PlaintiffAp-pellant.
    David B. Lawton, T.A., Kenneth J. Gel-pi, Jr., Terriberry, Carroll & Yancey, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   2THOMAS F. DALEY, Judge.

The plaintiff, Desiree Black, has appealed the trial court’s grant of summary judgment in favor of the defendant.

The plaintiff filed this lawsuit for injuries sustained while she was working as a security guard for Wackenhut Corporation at Avondale Shipyards (Avondale). Plaintiff alleged that while working in her position at Avondale, she was struck by an intoxicated seaman, Romeo Salac, a crew-member of the vessel, STOLT SPARY. Plaintiff filed suit against Avondale, Salac, and Stolt-Neilsen, Inc., the operator of the ship. She then amended the petition to include Stolt Parcel Tankers, Inc., Stolt Spray, Inc., and Stolb-Nielsen Marine Services, Inc., hereinafter collectively referred to as Stolt. Avondale was dismissed when the trial court granted summary judgment in its favor. That dismissal was affirmed by this Court. Black v. Avondale Industries, Inc., 00-15 (La.App. 5 Cir. 3/28/01), 783 So.2d 505. Salac was dismissed without prejudice due to improper service and lack of personal jurisdiction. Stolt filed a Motion for Summary Judgment, claiming there |3were no issues of material fact and it is entitled to judgment as a matter of law. This motion was initially denied. After discovery was complete, Stolt reurged its motion, which was granted. Plaintiff filed this timely appeal.

LAW AND DISCUSSION:

Appellate courts review summary judgments de novo using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966C.(2) provides:

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

In its Motion for Summary Judgment, Stolt argues that it has no liability for the alleged injuries sustained by plaintiff under any theory of recovery. Stolt acknowledges that an employer is vicariously liable for the acts of its employees, but only for those acts that occur in the course and scope of employment. Stolt contends that Salac was not in the course and scope of his employment when he allegedly struck plaintiff, therefore, Stolt has no liability for this incident. Stolt further argues that even if Salac was intoxicated at the time of the alleged incident, and even if Stolt supplied alcohol to Salac, Stolt has no liability for Salac’s actions.

^Attached to Stolt’s motion were the depositions of plaintiff and Firdo Josepha, the Chief Mate of the STOLT SPRAY. Mr. Josepha testified that at the time of this alleged incident, the ship was being repaired at Avondale. During this time, the crew did maintenance work on the ship. This work was carried out from 8:00 a.m. to 5:00 p.m. The crew was free to go off the ship as long as they returned for normal working hours.

Mr. Josepha testified that he was on the phone at the time of the alleged incident and when he got off of the phone he was informed by plaintiff that an intoxicated crewman had struck her because she refused to let him use the phone. The police were called and he went on the ship with police officers to find Salac. Mr. Josepha denied having any prior complaints regarding Salac.

Mr. Josepha testified that the captain allowed the crew to consume beer on the ship at certain times. The crewmen were drinking beer" on the night of the incident, but he had no specific knowledge regarding Salac’s alcohol consumption.

Ms. Black testified that she was assigned to guard the STOLT SPRAY at Avondale. She explained that her only contact with the crew members was when they got off the ship to use the phone located near the guard shack. Salac had used the phone previously without incident. Ms. Black testified that on this particular night, she told Salac that he would have to wait to use the phone since someone was using it. Salac initially turned back towards the ship, then stopped and vomited. She testified that Salac then came toward her “swinging” at her. Ms. Black testified that Salac struck her in the face, knocking her down where she struck her head on a pipe. She testified that Salac continued hitting her until two Avon-dale employees approached at which time Salac ran off. Ms. Black testified that Salac had a can of beer in his hand and that she smelled alcohol on his breath.

In her opposition, plaintiff argues that the fact that Salac was briefly on shore to make a phone call at the time of the attack is not relevant. She contends |Bthat Stolt’s negligent supervision of alcohol provided to its crew members on the STOLT SPARY caused injuries on land, could have had a disruptive effect on maritime commerce and was an activity of a traditional maritime character. She argues that although her injuries were suffered on land, they were caused by the STOLT SPARY, a vessel on navigable water. Plaintiff concludes that the tort in question was the provision of copious amounts of alcohol to seamen on a ship and the permitting of the intoxicated seaman to leave the ship and cause harm to a third party. Plaintiff asserts that because the tort of providing alcohol to seamen took place on navigable water, general maritime law should apply.

We disagree with plaintiffs position. The tort in this instance was Salac striking plaintiff, not Stolt’s act of supplying alcohol to the seamen. We find no need to apply general maritime law to this case involving a battery committed on land by a seaman. The New Orleans area has historically opened its doors to reveling sailors. We find no precedent in Louisiana law for applying maritime law to seamen who get into altercations on land.

Furthermore, we disagree with plaintiffs assertion that this act bears a substantial relationship to maritime activity. This was an altercation that took place on land over Salac’s use of the telephone. Salac wanted to use the phone to call his mother, an act that has absolutely no relationship to maritime activity. We find the application of Louisiana law to be more appropriate.

In order to determine whether an employer is vicariously hable for the tort of its employee, we must first determine whether the tort arises out of the employment. In making this determination, the Supreme Court has considered the following factors: (1) whether the tortuous act was primarily employment rooted, (2) whether the violence was reasonably incidental to the performance of the employee’s duties, (3) whether the act occurred on the employer’s premises, and (4) whether the act occurred during the hours of employment. LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Even if an intentional tort occurs during working hours on- the employer’s premises, vicarious liability will only attach if the employee is acting within the course and scope of his employment and in furtherance of his employer’s business. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994.

In the case before us, the alleged assault clearly did not occur on Stolt’s ship, nor did the assault occur during Sa-lac’s horus of employment. Mr. Josepha testified that while the ship was being repaired, the crewmen worked from 8 a.m. to 5 p.m. The alleged assault occurred at 10:55 p.m. Mr. Josepha testified that Sa-lac’s duties while the ship was being repaired were related to maintenance of the ship. Ms. Black testified that Salac left the ship to make a phone call; Salac then told her he had to call his mother. Salac’s act of calling his mother is not related to Stolt’s business. Considering all of the factors set forth by the Supreme Court to determine whether an employer is vicariously liable for the acts of its employee, we find Stolt is not vicariously liable for Sa-lac’s alleged assault on Ms. Black.

Finally, plaintiff contends that Stolt is liable because Stolt provided alcohol to Salac and Salac was intoxicated at the time of the incident. We find that whether or not Stolt provided the alcohol and whether or not Salac was intoxicated is not material. For the reasons stated earlier, general maritime law does not apply, rather Louisiana law applies. Under Louisiana law, the full responsibility for damages occasioned by consumption of alcoholic beverages is placed directly and solely on the person consuming the beverages. As a result, a provider of alcohol is not liable for injury inflicted by an intoxicated person. R.S. 9:2800.1.

^CONCLUSION:

There are no genuine issues of material fact, therefore, the trial court correctly granted summary judgment in favor of ’Stolt. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: 2DUFRESNE, Chief Judge.

text:
    Susan JOHNSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, St. James Nursery, Inc., and Patrick G. Waguespack. Lydia Gilton and Cheryl Washington v. Patrick G. Waguespack, St. James Nursery, and State Farm Mutual Automobile Insurance Company.
    Nos. 02-CA-1151, 02-CA-1152.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Unglesby Law Firm, Lewis 0. Ungles-by, Robert M. Marionneaux, Jr., Baton Rouge, LA, and Allen J. Myles, Plaque-mine, LA, for Plaintiff-Appellant.
    Usry, Weeks & Matthews, T. Allen Usry, John F. Weeks, II, New Orleans, LA, for Defendants-Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2DUFRESNE, Chief Judge.

This is an appeal by Lydia Gilton, Susan Johnson and Cheryl Washington, plaintiffs-appellants, from a summary judgment dismissing the sheriffs of St. John and St. James Parishes from this fog-bound automobile accident case. For the following, reasons, we affirm the district court judgment.

The following facts are admittedly undisputed. A little before 6 AM on October 30, 2000, Lydia Gilton was driving to work accompanied by two co-workers, Susan Johnson and Cheryl Washington. As they crossed the Veterans Memorial Bridge traveling toward Gramercy, Gilton ran into the back of a pick-up truck driven by Patrick Waguespack which was stopped on the roadway because it had rear-ended yet another vehicle.

It was admitted by all parties that the morning was foggy and that poor visibility in this fog was being exacerbated by smoke from a marsh fire that had been burning for several days. Waguespack testified in deposition that the road was fairly clear up to the point where the superstructure ended on the down side of the bridge. “Then it was like hitting a wall of smoke and fog, and like other people described it, you really couldn’t see right past the hood of the vehicle,” he said. |3 He further said that his truck was rear-ended by Gilton’s vehicle about ten seconds later.

Gilton testified that there was some fog all along the bridge, but that she then ran into a thick fog bank. She said that she had been going about 45 mph until she hit the fog bank, and then she slowed to about 30 mph. She admitted that that was probably too fast for the visibility.

Trooper Matthew Sinanan, the investigating officer, discussed the ongoing problem with the fog and smoke in his deposition. He said that the State Police and the St. John and St. James Sheriffs’ Departments had been battling the problem for several days. He noted that the authorities never knew where these fog and smoke banks would be thick and where not. He said that some days the bridge was clear and other days it was not, but indicated that it was unpredictable. He also stated that when he arrived at the scene of the present accident he notified his superiors that the bridge should be closed immediately.

The plaintiffs named, among others, the St. James and St. John Parish sheriffs as defendants. The allegation as to these officials is that the failed to close the bridge to traffic in time to prevent this accident. Both sheriffs moved for summary judgment, relying on the above deposition excerpts, and the matters were set for a hearing three months later. Plaintiffs did not file any papers in opposition to those motions. After hearing argument, the trial judge granted these motions. This appeal followed.

The pertinent rule here concerning summary judgments is that where the moving party will not bear the burden of proof at trial, it is sufficient for that party to show that there is an absence of factual support for any essential element of the opposing party’s case. If the opposing party then does not come forward with such support, then summary judgment is appropriate. La.Code Civ. Pro., Art. 966C(2).

|4In the present matter, plaintiffs assert that the sheriffs have a duty to protect the motoring public from unreasonable risks of harm on the roads, and the sheriffs do not contest this legal principle. However, an essential element of proof in a suit alleging that there was a breach of this duty is a showing that the officials were aware of the unsafe condition, and failed to act on this information. See Fitzgerald v. Files Timber Co., 29,145 (La.App. 2nd Cir.1/22/97), 687 So.2d 674.

The sheriffs presented the testimony of Trooper Sinanan to the effect that the appearance of the fog and smoke banks was unpredictable, and that some days it would arise on a road or bridge and some days it would not. He also said that the sheriffs and the State Police had been battling with the problem for several days and were monitoring the situation constantly. The plaintiffs presented no testimony or other evidence to refute the trooper’s version of the problem and the authorities’ response to it. Neither did they present evidence to show that the sheriffs or their deputies were aware of the fog and smoke bank on the bridge immediately prior to the accident and failed to take appropriate action.

On the above showing, we agree with the trial judge that there are no material facts in dispute and that the defendant sheriffs are entitled to judgment as a matter of law. We therefore affirm the judgment.

AFFIRMED.


author: 2SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Ryan WATSON.
    No. 02-KA-1154.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Margaret M. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Ryan Watson, Defendant-Appellant.
    Paul D. Connick, Jr., District Attorney, Parish of Jefferson, State of Louisiana, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff-Appel-lee.
    Panel Composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, Judge.

Ryan Watson appeals his conviction of two counts of aggravated rape and one count of armed robbery, as well as the resulting sentences that incarcerate him for two consecutive life terms followed by a total of 111 years. We affirm, but remand for correction of a patent error.

On September 20, 2001 Ryan Watson was indicted on three counts of aggravated rape (La.R.S. 14:42) and two counts of armed robbery (La.R.S. 14:64). He entered a plea of not guilty and filed several pre-trial motions, including motions to suppress his statements, identification and evidence. Following a hearing, all the motions were denied.

After a two-day jury trial, the defendant was found guilty as charged on two of the three aggravated rape counts (Counts One and Three) and on one of the armed robbery counts (Count Two). The defendant was found guilty of the lesser offense of simple robbery on the second armed robbery count (Count Five).

laThe defendant was sentenced to life imprisonment for each of the two aggravated rape convictions, 99 years for the armed robbery conviction, with an additional five years for the use of a firearm, and seven years for the simple robbery conviction. His sentences were ordered to run consecutively.

Defendant appeals his convictions and sentences.

FACTS

Counts One and Two

In Counts One and Two, the defendant was charged with the aggravated rape and armed robbery of E.W. E.W. testified that on July 4, 2001, she left her house in Marrero at approximately 5:20 a.m. to catch the bus for work. On her way to the bus stop, E.W. passed the defendant, who was walking in the opposite direction. E.W. said, “Good morning,” to the defendant and he responded. Three seconds later, someone rushed E.W. from behind and told her to be quiet. She looked down to her right and saw a chrome gun barrel. She assumed then it was the man she had just passed on the sidewalk, because there was no one else around and no one else had passed.

The assailant forced her between two buddings, where he frisked her and took money from her pockets. He then told her to go to a grassy area, where he told her to pull her pants down below her knees. E.W. complied and the assailant vaginally raped her from the rear. The attacker then threw a black shirt onto the ground and told E.W. to he on it. He took off the white shirt he was wearing and placed it over E.W.’s head. He forced her to perform oral sex on him and then he vaginally raped her a second time.

UBefore leaving, he gave her money for bus fare and told her to count from one to 20 and again from one to 50. She thought he was watching her and would follow her if she went home, so she boarded the bus and went to work. When she arrived at work, E.W. called her father and told him she had been robbed. She did not tell her father about the rape because she was scared he would go looking for the rapist.

E.W.’s father called the police, who then contacted E.W. at work. E.W. initially told the police she had only been robbed. She did not disclose that she had been raped until the police called her a second time. Police officers then went to E.W.’s place of employment and took her statement, after which they took her to the hospital. She was examined by Dr. Neil Wolfson, who testified the examination revealed evidence of sexual trauma consistent with rape.

After being shown a photographic lineup by police, E.W. identified the defendant as her attacker. At trial she pointed out the defendant as the person who robbed and raped her.

E.W. also testified that the defendant has a girlfriend named Latasha. E.W. said that in the period between the date of the attack and the trial, Latasha talked to her at Wal-Mart and asked questions about the incident. E.W. said she felt “it was none of her business” and just told Latasha that the defendant had robbed her.

On cross-examination E.W. said she was able to see the perpetrator clearly. She said his hair was twisted, he “didn’t have that much facial hair,” and he wasn’t dark-skinned, but a brown-skinned color. She identified a sketch made by a police artist from her description at the time. She insisted that it reflected the defendant’s appearance at the time. E.W. also admitted that in speaking to one of the investigating officers (Detective Clogher) she denied that the perpetrator had made her perform oral sex. She said she left out the parts she “didn’t feel comfortable |swith.” She also admitted that in her conversation with the defendant’s girlfriend, Latasha, she denied that she had been raped “because it wasn’t her business.”

Counts Four and Five

In Counts Four and Five the defendant was charged with the aggravated rape and armed robbery of D.L.

On July 20, 2001 (approximately two weeks after the attack and robbery of E.W.), D.L. was leaving her apartment at 3:00 a.m. and walking toward her car when she saw someone walking. She turned around, preparing to return to her apartment, and someone jumped her from behind. She glanced around and saw a silver or chrome gun aimed at her head. She thought someone was playing a joke on her and turned; he told her to turn her head back around. The assailant made her go inside her apartment. He asked her who was in the house and they went upstairs. He demanded money; she told him it was in her bible, which was upstairs. In fact, she did not have money in the bible, but in an I.D. case she had on her. The perpetrator made D.L. give him her money, which she said was over $500. D.L. testified he then raped her and told her if she called the police he was going to come back for her and her child.

D.L. said she “balled up in a corner and cried” for a while after the incident, then called a friend who stayed with her while she called the police and was interviewed. D.L. later identified the defendant from a photographic lineup shown her by the police and also pointed him out in court.

Count Three

In Count Three the defendant was charged with aggravated rape of B.J., who was 14 years old at the time. B.J. testified that at approximately 7:00 a.m. on July 20, 2001 (the morning of the incident involving D.L.) she was walking to school for summer classes. She saw a man coming up along the sidewalk as she entered |fithe parking lot. She noticed the man went all the way round the apartment building, then stood near a door at the end as if waiting for her to pass. B.J. was suspicious and walked by the man with her head down. After B.J. passed him, she heard him coming up behind her. He put a black shirt over her face, told her to be quiet and asked whether she had any money. She felt a gun against her side. She told him no, but he took her purse from her.

He brought her along the side of the apartment building and patted her down, like a police officer would search a suspect. He then forced B.J. to lie down in the grass on top of her purse. B.J. told the assailant she was still a virgin and begged him to let her go. He responded by pulling her underwear down and vaginally raping her. Then he left, at which time B.J. put her underwear back on and ran across the street to the school, where she reported the rape to a police officer.

B.J. was unable to describe her assailant’s face, but was able to describe his clothing and shoes. Her description of her assailant’s apparel matched the description of a man seen lurking around the same apartment complex later that morning by another schoolgirl, Ebony Vaughn, who said she felt that person was following her as she walked to school. She was able to get away by joining a group of boys from her school; she later reported the incident to her mother, who called the police. Police subsequently showed Ebony a photographic lineup from which she identified the defendant as the person who was following her.

D.L., B.J., and Ebony Vaughn all lived in the Concordia Apartment complex.

Ryan Watson was arrested at his girlfriend’s home at approximately 2:30 a.m. on July 21, 2001. He gave two statements to the police, admitting his involvement in the rape and robbery of E.W. and the rape of B.J. He admitted phaving sexual intercourse with D.L., but stated that D.L. offered to have sex with him. He further admitted taking money from D.L.

Lieutenant Gray Thurman of the Jefferson Parish Sheriffs Office testified that he assisted Lieutenant Maggie Pernia in interviewing the defendant, Ryan Watson, on June 21, 2001. The defendant gave him information that implicated him in the sexual acts involving these three victims. Thurman then took two taped statements from the defendant. In addition, Thurman accompanied the defendant to look for the gun used during the attacks, which the defendant claimed he had thrown away. After going to two sites that were false leads, officers eventually found the gun in some bushes near the front door of the defendant’s girlfriend’s apartment.

Lieutenant Thurman testified that when he questioned the defendant, the defendant did not appear to be under the influence of alcohol or drugs.

The defendant’s case consisted of testimony by an alibi witness, Travis Roussell, as well as the defendant’s own testimony. Roussell testified that in July 2001 he and his girlfriend, Shawanda Dabney, were living with Latasha Dabney, Shawanda’s sister. Roussell said that on the morning of July 20, 2001 he took Shawanda to her job at McDonald’s at about 4:25 a.m. He then returned to Latasha’s home. Roussell said that the defendant was there with Latasha and their children. As Roussell returned to the house about 5:15 a.m., he saw the defendant coming downstairs to take Latasha to work. He saw the defendant return from taking Latasha to work around 6:45 a.m. According to Roussell, the defendant was there babysitting his children until about 1:30 p.m., when Shawanda returned home and the defendant left.

Ryan Watson testified on his own behalf. He said that on July 20, 2001, at 3:00 a.m. he was passing the Concordia Apartments and was on his way home. He |Rstopped when he saw D.L., who was standing in front of a row of cars, “like she was waiting for somebody to come.” The defendant said that D.L. greeted him and he asked what she was doing outside that time of night.

According to the defendant, D.L. told him she was waiting for somebody to bring her some cocaine. He further said she told him that people call her a whore; then she asked him to go inside with her. He went into her house with her and “from there, it happened.” Asked whether she indicated to him that she wanted to engage in sex, he said “she had no problem with it.” He also said she gave him a condom out of a drawer in her kitchen, then they had sex in the living room. He stated he got up and left after that.

Watson said he then went to 6742 Math-ers St. (Latasha Dabney’s home) and that he arrived around 3:35 or 3:40 in the morning. He lay down and slept until time to take Latasha to work, around 5:15 a.m. He walked her to her job at McDonald’s on Ames Boulevard, then returned to her house on foot around 6:45 or 7:00 a.m. He went back to watch the children. The defendant stated he remained on the premises until 1:30, when he went to a recording studio on the West Bank Expressway after Shawanda returned home to watch the children.

At trial the defendant denied that he raped B.J. He admitted seeing Ebony Vaughn when he was throwing trash away, but denied he either followed her or attempted to accost her. He said he could not leave the children unattended. The defendant also denied that he had twisted hair on July 4, 2001, the day E.W. was raped, and stated he had a moustache and goatee on that day. He said he has never had twisted hair or a “Ricky Williams” look.

The defendant testified that he returned to Latasha’s house early on the morning of July 21, 2001. Prior to going there, however, he and two friends had been drinking liquor (“about a fifth”) and smoking marijuana (“two or three blunts |9[marijuana cigars]”). He arrived at Latasha’s home around 2:15 and laid down. There was a knock on the door and several policemen came in and arrested him. He was taken to the detective bureau wearing only socks, boxer shorts, and a shirt. He arrived about 2:45. Lieutenant Thurman and Lieutenant Pernia questioned him. According to the defendant, he was not “fully intoxicated,” but he was feeling the effects of his alcohol and marijuana consumption and his ability to make decisions was impaired. The defendant stated that Thurman told him that three women had pointed him out as having raped and robbed them.

The defendant denied at trial that he had rape any of the three women or that he had robbed any of them. He testified that the statements he gave to the police were what he was told to say.

On cross examination, he testified that on July 4, 2001, he was at his mother’s house, not at his girlfriend’s house, that he was sleeping until 7:00 in the morning, and was with his family the rest of the day.

On appeal the defendant raises the following assignments of error:

1. The Trial Court erred by failing to suppress the defendant’s statements.
2. The Trial Court erred by failing to allow a defense witness to testify after she heard some of the testimony.
3. The evidence was insufficient to support some of these convictions.
4. The Trial Court erred by ordering that all of the sentences be made consecutive to a life sentence already imposed.

We address these in order of importance.

ASSIGNMENT OF ERROR NUMBER THREE

The evidence was insufficient to support some of these convictions.

|inThe defendant challenges the sufficiency of the evidence relating to both his aggravated rape convictions and his armed robbery conviction. First, he argues that E.W.’s identification of him as the perpetrator of her rape and robbery was insufficient. He asserts his physical appearance does not match the description of the perpetrator E.W. gave the police.

Second, the defendant claims the State failed to prove the aggravated nature of the rape of B.J. because the evidence did not show he was armed or that the victim resisted to the utmost. He does not challenge the sufficiency of the evidence relating to his simple robbery conviction.

When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find 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, 573 (1979).

A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Hubbard, 97-916, p. 10 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1103, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. State v. Vas quez, 98-898, p. 6 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of | nmisidentification in order to carry its burden of proof. Vasquez, 98-898 at p. 7, 729 So.2d at 69.

Sufficiency of Identification by E.W.

The defendant does not argue that the State failed to establish any of the essential statutory elements of his convictions for the aggravated rape and armed robbery of E.W. Rather, the defendant contends the State failed to prove beyond a reasonable doubt his identity as the offender.

After the incident, E.W. gave a description of her attacker to the police, from which the police compiled a composite sketch. E.W. described her attacker as being five feet six inches, 150 pounds, brown-skinned as opposed to dark-skinned, and having “twisted” head hair and no facial hair.

Approximately two weeks after the incident, E.W. was shown a photographic lineup, from which she identified the defendant as the perpetrator. The photographic lineup showed the defendant with a short haircut, a moustache and a minimal goatee. At trial, E.W. identified defendant in court as the person who raped and robbed her.

The defendant asserts he did not match E.W.’s initial description of the perpetrator. He points specifically to that part of E.W.’s description where she described her attacker as having “twisted” hair and no facial hair. The defendant contends he never wore his hair “twisted” and asserts he wore a moustache and goatee. He further questions E.W.’s credibility because she initially did not tell her father or the police about the rape; when initially questioned by the police she specifically denied the defendant forced her to perform oral sex; and she told the defendant’s girlfriend only about the robbery and not about the rape. As evidence of the misidentification, the defendant relies on his alibi that he was home with his family at the time of the rape and robbery.

| ^During trial, E.W. was fully cross-examined about the description she gave the police. She was also questioned about her initial failure to report the rape. E.W. explained she did not tell her father because she was scared he would go looking for the rapist and she did not tell the police because she was scared. E.W. also explained she did not feel comfortable talking about the oral sex aspect of the rape so she initially denied it. She subsequently told the police about the oral sex one hour later.

The jury heard all the evidence and obviously found E.W. to be credible and chose to believe her testimony over that of the alibi witness, Travis Roussell, and the defendants trial testimony.

The credibility of a witness is within the sound discretion of the trier of fact. State v. Hotoph, 99-243, p. 12 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. It is not the function of the appellate court to assess credibility or reweigh the evidence. Id.

We analogize the facts in this case to those in State v. Williams, 97-2382 (La.App. 4 Cir. 4/21/99), 738 So.2d 598, 601, writ denied, 99-1415 (La.10/15/99), 748 So.2d 466, and State v. Isaacs, 95-173 (La.App. 5 Cir. 6/28/95), 658 So.2d 29, 33, writ denied, 95-1948 (La.1/5/96), 666 So.2d 299. In both those cases the courts upheld jury findings that found the victims testimony credible despite variations from the victims initial descriptions.

Here, there is minimal discrepancy between E.W.’s initial description and the defendant’s actual appearance. Hairstyles and facial hair are something easily and often changed. There was no evidence presented as to when the photographic lineup was prepared or when the picture of the defendant used in the lineup was |13taken. The defendant easily could have changed his appearance after the July 4, 2001 rape of E.W. by cutting his hair and letting facial hair grow.

Despite the minor discrepancy between E.W.’s description and the defendant’s actual appearance, E.W. identified the defendant as the perpetrator from a photographic lineup two weeks after the incident and made an in-court identification of him at trial. The jury obviously chose to believe her testimony establishing Ryan Watson as the person who raped and robbed her. Further, the jury heard the defendant admit he raped E.W. in his taped statement.

Thus, viewing the evidence in the light most favorable to the prosecution, it appears that a rational trier of fact could find, beyond a reasonable doubt, that defendant was the perpetrator of the crime.

Sufficiency of Evidence for Aggravated Rape of B.J.

The defendant claims the evidence in the rape of B.J. only supports a conviction for forcible rape as opposed to aggravated rape, because there was no evidence that the defendant was armed with a gun during the rape or that the victim resisted to the utmost.

La.R.S. 14:42 defines aggravated rape in pertinent part as follows:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
I u(3) Wfiien the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

B.J., who was only 14 years old at the time of the rape, testified that the defendant held a weapon to her right side when he came up behind her and led her to the side of the apartment budding. She did not actually see the weapon, but said it felt like a gun. On cross-examination she admitted the defendant did not tell her he had a gun, but she was certain it was a gun because she felt it with her elbow. B.J. stated the defendant pushed her forcibly to the ground, pulled down her underwear, and vaginally penetrated her. She also stated that she tried to get the defendant off of her by scooting away from him but she was unsuccessful.

The testimony of the victim alone can be sufficient to establish the elements of a sexual offense. Hotoph, 99-243 at p. 13, 750 So.2d at 1045. As previously stated, the credibility of a witness, including the victim, is within the discretion of the trier of fact. Id.

B.J.’s testimony alone established all the elements of the offense, of aggravated rape. According to her testimony, the defendant forced her to have sexual intercourse and he was armed with a gun. The unanimous guilty verdict returned on this count indicates that the jury found the victim’s testimony credible. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant committed aggravated rape on B.J.

We find no merit to Assignment of Error No. 3.

ASSIGNMENT OF ERROR NUMBER ONE

The Trial Court erred by failing to suppress the defendant’s statements.

tr The defendant argues that his two inculpatory statements should have been suppressed because they were not voluntary. He asserts he was under the influence of drugs and alcohol to such a degree that it rendered his statements involuntary. He contends his intoxication diminished his capacity to understand his rights and, therefore, he did not validly waive his rights.

The record indicates the defendant filed a motion to suppress his two statements prior to trial, although it does not contain the written motion. After a hearing, the trial court denied the motion to suppress as to each statement. In denying the motion, the trial court noted:

I have been confused since Mr. Watson’s testimony as to how he could have remembered all the facts that he gave in the statement when he was as intoxicated and [as] full of drugs as he would have suggested he was.
I have a hard time with that concept. It's a fifty some-seventeen page statement, whatever it is. When somebody says he’s so intoxicated he doesn’t know what’s going on, but he’s given detail after detail that you would argue that he picked up from officers; those two don’t go together well for me, that concept of being so intoxicated, but at the same time, you could give a seventeen page statement full of details.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La.R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied. 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998).

A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. State v. Quest, 00-205, p. 9 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id.

Intoxication renders a confession involuntary when the intoxication is of such a degree as to negate the defendants comprehension and to make him unconscious of the consequences of what he is saying. Quest, 00-205 at p. 9, 772 So.2d at 780. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact; a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence. Id.

The defendant’s first statement was taken by Lieutenants Thurman and Pernia approximately two hours after his arrest. Prior to giving the statement, the defendant executed a Waiver of Rights form, in which he indicated that he had read and understood his rights and that he wished to waive his rights and give a statement. Lieutenant Thurman testified at the suppression hearing that he read the rights aloud to the defendant and that the defendant indicated he wished to waive his rights, as evidenced by the defendant’s signatures on the rights of arrestee form. There was no doubt in Thurman’s mind that defendant understood his rights. Thurman again advised defendant of his rights at the beginning of both taped statements. In addition, Thurman testified no one threatened defendant or promised him anything in exchange for the statement.

The defendant also testified at the suppression hearing. He stated he had been drinking and smoking marijuana pri- or to his arrest and was not in his “right 117state of mind” at the time he gave his statements. He explained that at approximately 11:00 p.m., he and two friends drank some whiskey and smoked a few “blunts.” He then walked 45 minutes to his girlfriend’s house and was in bed when the police arrived.

The defendant admitted that Lieutenant Thurman went over his rights at the detective bureau, but the defendant claimed he did not understand any of it. The defendant testified he was never asked if he was intoxicated, but he admitted that during the taped statement he never stated he was drunk. At trial, the defendant testified he dozed off several times during his statements because he was tired and suffering the effects of intoxication.

Lieutenant Maggie Pernia testified at the hearing on rebuttal that nothing indicated the defendant was intoxicated at the time of his statement. She stated the defendant appeared to have all his faculties about him and appeared to understand what was transpiring.

The voluntariness of the defendant’s statement turns on the credibility of the witnesses. Lieutenant Pernia testified there was nothing to indicate he was intoxicated. In addition, as noted by the trial court, the defendant was capable of logically answering questions and providing details of the offenses for approximately 25 minutes in his first statement, given from 4:52 to 5:15 a.m., and for another ten minutes in his second statement, given from 5:17 to 5:27 a.m.

Although the defendant claimed at trial he dozed off during his statements from the effects of the intoxication, he did not offer this testimony at the | ^suppression hearing and there is nothing in the statements themselves that suggests the defendant fell asleep during the relatively short statements.

Based on the above, the trial court did not abuse its discretion in denying the motion to suppress. We find no merit to this assignment of error. See State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866, 871, and State v. Marshall, 98-486 (La.App. 5 Cir. 2/23/99), 729 So.2d 101, 103.

ASSIGNMENT OF ERROR NUMBER TWO

The Trial Court erred by failing to allow a defense witness to testify after she heard some of the testimony.

The defendant asserts he was denied the right to present a defense when the trial judge refused to allow the testimony of Latasha Dabney after she violated the sequestration order.

At the outset of trial, the State requested and obtained a sequestration of all witnesses. After the defendant testified, defense counsel sought to call Latasha Dabney. The State objected on the ground that Dabney had been sitting in the courtroom. Defense counsel responded that Dabney had been sequestered for most of the trial, but came into the courtroom after counsel informed her that he did not need her testimony. Defense counsel explained that in light of the State’s cross-examination of the defendant and its focus on certain evidence, he was compelled to call Dabney. He requested permission to do so despite the violation of the sequestration order.

The trial court denied the request, stating:

No. A sequestered witness who was then brought back into the courtroom during the defendant’s crossjexamination,19 we would then let her testify, in order to buttress his alibi? It would totally emasculate the concept of sequestration.
The fact that the State opted to question the lack of testimony by defense volunteered alibi witnesses, I don’t think should be used against the State as a reason to allow sequestered witnesses, who then come back into the courtroom, on their own, I suppose, with the blessing of defense counsel. I don’t think that’s an exception to the sequestration rule.

Defense counsel objected to the trial court’s ruling and then rested his case.

Sequestration of witnesses is governed by La.C.E. art. 615. That article provides that on request of a party the court shall order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case.

The purpose of the sequestration rule is to prevent witnesses from being influenced by the testimony of earlier witnesses and to strengthen the role of cross-examination in developing the facts. State v. Reyes, 98-424, p. 13 (La.App. 5 Cir. 12/29/98), 726 So.2d 84, 91, writ denied, 99-1474 (La.10/8/99), 750 So.2d 967. When an order of sequestration is violated, the trial court has discretion in imposing sanctions including disqualification of the witness. La.C.E. art. 615(B); Reyes, 98-424 at p. 13, 726 So.2d at 91. The trial court’s discretion regarding sanctions will not be disturbed on appeal absent a clear abuse of that discretion. Id.

However, there are constitutional limitations on the trial court’s exercise of its discretion. State v. Warren, 437 So.2d 836, 839 (La.1983). The Sixth Amendment to the United States Constitution and Article 1, § 16 of the Louisiana Constitution guarantee an accused the right to compel the attendance of witnesses and to present a defense. When the trial court excludes a defense witness for the 1 ^violation of a sequestration order, the defendant’s constitutional rights may be impaired. State v. Armstead, 432 So.2d 837, 842 (La.1983).

In State v. Jones, 354 So.2d 530, 532 (La.1978), the Louisiana Supreme Court explained:

Although our jurisprudence allowing trial judges to enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence that interest is not sufficient to override the defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitution.

The exclusion of a witness is a disfavored sanction, absent a showing that the sequestration violation occurred with the consent, connivance, procurement or knowledge of the party or his counsel for whom the witness was to testify. Warren, 437 So.2d at 840.

In the present case, the trial court excluded the testimony of Latasha Dabney because she had been present during the testimony of the defendant. Her presence in the courtroom was known to defense counsel, who had previously advised Dab-ney he would not need her testimony. Because the violation of the sequestration order occurred with the consent and knowledge of defense counsel, the exclusion of Dabney’s testimony was within the trial court’s discretion.

Further, defense counsel never stated on the record the substance of Dabney’s testimony and never proffered her testimony pursuant to La.C.E. art. 103. Therefore, the record does not reflect whether Dabney was in a position to | m offer testimony that might have substantially helped the defense and the defendant failed to preserve the excluded testimony for appeal by failing to proffer the evidence. See, State v. Searcy, 621 So.2d 83, 87-88 (La.App. 2 Cir. 6/23/93).

We conclude the trial court did not abuse its discretion in excluding Dabney’s testimony after she violated the sequestration order.

ASSIGNMENT OF ERROR NUMBER FOUR

The Trial Court erred by ordering that all of the sentences be made consecutive to a life sentence already imposed.

The defendant argues that the consecutive nature of his sentences on Counts Two, Three and Five to his life sentence on Count One is excessive. He asserts that a sentence beyond natural life makes no contribution to acceptable goals of punishment and, thus, is excessive.

The defendant failed to file a written motion to reconsider as required by La. C.Cr.P. art. 881.1. Although the defendant made an oral objection at the time of sentencing, the objection was not specific enough to satisfy the requirements of Art. 881.1. Defense counsel merely stated, “Your Honor, please note our objection to the sentence.” The defendant never specifically objected to the consecutive nature of the sentences or even to the excessiveness of the sentences.

w The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342.

The defendant does not contend that any sentence on its own is excessive. Rather, he urges that the consecutive nature of his sentences make them excessive. This Court has recognized that the excessiveness of a consecutive sentence is not included in a bare constitutional review. State v. Christoff, 00-1823, p. 11 (La.App. 5 Cir. 5/30/01), 788 So.2d 660, 666. Accordingly, we shall not review the defendant’s consecutive sentences as excessive.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the commitment indicates the defendant was convicted of armed robbery on Count Five, while the transcript shows he was convicted of the lesser charge of simple robbery. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we remand in order for the trial court to amend the commitment to properly reflect the conviction on Count Five.

We also note that the defendant received an illegally lenient sentence on Count Two, in that the trial court failed to make the additional five-year sentence for use of a firearm in the armed robbery run consecutively to his 99 year sentence, as mandated by La.R.S. 14:64.3. However, this error is inconsequential because the defendant is serving a life sentence.

| ?jjFor the foregoing reasons, the defendant’s convictions and sentences are affirmed. The matter is remanded and the trial court is ordered to amend the commitment to reflect correctly the conviction on Count Five.

AFFIRMED AND REMANDED WITH ORDER.

      . The aggravated rape charges were Counts One, Three and Four; the armed robbery charges were Counts Two and Five.

      . The defendant's written motions to suppress evidence and his statements are not contained in the record, which contains only his motion to suppress identification.

      .As provided by La.R.S. 46:1844(W), the sex crime victims are identified by their initials.

      . In questioning E.W. on redirect, the prosecutor referred to the photograph of defendant in the lineup as being taken at the time of defendant's arrest on July 20, 2001. However, there was no testimony establishing that fact.

      . The hearing pertained to nine separate motions to suppress filed by defendant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In reviewing the trial court’s ruling on a motion to suppress, this Court may consider evidence presented at the motion hearing as well as at trial. State v. Taylor, 99-1154 (La.App. 5 Cir. 2/29/00), 757 So.2d 63, writ denied, 00-1021 (La.3/30/01), 788 So.2d 441. At the motion hearing the defendant testified he drank a gallon of whiskey. At trial, however, he-testified it was a fifth of liquor.

      . The State erroneously responds that the defendant presented Dabney's testimony earlier in the trial and, therefore, the defendant was not limited in his ability to present a defense. The Stale asserts the trial court did not abuse its discretion in refusing to allow defendant to recall Dabney. However, the record shows Dabney never testified at trial, but only at a pretrial motion hearing.

      . La.C.E. art. 103 provides that an "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... when the substance of the evidence was made know to the court by counsel.”

      . Dabney’s testimony during the suppression hearing was limited solely to her consent to allow the police to search her apartment after the defendant’s arrest. Therefore, it provides no insight into information she may have had to assist the defense.

      .In Searcy, the second circuit found that error could not be predicated upon the trial court’s ruling excluding the testimony of a defense witness who had violated the sequestration order where defense counsel failed to proffer the excluded testimony. The court reasoned it could not determine the effect of the witness's testimony without any indication of the substance of the testimony. The court initially determined the exclusion of the witness’s testimony was constitutionally impermissible, but ultimately concluded the error was harmless because of the lack of a proffer.


text:
    Josephine COSTELLO v. Ashton R. HARDY, Bradford D. Carey, Hardy and Carey, L.L.P., and XYZ Insurance Company.
    No. 02-CA-1156.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.
    Writ Granted June 27, 2003.

      Richard L. Root, Betsy J. Barnes, Barnes & Root, New Orleans, LA, for plaintiff-appellant.
    Richard T. Simmons, Alayne R. Corcor-an, Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for defendants-ap-pellees, Ashton R. Hardy and Hardy & Carey, L.L.P.
    Henry L. Klein, James H. Daigle, Jr., Klein, Daigle, New Orleans, LA, for defendant-appellee, Ashton R. Hardy.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, Judge.

Ashton R. Hardy and his law firm, Hardy & Carey, LLP, prepared a last will and testament for Joseph Costello. The will was executed and signed on March 5,1997. Mr. Costello died on April 23, 1997. The will was probated and provided that Mr. Costello’s estate would go to the Mary Joseph Residence for the Elderly, Loyola University and the Greater New Orleans Foundation. According to the will, Josephine Costello, the deceased’s mother, was to have a usufruct over Mr. Costello’s home for the remainder of her life.

After the will was probated, Josephine Costello and her two other sons, Martin & Donald, filed a Petition to Annul the Will in Orleans Parish Civil District Court. The petition to annul alleged that the will was invalid because Mr. Costello was of unsound mind and body, acting under duress, fraud or mistake, or lacked testamentary capacity when he signed the will. They also alleged that the bequests in the will were to charitable and religious organizations which were affiliated with clergymen who were with Mr. Costello during his illness and they allegedly exercised undue influence. The Costello’s ultimately settled their claim and dismissed the claims while acknowledging the validity of the will and unconditionally attested to the validity of all legacies outlined in the will. The ^settlement provided that Josephine Costello would receive a $25,000 annual stipend from the estate of her son.

Josephine Costello also filed this legal malpractice action in the 24th Judicial District Court naming Ashton R. Hardy, Bradford D. Carery and Hardy & Carey, LLP as defendants. She alleged that her son wanted her to be taken care of after his death and therefore, Mr. Hardy should have included a $25,000 annual stipend to her in the will. She claims this $25,000 is necessary for the maintenance of her son’s home, which she has the usufruct over for the remainder of her life. Defendants then filed a reconventional demand against Mrs. Costello alleging defamation and abuse of process resulting from the frivolous legal malpractice action.

All defendants filed motions for partial summary judgment regarding the malpractice claims. The trial court granted these motions for partial summary judgment finding no genuine issue of material fact and noted that according to the settlement in the Orleans Parish case, the Costello’s had consented that the will was valid.

Thereafter, a bench trial was held on the reconventional demand. Mrs. Costello’s deposition testimony was offered as evidence. Mrs. Costello also presented the testimony of her son, Martin. Mrs. Costello’s deposition testimony established that her goal was to annul the will and when she realized that was not likely to happen, the legal malpractice claim was filed against Hardy & Carey, LLP. The trial court found that this clearly demonstrated defamation. The trial court further found “no evidence whatsoever to support the allegation that Mr. Costello wanted anything different than what he got when he executed his will on March 5, 1997.” The trial judge also stated “I find motivation on behalf of Ms. Josephine Costello to be abusive, to be reckless and as implemented to be frivolous.” As a result of the trial court’s findings, Hardy was awarded $10,000 for Udefamation. The trial court found that there was no evidence to support ány loss of business or business reputation and the insurance escalation claim was too speculative to warrant damages. Hardy was also awarded $50,000 for mental anguish and personal suffering. And finally, the trial court found that Hardy had not satisfied his burden of proof in establishing his abuse of process claim.

Mrs. Costello now appeals both the granting of the partial summary judgments and the awards to Hardy on the reconventional demand. For the reasons that follow, we affirm the granting of the partial summary judgments in favor of Hardy and Hardy & Carey, LLP. We also affirm the trial court’s awards in favor of Hardy for defamation and mental anguish.

Summary Judgment

Mrs. Costello must prove three essential elements in order to maintain her legal malpractice claim against Hardy and Hardy & Carey, LLP: 1) the existence of an attorney-client relationship, 2) negligent misrepresentation by the attorney, and 3) damages caused by the alleged negligence. Silverstein v. Juarez, 98-1322 (La.App. 5th Cir.6/1/99) 740 So.2d 702.

First, Mrs. Costello did not have an attorney-client relationship with Hardy or his law firm. The law firm of Hardy & Carey was retained by Joseph Costello for preparation of his will and other business. Joseph Costello was the client. Mrs. Costello was simply listed as a legatee in the will. Therefore, no attorney-client relationship existed.

Second, Mrs. Costello failed to present any evidence that Hardy, or his law firm, negligently misrepresented the client, Joseph Costello. Mr. Costello requested that the will be prepared and signed on March 5, 1997. He was of sound mind on that date. The will signifies his wishes, as evidenced by his signature on the document. Hardy completed the will just as his ■ client had asked. Mrs. Costello has not presented any evidence to show that the will did not express the | ¿wishes of Joseph Costello. Additionally, she acknowledged the validity of the will in the Orleans Parish case. Therefore, she has failed to prove that Hardy negligently misrepresented his client, Joseph Costello.

Third, Mrs. Costello did not sustain damages as a result of the alleged malpractice, or Hardy’s drafting of the will. According to Mr. Costello’s will, his intention was to leave his mother the use of his home for the remainder of her life. That wish was accomplished. Mrs. Costello may not have been pleased with her son’s last wishes, however, she suffered no damages as a result of Hardy’s preparation of the will. Additionally, the settlement reached in her case in Orleans Parish provided that she receive an annual stipend of $25,000. Therefore, she is receiving that amount she complained that Hardy had left out of the will. Essentially, she has no further damages to claim.

In accordance with the above, we agree with the trial court that there are no genuine issues of material fact and summary judgment is appropriate. Therefore, we affirm the trial court’s granting of summary judgment in favor of Hardy and Hardy & Carey, LLP.

Reconventional Demand

For the following reasons, we agree with the trial court’s ruling in favor of Hardy and affirm the damage awards.

Hardy’s reconventional demand against Mrs. Costello included a cause of action for defamation. The elements of a cause of action for defamation are: (1) defamatory words; (2) publication; (3) falsity; (4) malice; and (5) resulting injury. “Defamatory communication” is one that tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing "with him. Bujol v. Ward, 00-1393 (La.App. 5th Cir.1/30/01), 778 So.2d 1175. Defamation occurs through either libel or slander. Libel is defamation which is “expressed by print, writing, pictures, or signs”. | fiSlander is communicated by “oral expressions or transitory gestures.” BLACK’S LAW DICTIONARY 1388 (6th ed.1990). A cause of action for libel is intended to redress injuries flowing from harm to one’s reputation and, to be actionable, defamatory words must be “of and concerning” the plaintiff and must indirectly or directly cause a personal reflection on the plaintiff. Gugliuzza v. K.C.M.C., Inc., 92-0796 (La.10/19/92), 606 So.2d 790.

According to her own testimony, Mrs. Costello’s main goal was to annul the will of her son. She and other family members were not pleased with Joseph Costello’s wishes for the disbursement of his substantial estate. Only when her attempt to annul the will failed did she claim Hardy had committed legal malpractice. Hardy prepared the will according to the wishes and desires of his client, Joseph Costello. To have done otherwise would have been malpractice. The malpractice claim brought by Mrs. Costello was frivolous and had no merit. She was accusing Hardy of deliberately disobeying the wishes of his client by leaving a legacy to her out of the will. Mrs. Costello filed the suit, which constitutes a publication. The suit contained defamatory words that were for the purpose of harming Hardy’s reputation as an attorney. According to the trial court findings, the claims made were false and Mrs. Costello knew this, however, she had other motives. Finally, Hardy suffered personal injuries as a result of the defamation. Therefore, the trial court correctly found in favor of Hardy on his defamation claim and correctly found that he had suffered mental anguish and personal suffering. We find the trial court’s award of $10,000 for the defamation claim and $50,000 for mental anguish and personal suffering to be reasonable.

We also agree that Hardy did not satisfy his burden of proof in his abuse of process claim. The essential elements of an abuse of process claim are an ulterior purpose and a willful act in the use of process not proper in regular conduct of proceeding. Abuse involves misuse of process already legally issued whereby a 17party attempts to obtain some result not proper under law. Simon v. Perret, 92-1092 (La.App. 3rd Cir.6/2/93), 619 So.2d 155. Mrs. Costello did not commit any willful acts during the process of the legal malpractice claim that were not proper in a regular legal malpractice claim. Further, Mrs. Costello was not attempting to obtain a result that is not proper under law. Therefore, we find that Mrs. Costello did not abuse the process and Hardy is not entitled to damages for abuse of process.

In accordance with the above, we affirm the trial court’s granting of summary’judgment in favor of Hardy and Hardy & Carey, LLP. We also affirm the trial court’s finding in favor of Hardy on the reconventional demand and affirm the damages awarded.

AFFIRMED.