text:
    Leah B. MURRAY, Plaintiff-Appellee, v. HOLLYWOOD CASINO, Defendant-Appellant.
    No. 38,539-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Law Offices of Ronald F. Lattier, LLC by Ronald F. Lattier, Shreveport, Curtis R. Joseph, Jr., for Appellant.
    James D. Caldwell, Tallulah, Counsel for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

This appeal arises from a workers’ compensation judgment in favor of the plaintiff, Leah B. Murray (“Murray”), and against the defendant, Hollywood Casino (“Hollywood”). Hollywood appealed the judgment and Murray answered the appeal. For the reasons stated herein, we affirm.

FACTS

Murray was injured on September 29, 2001, while working as a mini-baccarat card dealer at Hollywood. While reaching across the mini-baccarat table, Murray felt a pull in her right shoulder. Murray sought medical treatment from Dr. Sanjay Shah beginning on October 4, 2001. Murray complained of pain across her right shoulder with limitations on shoulder movement. Dr. Shah told Murray that she could return to work on light-duty. Subsequently, Murray returned to work performing light-duty activities, but continued to have pain in her shoulder. On October 28, 2001, Hollywood informed Murray that she needed to get a full-duty release from her physician. Murray went back to Dr. Shah and he gave her a full-duty release. On November 7, 2001, Murray began receiving treatment from Dr. John A. Thompson. Murray stopped reporting to work after November 13, 2001. On November 14, 2001, Murray received a note from Dr. Thompson that she should not return to work until November 28, 2001. On that same day, however, Hollywood terminated Murray for attendance violations.

On December 6, 2001, Murray stopped receiving treatment from Dr. Thompson because Hollywood was not paying for the treatment. Later, on January 4, 2002, Murray returned to see Dr. Shah. Dr. Shah diagnosed ^Murray’s condition as a pinched nerve in her shoulder. On June 5, 2002, Murray sought treatment at LSU Medical Center in Shreveport for continued pain in her right shoulder. In their evaluation of Murray, the medical staff at LSU Medical Center did not list her status as being unable to return to work. Murray was evaluated at LSU Medical Center a few times thereafter and at no point did the medical staff list Murray as being unable to return to work.

Murray filed a disputed claim for workers’ compensation benefits against Hollywood on October 31, 2001, arguing that Hollywood had failed to pay her any worker’s compensation benefits, including expenses for medical treatment. After a hearing was waived, the Workers’ Compensation Judge (“WCJ”) found that Murray was injured in the course and scope of her employment and awarded her temporary total disability benefits covering November 14, 2001, through June 5, 2002. Since the staff at LSU Medical Center did not note that Murray was unable to return to work, the WCJ found that there was no proof submitted to support the contention that Murray continued to be disabled after her visit on June 5, 2002; and, therefore, Hollywood did not owe any workers’ compensation benefits past that date. Hollywood filed a motion for appeal on September 17, 2003, and an answer to the appeal was filed by Murray on January 5, 2004. Hollywood failed to file a brief, but Murray filed a brief specifically 13addressing her arguments stated in her answer. Subsequently, Hollywood filed a brief in response. Murray raises the following assignment of error (verbatim) in her brief:

Where the statutory and jurisprudential authority place the burden on the employer of proving that an employee’s entitlement to temporary total disability should cease, it was an error of law for the workers compensation judge to place the burden of proof upon the employee.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. The manifest error/clearly wrong standard of review is whether the WCJ’s findings are reasonable in light of the record reviewed in its entirety. Pugh v. Casino Magic, 37, 166 (La.App.2d Cir.4/11/03), 843 So.2d 1202.

Murray argues that the WCJ should not have terminated her temporary total disability benefits as of June 5, 2002, because she continues to be disabled and unable to work. La. R.S. 23:1221(l)(d) provides:

An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

l4In interpreting the predecessor statute to the above statute, sister courts in our State have determined that the employer must prove by a preponderance of the evidence that the employee’s disability has ceased or diminished. See Bailey v. Zurich American Insurance Company, 547 So.2d 734 (La.App. 4th Cir.1989), writ denied, 552 So.2d 381 (La.1989); Bonded Freight, Inc. v. Bowens, 96-167 (La.App. 3d Cir.6/12/96), 676 So.2d 739.

Evidently, the WCJ applied La. R.S. 23:1221(l)(c), rather than La. R.S. 23:1221(l)(d) to the facts in this case. La. R.S. 23:1221(l)(c) provides:

For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

In applying this statute, the WCJ found that Murray had the burden of proving that she is disabled and unable to work; however, the use of this statute was incorrect. We interpret this statute as applicable when the employee first seeks total temporary disability benefits. The WCJ determined that Murray should have received total temporary disability benefits, so La. R.S. 23:1221(l)(c) would not apply. After the employee has already received the benefits, La. R.S. 23:1221(l)(d) applies at the time a | ¡^determination must be made as to when those benefits should terminate. La. R.S. 23:1221(1)(d) should have been applied by the WCJ in this case.

Nevertheless, we find that the use of La. R.S. 23:1221(l)(c) by the WCJ was harmless error. Even though a WCJ may commit harmless error, this court can still make a determination as to the issues of the standard and burden of proof involved in a case. See Hughes v. Delphi Interior & Lighting Systems, 32,524 (La.App.2d Cir.12/17/99), 752 So.2d 950, unit denied, 00-0156 (La.3/17/00), 757 So.2d 642; Kennedy v. Security Industrial Insurance Company, 623 So.2d 174 (La.App. 1st Cir. 1993), writ denied, 629 So.2d 389 (La. 1993). Murray asserts that she continued to be disabled and unable to work after June 5, 2002, but we find no medical evidence in the record to support that assertion. After a thorough review of the record, we find that the medical evidence submitted does prove by a preponderance of the evidence that Murray could return to work after June 5, 2002. Without a finding by the medical staff at LSU Medical Center that Murray could not return to work, this provides proof that her disability had diminished. Moreover, it had been noted the previous November by both Dr. Shah and then later Dr. Thompson that Murray could return to work. None of the medical reports submitted indicate that Murray should remain off work after June 5, 2002. Murray’s argument that she should have received benefits after June 5, 2002, is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ is affirmed. Costs of this appeal are assessed to Leah B. Murray.

AFFIRMED.

      . The WCJ also assessed a penally against Hollywood in the amount of $2,000 for being arbitrary and capricious in failing to pay indemnity benefits and awarded Murray $2,000 in attorney fees. Further, the WCJ assessed a penalty against Hollywood in the amount of $2,000 for its arbitrary failure to pay medical expenses and awarded Murray an additional $3,000 in attorney fees.

      . Hollywood later dismissed its appeal and Murray objected to the dismissal.

      . The predecessor statute was labeled as La. R.S. 23:1221(l)(b). The predecessor statute is not substantively different than the current statute.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Isaac FIELDS, III, Appellant.
    No. 38,496-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Louisiana Appellate Project by Peggy Sullivan, Monroe, Paula Corley Marx, Lafayette, for Appellant.
    Charles C. Foti, Jr., Attorney General, Paul R. Knight, Assistant Attorney General, Kristi Hagood, Assistant Attorney General, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

Defendant, Isaac Fields, III (“Fields”), was originally charged by grand jury indictment with first degree murder pursuant to La. R.S. 14:30, for the death of Charles Rice (“Rice”), in the Sixth Judicial District Court, East Carroll Parish, Louisiana. He was subsequently tried by jury and convicted on the amended charge of second degree murder pursuant to La. R.S. 14:30.1. A Motion for Post Verdict Judgment of Acquittal or for a Modified Verdict was filed and denied by the trial court. Fields was sentenced to serve a term of life imprisonment without benefit of parole, probation or suspension of sentence. He now appeals his conviction and for the following reasons, we affirm.

FACTS

On the afternoon of July 26, 2000, Fields, accompanied by several other men, stopped at Fat Boys, also referred to as “Key’s Station,” a gas station/convenience store/restaurant in Lake Providence, Louisiana (“Fat Boys”), supposedly to purchase food for his girlfriend. An argument developed between Fields, Kedrick Harris (“Harris”) and Kenny Wayne Jackson (“Jackson”) shortly after they entered Fat Boys. The argument was taken outside and ultimately escalated into a fist fight, with several others joining in the fray. The record indicates that the various witnesses’ accounts differ substantially about who was involved, where they were before and during the fight, and how many people were actually involved. The record shows that at one point, Fields’ mother and grandmother became embroiled in the fight, either as fighters, or in an attempt to stop the fight.

| ^Fields went to the car in which he had ridden to Fat Boys, obtained a semi-automatic rifle, and shot at least five times, killing Rice, who was 19 years of age. The evidence reveals that Rice’s allies fled the scene when the gun was produced. Those accompanying Fields fled in the car they came in, while Fields continued firing additional shots at Harris, one of the combatants in the fight.

Testimony of the forensic pathologist was that Rice was killed by only one of the shots, which pierced both his lungs, causing him to bleed to death. Although there is much variation in the witnesses’ accounts of the fight and shooting, there is fair unanimity on the following facts at issue: (1) the victim was not armed before or during the shooting; (2) the fight was essentially over at the time the shots were fired, and (3) the defendant was armed with a .22 caliber semi-automatic rifle and fired the shots that caused the victim’s death.

DISCUSSION

Assignment of Error No. 1

On appeal, Fields raises three assignments of error. In his first assignment of error, Fields argues that the state failed to present evidence sufficient to support his conviction for second degree murder. Specifically, he argues that the evidence against him was insufficient to support his conviction of second degree murder, and that if he was proven guilty of any crime, it was that of manslaughter. We disagree.

18Sufficiency of the Evidence

When issues are raised on appeal both as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.09/27/00), 768 So.2d 687 units denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.04/19/02), 813 So.2d 424. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate Lcourt does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, Sec. 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, unit denied, State ex rel. Gilliam v. State, 2002-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.09/18/02), 828 So.2d 622, units denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied — U.S.-, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, unit denied, 98-0282 (La.06/26/98), 719 So.2d 1048.

| ¿Elements of the offense.

Second-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. State v. Ellis, 28,282 (La.App.2d Cir.06/26/96), 677 So.2d 617, unit denied, 96-1991 (La.02/21/97), 688 So.2d 521.

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Ellis, supra. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendants. State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La.App.2d Cir.08/29/02), 827 So.2d 488, unit denied, 2002-2634 (La.09/05/03), 852 So.2d 1020; State v. Ellis, supra; State v. Knowles, 598 So.2d 430 (La.App. 2d Cir.1992). The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Knowles, supra.

Cause of death.

Dr. Steven T. Hayne, accepted at trial without objection as a forensic pathologist, testified that Rice suffered two gunshot wounds to the rear of the left thigh, one of which exited, and one of which did not. Rice also suffered three gunshot wounds to the back, all of which were from the left side. One of the wounds to the back was lethal. The projectile causing that wound struck the victim 17.5 inches from the top of his head, and 7.5 inches left of his mid back, and traveled horizontally through the body and forward | fi(from the back to the front of the body) by approximately 20 degrees. The bullet perforated both lungs, and the victim died of internal bleeding. Four of the projectiles were recovered, but a fifth (the one striking the lower thigh) passed out of the body and was not recovered. There is no dispute that Rice was killed by the gunshot.

Identity of the offender

All of the witnesses to the shooting testified that Fields was the person who fired the shots that killed Rice. Although during his taped confession Fields initially denied having intentionally fired the shots (he claimed to be struggling with another person for possession of a completely different gun when the shots were fired), he testified at trial that he had fired the shots. Fields denied having intended to shoot anyone, and specifically denied having shot Rice. Considering the evidence, there is no serious question about the identity of the person who fired the shots that caused the death of Rice.

Justiñable Homicide

In the instant case, Fields did not assert a believable claim to support a defense of justifiable homicide. Pursuant to La. R.S. 14:20, a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. :
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the [7fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

Fields’ self-serving testimony that he was being beaten and set upon by a group of men when the shots were fired was contradicted by the testimony of most of the witnesses. Fields’ in-court testimony is completely compromised by his admission that most of his videotaped pretrial statement was a lie. In that pretrial statement, Fields claimed that the shooting occurred during a struggle with another man over control of a .410 bolt-action shotgun. However, the evidence shows the shooting was with a .22 caliber firearm, and, if the struggle was for control of a bolt-action weapon, as Fields originally stated, it is inconsistent with logic to comprehend how one could be in a struggle for control of a bolt-action weapon, while repeatedly working the bolt. Fields admitted at trial that he had lied repeatedly in his earlier statement. His credibility was completely impeached by that admission.

From the witnesses’ testimony, it is clear that Fields could not have had a reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm or that the killing was necessary to save himself from that danger. Rice was unarmed, some distance away from Fields, and had his back or side turned to Fields when the first shots (to the thighs) were fired. After the first shots, Rice fell to the ground. Even had the first shots (the non-lethal shots to the legs) been justified to stop an attack, the three shots to the back were not justified, because Rice was not in the fight when those shots were fired. The circumstances would not have been sufficient to |Rexcite the fear of a reasonable person that there would be serious danger to Fields’ life or person, if he did not use deadly force.

Manslaughter

Nor do we agree that the facts better support a conviction for manslaughter, which is a lesser included offense of a second degree murder. La. C. Cr. P. art. 814 A(3). A homicide which would otherwise be second degree murder is manslaughter when it is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. “Sudden passion” or “heat of blood” are not elements of the crime of manslaughter, but are mitigating factors in the nature of a defense which exhibit a degree of culpability less than that present when a homicide is committed without them. State v. Scott, 31,379 (La.App.2d Cir.10/28/98), 720 So.2d 415, writ denied, 99-0170 (La.05/14/99), 741 So.2d 664, reconsideration denied, 99-0170 (La.09/03/99), 747 So.2d 529; State v. Stewart, 26,168 (La.App.2d Cir.08/17/94), 641 So.2d 1086, writ denied, 94-2363 (La.01/13/95), 648 So.2d 1337.

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cir.03/01/00), 754 So.2d 311, writ denied, 2000-0989 (La.03/23/01), 787 So.2d 1008. In reviewing a defendant’s claim that he has met that burden, the appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could | flhave found that these mitigating factors had not been established by a preponderance of the evidence. State v. Robinson, supra; State v. Lewis, 28,973 (La.App.2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.05/16/97), 693 So.2d 797.

Although the situation leading up to the shooting lent itself to this defense, there is no testimony that Fields had lost his self-control or cool reflection or that he acted in “heat of blood.” According to the best-case scenario presented by the testimony, Fields did not start the argument which let to the fight, did not want to engage in a fight, and pulled the gun to stop the fight. However, there is no evidentiary support for a “loss of self-control or cool reflection” defense, other than Fields’ completely self-serving statements. According to several witnesses, after Fields pulled the gun from the car, and aimed it at Harris, Harris’ mother stepped in front of her son and pleaded for Fields not to shoot him. The witnesses testified that Fields turned the gun from Harris to Rice, and shot Rice. This evidence gives effective support for a jury’s finding that the shooting was not done in the heat of passion, but was a considered act.

As noted above, the decisions by the jury on the issues of self-defense and mitigation are credibility decisions and are not a matter of sufficiency of evidence. We find that the evidence in this case is sufficient to convict Fields of second degree murder. Therefore we find no merit to Fields’ first assignment of error.

| Assignment of Eiror No. 2

In his second assignment of error, Fields complains that the trial court’s rulings limited his right to cross-examination and confrontation of witnesses on the pending arrests of two of those witnesses against him.

A careful review of the evidence does not support Fields’ claim of deprivation of cross-examination of the two witnesses. The record shows that Fields had fair leeway to cross-examining these two witnesses and to the degree that there may have been any deprivation, we find the error was harmless because beyond a reasonable doubt the error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Instead, we find that Fields’ conviction is based on the mass of evidence as discussed herein that showed he committed an unjustified killing of another human being, and not to any deprivation of the right to cross-examination.

One of the two witnesses complained of was Harris, who had pending charges of illegal discharge of a firearm and aggravated battery. The record shows that on August 10, 2000, shortly after Rice was killed, the trial court found no probable cause on the pending charges against Harris. To date, the state has not prosecuted Harris on those charges. At trial, Harris was asked when the last time action had occurred on his pending charges, and he answered, “[WJhen I came to court they ... was, I guess they was gonna dismiss the charges, but they just said continue without fixing. So I never been to court since.” Fields contends that there could have been a showing that Harris either feared prosecution or sought to curry the favor of the state Invis-a-vis those charges, and that this should have been brought out before the jury. We disagree. Harris’ statement shows a fair understanding of the actual status of the case. A juror could reasonably infer that the charge against Harris had ended and that Harris knew that, and neither feared prosecution nor sought to gain favor with his testimony in the present case.

The other witness, Jackson, had a pending misdemeanor charge which had been upgraded to a felony. When Jackson was interrogated about the pending charge, he indicated that to the best of his knowledge, if there was a pending charge hanging over his head, he had not been to court for it, nor did he know what charge was pending. Clearly, there is no showing that any pending charge had any effect on Jackson in the present case. Any deprivation of cross-examination was completely harmless. Logically, one could conclude that these two witnesses did not need to be induced or coerced to testify against Fields as they were not confederates of his. Therefore, it is rational to surmise that their testimony did not have to be forced or induced and that both these witnesses wanted to testify against Fields, who shot and killed their friend. The record shows that Fields was allowed to interrogate these witnesses on their criminal records and on pending charges. Furthermore, they were asked if any favors or plea agreements were offered, to which each witness answered in the negative. We therefore find that Fields’ second assignment of error is without merit.

Assignment of Error No. 3

Finally, in his last assignment of error, Fields contends the trial court erred in not allowing evidence and limiting cross-examination of the same hatwo witnesses on other violent acts they allegedly committed. Fields alleges that Harris and Jackson were acting as principals with Rice and that it was only by chance that Rice was the person who was shot. Fields sought to introduce evidence concerning Harris and Jackson and their acts of violence against third parties to show Fields’ state of mind and his reasonable fear of the group.

Louisiana C.E. art. 404 provides, in pertinent part:

A. Character evidence generally. Evidence of a person’s character or trait of his character, such a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible;

B. Other crimes, wrongs, or acts.

(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request, the prosecution in a criminal trial shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim’s prior threats [ ^against the accused or the accused’s state of mind as to the victim’s dangerous character is not admissible;

According to the rules of statutory construction, Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3; State v. Lam, 36,862 (La.App.2d Cir.02/11/2003), 837 So.2d 749, writ denied, 2003-0945 (La.10/03/03), 855 So.2d 308; State v. Hair, 2000-2694 (La.05/15/2001), 784 So.2d 1269.

Specifically, La. C.E. art. 404 refers to evidence relating to “the victim” and does not appear to admit evidence relating to third parties. Although the defendant attempts to broaden the terms of the article, by offering evidence of the acts of those other than the victim, we find the trial court was correct in limiting the evidence, based on the considerations set forth in La. C.E. art. 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

The Code of Evidence does not provide for presenting evidence of a witness’ other unrelated specific acts of violence for the purpose of proving that the defendant acted in self-defense. Furthermore, there is no showing in the record of what evidence, if any, was “excluded” by the trial court’s rulings. Accordingly, Fields’ claim that the trial court erred by excluding evidence regarding other specific and unrelated acts of violence of Jackson 114and Harris, which he was offering for the purpose of proving that he acted in self-defense, is without merit.

CONCLUSION

Therefore, for the reasons assigned above, the conviction and sentence of Isaac Fields, III, is affirmed.

AFFIRMED.


author: h GASKINS, J.

text:
    Donald C. WRIGHT, et al., Plaintiffs-Applicants, v. HCA HEALTH SERVICES OF LOUISIANA, et al., Defendants-Respondents.
    No. 38,427-CW.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Anthony J. Bruscato, Monroe, Catherine Leary, New Orleans, for Donald C. Wright, David M. Wright and Kelly Wright Khaled, Applicants.
    Hayes, Harkey, Smith & Cascio, L.L.P., by Harry M. Moffett, TV, Monroe, for Dr. Clinton Guillory, Respondent.
    Crawford & Anzelmo, by Donald J. An-zelmo, Monroe, for Dr. John M. Price, Dr. Patrick Jones and Dr. Robert Sarama, Respondents.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., by Joseph S. Woodley, Shreveport, Blue Williams, L.L.P., by Donald C. Douglas, J., Metairie, for HCA Health Services of Louisiana, Inc., Respondent.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   h GASKINS, J.

In this writ application in a medical malpractice case, the survivors of the decedent patient complain of the trial court granting partial summary judgment in favor of the hospital where the patient died. They also seek review of the trial court’s refusal to reopen discovery after the trial was postponed for seven months. We affirm.

FACTS

On October 19, 1994, Dorothy Wright, age 74, was seriously injured in an automobile accident. She was taken to the emergency room of HCA Health Services of Louisiana, Inc., d/b/a North Monroe Hospital (“the hospital”). Treating her were Dr. Clinton Guillory (ER doctor), Dr. Gary Jones (the decedent’s family practitioner), Dr. John Price (surgeon) and Dr. Robert Sarama (pulmonologist). She died about three hours after her ER admission as she was being prepared for surgery.

On October 19, 1995, the decedent’s husband and children filed a complaint against the hospital with the Patient’s Compensation Fund. In April 1997, they added the four doctors to the complaint. In November 1998, the medical review panel (MRP) found that Dr. Guillory failed to meet the applicable standard of care. Specifically, the MRP found that Dr. Guillory failed to recognize that Mrs. Wright was in shock and failed to administer appropriate fluid and blood resuscitation in a timely manner. However, the MRP concluded that this failure was not a factor in the decedent’s death because of the extent and severity of her injuries. The panel found that the other three doctors and the hospital met the applicable ^standard of care. Suit against the hospital and the four doctors was filed on January 14,1999.

In September 2003, summary judgment was granted in favor of Dr. Jones, dismissing the plaintiffs’ claims against him.

Also in September 2003, the hospital filed a motion for summary judgment. It asserted that it was not vicariously liable for the actions of the doctors (including the ER physician, Dr. Guillory) and there was no evidence to support a claim that it was independently negligent. The motion provided service instructions for the plaintiffs through their counsel; no service instructions were given as to the physician defendants. The plaintiffs filed an opposition to the motion. The trial court granted a partial summary judgment in favor of the hospital on all issues except the hospital’s possible vicarious liability for the actions of Dr. Guillory. On the issue of Dr. Guillo-ry, the court found that there were genuine issues of material fact. Judgment was signed October 1, 2003.

The trial was scheduled for October 13, 2003. However, due to a death in the family of one of the attorneys, it was rescheduled for May 24, 2004. The plaintiffs filed a motion to reopen discovery to further investigate the issue of the hospital’s direct liability. On October 23, 2003, the court denied the motion.

| oThe plaintiffs filed the instant writ application seeking review of the partial summary judgment and the denial of their motion to reopen discovery. In December 2003, the writ application was granted.

SUMMARY JUDGMENT

The plaintiffs assert that since the hospital did not serve its summary judgment motion on the three remaining doctors, and the judgment is thus not binding on them but is binding on the plaintiffs, there is a possibility that at trial the doctors may try to exonerate themselves by presenting hitherto-undisclosed evidence as to negligence of non-physician personnel. Put another way, since summary judgment may not be binding on them, the physicians may be free to raise the very issues that the summary judgment was meant to foreclose.

The plaintiffs argue that granting summary judgment was an abuse of the trial court’s discretion for four reasons: (1) the record is full of gaps with little affirmative evidence to support the hospital’s position; (2) the granting of a partial summary judgment that is binding on only some litigants places the plaintiffs at a real risk of unfair prejudice; (3) the trial court erred in apparently dividing the hospital’s possible negligence into two subsections — negligence of Dr. Guillory and negligence of the hospital staff — which will increase the plaintiffs’ burden of proof; and (4) the entry of the partial summary judgment failed to simplify the litigation.

The hospital argues that the plaintiffs are wrong about the ruling not being binding on all parties; it maintains that the court’s ruling that non-physician employees did not breach the standard of care is now the law of | ¿the case in this matter. Contrary to the plaintiffs’ assertion that the partial summary judgment did not simplify the issues, the hospital contends that it eliminates the necessity of evidence on the standard of care provided by the nursing staff.

Law

Appellate courts review summary judgments de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, 1999-2257 (La.2/29/00), 755 So.2d 226. Summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Smeby v. Williams, 37,845 (La.App.2d Cir.12/10/03), 862 So.2d 381.

The mover has the burden of establishing the absence of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. La. C.C.P. art. 966(C)(2). Once done, the opponent must produce factual support to avert the summary judgment. Whether a particular fact in dispute is Immaterial can be assessed only in light of the substantive law applicable to the case. Smeby v. Williams, supra.

The law of the case doctrine provides that a court’s rulings are binding on the court during later stages of the trial. Garner v. Pool Company of Texas, 595 So.2d 751 (La.App. 4th Cir.1992), unit denied, 598 So.2d 358 (La.1992). It does not apply when the issues are not identical, when there is more then a mere doubt as to the correctness of the earlier decision, or when there is intervening case law. Mann v. Brittany Place Associates Ltd., 1999-1588 (La.App. 4th Cir.9/13/00), 770 So.2d 25. Law of the case applies against those who were parties to the litigation when the prior decision was rendered and who have had their day in court. Greater New Orleans Car Dealers Association v. Louisiana Tax Commission, 95-308 (La. App. 5th Cir.10/18/95), 663 So.2d 797.

In a medical malpractice case, the plaintiff must establish the standard of care applicable to the health care provider, a violation by the health care provider of that standard of care, and a causal connection between the health care provider’s alleged negligence and the plaintiffs injuries resulting therefrom. An expert witness is generally necessary as a matter of law to prove a medical malpractice claim. Williams v. Memorial Medical Center, 2003-1806 (La.App. 4th Cir.3/17/04), 870 So.2d 1044. See also Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134.

It is well-settled that a hospital is liable for its employee’s negligence, including its doctors and nurses, under the re-spondeat superior doctrine. _|¡¿Williams v. Memorial Medical Center, supra. Whether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercised by the hospital over his activities. Campbell v. Hospital Service District No. 1, Caldwell Parish, 33, 874 (La.App.2d Cir.10/4/00), 768 So.2d 803, unit denied, 2000-3153 (La.1/12/01), 781 So.2d 558; Powell v. Fuentes, 34,666 (La.App.2d Cir.5/9/01), 786 So.2d 277, writ denied, 2001-1675 (La.9/21/01), 797 So.2d 674; Arrington v. Galen-Med, Inc., 2002-987 (La.App. 3d Cir.2/5/03), 838 So.2d 895. See also Suhor v. Medina, 421 So.2d 271 (La.App. 4th Cir.1982); Prater v. Porter, 1998-1481 (La.App. 3d Cir.3/3/99), 737 So.2d 102. The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Powell, sitpra.

Discussion

In granting partial summary judgment in favor of the hospital, the trial court carefully considered the varying aspects of the hospital’s potential liability. As to the doctors other than Dr. Guillory, the court concluded that there was an absence of evidence suggesting that the hospital had any vicarious liability for them; these physicians apparently had hospital privileges but there was no indication that the hospital exerted any control over them. As a result, partial summary judgment was granted pertaining to the hospital’s vicarious liability for these doctors. As to Dr. Guillory, the emergency room doctor, entirely different issues were presented. There was a significant question as to whether he was a hospital 17employee over whom the hospital maintained control or an independent contractor over whom it did not. The trial court concluded that there were issues of material fact as to his status. Accordingly, the court deemed summary judgment inappropriate as to Dr. Guillory.

As to the hospital’s independent negligence, the trial court found that the plaintiffs had failed to support their allegations of negligence with expert testimony. Such evidence is generally necessary to prove a medical malpractice case.

After carefully reviewing the matter de novo, we reach the same conclusions as the trial court. Contrary to the plaintiffs’ contention, it was appropriate to separately consider the potential liability of the hospital’s ER physician and its non-physician employees, as they have entirely different standards. The nursing staffs standard of care is judged according to the locality rule. Williams v. Metro Home Health Care Agency, Inc., 2002-0534 (La. App. 4th Cir.5/8/02), 817 So.2d 1224. However, emergency room physicians are held to the standard of care of specialists in emergency care. Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La. App. 2d Cir.1991), writ denied, 595 So.2d 657 (La.1992).

As to the hospital’s independent liability, we have reviewed the evidence attached to the motion for partial summary judgment, including the deposition of the plaintiffs’ expert, Dr. Harrison Lazarus, and those of the physicians who treated Mrs. Wright. This expert evidence fails to suggest negligence on the part of the hospital and its employees.

LThe remaining question as to the granting of partial summary judgment in this case is whether the doctors who were not served with the motion for summary judgment are bound by it and consequently precluded from raising the possible negligence of the hospital’s non-physician employees as a defense. We find that they are so bound and that the partial summary judgment has removed this issue from further litigation. In so concluding, we note the following:

(1) there is no indication that the physicians, who did not file a third-party demand against the hospital, intend to present evidence of independent negligence of the hospital or its non-physician employees;
(2) although there is no transcript, the minutes reflect that counsel for Drs. Jones, Price and Sarama was among the attorneys present on the day of the hearing for the motion for summary judgment;
(3) the judgment of the trial court granting summary judgment was served on all attorneys and none of the doctors filed for new trial or objected to the ruling; and
(4) the physicians were given notice of the writ application and all appellate deadlines but have not contested the ruling. As a party who had a right to intervene in the trial court, the physicians had a right to appeal the decision, if aggrieved. La. C.C.P. art.2086.

The summary judgment ruling binds all parties because they “had their day in court.”

DISCOVERY

As to the trial court’s refusal to reopen discovery, the plaintiffs contend that granting the motion would have allowed them to develop evidence to eliminate the uncertainties and problems caused by the granting |9of partial summary judgment. The hospital argues that the trial court was well within its discretion in refusing to reopen discovery.

The trial court has broad discretion in ruling on pre-trial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966 (La.App.2d Cir.12/10/03), 862 So.2d 414, writ not considered, 2004-0088 (La.3/19/04), 869 So.2d 836.

The alleged malpractice occurred in 1994; the present suit was filed in 1999. Trial was scheduled for October 2003, at which time the parties should have been thoroughly prepared and ready to proceed. The trial was only continued until May 2004 due to a death in the family of one of the attorneys.

Given the length of time the present matter has been pending, we do not believe that the trial court abused its considerable discretion. Over the years, the plaintiffs have had ample time to develop their various claims, including those of negligence by non-physician employees.

CONCLUSION

We affirm the rulings of the trial court on the motion for partial summary judgment and on the discovery request. Costs are assessed against the applicants.

AFFIRMED.

      . By this time, Mrs. Wright's husband had died.

      . At the time of Mrs. Wright’s death, Dr. Louie Crook, the director of the emergency room at North Monroe Hospital, had a contract with the hospital to provide doctors to staff the emergency room. Dr. Crook was paid a contractual fee by the hospital, and he, in turn, paid ER physicians like Dr. Guillory.

      . This summary judgment ruling means that no expert or lay opinion may be presented as to the hospital’s negligence except as it relates to Dr. Guillory. Certainly, the acts of the hospital employees on that night may be relevant and admissible.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Damien Delynn UPDITE, Appellant.
    No. 38,423-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Larry English, Shreveport, for Appellant.
    Paul J. Carmouehe, District Attorney, Eddie Brossette, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS and MOORE, JJ.
   MOORE, J.

Damien Delynn Updite was charged by bill of information with illegal use of a weapon, La. R.S. 14:94 E, and armed robbery with the use of a firearm, R.S. 14:64 and 64.3, arising from a robbery and high-speed chase through east Shreveport. After a four-day trial, the jury found him guilty as charged. The district court imposed concurrent sentences of 5 and 15 years at hard labor without benefits on the respective charges. Updite now appeals, urging the evidence was insufficient to support either conviction. For the reasons expressed, we affirm.

Factual Background

The incident began at Gator Car Wash, a self-serve carwash on Sand Beach Drive, just off Youree Drive, about 10:30 on the night of December 13, 2001. The victim, 18-year-old Robbie Madison, was in the farthest stall, washing mud from the undercarriage of his 1997 GMC Sierra truck. He testified that from the corner of his eye, he espied someone running up and brandishing a pistol. The assailant, a young black man dressed in a white hooded sweatshirt with the hood pulled over his head and a yellow bandana tied over his nose and mouth, put the gun to his chest, ordered him to lie on the ground and demanded all his money. Getting a good look at the gun, Robbie described it as a black .45 cal. semi-automatic pistol. Robbie told his assailant that all his money and credit cards were inside the truck. After showing some indecision, the assailant let Robbie open the door and take out a $5 bill, which was all the cash in the truck, and some credit cards. Robbie testified that the assailant refused the credit cards and took the cash, but acted annoyed that there was not more money. The assailant then asked |2for Robbie’s truck keys, and threatened to kill him, but refused to take the keys. The assailant started to walk away, but after another instant of indecision, turned around and handed back Robbie’s $5 bill. Robbie testified that he stood there, totally startled, until he noticed the assailant jumping into the passenger seat of a brown Honda Accord parked a few stalls down.

As the assailant drove off, Robbie felt that a “person like that should be off the streets.” Admitting it was a “stupid thing to do,” he decided to try to catch him. Robbie hopped into his pickup and started to pursue the Accord, which had turned onto Sand Beach, and followed it in a high-speed chase up Youree Drive. Robbie testified that he never got closer than 50 yards behind the Accord, which was speeding, swerving, cutting corners and running red lights. On a residential street, the assailant leaned out his window and fired three or four shots at the pickup; Robbie could see the muzzle flash and did not realize a bullet had struck his front passenger side tire. Robbie honked his horn and flashed his emergency lights in the hope of attracting the police.

The Honda turned off Youree and went into a subdivision near Querbes golf course, driving in what Robbie called a “sporadic” manner. Trying to make a sharp turn off Cornwell Avenue onto East Fairview Street, the Accord skidded, crashed into the curb and came to a stop. Robbie pulled his truck about 30 yards behind the Accord and saw both its occupants get out and run. At this point he noticed that an unmarked police car had joined the chase and stopped behind him.

13Officer Menefee testified that the Accord and the GMC truck had run a red light and passed him on Youree Drive doing 90-100 mph; he followed them, radioed for assistance, and when the Accord crashed, he saw two black men get out and run west on East Fairview. When Robbie told him one of the men had robbed him at gunpoint, Officer Menefee shouted at them to stop, but they kept running. The officer pursued them on foot through several yards and over a fence but soon lost sight of them. Other officers continued to search until they learned the suspect had turned himself in at the station.

Corporal Van Zandt located four .45 shell casings on the street in the 4300 block of Finley Drive, a short distance south of the crash site. From their placement, he felt they had been fired from a fast-moving vehicle. After the Honda was impounded, Cpl. Van Zandt took several photographs of it. These depict two small, streaking dents in the right rear quarter panel, which Cpl. Van Zandt felt were caused by bullets fired from the passenger window at an object behind the car, and a slightly larger dent in the right front quarter panel, which Detective Brown ascribed to the impact with the curb. Detective Brown traced the Honda’s tags to a Mrs. Bogan in Bossier City, who said her daughter’s boyfriend, Damien Updite, had been driving the car.

Around midnight, Updite appeared at the police station with a .45 cal. Hi-Point revolver to report that he had fired some shots in self-defense. He testified that he had driven his fiancée’s car that day; after an evening of drinking, he and his friend Lamar Smalls stopped at Gator Car Wash to | ¿clean it out. While they were there, a white man washing a white pickup truck approached him and asked if he knew where to buy some “weed.” Updite said he did not know; the white man badgered him and called him a racial epithet. Taking offense, Updite argued with him and struck him in the face, knocking him down. Even though they had not finished cleaning the Accord, Updite got in the passenger seat and Smalls drove off. They soon noticed, however, that the white pickup was charging behind them at a high rate of speed, flashing its lights and honking its horn, and trying to run them off the road. According to Updite, the truck rammed their rear bumper at least twice, and on several occasions rode up alongside and tried to ram them off the road. Updite then pulled the handgun he kept in the Accord’s side panel, firing two shots into the air and two at the ground, in an effort to scare off the truck, but the driver continued to pursue them. Updite testified that the Accord struck a curb near the golf course and broke its axle, so he walked to his mother’s house about two blocks away on East Ratcliff. He stressed that he walked this distance because he has a bad knee and asthma. Having giving the police his account, Updite was arrested.

After determining that Updite was not intoxicated, Detectives Brown and Hinder-berger asked him to waive his Miranda rights and give a recorded statement; he agreed. On the tape, which was played twice at trial, Updite did not mention hitting Robbie at the car wash. The detectives confronted him about inconsistencies in his story; feeling he had turned belligerent, they terminated the statement. At trial, Detective Brown elaborated: there was no physical evidence that the truck rammed the rear | ñbumper of the Accord; despite Updite’s claim that he had been drinking all day, there was no smell of alcohol on his person and no alcohol bottles in the Accord; and Robbie gave an excellent description of the handgun which, according to Updite, had not been pulled until deep into the chase and was fired at high speed.

Detective Brown testified that as they were leaving the room, Updite said, “How are you going to charge me with armed robbery when I gave him his five dollars back?” Updite, however, testified that what he really said was, “How can I be under arrest for armed robbery if he said I gave him the money back?”

On the evening of December 14, Detective Brown prepared a photo lineup from which Robbie selected Updite’s picture. Robbie identified, as the weapon used in the robbery, the Hi-Point .45 caliber semiautomatic handgun that Updite carried to the police station. He also identified, as the white hooded sweatshirt worn by the robber, the sweatshirt officers received from Updite’s mother. No yellow bandana was ever recovered. Robbie also gave police the bullet that had lodged in his front right tire. The crime lab determined that this bullet had been fired from, and the shells recovered on Finley Drive had been ejected from, Updite’s Hi-Point .45.

As noted, Updite was charged with illegal use of a weapon and “armed robbery with the use of a dangerous weapon.” Jury trial was held over four days in April 2003. The witnesses testified as outlined above. In | ^addition, Updite’s mother, Evelyn Khelama, testified that when he came home about 11 pm that night, he related that a guy had tried to buy drugs from him, called him a racial epithet, and tried to run him off the road. After hearing this, she suggested that he call the police. Lamar Smalls, who was driving the Accord that night and was the only other potential eyewitness, did not testify.

The jury found Updite guilty as charged on both counts. The district court denied his motion for post-verdict judgment of acquittal and sentenced him to concurrent terms of five years at hard labor without benefits for the illegal use of a weapon and 15 years at hard labor without benefits for armed robbery with the use of a firearm. Both sentences are the statutory minimum. Updite now appeals, urging by four assignments of error that the evidence was insufficient to support the convictions.

Discussion: Proof of the Offenses

By his first two assignments, Up-dite urges the evidence is insufficient to prove the essential elements of the offenses. He argues that the victim’s account of the incident at the carwash was completely incredible, as nobody who had just been robbed at gunpoint and forced to lie on the ground would suddenly decide to protect the public by pursuing his robber in a high-speed chase, continue despite a volley of gunfire, and not stop “until police interrupted the chase.” He also argues that the victim’s account does not square with the physical evidence, as nobody could lean out the passenger window of a car driving 75-100 mph, aim at a vehicle that was 75-100 yards behind him, and “with a .45 caliber weapon shoot the opposite tire onjjthe Madison vehicle” (emphasis added). Finally, he contends that the victim could not have picked his photo out of the lineup, when according to the victim’s own account, the assailant’s head was covered with a white hood, and his face with a yellow bandana (which was never recovered). Updite concludes that the victim’s credibility issues, coupled with the physical inconsistencies, undermine the verdicts and mandate an acquittal.

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 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 |switness; 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.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64 A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation or suspension of sentence, consecutive to the sentence imposed under R.S. 14:64. La. R.S. 14:64.3 A.

Illegal use of weapons or dangerous in-strumentalities is, inter alia, the intentional or criminally negligent discharging of any firearm where it is foreseeable that it may result in death or great bodily harm to a human being. La. R.S. 14:94 A. The sentence for this offense is enhanced when it is committed “by discharging a firearm from a motor vehicle located upon a public street or highway, where the intent is to injure, harm, or frighten another human being.” R.S. 14:94 E; State v. Joubert, 97-1093 (La.App. 3 Cir. 2/4/98), 705 So.2d 1295, unit denied, 98-1525 (La.10/30/98), 723 So.2d 973.

| flThe evidence of the armed robbery consisted of two divergent accounts of the incident at the carwash. Robbie testified that Updite accosted him, held him at gunpoint, and demanded his cash, credit cards and truck keys; Updite took only the cash, and then returned it before fleeing the scene. Updite maintained it was Robbie who initiated the contact, asking him where to buy marijuana and calling him by an offensive racial epithet; as they scuffled, Updite hit him in the face and knocked him to the ground; Updite then calmly left. The jury accepted Robbie’s version, and we find no basis to disturb their credibility assessment. While it may seem unusual for an armed robber to return the cash he has just taken from his victim, Robbie described .his assailant’s acts as “sporadic”; the frustration of netting only $5 in a robbery may reasonably explain his indecisive reaction. Notably, Robbie gave an excellent description of the black .45 caliber semi-automatic .weapon which, according to Updite, was still in the Accord at the time. Robbie did not mention getting punched in the face or knocked to the ground, he did not report this to the police, and none of the officers noticed any bruising or scratches on his face. On this evidence, the jury was entitled to discount Updite’s account of the events at the carwash.

The evidence of illegal use of weapons included not only the parties’ divergent testimony but also physical evidence. The photographs, particularly exhibits S-6a and 6b, show two fresh streak-shaped dents near the passenger side brake light of the Accord. These images are consistent with Robbie’s testimony that Updite leaned out the passenger window and fired his gun at the pickup, but the bullets grazed the back of the Accord — appoint Updite admitted on cross examination. Moreover, the evidence does not support Updite’s argument that the bullet struck the “opposite tire on the Madison vehicle.” Both Robbie and Officer Menefee testified that the front right tire was flat, which we interpret as the passenger side tire. This damage is also consistent with Robbie’s account of the high-speed shootout. The jury was plainly entitled to accept Robbie’s version.

Taken in the light most favorable to the state, the evidence proves beyond a reasonable doubt that Updite committed every element of both charged offenses. These assignments of error lack merit.

Self-defense

By his third assignment of error, Updite urges the jury should have found he acted in self-defense when he fired at the victim. By his fourth assignment, he contends the district court should have granted his motion for post-verdict judgment of acquittal. He argues that even by his accuser’s own account, he was being pursued at a high rate of speed and bumped by the Accord several times. Up-dite contends this was a hostile demonstration or overt act which created, in his mind, the belief that he was in immediate danger of losing his life or suffering great bodily harm. State v. Miles, 98-2396 (La. App. 1 Cir. 6/25/99), 739 So.2d 901, writ denied, 99-2249 (La.1/28/00), 753 So.2d 231. He concludes that on this evidence, the state did not meet its burden'of disproving his claim of self-defense. State v. Scott, 31,379 (La.App. 2 Cir. 10/28/98), 720 So.2d 415, writ denied, 99-0170 (La.5/14/99), 741 So.2d 664.

lnSelf-defense is defined by La. R.S. 14:19:

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

The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Braswell, 605 So.2d 702 (La.App. 2 Cir.1992). The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326. The issue of self-defense requires - a dual inquiry, an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. Robinson, 37,043 (La.App. 2 Cir. 5/14/03), 848 So.2d 642, and citations therein. A person who is the aggressor or who brings on the difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21; State v. Robinson, supra.

Although Robbie’s decision to chase an armed robber was impulsive and unwise, it was not implausible given the pressure of the moment and the understandable belief that his assailant should be “off the street.” The physical evidence — particularly the bullet marks to the Accord— supported Robbie’s claim that he was behind the Accord, albeit at high speed. Robbie | ^testified he made no physical contact with the Accord, and Officer Mene-fee saw no contact during the second half of the chase. Although no expert testimony was offered, the photographs of the Accord’s rear bumper" simply do not show the kind of damage that could be expected from a high-speed impact with an 8,000-lb. truck. On this record, the jury could reasonably find that Updite did not show, by a preponderance of the evidence, that he acted in self-defense. Neither an objective inquiry into whether the force used was reasonable, nor a subjective inquiry into whether it was apparently necessary, will support Updite’s contention that he acted in self-defense by firing several shots at his pursuing, yet apparently unarmed, victim. State v. Robinson, supra. These assignments lack merit.

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, Damien Delynn Up-dite’s convictions and sentences are affirmed.

AFFIRMED.

      . Detective Hinderberger was not available to testify. At the time of trial, he was on active duty in the Army Reserves in Guam.

      . The offense is actually armed robbery with the use of a firearm. La. R.S. 14:64.3. The use of a dangerous weapon is an element of any charge of armed robbeiy.

      . At most, the photographs show even, environmental wear along the edge of a slightly loose bumper.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Ibrihim BARAKAT, Appellant.
    Nos. 38,419-KA, 38,420-KA, 38,421-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Mark Manno, Indigent Defendant Board, James E. Beal, Jonesboro, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Joseph Gregorio, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

Following a jury trial, the defendant, Ibrihim Barakat, was convicted of possession of Schedule I controlled dangerous substance (CDS) (Methylenedioxyamphe-tamine or “MDA,” commonly known as “Ecstasy”), possession of Schedule II CDS (cocaine), possession of Schedule III CDS (hydrocodone), and possession of a firearm while in possession of CDS (marijuana, MDA, cocaine, and hydrocodone).

The defendant was sentenced to serve two years imprisonment at hard labor on each of the drug possession convictions. For his conviction of possession of a firearm while in possession of CDS, he was sentenced to serve five years imprisonment at hard labor, without benefits. All sentences were ordered to run concurrently. The defendant now appeals.

Finding a double jeopardy violation, we vacate the defendant’s drug possession convictions; however, we affirm his conviction and sentence for possession of a firearm while in possession of CDS.

FACTS

Between 7 and 8 p.m. on the night of June 13, 2001, undercover narcotics officers of the Bossier City Police Department began following the defendant, who was driving a rented green four-door Chevrolet Impala. The defendant and his passenger, Randall Hicks, traveled back and forth between Shreveport and Bossier City. At about 10 p.m., the officers stopped the defendant in Bossier Parish on the Texas Street bridge for failure to use his turn signal.

According to one officer, immediately prior to the stop, the car was going very slowly and there was movement between the defendant and his | ¡.passenger. He testified that, as the car stopped, it appeared that they were reaching under the seats and passing things between them. Another officer testified that he observed “very aggressive movement” inside the car, particularly from the defendant’s side. He seemed to be frantically moving items toward the center console or under the seat.

When the officers approached the car, both occupants appeared to be nervous. After they exited the vehicle, the officers noticed that Hicks had something in his mouth which he was trying to chew. He was ordered to remove the items from his mouth; they included eight small baggies of crack cocaine and a small amount of marijuana.

A search of the car yielded a Beretta .40 caliber handgun concealed between the passenger’s and driver’s bucket seats. Also, a crack cocaine pipe was found on the floor of the passenger’s seat. In a film cannister in the console area between the seats were 20 pills of MDA or Ecstasy, three plastic bags of crack cocaine, a partial marijuana “blunt” or cigar, and two Lortab pills containing hydrocodone (dihy-drocodeinone). Both the defendant and Hicks were arrested.

The defendant was charged with possession with intent to distribute a Schedule I CDS, MDA (No. 38,419-KA); possession with intent to distribute a Schedule II CDS, cocaine (No. 38,419-KA); possession of a Schedule III CDS, hydrocodone (No. 38,420-KA); and possession of a firearm while in possession of controlled dangerous substances (No. 38,421-KA). He was also charged with possession of marijuana.

13These matters were consolidated for trial and the defendant was tried by jury. He was convicted as charged on the firearm charge and the hydrocodone possession charge. On the MDA and cocaine charges, he was convicted of the lesser offenses of possession, as opposed to possession with intent to distribute. The jury’s verdicts were all unanimous. At the conclusion of trial, the state dismissed the charge of possession of marijuana still pending against the defendant.

The defendant filed a motion for new trial or alternatively for postverdict judgment of acquittal. The motion was denied.

On the firearm conviction, the trial court imposed the mandatory minimum sentence of five years at hard labor without benefit of parole, probation or suspension of sentence. On each of the three drug possession convictions, the court sentenced the defendant to two years at hard labor. All sentences were ordered to be served concurrently.

The defendant appeals.

SUFFICIENCY OF EVIDENCE

In this assignment of error, the defendant challenged the sufficiency of the evidence that he was in constructive possession of the drugs found in his car. He argued that the drugs belonged to Hicks, his passenger. Hicks testified at trial that the drugs were his and that the defendant was unaware that he had them until they were stopped by the police.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential |4elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of 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 the 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.9/25/98), 719 So.2d 610, unit denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even | Rthough it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987.

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910.

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, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Lee, 38,114 (La.App.2d Cir.3/3/04), 868 So.2d 256.

Hicks testified that the drugs found in the defendant’s car were his and that the defendant was unaware of their presence. However, we note several contradictions between Hicks’ testimony and that of the police officers. Among other things, he testified that the defendant’s gun was in a paper bag in the back seat of the car; the officers testified that it was recovered from between the passenger’s and driver’s seats and that it was within a foot of either occupant. He also testified that the Ecstasy and |fiLortab pills were in his pocket; according to the officers, a film cannister containing these drugs was found in the console between the front seats occupied by the defendant and Hicks.

The jury as the trier of fact heard the testimony of all of the witnesses and obviously chose to believe the two police officers instead of Hicks. Such a credibility call was well within the jury’s province.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the defendant exercised dominion and control over the controlled dangerous substances in his car sufficient to constitute constructive possession. The defendant had rented the vehicle. He had immediate and close access to the drugs found in the console area of the vehicle. This alone is sufficient to find that the defendant had possession of the drugs; thus, it is unnecessary to consider the drugs that were in Hicks’ actual possession. The officers noticed “frantic” and “very aggressive” activity between the two car occupants immediately before the traffic stop which was indicative of efforts to conceal the evidence. Also, drug paraphernalia, a crack pipe, was found inside the defendant’s vehicle.

The peculiar facts of this case support the finding that the defendant constructively possessed the drugs. Although the defendant offered a hypothesis of innocence — that the drugs belonged to Hicks and were present without his knowledge- — ■ this hypothesis was obviously rejected and not considered reasonable by the jury.

This assignment of error lacks merit.

RDOUBLE JEOPARDY

The defendant contends that his conviction on the firearm charge constituted double jeopardy because it was based on the other drug charges for which he was convicted, i.e., possession of MDA, cocaine, and hydrocodone. Furthermore, he maintains that when the state elected to prosecute him for the felony drug charges, the bill of information on the firearm charge should have been amended to recite only marijuana as the underlying contraband offense.

The bill of information on the firearm charge specified that the defendant violated the provisions of La. R.S. 14:95(E) by being in the possession of a firearm while also in possession of Schedule I, II and III CDS, “namely, marijuana, methylenediox-yamphetamine (MDA), cocaine, and hydro-docone [sic].”

When charging the jury on the firearm charge, the trial court stated the following:

Thus, in order to find the defendant guilty as charged you must find that the defendant was engaged in the possession of marijuana, MDA, cocaine or hydroco-done and that the defendant possessed or had under his immediate control a firearm while committing such offense.

Both the Louisiana and United States Constitutions prohibit placing a person twice in jeopardy of life or limb for the same offense. U.S. Const, amend. V; La. Const., art. 1, § 15; see also C. Cr. P. arts. 591 and 596.

In State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, the defendant was charged with possession of marijuana and cocaine; also, a bill of information was filed under La. R.S. 14:95(E), based on possession of marijuana and cocaine, charging him with possession of a firearm while |sin the possession of a CDS. The defendant pled guilty to possession of marijuana. The trial court granted the defendant’s motion to quash the bill of information based on double jeopardy and declaring La. R.S. 14:95(E) unconstitutional.

The supreme court found that since the defendant had pled guilty only to the marijuana charge, the evidence of his alleged cocaine possession — for which he had not yet been convicted — provided a proper basis to support his prosecution under La. R.S. 14:95(E). The court ruled that, as long as the defendant was not separately prosecuted for the cocaine possession offense, no double jeopardy prohibition existed under either the “additional fact” or the “same evidence” tests used to determine double jeopardy violations. It found that the trial court was “unduly technical” in refusing to allow the state an opportunity to amend the bill of information to delete the words “marijuana and” from the bill of information and then to proceed on the charge of possession of a firearm while in the possession of cocaine.

In reaching its conclusion, the supreme court considered State v. Warner, 94-2649 (La.App. 4th Cir.3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089, and State v. Woods, 94-2650 (La.App. 4th Cir.4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035.

In Warner, supra, the defendant pled guilty to a violation of La. R.S. 14:95(E) while in possession of cocaine. The state sought to prosecute him separately for the offense of cocaine possession arising out of the same facts. The appellate court upheld the trial court’s quashing of the cocaine [ flcharge. In Woods, supra, the reverse scenario was presented. The defendant was charged with cocaine possession and, in a separate case, possession of a firearm while in possession of cocaine in violation of La. R.S. 14:95(E). He pled guilty to the cocaine possession charge. The trial court granted his motion to quash the firearm charge on double jeopardy grounds. The appellate court affirmed. It found that prosecution of the firearm possession charge would violate double jeopardy under both the Block burger federal test and the broader “same evidence” test used in Louisiana.

Under Sandifer, supra, it was a technical flaw in the instant case for the state to list MDA, cocaine and hydroeodone in the bill of information filed under La. R.S. 14:95(E). That is, the Double Jeopardy Clause prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself, under the same rationale that precludes an offender from being convicted of both a felony murder and the underlying felony. The indictment creates a double jeopardy issue. Since the possession of the drugs was an element of the offense of possession of a firearm while possessing those drugs, the double jeopardy clause of the federal and state constitutions were violated. Had this issue been litigated at an earlier juncture in these proceedings, we could have allowed the state to amend the bill of information for the firearm possession |incharge to eliminate all of the enumerated CDS except the marijuana. However, at this stage of the prosecution/conviction, there is no opportunity to correct this technical problem.

To remedy a violation of double jeopardy, the reviewing court vacates the conviction and sentence of the less severely punishable offense and affirms the conviction and sentence of the more severely punishable offense. State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); State v. Lee, 554 So.2d 180 (La.App. 2d Cir.1989).

Consequently, we are obliged to vacate the defendant’s drug convictions. However, the conviction for possession of a firearm while in possession of CDS, the more severely punishable offense, is affirmed.

CONCLUSION

We vacate the defendant’s convictions and sentences for possession of MDA, possession of cocaine, and possession of hy-drocodone. We affirm the defendant’s conviction and sentence for possession of a firearm while in possession of CDS.

VACATED IN PART; AFFIRMED IN PART.

      . The test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), determines whether each crime requires proof of an additional fact which the other does not. State v. Blackson, 38,044 (La.App.2d Cir. 1/28/04), 865 So.2d 272.

      . The "same evidence” test evaluates whether the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other crime. The test depends on the evidence necessary for conviction, not all of the evidence introduced at trial. State v. Steele, 387 So.2d 1175 (La.1980).


author: It HARRISON, J. (Pro Tempore).

text:
    Helen NOBLE (Safeway Insurance Company), Plaintiff-Appellants, Defendants-in-Reconvention, v. Aaron Anthony RIDEAU and Horace Mann Insurance Company, Defendant-Appellee.
    No. 38,699-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.
    Tracy L. Oakley, Ruston, for Appellants, Helen A. Nobles and Safeway Insurance Company.
    Stephen T. Collins, for Appellee, Aaron Anthony Rideau.
    Before BROWN, LOLLEY and HARRISON (Pro Tempore), JJ.
   It HARRISON, J. (Pro Tempore).

In this automobile accident case, defendants in reconvention, Helen Noble and Safeway Insurance Company of Louisiana, appeal a judgment in favor of plaintiff in reconvention, Aaron Rideau. The court found no comparative fault on the part of Mr. Rideau whose vehicle was struck by-Ms. Noble’s vehicle when Rideau had nearly completed a left turn from the roadway into a parking lot. Appellants assert that the trial court failed to properly apply the law regarding a left-turning motorist, and that the trial court clearly erred in concluding that the collision may have . occurred on the shoulder of the road. For the reasons set forth below, we affirm.

FACTS

On September 6, 2001, Mr. Rideau was driving a 1975 Ford-pickup on North Market Street in Shreveport, Louisiana. Ri-deau was headed in a northerly direction, and just before the accident he pulled into the left-turn lane at the intersection of North Market Street and Martin' Luther King Drive. In addition to the turn lane, there are two northbound lanes and two southbound lanes of North Market at the intersection. Rideau intended to turn left into the parking lot of a pawn shop located on the southwest corner of the intersection. In order to do so, he had to cross the double yellow line that separated the northbound and southbound lanes of North Market Street, cross the two southbound lanes, and enter the parking lot.

At the same time, Ms. Noble was driving her 1997 Chevrolet Lumina west on Martin Luther King Drive to where it intersected North Market Street. Martin Luther King Drive has a turn lane for eastbound motorists who wish to turn right onto North Market Street. The turn lane veers off at an angle from |2Martin Luther King Drive onto the outside southbound lane of North Market Street;, the turn lane has a yield sign for those motorists who are about to merge into the southbound lane.

In the moments before the accident, Mr. Rideau was stopped in the turn lane with approximately three vehicles ahead of him. His destination, the driveway of the pawn shop, was approximately 40 to 50 feet from the intersection. When the left-turn arrow of the traffic signal turned green, Rideau made his left turn toward the pawn shop driveway. At the same time, Ms. Noble was merging onto North Market Street from Martin Luther King Drive. Noble’s vehicle collided with the passenger side of the Rideau vehicle; the impact to the Ri-deau vehicle occurred just behind the passenger-side door between the door and the rear wheel well. After the impact, Ri-deau’s vehicle rolled into the pawn shop parking lot, while Noble’s vehicle came to a stop near the point of collision.

On November 26, 2001, Noble filed a petition for damages against Rideau and his insurer, Horace Mann Insurance Company. The defendants filed a general denial answer, pleading comparative fault in the alternative. Subsequently, the defendants filed a reconventional demand against Noble and her insurer, ■ Safeway Insurance Company of Lpuisiana. Noble and Safeway filed an answer denying the allegations of, the reconventional demand, and also pleading comparative negligence in the alternative.

In October 2003, pursuant to a joint motion to dismiss, all of Noble’s claims were dismissed with prejudice after Horace Mann paid her its policy ^limits on Rideau’s policy. The joint motion to dismiss reserved to Rideau all of his claims against Noble and Safeway.

When Rideau’s claims came on for trial, five witnesses testified. In addition to Mr. Rideau and Ms. Noble, there was testimony from Officer James Green of the Shreveport Police Department who investigated the accident, from Ms. Rosario Ay-roso (Mr. Rideau’s wife who was seated in the front passenger of his vehicle at the time of the accident), and from Mr. Shawn Dudley (a driver who witnessed the aftermath of the accident.) As the following synopsis of the witnesses’ testimony shows, the facts of the accident were very much in dispute.

Officer Green testified that he investigated the accident immediately after its occurrence. However, at trial he could remember very little about the investigation and needed his official report to refresh his memory. Officer Green stated that Rideau told him Noble came around the curve and ran into Rideau as he was making a left turn, while Noble told the officer that Rideau pulled in front of her and she could not avoid hitting him. Noble’s vehicle was damaged across the front, while Rideau’s was damaged behind the passenger-side door. Although the accident report indicated that point of impact was in the outside southbound lane of North Market, Officer Green was unsure at trial how he made that determination. He could not recall seeing any debris in the roadway, and he did not recall if he asked either of the parties where the accident occurred. However, Officer Green did respond affirmatively when asked if Mr. Rideau had already crossed one southbound lane of North Market Land if the front of Rideau’s truck would have had to have already crossed the outside southbound lane as well.

Mr. Rideau testified next. He indicated that when the light turned green, he began to make his left turn to the pawn shop. He indicated that as he was going into the drive of the pawn shop, his wife yelled for him to “look out,” and he then saw Noble just before her vehicle hit his. According to Rideau, his truck “went up on the wheels on the driver’s side” upon impact, and as a result the driver’s side tires were “busted.” His vehicle then rolled down to the pawn shop. Rideau indicated that the impact occurred on the shoulder of the road, and that Noble’s vehicle stopped at that point because it really couldn’t go anywhere. According to Rideau, Noble came around the corner at a high rate of speed, hugging the shoulder, and would not have hit Rideau if she had stayed on the road. Rideau later testified that the reason he believed Noble was traveling at a high rate of speed was because the impact was hard enough to lift his truck off the ground.

The next witness to testify was Ms. Ay-roao, Mr. Rideau’s wife. Her testimony essentially corroborated that of her husband. She indicated that they were in the left-turn lane and noticed they had the arrow to turn onto Martin Luther King; when it was clear enough to turn, they went into the pawn shop driveway and were already into the driveway when they were struck. Although she did not know the direction in which the traffic was moving, she gave the following account of what happened from the point they started to make their turn:

Okay as we were turning uh we notice it was clear but me and my little brother were pay well myself I was paying attention to the Lears coming off of Martin Luther King on this uh they could make a right turn onto Martin Luther onto North Market it’s a there is a yield sign so you have to yield onto oncoming traffic and T notice that a car was coming and I you know I was lot of traffic comes through there and some people don’t slow down. Some people don’t stop. They don’t even yield. They just keep coming through and as we were turning into I felt we were safe enough you know but here comes this car. She just comes around. She’s she looks like she’s in the lane where you should be turning onto North Market but she was on the picture she was on the shoulder. And she hit us. I mean even my little brother said she was coming pretty fast.

Ayroso stated that Noble did not look like she was slowing down and that she never made a complete stop at the yield sign. Instead, Ayroso indicated that Noble was trying to see if there were cars coming from the opposite direction and had her head turned the whole time. Like her husband, Ayroso indicated that Noble’s car was on the shoulder and, thus, it did not have to be moved after the accident.

Shawn Dudley testified next. At the time of the accident, he was southbound on North Market, stopped at the light behind two other vehicles. He gave this description of the events:

While I was sitting there waiting for a light to change. I saw this car I saw this car coming from the yield sign off of Martin Luther King. I saw the car turn around. Saw the person in the car I saw them look back look back toward the traffic and I saw the emerging traffic. I saw the truck I saw the truck come by and I saw the tail end of what looked like an accident.

According to Dudley, Noble’s vehicle stopped at the yield sign for two or three seconds, and he also saw Rideau’s truck making a left turn. However, Dudley testified that it “looked like” the truck hit the car, so Dudley pulled over, got out of his vehicle, and checked to see how Ms. Noble was doing. He also called 911 and then remained “to see what was going on.” Dudley stated | fihe could not be completely sure where the vehicles were at the time of the collision, but could “only assume that the car was in the right lane going [south].” Dudley could not see the actual impact. He also believed that the car moved when it was hit and “kind of slid over to the side of the curb.”

Ms. Noble was the last witness to testify. She stated that she always slowed down at the yield sign, and then stated that she came to a complete stop. She testified that when she came out onto North Market Rideau’s truck came over “the two double yellow lines” and pu|led out in front of her. She testified she could not then avoid the accident. According to Noble, she was not on the shoulder of the road, but in the lane. She stated that the whole front part of her car collided with the side paneling on the passenger side of Rideau’s truck, and that the collision occurred in the right-hand southbound lane of North Market. After the collision, she could not move her vehicle, so she left it there and went to the hospital in an ambulance. On cross-examination, she was asked whether she was looking to see if anyone was coming as' she merged onto North Market, and whether she physically turned her head to look back as she was merging. She responded in the negative, indicating that she had already looked. However, she did indicate that she checked her mirrors to see if any more traffic was coming as she was turning.

In a written opinion issued on September 24, 2003, the trial judge gave the basic facts leading to the accident and stated that Ms. Noble’s vehicle struck Mr. Ri-deau’s, vehicle on the passenger side behind the truck cab as he was entering the parking lot. The court then stated:

It is clear [Ms. Noble] was not maintaining a proper lookout as [she] merged, and from the testimony and photos (P-5) she may 17have been on the shoulder of the road when she struck [Rideau’s] vehicle. The Court finds [Ms. Noble] 10Q% liable.
The Court does not find Mr. Rideau comparatively negligent. He proceeded with his turn when no vehicles were present; he had nearly completed his turn and entered the parking when [Ms. Noble] came off the Southbound merge lane from Martin Luther King Drive; the accident occurred during daylight. His vehicle was plainly visible.

DISCUSSION

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error — ■ clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record viewed in its entirety; thus, a reviewing court may not merely decide if it would have found the facts of the case differently, but should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Cheairs v. State ex rel DOTD, 2003-0680 (La.12/3/03), 861 So.2d 536. When testimony on an issue conflicts, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Hope v. City of Shreveport, 37,759 (La. App.2d Cir.12/17/03), 862 So.2d 1139.

As previously noted, Noble asserts on appeal that the trial court erred in failing to properly apply the law regarding a left-turning motorist, and that the trial court was clearly wrong in concluding that the impact “may” have occurred on the shoulder. However, applying the proper standard of review, we must reject Noble’s arguments. Noble correctly argues that a motorist attempting to make a left turn is under a duty to exercise a high degree of care. A left turn is a dangerous maneuver and a driver has a duty not to attempt the turn until he ascertains it can be completed safely. Cooley v. Trinity Universal Ins. Co., 37,701 (La.App.2d Cir.11/26/03), 862 So.2d 248, torit denied, 2003-3532 (La.3/12/04), 869 So.2d 825. However, the court concluded that Mr. Rideau proceeded with his turn when no vehicles were present and had nearly completed his turn when he was struck by Noble. Although Noble’s testimony conflicts with the trial court’s factual findings, the court’s findings are supported by the testimony of both Mr. Rideau and his wife. Furthermore, neither of the other two witnesses, Officer Green and Mr. Dudley, actually witnessed the collision. As for the trial court’s finding about the possible point of impact, both Rideau and his wife testified the impact occurred on the shoulder, while Noble testified it occurred on the road. Again, Dudley did not see the collision and incorrectly assumed that Rideau’s truck had struck Noble’s car, while Officer Green, who also did not witness the accident, admitted that he could not remember why his report indicated that the collision occurred on the roadway.

Given the conflicting testimony, and giving proper deference to the trial court’s factual findings, we find no manifest error in the trial court’s decision to accord no percentage of fault to Mr. Rideau.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.