author: b GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Robert Charles HENSON, Appellant.
    No. 38,820-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    John Schuyler Marvin, District Attorney, Carl Ekendahl and John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and DREW, JJ.
   b GASKINS, J.

The defendant, Robert Charles Henson, appeals his conviction for aggravated battery, claiming that the evidence presented is insufficient to support his conviction. For the following reasons, we affirm.

. FACTS

The defendant met Rhonda Buford in March 2001 when they were both undergoing treatment at a drug rehabilitation center. In August 2001, they had been living together at the Siesta Motel in Bossier City for about three weeks.

On the evening of August 5, 2001, Buford arrived at the motel around 5:00 p.m., after working at a Shreveport restaurant.. Buford ate dinner with her minor daughter and the defendant. Then Buford and the defendant drank and smoked crack cocaine. Around 11:00 p.m., the defendant gave Buford $10 and sent her out to buy more crack. Buford stated that she purchased a rock of crack, but then went to a Mend’s house where she continued to drink and she smoked the cocaine. While she was gone, the defendant called the father of Buford’s daughter to come and get the child.

When Buford arrived at the motel room between 2:00 a.m. and 3:00 a.m. on August 6, 2001, the defendant became angry that she returned without the drugs or the money. According to Buford, the defendant threatened to kill her. In the ensuing struggle, he stabbed her in the leg with a steak knife. He then held her down while she bled profusely and refused to allow her to seek medical attention.

The next morning, he arranged to go with her to the Sehumpert Hospital emer-’ gency room, but first they stopped by the Shreveport | ¡¿restaurant where she worked to pick up Buford’s pay check. The check was not available at that time. The.defen-' dant went back to get it while Buford was treated at the hospital.

At the emergency room, Buford was treated for a cut on her right thigh which was three to four inches deep and approximately eight inches long. She told Dr. James Nichols, the emergency room physician, that she received the wound at a party.

The wound became infected and Buford went back to the emergency room twice during the week. On Friday, Buford told Dr. Nichols that the defendant stabbed her during an altercation. Because the alleged offense occurred in Bossier City, hospital personnel summoned the Bossier City Police.

The defendant was arrested at the hospital. He signed a form granting consent to search the motel room. Blood was found on the mattress, sheets, and clothing in the room. Police also discovered a steak knife which appeared to have blood on the blade'. The defendant was charged with aggravated second degree battery.

The defendant was tried by a six-person jury on March 19, 2002. Buford testified at trial that she is a crack addict and met the defendant in a drug rehabilitation center. They began living together within several months. Buford stated that on the evening of this incident, she and the defendant were drinking and smoking crack. She went out to purchase more crack, but smoked it with friends before she returned to the motel.

| «When she arrived at the motel, Buford testified that the defendant was angry because she did not have either the crack or the money. She claimed that he hit her. She ran into the bathroom where she put her back against the door and her feet against the toilet. She said he was “ranting an.d raving that he’s going to kill” her and he pushed on the door so hard that the commode broke.

Buford further testified that after the defendant broke, into the bathroom, he dragged her out and continued to threaten to kill her. He accused her of prostitution. He picked up a knife from a dresser and while she was trying to push away from him, he aimed at her chest with the knife. She put up her legs and was stabbed in the top part of her right thigh.

She said she could feel the blood under her and that she got blood on some sheets and the mattress. She testified that the defendant dropped the knife and she put it under the bed.

Buford said that she begged the defendant to call 911, but instead he sat on top of her for about 45 minutes. He then got out a Bible and told her that she was evil and had caused him to do this to her. She continued to beg him to call 911 or someone to get her to a hospital. She claims that he told her he would rather she lay there and die because he would be in jail before the day was out. The defendant eventually called a friend, but that person said he did not have money for gasoline. The defendant allowed Buford to wrap a sheet around her leg. The defendant lay through the night with his leg around her so he would know if she got up to leave or call anyone.

RBuford said that she finally dozed off and that the next morning the defendant got her up. They were up, dressed, and ready to leave the motel at 8:00 a.m. She said he called his cousin to take them to pick up her pay check since the rent was due. That cousin took them to the Shreveport restaurant where she worked and left them there. Because her check was not ready, the defendant called another cousin, Dwayne Hardy, to drive them to Schum-pert Hospital.

Buford testified that Dr. Nichols treated her that day and that when asked how the injury happened, she told him she was at a party in Shreveport and “someone” stabbed her. Since she had waited so long to seek treatment, she said the wound could not be sewn. She was given a prescription for antibiotics. She claimed that the defendant would not allow her to fill the prescription.

Buford said she came back to the emergency room two days later and the wound “was infected real bad by Wednesday.” She was treated by a different doctor. By Friday, her leg was worse so she returned to the emergency room and was seen by Dr. Nichols again. She said she told him “exactly what had happened that Monday” and asked for help in getting away from the defendant.

Since the incident occurred in Bossier City, officers from the Bossier Police Department were alerted. Buford testified that she had given a statement to the police, but that she subsequently changed her story so the defendant “wouldn’t have to go and do any jail time.”

1 sOn cross-examination it was shown that she had written to the defendant indicating that the knife wound was the result of an accident where she had picked up the weapon and “he grabbed the knife and fell” onto her.

. Buford was also questioned about the information she had furnished the defense which was fashioned into a written statement. Buford said that she went to defense counsel’s office, but she refused to sign an affidavit declaring that the defendant accidentally stabbed her. Buford stated that members of the defendant’s family contacted her frequently seeking to have her drop the charges against him.

Buford acknowledged that she had given the defendant money and visited him while he was in jail. She claimed to have ceased these activities in November 2001. Buford said that at the time she wrote the letter to the defendant stating that her injury was accidental, the defendant had total control over her and he and his family influenced her to write the letter.

The state called Dr. Nichols who testified that he initially treated Buford for a deep laceration on the inner portion-of her right thigh. The cut was three to four inches deep and about eight inches long. The wound was close to several arteries in the leg, but none were severed. He said he saw her a few days later and the wound was severely infected. He stated that she had been back to the facility a few days before and had received treatment from a different doctor. He testified that she had received an injection of antibiotic as well as a prescription during that visit. He said that she had not gotten the prescription filled. According to Dr. Nichols, a social worker | fiassisted in getting the medicines for her. He indicated this was a routine practice for a patient who cannot afford the medication.

Stephen Luebbert, a Bossier City police officer, testified about the statement Buford had given him at the hospital on August 10, 2001. The statement tracked the sequence of events Buford related while she was on the witness stand. Lueb-bert indicated that the defendant was apprehended at the hospital by officers from the Shreveport Police Department, but Luebbert took custody of him and transported him to the Bossier City jail.

A Bossier City Police Department detective, Jeff Cole, testified for the state. He recounted Buford’s statement given to him at the hospital. That statement was corroborative of the testimony Buford had given at trial. He testified that Buford later gave a taped statement at the police station which was consistent with the one she gave at the hospital.

Detective Cole also testified that the defendant gave a statement. Cole said that right after being advised of his rights, the defendant was asked if he knew why he had been arrested. The defendant said, “Well, I guess she’s saying I stabbed her.” The defendant said on the night the victim was stabbed, she was smoking crack cocaine and had gone out to prostitute herself. He claimed that a guy that picked her up cut her leg.

Cole further testified that he asked the defendant about the condition of the motel room. The defendant said nothing should be wrong with the toilet. The defendant told Cole that there was only a “little flimsy knife that they used to, like, butter bread” in the motel room.

|7The state called Sergeant Fred Gregory of the Bossier City Police Department as a witness. He testified about the condition of the motel room. He said that there were sheets and a bedspread with what appeared to be “quite a bit” of blood on them. He also said the bathroom door was broken and the toilet was dislodged from the floor.

Another Bossier City police officer, Shannon Hodges, testified for the state regarding the condition of the motel room and the knife. This officer said there was a large bloodstain on the end of the bed. A comforter and sheets had blood stains. A rag and pair of shorts in the sink were “both covered with blood.” Hodges testified that he found a knife with blood on it under the bed and observed that the toilet was broken away from its base.

The Bossier- City Police Department officer who is responsible for evidence, Kevin Ross, testified about the chain of evidence regarding the knife that had been sent- to the Northwest Louisiana Crime Lab. It was admitted into evidence.

The defense called Kirby Gray, the father of Buford’s minor child. He testified that on the night of August 5, he went to the motel to pick up his daughter. He said the defendant called him to come pick the child up because Buford was not there.

The defendant’s mother, Brenda Sims, was also called by the defense. She testified that Buford told her that her son had cut her, but that he did not mean to hurt her. Sims stated that she had talked to Buford on the telephone numerous times.

| sHandy, the defendant’s cousin, testified that he gave Buford and the defendant a ride from the restaurant where Buford worked to the hospital. Handy, a registered nurse, testified that Buford was a little pale and “somewhat shaky.” He testified that she did not appear to be afraid of the defendant on that day. Handy also testified that Buford called him in August to ask for a ride to go see the defendant in jail.

At the conclusion of the trial, the jury convicted the defendant of the responsive verdict of aggravated battery. He was sentenced to serve ten years at hard labor. The defendant was granted an out of time appeal on November 19, 2003. He asserts that there was insufficient evidence upon which to base his conviction.

LEGAL PRINCIPLES

Although the record reflects that the defendant did not file a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments advanced by the defendant in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

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, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 19(La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 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.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

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, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

In State v. Williams, 35,911 (La.App.2d Cir.9/18/02), 828 So.2d 180, this court pointed out that:

When a witness is impeached, this simply means the jury, as the trier of fact, is presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining | inwhether or not to believe a witness’s trial testimony. State v. Dunn, 30,346 (La.App.2d Cir.2/25/98), 708 So.2d 512; State v. Bender, 598 So.2d 629 (La.App. 3d Cir.1992), writ denied, 605 So.2d 1125 (La.1992).

Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. A “dangerous weapon” includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3).

In order to convict the defendant of aggravated battery, the state must prove that the defendant intentionally used force or violence upon the victim, that the force or violence was inflicted with a dangerous weapon, and that the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. McGee, 37,919 (La.App.2d Cir.12/10/03), 862 So.2d 452.

DISCUSSION

The testimony that Buford gave at trial on March 19, 2002, regarding the scenario of the fight and the stabbing matched the details of statements she made to the doctor and two police officers on August 10, 2001. The police testified about the broken toilet and the location of the knife found in the motel room,.corroborating Buford’s testimony regarding her escape into the bathroom and hiding the knife under the bed after the attack.

The jury heard the victim’s testimony and observed her while she was cross-examined about her inconsistent statements and letter suggesting thatj^she was accidentally stabbed by the defendant. The jury heard her explain why she had originally told the doctor that a stranger had cut her and why she had written letters regarding the defendant’s lack of culpability.

The jury was also able to consider the defendant’s statement given to the police officer. When asked why he thought he had been arrested, he said, “Well, I guess she’s saying I stabbed her.” The defendant claimed that Buford went, out and engaged’in prostitution for drugs and that she had the cut on her leg when she returned to the motel room. The defendant denied having a knife that could do damage and denied having a broken toilet. The direct evidence proved the defendant’s statements about the knife and the toilet to be false.

The jury assessed Buford’s version of events related to the police and testified to at trial. She was found to be credible. The testimony presented by Buford and corroborated by the physical evidence in the motel room was sufficient for a rational jury to find that the defendant had the intent to harm Buford by stabbing her. The evidence is sufficient to show that the defendant intentionally used force or violence upon Buford by stabbing her with a knife which, in the manner used, was likely or calculated to cause death or great bodily harm. The jury obviously believed the victim when she said that the defendant was angry when she returned to the motel room in the early morning hours without drugs he had sent her out to get and that he stabbed her. We find that the evidence is sufficient to support the defendant’s conviction of aggravated battery.

| ^CONCLUSION

For the following reasons, we affirm the conviction and sentence of the defendant, Robert Charles Henson.

AFFIRMED.


source: Caselaw Access Project

author: It STEWART, J.

license: Public Domain

text:
    BOBBY AND RAY WILLIAMS PARTNERSHIP, L.L.P., Plaintiffs-Appellants v. The SHREVEPORT LOUISIANA HAYRIDE COMPANY, L.L.C., et al, Defendants-Appellees.
    No. 38,866-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      William D. Dyess, Natchitoches, for Appellants.
    William A. Lanigan, III, Shreveport, for Appellees, Margaret L. Warwick, Alton Warwick, Warwick Productions Inc., The Shreveport Louisiana Hayride Company, L.L.C.
    Before BROWN, STEWART and DREW, JJ.
   It STEWART, J.

In this continuing trademark dispute, Bobby and Ray Williams Partnership, L.L.P., and Bobby Williams, individually, (herein referred to together as ‘Williams”) appeal the denial of an exception of res judicata and an adverse judgment on a reconventional demand by The Shreveport Louisiana Hayride Company, L.L.C., Warwick Productions, Inc., Margaret Lewis Warwick, and Alton Warwick, (herein referred to collectively as the Warwicks”). For the following reasons, we vacate the judgment in part and affirm in part.

FACTS

Our recent opinion in Bobby and Ray Williams Partnership, L.L.P. v. The Shreveport Louisiana Hayride Co., L.L.C., et al., 38,224 (La.App.2d Cir.4/21/04), 873 So.2d 739, sets forth the contentious history and salient facts surrounding this dispute over rights to “The Louisiana Hayride” trademark. This part of the litigation involves the Warwicks’ reconventional demand for injunctive relief and damages due to Williams’ .alleged interference with their use of the mark. ■

The Warwicks alleged that the trademark had been'abandoned when Louisiana Hayride Productions, Ltd., Williams’ predecessor to the mark, ceased doing business in 1987, and that they were the first to then use the trademark in commerce at a date no later than January 16, 1992. The Warwicks further alleged that Williams has never used the trademark in commerce and that he has no recognizable federal or state trademark rights. In addition, the Warwicks alleged that Williams’ interference with their use of the trademark "has damaged their reputations, constituted dilution and | ^infringement of the trademark, and violated state law dealing with trademarks and unfair trade practices. The Warwicks filed a motion for summary judgment on their demand.

Williams opposed the motion for summary judgment and filed an exception of res judicata. Williams argued that the reconventional demand “is found on the same cause of action, demands the same thing, and is between the same parties and formed by them in the same quality as” the federal litigation which resulted in a settlement, consent judgment, and order of dismissal in 1997.

Following a hearing, the trial court denied Williams’ exception of res judicata and granted the Warwicks’ motion for summary judgment upon finding no genuine issue of material fact and finding the Warwicks entitled to both declaratory and injunctive relief. In rendering declaratory judgment, the trial court made the following findings:

1. Louisiana Hayride Productions, Ltd., abandoned the trademark when it ceased doing business in August 1987;
2. Warwick was the first to then use the trademark in commerce;
3. By virtue of being the first to use the trademark in commerce after its abandonment, Warwick obtained the right to be the exclusive user of the trademark;
4. The federal consent judgment allowed Williams the right to use the trademark subject to a concurrent use agreement that had not yet been con-fected by the parties;
5. Williams must obtain a concurrent use agreement before having any right to use the trademark; and
6. Williams’ right to now enter a concurrent use agreement with Warwick is a matter residing with the federal district court.

| oThe judgment enjoined Williams from using the trademark in any manner until a concurrent use agreement is confected, from interfering with or protesting the Warwicks’ use or enjoyment of the trademark, and from making any claim of ownership of the trademark.

Following this favorable judgment, the Warwicks dismissed their remaining claim for damages. Williams’ appeal of the trial court’s denial of his exception of res judi-cata and granting of the Warwicks’ motion for summary judgment is now before this court.

DISCUSSION

Res Judicata

Asserting that the Warwicks’ reconven-tional demand involved the same claims as in the prior federal litigation, Williams contends that the trial court erred in denying his exception of res judicata. Because the exception addresses the preclusive effect of a federal consent decree, we must first determine whether state or federal res judicata law applies.

Our state jurisprudence recognizes that federal law must be applied in determining whether a judgment rendered by a federal court has res judicata effect. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654 (La.1/16/96), 666 So.2d 624, (federal res judicata law applied to judgment by court which exercised federal question jurisdiction); Pilie & Pilie v. Graham, 547 So.2d 1305 (La.1989), (federal res judicata law applied to judgment by court which exercised diversity jurisdiction); McCollough v. Dauzat, 98-1293 (La.App. 3d Cir.3/3/99), 736 So.2d 914; and Gilbert v. Visone, 30,204 (La.App.2d Cir.2/25/98), 708 So.2d 496. Because the prior federal ^proceeding involved an exercise of federal question jurisdiction with pendant jurisdiction over state law claims, we find the federal res judicata law to be applicable in determining the preclusive effect of the consent judgment and dismissal.

Under federal res judicata law, also known as claim preclusion, a prior judgment bars an action on the basis of res judicata if the same parties were involved in both suits, the prior judgment was rendered by a court of competent jurisdiction, the prior decision was a final judgment on the merits, and both suits involved the same cause of action. Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir.1983); Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044 (5th Cir.1989); Terrebonne, supra. Under federal law, consent judgments freely negotiated by the parties have the full effect of res judicata. Bayou Fleet, Inc. v. Alexander, 234 F.3d 852 (5th Cir.2000), cert. denied, 532 U.S. 905, 121 S.Ct. 1228, 149 L.Ed.2d 138 (2001); In re Gibraltar Resources, Inc., 210 F.3d 573 (5th Cir.2000).

The first three elements of res judicata are not in dispute. The disputed issue is whether both suits involve the same cause of action. The critical issue in determining whether the same cause of action is involved in both suits is whether the actions are based on the same nucleus of operative facts. Travelers Ins. Co. v. St. Jude Hosp. Of Kenner, La., Inc., 37 F.3d 193 (5th Cir.1994), rehearing denied, 41 F.3d 666 (5th Cir.1994), cert. denied, 514 U.S. 1065, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995); Eubanks v. FDIC, 977 F.2d 166 (5th Cir.1992). This determination involves a transactional analysis that focuses on “the factual predicate of the Rclaims asserted, not the legal theories upon which the plaintiff relies.” Eubanks, 977 F.2d at 171. Res judicata bars all claims that were or could have been advanced in support of the cause of action during the former adjudication. Travelers Ins. Co., supra; Nilsen, supra.

Williams contends that the Warwicks’ reconventional demand involved the same parties, same cause of action or occurrence, and same demands as the prior federal litigation which resulted in a settlement agreement, consent decree, and order of dismissal in 1997. Williams asserts that the federal court pleadings included a claim for trademark infringement and that the litigation sought to determine the validity of the parties’ trademark rights. As such, these claims are now barred by res judicata. Williams contends that this dispute is governed by the settlement agreement and consent judgment, which he believes recognizes his rights to “The Louisiana Hayride” trademark.

The Warwicks contend that their recon-ventional demand sought to have the trial court determine the rights, status, and legal relations regarding “The Louisiana Hayride” trademark by examining the federal settlement agreement and related decrees. Moreover, the Warwicks assert that the demand sought relief for acts of harassment that occurred after the 1997 settlement agreement and that such acts are different transactions from any involved in the former federal litigation. For these reasons, they contend that the trial court properly denied the exception.

IfiOur review of the record, which includes the settlement agreement, consent decree, dismissal, and pleadings from the former federal litigation, convinces us that Williams’ exception of res judicata should have been granted as to some of the claims asserted by the Warwicks'in the reconven-tional demand. Contrary to the Warwicks’ assertion that their demand sought to have the trial court determine the parties’ rights regarding the mark by examining the federal settlement agreement and related decrees, we ■ find that much of the Warwicks’ complaint involves the same subject matter and is based on the same facts as the federal litigation. At the heart of the federal litigation was a determination of the parties’ respective rights to use of “The Louisiana Hayride” trademark. Included in the federal litigation were the Warwicks’ claims that the trademark had been abandoned, that the sheriffs sale to Williams did not convey the goodwill associated with the trademark, and that Williams had no substantive rights as he had not used, the mark in commerce or obtained. substantive rights in the mark through his- state registration. The War-wicks also claimed that they had been the first to use the mark in commerce after abandonment of the mark by Williams’ predecessor to the state registrations. The Warwicks relied, in part, on this same nucleus of operative facts in their reeon-ventional demand to have the trial court declare that they have the right to be exclusive user of the trademark. However, this same claim regarding the ultimate right to use the trademark was asserted in the federal proceeding and resolved when the federal proceeding was dismissed after the parties entered a voluntary settlement agreement and consent decree.

|7We find the Warwicks’ claim regarding the validity of the parties’ respective rights to “The Louisiana Hayride” trademark is now barred by res judicata. The federal litigation encompassed this same claim, which was settled by the parties. The settlement agreement and consent decree now govern the parties’ relationship and rights with regard to the trademark. Our finding requires that we vacate that part of the trial court’s judgment declaring that Louisiana Hayride Productions, Ltd., abandoned the trademark, that Warwick was the first to use the trademark in commerce after abandonment, and that Warwick thereby obtained the right to be the exclusive user of the mark. These declarations, which determine the Warwicks’ rights to the mark, constitute resolution of a claim that is barred by res judicata.

Summary Judgment

In their motion for summary judgment, the Warwicks alleged the 1997 settlement agreement “provided an opportunity for Williams to obtain a limited right to use the ‘Louisiana Hayride’ trademark for entertainment products only.” They further alleged that Williams refused to enter a concurrent use agreement, which was a condition of the settlement, and thereby lost the opportunity to use the mark or object to their use of the mark. The War-wicks sought summary judgment to enjoin Williams from interfering with or defaming their use of the trademark, from harassing their sponsors or partners, and from using the trademark. They submitted the 1997 settlement agreement and consent judgment, along with a number of affidavits and other exhibits, in support of their motion.

| ¡Williams contends that the trial court erred in granting the Warwicks’ motion for summary judgment. Williams asserts that the settlement agreement and consent judgment recognize his rights to “The Louisiana Hayride” trademark. He also asserts that there are genuine issues of fact as to why no concurrent use agreement has been confected.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact for trial and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/80/00), 764 So.2d 37. The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” La. C.C.P. art. 966(A)(1). A de novo review is conducted to determine whether summary judgment is appropriate. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

We have reviewed the numerous exhibits submitted by the parties in support of and in opposition to summary judgment and find that the federal settlement agreement, consent judgment, and order of dismissal are the -keys to this matter. The consent judgment signed by the federal district judge on August 11, 1997, sets forth the parties’ settlement agreement as follows:

IT IS ORDERED, ADJUDGED AND DECREED, that the Plaintiffs, THE SHREVEPORT LOUISIANA HAYRIDE COMPANY, L.L.C., WARWICK PRODUCTIONS INC., MARGARET LEWIS WARWICK, AND ARTHUR ALTON WARWICK, shall retain all their rights in all classifications and categories in and to their previously registered United States trademark known as, “THE SHREVEPORT LOUISIANA HAYRIDE.”

LIT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the Defendants, BOBBY AND RAY WILLIAMS PARTNERSHIP, shall have the exclusive right to ownership of a federally registered trademark “THE LOUISIANA HAYRIDE” for entertainment products only, which are defined as any article or good in whatever media that currently exist or shall exist hereafter, which may be sold, leased, or licensed in the stream of commerce and which contains a representation, expression, a fixation or other embodiment derived from one or more of the assets in whole or in part, owned or otherwise controlled by BOBBY AND RAY WILLIAMS PARTNERSHIP or its assigns, subject to concurrent use agreement between BOBBY AND RAY WILLIAMS PARTNERSHIP and THE SHREVEPORT LOUISIANA HAYRIDE COMPANY, L.L.C. Further, BOBBY AND RAY WILLIAMS PARTNERSHIP is granted the exclusive right to register with the United States Patent and Trademark Office the trademark “THE LOUISIANA HAYRIDE” as a concurrent registration limited to entertainment products only, as defined above.

This decree recognizes the Warwicks’ rights to all classifications and categories of their federally registered trademark (“The Shreveport Louisiana Hayride”) and provides that Williams shall have an exclusive right to a concurrent federally registered “Louisiana Hayride” trademark for entertainment products only, subject to a concurrent use agreement. The phrase “subject to” is. defined by Black’s Law Dictionary, p. 1425 (West 6th Edition 1990), as meaning “(Z)iable, subordinate, subservient, inferior, obedient to;- governed or affected by; provided that; provided; answerable for.” No concurrent use agreement has been confected by the parties. Under the settlement, Williams’ trademark rights are subject to the concurrent use agreement. A fair reading of the clear language of the settlement and consent decree leads to the conclusion' that a concurrent use agreement must be con-fected for Williams to take advantage of the limited trademark rights set forth in the ágreement. The trial court correctly found that Williams must obtain a concurrent use agreement before having any right to use the trademark.

| mWilliams asserts that there are genuine issues of fact as to why no concurrent use agreement has been confected. We note that the order of dismissal signed by the federal district court on July 4, 1997, states that “the court shall retain jurisdiction of this matter to enforce the terms of the settlement agreements entered into between the parties.” We find that any issue concerning the parties’ failure to uphold or abide by the terms of the settlement, including their failure to confect a concurrent use agreement, is a matter for the federal district court to address. We are limited to review of the' settlement provisions- to determine whether the War-wicks are entitled to the injunctive relief sought in their reconventional demand.

Williams also argues that the settlement did not affect his state trademark registrations and that the state trademark certificates are proof of his right to the trademark. However, the mere registration of a trademark confers only procedural rights; registration does not confer or create substantive ownership rights in the mark. Givens Jewelers, Inc. v. Givens, 380 So.2d 1227 (La.App. 2d Cir.1980), writ denied, 383 So.2d 800 (La.1980). Substantive rights arise from use of the mark. Id. La. R.S. 51:211(H) states that a trademark is deemed to be “used” under the following circumstance:

(1) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto and such goods are sold or otherwise distributed in the state, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this state.

In Bobby and Ray Williams Partnership, L.L.P. v. The Shreveport Louisiana Hayride, L.L.C., supra, this panel concluded that Williams failed |nto allege that he placed or displayed the trademark on goods sold or services performed in this state for purposes of demonstrating the required use of the mark under La. R.S. 51:211(H). Now we find that this record includes no showing of the required “use” of the trademark by Williams. In response to the trial court’s questioning to find an issue of fact for trial as to Williams’ use of the trademark, Williams’ attorney admitted that he had no “reference to any specific date and time other than that he (Williams) attempted to market his product.” From our review of the record, we find that Williams failed to come forward with evidence on summary judgment to show an issue for trial as to his use of the trademark for purposes of establishing substantive rights in the mark.

We find that the trial court did not err in granting summary judgment and awarding injunctive relief. Relief was warranted by the terms of the federal settlement agreement and by the lack of any genuine issue for trial on the Warwicks’ reconven-tional demand.

CONCLUSION

For the reasons stated, we reverse the trial court’s denial of Williams’ exception of res judicata as to that portion of the reconventional demand seeking to litigate the validity of the parties’ respective trademark rights. We otherwise affirm the grant of summary judgment and in-junctive relief. Costs are to be divided equally between the parties.

VACATED IN PART AND AFFIRMED IN PART.

      . Williams also refers to the federal district court's memorandum ruling of April 8, 1999, as recognition of his trade mark rights. Our review shows this ruling to be limited to the issue of whether a television program is an entertainment product for purposes of the settlement agreement. It is not determinative of the scope of Williams' trademark rights.


author: | RASKINS, J.

text:
    STATE of Louisiana, Appellee v. Johnny D. WILLIAMS, Appellant.
    No. 38,862-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Lavalle B. Salomon, Monroe, for Appellant. . ,

      Jerry Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   | RASKINS, J.

The defendant, Johnny D. Williams, appeals as excessive his sentence to 30 years at hard labor, without benefit of parole, probation, or suspension of sentence, following his guilty plea to armed robbery. For the following reasons, the conviction and sentence are affirmed.

FACTS

In the early morning hours of November 4, 1999, John William Gaines was found dead, inside the liquor store where he worked, from a single gunshot wound to the head. Earlier, the victim’s mother phoned him to say that she would pick him up at 11:00 p.m. When she arrived, he failed to come to the door of the store. She left and later called the store, but got no answer. She alerted police who found the drive-through window and the back door of the store open. The victim’s body was found inside. Money and merchandise were missing as well as the tapes from the security cameras.

Later that morning, a witness contacted the police and said that she had seen the defendant and Walter Moore, Jr. behind the liquor store the night before. Moore and the defendant were located and taken in for questioning.

The defendant cooperated with police and admitted his part in the robbery. He said that he and Moore agreed to commit the armed robbery of the liquor store. After entering the store late at night, the defendant locked the front door, kicked in the door to the office, and took tapes from the surveillance cameras. In the meantime, Moore killed the victim. They loaded money and liquor into a duffle bag and fled the scene. TheRdefendant helped the police locate some of the stolen items which he and Moore hid immediately after the robbery. According to the defendant, when the robbery was planned, he did not know that the victim would be killed.

In November 1999, the defendant was charged by grand jury indictment with first degree murder and conspiracy to commit armed robbery. Following plea negotiations, the original charges against the defendant were dismissed in exchange for his plea of guilty to one count of armed robbery.

On October 8, 2003, the defendant was sentenced to serve 30 years at hard labor without benefit of parole, probation, or suspension of sentence. A timely motion for reconsideration of sentence was denied. The defendant appealed, claiming that the sentence is excessive, that the trial court did not adequately articulate its reasons for the sentence or consider mitigating factors sufficiently, and the trial court should have considered an alternative or significantly less harsh sentence.

LEGAL PRINCIPLES

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983);3 State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for the sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Herrington, 32,858 (La. App.2d Cir.12/8/99), 749 So.2d 862. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jenkins, 38,534 (La.App.2d Cir.5/12/04), 874 So.2d 368.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33, -111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. Additionally, a plea bargain which brings about substantial benefit to a defendant is a legitimate consideration in sentencing. State v. Herrington, supra.

The second prong examines whether the sentence imposed is constitutionally excessive which depends upon the circumstances of the case and the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense and is nothing more than purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980),4 A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

DISCUSSION

In this case, the record shows that the trial court considered the factors enumerated in La. C. Cr. P. art. 894.1. Prior to imposing sentence, the court considered a presentence investigation report, letters submitted on behalf of the defendant, the facts of case, and the defendant’s cooperation with investigators and at the trial of his co-defendant. The court noted that the defendant was a youthful offender. The court acknowledged that the defendant had a juvenile record, but stated that fact was not. considered in sentencing. In mitigation, the court acknowledged that the defendant, did not have an adult criminal record, but noted that, because the defendant was only 18 years old when, the present offense occurred, he had not had time to amass an adult criminal record. The court stated that the defendant did not know that the victim would be killed when the armed robbery was planned.

The court said that, having. considered the sentencing guidelines, it determined that the defendant, who faced a sentencing range of ten to 99 years without benefits, was in need of treatment in a custodial environment. |fiThe court also found that there was an undue risk of a repeat offense. The court stated its belief that a lesser sentence would deprecate the seriousness of the offense. The defendant received leniency from the state by not being charged with murder. The court considered the present offense, which involved taking a loaded firearm into a place of business, to be an extremely serious crime.

The court noted there was no provocation for these offenses; the victim did not induce or facilitate the crimes. The defendant came from an intact family. His social history and background did not predict this kind of conduct. The court noted that the victim’s family had made a nonbinding suggestion that a 25-year sentence would be appropriate.

The defendant made a statement in which he said he was involved in this matter because he had needed money at the time. He claimed to have two children and expressed remorse.

On this record, we do not find constitutional error. The defendant was exposed to a sentencing range of no less than ten years to no more than 99 years under the amended charge. The record shows the trial court carefully evaluated the facts and circumstances of this matter at great length before delivering the sentence. The sentence is lawful, less than one-third of what could have been imposed, and is not grossly disproportionate to the severity of the offense of conviction. Equally, the sentence is not shocking to our sense of justice.

Particularly in light of the seriousness of this offense and the loss of life that occurred, the trial court did not abuse its discretion in the |fiimposition of this sentence. The assigned errors are without merit. The sentence complained of is not constitutionally excessive.

CONCLUSION

For the reasons stated above, the conviction and sentence of the defendant, Johnny D. Williams, are affirmed.

AFFIRMED.

      . Moore was convicted of second degree murder and given the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. State v. Moore, 38,444 (La.App.2d Cir.6/23/04), 877 So.2d 1027.


author: |-i GASKINS, J.

text:
    Eric PATRICK and Alvin Hebert, Plaintiffs-Appellants v. Bobby J. POISSO, The City of Winnfield, Louisiana and ABC Insurance Company, Defendants-Appellees.
    No. 38,841-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Deeuir & Clark, by Winston G. Deeuir, Sr., for Appellants.
    Hudson, Potts & Bernstein, by Jay P. Adams, Monroe, for Appellee City of Winnfield.
    Before BROWN, STEWART and GASKINS, JJ.
   |-i GASKINS, J.

The plaintiffs, Eric Patrick and Alvin Hebert, appeal a trial court decision granting summary judgment in favor of the City of Winnfield (Winnfield), dismissing their claims for assault and battery allegedly committed by a Winnfield police officer, Bobby J. Poisso. For the following reasons, we affirm the trial court judgment.

FACTS

At the time of this incident on November 26, 1989, the plaintiffs were students at Grambling State University. That Sunday evening, they were returning to school from New Orleans in Mr. Patrick’s automobile which had Ohio license plates. The lights on the vehicle would only operate on high beam. Mr. Patrick stated that he tried to pass vehicles to avoid driving behind them with his bright lights on. Bobby J. Poisso, a police officer for the City of Winnfield, was off duty, in his private vehicle, returning from a trip to south Louisiana with his wife and two small children.

Mr. Patrick ended up behind Mr. Poisso with his bright lights on. At one point, Mr. Patrick passed Mr. Poisso and continued on his journey. Mr. Poisso stopped briefly at his parent’s home, then continued north. Mr. Patrick again came up behind Mr. Poisso with his bright lights on. Mr. Patrick passed Mr. Poisso again near Dodson, Louisiana, approximately ten miles north of Winnfield. When Mr. Pois-so flashed his bright lights, Mr. Patrick made a gesture that he contends was meant to prompt Mr. Poisso to dim his lights.

Mr. Poisso became very angry and attempted to stop Mr. Patrick. Mr. Poisso drove along-side Mr. Patrick’s vehicle, displayed his police badge, and 19.ordered Mr. Patrick to pull over. Both men got out of their vehicles. Mr. Hebert remained in the car. Mr. Poisso was armed with a gun and a flashlight.

Mr. Patrick alleged that Mr. Poisso cursed, shouted racial insults and threats, and struck him in the face with either the gun or the flashlight, causing severe injury and the permanent partial loss of vision in one eye. Mr. Poisso then smashed one of the headlights on Mr. Patrick’s car and mutilated his Ohio license plate. Mr. Patrick claims that Mr. Poisso threatened Mr. Hebert, telling him to remain in the vehicle. Mr. Poisso left the scene.

In 1990, Mr. Patrick and Mr. Hebert filed the present suit against Mr. Poisso, the City of Winnfield, and ABC Insurance Company. The plaintiffs claimed that Winnfield was on notice of Mr. Poisso’s dangerous propensities and his treatment of non-white persons. They asserted that Winnfield was negligent in hiring and training Mr. Poisso and that he acted in the course and scope of his employment in this matter, making Winnfield vicariously liable for his actions.

On June 20, 2003, Winnfield filed a motion for summary judgment, asserting that Mr. Poisso’s actions did not occur during the course and scope of his employment as a Winnfield police officer. Winnfield maintained that this was a personal dispute unrelated to Mr. Poisso’s official duties. The plaintiffs filed an opposition to the motion for summary judgment, claiming that Mr. Poisso’s actions occurred in the course and scope of his employment and that he was acting in furtherance of his | «employer’s objectives when he damaged the plaintiffs. They contended that the damage occurred only because the plaintiffs recognized Mr. Poisso as a police officer. According to the plaintiffs, Winnfield was negligent in the hiring and training of Mr. Poisso. They reasoned that he could not have used his badge to pull them over if he had not been hired by Winnfield. They urged that no harm would have occurred if Mr. Poisso had been properly trained by Winnfield.

On January 5, 2004, the trial court granted summary judgment in favor of Winnfield, dismissing the plaintiffs’, claims against it. In finding that Mr. Poisso was not acting in the course and scope of his employment, the court stated that the use of the badge to pull the plaintiffs over was not determinative. Further, the court found that the incident did not take place in the city limits of Winnfield. On January 30, 2004, the matter was certified as a final judgment.

The plaintiffs appealed, arguing that the trial court erred in the standard used in granting Winnfield’s motion for summary judgment. They also contend that the trial court erred in finding that Mr. Poisso acted outside the course and scope of his employment and in dismissing the claim of negligent hiring against Winnfield.

SUMMARY JUDGMENT — COURSE AND SCOPE OF EMPLOYMENT

In essence, the plaintiffs contend that the trial court erred in granting summary judgment in this matter because there are disputed issues of material fact. The plaintiffs point out that Mr. Poisso was a police officer, he used his badge to make the traffic stop, he identified himself as a police |4officer, and the plaintiffs would not have stopped otherwise. Because Mr. Poisso stopped Mr. Patrick for the traffic offenses he witnessed, the plaintiffs contend that Mr. Poisso was acting in the course and scope of his employment. Therefore, the plaintiffs assert that there is a disputed issue of material fact as to whether Mr. Poisso was acting. in the course and scope of his employment.

The plaintiffs also argue that the issue of whether Mr. Poisso was acting in the course and scope of his employment is a factual issue, not to be decided on a motion for summary judgment.

Appellate courts review summary judgments de novó under th'e same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991).

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact,. and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966A(2); Magnon v. Collins, 1998-2822 (La.7/7/99)/739 So.2d 191; Stacy v. Minit Oil Change, Inc., 38,439 (La.App.2d Cir.5/12/04), 874 So.2d 384.

| rA 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. Garsee v. Bowie, 37,444 (La.App.2d Cir.8/20/03), 852 So.2d 1156.

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. 966C(2).

Once the mover makes a prima facie showing that there is no genuine issue of material fact, the opponent must produce factual support to avert the sum-maty judgment. Garsee v. Bowie, supra.

The party opposing summary judgment cannot rest on the mere allegations of his pleadings,, but must show that he has evidence which could satisfy his evidentiary burden of proof at trial. If he does not produce such evidence, then there is no genuine issue of. material fact and the mover is entitled to summary judgment. Gar-see v. Bowie, supra.

On such a showing, summary judgment procedure may resolve a claim of vicarious liability arising from the intentional tort of an employee, allegedly acting within the course and scope of employment. Wearrien v. Viverette, 35,446 (La.App. 2 Cir. 12/5/01), 803 So.2d 297; Eichelberger v. Sidney, 34,040 (La.App.2d Cir.11/3/00), 771 So.2d 863, writ denied, 2000-3476 (La.2/9/01), 785 So.2d 827; Dickerson v. Piccadilly Restaurants, 1999-2633 (La.App. 1st Cir.12/22/00), 785 So.2d 842; Pye v. Insulation Technologies Inc., 1997-237 (La.App. 5 Cir. 9/17/97), 700 So.2d 892, writ denied, 1997-2571 (La.12/19/97), 706 So.2d 461; Stacy v. Minit Oil Change, Inc., supra.

An employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of his employment. La. C.C. art. 2320; Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994; Orgeron on Behalf of Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224. The course of employment refers to time and place. The scope of employment test examines the employment-related risk of injury. For the employer to be vicariously liable, the tortious conduct of the employee must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Stacy v. Minit Oil Change, Inc., supra, and cases cited therein. An employer is not vicariously liable merely because its employee commits an intentional tort on the business premises during working hours. Scott v. Commercial Union Ins. Co., 415 So.2d 327 (La.App. 2 Cir.1982); Stacy v. Minit Oil Change, Inc., supra.

In LeBrane v. Lewis, 292 So.2d 216 (La.1974), the court articulated four factors in holding an employer hable for its supervisor’s actions in stabbing a fellow employee:

|7(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

The supreme court has subsequently held that not all four of these factors need be met to impose liability. Miller v. Keating, 349 So.2d 265 (La.1977); Stacy v. Minit Oil Change, Inc., supra. A finding of course of employment, factors (3) and (4), without more, is insufficient to impose vicarious liability. A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Stacy v. Minit Oil Change, Inc., supra.

Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective. Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Duplantis v. Dillard’s Department Store, 2002-0852 (La.App. 1st Cir.5/9/03), 849 So.2d 675, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350.

The mere display of a badge and the representation as a police officer, without more, are insufficient to establish employment-rooted conduct. Brasseaux v. Town of Mamou, 1999-1584 (La.1/19/00), 752 So.2d 815. See also Doe v. Louisiana Municipal Association, 99-539 (La.App. 5th Cir. 10/26/99), 746 So.2d 179; Russell v. Noullet, 1998-0816 (La.12/1/98), 721 So.2d 868.

The plaintiffs have failed to show that a genuine issue of material fact exists as to whether Mr. Poisso was acting in the course and scope of his employment, making Winnfield vicariously liable for his actions in this case. Mr. Poisso was employed as a police officer for Winnfield. He stopped Mr. Patrick’s vehicle approximately ten miles outside Winnfield as the parties were traveling north, away from town. Mr. Poisso was not on duty at the time. There is no showing that Mr. Poisso had a duty to stop motorists outside the city limits of Winnfield for driving offenses, that he intended to ticket or arrest Mr. Patrick, or that he had the authority to do so. The record fails to show that Mr.- Poisso’s actions were motivated by his employment, duties, or service to Winn-field. He acted solely based upon his own personal motives.

No genuine issue of material fact exists which would allow the plaintiffs to sustain their burden of proof at trial on their vicarious liability claim. The tort allegedly committed. against the plaintiffs was not primarily rooted in Mr. Poisso’s employment, was not incidental to the performance of his duties as a Winnfield police officer, did not occur on the employer’s premises, and did not occur during his hours of employment. Nothing in the record shows that Mr. Poisso was serving the interests of Winnfield when this incident occurred. As noted by the trial court, the use of his badge to pull the plaintiffs over is not sufficient to establish vicarious liability on the part of Winnfield. Accordingly, we find that the trial court was correct in | finding that Winnfield was not vicariously liable for Mr. Poisso’s actions and in granting summary judgment in favor of Winn-field.

NEGLIGENT HIRING

The plaintiffs argue that the trial court erred in finding that Winnfield was not liable for the negligent hiring of Mr. Poisso. They contend that Winnfield failed to present evidence of the training, evaluation, or screening of Mr. Poisso. They urge that the entire record is filled with inappropriate police action on his part. The plaintiffs conclude that there are no objective facts upon which the trial court could, have concluded that the claim of negligent hiring should be dismissed as a matter of law.

Winnfield acknowledges that this argument was not specifically addressed by the trial court in its reasons for judgment. However, it contends that it cited to the court cases on the issue of negligent hiring and that the court indicated that it considered them. Winnfield claims that the court was not required to give reasons for its decision to grant summary judgment. Therefore, failure to discuss this issue is not significant.

To prevail on a negligence claim under La. Civil Code arts. 2815 and 2816, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). Roberts v. Benoit, 605 So.2d 1032 (La.1991). A negative answer to any of the above inquiries will result in the determination of no liability. Smith v. Lafayette Parish Sheriff's Department, 2003-517 (La.App. 3d Cir.4/21/04), 874 So.2d 863.

Although the trial court made no explicit findings regarding this argument, our review of the documents submitted shows that the plaintiffs have failed to demonstrate a genuine issue of material fact regarding Winnfield’s hiring of Mr. Poisso. As stated earlier, this was simply a personal attack unrelated to Mr. Poisso’s employment with Winnfield. Nothing in the record shows that Winnfield had any notice that an incident of this nature might occur. Mr. Poisso had never been arrested or charged with any crime prior to this incident. There is also no showing that any-training or lack thereof contributed to this incident in any way. The plaintiffs have failed to produce factual support to subvert the summary judgment.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court, granting summary judgment in favor of the City of Winnfield, dismissing the claims of the plaintiffs, Eric Patrick and Alvin Hebert, arising from a personal attack committed by Bobby J. Poisso, a Winnfield police officer. Costs in this court are assessed to the plaintiffs.

AFFIRMED.


author: h CARAWAY, J. hMOORE, J.,

text:
    STATE of Louisiana, Appellee v. Glenn Ray BANNISTER, Appellant.
    No. 38,967-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      - Karen Godail Arena, Paula Corley Marx, Lafayette, Louisiana Appellate Project, for Appellant.
    Terry R. Reeves, District Attorney, James E. Lewis, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   h CARAWAY, J.

A jury convicted Glenn Bannister of possession of a firearm by a convicted felon in violation of La. R.S. 14:9,5.1. For the conviction, Bannister received a fifteen year hard labor sentence without benefit of parole, probation or suspension of sentence. Bannister appeals his conviction and sentence arguing that the evidence was insufficient to support the conviction, the state prejudicially utilized other crimes evidence and the imposed sentence is excessive. Finding no reversible error, we affirm Bannister’s conviction and sentence.

Facts

While putting up game fencing on his Winn Parish property on the morning of November 10, 2002, Bill Busbice encountered Bannister on a broken down three-wheeler. Busbice asked what Bannister was doing on his property and informed Bannister that he was trespassing. According to Busbice, Bannister identified himself and said he was hog hunting. Busbice noticed Bannister was armed with a “lever action, thirty-thirty on a strap,” and was dressed for hunting. Busbice assisted Bannister in getting the three-wheeler out of a ditch. The two departed amicably, but Busbice filed a trespassing report with the Winn Parish Sheriff. The Sheriff lodged a complaint with the Louisiana Department of Wildlife and Fisheries. An agent with that department investigated the report and interviewed Bannister who gave three different versions of the event. At first Bannister denied the event completely. He then claimed that he was on property belonging to his wife or mother. Finally, Bannister admitted to being on Busbice’s [ 2property but denied possessing a gun, instead claiming that he was carrying a large stick on a rifle strap. Bannister identified the stick but told the agent that the rifle strap was no longer in his possession because somebody had borrowed it from him. Bannister was then charged with three hunting without a license violations. Thereafter, an arrest warrant was issued for Bannister for the present firearm offense because of his pri- or conviction for sexual battery.

Sufficiency of the Evidence

When issues are raised on appeal both as to the 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.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

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 |3the 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, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

To prove a violation of La. R.S. 14:95.1, the State must show the defendant was in possession of a firearm and is a convicted felon. State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995.

After trial, Bannister filed a motion for new trial claiming the evidence was insufficient to convict him of possession of a firearm because the conviction was based solely upon the testimony of Busbice whose testimony was contradicted by equally credible testimony. The trial court denied this motion. On appeal, Bannister re-urges this claim.

Bannister correctly points out that the sole evidence of his possession of a firearm was Busbice’s account of the event. At trial, Busbice clearly testified that Bannister admitted to hunting and was armed when Busbice came upon him on his property. While Bannister did not testify at trial, the defense presented the testimony of Bannister’s wife, Linda, and Lee Rhodes, a friend of Bannister. Rhodes testified that as he was coming off of his deer stand, Bannister rode by on a four-wheeler, going toward his house which was located approximately four miles from that location. Rhodes saw |4no gun on Bannister’s possession, but noticed that he had a walking stick. Bannister gave Rhodes a ride back to his truck. Rhodes testified he had never seen Bannister with a gun, but had seen him with the stick a couple of times. He also knew that Bannister did not own a three-wheeler.

Linda Bannister testified that her husband owns a four-wheeler but not a three-wheeler. On the day in question, she saw Bannister leave on his four-wheeler before lunch time. He did not have a weapon with him and does not own a rifle. Bannister’s wife stated that he does own a six or seven-foot long stick and carries it with him when, he rides his four-wheeler. The Bannisters offered to allow the officers, to search their home, but they refused.

We are unpersuaded by Bannister’s argument. Indeed, the state’s only evidence of Bannister’s possession of a gun was Busbice’s eyewitness account of. .the fact. However, Bannister’s conflicting and inculpatory accounts of the incident admitted facts and circumstances indicating that Bannister was hunting. Bannister’s statements also corroborated Busbice’s overall testimony. The jury obviously chose to accept Bannister’s testimony as true and remained unpersuaded by Linda Bannister’s and Rhode’s suggestions that Bannister carried a stick. Of course, it is always the function of the jury to assess the credibility of witnesses and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993). Where the trier of fact has made a rational determination,' an appellate court should not disturb it. ■ Even in the absence of internal contradiction or irreconcilable conflict with |Sphysical evidence, the testimony of one-witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. Id.

Bannister offered no other contrary eyewitness accounts of the encounter between Bannister and Busbice. The jury’s decision to believe Busbice is a credibility determination that this court will not disturb. Considering this eyewitness account, the remaining defense testimony proposing that. Bannister neither owned a gun nor a three-wheeler was removed in time and place from the actual event and was subject to an assessment of bias by the spouse and the acquaintance. Accordingly, we find the jury’s determination to be a rational one, sufficient to prove beyond a reasonable doubt that Bannister possessed a gun.

Other Crimes Evidence

In this case, the state specifically designated' a 1991 sexual battery conviction as Bannister’s previous felony in the bill of information. During trial, Bannister’s parole officer, Kelly Lawrence, testified regarding his knowledge of Bannister’s prior conviction for sexual battery. Lawrence testified that Bannister completed his parole for that offense on July 3, 1993. The prosecutor then asked the parole officer why Bannister still remained on parole. Defense counsel objected to the question and, outside the jury’s presence, argued that the state was attempting to present other crimes evidence which would prejudice the jury. The court overruled the objection allowing the testimony to continue. The prosecutor then re-urged the question of why Bannister was still on parole and Lawrence answered [ fithat Bannister was on parole until December 2008 for another felony offense. The second felony was not specifically identified in the testimony.

On appeal, Bannister takes issue with this exchange arguing that the State failed to give pre-trial notice pursuant to La. C.Cr.P. art. 720 of its intent to utilize this other crimes evidence at trial. Further, Bannister contends that he was prejudiced by the comment which portrayed him to the jury as a bad person who failed to change his life after completion of his parole on the 1991 offense. He argues that such a portrait encouraged the jury to convict him on character evidence alone and to disregard the lack of evidence to convict.

Evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. La. C.E. art. 404 B; State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Additionally, the Criminal Code makes direct or indirect remarks of another crime a ground for mistrial, as follows:

Art. 770. Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

La.C.Cr.P. art. 770(2).

Defendant’s status as a convicted felon is an element of the crime of possession of a handgun by a convicted felon. State v. Taylor, 95-0271 (La.App. 4th Cir.9/28/95), 662 So.2d 69, writ denied, 98-0231 (La.6/19/98), 719 So.2d 479; State v. Batiste, 96-2203 (La.App. 4th Cir.10/22/97), 701 So.2d 729, writ denied, 98-3094 (La.4/23/99), 740 So.2d 648. In cases where the defendant is charged with more than one felony listed in the bill of information as the predicate offenses, the courts have found that evidence of multiple felonies is admissible at trial as proof of an element of La. R.S. 14:95.1. State v. Sanders, 357 So.2d 492 (La.1978); State v. Willis, 36,759 (La.App.2d Cir.4/9/03), 843 So.2d 592; State v. Washington, 00-1542 (La.App. 5th Cir.2/14/01), 782 So.2d 639, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859; State v. Williams, 93-0251 (La.App. 4th Cir.5/26/94), 637 So.2d 1230.

In this case, in consideration of the above authority, the trial court’s ruling on the admissibility of Lawrence’s testimony allowed improper reference to another crime which was not listed in the bill of information as a predicate offense. It had no admissible relevance as permissible “other crimes” evidence under the Code of Evidence. The ground for mistrial was not urged to the trial court. Nevertheless, it is presented as error in this appeal and, despite the mandatory language of Article 770, is reviewable as a trial error subject to the harmless error analysis according to the ruling in State v. Johnson, supra. This court must therefore decide whether the error was harmless, i.e., whether the verdict actually rendered was surely unattributable to the error. Id.

In State v. Ball, 99-0428 (La.11/30/99), 756 So.2d 275, the Louisiana Supreme Court had occasion to discuss the inherent prejudice to a defendant in cases where a predicate felony is an element of the crime. The court held |sthat the ruling of the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) to allow the defendant to stipulate to the predicate offense in an attempt to avoid jury prejudice was not based upon federal constitutional principles and inapplicable in Louisiana. The court ruled that the name of the specific felony was required to be proven before the Louisiana jury under our firearm statute and concluded that the state cannot be robbed of the moral force of its case by a generic stipulation of felon status. In reaching this conclusion, the court observed “that any additional prejudice to defendant by proving to the jury the name of the prior conviction is minimal, that is, it is much less damaging than telling the jury the defendant is a prior felon.” Id. at 279. (Emphasis supplied).

What the court recognized in Ball was already present in this case before the trial court’s error allowing improper reference to the other unidentified felony. The inherent prejudice of the state’s evidence that Bannister was a felon for the prior crime of sexual battery was already before the jury as a proper element of proof of the state’s case. In other words, similar to the above statement from Ball, any “additional prejudice” by the reference to Bannister’s second, unidentified felony in this case was “much less damaging” than what the state had already proven regarding Bannister’s felon status from his sexual battery. Recognizing that inherent prejudice and attempting to lessen its force, defense' counsel admitted early on to the jury in the opening statement that Bannister was no “choir boy” and “did some bad things.” Thus, in measuring for harmless error in this 19case, it is very significant that prior felon status and its inherent prejudice was necessarily before the jury.

A thorough review of Busbice’s testimony reveals that he was not a resident of Winn Parish, but was. in the parish attending to some land that he owned. He was not acquainted with Bannister and his initial report to authorities was solely to protect his land from a trespasser engaged in unauthorized hunting, and not to report that the felony in question, unbeknownst to him, had occurred. As indicated above, Busbice’s testimony, as the only eyewitness to testify to the jury, was unequivocal in his identification of Bannister and the rifle which he viewed on Bannister’s shoulder.

Accordingly, we find the testimony of Busbice presented a strong case of guilt of Bannister’s possession of a firearm. That evidence and the inherent prejudice from the state’s proof of Bannister’s status as a prior felon convinces us that the verdict actually rendered was surely unattributable to the improper reference to the additional felony of the defendant. This assignment of error is without merit.

Excessive Sentence

In his final assignment of error, Bannister complains that the imposed sentence of fifteen years is excessive. Because he did not file a motion to reconsider the sentence, Bannister is relegated to having this court consider a bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

| í nWhether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. ,1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280.

Possession of a firearm by a convicted felon carries a sentencing range of ten to fifteen years imprisonment at hard labor without benefits. La. R.S. 14:95.1. Thus, Bannister received the maximum sentence of fifteen years at hard labor in addition to a $2,500 fine. Prior to sentencing, the trial court reviewed a pre-sentence investigation report noting Bannister’s sixth felony offender record which included aggravated assault, burglary, attempted and simple escape convictions. The court also observed that the underlying sexual battery conviction involved injury to another person. In light of this record, the court determined that Bannister was not a candidate Infer a minimum sentence. The court also noted that Bannister was in need of correctional treatment and that there was an undue risk that during a suspended sentence, Bannister was likely to commit another crime. The court further stated that any lesser sentence would deprecate the seriousness of the present offense.

On this record, we find no abuse of discretion in the trial court’s chosen sentence. A maximum sentence is appropriately tailored to this defendant who has a lengthy criminal record and obviously failed to benefit from prior leniency in sentencing. On these grounds, we affirm Bannister’s sentence.

The conviction and sentence are affirmed.

AFFIRMED.

MOORE, J., dissents with written reasons.

hMOORE, J.,

dissenting,

' While I agree with the majority opinion that the evidence in this case is sufficient to support the conviction, I cannot accept the majority’s analysis that “Bannister’s second, unidentified felony in this case was ‘much less damaging’ than what the state had already proven regarding Bannister’s felon status from his sexual battery,” citing State v. Ball, 99-0428 (La.11/30/99), 756 So.2d 275.

The prosecutor asked questions of the parole officer he knew would elicit the response that defendant was currently on parole for another offense:

Q. (Mr. Lewis) Mr. Lawrence, I believe that we left off with my question of why Mr. Bannister was still on parole. The reason I asked the question is because we don’t want to confuse the jury. He is not on parole at the present time because of the sexual battery charge. As you testified, that is already over with? Right?
A. That is correct.
Q. Is what he is on parole for now, a felony offense?
A. Yes.
Q. When does he come off parole for that felony offense?
A. His parole will expire 12/20/2008.
Q. 2008....

The majority agrees that the prosecution unlawfully brought up the second felony not alleged in the bill of information and not necessary to | ^establish an element of its case. The cleansing period had not run on the sexual battery felony. Where we disagree is whether the error in admitting this testimony was harmless.

By suggesting deliberately concise treatment of the additional unnamed offense, the prosecutor implied that much of significance was omitted. Sometimes what is left unspoken can be more damaging that what is spoken. The implications permitted in this case by not speaking the name of the felony are that the defendant is an habitual offender who committed an additional very serious crime, and since his prior felony was a sexual battery, the jury could reasonably speculate that he likely committed another sexual offense. Unlike Ball, supra, the unnamed felony in this instance was much more damaging since the jury had been told that the defendant was a convicted sex offender and he was now on parole and would be for many more years for the unnamed felony.

I cannot say that the verdict actually rendered was surely unattributable to the error. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94.

For this reason, I respectfully dissent.

      . On appeal, Bannister concedes that the state presented sufficient evidence to show he was a convicted felon.

      . The majority opinion states that in Ball, supra, the Louisiana Supreme Court ruled that the name of the specific felony was required to be proven before the jury under our firearm statute and that the state cannot be robbed of the moral force of its case by a generic stipulation a defendant of his felon status.