author: 1Chief Judge WILLIAM H. BYRNES, III.

text:
    STATE of Louisiana v. Jerry BENTLEY.
    No. 2002-KA-1564.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.

      Hary F. Connick, District Attorney, Claire A. White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De-fendani/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).
   1Chief Judge WILLIAM H. BYRNES, III.

STATEMENT OF CASE

On July 6, 2001, defendant was charged by bill of information with possession with intent to distribute cocaine. On August 21, 2001, a hearing on defense motions was held, following which, the trial court denied the motion to suppress evidence and found probable cause. On October 3, 2001, the state amended the bill of information to charge the defendant with distribution of cocaine. On October 15, 2001 a trial was held, and the jury found the defendant guilty as charged. On November 5, 2001, the trial court sentenced the defendant to five years at hard labor. On the same date, the state filed a multiple offender bill of information alleging the defendant to be a third felony offender. On May 16, 2001, a hearing on the multiple bill was held, following which, the trial court found the defendant to be a third felony offender and sentenced him to twenty years in the custody of the Department of Corrections. Defendant filed a motion to reconsider sentence and a motion to quash the multiple bill, both of which the trial court denied. Defendant’s motion for appeal was granted.

\ STATEMENT OF FACT

On May 9, 2001, near midnight, Sgt. Michael Glasser and Lieutenant Tami Brisset were conducting an undercover buy bust operation in the area of the St. Bernard Avenue and North Claiborne Avenue. The operation called for the officers to place themselves in a position to purchase drugs should the opportunity arise. Supporting units would then effect the arrest of the individual. The two officers were dressed in plain clothes and were driving a rental car.

While traveling slowly on Laharpe Street near the intersection of North Robertson, a man on a bicycle approached from the opposite direction. As he passed the car, the man yelled “Hey.” Sgt. Glas-ser slowed the vehicle to a halt and the man turned back, approached the driver’s side of the vehicle, and greeted the officers. Sgt. Glasser told the suspect that he was looking for two dimes or a twenty, referring to two pieces of crack cocaine valued at ten dollars each or one piece worth twenty dollars. The individual then spat two pieces of crack cocaine from his mouth and handed them to Sgt. Glasser. The sergeant then handed the man a twenty dollar bill, which had been previously photocopied.

After completing the transaction, Sgt. Glassser drove off and radioed to the supporting units that the suspect was behind him on Laharpe Street and provided a description. When the support units approached, the suspect recognized them as police and took flight. He was eventually apprehended in a parking lot in the area. The twenty dollar bill used in the transaction was recovered from the defendant. Sgt. Glasser and Lieutenant Brisset came into the parking lot and identified the suspect as the man from whom they had purchased the cocaine. Sgt. Glasser identified the defendant at trial.

I ^ERRORS PATENT

A review of the record for errors patent reflects that defendant received an illegal sentence. La. R.S. 40:967(B) as it existed at the time the offense was committed, required that a defendant serve the mandatory minimum term of five years without eligibility for parole. La.R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred in denying his motion for mistrial in reference to comments by the prosecutor during closing arguments. Defendant alleges that the arguments constituted a reference to other crimes as prohibited by La.C.Cr.P. art. 770(2), which provides:

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;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Despite the mandatory language of La.C.Cr.P. art 770, an improper reference to other crimes is a “trial error” and therefore subject to harmless error review. State v. Johnson, 94-1379, p. 2 (La.11/27/95), 664 So.2d 94, 96; State v. Robinson, 00-1050 (La.App. 4 Cir. 4/11/01), 784 So.2d 781.

|4Near the conclusion of the state’s rebuttal closing, the prosecutor made the following statement:

Do you want to uphold the law along with these police officers? That’s what it comes down to. They drew you a map: they told you what happened. If any of you think they weren’t straight with you then you heard something different than Mr. Myers (defense counsel) heard. Because he got up here and said, okay I’m not going to try and tell you this and that. It’s called, I’ll tell you a little bit, but I won’t tell you a lot, game that’s played. I’ll tell you he’s a drug dealer but I won’t tell you how many times he’s gone out there and done it before he finally got caught. [Emphasis added.]

Defense counsel objected and the objection was sustained. The state concluded its closing argument, the trial court instructed the jury, and deliberations commenced. Thereafter, defense counsel moved for a mistrial arguing that the prosecutor’s statement suggested that the defendant had done this before. In denying the motion for mistrial, the trial court noted to defense counsel that he had sustained the objection and that he would have been glad to give a curative instruction at the time the statement was made, but none was requested. Ordinarily, the failure to request an admonition or a mistrial when entering an objection, or after it is sustained, fails to preserve the alleged error for appellate review. See State v. Varnado, 97-2823, p. 19 (La.App. 4 Cir. 5/19/99), 737 So.2d 240, 252, citing State v. Matthews, 95-1245 (La.App. 4 Cir. 8/21/96), 679 So.2d 977.

Regardless, the state suggests that the prosecutor’s comment was not directed at the defendant but at defense counsel’s argument, and therefore, viewed in context, the statement was not improper. But the defendant counters, that in spite of the fact that the prosecutor was arguably suggesting to the jury that defense counsel’s arguments were less than forthcoming, the comment clearly invited the Injury to consider, or even suggested that the defendant had sold drugs in the past. Citing State v. Vanderlinder, 552 So.2d 1274 (La.App. 5 Cir.1989), the defendant contends that it was error to deny his motion for a mistrial. However, Vanderlinder was decided prior to the decision in State v. Johnson, swpra, wherein the Louisiana Supreme court declared that in spite of the mandatory language of La.C.Cr.P. art. 770, an improper reference to other crimes is subject to harmless error review. State v. Lewis, 2000-1897 (La.App. 4 Cir. 10/31/01), 800 So.2d 1077. Therefore, Vanderlinder is irrelevant to the instant case.

Assuming error, the inquiry shifts to whether the error was harmless beyond a reasonable doubt, that is to say, whether the verdict actually rendered in the trial was surely unattributable to the error. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Vale, 96-2953, p. 2 (La.9/19/97), 699 So.2d 876, 877; State v. Code, 627 So.2d 1373, 1384-85 (La.1993).

In State v. Lewis, 2000-1897 (La.App. 4 Cir. 10/31/01), 800 So.2d 1077, this court addressed a nearly identical situation as here. The defendant was apprehended in a buy bust operation after selling heroin to two undercover officers. After the sale, the defendant and a companion entered a grocery store where they were apprehended. During the prosecutor’s closing argument, he made the statement, “Lewis was in charge of this operation, providing what was needed by Mr. Collins to make his business go. And who knows how long this has been going on, selling. A couple of foils one time, a few foils another time.” Id., 2000-1897, p. 4, 800 So.2d at 1080. Based primarily on the strength of the evidence, this court determined that the error was harmless. In finding the error harmless, this |ficourt also relied on the fact that the trial court gave the standard instruction that the argument of counsel was not to be considered evidence when it charged the jury.

In the instant case, the defendant contends that because the record does not contain the trial court’s jury instructions, Lewis can be distinguished. Absent a showing that the jury was charged relative to the arguments of counsel, the error did not contribute to the verdict where the evidence against Bentley was overwhelming. Instead of trying to convince the jury that Bentley was not engaged in a drug transaction, defense counsel concentrated his closing argument on an effort to persuade the jury that, in spite of his client’s guilt, in view of the small amount of drugs involved, the jury should return a lenient responsive verdict. Appellate counsel did not raise any evidentiary issue on appeal.

Defendant contends further that Lewis can also be distinguished because in the instant case, the prosecutor’s statements following the defense objection compounded the error:

I don’t like that. If you’re going to come up and ‘fess up at the end of trial after we’ve proven our case, just go the whole way. Go the whole way. That’s what I’m trying to do right now. Go the whole way with you, and tell you to find him guilty as charged.
Because like the big drug dealer he was talking about, he’s doing the same thing. Maybe not as much. But you know what? It’s still the same thing. And that’s why you should care. Because when we get right down to it it’s kind of a battle between getting you to care enough. He’s trying to tell you don’t care too much; I’m trying to tell you to care as much as the law tells to you care, as much as the law allows you to care.
And then we’ll leave it to the judge to decide what the appropriate penalty is in this case. And again I thank you for your service.

|7There are two reasons why this Court finds this portion of the prosecutor’s closing statement unobjectionable: First, the defense made no objection to it when it was made, raising the issue for the first time on this appeal; and second, placing it in the context of the closing statement as a whole, it is evident that it is a reference not to “other crimes” or to the immediately preceding objectionable paragraph, but to the prosecutor’s unobjectionable statement just prior to the objectionable statement: .

The law does not specify any amount. It doesn’t say, well, a drug dealer is somebody who’s got big fat rocks and a Lexus and whatever else. The law just says no dealing in drugs, no possession of drugs. We don’t want it and we know why. I don’t need to go into any of that. We all know why. I don’t know, maybe some drug dealers drive Lexus’; some drug dealers drive a wide style bike. But you know what? They all have something in common. They are out there breaking the law. They are out there breaking your laws that you elected people to pass.
And that’s what it’s really about. Do you want to let the law breakers skate on by on sympathy because he’s not the biggest baddest drug dealer out there? [Emphasis added.]

What the prosecutor is saying is that the law against the distribution of cocaine under which Bentley was charged does not require proof of large amounts of cocaine or proof of repeated sales. This is a reasonable and unobjectionable response to the statements made by defense counsel in his closing statement in support of his argument that the crime with which the defendant was charged |sshould be reserved for major drug pushers in an attempt to get the jury to return a responsive verdict of a lesser offense:

Look at the evidence in this case. These are two little crumbs of cocaine, that if anything probably came from what used to maybe be something that somebody got from a drug dealer that’s out there trying to hustle and make a buck to support a habit. This is not a five to 30 year distribution of drugs, thugs standing on the corner with a pocketful of drugs and a pocketful of money and a gun slinging drugs on the corner.
If anything this is a crime of opportunity and should be punished that way.
The judge is going to read you a list, a rather long list of what is called responsive verdicts in case [sic]. And those are going to include attempt distribution of cocaine, simple possession of cocaine, and attempt simple possession of cocaine. And those aren’t there just for the Judge to read and spend five minutes talking about for no reason. They’re there for you all as a jury to consider, and to consider the possibility of finding the defendant guilty of those responsive charges, including the responsive charge of not guilty.
I’d asked you to give those some weight, to give some weight to the real facts of what’s going on here. This isn’t the 2000 Lexus that the thug drug dealer with gold teeth and a pocketful of money and drugs is riding round with. And Mr. Spano [the prosecutor] is going to tell you that doesn’t matter. And you know what? Under the law, the strictest reading of the law, you know what? He’s right; that doesn’t matter. [Emphasis added.]

In context, it can be seen that the prosecutor’s post objection statement is not a reference to other crimes, but is a response to the defense’s argument that, in spite of the fact that the defendant may technically be guilty of the crime of distribution of cocaine, his infraction was minor so that the jury should bring in a verdict of a lesser offense.

|9To warrant a mistrial, it is not sufficient for a comment to arguably point to a prior crime; rather, the comment must unmistakably point to evidence of another crime and unambiguously point to the defendant. State v. McNeil, 98-0954 (La.App. 4 Cir. 2/16/00), 753 So.2d 938. The prosecutor’s second statement does not point to a prior crime in the instant case.

The prosecutor’s reference to other crimes is harmless error in view of the overwhelming evidence of the defendant’s guilt, i.e. the reference to other crimes did not contribute to the verdict. The post objection statement made by the prosecutor immediately following his reference to other crimes was not an additional reference to other crimes, but was a reference to an earlier statement made by the defense. The defendant failed to object and preserve the issue for review on appeal.

The defendant bears the burden of proving that a mistrial is warranted based on a prejudicial comment. State v. McNeil, 98-0954 (La.App. 4 Cir. 2/16/00), 753 So.2d 938. The defendant failed to successfully carry that burden in the instant case. This finding precludes a review of the following two issues: (1) whether the defense’s motion for a mistrial was timely when it was raised after the jury began deliberations instead of at the time of the prosecution’s statement; and (2) whether the trial court should have admonished the jury.

| mThe assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that his twenty year sentence is excessive. The multiple bill reflects that the defendant was twice convicted of possession of cocaine: Once in 1992 and again in 1998. As a third felony offender, the defendant’s sentence of twenty years was the prescribed minimum under La. R.S. 15:529.1 A(l)(b)(n).

In State v. Lindsey, 99-3256 p. 4-5 (La.10/17/00), 770 So.2d 339, 342-43, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), the Louisiana Supreme Court summarized the current jurisprudence relating to the issue of sentencing below the statutory minimum of the multiple offender law. The court held that the habitual offender statute was constitutional and that the mandatory minimum sentences contained therein should be enforced unless unconstitutionally excessive under Article I, Section 20 of the Louisiana Constitution.

The standard set forth in State v. Dorthey, 623 So.2d 1276 (La.1993), requires affirmance of the statutory sentence unless it makes no measurable contribution to acceptable goals of punishment or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. A trial court may depart from the statutory minimum sentence only where there is clear and convincing evidence that would rebut the ^presumption of constitutionality, and such cases are rare. The burden is on a defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, a defendant must show by clear and convincing evidence that he is exceptional, which, in this context, means that, because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, 97-1906, p. 8 (La.03/04/98), 709 So.2d 672, 676-677. The burden of producing clear and convincing evidence is on the defendant.

Defendant argues that his sentence is constitutionally excessive in light of the fact that the circumstances of the offense, (i.e. that more drugs, a gun, or a large sum of money were not recovered) indicate that he was not a large scale dealer. Defendant further suggests that his previous history indicates that he is an addict who sold the drugs to support his habit.

In Johnson, the Louisiana Supreme Court reviewed the balance between the authority of the legislature and the judiciary. The Supreme Court also took into account the effect of the legislature’s multiple bill law on non-violent offenders and violent offenders:

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. See State v. Dorthey, supra at 1281 (Marcus, J., concurring); State v. Youngl, 94-1636 (La.App. 4th Cir. 10/26/95), 663 So.2d 5251 supra. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.
A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of | ^constitutionality. While the classification of a defendant’s instant or prior offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive. [Emphasis added.]
Id., 709 So.2d at 676.

The Supreme Court in Johnson overturned the less than twenty year minimum sentence imposed by the trial court and the court of appeal in spite of the defendant’s non-violent history, his drug use, and the exceedingly small amount of drugs involved, noting that even if no more than pipe residue were involved, the result would be the same. The Supreme Court indicated that had the defendant in that case been convicted of possession with intent to distribute, as was Bentley in the instant case, it would have been considered more serious. In contemplation of the laws enacted by the legislature, and considering the defendant’s non-violent history, his drug use, and the small amount of drugs involved, in the aggregate, these factors are not sufficient to prove clearly and convincingly that the defendant is “exceptional.” The defendant did not show that because of unusual circumstances, the defendant is a victim of the legislature’s failure to assign |13sentences that are meaningfully tailored to the culpability of the offender and the gravity of the offense.

Although no evidence was entered during the defendant’s sentencing hearing to indicate that the defendant is exceptional, the defendant requests on the basis of State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98) 723 So.2d 1013, and State v. Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00) 757 So.2d 872, that the case be remanded so that he may present evidence that the mandatory minimum sentence is unconstitutional as applied to him. As in Bums and Stevenson, Bentley was convicted of distributing a small amount of cocaine. Bentley is also similar to the defendant in Bums in that he has two prior convictions for possession of cocaine and no history of violent offenses. At trial, the defendant in Bums testified that he was addicted to cocaine. Bentley was ordered to undergo drug treatment in 1992 as a condition of his sentence. However, in both Bums and Stevenson, the defendants received life sentences. In Bums this Court stated that:

Whenever a defendant is faced with a mandatory life sentence as a multiple offender, heightened scrutiny is triggered when determining if defendant falls within those “rare” circumstances where a downward departure is warranted. [Emphasis added.]
Id., p. 8, 723 So.2d at 1019.

However, this Court prefaced that remark in Bums by distinguishing the defendant in that case from the defendant in Johnson, a distinction that demonstrates that Bentley, who was sentenced to twenty years in the instant case, should be treated like the defendant in Johnson who received the same twenty year sentence, rather than the defendant in Bums who received a life sentence:

| uHere the defendant has much more at stake than did the defendant in Johnson. In this case, the defendant will spend the rest of his life in jail because of the mandatory life sentence imposed.
Id., p. 8, 723 So.2d at 1019.

The defendant is not entitled to such “heightened scrutiny” in the instant case where the statutory minimum to which the defendant was sentenced was twenty years, not life.

Similarly, in Stevenson this Court, relying on State v. Randall, 98-1763 (La.App. 3 Cir. 6/9/99), 741 So.2d 852, placed great weight on the fact that a life sentence was involved:

A life sentence forever closes the door of hope that this young defendant might one day learn from his past mistakes and ready himself to become a productive participant in our society.[]
Stevenson, p. 5-6, 757 So.2d at 875.

State v. Briscoe also involves a life sentence. In State v. Davis, 2001-0392 (La.App. 4 Cir. 11/07/01), 801 So.2d 543, another mandatory life sentence case, this Court noted that:

[W]hen the defendant was sentenced the first time, the trial judge stated that although in four years on the bench he had never made a downward departure in sentencing, in this case he deemed the life imprisonment term excessive in these circumstances and reduced the sentence accordingly.

Id., p. 8, 801 So.2d at 548.

Contrary to Davis, the trial judge in the instant case made no indication that he felt that a deviation below the minimum was warranted. There is nothing comparably favorable to the defendant to be found in the record of the instant case. 11fiThe trial judge agreed "with defense counsel that the minimum was warranted.

Defense counsel at the multiple bill hearing of May 16, 2002, began his presentation with this statement: “Judge, I have no witnesses at this hearing.” The following colloquy took place between the trial judge and defense counsel within the presence of the defendant:

MR. MEYERS [defense counsel]:
Judge, I believe that the sentencing range as a third offender in this case would be 20 to 60 years. I would ask the Court, Judge, in light of the nonviolent nature of all of Mr. Bentley’s prior convictions and the fact that this is the only one that’s even a second class case to consider imposing the minimum sentence in this matter, and also note that Mr. Bentley was found guilty of distribution of one piece of cocaine.
In light of all of that I don’t believe that it would inure to anyone’s benefit, society’s, Mr. Bentley’s, or this Court’s to impose a sentence greater than the 20 years.
THE COURT:
The Court has reviewed the sentencing guidelines under 894.1 and agrees with Mr. Myers’ argument. And after considering the guidelines in particular the Court is going to impose the minimum sentence. It’s the minimum sentence I can impose under the law, which is 20 years in the Department of corrections as a third offender.

The trial court has a heavy burden in those instances where it chooses to deviate below the statutory minimum. Johnson, supra, Bastian, 96-2453 (La.12/13/96), 683 So.2d 1220, and State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669. In the instant case, the trial judge articulated sufficient reasons for the imposition of the mandatory minimum sentence, thereby obviating the necessity for the remand the defendant now requests. Burns, supra, p. 6-7, 723 So.2d at 1018.

In State v. Carter, 99-0779, p. 26 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 284, this Court concluded:

... Furthermore, defendant offered no evidence on his own behalf, as to any redeeming qualities he possessed. [Emphasis added.]
Under these circumstances, defendant has failed to present substantial evidence to clearly and convincingly show that the mandatory minimum life sentence under the Habitual Offender Law is excessive as applied to him. The record does not provide a suggestion that the sentence is unconstitutionally excessive as applied to defendant.

Carter places the burden on the defendant to show what his redeeming qualities might be and “to present substantial evidence that the minimum ... sentence under the Habitual Offender Law is unconstitutionally excessive as applied to him.” Id., p. 24, 773 So.2d at 284. At the multiple bill hearing in the instant case, the defendant did not provide mitigating circumstances when he had the opportunity. The trial judge expressed sufficient reasons for his sentencing decision. The sentence imposed, the statutory minimum, was far less than the maximum number of years permitted under the mandatory sentencing range.

DECREE

Considering the foregoing, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Comments must be viewed in light of the context in which they were made when determining whether mistrial is warranted. State v. McNeil, 98-0954 (La.App. 4 Cir. 2/16/00), 753 So.2d 938.

      . A reference to the following statement by the defense counsel:
      This isn’t the 2000 Lexus that the thug drug dealer with gold teeth and a pocketful of money and drugs is riding round with.

      . Contrast the lack of any objection by the defense to the prosecution’s post objection statement with the earlier immediate prosecution objection to the defense argument:
      MR. MEYERS [DEFENSE COUNSEL]:

      Now, let me move on to one other area. And I'm just going to keep this real short. Distribution of cocaine: Five years in the Department of Corrections, minimum. Five years in the Department of Corrections. Five years of your life up to a maximum of 30 years of your life in the Department of Corrections.
      The law wasn't designed for little guys running around just acting stupid. The law was—
      MR. SPANO [THE PROSECUTOR]:
      Your honor, I’m going to object at this point. The law applies to all individuals equally, regardless of who they are. And I would ask that an instruction be given to the jury.

      . See also State v. Briscoe, 99-1841 (La.App. 4 Cir. 1/17/01); 779 So.2d 30.

      . See also State v. Wilson, 00-1736, p. 6 (La.App. 4 Cir. 11/14/01), 803 So.2d 102, 107.

      . The minute entry for the multiple bill hearing notes that the defendant was present.


source: Caselaw Access Project

author: 2EDWARD A. DUFRESNE, Jr., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Noel E. DAUZART.
    No. 02-KA-1187.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    . Margaret S. Sollars, Louisiana Appellate Counsel, Thibodaux, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and MARION F. EDWARDS.
   2EDWARD A. DUFRESNE, Jr., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Noel E. Dauzart, with three counts of armed robbery, in violation of LSA-R.S. 14:64. The matter subsequently proceeded to trial on two of the counts. After considering the evidence presented, the twelve person jury unanimously found defendant guilty as charged on the two counts. The trial judge sentenced defendant to sixty years at hard labor without benefit of parole, probation or suspension of sentence on each count, to run concurrently.

This court, in State v. Dauzart, 99-730 (La.App. 5 Cir. 11/30/99), 749 So.2d 806, affirmed defendant’s convictions and sentences. Thereafter, the Louisiana Supreme Court reversed defendant’s convictions based on a violation of his right to testify and remanded the matter to the trial court for a new trial. State v. Dauzart, 99-3471 (La.10/30/00), 769 So.2d 1206.

Following this second trial, the jury found defendant not guilty on count one, the armed robbery of Janice Mackenroth Schaler, and guilty on count two, the | sarmed robbery of Christy Brupbacher. As a result of this conviction, the trial judge sentenced defendant to fifty years at hard labor.

The state subsequently filed a bill of information, pursuant to LSA-R.S. 15:529.1, alleging defendant to be a third felony offender. After a hearing, the judge found defendant to be a third felony offender, vacated defendant’s previous sentence, and imposed an enhanced sentence of fife imprisonment at hard labor without benefit of parole, probation or suspension. Defendant now appeals.

FACTS

On October 4, 1996, an armed robbery occurred at the Williams Boulevard branch of the Metro Bank. On that date, Richard Hannon entered the bank, armed with a gun, and demanded that the tellers, Carrie Berthelot, Janice Schaeler, and Christy Brupbacher, hand over all the money in their drawers. The perpetrator stole approximately $29,000, and exited the bank.

An alarm was activated during the robbery, and the police immediately arrived at the scene. Officer Oscar Munoz of the Kenner Police Department parked his unit, bumper to bumper, with a green Nissan Maxima, located right around the corner from the bank on Florida Avenue. The officer observed a black male sitting in the driver’s seat of the vehicle. As Munoz was exiting his vehicle, he noticed another black male, carrying a white bag, run to the driver’s side of the vehicle and get into the rear seat. The car then sped around the officer’s unit and traveled down Florida Avenue toward 32nd Street. Officer Munoz pursued the vehicle to the Esplanade Mall.

The two suspects, one carrying a white tote bag and the other a black backpack, entered the mall, and split up. However, officers eventually apprehended both individuals. At the time of defendant’s apprehension, he was in possession of a black backpack containing money stolen from a robbery at Regions Bank earlier that morning. When Hannon was arrested, a white bag | ¿containing the money stolen from Metro Bank was found on the floor by his feet. The tellers from the bank positively identified Hannon as the perpetrator of the robbery. Officer Munoz identified defendant as the driver of the vehicle and Hannon as the individual who entered the rear seat of the Maxima.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant asserts that the evidence was insufficient to support his conviction for the armed robbery of Christy Brupbacher that occurred at Metro Bank because it was based on tainted and unreliable testimony. Specifically, defendant argues that the testimony of his co-defendant, Richard Han-non, was unbelievable considering the deal that Hannon received in exchange for his testimony. Defendant also contends that the testimony of Officer Lynch was filled with contradictions and that the other state’s witnesses were lying.

In determining a challenge to the sufficiency of the evidence, the reviewing court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” On appeal, the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror Ucould not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 772 So.2d at 83.

In the present case, defendant was convicted as a principal to armed robbery. LSA-R.S. 14:64 defines armed robbery as “the taking of anything of value from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24. Not all principals are automatically guilty of the same grade of offense as the main offender because the mental state of the offenders may be' different. Thus, an individual may only be convicted of a principal for those crimes which he personally has the requisite mental state. State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, 941, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122.

In the present case, defendant claimed that he was not a willing participant to the crime. At trial, defendant testified that on the day of the robbery, he saw Hannon, and Hannon offered to give him some money if defendant would give him a ride to the bank. Defendant agreed. While sitting in his car, defendant noticed a police officer a block away and thereafter Hannon jumped into the back of his car, put a gun to his head and ordered him to drive. Defendant claimed that he was unable to get the attention of the police officer at that time. According to defendant, Hannon ordered him to drive as far as he could which led them to the mall. At the mall, Hannon ordered defendant to get out of the car and to run into the mall-with him. Once inside the mall, defendant was able to get away from Hannon.- Defendant then saw the police and asked for help, but instead, a-police officer hit him in the head with a gun.

Un contrast to this testimony, Hannon testified that he and defendant planned the robbery. According to Hannon, on the day before the robbery, he and defendant drove to a Wal-Mart in Chalmette where defendant purchased bullets for the gun which was used in the robbery. Also, defendant and Hannon drove to Metro Bank where defendant entered the bank to “scope out” the bank’s security, pretending he was interested in applying for a loan. The following day, Hannon went into the bank, robbed it, and then got into the waiting vehicle. Defendant, the driver of the vehicle, drove around the police officer’s unit and fled the scene. Hannon denied that he ever threatened or forced defendant at gunpoint to participate in the robbery. He also denied that he had offered defendant gas money in exchange for a ride to the bank.

On appeal, defendant argues that Han-non’s plea bargain with the state made his testimony unbelievable since he had a strong motivation to he. In the present case, the jury was made aware of the circumstances surrounding Hannon’s testimony, including Hannon’s relationship with defendant, his extensive criminal record, and his plea agreement with the state. After being presented with all the facts, the jury found Hannon’s testimony to be credible. It is not the function of the appellate court to second-guess the credibility determinations of the trier of fact or to reweigh the evidence. In evaluating credibility, the trier of fact, when faced with a conflict, is free to accept or reject, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a conviction. State v. Saylor, 802 So.2d at 942.

Defendant also argues that Officer Lynch’s testimony was tainted because he denied knowledge of any injury to defendant’s head, which was refuted by medical records entered into evidence. Officer Lynch only testified to the facts and |7circumstances of defendant’s arrest in the Esplanade Mall. His testimony did not have any bearing on whether or not defendant aided and abetted Hannon in the commission of the bank robbery. As this testimony did not relate to the robbery itself, we cannot find that it tainted the jury’s perception of the facts.

As part of his challenge to the sufficiency of the evidence, defendant also argues that because the windows on the Nissan Maxima were heavily tinted, Officer Munoz’s testimony that he did not see Han-non holding a gun to defendant’s head would not have discredited defendant’s version of events. However, Munoz testified that he was parked bumper to bumper with the Maxima and did not see a gun to defendant’s head when he looked through the windshield. In addition, the officer testified that at no time did defendant try to get his attention or appear to be in distress.

Based on the foregoing discussion, we find that the evidence presented was sufficient to prove that defendant helped plan the crime and assisted in furthering its completion. Accordingly, we find that a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that the state proved the essential elements of the crime beyond a reasonable doubt. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the trial court erred in allowing the introduction of other crimes evidence. He specifically asserts that the court erred in admitting evidence of an earlier robbery at Regions Bank because the state could not sufficiently establish that defendant was a perpetrator of this robbery. He further argues that evidence of the Regions Bank robbery prejudiced the jury and was introduced solely to portray him as a person of bad character.

| ^Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. LSA-C.E. art. 404B(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1065.

LSA-C.E. art. 404B(1) provides:

Other crimes, wrongs, or acts. (l)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 by the accused, the prosecution in a criminal case 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.

In order for other crimes evidence to be admitted, certain requirements must be met. Under Prieur, the state must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. One of the factors enumerated in LSA-C.E. art. 404(B)1 must be at issue, have some independent relevance or be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La.1993); State v. Maise, 99-734 (La.App. 5 Cir. 3/22/00), 759 So.2d 884, 893, writ granted, 00-1158 (La.9/14/01), 795 So.2d 1219, judgment aff'd, 00-1158 (La.1/15/02), 805 So.2d 1141. Prieur further requires that the state show by clear and convincing evidence that the defendant committed the other crimes. However, LSA-C.E. art. 1104, enacted in 1994, requires that the burden of proof in a Prieur hearing in Louisiana courts be the same as that provided by the Federal Rules of Evidence, Art. IV, Rule 404. In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), [3the United States Supreme Court found the clear and convincing standard is no longer the required standard of proof, and that the applicable standard is a preponderance of the evidence.

This court has recognized the preponderance of the evidence standard as the burden of proof in a Prieur hearing. State v. Aleman, 809 So.2d at 1064; State v. Maise, 759 So.2d at 893; The Louisiana Supreme Court has declined to address the question of how LSA-C.E. art. 1104 and Huddleston affect the burden of proof with respect to other crimes evidence. See State v. Hills, 99-1750 (La.5/16/00), 761 So.2d 516 and State v. Galliano, 02-2849 (La.1/10/03), 839 So.2d 932.

Additionally, the probative value of the extraneous evidence must outweigh its prejudicial effect. State v. Maise, 759 So.2d at 894. The burden is on the defendant to show that he was prejudiced by the trial court’s admission of Prieur evidence. State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709.

In the present case, the state filed a written notice detailing its intent to use evidence of the armed robbery of Regions Bank, which occurred the same day as the Metro Bank robbery and which was allegedly committed by Hannon and defendant. In the notice and attached memorandum, the state asserted that it would use those acts to show defendant’s knowledge, intent, guilty knowledge and motive, particularly because it demonstrates defendant’s intent to commit the crimes as specified in a relatively short time span at similar locations and within short distance of each other. The court thereafter conducted a hearing to determine the admissibility of the other crimes evidence. The evidence presented at the Prieur hearing established the following: (1) Richard Hannon was identified as being the armed man who robbed Regions Bank on October 4, 1996; (2) Hannon was also identified as being the armed man who robbed Metro Bank that same morning; (3) defendant was seen by Officer Munoz waiting in his vehicle outside of Metro Bank very near the time of the Metro Bank robbery; (4) Hannon, the man |, (identified as being the armed robber of both banks, entered the back seat of defendant’s vehicle immediately following the Metro Bank robbery; (4) defendant and Hannon then fled the scene in defendant’s vehicle, driving to Esplanade Mall; (5) defendant was apprehended at the mall carrying a bag containing money stolen from Regions Bank. Based upon the evidence presented at the Prieur hearing, we find that the state, under either burden of proof, presented sufficient evidence of defendant’s involvement in the Regions Bank robbery.

We further find that the evidence of the Regions Bank robbery was relevant for a purpose other than to show that defendant committed, the charged offense or that he was simply a bad person. In particular, the evidence was relevant fin establishing defendant’s intent and knowledge. Defendant contended at trial that he was forced at gunpoint to drive Hannon away from Metro Bank and that he was later forced to accompany Hannon into Esplanade Mall. However, evidence, that defendant was running from police and carrying a backpack with money stolen from Regions Bank earlier that morning, indicates defendant’s knowledge that Han-non was going to rob Metro Bank and his intent to participate in the robbery.

We also find that the probative value of the Prieur evidence outweighed its prejudice to defendant given the fact that intent was at issue.

Based on the foregoing discussion, we conclude that the trial judge did not err in admitting evidence of the Regions Bank robbery. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assigned error, defendant argues that the trial court erred by not giving a limiting instruction pertaining to the other crimes evidence.

Defendant filed a motion for new trial arguing that the trial court committed error in that no limiting charge was given to the jury regarding evidence of past acts. The trial judge denied defendant’s motion for new trial, stating as follows:

In... Reasonably in advance of the trial, the State filed 404B “Prieur notice” providing the evidence of past acts it intended to introduce at trial. At the conclusion of evidence, the court held a jury charge conference in which a variety of issues regarding charges were discussed. Both counsel and the court agreed on the charges to be given to jury. Those instructions were read to the jury, and at no time did defense counsel object. No objection or assignment of error may now be made on that ground (C.Cr.P.801).
Furthermore, this court does not recall any objection made by the defendant during trial to introduction of evidence of past acts by the state. In fact, the defendant actually offered much, if not most, of the testimony regarding the his [sic] past acts.
Defendant contends that, notwithstanding C.Cr.P. article 801, that the court should have instructed the jury regarding consideration of past acts of the defendant, and that a new trial is therefore merited. This contention disregards well-settled law that the party desiring special jury charges must object at trial. Moreover, it cannot be presumed by the court that a defendant wishes for such an instruction, or that giving one is necessarily preferable. Whether it is actually preferable that such an instruction be given is a matter of discretion for counsel, who may prefer that the jury not be reminded of the defendant’s past crimes during the reading of jury charges.

We agree with this reasoning by the trial judge. LSA-C.Cr.P. art. 801C provides that a party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. In the present case, defendant did not object to the charges given or to the trial court’s failure to give a limiting instruction. Therefore, this issue was not properly preserved for appellate review.

Moreover, even had the issue been properly preserved for review, we find no merit to defendant’s argument. Under State v. Prieur, supra, the court, at the request of the defendant, must offer a limiting instruction to the jury at the time the evidence is introduced and also must charge the jury at the close of the trial of the limited purpose the other crimes evidence serves in that they cannot convict the defendant for any crime other than the one charged. State v. Guidroz, 98-377 (La.App. 5 Cir. 10/14/98), 721 So.2d 480, 486, writ denied, 98-2874 (La.2/26/99), 738 So.2d 1061. LSA-C.E. art. 105 further provides:

112When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Failure to restrict the evidence and instruct the jury shall not constitute error absent a request to do so.

In the present case, defendant did not request a limiting instruction for the other crimes evidence. Accordingly, we find no error in the trial court’s failure to give such a charge.

For these reasons, we find no merit to the arguments raised by defendant in this assigned error.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assigned error, defendant argues that the trial court erred in denying his motion to quash the multiple bill because of an unreasonable delay in its being filed. He also asserts that the increased sentence which was imposed was vindictive and was given to penalize him for having successfully attacked his first conviction. We have found an error patent which requires that we vacate defendant’s multiple offender adjudication and sentence. Therefore, we find it unnecessary, at this point, to address the issues raised in this assigned error.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent according to LSA-C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals a reversible error in the multiple offender proceedings. The bill of information in defendant’s 1989 conviction for attempted possession of a firearm by a person convicted of a felony shows that the 1988 conviction for possession of marijuana was used as the underlying felony to support the firearm charge. If a felon in possession of a firearm conviction is used to enhance a subsequent conviction, the underlying felony used as an element of the firearm conviction may not be used in the multiple bill, as this constitutes double enhancement. Accordingly, we are required to vacate defendant’s multiple offender adjudication |13and sentence. See State v. Bailey, 97-493 (La.App. 5 Cir. 11/12/97, 703 So.2d 1325) and State v. Davis, 02-565 (La.App. 4 Cir. 12/11/01), 834 So.2d 1170.

For the réasons set forth herein, we affirm defendant’s armed robbery conviction and vacate his multiple offender adjudication and sentence. The matter is remanded for resentencing of defendant for armed robbery. Further, habitual offender proceedings, if any, must await a new action by the state on a properly drawn bill of information.

CONVICTION OF ARMED ROBBERY AFFIRMED; CONVICTION AND SENTENCE AS HABITUAL OFFENDER VACATED; CASE REMANDED.

      . The bill of information also charged co-defendant, Richard Hannon, with three counts of armed robbery; however, he withdrew his original plea of not guilty and pled guilty as charged. This appeal pertains only to Noel Dauzart.

      . As a result of an earlier hearing, Hannon was ruled to be an unavailable witness pursuant to LSA-C.E. art. 804(A). Hannon’s testimony from defendant’s earlier trial was read to the jury.


author: 2CLARENCE E. McMANUS, Judge. 1DALEY, J., DUFRESNE, J., CHEHARDY, J., 1GOTHARD, J.,

text:
    Keith and Betty HUTCHINS v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 02-CA-943.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.
    Writ Denied June 20, 2003.

      Freeman R. Matthews, Craig E. Frosch, Usry, Weeks & Matthews, New Orleans, LA, for defendant-appellant.
    Edward F. Downing, III, Gauthier, Downing, Labarre, Beiser & Dean, Metair-ie, LA, for plaintiffs-appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

On June 4, 1997 at about 7:15 a.m., Keith Hutchins (“Hutchins”) was driving his vehicle on Barton Avenue. He approached the intersection with Highway 90 and attempted a left turn. The traffic light at this intersection is normally a sequential light, which changes from green to yellow and then to red. That morning the light was flashing red for traffic on Barton Ave. and flashing yellow for traffic on Highway 90. As Barton attempted to turn left onto Highway 90, he was struck by a truck with a flatbed trailer that was proceeding westbound on Highway 90 and being driven by Eugene Farris (“Farris”).

Hutchins and his wife, Betty, filed suit against the truck driver, Farris, the truck owner and Farris’ employer, Skipper Transportation, its insurer, Liberty Mutual Insurance Company, the Louisiana Department of Transportation and Development (“DOTD”) and the St. Charles Parish Sheriff (“Sheriffs Office”). Prior to trial, the plaintiffs entered into a settlement with Farris, Skipper Transportation and Liberty Mutual and the claims against those defendants were dismissed. The plaintiffs proceeded to trial against the Sheriffs Office and the |sDOTD. Following the trial, the trial court issued a judgment dismissing the plaintiffs’ claims against the DOTD. The trial court then found in favor of the plaintiff and allocated fault as follows: 70% to Hutchins, 15% to the Sheriffs Office and 15% to Farris.

The Sheriffs Office now appeals arguing three assignments of error. First, the Sheriffs Office argues that the trial court erred in concluding that the Sheriffs Office breached its duty and was at fault in the collision because no deputy was dispatched to warn motorists that the traffic control lights at the intersection were flashing. Second, the Sheriffs Office argues the trial court erred in finding that a lack of early notice to the DOTD that the traffic lights were flashing was the legal cause of the accident when the driver on the non-favored road failed to stop and yield the right of way. And third, the Sheriffs Office argues the trial court erred in allocating 15% fault to the Sheriff where the accident was caused by the failure of the plaintiff to obey the flashing red light.

For the following reasons, we affirm the trial court’s finding that the plaintiffs own negligence was a contributing cause in the accident and that Farris’ negligence was also a contributing cause in the accident. Further, we affirm the trial court’s findings that the Sheriffs Office did not timely notify the DOTD of the malfunction and that the Sheriffs Office had a duty to dispatch a deputy to the intersection and failure to do so was a contributing cause in the accident. However, we amend the trial court’s apportionment of fault and find that the Sheriffs Office was 5 % at fault, the truck driver, Farris, was 10% at fault and the plaintiff, Hutchins, was 85% at fault in the cause of the accident. We also affirm the trial court’s finding that the DOTD was not at fault in causing this accident.

In its first assignment of error, the Sheriffs Office argues that the flash mode for the traffic light is authorized by statute and does not create an unreasonable risk of harm to the motoring public sufficient to impose a duty on the pSheriffs Office to dispatch law enforcement officers to the scene. Plaintiffs argue in opposition that the flashing signal did create an unreasonable risk of harm because it occurred during morning rush hour in a busy and confusing intersection.

The trial court found that the DOTD has determined that the sequencing mode for traffic lights is the safest and the next safest mode is the flashing mode, which is why the traffic fight defaults to .flashing mode if the sequencing mode fails. The trial court also concluded that the flashing mode is the best short-term solution to a malfunctioning traffic fight and is better than a completely inoperable traffic fight. The trial court found that the traffic fight in the flashing mode presented an unreasonable risk of harm to the motoring public. The trial court based this finding on its conclusion that the DOTD quickly fixes the traffic fight back to the sequencing mode and only views the flashing fights as a temporary fix to avoid a completely uncontrolled intersection.

We agree that the flashing traffic fights in this case "did create an unreasonable risk of harm to the motoring public. We do recognize that the flashing mode is authorized by statute, however, Highway 90 is a four lane, busy highway with a speed limit of 45 miles per hour at this location. The malfunction of the fight occurred at a time of day when the traffic is heavy. At this type of intersection, the flashing mode is only meant to be a temporary back-up in case of malfunction. Therefore, we find that the flashing fight at this intersection did pose an unreasonable risk of harm to the motoring public.

Next, we must address whether this unreasonable risk of harm imposed a duty upon the Sheriffs Office to dispatch an officer to the scene and, if so, did the Sheriffs Office breach this duty. When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists are not subjected to unreasonable risks of harm. Syrie v. Schilhab, 96-1027 (La.5/20/1997), 693 So.2d 1173, 1176-1177, citing Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3d Cir. 1991). According to Scott Hargrove, a St. Charles Parish Sheriffs 911 operator, a call was received at 5:30 a.m. from a passerby informing the Sheriffs Office of the malfunctioning traffic light. This call was documented in the 911 telephone records at 8:48 a.m. Mr. Hargrove testified that he received the call during the shift change when he was coming on duty and logged it later in the morning.

According to Mr. Hargrove’s testimony, the Sheriffs Office knew of the malfunctioning traffic light, which has been determined to be an unreasonable risk of harm to the motoring public. Therefore, the Sheriffs Office had a duty to make sure the motorists were not subjected to this unreasonable risk of harm. This could be accomplished by dispatching an officer to the location to control traffic. According to the testimony presented at trial, the Sheriffs Office failed to dispatch an officer to the intersection. Therefore, it breached its duty to the motoring public.

The Sheriffs Office argues as assignment of error number two that the trial court erred in finding that a lack of early notice to the DOTD that the traffic signals were in flashing mode was a legal cause of the accident. Mr. Hargrove, the 911 operator, received the call regarding the malfunction around 5:30 a.m. He testified that he also contacted the DOTD to report the problem in order that the DOTD would fix the malfunction. His log book indicates he called the DOTD at 5:30 a.m. but he did not log the call into the book until 8:48 a.m. Mr. Hargrove testified that he did not specifically remember making the call to the DOTD, but knows he must have because it is his job. Ruth Frizell, the DOTD radio operator on duty that morning, testified that she did not receive a call from Mr. Hargrove. There was no complaint recorded in the telephone log at 5:30 a.m. regarding this intersection.

| fiGary Angelo, a DOTD employee, did call and report the malfunctioning light to the DOTD at 6:59 a.m. This complaint was logged into the telephone log. After Mr. Angelo’s complaint was received, Ms. Fri-zell dispatched a crew to fix the malfunctioning light. The accident occurred one hour and forty-five minutes after the 5:30 complaint call was received by the Sheriffs Office. We agree with the trial court’s finding that more likely than not Mr. Har-grove failed to notify the DOTD of the malfunction at 5:30 a.m. As a result, a crew was not dispatched at 5:30 a.m. to fix the light and it was still malfunctioning at the time of the accident. Therefore, we find the Sheriffs Office’s failure to timely notify the DOTD of the malfunction was a contributing factor in causing the accident.

In addition to the assignments of error presented by the Sheriffs Office, we also find that the plaintiff, Hutchins, and the truck driver, Farris, were both at fault in this accident. Hutchins had a duty to stop at the flashing red light and to proceed only when safe. According to the testimonies presented at trial, he failed to stop. Therefore, he failed to yield the right-of-way to Farris and any other traffic on Highway 90 and was negligent. This negligence was a contributing factor in the cause of the accident.

Farris was also at fault in this accident. He testified that he had driven on Highway 90 before and knew that the light was supposed to cycle. He testified that he assumed the light was not working when he saw it flashing. He was also traveling at or above the speed limit. The speed limit was 45 miles per hour for this section of Highway 90. He testified that he was traveling between 45 and 50 mph and had slowed when he saw the flashing light. Having traveled this section of highway before, Farris must have known that the area is usually busy with lots of traffic. Therefore, we agree with the trial court that Farris was negligent for driving in that manner through the yellow flashing light. We further agree that Farris’ negligence contributed to the cause of the accident.

[7Although we agree with the trial court’s findings concerning negligence and liability, we do not agree with the apportionment of fault applied by the trial court. As stated in Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00) 773 So.2d 670, an appellate court’s determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1986). In Watson, the Supreme Court said that “various factors may influence the degree of fault assigned, including:

(1) [W]hether the conduct resulted from inadvertence or involved an awareness of danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capabilities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.”

Duncan, 773 So.2d at 681, citing Watson, 469 So.2d at 974.

Applying these factors to this case, we find that the' trial court was manifestly erroneous in assigning the apportionment of fault. The trial court only found the plaintiff, Hutchins, to be 70% at fault. As discussed above, Hutchins had a duty to stop at the flashing red light and to only proceed when safe. He did not stop and proceeded directly into the path of the Farris’ truck. Therefore, we find he was 85% at fault in causing the accident.

The trial court found Farris to be 15% at fault. We find this percentage to be high and find that Farris was only 10% at fault in causing the accident. Farris was traveling at a high speed considering the time of day and highway conditions, including the fact that the light was flashing yellow. He' had a duty to proceed cautiously through the flashing yellow light. He failed to do this and was negligent. Therefore, we apportion 10% fault to Farris.

| sFinally, the trial court found that the Sheriffs Office was 15% at fault. Although we agree that the Sheriffs Office did breach its duty to dispatch an officer to the scene of the intersection and failed to timely notify the DOTD of the malfunctioning light, we find that this apportionment of fault is too high. The presence of an officer at the intersection may have helped control the traffic, but the negligence of both drivers in this case obviously outweighs any help an officer could have provided. Therefore, we apportion 5% fault to the Sheriffs Office.

In accordance with the above, we affirm the trial court’s findings that the Sheriffs Office had a duty to dispatch an officer and that it breached that duty. Further, we affirm the trial court’s finding that the Sheriffs Office failed to timely notify the DOTD of the malfunctioning light. Finally, we affirm the trial court’s findings that Hutchins and Farris were both negligent and at fault in causing this accident. We amend the trial court’s judgment concerning apportionment of fault as follows: 5% to the Sheriffs Office, 10% to Farris and 85% to Hutchins.

JUDGMENT AMENDED; AS AMENDED, AFFIRMED.

DUFRESNE, J., concurs.

DALEY, J., concurs with reasons.

CHEHARDY, J., concurs.

GOTHARD, J., dissents.

1DALEY, J.,

concurring with reasons.

I concur with the majority’s disposition in this case, but not entirely with the reasoning set forth in the opinion.

I agree that the St. Charles Sheriffs Office’s negligence was a contributing factor in the cause of the accident. However, I disagree with that portion of the majority’s opinion that holds that the failure of the Sheriffs Office to dispatch a deputy to the intersection was a contributing factor and the cause of this accident. I agree that the Sheriffs Office’s failure to timely notify DOTD that the traffic light was not operating in its normal mode after the 911 Operation Center had been notified by a citizen of the condition was a contributing factor.

DUFRESNE, J.,

concurs. I agree with Judge Daley and will join in his concurrence.

CHEHARDY, J.,

concurs. I agree with Judge Daley and will join in his concurrence.

1GOTHARD, J.,

dissenting.

I dissent. In my view, the majority opinion in this case changes the allocations of fault without a legal basis. This court is a court of review, not a court of first impression.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
(citations omitted)
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)

That same, “clearly erroneous” standard must be applied in our review of the allocation of fault. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. Given the trial courts well-written reasons, and the facts of this case, I cannot find any support for the majority’s finding that the trial court was clearly wrong in its allocation of fault. Accordingly, I would affirm the trial court judgment without amendment.


author: 2McMANUS, Judge.

text:
    Vicki M. MILLET, on Behalf of her Minor Daughter, Victoria Lynn MILLET v. TREASURE CHEST CASINO, L.L.C., ABC Insurance Company, Edwin Carter, DEF Insurance Company, GHI Security Company, and JKL Insurance Company.
    Nos. 02-CA-1096, 02-CA-1097.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Gary N. Boutwell, J. Thomas Anderson, Anderson & Boutwell, Hammond, LA, for plaintiff-appellant.
    Paul S. West, McGlinchey Stafford, Baton Rouge, LA, for defendants-appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and CLARENCE E. McMANUS.
   2McMANUS, Judge.

At issue in this consolidated case, is whether the trial court erred in granting the defendants’ exception of no cause of action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed the instant suit on her daughter, Victoria Lynn Millet’s, behalf arising from the same incident as her original petition for damages. The following facts are taken from Millet v. Treasure Chest Casino L.L.C., 00-1843 (La.App. 5 Cir. 5/30/01), 788 So.2d 713, writ denied, 01-1908 (La.10/5/01), 799 So.2d 485.

In this case, plaintiff, Vicki M. Millet, filed a petition for damages (on her own behalf) on May 19, 2000 against Treasure Chest Casino, L.L.C., Edwin Carter, a security guard employed at the casino, and their respective insurers. This action was dismissed on an exception of no cause of action and affirmed by this Court in Millet v. Treasure Chest Casino L.L.C., 00-1843 (La.App. 5 Cir. 5/30/01), 788 So.2d 713, writ denied, 01-1908 (La.10/5/01), 799 So.2d 485. The two cases were consolidated by the trial court.

The petition alleged that on November 6, 1999, her husband, Shaun P. Millet, was a patron at the casino when he became too intoxicated to drive home. He was detained by defendant Carter, a casino security guard, while representatives of the casino telephoned plaintiff to pick up Mr. Millet. While plaintiff was on her way to the casino, Mr. Millet was escorted to his vehicle by the security guard, ostensibly to retrieve his jacket. Instead, Mr. Millet obtained a | -¡pistol from his vehicle and fatally shot himself in the head. Plaintiff alleged that this incident was caused by the negligence of defendants in failing to properly monitor a guest in their custody. In response to this petition, defendants filed a peremptory exception of no cause of action on the basis that Louisiana law does not provide a remedy under the factual allegations of plaintiffs petition. Following a hearing on November 30, 2000, the trial court granted this exception and issued the following reasons for judgment:

In addition to the reasons orally assigned, and accepting all well pleaded facts in the petition as true for the purposes of this exception, the court found that neither the Treasure Chest, nor its employee, had a legal duty to protect against the harm incurred by Shaun P. Millet. As a result, no action lies under La.C.C. Article 2315.1 or La.C.C. Article 2315.2.
Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of parties. In order to assert a cause of action for breach of duty to protect another person from suicide, a “guardian relationship” must exist between the parties. Jurisprudence does not recognize the relationship between a patron and a business owner as one in which the “guardian relationship” exists. Consequently, neither the Treasure Chest Casino, nor its employee, Edwin Carter, had a duty to protect Shaun P. Millet from committing suicide.
Furthermore, neither Treasure Chest Casino, nor its employee, Edwin Carter, knew or should have known of Shaun Millet’s intention to commit suicide. The actions taken by Shaun P. Millet were not foreseeable. Treasure Chest Casino and Edwin Carter had no knowledge, nor should they have known, that Shaun P. Millet had a pistol in his vehicle which he would use to commit suicide.
Lastly, this Court finds that the filing of the Petition for Damages in this matter is sanctionable under La. C.C.Pro. Article 863. The cause of action set forth in the plaintiffs Petition for Damages is not warranted by existing law, a fact known by plaintiffs attorney, Gary N. Boutwell, in light of this Court’s granting of the Exception of No Cause of Action filed by defendants, Treasure Chest Casino and Edwin Carter in Case No. 553-545.
This appeal followed.

DISCUSSION

Plaintiff argues that the trial court erroneously granted defendants’ exception of no cause of action. The purpose of an exception of no cause of action is to Rdetermine the sufficiency in law of the petition. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690 (La.7/5/94), 640 So.2d 237, 241. It questions whether the petition sufficiently alleges grievances for which the law affords a remedy. Lewis v. Aluminum Co. of America, 588 So.2d 167, 169 (La.App. 4 Cir.1991), writ denied, 592 So.2d 411 (La.1992). The reviewing court is to make a de novo determination because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Id. When reviewing the exception, the well-pleaded facts of the petition are accepted as true. Id. Thus, assuming that all the facts in plaintiff’s petition are true, this Court must determine if the plaintiff has a cause of action.

To determine whether a plaintiff may recover damages under La. Civ.Code art. 2315, courts traditionally employ a duty-risk analysis, which requires affirmative answers to the following questions:

1) Was the conduct in question a cause-in-fact of the resulting harm?

2) Did the defendant owe a duty to the plaintiff?

3) Was the duty breached?

4) Were the risk and the harm caused within the scope of protection afforded by the duty breached? Roberts v. Benoit, 605 So.2d 1032 (La.1991).

In this appeal, plaintiff again contends that once defendants detained Mr. Millet and prevented him from driving home, they assumed a duty to keep him safe until his wife reached the casino. Plaintiff further argues that by detaining him, defendants were aware that Mr. Millet was in a condition where he may harm himself or others, and that defendants negligently allowed him to do the very thing they were trying to prohibit.

We have not found, nor has appellant cited, any Louisiana statutes or jurisprudence which articulates the duty of a casino owner with respect to preventing patrons from committing suicide or otherwise harming themselves. The |Blaw provides a general duty as to one of reasonable care on business owners to protect its patrons from injury, although business owners are not held to be insurers of their patrons’ safety. Butler v. K-Mart Corporation, 432 So.2d 968 (La.App. 4 Cir.1983); Toups v. Hawkins, 518 So.2d 1077, 1081 (La.App. 5 Cir.1987). There is no set rule for determining the scope of the duty owed. It is ultimately a question of policy as to whether the particular risk falls with the scope of the duty. Roberts v. Benoit, supra.

In order to prevail in this case, plaintiff had to prove that defendants’ duty to protect its patrons encompasses the risk that a patron might commit suicide. Plaintiff could not prove this theory in any petition for damages. The issue in this case is identical (including the same factual scenario) to that which this Court previously decided in Millet v. Treasure Chest Casino L.L.C., 00-1843 (La.App. 5 Cir. 5/30/01), 788 So.2d 713, writ denied, 01-1908 (La.10/5/01), 799 So.2d 485, whether defendants reasonably should have foreseen or anticipated the danger that Mr. Millet would kill himself by retrieving a gun out of his vehicle. We do not find that the incident giving rise to this petition was foreseeable by defendants. The factual allegations in the petition are the same as those previously reviewed by this Court. As such, plaintiff is still unable to show that the employees of the Treasure Chest knew, should have known, or could have known of Mr. Millet’s intention to commit suicide. Thus, we affirm the trial court’s judgment granting defendants’ exception of no cause of action.

CONCLUSION

Accordingly, for the reasons assigned herein, we conclude that plaintiff has failed to state a cause of action against these defendants. The judgment of the trial court is therefore affirmed.

AFFIRMED.


author: 2THOMAS F. DALEY, Judge.

text:
    SID-MAR’S RESTAURANT & LOUNGE, INC. v. Judy GARDNER.
    No. 02-CA-1109.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.

      Edward D. Cerrone, Eric M. Schroeder, New Orleans, LA, for Defendant/Appellant.
    Keith B. Hall, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for PlaintiffiAppellee.
    Panel composed of Judges THOMAS F. DALEY, EDWARD A. DUFRESNE, Jr., and CLARENCE E. McMANUS.
   2THOMAS F. DALEY, Judge.

Sid-Mar’s Restaurant and Lounge, Inc. (Sid-Mar’s) sued defendant Judy Gardner (Gardner) for enforcement of a lease. Sid-Mar’s, a restaurant in the Bucktown area of Metairie, leased part of Gardner’s property for extra parking spaces in April of 1993. Gardner owns the property adjacent to Sid-Mar’s. Sid-Mar’s sued Gardner in 2001 for enforcement of a lease provision that gave Sid-Mar’s the right to additional parking spaces on defendant’s property if any of the buildings on the defendant’s property were torn down, removed, or destroyed. Sid-Mar’s claimed that a building had been removed, but that defendant refused to allow Sid-Mar’s to utilize the new space vacated by the building. As a defense, Gardner argued that the lease was invalid. The trial court granted a preliminary injunction, permanent injunction, and summary judgment in favor of Sid-Mar’s, finding that the lease was valid and enjoining Gardner from interfering with the exercise of the lease. Gardner appeals. We affirm the finding that the lease was valid, but reverse the trial court’s finding that a structure was torn down finding |3that a structure was replaced that was not specifically prohibited by the lease. We reverse the trial court’s grant of the permanent injunction.

Originally Gardner’s parents owned the property next to and adjoining Sid-Mar’s, at 1828 Orpheum Avenue in Bucktown, where they lived and also operated a wholesale seafood business called Bernice’s Seafood. A wooden house is located on the lot, as well as the structure, adjoining the house, that held the seafood business. Bernice’s Seafood ceased to operate sometime after 1982 when Gardner’s father died. It is undisputed that the business had not been operating for a number of years when this lease was confected. Gardner’s parents, and after they died, Gardner herself, allowed Sid-Mar’s to use some of her vacant property for extra parking spaces for Sid-Mar’s patrons, free of charge and with no formal arrangement or lease.

In 1993, Gardner and Mrs. Marian Burgess, an owner of Sid-Mar’s, entered into a formal written lease for the parking spaces that Sid-Mar’s had used for years without a formal lease. The lease term was 50 years at a rate of $100.00 per month. The lease did not encompass Mrs. Gardner’s entire property, but did provide, among other things, that the leased premises would include new space resulting from the tear down, destruction, or removal of any building on the lot.

The day after the lease was signed, Gardner wrote a letter to Mrs. Burgess, desiring to cancel the lease. Sid-Mar’s refused. From 1993 until Sid-Mar’s sued to enforce the lease in 2001, Gardner claimed that she occasionally approached Mrs. Burgess or her son, asking again to cancel the lease, but they always refused. It is undisputed that Sid-Mar’s has paid Gardner for leasing the parking spaces since the lease was signed in April of 1993 and that Gardner has accepted the payments.

| ¿In 1998, both the house and the old seafood business building on the Gardner property were severely damaged by Hurricane Georges. At the direction of Jefferson Parish, Gardner and her son were required to remove the old building that formerly housed Bernice’s, due to its structural damage. Gardner’s son got a permit from Jefferson Parish to remove the old structure and to construct an open carport on the slab. When the walls and roof were removed, the slab remained. Sid-Mar’s claimed the right to that portion of ground for parking spaces under the lease. When Gardner and/or her son blocked access to the area and began constructing the carport, Sid-Mar’s filed a Petition for Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction on February 9, 2001, to enforce the lease’s provisions.

After a hearing on March 30, 2001, the trial court granted a preliminary injunction in favor of Sid-Mar’s, with reasons, on April 16, 2001. Thereafter, Sid-Mar’s moved for Summary Judgment, which was granted on December 31, 2001, citing the same reasons issued on April 16, 2001. This appeal followed. We affirm the finding that the lease is valid, but find that because the slab was not destroyed, Sid-Mar’s Restaurant has no rights under the lease to that portion of ground for additional parking spaces.

On appeal, Gardner assigns the following errors of the trial court. Her Assignments of Error, except one, attack the validity of the lease. First, she argues that she never owned or possessed any right, title, or interest in the property identified by the lease. Gardner argues that she did not legally own the property nor did she have the legal right to lease or transfer the property in question. Second, she argues that none of the elements of a valid lease are present. Third, she argues that the property encompassed under the lease is unclear. Fourth, she argues that the trial court erred in finding that she did not suffer from legal duress |swhen she signed the lease. Fifth, Gardner contends that the terms of the lease are so onerous as to constitute an involuntary act of sale, which is null under Louisiana law. Sixth, she contends that she unknowingly consented “to losing any part and parcel of the property in dispute, if and when said property is not adequately maintained.” Last, appellant further claims that she has not torn down, removed, or destroyed the building on the leased property, because the slab is still intact.

ANALYSIS

We find that the lease is valid. First, Gardner argues that she never owned or possessed any right, title, or interest in the property identified by the lease. She also argues that she did not legally own the property nor did she have the legal right to lease or transfer the property in question. Second, she argues that none of the elements of a valid lease are present.

LSA-C.C. art. 2670 states:

Art. 2670. Essential elements of lease To the contract of lease, as to that of sale, three things are absolutely necessary, to wit: the thing, the price, and the consent.

Gardner’s argument here is premised on the fact that the typed language of the lease identifies the property as Square 129, Lot A, whereas in fact the leased property is Square 129, Lot B. Gardner owns Lot B, but not Lot A. Therefore, Gardner argues, the “thing” does not exist. We disagree. The map and plat that were attached to the lease and incorporated therein clearly identify the leased property as Lot B, notwithstanding the fact that the typed language of the lease mistakenly referred to it as Lot A. The address is identified in the lease as 1828 Orpheum Avenue, and this is in fact the address of the leased premises. The trial court found that it was very clear the parties contemplated the same property, and that there was a complete meeting of the minds as to the property leased. It is in | fifact correctly identified by the map and plat attached to and incorporated in the lease by reference. We agree with the trial court’s findings.

Gardner argues that she did not legally own the property nor did she have the legal right to lease or transfer the property in question. This argument stems from the fact that Gardner inherited the property from her parents, and at the time she entered into the lease with Sid-Mar’s, her parents’ successions had not been opened and no Judgment of Possession existed in her favor regarding the property. The trial court found this argument “unconvincing,” and so does this court. The trial court found that the lease applied to property “hereafter acquired” by the lessor, and regardless, the thing leased need not be owned by the lessor, citing LSA-C.C. arts. 2681 & 2682. In addition, we note that under Louisiana law, an heir inherits ownership of property upon the decedent’s death, even though the heir cannot obtain a Judgment of Possession until the completion of succession proceedings. See LSA-C.C. arts. 935 and 936. This argument has no merit.

Gardner argues that no “price” exists. She argues that the price was set at $100.00 per month for 50 years, including any future vacant property on Gardner’s lot, without any further consideration to appellant. She further argues that the lease allows the Lessee to cancel at any time, without allowing the Lessor the same provision, and that this lease is in fact an “act of sale” that allows the Lessee to use Lessor’s property “for all eternity.” We disagree that the unilateral cancellation clause invalidates the lease. The law contains no such prohibition. It is well settled that the lease forms the law between the parties and is to be enforced by the courts. Pendleton v. Shell Oil Company, 408 So.2d 1341 (La.1982). There is no prohibition in the stated law or. jurisprudence against a unilateral cancellation clause.

We disagree with Gardner’s interpretation that the Lease allows Sid-Mar’s to use Gardner’s property “for all eternity.” The lease’s term is clearly stated at 50 |7years. The lease itself provides no renewal provision. The lease clearly states in Section 8(b) that if the Lessor remains in possession of the leased premises after the expiration of the term, the occupation shall be deemed month-to-month. The Civil Code provides for termination in month-to-month leases. Gardner is also allowed to terminate the lease in the event of Sid-Mar’s failure to pay the rent or violation of any other term (Section 5(a)).

Gardner argues that no consent exists, because on the day following her signature on the lease, she sent the following letter to Mrs. Burgess:

April 27, 1993
Dear Marion,
Your family and my family have been friends for about twenty-one years. I don’t want us to become enemies over this lease, but I do want to break the lease. This is my fault- I should have never let you go thru [sic] with it. I am willing to pay you back what ever the amount was that the lawyer charged you. I think this is fair on my part. I also apologize for the time you have put into this lease. Also, this paying me $100 every month was originally your idea. My family never did require you to pay them a monthly fee. You have no problem with the parking now or ever had as far as I can remember. Please break the lease with me and not make this an ugly matter.
Thank you,
Judy

Gardner argues that this letter is evidence of lack of consent. However, she testified that she did sign the lease. This letter is evidence that Gardner changed her mind regarding the lease, not a lack of consent.

Gardner argues that she was under duress when she signed the lease. She contends that she was grieving the death of her mother, was depressed, and had health problems. She also testified, however, that she was in her right mind when she signed the lease, had her wits about her, and that she understood the lease and its results when she signed it. She testified at trial that she had never seen a health care professional for any symptoms of depression. Gardner claimed that she had recently lost a job and experienced economic duress. She also testified, however, | sthat she was working a full time job at the time she signed the lease, similar to the one she had previously lost.

Economic stress and emotional stress do not constitute legal duress under Louisiana law. LSA-C.C. art.1959; Aubert v. Entergy Corp., 00-30 (La.App. 5 Cir. 5/30/00), 762 So.2d 288, 291 (financial straits); Adams v. Adams, 503 So.2d 1052, 1057 (La.App. 2 Cir.1987) (emotional strain). Though we sympathize with Mrs. Gardner on the loss of her mother, even if the evidence had showed she was suffering emotional strain and economic stress at the time she signed the lease, these do not constitute legal duress sufficient to vitiate consent to a contract.

Having found that the lease is valid, we turn to Gardner’s remaining Assignment of Error. At issue is this clause found in Section 1, Leased Premises. It reads:

If the coolers, overhang and/or any of the buildings on the Lessor’s Property are torn down, removed or destroyed, then the Leased Premises shall also include the property on which these improvements were formerly located.

In 1998, Hurricane Georges severely damaged the structure that formerly housed the seafood business and which had been vacant for a number of years. Jefferson Parish sued Gardner to require her to obtain a permit and make the necessary repairs to the rear porch and shed.

It is undisputed that the walls and roof of the old Bernice’s Seafood building were torn down. But the slab was not torn up; it remained intact, and it was upon this part of the old structure that Gardner received a permit to erect the carport, according to the building permit. Gardner was required by the parish to get a building permit to remedy the derelict structure. Gardner’s son, Keith Neidlinger, testified that he applied to the parish for the building permit and specifically asked them how he could comply with their request to remedy the derelict structure, yet lanot forfeit the area. He was issued this particular permit that allowed him to both remove the top of the structure, but not the slab and construct the carport upon the existing slab, he said, and was in the process of doing so. We find that because the foundation remained intact, the building was not “torn down, removed or destroyed” within the meaning of the lease. Therefore, Sid-Mar’s had no right under the lease to the ground still occupied by the slab foundation. We reverse the grant of summary judgment in their favor and also reverse the permanent injunction.

AFFIRMED IN PART; REVERSED IN PART.

      . Mrs. Burgess testified that the area covered approximately three parking spaces.

      . This assignment of error was not briefed and will be considered abandoned. Rule 2-12.4 of the Uniform Rules, Courts of Appeal.

      . The record shows that Mrs. Gardner's mother died more than one year before she signed the lease.

      . Apparently the improvements on Gardner’s property sit atop a parish Sewerage & Water Board right of way.