author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Jonathon Lee SMITH, a/k/a Jonathon Louis Smith, Chavis C. Grant and Quincy Hill, Appellants.
    No. 40,894-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 26, 2006.

      Louisiana Appellate Project by Edward K. Bauman, for Appellant, Quincy Hill.
    J. Spencer Hays, Bossier City, for Appellant, Jonathon Lee Smith.
    Louisiana Appellate Project, by James E. Beal, for Appellant, Chavis C. Grant.
    Paul J. Carmouche, District Attorney, Lea Hall, Jr., Brian H. Barber, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   PEATROSS, J.

| iThree defendants, Jonathon Lee Smith, Chavis C. Grant and Quincy Hill, were tried together and convicted as charged with one count of armed robbery committed with a firearm, violations of La. R.S. 14:64 and La. R.S. 14:64.3. The court sentenced Hill to serve 20 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the armed robbery, and further sentenced him to serve a consecutive sentence of 5 years’ imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. The court sentenced Grant as a habitual offender, second, to serve the statutory minimum 49/6-year sentence of imprisonment at hard labor without benefit of probation, parole or suspension of sentence, and to a consecutive 5-year sentence of imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. The court sentenced Smith as a habitual offender, second, to serve 55 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence, and to a consecutive 5-year sentence of imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. All three defendants now appeal. For the reasons stated herein, the convictions of all three defendants are affirmed. Hill’s sentence is affirmed. Grant’s and Smith’s sentences are amended and, as amended, are affirmed.

FACTS

James Robinson is a resident of Shreveport who, in 2003, lived on Myrtle Street in the Lakeside neighborhood. In addition to his disability income, Mr. Robinson earned money mowing lawns. On September 4, 19,2003, Mr. Robinson had been out shopping. During his shopping trip, Mr. Robinson told an acquaintance at the store that he had a good day at work and had around five hundred dollars on his person. That afternoon, he returned home and, at about 4:45, he was sitting on his ear in his driveway having a conversation with an acquaintance he knew as Marcus. Mr. Robinson’s next door neighbors, Chameka Black and Breon Kelly, were sitting outside on their porch at this time.

As Mr. Robinson talked to Marcus, two vehicles drove up and stopped in front of Mr. Robinson’s home. Ms. Black also saw the cars arrive. Mr. Robinson testified that Grant and Smith got out of the car in front and Hill got out of the following car. Mr. Robinson recognized all of the men and testified that he had been acquainted with these men for over ten years; he said that they all “grew up in the neighborhood together.” He further testified that he and Smith had once had a fight, but that had occurred long prior to this incident. Ms. Black did not recognize and could not identify any of the men who got out of the car.

When the men got out of the cars, they all approached Mr. Robinson to make small talk. Mr. Robinson said that he did not see the men with any guns; Ms. Black said that she saw one of the men armed with a handgun and at that point, she and her boyfriend left their porch and went inside. Mr. Robinson testified that, after speaking to him, the men all walked away and gathered in a huddle. Mr. Robinson said that the men then walked back to the cars and retrieved weapons. He described the weapons; Grant had a large chrome revolver, Hill had a rifle Mr. Robinson called a “chopper” |R(appearing to be either an AK-47 or an SKS), and Smith had a small semi-automatic pistol. Mr. Robinson testified that, when the men approached him, they all pointed the guns at him and began cursing him and that Grant then said, “[p]layboy, let me get that with you.” Mr. Robinson then gave the money to Grant and the three men left.

Mr. Robinson called the Shreveport Police Department (“SPD”). Police interviewed Mr. Robinson, who identified the robbers by their names. Police also interviewed a man who identified himself as Marcus George. This man gave his date of birth as June 23, 1982, and told police that he knew all three Defendants. The interview with George was tape recorded; the tape was apparently not provided to Defendants because it contained no exculpatory material. Later, Mr. Robinson and George identified all three Defendants in a photo lineup; George’s identification was also tape recorded.

The three Defendants were then arrested, charged and tried for armed robbery with a firearm. Witnesses at the trial included Mr. Robinson, James Cromer (the investigating SPD detective), Ms. Black and Mr. Kelly. The jury heard Mr. Robinson and Ms. Black talk about the robbery; Mr. Kelly denied that he saw anything or that he was even present. The jury also heard that Mr. Robinson had a criminal record; he had convictions for aggravated battery, attempted possession of a firearm by a convicted felon, theft of goods and disturbing the peace. Mr. Robinson’s firearm conviction was obtained by a guilty plea in exchange for a “time served” sentence. The plea and sentence agreement occurred during the pendency of this robbery Lease where Mr. Robinson was the victim; an assistant district attorney testified that the sentence was the result of the weakness of the State’s case against Mr. Robinson and not due to Mr. Robinson’s testimony against these Defendants.

A subpoena was issued for George to appear at the trial but the subpoena was never served, apparently because George was not at the address he gave police. Consequently, he did not testify and his positive identification of Defendants as the robbers was not put before the jury. The jury voted 11-1 to convict all three men as charged.

All three Defendants filed motions for post-verdict judgment of acquittal and new trial alleging that the prosecution failed to prove their guilt beyond a reasonable doubt, which the trial court denied. All three Defendants also filed amended motions for new trial alleging that newly discovered evidence, namely, the testimony of Marcus George, warranted a new trial.

The trial court held a hearing on the motions for new trial, and a witness named Marcus George was called to testify. This witness, born on October 20, 1983, testified that he did not know the victim, Defendants or anything about this robbery and that he had never spoken to police. 'The detective who interviewed Marcus George in the course of the robbery investigation also testified; he said that the Marcus George called to testify at the new trial hearing was not the same person he had interviewed during the investigation. The Marcus George who testified at the hearing gave his address as Fulton Street in Shreveport; the original Marcus George had | sgiven the police a Fulton Street address, albeit at a different house number. The court allowed into evidence the tapes of the two interviews with Marcus George and the SPD detective.

Thé court denied the motions for new trial, finding that the testimony of the newly-discovered Marcus George would not have changed the verdict because he was not the same person who was a witness to the crime. Smith alone filed a motion to reconsider sentence, which the trial court denied. Defendants now appeal.

DISCUSSION

Quincy Hill

Assignment of Error 1. Was there sufficient evidence presented to convict Appellant of armed robbery?

Assignment of Error 2. Did the Trial Court err in denying Appellant’s Motion for Post-Verdict Judgment of Acquittal and / or Motion for New Trial?

Jonathan Lee Smith

Assignment of Error 3. The State of Louisiana failed to prove the guilt of Appellant, Jonathan Lee Smith, beyond a reasonable doubt.

Assignment of Error 4. The Trial Court committed error when it denied Appellant’s Motion for a New Trial which motion alleged the insufficiency of the evidence.

Assignment of Error 5. The Trial Court committed error when it denied Appellant’s Motion for Posb-Verdict Judgment of Acquittal.

Smith and Hill, but not Grant, challenge the sufficiency of the State’s evidence to convict them. 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 funder 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 standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. 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. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a. witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

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 support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760 and 98-0282 (La.6/26/98), 719 So.2d 1048.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir. 1990), writ denied, 566 So.2d 983 (La. 1990).

In the instant case, the victim positively identified the three Defendants, both in a pretrial lineup and at trial. The victim was personally acquainted with all three Defendants and their appearance and had ample time to observe the men during the robbery. The victim said that all three men were armed with firearms during the robbery, that Grant forced him to hand over his money and that all three Defendants were acting in concert to commit the crime. This testimony describes all of the elements of the crime of armed robbery committed by all three Defendants and further shows that each Defendant was armed with a firearm. The jury was called upon to evaluate the credibility of the victim and decided to accept his version of |sevents as true. Nothing in the victim’s testimony presented an internal inconsistency or an irreconcilable conflict with physical evidence, so the jury’s decision to credit his testimony was not manifestly erroneous or clearly wrong.

These assignments of error are without merit.

Chavis Grant

Assignment of Error 2. The Court erred in failing to grant a new trial after it was discovered that the only eyewitness to the alleged crime, besides the victim, was not the person whom the state had tried to subpoena for trial, and could not be located, even though the state referred to said individual as an eye witness in opening argument, unintentionally misleading the jury as to corroboration of the victim’s testimony.

Quincy Hill

Assignment of Error 2. Did the Trial Court err in denying Appellant’s Motion for Post-Verdict Judgment of Acquittal and / or Motion for New Trial?

Jonathan Lee Smith

Assignment of Error 6. The Trial Court committed error when it denied Appellant’s Motion for a New Trial alleging the discovery of new and material evidence.

Each of the Defendants urges that the trial court should have granted his motion for new trial upon the discovery that the person named Marcus George who testified at the hearing on the motion did not witness the crime. One defense theory advanced at the hearing was that there was, in reality, no witness named Marcus George.

La. C. Cr. P. art. 853 provides, in part: The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
|flThe court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;....

In State v. Talbot, 408 So.2d 861 (La.1980) (on rehearing), cited with approval in State v. Watts, 00-0602 (La.1/14/03), 835 So.2d 441, the supreme court stated:

The scope of the trial judge’s duty toward the motion for a new trial based upon the new evidence must be kept in mind. It was not for him to determine the guilt of [another alleged suspect] or the innocence of [the defendant]; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. The judge’s duty was the very narrow one of ascertaining whether there was new material fit for a new jury’s judgment. If so, will honest minds, capable of dealing with evidence, probably reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adducible by the defense at the time of the original trial?

Appellate courts should defer to a trial court’s reasonable decision in resolving a new trial motion. Talbot, supra. In the instant case, Defendants put forth the testimony of a person bearing the same name as an eyewitness to the crime who identified them as the perpetrators. This new witness was not the witness who saw the crime and identified the perpetrators to police. The fact that this new witness was unfamiliar with the crime or Defendants |1nand could have so testified is irrelevant and could not possibly have affected the verdict. These assignments of error are without merit.

Jonathan Lee Smith

Assignment of Error 1. The State of Louisiana committed reversible error by commenting on a prior judicial determination of the sufficiency of the evidence against the defendants in its opening statement.

During his opening statement, the prosecutor described the process by which Defendants were identified and arrested. He said:

This case happened in the way that I described. Got — you’ve got a robbery. You’ve got three armed guys getting in cars, and they go away. And, when something like that happens, the police aren’t immediately there. They don’t have someone to nab, and whoever has done a crime like this has gotten far enough away where you can’t easily find them.
What, ordinarily, happens then is you get a warrant. And warrants were gotten in this case for all three defendants, and they were subsequently arrested on different dates.
In order to get a warrant, you have to have what’s called probable cause to arrest them. And, in order — in order to do that in an investigation, a detective, like the one you will hear from in this case, Detective Cromer, will begin investigating. And he’ll try and find out exactly what happened in the crime and exactly who did it. (Emphasis added.)

The prosecutor then went on to describe the photo lineup process and correctly told the jury that Mr. Robinson had identified all three Defendants in a photo lineup.

There is no indication in the record that Smith objected to the emphasized language at trial. La. C. Cr. P. art. 841 provides, in part:

A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he |T1 desires the court to take, or of his objections to the action of the court, and the grounds therefor.

This error, if any, was waived by Smith’s failure to object to the prosecutor’s statement. Further, even if the alleged error was renewable on appeal, the emphasized language was a correct statement of the law insofar as it reflects the requirement of La. C. Cr. P. art. 202(A)(2) that, in order to issue an arrest warrant, a magistrate find probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it. This assignment of error is without merit.

Jonathan Lee Smith

Assignment of Error 2. The Trial Court committed error by not ordering a mistrial because of direct references by the State to another crime committed or alleged to have been committed by the defendant during questions of a witness during direct examination.

At the commencement of questioning the victim, the prosecutor asked the victim if he had moved from his former address on Myrtle Street. When the victim said that he had moved, the prosecutor and the victim engaged in the following exchange:

Q: Has it been in connection with this incident that you’re here to testify about today?
A: Yes. Yes.
Q: Are you scared to be here?
A: Yes.
Q: Okay. Why are you scared?
A: Because they kept intimidating my family and me.

At that point, Grant’s attorney asked for a bench conference, which was had, but not recorded. No objection to the question or the answer was put forth 1 ^on the record. Thereafter, the prosecutor did not ask any other questions about whether Mr. Robinson was afraid to testify.

On appeal, Smith urges that the prosecutor’s question was a direct reference to other crimes allegedly committed by Defendant, specifically that of intimidating witnesses, a violation of La. R.S. 14:129.1.

La. C. Cr. P. art. 770 provides, in pertinent part:

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.

The failure to object to such a reference constitutes a waiver of the issue. See, e.g., State v. Owens, 32,640 (La.App.2d Cir.10/27/99), 763 So.2d 628, writ denied, 00-0010 (La.6/16/00), 764 So.2d 963; comment (b) to La. C. Cr. P. art. 770.

Further, the prosecutor’s question did not directly refer to any other crime allegedly committed by Defendant. The comment regarding intimidation was made by the witness, not by the prosecutor. Further, the question was not inevitably calculated to lead to the witness’ response; the witness said “they kept intimidating” him, but could have simply said that he was afraid of the potential for retaliation.

Since the comment was made by the witness, not the prosecutor, La. C. Cr. P. art. 771 applies; that rule provides:

11sIn the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Since the bench conference was unrecorded, there is no evidence that any party asked for an admonishment or a mistrial; and, as noted, there is no formal objection on the record, only a request for a bench conference that was not made by Smith’s attorney. In the absence of an objection or even an on-the-record request for an admonition, this assignment of error is not properly preserved for review and is without merit.

Quincy Hill

Pro-se Assignment of Error 3. Trial court erred when allowing evidence (tape) to be used in / at trial and not induced into record as evidence, nor was it disclosed to defendant or defendant(s) attorney.

Prose Assignment of Error 4. Trial court under authority of sole discretion erred in not ruling / declaring mistrial due to perjury and tainted testimony and useage (sic) of (tape) recording.

In two prose assignments of error, Hill complains that his conviction cannot stand because the State did not produce the tape of Marcus George’s statement to his attorney.

114La. C. Cr. P. Art. 716 provides:

A.Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

La. C. Cr. P. art. 718 provides:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.

hsLa. C. Cr. P. art. 723 provides:

Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.

The taped interviews with George were not used as evidence at trial; so, under these facts, they were not discoverable unless they contained exculpatory evidence.

In State v. Tate, 38,576 (La.App.2d Cir.8/18/04), 880 So.2d 255, writ denied, 04-2554 (La.1/14/05), 889 So.2d 268, this court explained the need for the production of exculpatory evidence during discovery:

The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the state’s case against him in order to prepare his defense. State v. Roy, 496 So.2d 583 (La.App. 1st Cir.1986), writ denied, 501 So.2d 228 (La.1987). If a defendant is lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, 423 So.2d 1116, 1118 (La.1982).
Under the United States Supreme Court decision in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], the state, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection. See U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Cobb, 419 So.2d 1237 (La.1982).
The test for determining materiality was firmly established in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So.2d 965 (La.1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

Two tapes of interviews between Detective Cromer and witness Marcus George were introduced into evidence at the hearing on the motion for new trial. The first interview was done on September 4, 2003. Among other things, George said that he arrived almost simultaneously with the robbers, that he knew all of the robbers from growing up in the neighborhood and that Hill had the AK-47 during the robbery. His story differed from the victim’s primarily in that he said the robbers all had their guns out when he (George) arrived on the scene. There is nothing exculpatory in his statement for any of the Defendants. The second interview was done on September 5, 2003, where the detective showed George the photo lineups, including Defendants. George identified all three Defendants in the three lineups; again, there was nothing exculpatory for any Defendant in this interview. Accordingly, there was no Brady violation and no violation of proper discovery procedures, so these assignments of error are without merit.

Chavis Grant

Assignment of Error 1. A forty-nine and one-half year sentence for armed robbery with a firearm, plus a five year consecutive sentence, pursuant to the statute, is excessive for this offender in this case.

|17Grant received the mandatory minimum sentence of 49/é years as a habitual offender, second, for armed robbery, and additionally was sentenced to serve an additional 5 years for the use of a firearm in the crime. He verbally objected to the sentence at the sentencing hearing, but did not file a motion to reconsider sentence or any pleading to invoke the rule of State v. Dorthey, 623 So.2d 1276 (La.1993). He now complains that his sentence is constitutionally excessive. See La. C. Cr. P. art. 881.1. He also complains that the trial court erred by imposing his entire sentence without the benefit of parole. La. R.S. 15:529.1(G).

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must “clearly and convincingly show 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.” Johnson, supra, at 676; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

At sentencing, the court observed that Grant’s prior felony conviction was for possession of cocaine and that Grant had numerous misdemeanor 11Rconvictions. The judge also noted that Grant had “a sporadic work history” even though he was 29 years old. The judge further stated that Grant was the offender who actually took the money from the victim. As in State v. Mason, 39,936 (La.App.2d Cir.8/17/05), 908 So.2d 1250, nothing in Grant’s history indicates that he is the exceptional defendant for whom the imposition of the mandatory is constitutionally excessive. Further, because the underlying offense here was armed robbery and, since the punishment for that crime includes a prohibition against parole, the trial court did not err in imposing the habitual offender sentence without the benefit of parole. State v. Carroll, 41,001 (La.App.2d Cir.4/12/06), 926 So.2d 827. The minimum sentence imposed upon Grant should be affirmed.

As error patent, however, this court’s decision in State v. White, 39,634 (La. App.2d Cir.6/16/05), 907 So.2d 180, writ denied, 05-2097 (La.3/10/96), 925 So.2d 510, requires the court to delete the additional 5-year sentence enhancement imposed by the trial court under the authority of La. R.S. 14:64.3. In White, this court stated, “[t]he applicable sentence under the habitual offender law effectively replaces the sentence for the underlying crime under La. R.S. 14:64 and 14:64.3.” Thus, the additional 5-year term is deleted from Grant’s sentence.

Jonathan Lee Smith

Assignment of Error 7. The Trial Court committed error when it imposed an excessive sentence, which sentence constitutes cruel and unusual punishment in violation of the Constitutions of the United States of America and the State of Louisiana.

hnThe court sentenced Smith to serve a 55-year sentence as a habitual offender, second, and an additional 5-year term for the firearms enhancement. Like the similar term in Grant’s sentence, the firearms enhancement term is hereby deleted from Smith’s sentence.

As to the 55-year term, 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); State v. Dunn, 30,767 (La. App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a 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). The important elements which should be considered are a defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, 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, supra; 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, supra. 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.

In sentencing Smith, the trial court observed that Smith was actually a third-felony offender, not a second-felony offender, because he had prior convictions for possession of cocaine in 1998 and for attempted distribution of cocaine in 2002. The trial court also noted that Smith quit school in the 11th grade, had worked at “some fast food restaurants, lawn care” and claims to have obtained a GED in 1997. The trial court further noted that Smith had admitted to using marijuana since the age of 18 and had admitted to his probation officer that he sold cocaine. Smith is unmarried and had two children, ages 4 and 1 at the time of sentencing. The judge also stated, among other things, that Smith had a weapon and marijuana in his car when he was arrested for this offense. Primarily because of Defendant’s history of criminal activity, which included a felony drug conviction that was not included in the habitual offender bill, this is an adequate factual basis for the imposition of the 55-year sentence, only slightly higher than the minimum allowed by law. Apart from the error patent modification deleting the |21 consecutive 5-year sentence mentioned above, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions of Defendants Jonathon Lee Smith, Chavis C. Grant and Quincy Hill are affirmed. The sentence of Quincy Hill is affirmed. The sentences of Jonathon Lee Smith and Chavis C. Grant are amended to delete the consecutive 5-year sentence for the use of a firearm and, as amended, are affirmed.

CONVICTIONS AFFIRMED; SENTENCE OF QUINCY HILL AFFIRMED; SENTENCES OF JONATHON LEE SMITH AND CHAVIS C. GRANT AMENDED AND, AS AMENDED, AFFIRMED.

      . The first circuit has recently disagreed with White in State v. Bonit, 05-0795 (La.App. 1st Cir.2/10/06), 928 So.2d 633.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    SUCCESSION OF Joyce Rogers JENKINS.
    No. 41,202-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 26, 2006.

      Culpepper & Carroll, by Bobby L. Cul-pepper, Jonesboro, Counsel for Appellant, Succession of Avery Glenn Jenkins.
    Winnifred H. Jackson, Counsel for Ap-pellees, Succession of Joyce Rogers Jenkins and Linda Parker, Administratrix.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

hThe Succession of Avery Glenn Jenkins (the “appellant”) appeals a judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, which allowed the Succession of Joyce Rogers Jenkins, through its administratrix, Linda Parker, to withdraw certain funds which were being held in the registry of the court. For the following reasons, we reverse in part the judgment of the trial court and remand this proceeding to the trial court for further proceedings.

Facts

On March 8, 2003, Avery Jenkins staggered into the Shreveport Police Department covered with blood and confessed that he “may have hurt his wife,” Joyce Rogers Jenkins, in a fight. Police officers were dispatched to their house and found Joyce in a pool of blood with brain fragments splattered in the room. A chair leg was found, also covered with blood and brain fragments. Her autopsy revealed that Joyce died of “massive blunt head trauma,” as a result of being hit in the head with a “blunt object.” Avery Jenkins was arrested and charged with second degree murder.

Shortly thereafter, the Succession of Joyce Rogers Jenkins was opened, and her daughter, Linda Parker, was named ad-ministratrix. On August 4, 2004, the Succession of Joyce Rogers Jenkins filed a petition for authority to sell the matrimonial domicile located at 3021 Curtis Lane in Shreveport (the “Curtis Lane home”), which was owned by Joyce and Avery. The trial court authorized the sale and ordered that half of the proceeds of the sale (i.e., Avery’s half of the proceeds) be deposited into the registry of the court. The record indicates that sum to be $26,443.87. Subsequently, Avery filed a motion to withdraw the funds from the registry of the court, claiming his entitlement as owner of the one-half proceeds from the sale of the house. The Succession of Joyce Rogers Jenkins opposed the withdrawal and requested reimbursement for maintenance expenses and mortgage Inpayments made by the succession for the community-owned home.

Before the motions could be considered by the trial court, Avery died in prison on October 13, 2004. A hearing was ultimately held, and a judgment' was rendered denying Avery’s (now his estate’s) motion and granting the Succession of Joyce Rogers Jenkins’ request for reimbursement of certain community debts. The judgment does not specify a precise amount to be withdrawn by her Succession, presumably it was the amount requested in the motion — $13,998.55. Notably, the trial court, in the judgment, stated that the judgment might be suspended pending an appeal of same. This appeal by the Succession of Avery Glenn Jenkins ensued.

Discussion

The appellant raises one assignment of error on appeal, arguing that the trial court erred in allowing the Succession of Joyce Rogers Jenkins to withdraw the funds that belong to the appellant, refusing the appellant’s same request. Additionally, as ordered by this court, the appellant also briefs the issue of whether the judgment at issue is appealable.

The sole issue in this appeal is the disbursement of funds from the registry of the court that resulted from the sale of the Curtis Lane home, which was community property. Upon the death of Joyce Jenkins, the community property regime that existed between her and Avery was terminated. See La. C.C. art. 2356. As Joyce died intestate, her children (her only heirs) succeeded to her property, which was a one-half interest in the community property. Avery then became one-half owner of his portion in the community. La. C.C. art. 2369.2 In other words, upon the termination of the community property regime, Joyce’s succession and Avery became co-owners of the former community property, and the provisions governing co-ownership applied. La. C.C. art. 2369.1. Thus, the IsCurtis Lane home became owned in indi-visión by the Succession of Joyce Rogers Jenkins and Avery Jenkins, who was incarcerated and awaiting trial for Joyce’s murder.

The Succession of Joyce Rogers Jenkins then sought authority to sell the Curtis Lane home at private sale, noting in its motion to the trial court that it already had a purchaser for the property. Based on this motion, the trial court ordered Avery (or his agent) to attend the closing and sell his one-half interest in the Curtis Lane home. Initially, we questioned the legality of the sale of the Curtis Lane home, and, in fact, we question the legal authority by which the trial court ordered Avery to sell his one-half interest in the home without properly following the procedure for a judicial partition. See La. C.C.P. art. 4602. Moreover, the trial court clearly lacked authority to order Avery, a co-owner of the property, to sell his one-half of the Curtis Lane home at a private sale. See Welch v. Zucco, 27,634 (La.App. 2d Cir.12/06/95), 665 So.2d 697, 700, unit denied, 96-0438 (La.04/08/96), 671 So.2d 336, where this court noted that “... nothing in the code articles, comments thereto, or jurisprudence contemplates a court-ordered private sale as directed by the trial court in this matter.” However, Avery, although initially opposed to the sale, eventually acquiesced in same (after the trial court ordered him to sell his one-half interest) and signed the deed. Thus, although the steps leading up to the sale were procedurally suspect and unconventional, we conclude, due to Avery’s eventual acquiescence and participation in the sale, that the sale of the Curtis Lane home was ultimately valid.

Once the Curtis Lane home was sold, one-half of the proceeds obviously belonged to Avery, because they were derived from the sale of his one-half 1 ¿interest in the co-owned Curtis Lane home. The trial court ordered that sum to be deposited in the registry of the court, and again, we question the legal authority upon which the trial court based its order and its refusal to grant Avery’s succession the right to withdraw his share of the proceeds. However, a preliminary issue that must be addressed before we can consider the merits of the trial court’s judgment is whether the judgment being appealed is in fact an appealable judgment. We conclude that the trial court’s judg ment was in error for the following reasons.

The portion of the judgment in favor of the Succession of Joyce Rogers Jenkins states that “IT IS ORDERED, ADJUDGED AND DECREED that the Motion for Authority to Withdraw Amount Deposited in the Registry of the Court is GRANTED.” The motion referred to was filed by the Succession of Joyce Rogers Jenkins and said motion requested the disbursement of $13,998.55 for reimbursement for maintenance expenses and mortgage payments made by the succession to the community-owned Curtis Lane home. Louisiana jurisprudence requires that the final judgment itself be precise, definite and certain. Williams v. Enriquez, 40,305 (La.App. 2d Cir.11/17/06), 915 So.2d 434. The specific nature and amount of damages should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Security Nat. Partners, Limited Partnership v. Baxley, 37,747 (La.App. 2d Cir.10/29/03), 859 So.2d 890. As our supreme court held a century ago in Fontelieu v. Fontelieu, 116 La. 866, 41 So. 120, 125 (1906):

[I]f a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision. If the amount remains to be determined by a future contingency, or ascertained by references, or diminished by the allowance of an unliquidated credit, or is otherwise indefinite and uncertain, it is no proper judgment.

| ./Thus, because the exact amount awarded to the Succession of Joyce Rogers Jenkins cannot be determined from this judgment, the judgment, as it pertains to the Succession of Joyce Rogers Jenkins, is reversed and this issue must be remanded to the trial court to proceed in accordance with this opinion.

Further, although this proceeding is a succession proceeding, we consider the facts of this case analogous to the settlement of a community property regime following a divorce — another cause by which a community property regime might be terminated. Here, the Succession of Joyce Rogers Jenkins claimed in its motion that it was entitled to reimbursement of $13,-998.55 — which it characterized as expenses for the maintenance of the family home and community debts. Although the Succession of Joyce Rogers Jenkins also filed its Second Amended Detailed Descriptive List, which lists both the community assets and debts, we are unable to determine how the amount claimed by the succession for reimbursement was actually obtained or what amount the trial court considered in making its ruling. There is no evidence in the record to support the amount awarded to the Succession of Joyce Rogers Jenkins. It is evident, however, that in addition to being indeterminate, this judgment was not final, because it does not appear that all issues relating to a final accounting of the former community property have been resolved. Analogizing this case with cases dealing with partition of community property following a termination of the community by divorce, we conclude that the trial court erroneously ordered the reimbursement from Avery’s separate property at this juncture in the proceedings. A review of the record indicates that there may have been other property in the community, most of which was evidently in the control of the administratrix, Linda Parker. Notably, one community asset was cash in excess of $50,000 in a safety deposit box. It would be advisable that both successions consider their respective inventories and | sa final determination be made as to community assets and debts for a final accounting. See Nunez v. Nunez, 552 So.2d 472 (La.App. 4th Cir.10/12/89), citing Daigre v. Daigre, 230 La. 472, 89 So.2d 41 (1956), stating that “[p]iecemeal partition of property acquired during marriage and settlement of claims arising from matrimonial regimes after termination of the community has long been prohibited.” It would appear to be in the best interest of all parties for the trial court to continue the suspension of its judgment pending a final settlement of the former community property between Avery and Joyce.

Conclusion

For the foregoing reasons, we reverse the judgment by the trial court as it pertains to the Succession of Joyce Rogers Jenkins and remand with instructions to the trial court and parties to proceed accordingly. Costs of this appeal are assessed equally between the parties.

REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

      . Actually, the deed was signed on Avery’s behalf by Susan Jenkins, Avery's agent and attorney in fact by virtue of a power of attorney filed in the Caddo Parish conveyar records,

      . This is not to say, however, that we agree with the judgment of the trial court in this matter. We note that the trial court has denied the request of Avery's succession to withdraw what were legally his proceeds; however, we can see no legal basis for denying such a request. Notably, La. C.C. art. 811 calls for the distribution to the co-owners of proceeds acquired from a partition by private sale, which is, in effect, what occurred in this instance.


text:
    Audrey D. BRIGNAC, Plaintiff-Appellee, v. CITY OF MONROE, Louisiana Civic Center, The City of Monroe, TIG Insurance Company, The Louisiana Travel Promotion Association and Trinity Universal Insurance Company, Defendants.
    No. 41,207-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 26, 2006.
    Jeansonne & Remondet by Lisa C. McCowen, Donovan Jay O’Pry, II, Lafayette, for Appellant, TIG Insurance Company.
    Ted P. Sorrells, APLC, Cyd Sheree Page, Monroe, Nanci Stafford Summers-gill, for Appellant, City of Monroe and City of Monore Louisiana Civic Center.
    Musa Rahman, Baton Rouge, for Appel-lee, Louisiana Workers’ Compensation Corp.
    Allen Roy Ingram, E. Gregory Voorhies, Lafayette, for Appellee, Audrey D. Brig-nac.
    Adams, Hoefer, Holwadel & Eldridge, by Shannon-Howard Eldridge, New Orleans, for Appellee, Trinity Universal Insurance Company of Kansas, Inc.
    Nelson, Zentner, Sartor & Snellings, L.L.C. by David H. Nelson, Monroe, for Appellee, Louisiana Travel Promotion Association.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| t This suit arises from an injury sustained by Audrey Brignac, who slipped and fell during a summit being held by the Louisiana Travel Promotion Association (“LTPA”) at the Monroe, Louisiana Civic Center. As a result of her accident and injury, Ms. Brignac sued the City of Monroe (“the City”), the Monroe Civic Center (“the Civic Center”), the LTPA and their various insurers, including TIG Insurance Company (“TIG”). During the litigation, multiple motions for summary judgment were filed and argument heard on each. The trial court ultimately granted a motion for summary judgment in favor of Trinity Universal Insurance Company of Kansas (“Trinity”) and denied the one filed by the LTPA. Following the trial judge’s ruling, TIG, the City and the Civic Center all filed devolutive appeals. For the reasons set forth herein, we affirm.

FACTS

On January 23, 2002, Ms. Brignac was injured when she slipped and fell at the Civic Center, while attending the LTPA Summit being held there. She was taken by ambulance from the Civic Center and thereafter hospitalized for the injuries she sustained from her fall. As previously stated, Ms. Brignac filed suit against the City, the Civic Center, the LTPA and their various insurers.

Trinity was the general insurer for the LTPA. Following Ms. Brignac’s accident, Joyce Tiller, the office manager for the LTPA, telephoned Angela Burley at Garrett & Garrett Insurance Agency (the LTPA’s insurer) with a request for an additional insured endorsement to | ^provide insurance coverage for the Civic Center. Notably, Ms. Tiller made no mention of her knowledge that Ms. Brignac had suffered an injury on the Civic Center’s premises during the LTPA Summit. Ms. Burley forwarded the request on to Trinity’s agent, Insurance Associates, which charged a premium for two days by “backdating” the additional insured endorsement issued by Trinity and adding the Civic Center as an insured under the Trinity policy with an effective date of January 21, 2002, two days prior to Ms. Brignac’s slip and fall (although this contract was actually signed on January 24, 2002).

During the litigation, the LTPA filed a Motion for Summary Judgment claiming, inter alia, that the written contract lease of the Civic Center was not signed and, therefore, ineffective at the time Ms. Brig-nac’s injury occurred. Oppositions to the motion for summary judgment were filed, which claimed that an oral contract had been reached or, in the alternative, that witness testimony reflected that the contract had, in fact, been signed (in spite of the typed date of January 24, 2002, which was in the contract).

Similarly, Trinity filed a Motion for Summary Judgment denying coverage, defense and indemnity to the City or the Civic Center and claimed that any request made for Trinity to retroactively cover the Civic Center after this accident occurred was improper because the endorsement to the policy was not intended to include a known loss.

The Civic Center and its insurer, TIG Insurance Company (“TIG”), opposed Trinity’s motion for summary judgment asserting that the “known | Joss” doctrine was inapplicable in Louisiana and that Trinity had failed to meet its burden of proof, as required under La. R.S. 22:619.

Argument was heard on the motions for summary judgment on August 8, 2005. On September 27, 2005, the trial court granted Trinity’s Motion for Summary Judgment, assigning written reasons. Further, the trial court denied the LTPA’s Motion for Summary Judgment as it related to the contract with the Civic Center. In denying the latter motion, the trial court ruled that, regardless of whether or not it could be shown that a written contract was in existence at the time the actual summit was held, the LTPA, the City and the Civic Center had a valid contract for the summit to be held.

On October 6, 2005, Trinity submitted a proposed judgment. The next day, TIG objected to the form of said judgment. On October 19, 2005, TIG filed a Notice of Intent to file Supervisory Writs to this court with regards to the trial court’s aforementioned September 27, 2005 ruling and filed a Motion to Stay the trial proceedings. The next day, the trial judge signed Amended and Supplemental Reasons for Judgment. In its Amended Reasons, the trial court stated:

... the Court finds there was no insurance coverage for the City of Monroe/Monroe Civic Center provided by Trinity with regard to this accident. Apparently, there was backdated coverage for a higher premium for the LTPA’s Summit, but since the plaintiffs accident was a known loss at the time coverage was requested, that accident cannot be covered as it falls outside of what the insurance policy was intended to cover.... As a corollary, the Court finds that Trinity has no obligation or duty of defense or indemnification with respect to the City of Monroe/Monroe Civic Center arising from Ms. Brignac’s claim.

|4Exactly one month after signing the Amended Reasons, a partial summary judgment in favor of Trinity was signed and the motion to stay was granted with a return date on the writs set for December 28, 2005. This court denied the supervisory writs on December 22, 2005, stating that the trial court’s ruling in favor of Trinity was final. Thereafter, TIG, the City and the Civic Center all filed devolu-tive appeals seeking reversal of the trial court’s finding of a “known loss” and its ruling regarding no duty by Trinity to defend or indemnify the Civic Center under the insurance policy.

DISCUSSION

Issue Number One (verbatim): Whether the trial court’s use of the common law doctrine of known loss, rather than La. R.S. 22:619 as the primary source of law, to grant summary judgment in favor of Trinity and against the Monroe Civic Center constitutes legal error?

Issue Number Two (Verbatim): Whether Trinity failed to prove beyond a reasonable doubt that Joyce Tiller harbored an intent to deceive the insurance company at the time she orally requested a certificate of coverage for the Monroe Civic Center, when Ms. Tiller thought Ms. Brignac’s accident would be covered by workers compensation and no Trinity representative asked her about any accident or known loss?

The standard of review for the grant or denial of a motion for summary judgment is de novo. See, Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate, i.e. — (1) whether there exists a genuine issue of material fact; and (2) whether or not |sthe mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P art. 966(B). The moving party must show that reasonable minds would inevitably conclude that judgment is warranted as a matter of law on the facts before this court. Emilien v. U.R. Const., 02-0278 (La.App. 4th Cir.10/30/02), 832 So.2d 345.

TIG initially argues that the grant of Trinity’s Motion for Summary Judgment finding no insurance coverage for the Civic Center was in error. It states that, in many common law jurisdictions, the “known loss” doctrine applies if the insured knew or reasonably should have known that there was a substantial probability of loss before the policy period began. TIG points to Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5th Cir.3/15/95), 653 So.2d 1215, writs denied, 95-1536, 95-1522 (La.9/29/95), 660 So.2d 878, in which the appellate court refused to apply the “known loss” doctrine due to its inability to find any Louisiana cases in which it had been applied. See also, Estate of Patout v. City of New Iberia, 02-278 (La.App. 3d Cir.12/27/02), 849 So.2d 535, writs denied, 03-1098, 03-1099 (La.6/27/03), 847 So.2d 1270. It further states that the application of the “known loss” doctrine by the trial court in the case sub judice “effectively minimized] the burden of proof required by an insurer which is only to confirm mere | ^knowledge by an insured of a substantial probability of a loss before the policy period began.”

TIG argues, alternatively, that La. R.S. 22:619 is instructive in this matter. La. R.S. 22:619 states:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

From this, TIG points to Dye v. Walker, 36,482 (La.App.2d Cir.10/23/02), 830 So.2d 429, writ denied, 02-2868 (La.1/31/03), 836 So.2d 72, in which this court stated that, under La. R.S. 22:619, an insurer must prove that: (1) the insured made a false statement; (2) the false statement was material; and (3) it was made with intent to deceive. It further cites Irving v. USF & G, Co., 606 So.2d 1365 (La.App. 2d Cir. 1992), citing Morgan v. Golden Rule Ins. Co., 568 So.2d 184 (La.App. 2d Cir.1990), which held that, to rescind an insurance policy as a result of misrepresentation, the insurer must prove that a material misrepresentation was made with intent to deceive. TIG argues, in turn, that, while Ms. Tiller knew of Ms. Brignac’s accident and injury, there exists no evidence that Ms. Tiller harbored an “intent to deceive” the insurer at the time she requested the additional insured |7endorsement. Moreover, it states that Trinity offered no evidence of one of its representatives asking Ms. Tiller about the existence of any accident or known loss.

In summation, TIG argues that the “mere neglect” of Ms. Tiller to advise of her knowledge of Ms. Brignac’s accident and injury when she was not asked specifically about it did not equate to a misrepresentation or an intent to deceive in this case.

Trinity further responds by stating that the trial court properly granted its motion for summary judgment, finding no coverage for the City or the Civic Center because the accident and injury occurred pri- or to a request being made for insurance coverage.

Trinity states that there is no dispute that the call was made to add the Civic Center to LTPA’s policy with Trinity after Ms. Brignac had fallen and become injured. It states that representatives of the City, the Civic Center and LTPA knew of Ms. Brignac’s fall well before a call was made to Trinity to add the Civic Center to the LTPA’s policy. Trinity cites RLI Ins. Co. v. Maxxon Southwest, Inc., 108 Fed. Appx. 194, 2004 WL 1941757 (5th Cir. 2004), which stated that the purpose of insurance is to protect insureds against unknown, or fortuitous risks; fortuity is an inherent requirement of all risk insurance policies. Similarly, in B.T.U. Insulators, Inc. v. Maryland Cas. Co., 175 So.2d 899 (La.App. 2d Cir.1965), this court held that an insurance agent has no authority to contract for liability on behalf of the principal by incurring liability for a loss which has already been incurred. See also, Shelton v. Commercial Union Assur. Co., 396 So.2d 1379 (La.App. 2d Cir.1981). It notes that, in both cases (and like the case sub judice), an accident occurred after which an application for insurance coverage was made; and, in both, the court ruled that an insurance company cannot/will not insure a liability which has already occurred. Trinity states that TIG is attempting to avoid the reality that insurance covers only the possibility of future, uncertain loss rather than a loss that the insureds already knew had occurred.

Trinity further argues that TIG and the City’s argument that Louisiana does not accept the “known loss” doctrine is misplaced and nothing more than an attempt to “confuse this court.” It argues that neither Korossy, supra, nor Estate of Patout, supra, stands for the proposition that an actual, known loss or known injury-predating an insurer’s policy issuance is covered. Trinity cites Broome v. State Farm Mut. Auto. Ins. Co., 152 So.2d 827 (La.App. 4th Cir.1963), in which an attempt was made to collect on collision insurance on an automobile which had been destroyed prior to a contract of insurance being effectuated. In Broome, the court stated, “[i]t is contrary to common sense, and sound business for an insurer to knowingly agree to assume a fixed ... liability.” Trinity buttresses this with the language of Schexnaider v. Rome, 485 So.2d 245 (La.App. 3d Cir.1986), which held that no insurance company would have issued a policy covering an accident which had occurred prior to his making an application for insurance.

Similarly, Trinity argues that TIG’s reliance on Irving, supra, is “ineffective to support its position.” It states that, unlike the insured in Irving, Ms. Tiller was aware of Ms. Brignae — the injured’s — accident prior to | flrequesting insurance coverage and intentionally withheld that information when making said request.

Trinity further contends that Louisiana courts do not need to resort to La. R.S. 22:619 to resolve such a conflict, as “such losses are inherently uninsurable.” Instead, it argues that La. R.S. 22:619 addresses a different circumstance — coverage of an insurable risk when insurance is in place, but that insurance is subsequently deemed voidable.

In summation, Trinity contends that no insurance company would have issued a policy covering an accident which had occurred prior to making an application for insurance. It argues that this is the generally accepted principle guiding courts in insurance cases and should apply here. We agree.

The record in the case sub judice reflects that the trial judge was correct by ruling in favor of Trinity’s Motion for Summary Judgment and finding no duty of defense or indemnity due by Trinity. We first note that the jurisprudence is well-settled that the purpose of insurance is to protect insureds against unknown, fortuitous risks, and, moreover, that the purpose of insurance policies is not to insure liability incurred prior to being named in a policy. See, RLI Ins. Co., supra; Schexnaider, supra; Broome, supra.

We find B.T.U Insulators, Inc., supra, and Shelton, supra, are instructive here. In both cases, this court was presented with similar facts to those in the case at bar, i.e. — a loss that pre-dated an application for insurance and a fee collected by the insurer. In each respective case, this court held that an insurer cannot be bound for a cause which is uninsurable. |1(1In B.T.U. Insulators, supra, this court held that an endorsement to a policy providing collision coverage on a 1962 Ford truck, which was both requested and issued after said truck was damaged in an accident, provided no coverage even though the endorsement provided an effective date prior to the accident. We stated:

... [A]n insurance agent has no authority to contract for liability on behalf of the principal by incurring liability for a loss which has already been incurred.

In Shelton, supra, this court reaffirmed the aforementioned analysis from B.T.U Insulators, supra. The record before this court is replete with evidence that officials from the LTPA, the City and the Civic Center were aware of Ms. Brignac’s accident prior to seeking coverage from Trinity-

We further find TIG’s reliance on Korossy, supra, and Estate of Patout, supra, to be misplaced. While Louisiana does not apply the “known loss” doctrine per se, the holding in each of the respective (aforementioned) cases is not meant to stand for the proposition that an actual, known loss predating an insurance policy is somehow covered. Quite the contrary. As succinctly stated in Schexnaider, supra, no insurance company would have issued a policy covering an accident which had occurred prior to his applying for insurance. Such a loss is uninsurable. Anything otherwise is contrary to the fundamentals of Louisiana law and, more so, to the fundamentals of sound business practice or even common Insense. As a result, in Korossy, supra, and Estate of Patout, supra, the coverage was voided — as we find that it is in the case sub judice.

Similarly, we find TIG’s interpretation of La. R.S. 22:619 to be misplaced. We note the language of the statute (cited in full, supra):

B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. (Emphasis ours.)

TIG focused much of their argument on the “intent to deceive” portion of the statute and the material issues of fact (or lack thereof) surrounding the policy claim by the LTPA and Ms. Tiller; however, we find the second (italicized) portion to be more persuasive. In the case sub judice, Ms. Tiller’s silence regarding Ms. Brig-nac’s fall did materially affect the acceptance of risk and the hazard assumed by Trinity. The record very clearly indicates that, as stated, supra, virtually everyone involved in this suit knew about Ms. Brig-nac’s fall and injury except Trinity. As discussed at length, supra, it defies the basic principles of Louisiana jurisprudence and common business practice for Trinity to issue a coverage policy assuming a known liability. For these reasons, TIG’s arguments on this point are misplaced and we reject the first two issues in this case.

fylssue Number Three (verbatim): Whether material issues of fact preclude summary judgment denying coverage and Trinity’s duty of defense and indemnity to the Monroe Civic Center when the trial court determined the existence of a valid contract between the LTPA and the Monroe Civic Center to hold the Summit where the plaintiff was injured and Trinity charged a premium to backdate an endorsement to add the Monroe Civic Center as an additional insured under the Trinity policy which contains Lessor of Premises endorsement and a Designated Organization endorsement?

TIG next argues that Trinity owes indemnity and defense to the Civic Center as an additional insured under the Trinity insurance policy. It contends that the language of the Trinity policy indicates that the Civic Center fell under the terms and “schedule” of this policy. Similarly, TIG contends that the trial court correctly denied the motion for summary judgment in favor of the LTPA as it related to the contract with the Civic Center.

TIG argues that, but for the LTPA Summit, Ms. Brignac would not have been on the Civic Center premises. Trinity argues that Fleniken v. Entergy Corp., 99-3023, 99-3024 (La.App. 1st Cir.2/16/01), 790 So.2d 64, writs denied, 01-1269 (La.6/15/01), 793 So.2d 1250 and 01-1295 (La.6/15/01), 793 So.2d 1252, is instructive on this point. The plaintiff in Fleniken, supra, was injured when he stood on top of an 18-wheeler operated by Safeway Transportation, Inc. on premises owned by TMI Enterprises, Inc. and came in contact with a electrical line. Pursuant to a written lease, TMI leased an office building and half of a wash rack (for washing the bulk trailers) to Safeway. As part of the aforementioned lease, Safeway secured insurance coverage from Zurich and added TMI as an additional insured under its policy. The pertinent policy language in 11SFleniken stated, “[t]hose entities with whom the Named Insured [Safeway] executes a written Contract ... [are] include[d] as an insured.... ” Accordingly, Zurich argued on appeal that TMI was not an additional insured because Safeway was not “performing functions” for TMI at the time of the accident, as TMI had no interest in the trailer or commodities of Safeway. The Fleniken court disagreed, stating:

Zurich’s reading of the endorsement is too restrictive. Upon analysis of the relationship between Safeway and TMI, it is apparent that Safeway, as a reasonable insurance policy purchaser, would not have construed the endorsement terms as Zurich suggests.
If the provision is read as Zurich suggests, TMI would never be covered under the insurance policy; Safeway never hauled commodities for TMI because TMI was not a manufacturer. Thus, Safeway would have paid a premium for the addition of TMI as an insured, but the insurer would have provided no coverage for which it charged the premium. As apparent from the record, Safeway agreed in its written contract of lease to procure liability insurance. TMI required the standard, additional-insured endorsement in order to attain an additional layer of insurance to its own coverage in the event of its liability arising from the operations of Safeway on its property. The fact that the haul was being ‘performed for’ another company did not bar the operation from being ‘performed for’ TMI as well.

From this, TIG notes that the LTPA purchased an additional insured endorsement in favor of the Civic Center and Trinity even backdated the premium as a result. Accordingly, it argues that Trinity’s interpretation is, as Zurich’s was in Fleniken, supra, too restrictive.

TIG next argues that the insurance policy between Trinity and the LTPA is nothing more than a contract and that it should be interpreted as such. See, Epps v. City of Baton Rouge, 604 So.2d 1336 (La.App. 1st Cir.1992).i4 It notes that insurance policies must be construed liberally, in favor of coverage, and provisions susceptible of different meanings must be interpreted with a meaning that renders coverage effective rather than ineffective. See, RPM Pizza, Inc. v. Automotive Cas. Ins. Co., 601 So.2d 1366 (La.1992).

Similarly, TIG contends that the insurance contract in this case contains an endorsement naming the Civic Center as an additional insured. It states that said endorsement is shown on the policy itself as having an effective date that covers the date of Ms. Brignac’s incident in this case. From this, it argues that, in the absence of any ambiguous language in the policy, the Civic Center, as an additional insured, is presumed to be insured on the date of her accident. In other words, if Trinity did not intend for this policy to cover a known loss, they should have made mention of as much in their endorsement.

Trinity responds that the LTPA and the City fraudulently secured insurance coverage to encompass the time of Ms. Brig-nac’s accident and injury. It notes that a fraud “is a misrepresentation or a suppression of the truth” made by one party to obtain some form of unfair advantage to one party or cause loss or inconvenience to another party. Trinity states that silence or inaction can result in fraud; and, in this case, Ms. Tiller’s silence regarding her knowledge of Ms. Brignac’s accident created an unfair advantage for the City and the LTPA and constituted fraud. Aceord-ingly, h ¡/Trinity asserts that its coverage policy to the City and the Civic Center should be ruled void.

Trinity further contends that, even assuming, arguendo, that this court finds that the City was an “insured” under its insurance policy, there still exists no coverage for the City’s (alleged) liability. It asserts that the insurance policy in this case is void ab initio as it relates to the addition of coverage because Ms. Tiller intentionally withheld her knowledge of Ms. Brignac’s injury. In summation, Trinity contends that TIG “tortures and twists the [Trinity] policy language in a misguided attempt to find coverage where none exists.”

Similarly, Trinity asserts that the liability of the Civic Center does not arise out of the LTPA’s “operations” but, rather, arises from its own failure to address the damp floors caused by improper use of the center’s HVAC system. Trinity notes that the LTPA’s “operations” are irrelevant here because it did nothing to contribute to the damp floors, nor is any allegation made that it had a duty to remedy them. It argues that the City and the Civic Center have their own insurance in place (from TIG) to insure for premises liability issues such as this one. Moreover, Trinity states that its policy with the LTPA does not and is not intended to insure the City or the Civic Center against all risks, but, rather, is intended to insure those other than the LTPA against risks potentially arising out of the LTPA’s operations. To this end, it argues that TIG’s reliance on Fleniken, supra, is misplaced as, in that case, Safeway had a long-term lease and permanent presence with TMI Enterprises. To the contrary, in this case, the LTPA had only a loan of the|1fiCivic Center’s premises and had no duty to remedy potential hazards therein.

In summation, Trinity argues that TIG is attempting to have this court “condone a conscious failure” to disclose Ms. Brignac’s accident by Ms. Tiller and the City. We agree.

The record in the case sub judice reflects that the trial judge ruled correctly on the motions for summary judgment in this case and that Trinity owed no indemnity to the City or the Civic Center regarding Ms. Brignac’s accident and injury, as the insurance policy was void ab initio.

First, Louisiana jurisprudence is clear (as discussed at length, supra) that a valid insurance contract cannot be issued and enforceable “post loss/liability.” As stated, supra, it is a general guiding principle that insurance companies do not insure for liabilities that have already occurred.

Counsel for TIG argues that Ms. Tiller had no duty to “overtly” misrepresent her knowledge of Ms. Brignac’s injury, or, alternatively, that Trinity should have asked whether or not an injury occurred during the LTPA Summit prior to issuing a policy. We disagree with this position. The record reflects that Ms. Tiller was an experienced and knowledgeable insurance purchaser who admitted to withholding information regarding Ms. Brignac’s accident when she obtained the policy. In her deposition testimony, the Ms. Tiller stated the following:

Q: You’ve worked with the insurance for LTPA for a number of years; is that correct?
A: That’s correct.
117Q: Do you have any understanding— and if you don’t, just tell me — of whether or not an insurance company would insure an injury or damages after they have already happened?
A: I do have knowledge that they would not do that. They would not cover — you know, if you have an automobile incident and you’re not insured and you go out the next day and get insurance, they’re not going to cover your accident that happened the day before. (Emphasis ours.)

In our view, this demonstrates knowledge by Ms. Tiller that this manner of securing insurance coverage was not appropriate. Further, nowhere on this record does TIG dispute that everyone involved in this case knew of Ms. Brignac’s fall and injury, except Trinity, nor does it dispute that the accident did occur and was not disclosed to Trinity upon Ms. Tiller’s application for insurance coverage. Instead, TIG asserts that all of this is irrelevant because no member or associate of Trinity specifically asked whether any form of liability had occurred prior to issuing its policy to the LTPA or because a premium was collected (“backdated”) following Ms. Tiller’s policy request. It is clear that Trinity would not have collected a premium — backdated or otherwise — in this case (had it known of Ms. Brignac’s accident) because it would not have issued a policy in the first place because it was an insurable risk. Such is the standard business practice of insurance companies and the jurisprudence mirrors this practice. For these reasons, we reject TIG’s arguments on this point.

We further find that TIG’s reliance on Fleniken, supra, is misplaced. As noted in Trinity’s arguments, supra, Safeway had a long-term lease from |1STMI Enterprises in Fleniken and an established presence on the leased premises. To the contrary, in the case sub judice, the LTPA had use of the Civic Center for a markedly shorter (and not long term or continual) time period. Moreover, the plaintiff in Fleniken was injured when employing a wash rack that Safeway itself had renovated. Again, to the contrary, here, the premises of the Civic Center — where Ms. Brignac’s fall and accident occurred' — were under the exclusive control of the City and the Civic Center management. For these reasons, we reject the arguments of TIG on this issue.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court in favor of Trinity Universal Insurance Company of Kansas is affirmed. Similarly, the trial court’s denial of the LTPA’s Motion for Summary Judgment is affirmed. Costs of this appeal are assessed to TIG Insurance Company, the City of Monroe and the Monroe Civic Center.

AFFIRMED.

      . The complete procedural posture of the case sub judice is discussed at length, infra.

      . For a discussion of the “known loss” doctrine, see, infra.

      . We have elected to combine these issues for the purposes of this appeal. Similarly, the arguments submitted by TIG and the City/Civic Center have been combined for the purposes of this opinion and these entities will be referred to collectively as "TIG.”.

      . This issue is taken, verbatim, from TIG's brief. This court notes that the "beyond a reasonable doubt” standard is inapplicable to this civil action.

      . We note that neither case mentioned here is from this circuit, nor does our research suggest that either has been adopted by this circuit.

      . This court wonders, were the roles reversed, if TIG would readily issue a policy to cover known injury or loss to an insured seeking coverage who failed to mention said injury or loss upon application. The answer would almost assuredly be a resounding "no.”

      . See, La. C.C. Art 1953.

      . We further note that, save a mention of it by one witness at trial and the occasional reference of it by TIG, there exists no objective evidence reflecting any backdated premium which Trinity collected for its policy issuance in this case.