text:
    STATE of Louisiana, Appellee v. Courtney Dion RAY, Appellant.
    No. 42,096-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2007.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Scott J. Chafin, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

h Courtney Dion Ray was charged with possession of a firearm by a convicted felon and convicted of attempted possession of a firearm by a convicted felon. He received a sentence of four months at hard labor, without the benefit of parole, probation, or suspension of sentence. Ray appeals his conviction. We affirm.

Facts

On August 4, 2004, Corporal Jeff Peters and Agent Chad Denham of the Shreveport Police Department were called to the La Tierra apartment complex in Shreveport to investigate a narcotics complaint. When they arrived on the scene, they witnessed several males running from the front of the complex. As the officers entered the courtyard in their vehicle, Corporal Peters spotted Ray coming around a corner and observed him lift his shirt and pull out a black handgun. He yelled, “gun” to Agent Denham, and the two officers gave pursuit of the defendant. Ray ran into a breezeway of the apartment building, causing the officers to lose sight of him for approximately five seconds. The officers were eventually able to apprehend Ray at the entrance of the breezeway as he was coming out. After placing the defendant under arrest, Agent Denham conducted a search of the premises and discovered a Glock 17 nine millimeter handgun underneath a doormat in the breezeway.

Ray was charged with possession of a firearm by a convicted felon and convicted in a bench trial of attempted possession of a firearm by a |2convicted felon. He was sentenced to four months at hard labor, without the benefit of parole, probation, or suspension of sentence. After the denial of motions for post verdict judgment of acquittal and new trial, Ray appealed his conviction.

Discussion

I.

On appeal Ray argues that the evidence adduced at trial against him was insufficient to support his conviction for attempted possession of a firearm by a convicted felon because he was simply at the wrong place at the wrong time. He argues that the testimony of one police officer, who only caught a split-second glimpse of him pulling something from his waistband, is insufficient to support his conviction when a second officer seated next to him did not make the same observation. Ray also argues that there was absolutely no evidence linking him to the gun found at the scene which was located in a high-crime area, known for violence, drugs, and weapons. Consequently, he complains that it was impossible to ascertain the length of time that the gun had been in the breezeway and any possession of the gun on his part.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant may be entitled to an acquittal under Hudson v. Loui siana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if the evidence is constitutionally insufficient. 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 for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all 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. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La.C.Cr.P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App. 2d Cir.8/18/99), 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. |4La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or 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. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App. 2d Cir.9/27/95), 661 So.2d 657.

The charged offense is a general intent crime. Attempt, however, is a responsive verdict to the charged offense. La.C.Cr.P. art. 815; State v. Tatum, supra. To sustain a conviction for attempted possession of a firearm by a convicted felon, the state is required to prove that defendant had the specific intent to possess the weapon(s) and that he committed an overt act towards the completion of that offense. La. R.S. 14:27. (Emphasis added). Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed consequences to follow his act or failure to act. La. R.S. 14:10(1). Because intent is a state |Bof mind, it can be inferred from the circumstances of the transaction and the action or inaction of defendant. State v. Johnson, 584 So.2d 1216 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1057 (La.1991).

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). A compromise verdict is a verdict which does not “fit” the evidence, but which (for whatever reason) the jurors deemed to be fair. Where a defendant fails to interpose a timely objection to a legislatively provided responsive verdict which is not also a lesser and included offense of the crime charged, conviction will not be reversed if such a verdict is returned, whether or not the verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. Id. It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise verdict” will be returned and then to raise the complaint for the first time on appeal. Id.

In this matter, because there was evidence, if believed, that established Ray had possession of a gun and then hid it, the judge’s verdict was apparently a compromise decision to find defendant guilty of something less than the charged offense. Ray did not object to the inclusion of the responsive verdict of attempted possession of a firearm by a convicted felon at a time when the judge could have removed it from his consideration. Therefore, our sufficiency review is directed at the charged offense.

Ray stipulated that he was convicted of a felony, specifically | fipossession of a Schedule II controlled dangerous substance, in April of 2001. The sole contested issue in this matter is whether the defendant possessed the firearm.

Corporal Peters testified that he recognized Ray in the apartment courtyard while the defendant was approximately 10 to 15 feet away from his patrol car. Corporal Peters recalled that Ray was wearing tan, light-colored clothing, including shorts. At that time, he placed his vehicle lights on bright to illuminate the defendant’s face. According to Peters, Ray lifted his shirt with his left hand and pulled out a black handgun with his right hand. Corporal Peters testified that he alerted Agent Denham about the gun, and drew down his handgun in the defendant’s direction. The defendant turned and ran into the breezeway of the apartment complex.

While other suspects also ran into the breezeway, Peters testified that they did not advance farther into the breezeway than the defendant. Peters did not pursue the defendant into the breezeway, and lost sight of him for five seconds. When the defendant made his way out of the breezeway, Peters ordered him down to the ground. No weapon was found on the defendant.

Agent Denham testified that he witnessed the defendant lift his shirt and pull out the “object” that Corporal Peters identified as a gun. Agent Denham also testified that he could not immediately identify the object as a gun at that point. He stated that after placing the defendant under arrest, he conducted a search of the breezeway and discovered a Glock 17 nine millimeter handgun underneath a doormat. Moreover, he stated that 17although he saw the defendant and another suspect enter the breezeway during the chase, he never lost sight of the other suspect. He also testified that during his pursuit of the defendant, he did not see anyone else come out of the breezeway or hear any doors or windows close.

After reviewing the record in its entirety, we find the evidence sufficient to support Ray’s conviction. Both police officers testified that they observed Ray pull an object from his shirt and subsequently run into an enclosed breezeway. Officer Peters clearly identified the object as a gun. Both officers testified that they momentarily lost sight of Ray when he disappeared into the breezeway and moved farther into the enclosure than any of the other suspects. The gun was discovered in the back part of the breezeway, in an area where only the defendant had the opportunity to discard the weapon after eluding the police. Officer Peters’ observation of Ray with a gun and the officers’ discovery of a gun in the breezeway from which they saw Ray enter and exit is adequate evidence to show that Ray possessed the firearm with guilty knowledge. Moreover, Ray’s possession of a firearm is adequate proof to prove the specific intent required for a conviction of the lesser and responsive attempt verdict. See similar facts in, State v. Davenport, 615 So.2d 1090 (La.App. 4th Cir.1993), writ denied, 620 So.2d 839 (La.1993). Thus, Ray’s conviction for attempted possession of a firearm must be upheld.

II.

Ray next argues that the trial court erred in its refusal to grant a continuance to allow the defense an extra day to secure the presence of three | Smissing witnesses. He complains that he was deprived of testimony which would have had a significant impact on the trial court’s decision by casting a reasonable doubt on his culpability in the matter. Because these witnesses were under subpoena and had been present in court on previous occasions, Ray surmises that any one of the witnesses might have admitted to ownership of the gun, explained how the gun got under the mat, or provided the missing piece of information that would have exculpated him.

As a general matter, the decision to grant or deny a motion for continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb a trial court’s determination absent a clear abuse of discretion. La.C.Cr.P. art. 712; State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218; State v. Gipson, 28,113 (La.App. 2d Cir.06/26/96), 677 So.2d 544, writ denied, 96-2302 (La.1/31/97), 687 So.2d 402.

The requirements for a motion for continuance based upon the absence of a witness are set forth in La.C.Cr.P. art. 709:

A motion for a continuance based upon the absence of a witness must state:
(1) facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) facts showing due diligence used in an effort to procure attendance of the witness.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841.

|9The minutes indicate that the case was continued numerous times during 2005 and 2006. When the trial finally commenced on July 17, 2006, defense counsel stated for the record that she had requested and was granted a continuance of the case on March 1, 2006, due to the absence of four defense witnesses. Counsel also noted that on the next scheduled court date of April 19, 2006, she saw the witnesses in the hallway. On that date, however, the state was granted a continuance. Counsel also explained to the court that after April 19, 2006, the case was continued by the court another two times due to scheduling problems. Counsel further explained that she had subpoenaed the witnesses for those court dates and they showed up for trial.

On July 17, 2006, the trial commencement date, the four witnesses were absent. The court heard the statements of counsel regarding the witnesses’ absence and agreed to take the matter up at a later time in the proceedings. Thereafter the state began and completed presentation of its case-in-chief. On July 17, 2006, defense counsel also began the presentation of the defendant’s case and called the defendant’s brother to the stand. After this witness testified, the court informed defense counsel that because the missing witnesses had been subpoenaed but failed to appear at trial, it was granting counsel one opportunity to get the witnesses. The court continued the trial until August 1, 2006, for the further taking of testimony. It was not until August 7, 2006, that the trial resumed. Defense counsel informed the court that she had issued several subpoenas in the case and that only one of the missing witnesses was present and prepared to |intestify for the defense. She named three others who were subpoenaed but absent. The court asked counsel if she knew where the witnesses were and whether they were served. Counsel confirmed that the witnesses were served. She also stated that Ray informed her that an unknown third person had signed for two of the witnesses who resided in the same residence. Counsel further explained that Ray had attempted to contact the two witnesses about coming to court and he was informed that they no longer resided in the place of service. The trial court allowed counsel to question the one witness who showed for trial. After Ray testified in his own behalf, defense counsel requested an additional day to get the missing witnesses. The state urged an objection to the oral motion to continue. The trial court denied defense counsel’s request because the witnesses had been subpoenaed and did not return to court. Defense counsel did not lodge an objection to the ruling and the trial resumed to conclusion.

Because no contemporaneous objection to the denial of a continuance was lodged, Ray has waived his right to complain of this issue on appeal. Moreover, we find that Ray has made an insufficient showing that the testimony of the missing witnesses would have bolstered his case. In particular, Ray only speculates that any one of the witnesses might have admitted to ownership of the gun, explained how the gun got under the mat, or provided the missing piece of information that would have exculpated the defendant. Finally, there is no abuse of discretion in denying a motion for continuance where there are no facts produced at a hearing showing a probability that the missing witness will be available to testify at some later lúdate. State v. Jasper, 677 So.2d 553 (La.App. 2d Cir.1996); State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983), writ denied, 442 So.2d 460 (La.1983). According to defense counsel, Ray inquired about the presence of two of the missing witnesses and was informed that the witnesses no longer resided at their addresses of record. Furthermore, the defense did not indicate that they were aware of an address where the witnesses could be located. For these reasons, we find no abuse of discretion in the trial court’s refusal to grant the continuance.

Ray’s conviction and sentence are affirmed.

AFFIRMED.

      . The state also dismissed charges against Ray of illegal possession of stolen things arising from the incident.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Vincent J. GLORIOSO III v. MARINER’S COVE TOWNHOUSES ASSOCIATION, INC. Mariners Cove Townhome Association, Inc. v. Vincent J. Glorioso, III a/k/a Trey Glorioso.
    Nos. 2006-CA-1657, 2006-CA-1658.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.
    Rehearing Denied Aug. 8, 2007.

      Vincent J. Glorioso, Jr., Maria B. Glorio-so, The Glorioso Law Firm, New Orleans, LA, for Appellee, Vincent J. Glorioso III, etc.
    Jacob Kansas, Kansas & Kansas, LLC, Gretna, LA, for Appellant, Mariner’S Cove Townhome Association, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Plaintiff-Appellant Mariner’s Cove Townhome Association, Inc. appeals the trial court’s assessment of damages against Defendant-Appellee Vincent J. Glorioso, III. For the reasons that follow, we affirm.

FACTS

Appellant Mariner’s Cove Townhome Association, Inc. (hereafter “Mariner’s” or “Appellant”) sued Appellee Vincent J. Glo-rioso, III as the owner of a condominium at Unit 5, Spinnaker Lane, New Orleans, Louisiana, to recover Association fees, interest, attorney’s fees and costs.

On April 3, 2003, Appellee, Mr. Glorioso, III (hereafter “Mr. Glorioso”), mortgaged the property. At the time Appellee mortgaged the property, the condominium fees were $2,600.00 per year, payable in two $1,300 installments. Accordingly, Appellee was billed by Mariner’s for one 2003 installment, which he disputed. Appellee also disputed the 2004 bill, which totaled $2,600.00.

Mariner’s mailed Mr. Glorioso a demand letter in October 2004. After some negotiation, in March of 2005, Mariner’s sent a Compromise and Settlement ^Agreement to Mr. Glorioso, providing that a total of $6,857.88 be paid in twelve monthly installments of $571.49. Between May and July of 2005, Appellee made four payments of $100.00 each. Mariner’s filed suit on June 28, 2005, before receipt of the July $100.00 payment. On August 22, 2005, counsel for Mr. Glorioso mailed a check to Mariner’s for $6,200.00 to settle the matter; the next day, counsel for Mariner’s replied in writing to advise that the check would cover the principal amount only, and to further advise him that the remaining costs and fees would be litigated. Before the matter could be resolved, Hurricane Katrina struck on August 29, 2005, and Mr. Glorio-so eventually withdrew his offer.

PROCEDURAL HISTORY

After a trial on August 24, 2006, the court found that Mariner’s was entitled to Association fees from Appellee for March 13, 2003, through August 31, 2005, a total of $5,633.00 (less the previously paid $400.00, for an actual total of $5,233.00), including interest at 18% (for July 2003 through August 2005) and attorney’s fees at 15%. The court further determined that this assessment would be suspended until the Mariner’s Association was again active on the property. This appeal followed.

I,¿DISCUSSION

In its first assignment of error, Mariner’s asserts that the trial court erred in suspending the judgment against Mr. Glorioso and in finding that there has been no activity by Mariner’s on the property. We disagree.

Mariner’s argues that the Association’s charter provides for the right to establish reserves for capital improvements, that it incurred and paid expenses in 2005, and finally, that despite the fact that the activities for which the fees are normally imposed were not occurring, that other, “non-visible” activities were occurring, necessitating the need to continue to collect Association fees at the same level as before Hurricane Katrina.

Mariner’s concedes, however, that the property was not habitable after the hurricane, and acknowledges that the property could not receive water, sewerage, ^drainage, or electrical service, all of which would have been necessary to make repairs and/or rebuild property. Additionally, Mr. Glorioso put forth evidence at trial that the property was not livable; that no guards or security were in place; that looting had occurred on the property; that the grass had been cut only on one occasion; that there were no waste management services; that no repairs had been made; that fences and gates remained unrepaired; and that the Association Board elected not to rebuild the property, but to sell it to a developer.

It is well-settled in Louisiana that appellate courts may not disturb findings of fact absent manifest error:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987); Rosell, supra; Stobart, supra.

Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Moreover, the trial court is in a superior position to evaluate the weight of the evidence and the credibility of witnesses. See, e.g., Harris v. Doucette, 539 So.2d 997, 999 (La.App. 4 Cir.1989). We find that the trial court was not manifestly erroneous in its determination that Mr. Glorioso’s assessment should be suspended until the Association resumes activity on the property, and Mariner’s has failed to cite any legal authority to the contrary. This assignment of error lacks merit.

Un its second assignment of error, Mariner’s submits that the trial court erred in limiting attorney’s fees, interest, and costs. We disagree.

Mariner’s declarations, in the amendments to Article VII, provide for a “reasonable attorney’s fee” and interest at either 1.5 per month or an “other reasonable rate that may be fixed by the Board and uniformly applied” in the event that the Board must collect a delinquent assessment. After hearing the testimony from the witnesses at trial and reviewing all of the evidence, the trial court determined that 15% was a reasonable measurement of attorney’s fees, as well as 18% interest. Absent an abuse of discretion, an appellate court will not interfere with an award of costs. Vela v. Plaquemines Parish Gov., 00-2221, p. 29 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, 1283. Because we do not find that the trial court abused its discretion with regard to its determination of attorney’s fees and interest, we find that this assignment of error is likewise without merit.

Without reference to any legal authority, Mariner’s also assigns as error the trial court’s exclusion of a report from MCI Consulting Engineers dated December 9, 2005. Mariner’s maintains that this report would have established the Association’s anticipated expenses and thus the need to build monetary reserves. Therefore, Mariner’s argues, it would have evidenced the Association’s need to maintain the annual fees at $2,600.00 and sustain approximately $100,000 in its reserves post-Hurricane Katrina, when essentially none of the activities for which the fees are collected were actually occurring. Because we find no error in the trial [^court’s suspension of the assessment against Mr. Glorioso, we find that the alleged error of excluding the engineering report, if any, was harmless.

Finally, Mariner’s submits that the trial court erred in canceling the Association’s lien and privilege that was recorded in the Orleans Parish mortgage records. This assignment of error is no longer relevant, as Mr. Glorioso has subsequently sold the property at issue. Accordingly, this assignment of error is now moot.

The judgment of the trial court is hereby affirmed.

AFFIRMED

      . Mr. Glorioso, Jr. is the father of Mr. Glorio-so, III, and represents him in the instant case.

      . The correspondence dated August 23, 2005 to Mr. Glorioso, Jr., from Jacob Kansas, counsel for Mariner’s, read as follows:
      Before I accept your son’s check of $6,200, I want to make it perfectly clear that I intend to proceed for interest, attorney's fees and court costs. This will further confirm that I have rejected your offer of $300.00 for settlement of the interest and attorney’s fees, and accordingly I am setting the matter for trial.

      . Within the declarations of Mariner's Cove Townhomes, in Article VII, under the heading "Purpose of Assessments" is a description of how the condominium fees are expended (emphasis supplied):
      The assessments levied by the Association shall be exclusively for the management and maintenance of the Properties, for the purpose for the performance of the duties and obligations incurred by the Association pursuant to these Declarations, for repairs, replacement, maintenance and insurance of walkways and streets within the Properties, caring for the grounds, mowing grass, landscaping, garbage pickup, administration expenses, working capital, the hiring of personnel necessary for implementation, rental and acquisition of real or personal property, and in connection with other duties to be performed under these Declarations, or that the Association, in its opinion, shall determine to be necessary and desirable including the establishments and maintenance of a cash reserve for such repairs, maintenance and other expenses to be incurred as herein specified. In the event repairs are required resulting from negligent acts of the Owner, the Owner’s family, guests, employees, invitees or lessees, the Association shall be reimbursed forthwith by such Owner thereof.
      Additionally, in Article I of the declarations, the definition of "Expenses of Maintenance” is described as follows (emphasis added):
      "Expenses of Maintenance” shall mean the Owners’ pro rate (1/58 interest) share of the general common expenses including but not limited to, maintenance of all streets and pedestrian walkways within the project, lawn maintenance and landscaping, maintenance of water and sewer service, management costs, reserves for capital improvements, assessments and all other charges which the Association may levy upon the Owners in accordance with this Declaration.

      . Mariner’s maintains that although it is not performing the listed activities under Article I or VII for which the assessments are collected, that it has incurred legal expenses in dealing with the Army Corp of Engineers and with regard to establishing legal requirements to sell the condominium complex. Mariner's also asserts that it continues to incur management fees that are paid to Mary Haindel, the owner and manager of Mariner’s Cove, who testified that she performed financial work, issued correspondence, conducted meetings, and so forth.


author: DREW, J.

text:
    Shirley BURKS, Plaintiff-Appellant v. AFFORDABLE MORTGAGE, L.L.C. (Northgate Realty, L.L.C.), Defendant-Appellee.
    No. 42,280-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 11, 2007.
    Shirley Burks, In Proper Person.
    Northgate Realty, L.L.C., Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   DREW, J.

hMs. Shirley Burks filed suit in proper person in Monroe City Court, complaining that the home she bought had numerous structural and cosmetic problems, the repair of which should have been the responsibility of the seller. The trial court disagreed. Based on this confusing record, we cannot say that the trial court’s judgment was clearly wrong. We affirm the lower court’s judgment.

BACKGROUND AND TRIAL

After Burks decided to purchase a home, she testified that her pastor gave her the phone number of Gwen Fields at Affordable Mortgage who told Burks she had found Burks a nice house. According to Burks, Fields told Burks that it “is going to be like a brand new house.” When Burks visited the house, the remodeling was in progress. Burks informed the trial court that she just glanced in, “Didn’t go on the back or on the outside, just walked in and walked out.” She believed the house would be nice when completed and decided to buy it.

Sometime thereafter, Burks stated that Gwen called and, in Burks’ opinion, rushed her to complete the purchase. On September 16, 2005, Burks signed the cash deed and purchased the property for $72,600. She understood that the house was going to “be fixed like a brand new house.” After moving in, Burks was very dissatisfied about myriad perceived defects and demanded that the seller fix the home to her satisfaction. Burks filed her suit on November 28, 2005, seeking to compel the seller to repair the home.

| ¡Among the many problems cited by Burks were unlevel and rough cabinets, poor paint work, uneven floors, leaking plumbing, uncovered electrical outlets and light switches, back piece from an entertainment center used in floor beneath carpet, no light in hall, substandard carpentry work, crudely done baseboards, smoke marks on the exterior, poorly hung screen door, inadequate heating and cooling, and lack of vent covers both inside and outside. Burks introduced into evidence numerous photographs of alleged defects along with a videotape showing her complaints. Plaintiff maintained that no one informed her that the house had been damaged by fire. Burks also emphatically denied that she initialed the waiver of warranty in bold face print on the cash deed.

In addition to the photos and videotape, Burks placed into evidence the cash deed she said was given to her at closing with only her signature and that of Gilmer Hin-gle, representing the seller, Northgate Realty, LLC. She also supplied a certified copy of the deed, which included signatures of witnesses and the notary, a copy of the appraisal for $81,000, the loan closing instructions, and a copy of the fire report on the property.

Gilmer Hingle testified:

• He was authorized to act for the vendor Northgate Realty;
• He had no knowledge of representations made to Burks by others prior to the closing;
• Burks’ complaints about the roof leaking were not made until approximately a year after the closing;
• Repairmen sent by Northgate five or six times after the closing made virtually all Burks’ requested repairs;
• Burks had ample opportunities to see the home prior to the closing;
Is*He explained the deed and closing documents to Burks at the closing; and
• Concerning Burks’ signature and initials on the cash deed, Hingle was “absolutely positive I saw you sign that and I’m virtually positive you initialed it [the waiver of warranties in the deed]. It wasn’t at the same time, because we forgot to do it the first time.”

With a confused stipulation by Burks, the defendant placed the entire record into evidence along with affidavits from Gwen Fields, the CEO of Affordable Mortgage, the lender, and Keith Reynolds, a contractor who made repairs on the home. The trial court labored to explain to Burks that, if present, Fields and Reynolds would have testified consistently with the contents of the affidavits and that Burks would not have the opportunity to cross-examine them.

In Fields’ affidavit, she attested that an electrician and a plumber were sent to the house to deal with complaints, that the home is insulated, that the flooring is up to code, and that all defects have been either fixed or did not exist, notwithstanding Burks’ waiver of any defects in purchasing the house “as is.”

The content of Reynolds’ affidavit was that:

• He redid the home following fire damage;
• Burks came to the job soon after he began work when there was visible fire damage;
• Burks made several visits while work was in progress and knew the house was being redone because of fire;
• Burks made no complaints about his workmanship;
• The home repairs were “up to code”;
• The house is insulated, has no unpainted smoke damage, no unseemly openings, has plyboard sub-flooring, proper plumbing and wiring, |4doors working or replaced, correctly installed baseboards, and no missing trimming.

The trial court rejected Burks’ demands, based primarily upon the clear, unambiguous language contained in bold-faced print on the single page cash deed.

The edifice and any structures situated upon the above described immovable property is sold in [an] “as is” condition without any warranty whatsoever, expressed or implied. Purchaser expressly waives all implied warranties, including any warranty of merchantability, any warranty of fitness for a particular purpose and any warranty against hidden or latent defects. Purchaser further waives any right purchaser may have to demand recission [sic ] of this sale or reduction of the purchase price for any breach of any such implied warranties.

DISCUSSION

The trial court observed that a redhibi-tory vice which renders a thing useless entitles a buyer to rescind the sale. A redhibitory defect which diminishes the item’s usefulness so that it is presumed the buyer would not have purchased it had the buyer known of the defect entitles the buyer to a reduction of the purchase price. La. C.C. art. 2520. Seeking neither to rescind this sale nor to have a reduction of the sales price, Burks demanded that the property be repaired.

The seller owes no warranty for defects known to the buyer at the time of sale or for defects which a reasonably prudent buyer should have discovered. La. C.C. art. 2521. Most relevant is La. C.C. art. 2548, which directs that parties may agree to exclude a warranty against redhi-bitory defects provided the exclusion is clear and unambiguous and brought to the attention of the buyer. The determination of whether a defect is apparent by | ¡^reasonable inspection is a factual determination that will not be disturbed by the appellate court unless manifestly erroneous. Dage v. Obed, 40,414 (La.App. 2d Cir.12/14/05), 917 So.2d 713.

The trial court correctly found that the fire damage was readily apparent from discoloration in the carport area and that many of the interior issues were cosmetic with some defects which would have been easily discoverable by a licensed real estate inspector. Moreover, the videotape placed into evidence by plaintiff revealed that most of her complaints dealt with matters easily observable by anyone examining the property. By Burks’ own statement, her first look at the property was cursory, after which she decided to buy the property without making a careful examination of the house for what was primarily noticeable flaws. Rather than assisting her, the videotape illustrated that Burks bought the house even though the majority of her complaints were clearly recognizable with the simplest scrutiny.

We cannot say that the trial court was manifestly erroneous in determining that the waiver of warranties contained in the cash deed signed by Burks was clear and unambiguous and brought to Burks’ attention. As observed by the trial court, the cash deed was a single page document with the relevant language contained in clear bold-faced print, standing out from the rest of the instrument. The trial court also pointed out that the sales price of $72,600 was less than the appraised value of $81,000.

For whatever reason, Burks acquiesced in her friend’s rushing her to complete the sale. She knowingly signed a Cash Sale Deed containing a 16clear and unambiguous waiver of all defects, accepting the house on an “as is” basis. She is undoubtedly sincere in believing she was misled by scoundrels, and she may have been, but she was her own worst enemy in hurrying to sign this deed. Regrettably, she chose to undertake the most significant purchase that most folks make in a lifetime, without:

• seeking advice,
• obtaining independent counsel, or even
• making a detailed examination of the property.

Burks acknowledges candidly that she signed the cash deed. It is well settled that signatures to instruments are not mere ornaments. A person signing a written instrument is presumed to know its contents. She cannot avoid its obligations by contending that she did not read it, that it was not explained to her, or that she did not understand its meaning. See Cason v. Cason, 38,974 (La.App. 2d Cir.10/27/04), 886 So.2d 628. Unfortunately in this dispute, it is not within the province of this court to give relief to this plaintiff, who, subsequent to the purchase of her home, became dissatisfied with problems obviously extant at the time of the purchase.

We are uneasy, however, as this real estate transaction fails to pass the “sniff test” for many reasons:

• Defendant Northgate Realty, LLC, was represented, apparently in proper person, at trial by Gilmer P. Hingle, “member,” who not only testified, but also questioned witnesses in the de facto role of an attorney, even though he is disbarred;
• The evidence preponderates that the Cash Sale Deed in question here was signed outside the presence of a notary, and possibly outside the presence of the “witnesses” thereto; while all signatures are | ./‘notarized,” Hingle acknowledged at trial that the notary was not present when some of the documents were signed;
• The photographs belie the appraisal, to a great extent; and
• Even though Ms. Burks signed the deed, there is at least some evidence that someone else placed her (superfluous) initials on the document.

There are predators in the world of commerce who prey on people who are unschooled in legal transactions, and who are unable or unwilling to secure competent legal counsel. This may well be one or both of these situations. Ms. Burks pursued her complaints without assistance and filled the record with unclear pleadings, as well as confused and inconclusive testimony and evidence. Sadly, the status of this convoluted and piecemeal record disallows us the ability to provide Ms. Burks any legal relief.

This buyer and this seller had wildly divergent expectations about the remodeling of the house. While the record does not contain the proof, we surmise that this lady was permitted to be unrealistic in her understanding of what the vendor would provide in the way of renovations. We would suggest that the involved employees, agents, and principals of the vendor corporation take a good look in the mirror, and take stock of their business practices with those least able to protect themselves.

DECREE

At the cost of plaintiff, the judgment is AFFIRMED.

      . Whatever happened to the requirement that notaries identify the folks who come before them, and physically see them sign the document to be notarized?

      . The copy of the deed furnished to Burks at the closing lacks the following: her initials, the signatures of witnesses, and the signature of the notary.


author: MOORE, J.

text:
    Charles ALEXANDER, et al., Plaintiffs-Appellees v. Charles CORNETT, et al., Defendants-Appellants.
    No. 42,147-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 11, 2007.

      Perrier & Lacoste, L.L.C., by Guy D. Perrier, Rodney J. Lacoste, Jr., Richard C. Ely, Jr., Randy Thomas Cresap, for Appellant State National Ins. Co.
    Craig & Gatti, by Ryan E. Gatti, Bossier City, for Plaintiffs/Appellees Charles Alexander and Cindy Alexander.
    Seabaugh, Benson, Keene, Denny & Gerhardt, by Alan T. Seabaugh, Christopher B. Joffrion, Shreveport, for Plaintiff/Appellee State Farm Mutual Automobile Ins. Co.
    Rountree, Cox, Guin & Achee, by Billy J. Guin, Jr., Shreveport, for Defendants/Appellees American National Property & Casualty Company and Charles Cornett.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   MOORE, J.

I iThis is an appeal of a judgment holding that State National Insurance Company (“State National” or “Appellant”) waived the right to assert a defense that the defendant, Charles Cornett, is not an insured under a commercial garage liability coverage policy issued to the plaintiffs business, Charlie’s Auto Sales. State National contends the trial court committed three legal errors: (1) by finding that it was required to specially plead the provision excluding the appellee as a named insured in its answer; (2) by finding that the defendant, Charles Cornett, was an “insured” under the policy; and, (3) by finding that State National waived its defense to coverage. State National also contends that the trial court was clearly wrong in finding that, as a matter of fact, it provided a defense to Charles Cornett.

For the following reasons, we reverse the judgment of the district court and dismiss the plaintiffs’ claim against State National. We remand the case for further proceedings.

Facts and Procedural History

The case arises out of an accident that occurred at Charles Alexander’s used automobile sales lot, “Charlie’s Auto Sales, Inc.,” in Vivian, Louisiana, on November 27, 2001. A customer on the lot, Charles Cornett (“Cornett”), was preparing to test drive a 1993 GMC Safari van when he backed the vehicle into Mr. Alexander, the owner of Charlie’s Auto Sales. Mr. Alexander was knocked to the ground and sustained injuries.

| ^Charles and Cindy Alexander (“Alexander”) filed a petition on March 18, 2002, against Cornett and his own automobile liability insurer, American National Insurance Company (“American”). The petition alleged that Cornett’s negligence was the sole cause of Alexander’s injuries. American retained attorney Billy Guin to defend itself and Cornett.

Six weeks later, on May 2, 2002, Alexander filed an amended petition in which he named his own company’s liability insurer, State National Insurance Company (“State National”), as a defendant. The amended petition alleged that on the date of the accident, State National had both a liability insurance policy and a UM/UI motorist coverage policy in effect for “Charlie’s Auto Sales.” It further alleged in paragraph six that the policy provided liability coverage on the van and liability coverage for the defendant driver, Cornett, and alleged in paragraph seven that the policy provided uninsured/underinsured motorist coverage for Alexander.

State National answered the amended petition on June 13, 2002. It admitted only that it issued an insurance policy to “Charlie’s Auto Sales,” but denied the other allegations, including the allegation that the liability policy covered Cornett. It alleged that the “policy is the best evidence of its contents ■ and strict proof thereof is required.” State National also denied UM/UI coverage on Alexander. Alexander had executed a waiver of UM/UI coverage when he obtained the policy for his company.

Nine months after it answered the amended petition, State National asked Alexander to dismiss his claims against it on the basis that Cornett was not an insured under the garage policy definition of “Who is an |sInsured,” and that he (Alexander) had waived UM/UI coverage when he purchased the garage policy from State National. The commercial garage policy purchased by Alexander contains a limiting provision commonly found in garage policies that expressly excludes customers of an automobile dealership in its definition of an insured, unless the customer does not have liability insurance of his own or is statutorily underinsured. Since La. R.S. 22:671 provides that the driver’s personal liability policy is primary in “test drive” circumstances at auto dealerships, these garage policies are designed to meet the minimum liability insurance requirements under the state’s compulsory insurance law by providing liability insurance in cases where the driver is uninsured or underin-sured. The specific provision in the State National policy reads:

WHO IS AN INSURED
a. The following are “insureds” for covered “autos”;
(1) You for any covered “auto”.
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(d) Your customers, if your business is shorn in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
14(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is primarily garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit or other insurance.

(Emphasis Supplied).

Since it is undisputed that Cornett was a “customer” and Charlie’s Auto Sales is an auto dealership, Cornett would only be covered if he had no personal automobile liability insurance of his own or was statutorily underinsured. However, since Cor-nett is insured by American National to $25,000/50,000 liability limits, State National contended that Cornett was not an insured under the policy.

Alexander refused State National’s request to dismiss it from the lawsuit, so State National subsequently moved for a summary judgment based on the policy definition of “Who is an Insured” above which excludes customers of an auto dealership if they have their own insurance.

The district court denied summary judgment on grounds that State National had waived its right to assert a coverage defense. It concluded that State National had retained the same attorney to defend itself and Cornett for a nine-month period before asserting that Cornett was not an insured, and that it had conducted a vigorous defense of the lawsuit, citing Steptore v. Masco Construction Co., 93-2064 (La.8/18/94), 643 So.2d 1213. According to the court, Steptore held that when an insurer, with knowledge of facts indicating non-coverage under the insurance policy, assumes or continues the insured’s defense without obtaining a non-waiver agreement to reserve its coverage defense, the insurer waives such policy defense.

| sAfter several continuances, a bench trial on the “insurance coverage issues” was scheduled on June 29, 2006 — the matter to be submitted on briefs. State National raised the same coverage issue that it had previously argued in its motion for summary judgment, while the plaintiffs, Cor-nett, American and State Farm aligned themselves in opposition to State National. They contended that the policy definition of “who is an insured” that excepted customers of the auto sales business as insureds was a policy “exclusion” that must be pled as an affirmative defense in the defendant’s answer to the petition or lost; that by its defense of the suit State National had waived its right to raise the policy exclusion, and that the exclusion itself was against public policy. American also argued that State National’s policy provided primary coverage, or alternatively, it provided “concurrent liability coverage” that should be apportioned according to the ratio of the liability limits of the respective policies. Since the limits of the State National policy was $500,000 to its policy’s $25,000 liability limits, American argued it should only be required to pay $1 to every $20 paid by State National.

The trial court dismissed American’s “concurrent coverage” claim. As noted above, La. R.S. 22:671 specifically prescribes what insurance policies cover “test drives” of vehicles from an auto dealership and similar circumstances involving “loaner vehicles.” In those situations, the driver’s policy is primary and “not the policy of the vehicle sales or service dealer who provided the loaner vehicle.”

|f;On the question of whether Cornett was an insured covered under the liability policy issued to Charlie’s Auto Sales, after an independent determination, the trial court, Judge Garrett presiding, adopted Judge Crichton’s reasons for denying State National’s motion for summary judgment — namely, that State National had waived its rights to claim any coverage exclusions under the policy. Additionally, the trial court concluded that State National was put on notice because the amended petition stated that Cornett had a liability policy with American, which would trigger the exclusion in State National’s liability policy coverage. The court stated that an insurance company is presumed to know the contents of its policy, and cited Carter v. Safeway Ins. Co., 37,788 (La.App. 2 Cir. 10/29/03), 859 So.2d 279 for the rule that an insurer has the burden to plead and prove an exclusion to coverage and that rebanee upon an exclusion to defeat coverage is an affirmative defense which must be specifically pleaded in the defendant’s answer. Pendleton v. Smith, 95-1805 (La.App. 4 Cir. 5/8/96), 674 So.2d 434. Without such a pleading, no proof can be offered in connection with the exclusion. Tudury v. Cooperative Cab Co., 265 So.2d 307, 312 (La.App. 4 Cir.1972); Nippert v. Baton Rouge Railcar Services, Inc., 526 So.2d 824 (La.App. 1 Cir.), writs denied, 530 So.2d 84, 87, 91 (La.1988).

State National filed the instant appeal raising four issues arising from the four assignments of error. Cornett and American submitted a joint brief opposing the appeal. State Farm submitted its own brief urging that this court affirm the trial court’s judgment.

|7Piscussion

Determination of two basic issues resolves this case: first, should the policy language that determines “Who is an Insured” be construed merely as part of the definition of an insured under the policy as opposed to an “exclusion,” which must be pled as an affirmative defense? Second, was the trial court manifestly erroneous or clearly wrong in concluding that State National provided Cornett with a defense for nine months before raising the fact that Cornett was not an insured under the policy definition and thereby waived its right to assert non-coverage?

Should the “Exclusion" be Pleaded as an Affirmative Defense?

State National alleges that the trial court erred as a matter of law when it concluded that it was required to specially plead that Cornett is not an insured under the State National policy. As previously stated, the trial court concluded that the limiting provision as to “who is an insured” in State National’s liability insurance policy definition of an insured is an “exclusion” that must be pled in the defendant’s answer as an affirmative defense or it is waived, citing Carter v. Safeway Insurance Co., supra and Pendleton v. Smith, supra 95-1805 (La.App. 4 Cir. 5/8/96), 674 So.2d 434, writ denied, 96-1425 (La.9/13/96) 679 So.2d 107.

Appellees contend that the policy definition of who is an insured “excludes” customers of auto dealerships and is therefore an “exclusion” to coverage which must be pled as an affirmative defense. They have supplied this court with several additional citations to support the argument that a policy exclusion must be pled as an affirmative defense. E.g., Touro Infirmary v. Marine Medical Unit, Inc., 96-2506 (La.App. 4 Cir. 5/21/97), 699 So.2d 90; Tudury, supra (After having admitted the existence of the policy coverage, it was incumbent upon the insurer to plead the exclusion as an affirmative defense.); Fontenot v. Lloyds Casualty Insurer, 31 So.2d 290 (La.App. 1 Cir.1947). (The insurer admitted issuance of a collision policy on plaintiffs automobile but failed to deny that the document annexed to the petition formed the basis for liability.); Nippert, supra; Holder v. Lockwood, 92 So.2d 768 (La.App. 2 Cir.1957).

State National contends that its defense does not rely on an “exclusion” in the policy, but simply on the definition of “Who Is An Insured” under the policy, citing Wimberly v. McCoy Tree Surgery Co., 766 So.2d 729 (La.App. 2 Cir. 8/25/00). In Wimberly, the plaintiff, Ms. Wimberly, was injured in an accident while riding as a passenger in a vehicle owned and operated by her daughter, Rebecca Shepherd. Ms. Wimberly alleged that her own liability/UM insurer, American Deposit Insurance Company (“American Deposit”), issued a policy to her that defined her daughter as an uninsured/underinsured motorist. American Deposit answered the allegations in Ms. Wimberly’s petition with a general denial. The definition of an uninsured motor vehicle in the policy excluded UM/UI motorist coverage for a vehicle owned by any relative. Apparently when American Deposit attempted to raise this issue, Ms. Wimberly complained that the policy exclusion was an affirmative defense that must be specially pled in defendant’s answer to the petition.

We affirmed the trial court’s judgment dismissing the claim by distinguishing the definition of an uninsured motorist as a general part of the policy from any special exclusions in the policy that must be asserted as |9an affirmative defense. Id. at 737. An affirmative defense is one that raises a new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating the plaintiffs demand on its merits. Id. at 736. (Citations omitted). The new matter raised must be one not raised by plaintiffs’ petition. Id. Thus, inasmuch as Ms. Wimberly alleged that Ms. Shepherd was an underin-sured motorist under the policy, American Deposit’s general denial did not raise any new issues, but merely answered the allegation as set forth by Ms. Wimberly that she was an insured. Id. at 737. Therefore American’s defense was not an affirmative defense that must be specially pleaded.

Appellees answer that Wimberly is inapplicable to the instant case because the issue of who is an insured in Wimberly involved UM/UI coverage, whereas our case concerns who is an insured for purposes of liability insurance coverage. This makes a difference, appellees contend, because of Louisiana’s financial responsibility and compulsory insurance laws regarding liability insurance contained in La. R.S. 32:900, et seq. In short, because State National’s garage liability policy definition of an insured “excludes” one class of permissive users, namely, insured customers of an auto dealership, appellees contend that this constitutes an “exclusion” to the omnibus coverage required by the statutory omnibus clause and | intherefore must be specially pleaded as an affirmative defense. Stated another way, appellees contend that the statutory omnibus clause creates a statutory presumption that all permissive users are insureds, and, therefore, it has no burden to establish that Cornett is an insured under the State National liability policy. Rather, plaintiffs contend that it is the burden of the insurer to show that any particular permissive user is excluded from coverage under a liability insurance policy.

We begin our analysis at this point in the argument.

The correct rule is that a statutory omnibus clause such as R.S. 32:900(B)(2) supercedes only conflicting insurance policy provisions. Green v. Bailey, 29,759-CA (La.App. 2 Cir. 8/20/97), 698 So.2d 715; Couch, Sec. 45:687, 697, 698, 714. See also, Raimer, supra at note 2; Fields v. Western Preferred Casualty Co., 437 So.2d 344 (La.App. 2 Cir.1983), writ denied, 440 So.2d 754 (La.1983). (Emphasis ours). In Green, we held that the statutory omnibus clause requiring automobile liability coverage for permissive users does not super-cede a statute permitting an insurer and insured to exclude a named person who is a resident of the same household from coverage.

However, in this instance, the garage policy issued by State National is not in conflict with the statutory omnibus clause because the policy assures that permissive users, even customers of auto dealerships, are insured.

In Goodwin v. Western Heritage Insurance Company, 38,836-CA (La.App. 2 Cir. 8/18/04), 880 So.2d 985 (J. Williams writing for the court), this court held that an identical limiting provision present in the garage Impolicy in this case regarding “who is an insured” does not conflict with the requirements of the statutory omnibus clause and the omnibus clause of the policy complied with the minimum requirements of La. R.S. 32:900. In that case, the driver, a customer of Performance Cars and Trucks (“Performance”), an automobile dealership, caused an accident injuring the plaintiffs. Plaintiffs filed suit against Performance’s garage liability insurer, Western Heritage Insurance Company (“Western Heritage”), alleging that the driver was an insured under the Western Heritage policy on grounds that the Western Heritage insurance contract conflicted with Louisiana law. Western Heritage subsequently moved for summary judgment, which the district court granted on grounds that the driver was not an insured under the definition of an insured in the policy. This court affirmed the judgment, holding that the limitation of coverage in the policy did not violate public policy and did not conflict with the statutory provisions. The policy specifies that it provides liability coverage when the customer’s insurance is inadequate to satisfy the minimum requirements of our compulsory or financial responsibility law. We observed that the legislature has decided that the driver’s liability policy, not the repair shop, provides the primary coverage. La. R.S. 22:671. We also noted that in order for the plaintiffs to prevail in their claim that the customer was covered under the Western Heritage policy, they must show that the customer did not have automobile liability insurance. Accordingly, summary judgment was appropriate.

|iaIn Marshall v. Seago, 41,138-CA (La.App. 2 Cir. 6/28/06), 935 So.2d 752 (J. Stewart writing for the court), this court again held that an identical limitation of coverage was effective and does not violate public policy. In that case, Seago was test driving a vehicle owned by Mansfield Auto World, Inc., a car dealership, when he was involved in a collision with a vehicle driven by Marshall and owned by Biscamp. On August 11, 2004, Marshall and Biscamp sued Seago and his insurer, State Farm, and Auto World and its insurer, Federated Mutual Insurance Company (“Federated”), alleging that Seago was at fault. Auto World and Federated answered the petition with a general denial.

On April 15, 2005, eight months after the petition was filed, Auto World and Federated moved for summary judgment. Auto World asserted that it was not liable for the negligence of its customers test driving a vehicle while Federated asserted that Seago was not an insured under its policy because he was a customer of Auto World, and he was otherwise covered by liability insurance that met the minimum limits required by Louisiana’s omnibus coverage law. Federated submitted a copy of the policy in support of its motion. The trial court granted the motions dismissing Auto World and Federated from the suit.

The plaintiffs, Seago and State Farm appealed only the judgment in favor of Federated that held that Seago was not an insured under the Federated policy. The appellants argued that the very same provision at issue in this case was against the public policy in favor of omnibus coverage because it precluded coverage for permissive drivers and is therefore unenforceable.

|1RWe noted that insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. The provision in question does not conflict with La. R.S. 32:900(B)(2) because it provides liability coverage when the customer’s insurance is inadequate to satisfy the minimum requirements of the statute. Accordingly, we affirmed the judgment dismissing Federated from the suit because Seago was not an insured under the policy.

This same policy definition was also upheld in Savana v. Certain Interested Underwriters at Lloyd’s London, 2001-2450 (La.App. 1 Cir. 7/2/02), 825 So.2d 1242; Baker v. Kenny, 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied, 2000-2153 (La.10/13/00), 771 So.2d 650; and, Gambino v. Lamulle, 97-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574.

Unlike Green, supra in which this court held that a statutorily authorized “named driver exclusion” was not in conflict with Louisiana’s compulsory insurance law, Goodwin, supra, Marshall, supra, Savana, supra and the other cases cited above hold that the same omnibus clause that is in the State National policy in this case does not conflict with, but instead complies with, the minimum requirements of La. R.S. 32:900(B)(2). Therefore, since the State National omnibus clause offers no less than what is required by the statutory omnibus clause, it is neither an exception nor an exclusion to the statutory omnibus clause.

| uAccordingly, we find no reason to conclude that the statutory omnibus clause somehow overrides the policy’s omnibus clause in this case that meets the statutory requirements, or that the statute creates a presumption that the plaintiff is an insured under the State National policy that dispenses with the plaintiffs’ burden of showing that Cornett is indeed an insured under the policy. In both Goodwin, supra and Marshall, supra, we affirmed the rule that the (putative) insured has the burden of showing that an incident falls within the coverage of the policy. Cf. Mercadel v. Tran, 92-0798 (La.App. 4 Cir. 3/29/94), 635 So.2d 438. (There is no presumption that the driver is a permissive user under the omnibus clause. The burden is on the plaintiff to establish every fact that is essential and also to establish that his claim is within the policy coverage.).

It is well-settled that the burden is on the plaintiff to make a prima facie showing that one is an insured under the insurance policy. Turner v. Ewing, 255 La. 659, 232 So.2d 468 (1970); C.L. Morris, Inc. v. Southern American Ins. Co., 550 So.2d 828 (La.App. 2 Cir.1989); Ho v. State Farm Mut. Auto Ins. Co., 2003-0480 (La.App. 3 Cir. 12/31/03), 862 So.2d 1278, 1281; Mercadel v. Tran, supra; Pierce v. Aetna Life and Cas. Ins. Co., 572 So.2d 221 (La.App. 1 Cir.1990). One of the several ways this burden is met is by attaching a copy of the insurance policy to the petition in which coverage is alleged. Id. Once this burden is met, the burden then shifts to the insurer to prove any exclusion under the policy. Carter, supra. In this instance, the plaintiffs (the Alexanders) simply alleged in paragraph 6 of their petition that Cornett was insured under a liability insurance policy issued to Charlie’s Auto Sales. State National | ^answered the allegation by (1) admitting that it issued a policy of insurance to Charlie’s Auto Sales; (2) specially pleading that the policy is the best evidence of its contents; and, (3) denying all other allegations in paragraph 6, which must be construed as a general denial of the allegation that the vehicle and Cornett were covered under the policy issued to Charlie’s Auto Sales.

Because the ominibus clause in the State National policy does not conflict with La. R.S. 32:900(B)(2) and there is no presumption that Cornett is an insured under the State National policy, but a fact that the plaintiffs must establish, we conclude that it is of no import that Wimberly, supra, involved UM/UI coverage. The same reasoning applies in this case. The cases cited by the appellees in support of the argument that the limiting provision in State National’s policy that excepts customers from coverage in this case constitutes an “exclusion” that must be pled as an affirmative defense are inapposite. Those cases involve exclusions that concern either certain excluded risks or forfeiture of coverage. Whether the claimant was an “insured” had been established or was uncontested. See, e.g., Carter, supra. (Where coverage is provided to a particular insured and insurer relies on a policy exclusion to defeat that coverage, burden is on the insurer to plead and prove exclusion).

An affirmative defense is distinguishable from a negative defense in that the latter seeks to refute an essential allegation of the plaintiffs petition. Johnsa v. Edwards, 582 So.2d 1280 (La.1991); Keller v. Amedeo, 512 So.2d 385, 388 (La.1987). An affirmative defense, by contrast, raises new matters which, assuming the allegations in the petition to be true, |! constitute a defense to the action and will have the effect of defeating plaintiffs demand on its merits. Keller, supra at 387; Webster v. Rushing, 316 So.2d 111, 114 (La.1975); Wimberly, supra. Hence, State National’s denial of the allegation that Cornett is an insured under the policy definition of “Who Is An Insured” does not raise a new matter, but simply denies an essential element of plaintiffs claim. Accordingly, it is not the type of “exclusion” that must be raised as an affirmative defense, irrespective of whether the provision in the policy is characterized as an “exclusion,” “exception” or “limiting provision.”

Nor does State National’s admission that it issued a policy of insurance to Charlie’s Auto Sales suffice to carry the plaintiffs’ burden of making a prima facie case that Cornett is an insured. An admission by State National that it issued a policy to Charlie’s Auto Sales is not an admission that Cornett is an insured. See Turner v. Ewing, supra at 472.

632
La. 961 SOUTHERN REPORTER, 2d SERIES
Thus, we conclude that the trial court erred in concluding that the policy definition of an insured in the State National policy was an exclusion that must be specially pled as an affirmative defense.
Did State National Provide Cornett With a Defense?
The next issue is whether, as a matter of fact, State National waived its defense by its actions that the trial court concluded constituted a vigorous defense of Cornett for nine months without obtaining a waiver agreement from Cornett to reserve any policy defenses. Because this is a factual finding, it is subject to the manifest error standard of review. Guillory v. Insurance Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029.
117Waiver or estoppel is not favored in Louisiana law and such claims must be examined carefully and strictly. L.T. v. Chandler, 40,417 (La.App. 2 Cir. 12/14/05), 917 So.2d 753; Case v. Louisiana Medical Mutual Insurance Company, 624 So.2d 1285 (La.App. 3 Cir.1993). Though rarely applied, estoppel may be appropriate if three elements are established: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance or representation. Id. A party invoking the doctrine must exercise such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. Id.; Case, supra. In L.T. v. Chandler, supra, we held that where plaintiffs never showed justifiable reliance to their detriment, the insurer did not waive a coverage defense.
The trial court’s conclusions are based largely on Steptore v. Masco Construction Co., 93-2064 (La.8/18/94), 643 So.2d 1213. In Steptore, supra, Steptore was injured when a steel cable attached to a crane on a barge moored next to the vessel “Donna Rita” snapped and struck Steptore in the face, causing him to suffer disabling injuries. Steptore sued the owner of the barge, Masco, and its primary liability insurer, Ocean Marine, and its excess liability insurer, Lloyd’s. Ocean Marine hired a law firm to defend itself and Masco. Six months later, it denied liability coverage on grounds that Masco breached a navigation warranty contained in the policy by moving the barge from its designated location to another site several days before the accident. Such a breach would void coverage for the accident.
118Ocean Marine and Lloyd’s filed a motion for summary judgment on the coverage issue which was denied. After trial in which Steptore was awarded damages against Masco, Ocean Marine & Lloyd’s, the two insurers appealed the judgment finding coverage to the First Circuit, alleging that Masco’s breach of the navigation warranty voided coverage. In an unpublished opinion at 621 So.2d 214 (La.App. 1 Cir.1993), the appellate court found that the navigation warranty was unambiguous and Ocean Marine was not precluded from asserting the navigation warranty as an exclusion to coverage. It therefore held that there was no insurance coverage for Steptore’s accident. The Supreme Court granted writs and reversed the court of appeal by finding that Ocean Marine had waived its coverage defense by providing a joint defense for itself and Masco.
The Steptore Court set out the following principles regarding waiver of a coverage defense:
Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. Id. at 1216. A waiver may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally excluded or not covered. Id.
[A]n insurer is charged with knowledge of the contents of its own policy. [Njotice of facts which would cause a reasonable person to inquire further imposes a duty of investigation upon the insurer, and failure to investigate constitutes a waiver of all powers or privileges which a reasonable search would have uncovered. Id.
Waiver principles are applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured which could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client’s interest. Id. Accordingly, when an insurer, with knowledge of facts indicating noncover-age under the insurance Impolicy, assumes or continues the insured’s defense without obtaining a nonwaiver agreement to reserve its coverage defense, the insurer waives such policy defense.

Applying these principles to the following facts, the court concluded that Ocean Marine waived its right to assert a coverage defense by assuming and continuing the defense of its insured in the face of facts indicating that it had a right to deny coverage for the accident. The Court found that Ocean Marine’s vice-president had notice on the day of the accident that the barge was supposed to be located at the Bayou Steel facilities on the Mississippi River near LaPlace in St. John the Baptist Parish. However, at the time of the accident, the barge was not at that location. Secondly, notice of the potential defense to coverage under the policy was also provided by service of the petition upon Ocean Marine. The petition clearly stated that the accident occurred in Ascension Parish, not in St. John the Baptist Parish.

The critical issue of the Steptore opinion concerned whether Ocean Marine assumed the legal defense of Masco, its insured, and in so doing, waived its right to assert the coverage defense. The Step-tore court found that Ocean Marine named the law firm Evans & Co. to represent both itself and Masco without reservation of the right to deny coverage under the policy despite unequivocal notification of the navigation warranty violation. Evans & Co. first appeared as counsel of record for Masco when it filed a motion for an extension of time to answer the petition. Evans & Co. then met with Mr. Massi, Masco’s president, to discuss the particulars of the accident and to review all pertinent company records. Mr. Massi stated that he informed Evans & Co. of precisely the location of the accident. The law firm continued its representation of Masco by participating in discovery-it | ¡^propounded interrogatories to the plaintiff, it answered plaintiffs interrogatories, and it filed a motion to compel full and complete answers and responses to Mas-co’s and Ocean Marine’s interrogatories and it represented on all of these papers that it was counsel for Masco and Ocean Marine. Additionally, the law firm answered the petition of intervention on behalf of both Masco and Ocean Marine.

In summary, the Steptore Court concluded that Ocean Marine and its attorneys possessed facts indicating a possible defense to coverage based on a breach of the navigation warranty at the outset of this litigation. Nevertheless, it assumed and continued the defense of Masco for six months. Ocean Marine did not reserve its right to deny coverage under the policy prior to assuming the defense of Masco. Nor did Ocean Marine provide Masco separate counsel in order to avoid a potential conflict of interest. Accordingly, because the insurer assumed the defense without reserving its rights or otherwise protecting its interests and continued to represent the insured when its own interests were adverse to the insured, the court found that Ocean Marine waived any coverage defense it may have had under the policy.

In this case, the trial court found that State National had “notice” of a coverage defense when the plaintiffs alleged that Cornett was covered by a liability policy issued by American. The court also concluded that because State National did not have Cornett sign a waiver agreement allowing it to assert any coverage defenses, and because it did not appoint a different attorney to defend Cornett, then it assumed Cornett’s defense and all of its subsequent actions were on behalf of Cor-nett.

Instate National first retained the law firm of Tutt & Bordelon, LLC to defend the suit filed by Alexander. As previously stated, American retained attorney Billy Guin to defend itself and Cornett. After filing an answer to the amended petition in which it generally denied the allegations, State National engaged in discovery over the next nine months. State National attended the depositions of Charles Cornett and Charles Alexander. Cornett was deposed by Gatti, counsel for plaintiff on June 25, 2002. Billy Guin, Cornett’s counsel, deposed Alexander the same day.

Dr. Alireza Minagar was deposed. Appearances included Bordelon representing State National. Bordelon noticed this deposition and questioned the doctor regarding Alexander’s injuries.

The record contains a copy of the interrogatories sent to Alexander by Bordelon on October 31, 2002. It is signed by him on behalf of Tutt & Bordelon, LLC, “ATTORNEYS FOR DEFENDANTS, STATE NATIONAL INSURANCE COMPANY.”

Additionally, the record contains several letters or other documents written by Bor-delon. These include:

—Cover Letter dated October 31, 2002, from Bordelon to Gatti accompanying discovery interrogatories and requesting updated information on the medical condition of Alexander. There is no mention of Cornett.

—Letter dated February 3, 2003, from Bordelon to Gatti asking for responses to discovery propounded in October and updated medical reports. He also notifies Gatti that he intends to take the deposition of Dr. Minager, a physician treating Alexander. Nothing about representing Cor-nett; however, cc (carbon copy) to Billy Guin.

|⅞⅞ — Letter dated February 6, 2003, from Bordelon to Gatti with enclosed medical records release forms for Alexander to sign so that he could obtain medical reports on Alexander. Nothing indicating State National represented Cornett.

—Letter dated February 18, 2003, confirming date of deposition of Dr. Minager. Nothing indicating State National represented Cornett.

—Notice of deposition of Dr. Minager sent to Cornett and American National through attorney of record Billy Guin, and to the Alexanders through their attorney of record, Ryan Gatti. The notice is signed by Thomas Bordelon for Tutt & Bordelon, LLC, “ATTORNEYS FOR DEFENDANTS, STATE NATIONAL INSURANCE COMPANY.”

—Letter dated February 20, 2003, from Bordelon to Ryan Gatti and Billy Guin regarding available dates from Joe Bleich for mediation of the lawsuit.

—Letter dated March 7, 2003, from Bor-delon to Joe Bleich regarding agreement to schedule mediation on April 30, 2003, in his office. The letter gives the addresses of both Ryan Gatti and Billy Guin as opposing counsel.

—Letter dated March 13, 2003, from Bleich to Bordelon confirming mediation.

Sometime during this period, a State National adjuster contacted Bordelon and told him that it was their position that Cornett was not covered under the policy based on the “Who is an Insured” definition of an insured.

Finally, we note a letter dated March 25, 2003, from Billy Guin to Bordelon in which Guin states that he understands that “your company has 123instructed you that they feel that my driver was not an insured under your policy.” Guin states that under that scenario, there is only his 25K to settle the case, unless Gatti (Alexander) can successfully oppose a motion for summary judgment. The scheduled mediation is cancelled.

After Alexander refused to dismiss the claim against State National, on August 8, 2003, State National moved for summary judgment dismissing it from the suit on grounds that Cornett was excluded from coverage.

In contrast to facts in Steptore, there is nothing in the record to indicate that State National ever purported to represent Cor-nett. There is no evidence of any direct contact between Cornett and State National’s attorneys. Unlike Steptore, where the firm appointed by the insurer actually captioned and signed documents as counsel for Masco and Ocean Marine, there are no documents in the record that indicate that the firm of Tutt & Bordelon, LLC represented both State National and Cornett. The fact that State National scheduled mediation proceedings is not an admission and cannot be so considered. La. R.S. 22:661; Alexander v. Minnieweather, 595 So.2d 802 (La.App. 2 Cir.1992). Importantly, there is no evidence in the record that Cornett relied on State National to defend him or believed that he was defended by State National. Moreover, it was not Cornett who raised the issue of waiver, but the Alexanders, and it was the Alexanders who opposed the motion for summary judgment on the coverage issue. We observe that counsel for Cornett indicated that the plaintiffs’ counsel would oppose the motion for summary judgment filed by State National.

The trial court obviously relied on the insurer’s duty to defend to reach the conclusion that Tutt & Boredelon, LLC represented Cornett asj^well as State National. It therefore concluded that any defense of State National was a defense of Cornett. Since State National did not obtain a waiver agreement from Cornett reserving its coverage defenses, the court concluded that the latter relied to his detriment on State National’s defense, even though the record does not indicate that Cornett ever asserted liability coverage, nor is there any evidence of Cornett’s detrimental reliance required for the doctrine of estoppel or waiver to apply. Turner v. Ewing, supra; , L.T. v. Chandler, supra. However, a waiver agreement should not be required if the petition unambiguously indicates that State National had no duty to defend Cor-nett.

Under Louisiana law, the insurer’s obligation to defend suits against its insured is generally broader than its liability for damage claims. Steptore v. Masco Const. Co., 93-2064 (La.8/18/94), 643 So.2d 1213; American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Gleason v. State Farm Mut. Auto. Ins., Co., 27,297 (La.App. 2 Cir. 8/23/95), 660 So.2d 137, writ denied, 95-2358 (La.12/15/95), 664 So.2d 454. This duty to defend is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Id. Thus, if, assuming all the fact allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit or the eventual determination of actual coverage. Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App. 2 Cir. 3/31/99), 731 So.2d 482.

| g,In this instance, if we assume all of the allegations -of the petition to be true, coverage obligating State National to defend is unambiguously excluded. While the trial court concluded that the plaintiffs’ allegation that Cornett was insured for liability by American constituted “notice” to State National that it had a policy defense, it is also notice that Cornett is not an insured under the policy and therefore no duty to defend arose. Assuming this fact to be true, the State National policy issued to Charlie’s Auto Sales unambiguously excludes Cornett as an insured. On the other hand, if the allegation that the State National liability policy covered Cor-nett were accepted as true, coverage under the policy is still not triggered. Under La. R.S. 22:681, Cornett’s liability policy with American is primary, under which the duty to defend is triggered. State National has no duty to defend unless excess coverage was alleged or triggered. American Home Assur. Co. v. Czarniecki, supra; Elliott v. Continental Cas. Co., 2006-1505 (La.2/22/07), 949 So.2d 1247.

Accordingly, we conclude that the trial court erred in finding that State National retained counsel for both itself and Cor-nett. We also conclude that the trial court was clearly wrong in finding that State National vigorously defended the suit against Cornett and thereby waived its defense that Cornett is not an insured under the policy.

Conclusion

For these reasons, we hold that the trial court erred when it concluded that State National waived its coverage defense. Cornett is not an insured under the State National liability policy. Accordingly, the judgment of the trial court is reversed and State National is dismissed from the lawsuit. The Incase is remanded for further proceedings. The plaintiffs, State Farm, Cornett and American are cast in judgment to share equally costs of this appeal.

REVERSED AND RENDERED; REMANDED.

      . State Farm Mutual Automobile Insurance Company ("State Farm”), the plaintiffs’ liability/UM/UI insurance carrier, was added as a defendant by plaintiffs' second amended petition. State Farm filed cross-claims against American National and State National to recover over $46,000 for medical costs that it had paid for Alexander and any future sums it may have to pay.

      . La. R.S. 32:900(B)(2), which defines the liability limits of the compulsory liability insurance law is also known as the "statutory omnibus clause.” See Raimer v. New England Ins. Co., 595 So.2d 1218 (La.App. 3 Cir.1992). It provides, in pertinent part, that the owner’s liability insurance policy ⅜ **:***
      (2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:
      (a) Ten thousand dollars because of bodily injury * * *.

      . The legislature apparently reasoned that to require automobile dealerships, repair shops and similarly situated businesses to provide liability insurance for thousands of permissive users on the hundreds of vehicles temporarily on their lots at any given time would be overly burdensome on those businesses and therefore shifted that risk to each individual "customer’s” liability policy, unless the customer is uninsured.

      . In fact, we have serious doubt whether the Alexanders are in a position to assert a waiver of the policy defense on behalf of a putative insured. Cf. Gambino v. Lamulle, 1997-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574.


text:
    STATE of Louisiana, Appellee v. William Lewis ELLIS, Appellant.
    No. 42,286-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 11, 2007.

      Louisiana Appellate Project, by Mary Constance Hanes, Larrion L. Hillman, for Appellant.
    John Schuyler Marvin, District Attorney, C. Sherburne Sentell III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

_[jWilliam Lewis Ellis was convicted as charged of second degree murder and unauthorized use of a motor vehicle. For the murder, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the unauthorized use of a motor vehicle conviction, he received a concurrent 10-year hard labor sentence. We affirm the convictions and sentences.

FACTS

On November 4, 2005, Marchuashau Shine (“the victim”) drove up to her mother’s residence and honked the horn for her mother, Clara Shine, who was caring for her 10-month-old great-grandson, K.J. The victim asked Ms. Shine if she had seen the defendant, and Ms. Shine responded that she had not. Ms. Shine then handed the infant to the victim and walked back toward the house. The defendant suddenly rushed out from behind some bushes, pulled on the vehicle’s door, and wrenched it open. He then dragged the victim out of the van and began stabbing her, while she still had the infant in her arms. In an attempt to stop the attack, the victim’s mother hit the defendant with a stick and a brick. Ms. Shine ultimately suffered a broken leg as a result of the struggle. The fight lasted for approximately five minutes, during which the defendant inflicted 45 stab wounds upon the victim. Amazingly, the infant was not physically harmed. As the defendant started to leave, he came back, slashed the victim across her face, jumped into the victim’s work van, and fled the scene.

Damien Shine, the victim’s 10-year-old nephew, witnessed the savage attack and called 911. The victim was rushed to the hospital, where Dr. RDavid Tyler started blood transfusions and began closing her stab wounds. Despite his efforts, the victim bled to death before ever going into surgery.

The defendant was indicted by a grand jury on the two charges for which he was convicted and sentenced. This appeal followed.

DISCUSSION

Should the defendant have been convicted of manslaughter instead of murder?

The defendant argues that a second degree murder verdict was not rational and should be modified to manslaughter under La. C. Cr. P. art. 821(D), because:

• a preponderance of the evidence established that he acted in “the heat of blood” when he attacked the victim;
• he suddenly snapped when he caught her using cocaine with other men; and
• he was unable to calm down after the attack, and thus made further threats over the telephone, but once he was able to return to a normal state of mind, he surrendered to the police and gave a confession.

In response, the state asserts that:

• the defendant possessed the specific criminal intent to kill or to inflict great bodily harm necessary to sustain a conviction for second degree murder;
• specific intent need not be proven as fact, but may be inferred from this defendant’s actions — lying in wait for the victim to arrive while armed with a deadly weapon (hunting knife) and stabbing the victim 45 times;
• the defendant did not assert a mental status defense nor did he present evidence in support of an altered “state of mind” defense; and
• the question of provocation was left to the jury to determine, and the jury in this case correctly concluded that sufficient provocation was not present.

1sThe first of four types of second degree murder may be committed by the killing of a human being with specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). This is what happened here. The law as to reducing a murder to a manslaughter is clear.

The evidence presented at trial was sufficient to prove that the defendant was guilty, beyond a reasonable doubt, of second degree murder, as well as the unauthorized use of a motor vehicle.

Clara Shine testified that:

• the defendant had been hiding in the bushes of her home before the attack;
• even though the victim was holding an infant, the defendant forced her out of a vehicle and began stabbing her with a knife;
• the victim pleaded with the defendant to stop, but the defendant never relented in his violent attack; and
• she (Ms. Shine) suffered a broken leg in the struggle.

|4Pr. Frank Peretti, a forensic pathologist who performed an autopsy on the victim, testified that the victim died from multiple stab and cutting wounds, and that there was a lack of a struggle on her part.

Detective Tippen of the Minden Police Department testified that:

• he questioned the victim once he arrived at the crime scene, and she kept responding that “Will did it”;
• Ms. Shine told him that the victim had come home from work, and that the defendant attacked her in the yard; and
• within minutes of the stabbing, the defendant called Ms. Shine’s residence, and told him that he was “going to Shreveport to get his clique, and that he was coming back to kill everything standing.”

Denettia Shine, the victim’s sister, testified that the defendant made a similar threat to her during one of his calls to the residence immediately after the attack.

In light of this testimony, the reasonableness of the verdict is clear. The defendant failed to prove by a preponderance of the evidence that he was provoked to the extent necessary to deprive an average person of his self-control. Even had he been unduly provoked, he should have recovered his senses while lying in wait. In support of his provocation argument, he offered autopsy results revealing that the victim had cocaine in her system. Even if the victim had used every drug known to mankind, she certainly had a right not to be stalked and brutally stabbed to death.

The jury heard the evidence and rejected the defendant’s version of the butchering, finding that this was a murder case. We agree. This is not the sort of sudden provocation contemplated by La. R.S. 14:31. Generally, provocative acts held to rise to the level of mitigating conduct have Isinvolved physical threats or actions on the part of the victim. See State v. Lombard, 486 So.2d 106 (La.1986); and State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64, 65 (La.1987). There was no evidence at the crime scene that the victim said or did anything directly to the defendant, other than to plead for mercy. Defendant’s claim of manslaughter is untenable. He was clearly not entitled to the responsive verdict.

Post-stabbing photographs of victim

The defendant argues that:

• the trial court abused its discretion in allowing the state to introduce cumulative and gruesome autopsy photographs, despite the filing of a motion in limine seeking to limit the number of photographs because the cumulative prejudicial effect of so many photographs would outweigh their probative value; and
• the photographs introduced did not show the victim’s wounds as they appeared after the attack at the scene, as the photos depict the wounds as they appeared after the doctor had worked on her, leaving the jury with no way to determine whether the wounds looked more gruesome because of medical intervention.

In response, the state argues that the prosecutor culled some 25 photographs down to 11 autopsy photographs and two photographs of the victim’s back and face stab wounds, and the coroner’s autopsy photographs were relevant and corroborated material facts required to prove that the defendant acted with a specific intent to kill or to inflict great bodily harm.

The test for admissibility of allegedly gruesome pictures is well settled.

| BElisha Taylor, a deputy coroner, testified that she arrived at the hospital and took photographs of the victim’s body, and that the photographs introduced into evidence depicted the victim’s wounds as they appeared after being sutured.

After reviewing each photograph, the trial judge determined that they were not unnecessarily repetitive or gruesome and allowed them into evidence. The photographs showed the location, nature, and number of wounds sustained by the victim, and their probative value outweighed any prejudicial effect they might have had upon the jury. Moreover, the photographs served to establish that the defendant had the specific intent to kill or to inflict great bodily harm upon the victim, and the state of mind necessary to convict for second degree murder.

In this sad case, there was an abundance of other evidence that could have led the jury to convict the defendant. The victim, her mother, and her nephew all identified the defendant as the attacker. Moreover, the defendant made unsolicited incriminating statements introduced at trial through the testimony of Denettia Shine and Detective Tippen.

Since the prejudicial effect of the photographs was outweighed by their probative value, we find the defense’s motion in li-mine was properly overruled.

IvDECREE

The defendant’s convictions and sentences are AFFIRMED.

      . In pertinent part, La. R.S. 14:31 defines manslaughter as a homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, or a homicide committed without any intent to cause death or great bodily harm. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.
      "Sudden passion” and "heat of blood” are not elements of the offense of manslaughter. Instead, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). A defendant who shows by a preponderance of the evidence that these mitigatory factors are present is entitled to the verdict of manslaughter. State v. Lombard, supra; State v. Jackson, 34,076 (La.App. 2d Cir.12/6/00), 774 So.2d 1046. The defendant is not obligated to establish the factors affirmatively; instead, the jury may infer them from the overall evidence presented. State v. Jackson, supra.

      . Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing, or place depicted. State v. Washington, 30,866 (La.App. 2d Cir.8/19/98), 716 So.2d 936, writ denied, 98-2473 (La.1/8/99), 734 So.2d 1229. Additionally, the cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Langley, 95-1489 (La.4/14/98), 711 So.2d 651. Photographs are not admissible if they are so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence. State v. Craig, 95-2499 (La.05/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997); State v. Tolbert, 30,821 (La.App. 2d Cir.8/19/98), 716 So.2d 949, writ denied, 98-2562 (La.1/15/99), 736 So.2d 207. A trial court’s ruling in this regard will only be disturbed if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Ruffins, 32,870 (La.App. 2d Cir.12/10/99), 748 So.2d 614; State v. Washington, supra.