author: CARAWAY, J.

text:
    Debora MELTON o/b/o Cody Melton, Plaintiffs-Appellants v. Michael SMITH, Lisa Smith, and Hollywood Gateway, Defendants-Appellees.
    No. 41,456-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Flournoy & Doggett by George A. Flournoy, Alexandria, for Appellants.
    Mayer, Smith & Roberts, L.L.P. by Kim Purdy Thomas, Shreveport, Tara Johnston, for Appellees.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

Lin this slip and fall case, the plaintiff was unsuccessful in convincing the trial court that the puddle of water on the merchant’s floor resulted from a leaky roof on a rainy day. The trial court then found that the plaintiff failed to meet her burden of proof under La. R.S. 9:2800.6 in showing that the merchant had constructive notice of a spill. Finding no manifest error in the trial court’s ruling, we affirm.

Facts

In February 2004, Debora Melton and her son, Cody, patronized defendants’ video rental store in Jonesboro. As Cody walked down the center aisle toward the back of the store, he slipped and fell in a small puddle of water, injuring his right knee.

On August 30, 2004, Melton sued Michael and Lisa Smith, the owners of Hollywood Gateway Video, the store in which Cody fell. The petition alleged the following:

On or about February 23, 2004, Cody Melton was a customer in Hollywood Gateway in Winn Parish, Louisiana, when he slipped and fell on a foreign substance on the floor due to a leaking sprinkler in the ceiling.

The petition contained no allegations whatsoever suggesting precipitation as either a direct or collateral source which could have contributed to any hazardous conditions inside the store. The Smiths answered the petition, denying liability.

| ¡.Despite the petition’s focus on a faulty ceiling sprinkler as the source of the water on the floor, at trial the plaintiffs case centered on the testimony of the Smiths’ daughter, Nicole, who reported that the roof of the building leaked when it rained. Photos showed some rust discoloration of the metal framing suspending the ceiling panels. Nevertheless, those photos were taken after a storm damaged the building’s roof in the summer of 2004, causing water damage throughout the store. Evidence from a meteorologist revealed that significant rain occurred in Jonesboro on February 22 and February 23, 2004. ■ The date of the accident, however, was the subject of much dispute since no clear written documentation of the occurrence exists.

At trial, Mike and Lisa Smith each stated they were behind the counter in the front of the store when Cody fell. Lisa testified that she heard a woman ask, “are you okay?” She finished helping a customer and walked down the center aisle to the place where Cody fell. She denied seeing any water on the floor but admitted that when she saw Melton looking up at the ceiling, she looked up too. Melton did not testify that she informed the Smiths of any water source coming from the ceiling. Lisa denied that it had been raining prior to the accident.

Mike testified that he saw “drops” of water the size of a “grapefruit” puddled together on the floor. The trial court’s ultimate ruling recited Melton’s description of the puddle as the size of a dinner plate. Mike got the mop and bucket from the storeroom to clean up the spill. Cody was holding his right knee, and testified he felt water on his pants.

| -¡The Smiths testified that the store was cleaned routinely each night. They had no systematic procedure for inspecting the store during business hours. However, the store was relatively small, 1800 square feet, and the Smiths and their employees continuously traversed the center aisle. The Smiths, who had never been sued for a similar accident, had no accident reporting procedure.

About a month after, the accident, Cody’s family doctor treated him for complaints of right knee pain and swelling. She referred Cody to a specialist who diagnosed Cody as having Osgood Schlatter’s disease. This disorder is described as os-teochondritis of the tibial tubercle, occurring between ages 10 and 15 (more commonly in boys), and caused by trauma from excessive traction around the kneecap tendons. Cody’s treatment consisted of prescription analgesics for pain relief, physical therapy, application of ice packs, and refraining from gym class participation for the remainder of the school year.

In its written reasons for judgment, the trial court made the following observations and conclusion:

How did the water get on the floor? How long was the water on the floor? Was it on the floor as a result of a leaking sprinkler, leaking roof, or was the rusty spot on the ceiling attributable to water leaking from the air conditioning vent located in close proximity? The inconsistency of the testimony of the plaintiffs and the consistent testimonial evidence of the defendants which include the store owners and the store personnel, establishes that the preponderance of the evidence is in favor of the defendant.

The court indicated that it was not convinced that the accident occurred on February 22, during a rain event. The court cited La. R.S. 9:2800.6 as the 14basis for its dismissal of plaintiffs claims. Going further, the opinion also indicated that Cody’s condition with his knee was insufficiently linked to the accident. From this ruling, plaintiff appeals.

Discussion

In this fact-intensive case, the appellate standard of review is the manifest error/clearly wrong standard. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Crawford v. Ryan’s Family Steak Houses, Inc., 31,-911 (La.App.2d Cir.5/5/99), 741 So.2d 96; Tanner v. Brookshire Grocery Co., 29,276 (La.App.2d Cir.4/2/97), 691 So.2d 871.

In Birdsong v. Hirsch Memorial Coliseum, 39,101 (La.App.2d Cir.12/15/04), 889 So.2d 1232, this court reviewed the distinction between a slip and fall claim governed by the special merchant statute, La. R.S. 9:2800.6, and a claim involving a defective condition of the building. The patron in Birdsong slipped and fell on a wet surface while attending an ice skating event. In that case, the disputed evidence revealed two possible sources of the hazardous condition which gave rise to the plaintiffs slip and fall, either dampness on the floor due to condensate located in proximity to the ice rink or spillage of a foreign substance by other patrons. The contrasting sources of liability were described as either “in the premises,” i.e., the wet floor from a defective condition of the building, or “on the premises,” |fii.e., a spill from another patron or other person. The same issues were present in this case with the trial court’s ruling resting upon the application of the merchant’s statute.

The imposition of tort liability on a merchant for a patron’s injuries resulting from an accident is governed by La. R.S. 9:2800.6. “In the absence of proof that the hazardous spill was caused by the defendant’s own actions, the duty to keep the premises in a safe condition must be shown to have been breached by some proof of an inadequate inspection procedure ... the burden of producing such evidence is now clearly back on the plaintiff in the storekeeper/merchant context....” Birdsong v. Hirsch Memorial Coliseum, supra, citing Holden v. Louisiana State Univ. Medical Ctr. Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-797 (La.5/1/97), 693 So.2d 730.

In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, the concept of constructive notice set forth in the merchant’s statute is addressed. Whether the condition exists for a sufficient length of time for a merchant’s discovery is necessarily a question of fact, but a claimant who simply shows that the condition exists, without the additional showing that it existed for some time before the fall does not carry the burden of proving constructive notice required by the statute. Id. at 1084. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden. Id. at 1084, 1085. In Crawford v. Ryan’s Family Steak Houses, Inc., supra, this court concluded that the applicable rules of evidence allow for proof of this statutory temporal element by both direct and circumstantial evidence.

The Smiths’ custody of the store premises resulted from a lease. From this status, responsibility for the defective condition of the building’s alleged leaky roof may result in liability under Civil Code Article 2317.1 or Article 2315. Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir., 7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266. The notice and knowledge component of Article 2317.1, 17which changed the former strict liability standard for custodians to that of negligence, is the key. “This notice or knowledge of the defect now creates a negligence duty to protect guests on the leased premises from known defects which is uniformly applicable to both lessor and lessee alike.” Id. at 894.

The plaintiffs case struggled greatly to identify the accident date. Since plaintiff was unable to show that the sprinkler was defectively leaking, proof of a rainy day and a leaky roof became essential for assertion of a claim under Article 2317.1 or Article 2315. The plaintiffs own reports of the accident to doctors and in the petition listed dates other than February 22. Based upon Melton’s recollection, the accident occurred during the day on a weekend when Cody was not in school. The plaintiffs evidence only identified two days when it rained — Sunday the 22nd and Monday the 23rd.

In the presentation of plaintiffs case, Nicole Smith was called on cross-examination. Nicole acknowledged that in her discovery deposition she stated that the roof of the store leaked with heavy rain and that this leak problem could have been occurring for “a year or two” prior to her deposition. She was deposed in February 2005, one year after the accident and over seven months since the storm damaged the building in the summer of 2004. In the defense questioning of Nicole, she retracted the length of time estimated earlier in discovery and instead linked the leaky condition of the roof to the summer storm of 2004.

The Smiths’ evidence also disputed that it was raining at the time of the accident. Lisa testified that it was dry outside that day. Most |ssignificantly, while evidence from both sides indicates that Melton rented a video (or videos) on the date of the accident and that Cody was given a free video rental after his fall, the store records showed Melton’s last video rentals on February 20, and no activity entered on her account on February 22. The last time Lisa could have rendered service to Melton was on February 14, the weekend before the time of the reported rain.

Finally, in reaching its conclusion that the plaintiff did not prove the date of the accident or that it was raining, the court noted the lack of evidence from the building’s landlord regarding reports of leaks and records of roof repairs. The court also emphasized that the petition presented plaintiffs initial claim as due to a leaking sprinkler without any mention of rain that day or rainwater either from customers or leaks as possible causes of the accident. Also, Melton never testified that she reported water from the leaking roof (coming from a sprinkler or otherwise) to the Smiths at the time of the accident.

From this evidence, we conclude that the trial court’s finding of the absence of proof of a rain event was based upon its witness credibility determinations and overall weaknesses in the plaintiffs case. Since we find no manifest error, the plaintiffs claim that a defective condition of the merchant’s building caused the accident could be rejected by the trial court.

When plaintiffs claim is considered under the merchant’s statute, we find that the evidence supports the view that the Smiths used reasonable |flcare in monitoring the center aisle of their small store where Cody fell. By frequently traversing the aisle, they were in a position to keep that aisle in a reasonably safe condition and guard against the possibility of spills on the floor caused by patrons. Lisa testified that another customer was just leaving the store when the accident occurred. Therefore, it was plaintiffs burden to prove that the water spill which caused the accident had “existed for such a period of time” that it should have been discovered by the Smiths. There is little, if any, direct or circumstantial evidence supporting a finding that constructive notice existed in this case. Accordingly, the trial court’s conclusion that liability was not proven under the standards of La. R.S. 9:2800.6 is also not clearly wrong or manifestly erroneous.

In conclusion, the plaintiffs claim centered upon allegations that the roof leaked during rain storms and that such an event caused a leak of water onto the merchant’s floor. The trial court found that scenario implausible because neither the date of the accident nor a defective condition of the roof was proven. Plaintiff has not established this finding as manifestly erroneous. In the absence of a known, defective condition in the premises, proof under the merchant statute for responsibility for a slip and fall from a spill on the premises was required by plaintiff. The statute protects the merchant from liability for spills caused by other patrons. The trial court correctly dismissed plaintiffs claim since the statutory burden of proof was not met. Costs of appeal are assessed to plaintiff.

AFFIRMED.

      . Although the petition quoted below alleged that the store was in Winn Parish, it was actually in Jonesboro, which is in Jackson Parish.

      . La. R.S. 9:2800.6 provides:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty in-eludes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C. Definitions:
      (1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

      . Civil Code Art. 2317.1 provides in part as follows:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      . The entries on Melton’s account for February 20 and February 19 reveal that she received service from two employees who the Smiths testified were not present on the date of the accident.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Michael BAILEY, Appellant.
    No. 41,432-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Jerry Jones, District Attorney, Stephen Sylvester, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

_jjThe defendant, Michael Bailey, appeals as excessive his sentence to 12 years at hard labor and a fine of $5,000.00 following his conviction of one count of aggravated incest. For the following reasons, we affirm the conviction and sentence.

FACTS

The victim was the defendant’s stepdaughter. She was seven or eight years old at the time of the offense. The child complained to her mother of pain in her genital area. When questioned by her mother, the victim said that the defendant had rubbed her “down there.” The defendant admitted the act to the victim’s mother. The mother took the victim to the hospital and contacted police. The victim told police that the defendant had touched her genitals on three separate occasions when her mother was not at home.

The defendant confessed to police that he had fondled the victim as she claimed. He was originally charged with three counts of aggravated incest. On October 31, 2005, pursuant to a plea agreement, the defendant pled guilty to one count of aggravated incest. In exchange for the plea, the other two charges were dismissed.

The sentence set forth above was pronounced on January 30, 2006. The defendant filed a motion to reconsider the sentence which was rejected by the trial court. The defendant then appealed his sentence, claiming it was excessive.

DISCUSSION

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court tookRcognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

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

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

The trial court reviewed the pre-sentence investigation (PSI) report and considered the defendant’s age. The defendant had a prior felony conviction in 1990 for aggravated battery. The court noted as a mitigating factor that the defendant’s guilty plea spared the victim “the burden of having to testify” and that the defendant had made statements of remorse. The trial court noted the young age of the victim and the defendant’s abuse of his status as her stepfather. The court found that a lesser sentence would deprecate the seriousness of the crime and that the defendant was in need of correctional treatment. The trial court noted that the victim was in counseling as a result of the offense. No restitution for the costs of counseling was ordered because the expense was covered by insurance. The court also noted that the other two charges of aggravated incest were dismissed under the plea agreement, thereby greatly reducing the defendant’s potential exposure to imprisonment.

On this record, we find no abuse of the trial court’s discretion. The defendant benefltted from the dismissal of the other two charges for aggravated incest through the plea agreement. At the time of the commission of this offense, the penalty for aggravated incest was set forth in La. R.S. 14:78.1(D) as follows:

A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, |4with or without hard labor, for a term not less than five years nor more than twenty years, or both.

The sentence of incarceration is in the mid-range of sentences that may be imposed for this offense. The sentence is lawful and is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Michael Bailey.

AFFIRMED.

      . After mentioning the aggravated battery, the trial court stated that the defendant had no prior felonies. Although aggravated battery is a felony, it appears from the PSI report that the defendant was only sentenced to 30 days.

      . This statute was amended by La. Acts 2006, § 325 to increase the penalties to be imposed for victims under the age of 13. Because the amendment was not in effect at the time of the offense in this case, it is not applicable here.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Derrick YOUNGBLOOD, Appellant.
    No. 41,390-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.
    Louisiana Appellate Project, by: James E. Beal, Jonesboro, Paula Corley Marx, Lafayette, Brian C. McRae, for Appellant.
    Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

b The defendant, Derrick Youngblood (“Youngblood”), appeals a judgment by the Eleventh Judicial District Court, Parish of DeSoto, State of Louisiana. Youngblood was convicted, by a jury, of distribution of a Schedule II CDS (cocaine), La. R.S. 40:964, 40:967(A)(1). Youngblood was sentenced to five years at hard labor, two years to be served without benefit of probation, parole, or suspension of sentence. Youngblood seeks review of his sentence. For the following reasons, we affirm.

FACTS

An undercover agent working with the DeSoto Parish Sheriffs office approached Youngblood and asked to purchase $40 worth of “cheese” (crack cocaine). The undercover agent’s vehicle being used was wired with surveillance equipment that allowed both audio and video transmission. Youngblood told the agent to get out of the vehicle, and the two walked behind a ear-port where Youngblood searched the agent for a wire. Youngblood then sold the undercover agent crack cocaine which was bagged for evidence in front of the video camera. The agent and two coordinating officers from the sheriffs office testified at trial. The video of Youngblood approaching the truck and the agent bagging the evidence as well as the bag of crack cocaine were admitted into evidence.

On May 16, 2005, Youngblood was found guilty as charged by a jury and was sentenced on August 4, 2005. Youngblood filed an untimely motion to reconsider sentence on February 24, 2006, well outside the 30Jday2 statutory period allowed to file such a motion under La. C. Cr. P. art. 881.1(A). The trial court granted a hearing on the motion at which time it was denied.

DISCUSSION

Youngblood seeks review of his sentence, claiming that the trial court failed to give sufficient consideration to mitigating factors when determining the sentence and arguing excessive sentence. Because Youngblood failed to file a timely motion for reconsideration, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. George, 39,772 (La.App.2d Cir.07/01/05), 908 So.2d 79. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

Here, the trial court considered the fact that Youngblood was a first felony offender, his young age, criminal history, limited employment history, and severe substance abuse problem before imposing a sentence of five years at hard labor, two years to be served without benefit of probation, parole, or suspension of sentence. The trial court reviewed the PSI report and found that any lesser sentence would deprecate the seriousness of the offense. Further, the trial court determined that Youngblood was in need of correctional treatment or a custodial environment. The trial court stated that any mitigating factors that might be relevant were outweighed by the seriousness of the offense. In addition, the trial court noted that | -¡Youngblood had pending charges, but clearly stated that Youngblood had not been convicted of those charges and that those charges were not considered as part of the sentencing proceeding.

After a thorough review of the record, we do not find the sentence to be excessive and not an abuse of the trial court’s discretion. The sentence is lawful, considerably less than the maximum sentence of thirty years which could have been imposed, and is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice.

CONCLUSION

For the foregoing reasons, Youngblood’s conviction and sentence is affirmed.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. James BROWN, Appellant.
    No. 41,386-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Louisiana Appellate Project, by: Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, George D. Ross, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, James Brown, appeals from a conviction of second degree murder in violation of La. R.S. 14:30.1. He was sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. On appeal, Defendant challenges only the sufficiency of the evidence to support the conviction. For the reasons set forth herein, Defendant’s conviction is affirmed.

FACTS

On June 27, 2004, as occurred most every Friday, Saturday and Sunday, the residents of Monroe’s Fontana Alley were playing cards, dominos and dice while drinking. Fontana Alley is a dirt road with 12-15 “shot gun” style houses. On that Sunday evening, Defendant was sitting on a neighbor’s porch after he had been drinking for several hours when he was approached by his good friend, Ronnie Walker. Without apparent provocation, Mr. Walker pulled Defendant from the porch, threw him to the ground and began beating him. As he beat Defendant, Mr. Walker accused Defendant of sleeping with his wife.

According to Defendant, Verna Walker, Ronnie Walker’s wife, broke up the fight and then walked away. Defendant attempted to leave the area when Mr. Walker said, “[I]t ain’t over,” and began to choke and beat him again. At some point during the struggle, Defendant pulled out a gun and shot Mr. Walker once in the chest. Mr. Walker died from the resulting injury. Defendant then walked to his home, where he was later arrested. During a police interview on the night of the shooting, Defendant told police he shot his best friend.

RThe State presented a different version of events, mainly through the testimony of Milton Pittman, who witnessed the altercation and shooting. According to his testimony, Mr. Walker threw Defendant off the porch and straddled him on the ground, accusing Defendant of sleeping with his wife. The two then got up and walked over to a fence and back, just talking. Defendant then drew his gun and fired. At the time of the shooting, Mr. Pittman did not see Mr. Walker fighting or choking Defendant and could not hear the conversation between the two men.

At his jury trial, Defendant argued that the shooting was justified on the ground of self-defense. The jury rejected this argument and ultimately returned a verdict of second degree murder. As previously stated, Defendant was sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. He filed, pro se, a motion for post-verdict judgment of acquittal and a motion for new trial. The trial court denied both. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The State failed to present sufficient evidence to support the verdict, a conviction of second degree murder.

On appeal, Defendant asserts one assignment of error, that the State failed to present sufficient evidence to support the verdict, a conviction of second degree murder. More specifically, Defendant argues that the State failed to prove that the killing was not justified. If so, the State failed to prove second degree murder beyond a reasonable doubt. This court is |3limited in its review by the errors assigned and briefed. See Uniform Rules, Courts of Appeal, Rule 2-12.4.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, and 02-2997 (LaL6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048.

Under La. R.S. 14:30.1, second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Specific intent is a state of mind and need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Brown, 618 So.2d 629 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1222 (La.1993). The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to Mil or inflict great bodily harm upon that person. State v. Murray, supra.

| ¡^Self-defense is justification for a MUing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir. 1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346. The State has the affirmative duty of proving beyond a reasonable doubt that the Mlling was not in self-defense. State v. Arnold, 30,282 (La.App.2d Cir.1/21/98), 706 So.2d 578.

In the case sub judice, Defendant does not contest the element of specific intent or whether he is guilty of a lesser included offense. Instead, he argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Accordingly, the only question or issue before the court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State failed to prove beyond a reasonable doubt that the shooting was not in self-defense.

A sufficiency of the evidence review warrants a brief overview of the evidence presented. Several witnesses testified for the State regarding the events of June 27, 2004. Mr. Pittman testified that he was sitting outside visiting with friends in Fon-tana Alley when he saw Mr. Walker pull Defendant from a porch. “They was talking, then, uh, Mr. Walker grabbed him, pulled him off the porch and throwed [sic ] him on the ground and he got straddle of him.” Mr. Pittman heard Mr. Walker say to Defendant that hhe (Defendant) was “going with” Mr. Walker’s wife. BacMng away from the altercation, Mr. Pittman testified that he watched as the events unfolded.

According to Mr. Pittman, Defendant and Mr. Walker got up from the ground and moved over to a fence and continued to talk; however, Mr. Pittman could not hear the conversation. After a few minutes, Mr. Pittman saw the duo move back to the original spot of the on-the-ground tussle. Mr. Pittman did not see any weapons or either of the parties hitting the other at this time. As the pair was talking, Mr. Pittman saw Defendant turn away from Mr. Walker and pull out a gun. Defendant turned back to Mr. Walker and shot him. Mr. Walker took a few steps and fell. After the shooting, Defendant walked to his house. Mr. Pittman testified that he did not see any blood or injuries on Defendant at the time of the shooting. At trial, Defendant attacked Mr. Pittman’s testimony as being clouded by alcohol and emphasized Mr. Pittman’s failure to remember other details of that night.

Joanne Ignot, Defendant’s girlfriend of 27 years and the mother of his three children, testified for the State. Ms. Ignot was home sleeping when Defendant woke her and said he shot someone and was going to wait for the police on the porch. Entering with Ms. Ignot’s permission, the police found the murder weapon on a chair in her house. During her testimony, Ms. Ignot stated that Mr. Walker was bigger, taller and younger than Defendant. She testified that, on the evening of the shooting, |7Pefendant had been drinking and that she had last seen him a couple of hours before the shooting.

Captain Richard (Rick) Jones, head of the crime scene unit for the Monroe Police Department, testified that he went to the scene of the shooting after receiving a call at approximately 10:00 p.m. on June 27, 2005. Captain Jones set up lighting in the area and took pictures, which he identified at trial. Mr. Walker had been transported to St. Francis Hospital. At the hospital, Captain Jones took pictures of Mr. Walker and retrieved evidence, including a closed pocket knife taken from Mr. Walker’s rear pants pocket.

Detective Arthur Graves of the Monroe Police Department attempted to interview Defendant on the night of the murder. After having Defendant complete a waiver of rights form, Detective Graves asked Defendant several questions in an attempt to determine his sobriety as Defendant smelled of alcohol. Defendant acknowledged that he had been drinking, but stated he had sobered up a lot. Detective Graves discontinued the interview when Defendant became distraught after learning that Mr. Walker had died. Detective Graves testified that he thought Defendant understood his rights, but the questioning was discontinued because Defendant was distraught and intoxicated. Detective Graves did not notice any injuries to Defendant during the interview and Defendant was not taken to the hospital.

Dr. Frank Peretti, a forensic pathologist, performed the autopsy of Mr. Walker. Mr. Walker had a single contact gunshot wound to the left side | sof his chest. As a result of the gunshot, Mr. Walker bled to death internally. Mr. Walker’s blood alcohol level was .148 grams percent.

After the State rested its case, Defendant testified on his own behalf. As described above, Defendant claimed that at the time of the shooting, Mr. Walker was hitting and choking him. He testified that he believed that shooting Mr. Walker was the only way to escape.

Despite the testimony of Mr. Pittman to the contrary, Defendant stated that Mr. Walker’s wife broke up the fight and there was never any talking between fights. Defendant acknowledged that he had been drinking during the day, but he did not believe alcohol had clouded his judgment or caused him to overreact. While Defendant knew Mr. Walker to carry a knife, he testified that it was not out during the struggle. In regards to his injuries, Defendant stated that he did not receive any medical treatment, but had two big knots (where the knots were on his body was not identified in the record) and a mark around his throat.

The testimony of Mr. Pittman, however, contradicted that of Defendant on several key aspects of the incident. Mr. Pittman testified that he saw Mr. Walker and Defendant talking after struggling on the ground. Defendant, according to Mr. Pittman, was not in a chokehold at the time he fired the fatal shot. Defendant and Mr. Walker were talking when the shooting occurred. Mr. Pittman watched Defendant remove a gun from his clothing and shoot Mr. Walker in the side.

After viewing the evidence in the light most favorable to the prosecution, we conclude that the State presented sufficient evidence to |flsupport Defendant’s conviction of second degree murder. Defendant admitted that he shot Mr. Walker once in the chest in an attempt to free himself from what appears to have been a one-handed chokehold. Defendant alleged he did not intend to kill Mr. Walker, but he believed himself to be in a life- or death-struggle with Mr. Walker, and he chose to shoot Mr. Walker to free himself from the choke hold.

The credibility determination made by the jury in favor of Mr. Pittman’s testimony should not be disturbed by this court. Mr. Pittman’s testimony alone, if believed, is sufficient to establish that Defendant aimed his gun at Mr. Walker and shot him as they stood together talking. At the time, there was no ongoing fight or other action that would cause a reasonable person to believe that he was in imminent danger of losing his life or receiving great bodily harm. From its verdict, the jury appears to have believed Mr. Pittman’s version of the events over Defendant’s version. With Mr. Pittman’s testimony, the State presented sufficient proof that Defendant was not in imminent danger of losing his life or receiving great bodily harm at the time he shot Mr. Walker.

In brief, Defendant cites factors from State v. Fielding, 37,943 (La.App.2d Cir.12/10/03), 862 So.2d 420, writ denied, 04-0249 (La.1/14/05), 889 So.2d 256, that the court should review in determining the reasonableness of the defendant’s belief that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. The court should consider the excitement or confusion of the situation, the possibility of using force or violence short of |inkiIIing and the defendant’s knowledge of the assailant’s bad character. Fielding, swpra.

The evidence presented at trial does not support Defendant’s contention that these factors support his self-defense claim. The general setting of drinking and socializing is not a situation of excitement and confusion that would make Defendant’s actions reasonable, particularly given that it occurred every weekend. The Defendant testified that he did not see a weapon drawn, although he knew Mr. Walker carried one, suggesting that Defendant could have used force short of killing. Finally, Defendant and Mr. Walker had known each other for seven years and Defendant considered Mr. Walker his best friend. Defendant did not present any evidence of Mr. Walker’s bad character. Defendant knew the victim to carry a knife, but this alone cannot justify the shooting. Any physical advantage due to age or size that Mr. Walker may have had over Defendant is not enough to justify the shooting.

After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved that the killing was not in self-defense. Accordingly, we find no reversible error in the jury’s verdict in this case.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, James Brown, is affirmed.

AFFIRMED.

      . The record shows that Mr. Pittman demonstrated how Defendant turned and pulled out the gun. Mr. Pittman states, “[h]e went down in here and got a pistol from under here.” When asked to stand and show the jury, Mr. Pittman states, "[h]e went down in here.”

      . Ms. Ignot is referred to as both "Joanne" and "Joan” in several places of the record.


author: DREW, J. CARAWAY, J.,

text:
    David Lewis STATEN, Jr., Plaintiff-Appellant v. Bruce Edward BROWN, Defendant-Appellee.
    No. 41,288-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Fewell-Kitchens, by: Richard L. Fe-well, Jr., for Appellant.
    Paul Henry Kidd, Jr., Monroe, for Ap-pellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

hDLS sought to establish his paternity of two children born to YFB during her marriage to BEB. DLS appealed a judgment which found that his paternity claim as to the older child was barred by prescription or peremption, and that La. C.C. art. 191 (since replaced by La. C.C. art. 198) did not offend due process and was constitutional. On appeal, DLS contends the trial court erred in ruling that his action to establish his paternity of the older child had prescribed and that former C.C. art. 191 was constitutional. For the following reasons, the judgment of the trial court is affirmed.

BACKGROUND

In his petition to establish his paternity, DLS alleged:

• SWB and TEB were born during the marriage of YFB and BEB.
• The mother died of an aneurysm on December 4, 2004.
• 2005 DNA testing concluded the probability of DLS’s paternity of the two children was well over 99%.
• A maternal aunt had physical custody of the children.
• Under La. R.S. 9:296, DLS sought additional DNA testing of BEB.
• DLS requested that once paternity was established, the court grant him custody of the children.

Relying on C.C. art. 191, BEB responded to DLS’s action with an exception of prescription and/or peremption as to DLS’s claim concerning the older child. By joint motion, the parties supplemented the appellate record with the deposition of DLS taken July 8, 2005, and filed at the trial court hearing on December 12, 2005.

12In the deposition, DLS stated he first met the mother in 2000 while she was living with her husband, BEB. DLS and the mother began their sexual relationship in December 2000 after which he saw her every weekend. DLS acknowledged that when YFB became pregnant and during her first pregnancy, she lived with her husband. After the first baby was born, she and DLS lived at her friend’s home. He stated he also saw the children after their births at her grandmother’s house where the mother’s aunt also lived. DLS said that while the mother was separated from BEB, DLS and the mother “stayed together” at the Town and Country off Jennifer Lane at the home of the mother’s best friend from fall 2002 until about summer 2004.

The mother told him she was pregnant in July 2002 which he remembered because they had just returned from the Essence Festival in New Orleans. DLS was positive the older child was his because the mother told him she and her husband were not having sexual relations. She was continuing to live with her husband at the time the first child was born. DLS stated he visited the hospital and saw the baby the day after he was born.

DLS described the mother as kind of angry about the second pregnancy. Although the deposition twice showed DLS nodded his head affirmatively when asked if the mother was living with her husband during the second pregnancy, DLS contradicted himself by stating she never lived with her husband following the birth of the older child. Although DLS and the mother stopped living together in July 2004 when finances became a ^problem, DLS stated they continued their sexual relationship after the mother moved to her grandmother’s home.

DLS explained that he did not pursue his claim of fatherhood earlier because he did not want to jeopardize the children’s benefits. After the mother died, DLS stated that the husband let the children stay with a maternal aunt two or three days a week until BEB was off work. DLS saw the children when they were with the aunt. In DLS’s opinion, BEB thought himself to be the older child’s father but suspected he might not be the father of his wife’s second child. DLS said he would not exclude BEB from the lives of the children and would not have a problem with a set weekend visitation. He acknowledged that if the second set of DNA tests showed the children had different fathers, DLS would cease his efforts because he would not separate the children. DLS said the children’s Social Security benefit was $1200 a month.

TIMELINE
Earlier Date YFB and BEB married.
December 2000 DLS and YFB begin sexual relationship.
December 19, 2002 SWB born.
June 25,2004 Effective date of Act 530 of 2004 Louisiana Legislature enacting La. C.C. art 191 which stated in § 3 that the provisions of the act “shall be applied both prospectively and retroactively and shall be applied to all pending and existing claims.”

Former La. C.C. art. 191 stated:

A. A man may establish his paternity of a child presumed to be the child of another man even though the presumption has not been rebutted.
|4B. This action shall be instituted within two years from the date of the birth of the child, except as may otherwise be provided by law. Nonetheless, if the mother in bad faith deceives the father of the child regarding his paternity, the action shall be instituted within one year from the date the father knew or should have known of his paternity, but no more than ten years from the date of birth of the child.
August 31, 2004 TEB born.
December 4, 2004 YFB died.
April 20, 2005 DLS filed paternity action.
June 29, 2005 Effective date of La. C.C. art. 198, which states:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

In T.D. v. M.M.M, 98-0167 (La.3/2/99), 730 So.2d 873, a man asserted his paternity of a child legally presumed to be the child of the husband of the child’s mother. The supreme court discussed the law of establishing paternity prior to the enactment of Civil Code articles setting time limitations on avowal actions. Seeking recognition of his paternity, joint custody and visitation, the biological father intervened in December 1994 in a custody dispute between the mother and her husband during their divorce proceedings. The child was conceived during an adulterous affair |Bin March 1988 which continued after the birth of the child. The biological father visited with the mother and child and suspected he was the father. The mother curbed her paramour’s visitation during her separation from her husband. Paternity testing done in April 1993 showed in June 1993 a 99.5% probability that the paramour was the father. In November 1993 the mother ended the affair and thereafter denied the biological father access to the child.

The appellate court dismissed the biological father’s intervention based upon the common law concept of laches, the purpose of which is to prevent an injustice resulting from seeking to enforce long neglected rights difficult to enforce as a result of the delay. The supreme court reversed, noting that common law concept of laches is used in Louisiana only in rare and extraordinary circumstances. There was no prescriptive statute applicable to the father’s effort to avow his biological child. First, the court found that no prejudice occurred as a result of the delay in bringing the action, since the father would have contact with the child only if the court found that was in the child’s best interest. Moreover, the father’s delay in bringing the action resulted at least in part from the actions of the mother who attempted to thwart visitation only after the affair finally ended. The rare and extraordinary circumstances required to apply laches were not present. The matter was remanded for a determination of the best interests of the child.

In a concurrence, Justice Knoll pointed out that a biological father’s substantive rights to conceive and rear a child are not violated by | fiapplication of a “best interest of the child” determination. The justice opined that the fact that a biological father is thwarted from exercising parental rights while the mother is married to another man is not constitutionally offensive because the balance of competing interests tips in favor of preserving the family unit.

In Louisiana, dual paternity is legally permissible, giving the child the benefits of filiation to both fathers. Dual paternity allows a child to seek support from the biological father notwithstanding that the child was conceived or born during the mother’s marriage to another man, and is therefore presumed to be the legitimate child of the marriage. A legitimate father’s status is not affected by an action to establish biological paternity, and a biological father does not escape his support obligations merely because a legal father may share the responsibility. State ex rel. Dept, of Social Services v. Howard, 2003-2865 (La.App. 1st Cir.12/30/04), 898 So.2d 443.

In a recent case in which an alleged biological father sought to avow paternity of a child born during the mother’s marriage to another man, the third circuit found that applying La. C.C. art. 191 to bar the biological father’s avowal action was an unconstitutional abridgement of his right to due process. W.R.M. v. H.C.V. and M.J.V., 05-425 (La.App. 3d Cir.3/1/06), 923 So.2d 911. On June 23, 2006, the supreme court granted writs in the companion case at 05-608 (La.App. 3d Cir.3/1/06), 923 So.2d 916, which reversed and remanded for the reasons stated in 923 So.2d 911. See W.R.M. v. H.C.V. and M.J.V. 2006-0702 (La.6/23/06), 931 So.2d 1090, which is pending before that court.

The relationship between W.R.M. and the mother began in 1992 and the child was born on September 1, 1994. The mother terminated the relationship in November 2004. In the interim, she divorced her husband in October 1996 and W.R.M. filed a petition to establish filiation on July 7, 2003. La. C.C. art. 191 became effective on June 25, 2004, and required that an avowal action be instituted within two years from the birth of the child, unless the mother deceived the father about his paternity. The third circuit found that at the time W.R.M. filed his avowal action in 2003 he had a vested right to sue to establish his paternity. The court concluded that a retroactive application of art. 191 would be an unconstitutional abridgement of W.R.M.’s right to due process. W.R.M. v. H.C.V. and M.J.V., supra. As previously noted, the matter is pending before the supreme court.

Statutes are generally presumed constitutional, and the burden of proving unconstitutionality is on the challenging party. The legislature can set limits on enforcement of vested rights, provided that the legislature provides a reasonable time in which to enforce the vested right. Too short a time period is a denial of justice and “due process.” W.R.M. v. H.C.V. and M.J.V., supra.

The Louisiana legislature made the time limits in art. 191 and the current art. 198 peremptive. The legislature clearly provided that La. C.C. art. 198 is per-emptive. The term peremption was not specifically used in art. 191. However, Act 530 of the 2004 Louisiana Legislature, which | .^enacted both art. 191 and R.S. 9:395.1, stated in 9:395.1 that the two-year period in art. 191 was peremptive. The time limitation of peremption is not subject to interruption or suspension. Peremption totally destroys the previously-existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. Bunge Corp. v. GATX Corp., 557 So.2d 1376 (La.1990).

As noted in pertinent part in Revision Comment (e) to Article 198:

Requiring that the biological father institute the avowal action quickly is intended to protect the child from the upheaval of such litigation and its consequences in circumstances where the child may actually live in an existing intact family with his mother and presumed father or may have become attached over many years to the man presumed to be his father.

The legislature’s interest in stabilizing the family is reflected by the legislature’s decision to make the two-year period peremp-tive rather than prescriptive.

DLS clearly stated at his deposition that he knew he was the father of both children immediately on learning of the mother’s pregnancies. The trial court specifically found that DLS knew of his paternity and was not deceived. Under the facts in this case, we cannot conclude that the nearly six months allowed by retroactive application of art. 191 was an unreasonably short time. Therefore, art. 191 is not unconstitutional as applied in this case. Because art. 191 was the applicable law in this dispute, it is not necessary to address constitutional questions concerning current Article 198.

Finally, we note that these two young children who have lost their mother have a legitimate, legal father, BEB, since they were born during his [^marriage to their mother. Whatever the outcome of the various paternity tests, the best interests of these children must be particularly determined in setting any appropriate custody and/or visitation. Stability and not separating them are factors which weigh heavily in deciding their best interests.

DECREE

With costs assessed against DLS, the judgment of the trial court is AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hThe majority sets forth clearly the law before and after the 2004 enactment of Civil Code Article 191 (now replaced by Article 198). In June 2004, immediately before the enactment of Article 191, DLS was under no specific time constraint regarding his ability to avow paternity of SWB or TEB, who was to be born two months later. T.D. v. M.M.M., 98-0167 (La.3/2/99), 730 So.2d 873. Likewise, at that time, the best interests of those two siblings regarding a relationship with DLS were not subject to any peremptive period. We are now called upon to set a purely transitional prescriptive rule for a unique case which has facts that evolved on both sides of the date of the enactment of Article 191. The majority indicates agreement with the Third Circuit Court of Appeal that, despite the express retroactivity language of Article 191, DLS had to be provided with some reasonable time to act after June 25, 2004, regardless of the prior date of birth of SWB. If SWB had been born on June 26, 2002, the peremptive period of the statute would not be allowed to make such a sudden divestiture of the parties’ rights one day after its enactment on June 26, 2004. I would therefore fix the time period for DLS to act at one year from the date of the June 25, 2004 statute as my transitional rule to govern the few cases such as this that may ever arise. This would be in keeping with the similar one-year periods expressed in former Article 191 and new Article 198. Accordingly, I respectfully dissent.


text:
    STATE of Louisiana, Appellee v. Michael BANKS, Appellant.
    No. 41,274-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Lane Pittard, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| defendant, Michael Banks, was convicted as charged of unauthorized use of a motor vehicle. He was sentenced to ten years’ imprisonment at hard labor, to run consecutive with any other sentence. Defendant was granted an out-of-time appeal. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On December 24, 2002, Defendant went to K.R. United Auto Sales in Haughton, Bossier Parish, and was permitted to test drive a 1993 GMC pickup truck by the business’s owner, Randall Solice. Mr. Sol-ice testified that he handed the keys to Defendant, whom he knew from Defendant’s prior visits to the dealership. Mr. Solice further testified that he told Defendant to “be back shortly” because he wanted to close his business early (about 1:00 p.m.) since it was Christmas Eve. No money changed hands. According to Mr. Sol-ice, Defendant stated that he would be back in a matter of minutes and left in the vehicle. After an hour and a half passed and Defendant had not returned, Mr. Sol-ice called the police and reported the vehicle as missing. Defendant never returned the vehicle.

Defendant testified that he went to the dealership looking for a vehicle that would be reliable to drive to Dallas for the holiday. According to Defendant, Mr. Solice never gave him a time limit on how long he could test drive the vehicle. Defendant testified that it was a “misunderstanding” between him and Mr. Solice as to how long he could drive the vehicle. Defendant’s impression was that they had struck a deal for him to buy the | struck for $5,000 and that the deal would be completed after the holidays in order to allow Defendant time to clear something up with his insurance. With regard to the “misunderstanding,” we find interesting Defendant’s testimony that it was his opinion that Mr. Solice was a “good fellow” and was honest. Defendant testified that, if Mr. Solice stated that he thought the test drive was to be five to ten minutes long, that must be what Mr. Solice understood the agreement to have been.

Defendant further testified that, when he left the dealership in the vehicle, he filled the truck with gas and drove the vehicle to Dallas as he had planned. He returned to Haughton a day or two before the first of the new year. Seven days after Defendant left the used car dealership in the vehicle, he was involved in an accident in Red River Parish while driving the truck. Defendant testified that he was in Red River Parish “visiting someone.” Remarkably, Defendant admitted that, given his testimony, he may have actually been confessing to the instant offense.

As previously stated, Defendant was charged by bill of information with unauthorized use of a motor vehicle. After a trial by a jury of six persons and a short deliberation, Defendant was found guilty as charged. The trial court sentenced Defendant to serve a term of ten years’ imprisonment at hard labor, to be served consecutively with any other sentence. No motion to reconsider sentence was filed. Defendant’s motion for an out-of-time appeal was granted and this appeal followed.

DISCUSSION

Assignment of Error Number One (verbatim): The evidence adduced at trial did not support a conviction of unauthorized use of a motor vehicle.

|,.¡Although the record does not reflect that Defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App.2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the | ¿witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

La. R.S. 14:68.4 A, regarding unauthorized use of a motor vehicle, provides:

A. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.

Defendant argues that he believed he had consent to drive the vehicle until after the holidays, at which time the sale of the vehicle would be finalized. He asserts that there was nothing fraudulent about his actions and, therefore, there was no crime. On the other hand, the State argues that sufficient evidence was presented to support Defendant’s conviction. It notes Mr. Solice’s testimony that Defendant only had permission to take the vehicle for a short test drive and that Defendant was to bring the vehicle back in a few minutes. The State urges that Defendant’s trial testimony was not credible and the jury’s determination of credibility should not be disturbed. We agree.

A review of. the evidence presented by the State in the case sub judice, viewed in the light most favorable to the prosecution, is such that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. La. C. Cr. P. art. 821; Jackson v. Virginia, supra; State v. Cummings, supra; State v. Murray, supra. The jury obviously chose to accept the testimony of the owner of the used car dealership over that of Defendant. This court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, supra.

This assignment is without merit.

Assignment of Error Number Two (verbatim): The ten year sentence imposed constitutes an excessive sentence under the facts and circumstances of this case.

When Defendant fails to file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

In the case sub judice, Defendant argues that the sentencing record fails to indicate that the sentencing considerations of La. C. Cr. P. art. 894.1 were adequately considered. He contends that the objective facts in this case do not support the imposition of a ten-year, hard labor sentence. We disagree.

IfiLa. R.S. 14:68.4 B provides that whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than $5,000 or imprisoned with or without hard labor for not more than ten years or both.

A review of the entire record reveals that the imposition of the maximum ten-year hard labor sentence for this defendant’s conviction of unauthorized use of a motor vehicle is not illegal, nor is it grossly disproportionate to the severity of the offense or shocking to the sense of justice. Prior to imposing sentence, the trial court indicated that it had reviewed the pre-sentence investigation report and noted Defendant’s age (45 years old). It reviewed and set forth Defendant’s criminal history, which began in 1976, and showed that he was a fourth-felony offender. The trial court set forth the facts of the instant offense and noted that Defendant had felony charges pending in Bossier and Red River Parishes. When the trial court asked Defendant if he had anything to say before sentencing, Defendant responded negatively. We conclude that the facts and circumstances of the case and Defendant’s extensive criminal history support a finding that the sentence is not constitutionally excessive. See State v. Lobato, supra; State v. White, supra.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Michael Banks, are affirmed.

AFFIRMED.


text:
    Mary Kathleen LEFEBVRE, Plaintiff-Appellant v. Francis P. GRIGSBY d/b/a Bear’s and Bear’s Limited Partnership, Defendants-Appellees.
    No. 41,417-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.
    Hayter & Odom, by Mark W. Odom, Shreveport, for Appellant.

      McMiehael, Medlin D’Anna & Wedge-worth, LLC, by James C. McMiehael, Jr., Shreveport, for Appellees.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| plaintiff, Mary Kathleen Lefebvre, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, which ruled that all debt accrued by defendant, Francis Grigsby, had been paid back or forgiven. For the following reasons, we reverse.

FACTS

In 1999, Mary Kathleen Lefebvre (“Le-febvre”) and Francis Grigsby (“Grigsby”) were romantically involved. Because of their relationship, Lefebvre assisted in Grigsby’s business, “Bear’s Restaurant,” located in Shreveport, Louisiana. Le-febvre loaned large sums of money to Grigsby for his various business and personal financial obligations. In December, 1999, Grigsby and Lefebvre executed the “Articles of Partnership” (“partnership contract”) which gave Lefebvre 15% interest in the business. Lefebvre continued to lend Grigsby funds toward the operation of the restaurant and bar.

In 2002, the relationship ended and Le-febvre ended her participation in the business. She attempted to arrange repayment of the balance she believed was owed to her. After failing to receive payment, Lefebvre filed suit to recover the remainder amount. Grigsby answered and asserted a reconventional demand claiming the limited partnership was repayment for any loans up until the execution of the partnership contract, and sought reimbursement for business losses from Lefebvre as a limited partner. The trial court denied Lefebvre’s claims as well as Grigsby’s claims in his reconventional demand. Grigsby did not appeal the judgment as it applied 12to his reconventional demand. However, Lefebvre’s appeal is now before this court.

LAW AND DISCUSSION

Louisiana C.C. art. 2801 states, in pertinent part, that “[a] partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.” The record supports that Lefebvre and Grigsby were in a partnership as defined by La. C.C. art. 2801. Finding that their partnership contract is valid and enforceable, we will not address any action that occurred after the creation of the partnership as no breach of fiduciary duty has been alleged and this court is not in a position to scrutinize their business relationship. See e.g. Barksdale v. Lincoln Builders, Inc., 32,857 (La.App. 2d Cir.06/21/00), 764 So.2d 223, writ denied 2000-2646 (La.02/09/01), 785 So.2d 821. However, since it is clear from the record that Lefebvre was to be repaid for all her expenditures before the creation of the partnership, we will address the amount of debt released and the partnership contract at issue.

Lefebvre asserts the most that could have been released was $25,000 as stated in the partnership contract and that she is entitled to the remaining amount. Instead, Grigsby maintains that in exchange for the 15% interest in the partnership, it extinguished all debt owed to Lefebvre as of the date of partnership contract.

[¡¡Although there was conflicting testimony in the interpretation of the document, “... courts must first look to the words and provisions of the contract. When they are clear and explicit, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art. 2046. Here, we look to the language of the valid partnership contract and place particular emphasis on the paragraph which states:

The said MARY KATHLEEN LE-FEBVRE has furnished FRANCIS P. GRIGSBY, the sum of $25,000.00, which sum is hereby acknowledged by the said FRANCIS P. GRIGSBY and a full release and discharge is hereby granted therefore. Said sum shall be used in the extension, maintenance and operation of the business affairs of BEAR’s and for the mutual benefit of the said FRANCIS P. GRIGSBY operating the said business, and the said MARY KATHLEEN LEFEBVRE, as partner in eommen-dam.

The amount Lefebvre furnished for a percentage of the partnership is clearly stated, and, keeping within the four corners of the document, there is no language to support Grigsby’s assertion that this partnership contract discharged a debt greater than the $25,000.00. Accordingly, we find the trial court made legal error in interpreting the contract to mean that Grigsby was released from debt that exceeded the $25,000.00 owed to Lefebvre. See Lawrence v. Terral Seed, Inc., 35,019 (LaApp. 2d Cir.09/26/01), 796 So.2d 115, writ denied, 2001-3134 (La.02/01/02), 808 So.2d 341.

We note that Grigsby acknowledged that “for purposes of this trial we’re accepting [Lefebvre’s] numbers as set forth in the various [exhibits].” In the interest of judicial economy, and since the “numbers” were not challenged, we look to the record de novo to determine whether the amount Lefebvre lent to Grigsby exceeded the $25,000.00 consideration. “When the entire record is before the appellate court, remand for a new trial | ¿produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.” Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 166 (1975); See also La. C.C.P. art. 2164.

After careful review of the receipts and other accounting documentation in the record, we find there was a total of $34,690.23 loaned to Grigsby prior to the partnership contract. After subtracting the $25,000.00 consideration for 15% interest in the partnership, the difference owed to Lefebvre is $9,690.23 plus interest. We found further corroboration of this amount with Grigs-by’s Reply to Motion for New Trial and his testimony at trial referring to the fact that the amount borrowed prior to the partnership contract was in excess of the $25,000.00. We pretermit discussion of plaintiffs other assignments of errors, namely the various calculations to determine the repayment amount, in light of the foregoing reasons.

CONCLUSION

In accordance with the aforementioned reasons, we reverse the trial court’s judgment and award Mary Kathleen Lefebvre a repayment amount of $9,690.23 plus interest. Costs of this appeal are assessed against Francis B. Grigsby, D/B/A Bear’s and Bear’s Limited Partnership.

REVERSED AND RENDERED.


author: BROWN, Chief Judge.

text:
    Jacqueline Raymond MACKEY, as Tutrix of the Minor Children, Tangeneshia Raymond, Anqueneshia Raymond, Pha’Derrica Washington & Madison Raymond and on Behalf of the Estate of Tynesia Raymond, Plaintiffs-Appellants, v. JONG’S SUPER VALUE # 2, Jermaine “Spike” Williams & East Carroll Parish Sheriffs Office, through its Sheriff, Mark Shumate, Defendants-Appellees.
    No. 41,440-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Samuel Thomas, Tallulah, for Appellants.
    Cook, Yancey, King & Galloway by Brian A. Homza, Lila Johnson, Shreveport, for Appellee Jong’s.
    William P. Bryan, III, Baton Rouge, for Appellee, Greg Jones.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

| t Plaintiff, Jacqueline Raymond Mackey, as Tutrix of the Minor Children, Tan-geneshia Raymond, Anqueneshia Raymond, Pha’Derrica Washington, and Madison Raymond, and on behalf of the Estate of Tynesia D. Raymond (hereinafter, “Mrs. Mackey”), appeals a summary judgment in favor of defendant, Jong’s Super Value # 2 (hereinafter “Jong’s”), dismissing her negligence claim. For the reasons stated herein, we affirm.

Facts

On October 21, 2002, Tyneshia Raymond was in the meat department of Jong’s grocery store when she was confronted by her boyfriend (and the father of her fourth child), Jermaine “Spike” Williams, about money she had allegedly taken from him earlier without permission. During this confrontation Williams struck Ms. Raymond and, as a result, a Jong’s employee had to break up the fight.

Upon being notified of the altercation, Jong’s manager, Greg Jones, told his assistant, Lawanna Kelly, to call the police. Jones then immediately proceeded to the meat market where he encountered Williams, who was leaving the area. Jones asked Williams what happened and Williams responded that it was “nothing” and he was “gone.” Williams then exited through the front door, leaving Jones to believe that the incident was over.

After Williams exited the store, Jones spoke with Ms. Raymond and asked her whether she would like to press charges. Ms. Raymond, however, |¡>ran to the front door of the store and began yelling derogatory remarks and racial slurs toward Williams. It was then that Williams ran back into the store with a gun and shot her. Jones called 911 and stated that Ms. Raymond had been shot and that an ambulance was needed. Ms. Raymond died from the gunshot wound.

Procedural History

Plaintiff filed suit against Jong’s, Jermaine “Spike” Williams, and the East Carroll Parish Sheriffs Office through its sheriff, Mark Shumate, on October 20, 2003. The suit alleged that Jong’s acts were the cause in fact of Ms. Raymond’s death and Jong’s acts were listed as follows:

a) failing to provide a safe environment for customers;
b) failing to immediately notify the law enforcement officers of the physical and verbal abuse of Tynesia D. Raymond by Jermaine “Spike” Williams;
c) failing to escort Jermaine “Spike” Williams from the premises; and,
d)failure to maintain security on the premises for customers.

On May 31, 2005, defendant, Jong’s, filed a motion for summary judgment. This motion, however, was denied on August 17, 2005. The trial court denied the motion because of some existing confusion over the time line of events, but the court did decide that Jong’s had no duty to post security guards on the premises.

After conducting more discovery to clear up the existing confusion over the time line of events, Jong’s filed another motion for summary | ¿judgment, which was supplemented on November 15, 2005, December 1, 2005, and December 2, 2005. Oral argument on the motion for summary judgment was heard on December 5, 2005, at which time the trial court issued an oral judgment and reasons for judgment granting Jong’s motion for summary judgment. Written judgment was issued on December 15, 2005, and it is from that judgment that plaintiff has appealed.

The trial court determined that the main issue was whether Jong’s employees responded reasonably to the incident and the court found that there was a reasonable response. In so finding, the trial court bypassed the time line discrepancies — as they did not seem material — and instead focused on the fact that at least one call, and possibly two, was made from Jong’s, and that, in conjunction with the other acts of the employees, this constituted a reasonable response.

Discussion

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783; DeBrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App.2d Cir.04/06/05), 900 So.2d 253. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together |4with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

In the present case, plaintiff has asserted two negligence claims. Plaintiff first contends that defendant was negligent in failing to summon police during the initial altercation. She next claims that Jong’s was negligent in failing to provide security.

Jong’s points out that there is an absence of factual support for any of the allegations of negligence. To determine this, a duty-risk analysis is applied. Under the duty-risk analysis a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of the protection afforded by the duty breached. Smith v. AAA Travel Agency, 37,278 (La.App.2d Cir.10/29/03), 859 So.2d 286, writs denied, 03-3248, 03-3329 (La.02/06/04), 865 So.2d 731, 735.

Duty to Summon Police

A business establishment such as Jong’s owes a duty to its patrons to exercise reasonable care to protect them from injury. Ballew v. Southland Corporation, 482 So.2d 890 (La.App.2d Cir.01/22/86). This duty, however, does not extend to the unforeseeable or unanticipated criminal acts by independent third persons. Id. Where a business owner owes a duty of reasonable care to protect patrons from criminal acts of third parties, that duty can be discharged by summoning the police at the time the proprietor | Joiows or should reasonably anticipate that the third person poses a probable danger. Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884 (La.1981); Ballew, supra.

In the case sub judice, Jong’s contends that its employees summoned the police as soon as they became aware of an altercation between Ms. Raymond and Williams. Plaintiff, however, asserts that defendant’s employee, Lawanna Kelly, did not call police at all and that Greg Jones only called when Ms. Raymond was already dead. Plaintiffs contention, however, is not supported by the evidence in the record or her original petition.

Although the East Carroll Sheriffs log, the 911 computer printouts, and the Lake Providence Police log have different times listed for a particular event, this does not take away from the fact that at approximately 9:01 a.m. a call from Jong’s reporting a disturbance was made to 911. The East Carroll Parish 911 operator, Hope Mills, testified that this disturbance call was received prior to the shooting of Ms. Raymond. In addition to the 911 computer printout stating that there was a disturbance, Mrs. Mackey’s original petition conceded the fact that a Jong’s employee called 911 reporting a disturbance. Whether Ms. Kelly or Jones called is of no consequence; Jong’s duty was discharged when one of its employees | ^summoned the police as soon as he or she became aware of the potential danger posed.

Mrs. Mackey alternatively contends that even if there was a call made before the shooting took place, that call was made long after Jong’s knew or should have known of the potential danger. To substantiate this assertion, plaintiff puts forth the affidavit of James Promise, the man who drove Williams to Jong’s the morning of the incident. Mrs. Mackey testified that Williams was Promise’s crack dealer. In his affidavit, Promise states that Williams was in Jong’s at least 20 minutes before he retrieved his pistol. However, there is overwhelmingly reliable evidence to the contrary. Because a person’s estimation of time is not always completely accurate, defendant has entered the time-coded video surveillance tape into evidence. This surveillance tape shows Williams entering the store, then leaving the store approximately two to three minutes later, then returning back into the store, at which time he shot Ms. Raymond before once again exiting the store. The entire event unfolded in a matter of five minutes. With the video surveillance tape showing the short time span of the entirety of the ■ occurrence, we find, as did the trial court, that Promise’s statement is clearly unreliable.

In light of the aforementioned, it is evident that defendant has shown an absence of factual support for plaintiffs claim that Jong’s breached its duty to summon the authorities. No further analysis of this claim is thus warranted.

17Duty to Provide Security

Although business owners are not the insurers of their patrons’ safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762; Smith, supra. Generally, however, there is no duty to protect patrons from the criminal acts of third persons. Id; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). Therefore, this duty only arises under limited circumstances, when the criminal act in question was reasonably foreseeable to the owner of the business. Posecai supra.

The Louisiana Supreme Court in Pose-cai, supra, recently adopted a balancing test to determine whether a business owes a duty of care to protect its customers from the criminal acts of third persons. This test weighs the foreseeability of the crime risk on defendant’s property and the gravity of the risk to determine the existence and the extent of defendant’s duty. Id. More specifically, the Posecai court held:

The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras ...
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk mil be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.

| tPosecai, supra at 768. In that case, the plaintiff sued Wal-Mart Stores, Inc., after being robbed in the parking lot of Sam’s Wholesale Club in Kenner. The supreme court in Posecai found that during the prior six and one-half years the parking lot had been the scene of three predatory offenses and that the area surrounding the store was considered “a high crime area.” This, however, was not enough for the supreme court to find that defendant had a duty to post security guards in the parking lot.

In the present case, Mrs. Mackey contends that Jong’s had a duty to provide security since it was located in a “high crime area.” Plaintiffs contention is premised on the affidavits of two local residents, as well as one executed by the plaintiff herself, stating that in the surrounding area there had been six to seven murders. Plaintiff even asserted that Jong’s parking lot had been the site of a shooting. This assertion, however, was made without any additional facts; we do not know when the alleged shooting took place. What we do know is that in the five years prior to this incident, there were not any criminal offenses committed on Jong’s premises. It is also relevant to note that Ms. Raymond was shot at 9:00 a.m., and plaintiffs own security expert, Raymond Pendelton, testified that he did not see that as a high crime time of day. Accordingly, we find that even though the area surrounding Jong’s may have been a high crime area, the foreseeability and gravity of harm at Jong’s at 9:00 a.m. was extremely minimal.

| ¡/Therefore, in accordance with the supreme court’s decision in Posecai, supra, we hold, based on the facts and circumstances at the time of the shooting, that Jong’s owed no duty to provide security guards. Because Jong’s did not owe a duty to provide security, defendant has shown an absence of factual support for the duty element of the duty-risk analysis.

Issues of Material Fact—Conflicting Times and Contradictory Testimony

In order to deny a motion for summary judgment, the nonmoving party must show that there is a genuine issue as to material fact. La. C.C.P. art. 966. A fact is material if its existence or nonexistence is essential to a plaintiffs cause of action under the applicable theory of recovery. DeBrun, supra. Therefore, for there to be a genuine issue as to material fact in the present case, the fact at issue must be essential for Mrs. Mackey to prove her negligence claim.

Plaintiff asserts that the trial court erred in granting defendant’s motion for summary judgment since Ms. Kelly gave contradictory testimony in two depositions. In her first deposition, Ms. Kelly stated she was looking for papers for Jones and then in her second deposition she stated she was not looking for papers. This contradictory evidence, plaintiff contends, gives rise to two interpretations of what occurred. Although we find that Ms. Kelly did give contradictory testimony about looking for papers, it does not give rise to a genuine issue as to material fact. Whether Ms. Kelly was |inlooking for papers for Jones is not essential for plaintiff to prove her negligence claim.

Plaintiff next asserts that the conflicting time lines give rise to a genuine issue of material fact. As we discussed above, the discrepancies in times listed by various agencies and exhibits is not sufficient enough to create a genuine issue of material fact. Whether the disturbance call was at 9:01 a.m. or at 9:03 a.m. is irrelevant; all that matters is that a disturbance call was made and the record clearly shows that one was.

Conclusion

For the reasons set forth above, the judgment of the trial court granting summary judgment in favor of defendant, Jong’s Super Value #2 and dismissing plaintiffs claims, is AFFIRMED.

      . Whether Ms. Kelly called police is in dispute. Plaintiff contends that Ms. Kelly did not call police and that it was Jones who called police after Ms. Raymond was shot. Ms. Kelly, however, testified in her deposition that she did call police.

      . The original petition was later amended and corrected to name Sheriff Mark Shumate of East Carroll Parish as defendant, not the East Carroll Parish Sheriff's Office. The trial court granted summary judgment in favor of Sheriff Shumate on June 13, 2005.

      . Plaintiff filed a motion for summary judgment on August 17, 2005, which was denied by the trial court on December 5, 2005. Plaintiff has not raised any assignments of error regarding the denial of her motion for summary judgment.

      . In her original petition, plaintiff also filed suit against the East Carroll Sheriff for failing to immediately respond to the disturbance call. The East Carroll Sheriff moved for summary judgment and this motion was granted on June 13, 2005. After reviewing the record, we note that the first sign of plaintiffs claim — that the police were not called until after Ms. Raymond’s death — appears after the trial court granted the Sheriffs motion for summary judgment.

      . This finding is based on the testimony of Greg Jones. The store manager testified that he had been working at Jong’s for five years and during that time no criminal offenses had taken place on Jong’s premises.

      . Because we conclude that there is an absence of factual support for the duty element, we need not discuss factual support for the other elements of a negligence action.