author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Luther D. McFARLAND.
    No. 06-KA-970.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Donald Rowan, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

^Defendant, Luther McFarland, was charged by grand jury indictment with second degree murder in violation of LSA-R.S. 14:30.1 and pled not guilty at the arraignment. Brian Fullilove, Morris McFarland, Yarnall McFarland, and Derrick Williams were also indicted.

On January 20, 2005, all of the cases of the co-defendants were severed. On this same date, after a hearing, the trial judge denied Luther McFarland’s motion to suppress his statement and identification. The trial judge also denied a motion to quash the arrest warrant, which was filed by Fullilove and adopted by Luther McFarland.

On June 8, 2005, the defendant proceeded to trial by a twelve-person jury, which found him guilty as charged the next day. The defendant filed a motion for [3a new trial, which the trial judge denied on June 28, 2005 prior to sentencing the defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Thereafter, the trial judge denied the defendant’s motion for reconsideration of sentence and granted the motion for appeal.

FACTS

On May 10, 2004, Arthur Buras was living in one side of a double located at 2819 Tugie Drive in Metairie. At approximately 12:30 a.m., he heard loud noises coming from the other side of the double, 2817 Tugie Drive, where the victim, 23-year-old Coulton Lyell, Jr., lived. Mr. Buras looked out of his bedroom window and saw three black males trying to break through the victim’s front door. He heard muffled voices, and then heard a gunshot. When he looked outside of the front window, he saw the three men running down Tugie Drive toward Park Manor. When they reached the corner, they started walking toward Lafreniere Drive. Mr. Buras never got a good look at any of their faces.

Sergeant Donald Meunier, Lieutenant Dennis Thronton and other officers of the Jefferson Parish Sheriffs Office responded and found the victim on the floor in a bedroom with a gunshot wound to the neck. The State’s forensic pathologist, Dr. Susan Garcia, testified the victim sustained a gunshot wound to the left side of his neck, which resulted in injury to the left lung. The victim also had patterned abrasions on his left forehead. Dr. Garcia explained the object that struck the victim’s forehead imprinted the skin with the particular pattern. Based on the gunpowder marks, or stippling, near the wound, Dr. Garcia characterized the wound as an intermediate range gunshot wound. She explained that it was further away than close range, which is a contact wound, but closer than distant range, which is an undetermined distance away. A projectile was recovered from the Lvictim’s body. The victim’s toxicology test revealed the presence of marijuana, cocaine, amphetamine, methadone, benzodiazepine, and opiate.

The police found the victim’s wallet, containing over $200 in cash on the bedroom floor. Police found a dresser drawer opened in the bedroom. A .40 caliber casing was recovered from the scene. The police found the front door opened, with shoe prints on it. The deadbolt and door frame were damaged. The back door, which was a partial-glass paned door, contained a broken pane. The police did not find any cocaine in the house.

After a lengthy investigation, an arrest warrant for the defendant was issued on August 6, 2004, and the defendant was arrested on August 9, 2004. After he was arrested and waived his rights, the defendant made a tape-recorded statement to Sergeant Meunier, which was admitted in evidence and was played for the jury at trial. Initially, the defendant denied that he was on Tugie Drive in the early morning hours of May 10, 2004. Thereafter, the defendant admitted that the gun discharged when he struck the victim after breaking into the house to steal the victim’s cocaine. The defendant said he had never met the victim, but had heard of him. The defendant explained that, on the day before, Yarnell McFarland told him that she had seen a large amount of cocaine in the victim’s house. The defendant, Morris and others had discussed earlier in the day that they would break in and take the cocaine while no one was home at the victim’s house. Later that night, Morris McFarland and Wooder picked up the defendant at his job at Popeye’s and then brought him home. They left and returned with Derrick. The defendant hesitated because they were doing drugs, but the defendant said he was “inspired to Lgo” “by [their] situation going with money.” The defendant retrieved his gun, a black Glock .40 caliber, and left with Morris and the others.

When Morris neared the victim’s house, Luther and the others told Morris to stop around the corner because they did not want him to go with them. Luther and the others unsuccessfully tried to break in through the back door, but entered the front door after kicking it in. The defendant cocked the gun, since he “didn’t know who was in there.” The defendant called out, but no one ever responded, so he believed no one was home. The trio entered the victim’s bedroom and found him on the bed. The defendant struck the victim with the gun and it “went off.” The defendant said he did not mean to shoot the victim. They were asking him where the drugs were, and after the victim was shot, he tried to tell them. Derrick looked everywhere, but they left empty-handed. Afterwards, they met up with Morris at the corner.

At trial, Louise Walzer, a firearms expert, was called as a defense witness. Ms. Walzer testified that she examined a fired cartridge case and an unknown caliber projectile. She stated that the fired case was a Remington Peters .40 S&W caliber. She opined that the projectile was consistent with .40. caliber S&W ammunition. She testified that, the chances were very rare, unless the gun had an aftermarket barrel, that the projectile was fired from a Glock .40 caliber. The projectile had a “G” on the bullet at the base, which was consistent with Dr. Garcia’s mark.

Shannon Herron testified that the defendant was employed at the Taco Bell in Kenner, and said that the defendant was a good employee. She stated she was not aware the defendant had a prior possession of cocaine conviction.

\ «DISCUSSION

The defendant raises issues regarding the sufficiency of the evidence and another alleged trial error. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, we will address defendant’s argument regarding the sufficiency of the evidence before we address the other assignment.

The defendant contends that the trial court erred in failing to grant his motion for a new trial because the verdict was contrary to the law and the evidence, pursuant to LSA-C.Cr.P. art. 851(1). Specifically, the defendant contends the evidence was legally insufficient evidence to support a verdict of second degree murder. The State responds that a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant was guilty of second degree murder.

The denial of a defendant’s motion for new trial, based on LSA-C.Cr.P. art. 851(1), presents nothing for review on appeal. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999). However, the Louisiana Supreme Court and this Court have addressed the constitutional issue of sufficiency of the evidence under such circumstances. See, State v. Hampton, supra, and State v. Blume, 06-131 (La.App. 5 Cir. 7/25/06), 939 So.2d 472, 476; State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50. Therefore, the sufficiency of the evidence is properly before this Court.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including aggravated burglary, even though he has no intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A). See, State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415.

| sSpecific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La.1982); State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 95.

One part of the defendant’s challenge to his conviction is that he lacked the specific intent to kill when he struck the victim with the gun. In his statement, the defendant claims he cocked the gun, which he said was a Glock, after entering the house and that the gun discharged when he struck the victim. He said that he had forgotten the gun was loaded and that he had cocked it. However, there was evidence from which the jury could have inferred that the gun did not fire as the defendant claimed. Sergeant Meunier testified that a Glock has an internal cocking mechanism, so that when the trigger is pulled, the gun fires. Sergeant Meunier also testified that he could not fathom how the victim could have sustained the gunshot wound to the throat if the defendant had struck the victim in the head, as he claimed. Additionally, Dr. Garcia testified that it would be unlikely for the gunshot wound to occur simultaneously with the patterned abrasion on the victim’s forehead.

Even if the victim died in the fashion the defendant claims, we find the evidence was sufficient to prove the defendant had the requisite intent. In State v. Price, (La.App. 1 Cir.1986), 498 So.2d 244, 246-248, writ denied, 503 So.2d 474 (La.1987), the court held that there was sufficient evidence the defendant had the specific intent to kill or to inflict great bodily harm to support his second degree murder conviction where the defendant shot the victim in the neck from a distance of two to three feet away. See also, State v. Buchanan, 94-488 (La.App. 3 Cir. 11/2/94), 649 So.2d 586, 589-590, writ denied, 94-2956 (La.3/24/95), 651 So.2d 287, which held there was sufficient evidence that defendant possessed specific intent to kill or inflict great bodily harm upon the victim to sustain second-degree murder conviction, although the defendant alleged that he was poking the victim to make him exit a car when the gun accidentally discharged.

Moreover, we find there was sufficient evidence for the jury to have convicted the defendant of felony second degree murder, which does not require the specific intent to kill or to commit great bodily harm. Rather, under the felony murder doctrine, the State must prove the commission of the underlying felony or the attempt thereof. State v. Kirkland, supra. According to LSA-R.S. 14:60, aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon; or after entering arms himself with a dangerous weapon; or commits a battery upon any person while in such place, or in entering or leaving such place.

In this case, the evidence at trial showed the victim died after the defendant, who was armed with a gun, entered the victim’s house with the intent to steal the victim’s cocaine. Additionally, the evidence also showed the defendant committed a battery upon the victim while in the house. Thus, the evidence showed that the victim died during an aggravated burglary in which the defendant participated, which- is sufficient to sustain a felony second degree murder conviction. See, State v. Kirkland, supra.

An appellate court’s primary function is not to re-determine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, its function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to 1 msupport the jury’s conclusion. State v. Kirkland, 798 So.2d at 269. Viewed in the light most favorable to the prosecution, we conclude the evidence was sufficient to support the defendant’s second degree murder conviction under either theory of second degree murder.

This assignment of error is without merit.

Defendant also contends that he was arrested without probable cause because the affidavit contained false and misleading information. The defendant contends that the defective warrant made his arrest unlawful and all evidence should have been suppressed as the product of an illegal arrest. As such, the trial judge should have granted the motion to quash the arrest.

Specifically, the defendant contends that the affidavit did not contain these facts: (1) that Danny Jackson implicated the defendant only after being questioned by the police for 8 hours following an unrelated arrest for drugs and felon in possession of a firearm; and (2) that Jackson made the claims while attempting to make a deal regarding the unrelated arrest. The State responds that the trial judge did not abuse his discretion in denying the motion because the arrest warrant was valid.

The record reflects that the defendant did not file a motion to quash his arrest warrant, but rather relied on Brian Fulli-love’s motion to quash. As background to this assignment, the record reflects that the cases of Brian Fullilove, Derrick Williams and Luther, Morris, and Yarnell McFarland were severed on January 20, 2005. Nevertheless, several motions pertaining to all of these defendants were heard that day. Specifically, the record reflects that the trial judge heard and denied a motion to suppress Fullilove’s statement; motions to suppress Luther McFarland’s statement and identification; and a motion to suppress Morris McFarland’s statement.

InThe trial judge then took up Fulli-love’s motion to quash his arrest warrant. During questioning, Sergeant Meunier testified that he had interviewed Yarnell and Danny Jackson on several occasions since the murder and that they had consistently denied knowledge of the murder. On August 3, 2004, he interviewed them after they were arrested on drug charges. Initially, both of them denied knowledge of the homicide, but they ultimately revealed information about the homicide. Jackson, who was facing charges of felon with a firearm and possession with intent to distribute marijuana and cocaine, asked Sergeant Meunier what benefits he would receive if he provided information regarding the homicide. Jackson was in custody from 8:30 p.m., and made his taped statement at 5:57 a.m. Sergeant Meunier obtained an arrest warrant for Fullilove on August 6, 2004, after completing an affidavit and presenting it to the magistrate. Fullilove introduced the warrant and affidavit into evidence.

After Fullilove and the State rested, Luther and Morris McFarland moved to adopt Fullilove’s motion. Fullilove then argued that the affidavit in support of his warrant was deficient because it did not include Yarnell and Jackson’s criminal records; the fact that they resisted making statements several times; and the fact that Jackson did not make a statement until trying to negotiate a deal with the police. The McFarlands then moved to adopt Fullilove’s argument. The trial judge ruled the warrant was not defective as follows:

THE COURT:
All right. This was an arrest made with a warrant. Based on what is stated in the warrant, I don’t think any of the claims of missing information would have, should have made a difference.
Furthermore, under most circumstances, the officer could have actually, if he had probable cause, made the arrest himself without a warrant for arrest. Under the Code, he was free to do that. He chose to take it to a magistrate, to Judge Sullivan in this case. 11 ¡Judge Sullivan accessed [sic] it. The witness, the detective, as the affiant in this case, testified that he believes what he was told. I see nothing unconstitutional about it.
These motions to suppress evidence as fruit of a poisonous tree, namely a defective warrant are denied. I don’t find the warrant defective.

LSA-C.Cr.P. art. 202 provides for issuing an arrest warrant as follows:

Art. 202. Warrant of arrest; issuance
A. A warrant of arrest may be issued by any magistrate pursuant to this Paragraph or as provided in Paragraph D of this Article and, except where a summons is issued under Article 209, shall be issued when:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

The arrest warrant affidavit need only specify the nature, date and place of the offense along with the name of the offender. See, State v. Cook, 404 So.2d 1210, 1212 (La.1981). The issuance of an arrest warrant, unlike a search warrant, is valid if the magistrate has within his knowledge sufficient facts to establish probable cause for the arrest. See, State v. Cook, supra, citing State v. Haynie, 395 So.2d 669 (La.1981). Consequently, when a reviewing court is confronted with an arrest warrant based upon a confusing or constitutionally inadequate affidavit, the matter will be remanded for additional information regarding the facts within the magistrate’s possession. State v. Cook, supra.

Probable cause exists when the arresting officer has knowledge of facts and circumstances based upon reasonable and trustworthy information that are sufficient to justify a man of average caution in the belief that the person he is going to arrest has committed or is committing an offense. State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 528, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117. A determination of probable cause does not require the resolution of conflicting evidence as required at trial. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, 788-789, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). Credibility determinations as well are seldom crucial in deciding whether there is available evidence supporting a reasonable belief that the person going to be arrested has committed a crime. Id.

In State v. McCartney, 96-58 (La.App. 3 Cir. 10/9/96), 684 So.2d 416, 421-423, writ denied, 97-0508 (La.9/5/97), 700 So.2d 503, cert. denied, 522 U.S. 1002, 118 S.Ct. 573, 139 L.Ed.2d 412 (1997), the court held that the affidavit was sufficient to issue an arrest warrant regardless of the magistrate’s lack of knowledge of the contradictory statement where the witness initially denied knowledge of the crime. In McCartney, the defendant argued that the arrest warrant should have been suppressed because the warrant was based on the statement of the co-defendant’s wife and the police did not disclose all contradictory and conflicting testimony given by this witness to the magistrate. The McCartney court reviewed the warrant and affidavit, which had been admitted at the suppression hearing, and concluded that the contradictory statement, when considered with the facts included in the affidavit, did not negate the existence of probable cause for defendant’s arrest. Id. at 422. The McCartney court noted that “[i]t is not uncommon for many individuals to deny guilty knowledge when first questioned by authorities.” Id.

Unlike McCartney, the defendant in the present case did not introduce the affidavit or the warrant at the suppression hearing. According to LSA-C.Cr.P. art. 703(D), the defendant generally has the burden of proving the grounds of a motion to suppress:

luOn the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. ■

In State v. Williams, 01-0732 (La.11/28/01), 800 So.2d 819, 827, cert. denied, 537 U.S. 1203, 123 S.Ct. 1275, 154 L.Ed.2d 1045 (2003), the Louisiana Supreme Court held the defendant failed to meet his burden of proving the grounds of his motion to suppress evidence because the evidence was seized pursuant to a warrant. An affidavit supporting a search warrant is presumed to be valid and the defendant has the burden of proving that the representations in the affidavit are false. State v. Singleton, 98-387 (La.App. 5 Cir. 10/28/98), 723 So.2d 484, 488, writ denied, 99-0101 (La.5/7/99), 741 So.2d 30.

Applying the foregoing principles, the affidavit accompanying the arrest warrant was presumed valid and that the defendant had the burden to prove the grounds of a motion to quash the arrest warrant. We fail to find that the defendant met his burden of proof in this case because the defendant did not introduce any evidence—testimonial or otherwise— at the hearing. Rather, defendant apparently moved to adopt Fullilove’s motion based on the assumption that Fullilove’s affidavit was identical to the defendant’s affidavit. However, there is no proof that the affidavits were identical. Moreover, the defendant did not question Sergeant Meunier regarding the affidavit or what he told the magistrate when securing the warrant in the defendant’s case. Rather, the testimony at the hearing, as well as the warrant and accompanying affidavit introduced at the hearing, pertained to Brian Fullilove. A trial judge is afforded great discretion when ruling on a motion to suppress, and his ruling will not be disturbed absent an abuse of that discretion. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574. Because we find that the defendant failed to meet his burden of proving the | ^allegations of the motion to quash the arrest warrant, we find that there is insufficient basis to disturb the trial judge’s ruling.

This assignment is without merit.

ERROR PATENT DISCUSSION

The Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The following matters were discovered:

The record does not reflect that the trial judge informed the defendant of the prescriptive period for filing post-conviction relief, as required by LSA-C.Cr.P. art. 930.8(C). Therefore, we remand the matter for the trial judge to inform the defendant of the prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that the Defendant received the notice. See, State v. Hutchinson, 02-60 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

We also find that the trial minute entry shows 14 jurors and one alternate juror were selected. However, the transcript of the verdict reflects that the court asked if “10 of the 12 of you” concurred in the verdict, to which the foreperson answered affirmatively. The judge also stated that the ballots were counted and they showed a unanimous verdict from 12 jurors. Therefore, we find that the minute entry is incorrect, and that the defendant was tried by a 12-person jury.

When there is a conflict between the transcript and the commitment, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983). On remand, the trial hfiCourt is ordered to correct the minute entry to show the correct number and names of the jurors.

CONCLUSION

Accordingly, for the reasons assigned herein, defendant’s conviction and sentence are affirmed. The matter is further remanded to the trial court with instructions consistent with this opinion.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED.

      . McFarland is referred to in the indictment as ''Yarnall,” but in the testimony as ''Yar-ned.”

      . Morris McFarland’s case is a companion appeal, No. 07-KA-26, also set on the current docket.

      . Sergeant Meunier is also referred to in the transcript as "Detective” Meunier.

      . Although this record does not so reflect, Morris McFarland’s statement in the companion case of State v. Morris McFarland 07-26 (La.App. 5 Cir. 5/29/07), 960 So.2d 1142, 2007 WL 1545837 also set on the current docket, reflects that Brian Fullilove's nickname is "Wooter.”

      . Morris is also known as “Duane.”

      . The autopsy report reflects that Dr. Garcia put a "G” on the base of the projectile she removed from the victim.

      . The voir dire was not transcribed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Morris D. McFARLAND.
    No. 07-KA-26.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Donald Rowan, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡¡Defendant, Morris McFarland, was indicted by a grand jury charging him with second degree murder in violation of LSA-R.S. 14:30.x. Brian Fullilove, Luther McFarland, Yarnell McFarland, and Derrick Williams were also indicted.

Morris McFarland pled not guilty at arraignment. On January 20, 2005, the co-defendants were severed. On this same date, after a hearing, the trial judge denied the Morris McFarland’s motion to suppress his statement and identification. The trial judge also denied a motion to quash the arrest warrant, which was filed by Fullilove and adopted by Morris McFarland.

On June 6, 2005, the defendant proceeded to trial before a twelve-person jury, which found him guilty as charged the next day. The defendant filed a motion for a new trial, which the trial judge denied prior to sentencing the | ¡¡defendant on June 13, 2005. The trial judge sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. This timely appeal follows.

FACTS

On May 10, 2004, Arthur Buras was living in one side of a double located at 2819 Tugie Drive in Metairie. Sometime after midnight, he heard loud noises coming from the other side of the double, 2817 Tugie Drive, where the victim, 23-year-old Coulton Lyell, Jr., lived. Mr. Buras looked out of his bedroom window and saw three black males trying to break through the victim’s front door. After the fourth man entered the door, Mr. Buras heard a lot of muffled yelling and then heard what he believed was a gunshot. When he looked outside of the front window, he saw three black males running down Tugie Drive toward Park Manor. When they reached the stop sign, they started walking toward Lafreniere Drive. Mr. Buras never got a good look at any of their faces. Mr. Buras called 911 at 12:46 a.m. to report what he had seen.

Sergeant Donald Meunier, Lieutenant Dennis Thronton, and other officers of the Jefferson Parish Sheriffs Office responded and found the victim on the floor in a bedroom with a gunshot wound to the neck. The State’s forensic expert, Dr. Ross, testified the victim sustained a gunshot wound to the left side of his neck, which resulted in injury to the left lung. The victim also had patterned abrasions on his left forehead and a separate abrasion just above the left side of his eyebrow. Based on the gunpowder marks, or stippling, near the wound, Dr. Ross concluded that the gun was fired between one and three feet from the victim. The victim’s toxicology test revealed the presence of marijuana, MDMA, also known as, “Ecsta-cy”, cocaine, methadone, benzodiazepine, and opiate.

[4Based on the crime scene, the police concluded the victim was in the bed at the time of the shooting. They found his wallet, containing over $200 in cash on the bedroom floor. Police found a dresser drawer opened in the bedroom. A .40 caliber casing was recovered from the scene. The police found the front door opened, with shoe prints on it. The deadbolt and door frame were damaged. The back door, which was a partial-glass paned door, showed signs of forced entry.

During the course of a lengthy investigation, the police learned information that led them to target a residence in the 6500 block of Park Manor that was associated with the victim’s girlfriend, Kelly Cochran. The police ultimately honed in on, Brian Fullilove, Luther McFarland, Yarnell McFarland, and Derek Williams as suspects. A warrant for the defendant’s arrest was issued on August 6, 2004, and the defendant was arrested the same day.

Later that day, the defendant made a tape-recorded statement, which was admitted in evidence and was played for the jury at trial. The defendant said he had previously obtained methadone wafers from the victim in the past months. On May 9, 2004, the defendant’s sister, Yarnell, telephoned him to say that she had obtained some cocaine from the victim. The defendant went to Yarnell’s residence, where she had the cocaine on the scale. By tasting the cocaine, the defendant determined that it was not good. He brought Yarnell to the victim’s house and told the victim to return her money.

Defendant stated he then went to a barbeque at his sister’s home, where she gave the defendant and Brian Fullilove some cocaine. After Yarnell told the defendant and Brian that she had seen one-half kilo of cocaine in the victim’s house, they began discussing taking the cocaine if no one was home. The plan was that Yarnell and Danny Jackson, who was her boyfriend, would go out with the victim and his girlfriend, Kelly Cochran, so that no one would be home when the | Rdefendant, Brian, Luther McFarland, and Derrick Williams took the cocaine from the victim’s house. Initially, Luther said he did not want to go. So, the defendant and Brian went to Derrick’s house to discuss the plan. After they left Derrick’s, Luther called and said that he wanted to go. The defendant, Brian, and Derrick then went to pick up Luther.

When the defendant reached Tugie Drive, he had planned to park and the four of them were going to walk to the victim’s house. However, Brian told the defendant that he did not want the defendant to go with them. After dropping off Brian, Derrick and Luther, the defendant drove to Yarnell’s house on Park Manor. He first called Kelly, but when she did not answer, he called Yarnell. When he told Yarnell that the plan was underway, she told the defendant that the victim was still in the house. Fearing something had gone wrong, the defendant walked toward the victim’s house. He saw Brian, Derrick and Luther walking towards him. The defendant learned that Luther shot the victim in the neck. When the defendant asked if the victim was dead, they replied that the victim was holding his neck and moaning. The defendant surmised Luther was trying to awaken the victim to find out the location of the drugs.

The defendant said that they told him that they could not get in the back door, so they broke through the front door. The defendant said that they told him that Luther cocked the gun as soon as he walked in. The victim was sleeping and the gun went off when Luther hit him across the head to wake him up. They searched the house, but left empty-handed. The defendant said he had seen Luther with a black “Glock 40” on prior occasions, since Luther was staying with the defendant at the time. The defendant regretted that the victim had been killed. The defendant acknowledged that he told Danny Jackson about the shooting a few days later.

|f;At trial, the defendant testified largely consistent with his statement. However, the defendant added that the reason he did not enter the house with the others was because he did not believe they should break into someone’s house. In addition, the defendant clarified that Luther was at the barbeque earlier in the day when Yar-ned said that the victim had cocaine in the house. Defendant testified that he told them he wanted nothing to do with it if anyone was going to have a weapon. The defendant admitted he drove the others to the victim’s house, but denied he had any part in the plan to burglarize the house. He claimed he did not contact the police soon after shooting because he was afraid.

Ryan Farrell, the defendant’s employer at Budget Tree service, testified that the defendant was a good worker, and that he would hire him if the defendant were ever able to work for him again.

DISCUSSION

The defendant raises issues regarding the sufficiency of the evidence and another alleged trial error. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed before the other assignment.

|7The defendant contends that the evidence was insufficient to support his conviction because the State failed to prove that he had the intent to commit the underlying felony of aggravated burglary. The State responds that a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant was guilty of second degree murder.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including aggravated burglary, even though he has no intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A). See, State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415.

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” LSA-R.S. 14:24. See, State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1225. Only those persons who “knowingly participate in the planning or execution of a crime” are principals to that crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428. Mere presence at the scene of a crime does not make one a principal to the crime. Id. A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre.

In its brief, the State contends that it proved the defendant was guilty as a principal to felony murder when the victim was killed during the commission of an aggravated burglary, which the defendant helped to plan and in which he facilitated.

According to LSA-R.S. 14:60, aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon; or after entering arms himself with a dangerous weapon; or commits a battery upon any person while in such place, or in entering or leaving such place.

To be guilty as a principal to a burglary, the offender does not have to personally enter the building. See, State v. Ortiz, 701 So.2d at 931, citing State v. Kimble, 375 So.2d 924 (La.1979). And, while possession of a dangerous weapon is an essential component of the commission of the aggravated burglary, a person [ (¡may be a principal to the offense even though he did not personally have possession of the weapon used in the commission of the crime. Ortiz, citing State v. Dominick, 354 So.2d 1316 (La.1978). One need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. State v. Hill, 98-1087 (La.App. 5 Cir. 8/31/99), 742 So.2d 690, 696, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147.

One part of the defendant’s challenge to his conviction in the instant case is that he did not intend to commit an aggravated burglary because he did not believe anyone would be home. However, aggravated burglary requires the dwelling to be inhabited, but does not require the presence of a person at the time of the offense. See, State v. Powers, 344 So.2d 1049, 1052 (La.1977), “Here, the aggravated burglary of the empty residence had completely taken place before [the victim] returned home.” Thus, the fact that the defendant believed the house to be empty is irrelevant to whether he had the intent to commit an aggravated burglary.

The defendant also contends the evidence was insufficient to convict him because he did not know Luther was armed. However, under general principles of accessorial liability, all parties to a crime are guilty for the deviations from the common plan, which are the foreseeable consequences of carrying out the plan. See, State v. Smith, 98-2078 (La.10/29/99), 748 So.2d 1139, 1143, internal citations omitted. The risk that an unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the offense must accept no matter what he or she actually intended. Id.

In State v. Lozier, 375 So.2d 1333, 1337 (La.1979), the Louisiana Supreme Court observed that:

| in[b]urglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants....
In the archetypal burglary an occupant of a dwelling is startled by an intruder who may inflict serious harm on the occupant in his attempt to commit the crime or to escape from the house. The frightened occupant, not knowing whether the intruder is bent on murder, theft, or rape, may in panic or anger react violently, causing the burglar to retaliate with deadly force.

Thus, the fact that the defendant claimed he did not know Luther was armed does not absolve him from responsibility, as the risk that the unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the offense must accept no matter what he or she actually intended. See, State v. Smith, 748 So.2d at 1143.

Moreover, the defendant’s statement to the police clearly reflects that he was integrally involved in the plan and that he knew Luther had a gun when entering the victim’s house. At the barbeque, the defendant and others hatched a plan to enter the victim’s house later that evening and steal the cocaine Yarnell had seen. The defendant said he asked Danny Jackson for a gun at the barbeque. Jackson said if he had a “throw away gun,” he would give it to the defendant, but he did not have any he could “throw away.” It was only after the defendant had picked the other men up and they were on the way to the victim’s house and getting ready to park that the plan was modified for the defendant not to enter. The defendant said:

Alright so we had gone over there and I passed down the street and the plan was for everybody I was gonna go park and everybody was gonna walk back down there but they didn’t want me to go in cause I was like you know there’s some you know you gotta be prepared for the unexpected just incase [sic] somebody is there or somebody, the left somebody in their house you know what if they come at you with something, so you gotta you prepare to have your mindset to try to kill em, you know or defend yourself, or make it to where you know they can’t identify you know [sic] more.

In At trial, the defendant admitted that he discussed obtaining a gun with Danny, but said he made that statement earlier in the barbeque. Defendant also claimed at trial that he did not know anyone had a weapon before they entered. However, the defendant’s statement contradicts his testimony. When asked by the police whether anyone had a gun when the defendant “dropped them off,” the defendant replied that “Luther did.” The defendant stated that Luther told him that he had the gun for protection. The defendant said that Luther had “gone off’ what the defendant had said regarding needing to be prepared for the unexpected.

At trial, the defendant characterized his statement to mean that he saw Luther with a gun when the defendant dropped Luther off after the shooting. However, the defendant’s statement reflects that the only time he dropped off the three men at one time was at the crime scene. After the shooting, he brought Luther, Derrick, and Brian home separately. Thus, context of the question and answer in the defendant’s statement allowed the jury to infer that the defendant meant he saw the gun when dropping the three men at the crime scene, not after the crime.

In State v. Hill, supra, 742 So.2d at 696-697, this Court upheld the defendant’s second degree murder conviction, even though the trial testimony indicated the defendant was probably not the shooter. This Court pointed out that the defendant was at the murder scene with knowledge that his co-defendant planned to rob the victim; that the defendant did nothing to prevent the crime; and that the defendant fled the scene instead of coming to the victim’s aid after the shooting.

In the instant case, the defendant dropped the co-defendants off at the crime scene, knowing that one of them was armed; did nothing to prevent the crime; drove himself and the co-defendants from the scene instead of rendering assistance | ^after the victim was shot, despite knowing that the victim was still alive when the co-defendants left; and failed to report the shooting.

The credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. After carefully reviewing the record and viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient to support the defendant’s second degree murder conviction.

Accordingly, this assignment of error is without merit.

The defendant also contends that the trial judge should have quashed the arrest warrant in this case because the affidavit omitted material facts necessary for the magistrate to make an intelligent determination of probable cause. The defendant further contends that the defective warrant made his arrest unlawful and that his subsequent statement should be suppressed as the product of an illegal arrest.

Specifically, the defendant contends that the affidavit did not contain these facts: (1) that Danny Jackson denied any knowledge of the murder on several occasions and; (2) that Jackson implicated Morris and Luther McFarland, Brian Fullilove, and Derrick Williams only after being questioned by the police for 8 ½ hours following an unrelated arrest for drugs and felon in possession of a firearm. Notably, the defendant does not contend that he was arrested without probable cause. The State responds that the trial judge did not abuse his discretion in denying the motion because the arrest warrant was valid.

The record reflects that the defendant did not file a motion to quash his arrest warrant, but rather relied on Brian Fulli-love’s motion to quash. As | ^background to this assignment, the record reflects that the cases of Brian Fullilove, Derrick Williams and Luther, Morris, and Yarnell McFarland were severed on January 20, 2005. Nevertheless, several motions pertaining to all of these defendants were heard that day. Specifically, the record reflects that the trial judge heard and denied a motion to suppress Fullilove’s statement; motions to suppress Luther McFarland’s statement and identification; and a motion to suppress Morris McFarland’s statement.

The trial judge then took up Fullilove’s motion to quash his arrest warrant. During questioning, Sergeant Meunier testified that, he had interviewed Yarnell and Danny Jackson on several occasions since the murder and that they had consistently denied knowledge of the murder. On August 3, 2004, he interviewed them after they were arrested on drug charges. Initially, both of them denied knowledge of the homicide, but they ultimately revealed information about the homicide. Jackson, who was facing charges of felon with a firearm and possession with intent to distribute marijuana and cocaine, asked Sergeant Meunier what benefits he would receive if he provided information regarding the homicide. Jackson was in custody from 8:30 p.m., and made his taped statement at 5:57 a.m.

Sergeant Meunier obtained an arrest warrant for Fullilove on August 6, 2004, after completing an affidavit and presenting it to the magistrate. The warrant and affidavit were introduced into evidence.

After Fullilove and the State rested, Luther and Morris McFarland moved to adopt Fullilove’s motion. Fullilove then argued the warrant was deficient because it did not include Yarnell and Jackson’s criminal records; the fact that they resisted making statements several times; and the fact that Jackson did not make a statement until trying to negotiate a deal with the police. The McFarlands then|14moved to adopt Fullilove’s argument. The trial judge ruled the warrant was not defective as follows:

THE COURT:
All right. This was an arrest made with a warrant. Based on what is stated in the warrant, I don’t think any of the claims of missing information would have, should have made a difference.
Furthermore, under most circumstances, the officer could have actually, if he had probable cause, made the arrest himself without a warrant for arrest. Under the Code, he was free to do that. He chose to take it to a magistrate, to Judge Sullivan in this case. Judge Sullivan accessed [sic] it. The witness, the detective, as the affiant in this case, testified that he believes what he was told. I see nothing unconstitutional about it.
These motions to suppress evidence as fruit of a poisonous tree, namely a defective warrant are denied. I don’t find the warrant defective.

LSA-C.Cr.P. art. 202 provides for issuing an arrest warrant as follows:

Art. 202. Warrant of arrest; issuance
A. A warrant of arrest may be issued by any magistrate pursuant to this Paragraph or as provided in Paragraph D of this Article and, except where a summons is issued under Article 209, shall be issued when:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

The arrest warrant affidavit need only specify the nature, date and place of the offense along with the name of the offender. See, State v. Cook, 404 So.2d 1210, 1212 (La.1981). The issuance of an arrest warrant, unlike a search warrant, is valid if the magistrate has within his knowledge sufficient facts to establish probable cause for the arrest. See, State v. Cook, supra, citing State v. Haynie, 395 So.2d 669 (La.1981). Consequently, when a reviewing court is confronted with an |1Barrest warrant based upon a confusing or constitutionally inadequate affidavit, the matter will be remanded for additional information regarding the facts within the magistrate’s possession. State v. Cook, supra.

In State v. McCartney, 96-58 (La.App. 3 Cir. 10/9/96), 684 So.2d 416, 421-423, writ denied, 97-0508 (La.9/5/97), 700 So.2d 503, the court held that the affidavit was sufficient to issue an arrest warrant regardless of the magistrate’s lack of knowledge of the contradictory statement where the witness initially denied knowledge of the crime. In McCartney, the defendant argued that the arrest warrant should have been suppressed because the warrant was based on the statement of the co-defendant’s wife and the police did not disclose all contradictory and conflicting testimony given by this witness to the magistrate. The McCartney court reviewed the warrant and affidavit, which had been admitted at the suppression hearing, and concluded that the contradictory statement, when considered with the facts included in the affidavit, did not negate the existence of probable cause for defendant’s arrest. Id. at 422. The McCartney court noted that “[i]t is not uncommon for many individuals to deny guilty knowledge when first questioned by authorities.” Id.

Unlike McCartney, this Court cannot review the affidavit because the defendant did not introduce it.

According to LSA-C.Cr.P. art. 703(D), the defendant generally has the burden of proving the grounds of a motion to suppress:

On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

In State v. Williams, 01-0732 (La.11/28/01), 800 So.2d 819, 827, cert. denied, 537 U.S. 1203, 123 S.Ct. 1275, 154 L.Ed.2d 1045 (2003), the Louisiana l1fiSupreme Court held the defendant failed to meet his burden of proving the grounds of his motion to suppress evidence because the evidence was seized pursuant to a warrant. An affidavit supporting a search warrant is presumed to be valid and the defendant has the burden of proving that the representations in the affidavit are false. State v. Singleton, 98-387 (La.App. 5 Cir. 10/28/98), 723 So.2d 484, 488, writ denied, 99-0101 (La.5/7/99), 741 So.2d 30.

Applying the foregoing principles, the affidavit accompanying the arrest warrant was presumed valid and that the defendant had the burden to prove the grounds of a motion to quash the arrest warrant. We fail to find that the defendant met his burden of proof in this case because the defendant did not introduce any evidence — testimonial or otherwise — at the hearing. Rather, defendant apparently moved to adopt Fullilove’s motion based on the assumption that Fullilove’s affidavit was identical to the defendant’s affidavit. However, there is no proof that the affidavits were identical. Moreover, the defendant did not question Sergeant Meunier regarding the affidavit or what he told the magistrate when securing the warrant in the defendant’s case. Rather, the testimony at the hearing, as well as the warrant and accompanying affidavit introduced at the hearing, pertained to Brian Fullilove.

The defendant acknowledges in his brief that the affidavit is not contained in the record nor mentioned in the proceedings. However, the defendant asserts that the affidavit is the “same affidavit as in the co-defendant’s case and was in the severed co-defendant’s record.” There is nothing in the record to support this assertion. A trial judge is afforded great discretion when ruling on a motion to suppress, and his ruling will not be disturbed absent an abuse of that discretion. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574. 117Because we find the defendant failed to meet his burden of proving the allegations of the motion to quash the arrest warrant, we conclude that there is insufficient basis to disturb the trial judge’s ruling.

ERROR PATENT DISCUSSION

The Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. After a review of the record, we find no error which requires corrective action by this Court.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Luther McFarland's case is a companion appeal, No. 06-KA-970, also set on current docket.

      . The indictment was subsequently amended to charge Fullilove with manslaughter.

      . The record reflects that the victim was also known as "C.J.”

      . It is unclear from Mr. Buras’ testimony whether he saw three or four men that night.

      . See also, State v. Anderson, 97-1301 (La.2/6/98), 707 So.2d 1223, 1224, ("Acting in concert, each man then became responsible not only for his own acts but for the acts of the other.")..

      . It is noted that the State introduced the arrest warrant, but not the affidavit, at trial.


author: COOKS, Judge. SAUNDERS, J„

text:
    Ronald E. CORKERN, III v. R. Allen SMITH and State of Louisiana, Department of Public Safety.
    No. 06-1569.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    Rehearing Denied Aug. 8, 2007.

      Edward M. Campbell, Natchitoches, LA, for Defendants/Appellants, R. Allen Smith Louisiana State Police.
    Edwin Dunahoe, Dunahoe Law Firm, Natchitoches, LA, for Plaintiff/Appellee, Ronald E. Corkern, III.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MICHAEL G. SULLIVAN, Judges.
   COOKS, Judge.

[^STATEMENT OF THE CASE

Trooper R. Allen Smith and the Louisiana State Police appeal a jury verdict in favor of Ronald E. Corkern, III. For the reasons assigned below, we affirm the judgment of the trial court.

STATEMENT OF THE FACTS

In May 2003, Ronald M. Corkern, III, age twenty-six, began experiencing health problems which prompted him to seek medical treatment. It was discovered he had only one kidney and that kidney was functioning at a severely reduced level. Surgery was performed to create an “AV fistula” in his left arm as a port for kidney dialysis. On May 27, 2003, Ron was discharged from the hospital with instructions to exercise care to protect to the newly-created port.

Three days after his discharge, Ron received a frantic call from his girlfriend, Melinda Thomas advising him her dogs were fighting and she was injured when she attempted to intervene. Ron was nearby and he immediately got into his car to assist her. When he pulled into her driveway and exited the car, he realized State Trooper Allen Smith had been following him. The trooper approached Ron with his pistol drawn. Ron tried to explain to the trooper his girlfriend was injured and he needed to help her. Trooper Smith told him to put his hands where he could see them, which Ron did. The trooper made no attempt to question Ron, ask for his driver’s license, or obtain any other information. He simply walked up to the young man, grabbed his left arm at the site of the fistula, threw him to the ground, and handcuffed him. This entire incident was captured by the video camera which was installed in Trooper Smith’s police vehicle. Ron was transported to the Natchitoches Parish Sheriffs Office where he was booked and released. By the next morning, Ron’s entire upper |aleft arm was bruised and the fistula site was irreparably damaged. Three weeks later, he was hospitalized and a second fistula site was created on his right arm.

Ron sued Trooper Smith and the State of Louisiana, Department of Public Safety, alleging two theories of recovery: (1) the trooper used excessive force in making the arrest; and, (2) the State was negligent in training, monitoring and retaining Trooper Smith. Prior to trial, the Defendants filed motions in limine seeking to exclude Trooper Smith’s personnel file and other evidence relating to his conduct as a State trooper. The trial court denied the motion and this court denied the writ, finding no eiTor in the ruling of the trial court. Corkern v. Smith, 06-404 (La.App. 3 Cir. 3/23/06). Following trial, the jury awarded Ron $100,000 for physical pain, $250,000 for mental pain and anguish and medical expenses of $8,500. Trooper Smith and the State of Louisiana appeal asserting the following assignments of error:

1. The trial court erred in failing to bifurcate the trial and in admitting evidence of other incidents of misconduct by Trooper Smith while in his official capacity.
2. The trial court erred in failing to apportion any fault to Ron Corkern.
3. The trial court erred in allowing recovery of expert witness fees and the cost of enlarging trial exhibits.
4. The trial court erred in failing to reduce the excessive damage award.

LAW AND DISCUSSION

Motion in Limine

Prior to trial the State filed a motion in limine seeking to exclude Trooper Smith’s personnel record. The trial court denied the motion and this court denied writs. The State now re-urges its argument on appeal. The State does not assert the personnel file of Trooper Smith is inaccurate, presents a false representation of his conduct as an officer or that the evidence is irrelevant to the issue of negligent hiring. Instead, the State contends his record, which contains numerous reprimands andRsuspensions for misconduct, is highly prejudicial and inflamed the jury. The State argues the prejudicial effect of the evidence substantially outweighs its probative value. See La.Code Evid. art. 403.

In response, Ron asserts this issue has already been resolved and is barred from further review by the law of the case doctrine. Generally, the law of the case doctrine applies to prior rulings of the appellate court and an appeals court will not reconsider its own ruling in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. However, the application of this doctrine is discretionary and an appellate court may reconsider an issue if the prior decision was “palpably erroneous or its application would result in manifest injustice.” Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622). Alternatively, Ron argues this evidence, although damaging to the State, is necessary for proof of negligence. We agree.

Ron seeks recovery against the State under the tort of negligent hiring, which is a theory of recovery recognized under La.Civ.Code art. 2315. Roberts v. Benoit, 605 So.2d 1032 (La.1991). A duty is imposed upon the State to exercise reasonable care in the hiring, training, and retaining of its officers, who in the performance of their duties, are likely to subject third parties to serious risk of harm. Id. Trooper Smith’s personnel record is relevant and material to a determination of whether his superiors were privy to and had knowledge of his job performance and whether the State was negligent in hiring training, and retaining him on the force in light of his employment history. In denying the motion in limine, the trial court recognized the evidence was essential for a determination of this issue. The court stated:

In his petition, plaintiff has alleged that the Trooper was negligently retained as a patrol officer, which falls under the theory of negligent | Bhiring. To attempt to prove this theory, plaintiff must be able to review the Trooper’s employment record with the State Police. Because of that, the Court finds that the admission of its employment record for that limited purpose outweighs any risk of prejudice to the jury, and the Motion in Limine is denied. It will be the responsibility of the Court to exercise its supervisory and authority on the admission of this evidence as part of plaintiffs case to see that the probative value outweighs any prejudicial effect.

The jury instruction given by the trial court clarified that Trooper Smith’s employment record was to be considered only with regard to the issue of negligent hiring, not whether he used excessive force in making the arrest. The trial court gave the following instruction:

The Court permitted the matters in Mr. Smith’s personnel history as a Trooper to be admitted into evidence for the sole purpose of allowing plaintiff to attempt to establish his allegation that the State of Louisiana was negligent in allowing Mr. Smith to remain as a patrol officer. You are not permitted to use Mr. Smith’s personnel history to decide whether he used excessive force in this case. You may only use the matters in his personnel history to help you determine whether the State of Louisiana was negligent in allowing Mr. Smith to remain as a patrol officer.

We have thoroughly reviewed the record and find no error in the decision of the trial court allowing the evidence for the purpose of establishing negligent hiring on the part of the State. Accordingly, we find no error in the ruling of the trial court denying the motion in limine.

The State further contends the trial court should have bifurcated the trial on the two theories of recovery so that the jury could have watched the video of the alleged tort and determined whether the officer used excessive force before the jury was presented with evidence of his personnel record. We have viewed the video of the pursuit and arrest. Ironically, the video tape alone, without Trooper Smith’s personnel record, was sufficient evidence for the jury to conclude Trooper Smith was negligent, even willful, in his handling of the situation, used excessive force in making the arrest and was completely responsible for the resulting damages. | ^Bifurcating the trial on the two theories of recovery would not necessarily have benefitted the State’s case. We find no merit this argument.

Comparative Fault

The State asserts the jury erred in failing to assess fault on the part of the Plaintiff. Comparative fault is an affirmative defense and the party asserting it bears the burden of proving, by a preponderance of the evidence, that the negligence of the plaintiff was a cause-in-fact of the injury. Trahan v. Savage Indus., Inc., 96-1239 (La.App. 3 Cir. 3/5/97), 692 So.2d 490. In determining fault, the jury must consider the conduct of each of the parties and the causal relationship between the conduct and the damages. Several factors are to be considered: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of each of the parties, whether superior or inferior; and (5) any extenuating circumstances which might require the party to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985); Campbell v. Louisiana Dep’t of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898. The State contends Ron was at fault in failing to stop his vehicle when he discovered Trooper Smith was following him and in failing to mitigate his damages by not seeking immediate medical attention for the damaged port site.

The jury assessed the fault of the parties based, in part, on the video tape of the incident. The video tape does not support the State’s arguments in brief. Contrary to the State’s assertion, Trooper Smith did not have his siren on when he was following Ron. When they arrived at Melinda’s home and Ron exited his vehicle, his hands were in complete view of the trooper. Again, contrary to the State’s assertion, it does not appear Ron was reaching for a gun or that he was making any other ^threatening move. Ron is a young, slightly built man. When he got out of his car, he appeared to be pointing to his girlfriend’s house presumably trying to explain the situation involving the dogs. Trooper Smith approached with his gun drawn. He holstered his pistol, and without hesitation or explanation, he grabbed Ron’s left arm, threw him to the ground, pulled his arms behind his back and handcuffed him. Trooper Smith did not speak to Ron, ask for his name, license or vehicle registration documents. Melinda came out of the house and she also attempted to explain that her dogs were fighting and she was bitten. Trooper Smith told her if she was in trouble, she should have called 911. Ron related to the trooper he had just had surgery on his arm. Trooper Smith appeared completely unaffected by the emergency presented by the dogs or the explanation of events given by Ron or Melinda. Ron was placed in the police car and transported to the station.

In addition to the video tape, the jury heard the testimony of Mr. Harold Warren, a retired assistant chief of police of the City of Dallas, Texas. Mr. Warren was accepted by the court as an expert in the use of force and in the administration, supervision and discipline of law enforcement personnel. Mr. Warren worked his way up from patrol officer to assistant chief of police in charge of 140 police officers and was responsible for analysis and review of pursuits and use of force. In addition, Mr. Warren was an instructor at the Dallas Police Academy, the North Central Texas Regional Police Academy and the FBI Academy. Mr. Warren reviewed the evidence, including the videotape of the pursuit and “take down” and testified there was no indication that any force was necessary to effect the arrest of Ron Cor-kern. According to his review of the tape, he concluded Ron was completely compliant and offered no resistence. He also confirmed, contrary to Trooper Smith’s report, that there was no attempt to reach for a gun or any aggressive action or any action which |scould be interpreted as aggressive on the part of Ron. Mr. Warren testified Ron’s actions were consistent with his testimony and consistent with the actions of a normal individual who was at the point of a gun. He complied with all orders given by Trooper Smith while, at the same time, attempting to explain the circumstances of the situation. Mr. Warren concluded it was unnecessary to throw Ron to the ground in order to handcuff him. He stated based on the video and the totality of the circumstances, Trooper Smith failed to properly assess the situation and used excessive force in making the arrest.

The jury was presented with evidence of Trooper Smith’s record as an officer. According to his record, Trooper Smith was reprimanded multiple times for various infractions, including failure to respond to an automobile accident as directed by his superiors, failing to pay for gasoline at a service station, and failing to keep his gun in working order. He was also suspended for hiding personal belongings from the family of a deceased accident victim and filing a false report regarding the items. In 2000, during the course of an arrest, Trooper Smith kicked an individual in the head and broke his jaw.

In assessing fault, the jury heard the testimony of the Plaintiff and his father, Ron Corkern, Jr. Ron stated he did not notice he was being followed by a police officer. He was totally focused on reaching his girlfriend’s home as quickly as possible to assist her. Ron attempted, without success, to explain to Trooper Smith he was there to help his girlfriend. The jury concluded it was not unreasonable to believe the exigency of the circumstances justified Ron’s failure to observe Trooper Smith behind him.

The State contends Ron was at fault in failing to secure medical treatment and instead went on a planned trip to Florida. The testimony indicates Ron did seek | ¡¡immediate medical attention following the incident. Ron’s father contacted his son’s two treating physicians to notify them of the damaged fistula site. He was told there was nothing that could be done to salvage the fístula site and surgery would have to be scheduled to insert a new port. The physician advised Mr. Corkern surgery could be performed when Ron returned from a long-standing planned family vacation to Florida. Ron was evaluated by his physician immediately upon his return and on July 21, 2003 he was hospitalized for the creation of another AV fístula port.

In determining the issue of comparative fault, the jury weighed the fault of both parties and concluded Ron’s failure to stop or observe Trooper Smith’s vehicle resulted from extenuating circumstances which required him to proceed in haste. The record supports a finding by the jury that the injury to Ron which followed was solely a direct result of Trooper Smith’s negligence. We, therefore, find no error in the decision of the jury concluding Ron was free of fault in causing his damages.

Damages

The State argues the damage award is excessive. The jury awarded Ron $100,000 for physical pain and $250,000 for mental pain and anguish. The jury heard medical testimony regarding the consequences of damaging a kidney dialysis port site on a young man of twenty-six who is in chronic renal failure.

Dr. Stephen W. Wheat, an internal medicine specialist, testified he first examined Ron on May 19, 2003, with complaints of joint pain and muscle cramps. Dr. Wheat initially thought, because Ron was only twenty-six years old, that the symptoms were consistent with rigorous exercise. Blood tests were performed and Dr. Wheat found “low and behold, his creati-nine, which is a judge of kidney function, was through the roof. And immediately, I said, ‘Oh, my God.’ We have a twenty-six year old man that needs dialysis, basically.” It was discovered Ron had only one |1flkidney and that kidney was congenitally smaller and was not functioning properly. A stent was immediately placed in the urethra and Ron was administered medication to prevent clotting in the stent and to prevent infection. He was referred to a general surgeon.

Dr. Gazi Zibari, a general surgeon and organ transplant specialist, stated he vividly remembers Ron because it was an unusual situation for a young, and otherwise healthy, individual to be in need of an organ transplant. Dr. Zibari explained the procedure for the creation of a port for dialysis. In Ron’s case, surgery was performed on his left arm to divert blood from the brachial artery into a vein. The goal is to create a vein or conduit where at least 150 to 400 cc’s of blood per minute can flow through. Normally, a vein will not have that much blood flow. But once the blood flow is diverted from the artery, the vein increases in size and becomes stronger. The contaminated blood is taken from the site through a needle, cleaned in the dialysis machine and then placed back into the vein, through another needle, higher up toward the heart.

Dr. Zibari explained after surgery is performed to divert the blood flow, it takes anywhere from four weeks to three months for the vein to develop to a point where it can be used for dialysis. However, even the successful creation of a port site can result in complications. Dr. Zibari testified the port site “[m]ay develop aneurysm in the patient, infection, thrombosis, you know, erosion through the skin. Because you’re sticking this vein three times a week. You’re subjecting this vein, or this prosthesis. And every time you put the needle in it, you subject it to risk of thrombosis, risk of aneurysmal development, risk of skin erosion.”

Dr. Zibari testified a port site has a life expectancy of two and half to three years for individuals who undergo dialysis. He underscored it is important to guard Inthe port site because it is inevitable a port site will fail and an individual will eventually “run out” of port sites. He testified Ron’s optimum solution is to find a kidney donor. However, there is a danger that he may be unable to find a suitable donor match before he exhausts the supply of available port sites for dialysis. If this happens, dialysis is no longer a treatment option. Dr. Zibari testified he “was advocating finding him a living donor. If he would have a living donor, maybe we would not have to subject him to these other operations.” The loss of one of these sites can essentially reduce someone’s life expectancy by several years. He testified a young man of twenty-six would have a greater risk of significant consequences because of the loss of a port site than would an older person.

Dr. Zibari testified since the first site was irreparably damaged he performed an additional surgery on July 21, 2003 to create a right AV fistula site for dialysis. However, because this site had not matured at the time dialysis was scheduled to begin in September, an additional surgery was required to place a central line into Ron’s chest with a “pigtail” device to have dialysis administered through that site. The right port site eventually matured and dialysis was initiated in October 2003.

Dr. Wheat saw Ron again in February 2006 when he came in with multiple complaints. At that time, Ron had been undergoing dialysis for approximately three years. Dr. Wheat evaluated his condition:

[Djialysis can be very hard on people, and he was having some problems with it, and it was — sometimes the initial stages of dialysis are really kind, and then it just ain’t worth a flip, and that’s — we’re having some problems, and it’s not worth a flip with him, and we’re looking at transplanting right now, and that’s kind of what we’re trying to find, is the best place to transplant, you know, or — and who is going to be — and, you know, you’re got everything from matches to, you know, location.
If he’s going to assume a normality of life, he’s going to need a kidney transplant, I think, because he’s really now at a point with his-where the dialysis is not — it’s not what it used to be. He doesn’t feel good. |1⅞.. and he’s looking at the rest of his life feeling like this and that’s just not an — it shouldn’t be an option for him.

The findings of a jury are entitled to great weight and will not be overturned on appeal unless manifestly erroneous or clearly wrong. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. The supreme court has recognized the “role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

In this case, the Plaintiff was a twenty-six year old who was rushing to the aid of his girlfriend. Just three days prior to the incident, he had undergone surgery to establish a port site for kidney dialysis. He was still assimilating the news of his medical condition and his need for dialysis for the rest of his life. The jury heard the medical testimony regarding the consequences of a damaged port site. The jury also heard the testimony of the Plaintiff, who fully understands the consequences of losing the site on his left arm and, as a result, lives in constant apprehension. The jury assessed the actions of Trooper Smith who made no attempt to question Ron or listen to his plea regarding the danger to his girlfriend. He drew his pistol, grabbed Ron’s left arm and threw him to the ground irreparably damaging a port site. We do not find the jury was clearly wrong in awarding Ron $350,000 for physical and mental pain and suffering given the “effects of the particular injury to the particular plaintiff under the particular circumstances.” Id. at 1261.

Expert Witness and Exhibit Fees

The State disputes two items of costs assessed against it. The first is the expert 11switness fee of Harold Warren in the amount of $4,218.00 and the second is $1,916.00 paid to SCI Communications, Inc. for a trial exhibit. The trial court held a hearing on the Motion to Tax Costs. The record reflects Mr. Warren was accepted by the court as an expert in administrative police procedures and use of force. His time was documented and his fees were reviewed by the trial court at the hearing. We find no error in the decision of the trial court.

The State contends the cost paid to SCI Communications, Inc. for a trial exhibit is unreasonable. We disagree. A trial court has great discretion in fixing fees for expert witnesses and determining the reasonableness of costs incurred by the prevailing party. Otwell v. Diversified Timber Services, Inc., 04-924 (La.App. 3 Cir. 1/26/05) 896 So.2d 222. In this case, we do not find an abuse of discretion by the trial court.

DECREE

Based on the foregoing review of the evidence, we affirm the judgment of the trial court. All costs of this appeal are assessed against R. Allen Smith and the State of Louisiana, Department of Public Safety, Louisiana State Police.

AFFIRMED.

SAUNDERS, J., concurs in the result and assigns written reasons.

SAUNDERS, J„

concurs.

|! This is a case in which Plaintiff, Ronald M. Corkern, Jr., was injured when he was approached and arrested by Louisiana State Trooper R. Allen Smith following a high-speed car chase on May 30, 2003. Plaintiff testified that he was responding to a frantic phone call he had received from his girlfriend, advising him that she had been bitten by one of her dogs when she attempted to intervene in a dog fight, and that he did not notice that Trooper Smith was following him until he arrived at her home. Plaintiff attempted to explain the situation. Trooper Smith proceeded to arrest Plaintiff. During the arrest, Trooper Smith allegedly grabbed Plaintiffs left arm, at the site of a fistula, where a port had been inserted for kidney dialysis only three days prior to the incident. As a result, Plaintiffs fistula site was irreparably damaged, and a second fistula site had to be created.

Plaintiff subsequently brought a claim against Trooper R. Allen Smith and the State of Louisiana, Department of Public Safety, alleging the use of excessive force in making an arrest, as well as negligence in training, monitoring, and retaining Trooper Smith.

I write further to discuss the issue of bifurcation of trial, which is argued | ¡.strenuously by the State. It is my view that bifurcation of trial is not appropriate due to the fact that the State is alleging comparative fault as an affirmative defense. In this case, Plaintiff filed suit asserting two causes of action: 1) the use of excessive force by Trooper Smith during arrest and 2) Negligence in hiring, training, and retaining patrol officer. Defendants argue that the trial should be bifurcated because once excessive force is proven, the claim of negligent hiring is irrelevant and only serves to inflame the jury. In defending against Plaintiffs claim, Defendants have alleged comparative fault as an affirmative defense. In this case, Defendants’ fault is comprised not only of the alleged excessive force exercised during the arrest by Trooper Smith, but also the alleged negligence of the Department of Public Safety in retaining Trooper Smith despite his past behavior on the force. It is necessary to weigh all of the fault of the Defendants, both the negligence in hiring and the excessive force claims, against the fault of the Plaintiff in order to make a determination of the allocation of fault between all parties involved. La.Civ.Code art. 2323. The court in Landry v. Bellanger, 02-1443 (La.5/20/03), 851 So.2d 943, explains that art. 2323 “clearly requires that the fault of the every person responsible for a plaintiffs injuries be compared regardless of the legal theory of liability asserted against each person. Dumas v. State, 02-0563 (La.10/15/02), 828 So.2d 530).” Id. at 952. Therefore, Department’s alleged negligence in hiring, training, and retaining Trooper Smith is, indeed, relevant, and bifurcation of trial is not appropriate.