author: SEXTON, J.

text:
    Donald ROBINSON and Robert Johnson, Jr., Plaintiffs/Appellees v. Michael T. FLOWERS, Jr. and Farm Bureau Insurance Company, Defendants/Appellants Allstate Insurance Co., Plaintiff/Appellee v. Michael T. Flowers, et al., Defendants/Appellants Michael Frith, Plaintiff/Appellee v. Donald Robinson and Allstate Insurance Company, Defendants/Appellees.
    Nos. 41,798-CA, 41,799-CA, 41,800-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Cotton, Bolton, Hoychick & Doughty, LLP, by John B. Hoychick, Rayville, for Appellants.
    Hudson, Potts & Bernstein, by Mark J. Neal, Donald H. Zeigler, III, Monroe, for Appellees, Allstate, Insurance Co., Donald Robinson and Robert Johnson, Jr.
    Bobby R. Manning, Francis C. Brous-sard, West Monroe, for Michael Frith.
    Before CARAWAY, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

11 This appeal arises from a car accident between Donald Robinson and Michael Flowers, Jr. The accident produced three separate suits which were consolidated by the trial court into • a single proceeding. After a bench trial, the trial court resolved all three suits in a single judgment. The trial court ruled in favor of Appellees finding Mr. Flowers 100 percent at fault for the accident. For the reasons stated herein, we reverse the trial court and render judgment.

FACTS

Although the exact facts are in dispute, the accident occurred on September 5, 2004, on Highway 165 in Monroe near a Skatetown facility. Mr. Robinson was driving his car to the Skatetown facility to pick up a relative at closing time that evening, when his vehicle was struck by the car driven by Michael Flowers. Mr. Flowers was driving a car owned by Elizabeth Martin, his girlfriend. Ms. Martin was a passenger in the car. The impact was between the driver’s side rear corner of Mr. Robinson’s car and the passenger side front corner of the car driven by Mr. Flowers.

The parties provide two vastly different accounts of the accident. Mr. Robinson claims that he was in the right hand lane of travel on the highway, searching for a parking spot on the shoulder when Mr. Flowers struck him. Mr. Flowers, in contrast, claims that, as he was driving in the right hand lane of travel, Mr. Robinson was driving on the shoulder when he swung wide into Mr. Flowers’ path of travel as if to make a right hand turn into the Skatetown parking lot.

1 j>Three separate law suits were filed as a result of the accident. Mr. Robinson and his passenger, Robert Johnson, Jr., filed suit against Mr. Flowers and Farm Bureau Insurance Company, the insurer of the car driven by Mr. Flowers. The insurance company of Mr. Robinson’s car, Allstate Insurance Company (“Allstate”), sued Louisiana Farm Bureau Insurance Company (“Farm Bureau”), as insurer of Ms. Martin’s car, for property damage to Mr. Robinson’s vehicle. Ms. Martin and her insurer filed a reconventional demand in that suit for damages paid as a result of the accident. In a third suit, Michael Frith, a passenger in the car driven by Mr. Flowers, sued Mr. Robinson for personal injuries.

As previously stated, the trial court consolidated all three suits into a single proceeding before the bench. All three suits were disposed of in a single judgment. In its oral reasons for judgment, the trial court found that the accident was a rear-end collision and, accordingly, applied the presumption that the following driver was negligent. The trial court found that Mr. Flowers was 100 percent at fault, stating:

... what is clear to this court, that there was a rear ac [sic].. rear-end collision. There’s disputes as to whether it occurred in the right lane or on the shoulder. ... the court finds that there was a rear-end collision. Once that rear-end, ... collision occurred, ... the law follows provides at that point that, that following motorist must exonerate himself. ...

Thus, the trial court did not resolve the conflicting versions of the accident, but simply concluded that since there was a rear-end accident, and | athe following motorist did not exonerate himself, the following motorist bore all of the fault.

The court awarded Donald Robinson $4,800 in general damages and $4,700 in special damages, and awarded Robert Johnson, Jr. $4,700 in general damages and $2,672 in special damages. In addition, it awarded Allstate $4,025.74 for proceeds it paid as a result of the accident. All awards were assessed against Mr. Flowers and Farm Bureau, jointly and in solido, with judicial interest and court costs. The trial court denied Michael Frith’s claim. Mr. Frith does not appeal the denial of his claim. Mr. Flowers and Farm Bureau appeal the judgment against them.

DISCUSSION

Both parties advance a version of events that result in a rear impact, but place liability on the opposing party. Mr. Flowers insists that Mr. Robinson was driving on the shoulder when he swung wide as if to make a right hand turn. In doing so, his turn brought him into the path of Mr. Flowers and Mr. Flowers had no time to react and avoid the accident. As a result, Mr. Flowers struck Mr. Robinson on the left side rear end. In contrast, Mr. Robinson contends that he was driving in the right hand lane when Mr. Flowers came upon him from the rear. In his version, Mr. Flowers swerved to the left at the last moment resulting in striking Mr. Robinson on the left side rear end.

After finding that a rear-end collision occurred, the trial court acknowledged that a dispute existed as to whether the accident occurred on the shoulder or in the right lane of travel. Instead of deciding that dispute, [4the trial court applied the presumption that, in a rear-end collision, the following driver must then exonerate himself and found that Mr. Flowers failed to do so. In so applying that presumption, we find that the trial court committed legal error.

Normally, when faced with a factual dispute on appeal, an appellate court cannot disturb the fact findings of the trial court unless it was manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). When a trial court commits legal error, the appellate court is required to review the record de novo. A legal error occurs when a trial court applies incorrect principles of law and those errors are prejudicial such that they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.

A well-established presumption exists that, in a rear-end collision, the following driver breached the standard of care set out in La. R.S. 32:81 and is, thus, presumed negligent. Mart v. Hill, 505 So.2d 1120 (La.1987). La. R.S. 32:81 states, in relevant part, that

[T]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

In a rear-end collision, therefore, the following motorist is presumed negligent unless he proves lack of fault. Taylor v. Voigtlander, 36,670 (La.App. 2d Cir.12/11/02), 833 So.2d 1204. When this presumption applies, to escape liability, the following motorist has the burden to prove that he had his vehicle under control, closely observed the lead vehicle and followed at 15a safe distance or that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Id.

Louisiana’s jurisprudence, however, recognizes several situations where, while the following car may have impacted the lead car from the rear, the following car is not presumed negligent. For example, a driver changing lanes without first determining that the move can be completed safely and then is struck from the rear by a following car, cannot rely on the rear-end collision presumption to shift the burden to the following driver. Daigle v. Mumphrey, 96-1891 (La.App. 4th Cir.3/12/97), 691 So.2d 260; Anthony v. State Farm Mutual Ins. Co., 227 So.2d 180 (La.App. 2d Cir.1969). In addition, a driver entering a highway from a private drive or from the shoulder has the primary duty to avoid a collision, even if a rear-end collision results. Loveday v. Travelers Ins. Co., 585 So.2d 597 (La.App. 3d Cir. 1991), writ denied, 590 So.2d 65 (La.1991).

Under such jurisprudence, if the accident was as Mr. Flowers submits, then the trial court erroneously shifted the burden to Mr. Flowers based on a misapplication of the rear-end collision presumption. Therefore, the trial court’s mechanical application of that presumption without making factual findings as to how the accident occurred is an incorrect application of legal principle and is, therefore, legal error. In this case, the trial court failed to make any factual findings, save one, based on its misapplication of the rear-end collision presumption. Where legal error interdicts the fact-finding process, the manifest error standard no longer applies; and, if the record is complete, an appellate court should make its own de novo review of the record. Evans, supra. We, therefore, undertake a de novo review of the 1 ^record to determine the facts as established by a preponderance of the evidence.

From our de novo review of the record, we find Mr. Flowers’ version of the accident to be more credible than Mr. Robinson’s version. The preponderance of the evidence supports that Mr. Robinson was driving on the shoulder as if to turn into the Skatetown parking lot and that he swung wide into Mr. Flowers’ lane of travel. We are particularly persuaded by the testimony of Officer Dustin Howell of the Monroe Police Department. Officer Howell was the investigating officer, arriving at the accident four minutes after the accident was called into the dispatcher at 11:13 p.m. He testified that it was common practice in the area for drivers to pull over on the shoulder to turn into Skatetown. He confirmed that Mr. Flowers related to him the same description of events that he argued at trial, that is, that Mr. Robinson was on the shoulder and swung wide into the driving lane. Officer Howell further testified that Mr. Robinson admitted to him at the scene that he had been driving on the shoulder to turn into Skatetown at the moment of impact. At trial, however, Mr. Robinson related a different version of events. Further, Officer Howell found debris on the shoulder and none in the center of the road, substantiating that the impact occurred on the shoulder.

Additional testimony offered by Mr. Flowers corroborate that of Officer Howell. Mr. Flowers, Mr. Frith and Ms. Martin all testified that their car was driving in the right lane when they came upon Mr. Robinson |7driving on the shoulder. They also are all consistent in their testimony that Mr. Robinson swung into the right lane directly in front of Mr. Flowers. Both Mr. Flowers and Mr. Frith testified that Mr. Robinson swung into the right lane so close to Mr. Flowers that he did not have enough time to take evasive action or avoid the accident. Mr. Flowers testified that there had been cars in the left lane, though he was not certain there were any cars there at the exact moment of impact; and, for that reason, he stayed in the right lane instead of moving into the left lane.

We adopt, therefore, Mr. Flowers’ version of the facts that Mr. Robinson was driving on the shoulder when he swung into Mr. Flowers’ lane. Accordingly, we find that Mr. Robinson’s action contributed to the accident; and, he, therefore, must share in the allocation of fault. In a similar case, a court held that an eighteen-wheeler entering the highway from a shoulder was negligent when he. was struck from the rear. Loveday, supra. The court analogized entering the highway from the shoulder to entering from a private drive with the duty to yield the right of way to highway traffic.

The Loveday court, however, also held that the following car was also negligent for failing to timely observe the eighteen-wheeler and take evasive action. Mr. Flowers also failed to keep a proper lookout. He testified that he was looking at the activity over at Skatetown and looked back at the road just as Mr. Robinson swung into the right lane. Likewise, Mr. Flowers failed to anticipate that Mr. Robinson would intrude into his path in making a right hand turn. Mr. Flowers had already observed |sMr. Robinson engaged in one aberrant act, driving on the shoulder, and he should have reasonably anticipated that Mr. Robinson might do another aberrant act. Mr. Flowers is, therefore, also negligent and must share in the allocation of fault for this accident.

In allocating fault between the parties, this court is guided by the Watson factors:

... the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct results from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (8) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff and considerations in determining the relative fault of the parties.

Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1986).

The supreme court has analogized the allocation of fault after an appellate court “clearly wrong” determination to the quantum area requiring that an appellate court give deference to the trial court and limit its reallocation of fault to lowering or raising the percentage of fault to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. This requirement has an important limitation.

[A] de novo review, without any deference to the fact finder, is only appropriate when there is legal error implicit in the factfinding process or when a mistake of law forecloses the fact-finding process, such as when the fact finder’s decision has [9been tainted by an improper and prejudicial jury instruction or erroneously admitted prejudicial evidence.

Id., (Lemmon, J., concurring.) Thus, when a legal error undermines the trier of fact’s allocation process, the reviewing court is free to reallocate fault without deference to the trial court and without the limitation imposed by Clement.

The scope of this exception has been subject to some discussion by Judge Caraway of this court. In his concurrence in Chisholm v. Clarendon National Ins. Co., 37,022 (La.App. 2d Cir.7/9/03), 850 So.2d 1070, writ denied, 03-2608 (La.1/9/04), 862 So.2d 983, Judge Caraway recognized the deference entitled to the trier of fact under Clement, but stated, “Nevertheless, when a fact finder incorrectly finds no fault on one party and conducts no analysis under Watson, such legal error skews the process altogether, requiring de novo review,” citing Lasha v. Olin Corp., 625 So.2d 1002 (La.1993)(for the proposition that incorrectly finding one party without fault is legal error). After that opinion, Judge Caraway acknowledged that the view that no deference is owed to the trial court in cases of legal error where no fault was found had been tacitly overruled by the supreme court in Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. McElroy v. Wilhite, 39,393 (La.App. 2d Cir.5/18/05), 903 So.2d 627(Caraway, J., concurring), 903 So.2d 627.

Indeed, in Toston, the supreme court held that the trial court committed error in finding one party free from any liability, but still applied the Clement standard to its reallocation of fault. Both Toston and McElroy concerned whether or not the trial court erred in failing to allocate fault to Imone of the parties and involved an intensive factual review by the reviewing courts.

However, we distinguish the case sub judice from Toston and McElroy and hold that Clement does not apply. In the case sub judice, the trial court made virtually no fact findings. Its allocation of 100 percent of the fault to Mr. Robinson was based on the misapplication of the rear-end collision presumption and not on its factual view of the case. This is the kind of legal error that clearly forecloses the fact-finding process and warrants de novo review.

Accordingly, under our- de novo review of the complete record, we allocate 30 percent of the fault to Mr. Flowers and 70 percent to Mr. Robinson after considering the Watson factors. As we are a pure comparative fault system, we reduce Mr. Robinson’s and Mr. Johnson’s awards by 70 percent. Further, we reduce Allstate’s award by 70 percent.

In light of our above findings, we further conclude that the trial court improperly denied the reconventional claim by Farm Bureau for proceeds paid to Ms. Martin for property damage to her car, along with a claim by Ms. Martin for her $500 deductible. Farm Bureau submitted paid checks to Ms. Martin for the property damage and to Mr. Flowers and Mr. Frith for accident-related medical bills totaling $8,912.23. We, therefore, award Farm Bureau 70 percent of that amount and award Ms. Martin 70 percent of her $500 deductible.

| nCONCLUSION

For the reasons set forth above, the judgment of the trial court is reversed. We allocate 70 percent of the fault to Donald Robinson and 30 percent of the fault to Michael Flowers. We award Donald Robinson $1,440 in general damages and $1,410 in special damages against Michael Flowers and Farm Bureau Insurance Company, jointly and in solido, with judicial interest from date of judicial demand. We award Robert Johnson, Jr. $1,410 in general damages and $801.60 in special damages against Michael Flowers and Louisiana Farm Bureau Insurance Company, jointly and in solido, with judicial interest from date of judicial demand. We render judgment against Donald Robinson and Allstate Insurance Company, in solido, in favor of Louisiana Farm Bureau Insurance Company for the amount of $6,238.56, and in favor of Elizabeth Martin for the amount of $350, together with judicial interest from date of judicial demand.

Costs herein are assessed 30 percent to Appellees and 70 percent to Appellants.

REVERSED AND RENDERED.

      . Ms. Martin's insurer is named differently in the two suits, but the same entity is a defendant in both suits. Louisiana Farm Bureau Casualty Insurance Company appears to be the correct name as it is the name used by the company in filing its brief for this appeal.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Michael Lee WALLACE, Appellant.
    No. 41,720-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Laura Pavy, Louisiana Appellate Project, for Appellant.
    Michael Lee Wallace, pro se.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Ron Christopher Stamps, Philip Jason House, Assistant District Attorneys for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

hThe defendant, Michael Lee Wallace, was convicted by a jury of indecent behavior with a juvenile. He was sentenced as a second felony offender to serve 14 years’ imprisonment at hard labor without benefits. In this appeal, he assigns as error the use of evidence of his prior convictions of similar crimes. For the following reasons, the conviction is affirmed and the sentence is affirmed as amended.

Facts

In late June 2001, Michael Wallace lived with his girlfriend LaTonya McClain (aka LaTonya Welch), at her home in Shreveport. At that time, McClain’s 8-year-old grandniece, H.Y., was staying at the home as a guest. H.Y. testified that early in the morning, she was lying in bed when Michael Wallace came into her room, pulled down her panties, patted her bottom, and put one of his fingers into her vagina. H.Y. saw Wallace’s face during the episode. H.Y. told her aunt and her sister about these events. Upon returning home, she reported the incident to her mother. On July 3, H.Y. told her story to an investigative interviewer who videotaped the child’s statement.

As a result of H.Y.’s report, the state charged Wallace with indecent behavior with a juvenile. Wallace had two prior convictions from 1994 for sexual battery involving juvenile victims. The state notified Wallace of its intent to use these prior convictions in the instant proceeding. The state’s motion stated that the purpose of using the evidence was to show Wallace’s intent, namely his lustful disposition against children, and to show that the | jjOffenses were part of a system of crimes committed by Wallace. Wallace filed a motion in limine in an effort to exclude this evidence, but the court denied the motion.

The case was tried before a jury in July 2004. The jury saw H.Y.’s videotaped statement and heard her testimony as well as that of the interviewer, H.Y.’s mother, and two police officers.

In addition, the state presented evidence that Wallace had previously engaged in improper sexual contact with minor females. This evidence included copies of the records of Wallace’s prior convictions. The state also presented the testimony of Wallace’s niece, J.Y., who was 22 years old at the time of the trial. J.Y. testified about her experiences with Wallace between July 1992 and January 1993 when she was 10 or 11 years old. At the commencement of JY.’s testimony, Wallace objected to the admission of her testimony on the grounds that it was more prejudicial than probative under La. C.E. art. 403 and thus improper under La. C.E. art. 412.2. The court overruled this objection for the reasons it had given for the denial of the earlier pre-trial motions.

After the trial court denied Wallace’s objection to the testimony, JY. testified that Wallace lived in J.Y.’s home with JY. and the child’s mother and father. JY. testified that on one summer day in 1992:

... I went into the girls’ dressing room to get dressed to go swimming, and after a little bit he [Wallace] came back into the girls’ dressing room while I was dressing and started to take whatever clothes I had already put on off and penetrate me with his fingers in my vagina. And that went on every night just about until February....

|SJ.Y. also stated that Wallace performed oral sex upon her. J.Y.’s parents discovered this when the child’s father found Polaroid pictures taken by Wallace of J.Y. naked “and [Wallace] performing some acts on [J.Y.] As a result of Wallace’s conduct with J.Y. and another juvenile female, the state charged Wallace with two counts of sexual battery in 1993. Wallace pled guilty to those charges in May 1994, and received a three-year suspended sentence.

After J.Y.’s testimony and after introducing Wallace’s prior convictions, the state rested its case. The defendant called only one witness to testify, LaTonya McClain, H.Y.’s great-aunt and Wallace’s girlfriend at the time of this incident. McClain testified concerning an incident where she and Wallace attempted to fit the child with an improvised bathing suit. The incident occurred around the time of the reported crime while H.Y. was staying with McClain. The pants used for H.Y.’s bathing suit fell down as Wallace was adjusting the drawstrings. McClain described the incident as an innocent event in contrast to H.Y.’s report of the incident. McClain also said that Wallace had been at work all night on June 26, 2001, when the crime allegedly occurred, and only came home at about 7:30 or 8:00 a.m., and drank coffee with McClain at that time.

After hearing all of the witnesses, the jury convicted Wallace as charged. Subsequently, the state filed a habitual sexual offender bill against Wallace charging him as a third sexual felony offender. After a hearing where evidence of Wallace’s prior convictions was introduced, and upon finding Wallace to be a third sexual felony offender, the court sentenced [ 4Wallace under La. R.S. 15:537(B) to serve life imprisonment at hard labor without benefits. The court subsequently granted Wallace’s motion to correct an illegal sentence on the grounds that both of Wallace’s prior convictions were obtained by guilty plea on the same day. As Wallace asked in his motion to correct an illegal sentence, the court then found Wallace to be a second felony habitual offender. As noted, the court sentenced Wallace to serve 14 years’ imprisonment at hard labor without benefits. Wallace now appeals, urging two assignments of error.

Discussion

Assignment of Error 1. It was error to admit evidence of appellant’s conviction record under the guise of La. C.E. arts. 404 and 412.2.

In presenting this argument, Wallace argues that the intent of the alleged perpetrator of this crime was not at issue in this case. Therefore, the use of other crimes evidence to prove intent was improper.

La. C.E. art. 404 provides, in part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
La. C.E. art. 412.2 provides:
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen Rat the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

Indecent behavior with a juvenile is defined in La. R.S. 14:81 in part as:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense....

Like molestation of a juvenile, indecent behavior with a juvenile is a specific intent crime where the state must prove the offender’s intent to arouse or gratify his sexual desires by his actions with a child. See State v. Jackson, 625 So.2d 146 (La.1998).

The defendant in Jackson, supra, was charged with molesting his juvenile granddaughters. The state sought to introduce evidence of previous molestation through the testimony of the defendant’s three adult daughters. [sThe Louisiana Supreme Court ruled the evidence admissible on the grounds that the crime of molestation of a juvenile was a specific intent crime which required the state to prove that defendant had the intention of arousing or gratifying either the sexual desire of himself or the victims. Citing State v. Cupit, 189 La. 509, 179 So. 837, 839 (1938), the court “recognized the principle that where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crime to show the intent with which the act charged was committed.” The court stated that the other crimes evidence was “useful in proving that the defendant did not act innocently, and [would] negate any defense that he acted without intent or that the acts were accidental.” 625 So.2d at 150.

Wallace’s intent to gratify his sexual desires by his conduct with H.Y., an eight-year-old child, was an important element of the state’s case. We disagree with Wallace’s contention that such intent was not at issue. The inference exists that such actions involving genitalia reported by a child could have been misunderstood by the child or accidental so that there was no specific intent to commit the crime. Thus, Wallace’s very similar prior conduct with a female child of a similar age was highly probative of the requisite intent for the crime. Also, in this case, the probative value of the evidence strongly outweighs the prejudicial effect because Wallace offered an alibi defense to the crime that tended to cast doubt on H.Y.’s entire story. This assignment of error is without merit.

| ^Assignment of Error 2. Assigned as error are all errors patent.

Defendant’s final assignment was a request for this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App. 2d Cir.5/7/97), 694 So.2d 556.

Because the underlying statutes of conviction, La. R.S. 14:81(C) and La. R.S. 15:529.1(A)(l)(a), allow for parole eligibility, and La. R.S. 15:529.1(G) requires imposition of sentence without benefit of probation or suspension of sentence, the trial court erred in imposing the sentence without benefit of parole. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846. Thus, Wallace’s sentence is amended to delete the parole prohibition with the restrictions imposed by Chapter 3-A of Title 15.

Decree

For the foregoing reasons, Wallace’s conviction is affirmed. His sentence is amended to delete the parole prohibition, and, as amended, affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . This offense is contrasted with aggravated rape, a general intent crime. See State v. Morgan, 99-1895 (La.6/29/01), 791 So.2d 100; State v. Kennedy, 2000-1554 (La.4/3/01), 803 So.2d 916. See also Footnote 1 in State v. Zornes, 34,070 (La.App. 2d Cir.4/3/02), 814 So.2d 113, writ denied, 02-1280 (La. 11/27/02), 831 So.2d 269.


author: STEWART, J.

text:
    Robert CASKEY and Kathy Caskey, Plaintiffs-Appellants v. MERRICK CONSTRUCTION CO., INC. and the State of Louisiana, Through the Department of Transportation and Development, Defendants-Appellees.
    No. 41,662-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 22, 2007.

      Johnson & Placke, by Allan L. Placke, West Monroe, for Appellants Robert Cas-key and Kathy Caskey.
    Bussey & Lauve, by Robert L. Bussey, Lewis 0. Lauve, Jr., Alexandria, for Ap-pellee State of Louisiana, DOTD.
    Theus, Grisham, Davis & Leigh, by Phillip D. Myers, Brad A. Thompson, Monroe, for Appellee Merrick Construction Co., Inc.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

h Robert and Kathy Caskey appeal the trial court’s grant of summary judgment in favor of the Louisiana Department of Transportation and Development (DOTD) and Merrick Construction in this personal injury action. For the reasons that follow, we affirm the trial court.

FACTS

Robert Caskey was injured when his vehicle struck an oak tree that had fallen across LA Highway 4 West in the early morning hours of July 1, 2004. The oak tree was located on a construction servitude obtained by the DOTD from the landowner adjacent to the highway as a result of bridge work that was being performed in the area. DOTD had contracted with Merrick to perform the necessary work at the site of the accident. Photographs of the oak tree show that it had been damaged by heavy construction equipment pri- or to its fall. The last day of clearing work on the construction site occurred two weeks prior to the accident on June 14, 2004. At this time, the oak tree was clearly visible as all of the trees around it had been cleared and removed.

Gordon Thomas, the project manager employed by DOTD, testified that he was responsible for inspecting the construction site for defects and hazards. He would drive through the construction site daily and conducted occasional walk through inspections. He stated that the inspections would have been more vigorous around the time of the accident because of the heavy traffic associated with the July 4th holiday. However, he conceded that the tree at issue appeared to have been damaged by contact with the heavy construction equipment. He also conceded that DOTD was aware |2that falling oak trees were a peculiar problem that needed to be addressed by the DOTD.

C. David McHughes, an expert forester, testified the conditions that contributed to the tree falling were caused by the DOTD and Merrick. He stated that the hazardous condition posed by the tree should have been clearly visible and apparent to both employees of DOTD and the construction company.

The trial court granted the defendants’ motion for summary judgment finding that the DOTD satisfied its duty as a matter of law by inspecting for dead trees on the right of way that might fall on the roadway and removing them within a reasonable time based on the standard set forth in the Louisiana Supreme Court decision of Thompson v. State, 97-0293 (La.10/31/97), 701 So.2d 952. This appeal ensued.

DISCUSSION

Summary Judgment

Appellate courts conduct a de novo review of summary judgments under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App. 2d Cir.1/24/01),3 778 So.2d 728, unit denied, 2001-0512 (La.6/15/01), 793 So.2d 1232.

The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment and points out an absence of factual support for one or more elements essential to the adverse party’s claim, the non-moving party must produce factual support sufficient to show that he will be able to satisfy his evidentiary burden at trial. Otherwise, there is no genuine issue of material fact for trial, and summary judgment is appropriate. La. C.C.P. arts. 966 and 967; Welch, supra.

The DOTD contends that the Caskeys simply failed to demonstrate that it had knowledge of an unreasonably dangerous condition. Thus, it was entitled to summary judgment as a matter of law. We find that the trial court correctly applied the standard set forth in Thompson v. State, supra to the instant case and properly granted summary judgment. The Thompson court stated that:

The state’s duty to protect against this risk is to inspect for dead trees and remove them within a reasonable time. The state is not required to inspect for all trees which could fall on the road and remove them simply because they have the potential to fall on the ground.

Id. at 955

There is no applicable distinction in the instant case. DOTD is not obligated to remove every tree that may have been damaged for whatever reason on the sole basis that it might have the potential to fall at some Uremote point in the future. This rule not only extends to trees possibly damaged by construction equipment, but to trees that are located in wet areas. It is indisputable that the tree at issue was otherwise alive and healthy when it fell. In fact, there was no evidence that the tree was either dead or leaning when it fell. Moreover, the gouge marks in the tree, which were relied upon by the plaintiffs as the requisite “notice” that would trigger a duty of the DOTD to remove the tree, were on the backside of the tree and could not be seen from the highway. There is no duty requiring DOTD inspectors to walk around all sides of the tree and check it for damage, particularly when the tree is otherwise green and healthy. Lewis v. State, through DOTD, 94-2370 (La.4/21/95), 654 So.2d 311; Murphree v. Daigle, 2002-1935 (La.App. 1 Cir. 9/26/03), 857 So.2d 535.

Lastly, the case of Wilson v. State, 364 So.2d 1313 (La.App. 3d Cir.1978), writ denied, 366 So.2d 563 (La.1979) relied on by the plaintiffs is distinguishable from the facts at bar. In Wilson, a large pine tree had been partially blown over by bad weather and was extending out over the road. DOTD had been sent out along the highway to clean debris and trees blown down by the wind and rain. DOTD personnel discussed whether to cut down the particular tree, and a decision was made not to remove it. The Wilson court found that the tree did pose an imminent danger and that the DOTD had notice of the danger yet failed to address it.

In the instant case there is no such evidence of notice. Thus the trial court was correct in its grant of summary judgment as a matter of law.

| .CONCLUSION

Based on the above, we affirm the judgment of the trial court. Costs assessed to appellants.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and STEWART, GASKINS, DREW and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Lamar JENKINS, Appellant.
    No. 41,281-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 22, 2007.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Robert Nicholas Anderson, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

| ¶ Lamar Jenkins was convicted at jury trial as charged of three crimes:

• Count One — La. R.S. 40:966(0(2)— possession of Schedule I CDS, phency-clidine (“PCP”), for which he was sentenced to serve 15 years at hard labor, five years of which to be served without benefit of parole, probation, or suspension of sentence;
• Count Two — La. R.S. 40:967 — possession of cocaine with intent to distribute, for which he was also sentenced to serve 15 years at hard labor, two years of which to be served without benefit of parole, probation, or suspension of sentence; and
• Count Three — La. R.S. 14:95(E) — possession of a firearm while in possession of a controlled dangerous substance, for which he was sentenced to serve five years at hard labor without benefit of parole, probation, or suspension of sentence.

The court ordered the sentences to be served concurrently. Jenkins now appeals his convictions and his sentences.

FACTS

Joel Mekus testified that:

• he was a supervisor with the State of Louisiana, Department of Probation and Parole, on October 6, 2003, the date in question, having served in that capacity for almost a decade, as of the date of trial;
• Jenkins was one of the people under his supervision as the result of a prior felony conviction;
12* on October 6, 2003, he received a call from a Tasha Lister, advising that Jenkins was at room 314 at the Windsor Inn in Monroe, Louisiana, and might be violating the terms of his probation;
• he (Mekus), along with three other probation and parole officers, went to the Windsor Inn, apparently a former motel converted into apartments;
• upon arriving he (Mekus) saw Jenkins and an unknown female standing outside room 314;
• Jenkins apparently recognized Mekus when the officers approached;
• Jenkins went into apartment 314, closing the door behind him;
• the officers then approached the female, who gave her name as Angela Williams, and they asked her about Jenkins;
• she replied that she did not know Jenkins, but moments later, Jenkins came out of the room;
• at first, she insisted the man’s name was “Derrick”;
• he (Mekus) asked Williams if any illegal activities were going on inside the apartment, and she responded in the negative;
• she gave consent to search the apartment;
• the officers found a clear plastic bag containing five or six rocks of crack cocaine on the night stand beside the bed;
• after the bag was found, the officers walked back outside where Mekus noticed Jenkins talking to Williams;
• he overheard Jenkins tell Williams to stop the search;
• Williams then told them that she wanted the search to stop;
|3* the officers contacted Metro Narcotics, and the search resumed after a search warrant was obtained, leading to these other items of contraband being discovered in a black bag above a ceiling tile in the bathroom: (1) a vanilla extract bottle containing suspected POP, (2) 15 to 20 rocks of crack cocaine, and (3) some powder cocaine.

Detective Jerry Melton testified that:

• as of the date of trial, he was a 12-year veteran of the Monroe Police Department, the last four years of which period he was assigned to the Metro Narcotics Unit;
• as of that same date, he responded to a call concerning narcotics in room 314 at the Windsor Inn;
• he observed the five or six rocks on the night stand;
• he did not participate in any search at the apartment, but acted as the evidence officer outside the apartment, providing chain of custody testimony about the drugs and a 22-caliber pistol;
• in particular, the black bag containing powder cocaine, 15 to 20 rocks of crack cocaine, and PCP was found by Agent Mekus above the ceiling of the bathroom closet, then given to Detective Zeigler, and then handed to him;
• Williams told him that none of the seized items belonged to her;
• Williams told him that Jenkins lived with her from time to time and that he had a key to her apartment; and
• he was unsuccessful in lifting any fingerprints from the pistol, which was loaded at the time it was handed to him by Detective Passman.

Chris Colvin testified that:

• on the date in question, he was employed as a relatively new probation and parole officer;
• he was one of the officers who responded to the call on that date;
• he observed the defendant “duck into” room 314;
• he found a 22-caliber pistol “stuck down in a cushion of a recliner” that was covered with clothes;
14* the revolver was loaded; and
• he turned it over to Detective Pass-man, who handed it to Detective Melton, who logged it into evidence.

Detective Triche Passman testified that:

• at the time of trial, he had worked for Metro Narcotics for five years;
• he went to the Windsor Inn on October 6, 2003, where he participated in a search of apartment 314;
• he turned the pistol over to Detective Melton; and
• he generally corroborated much of the testimony of the other officers and agents.

Mark Johnson testified very effectively that:

• on the date in question, he was a corporal in the Monroe Police Department, where he had been assigned to Metro Narcotics for several years;
• he had participated in the granting or obtaining of several hundred search warrants;
• he drafted the application for a search warrant in this case;
• he had participated in several hundred searches pursuant to those warrants;
• he had been qualified as an expert witness in the packaging, distribution, sale and value of controlled substances approximately 20 times in state court in Ouachita Parish and four times at the federal level; and
• after being qualified and accepted as an expert in that field, he testified that the drugs and weapon found in the case were consistent with distribution, rather than personal use.

Detective Jerry Melton returned to the stand simply to testify that there were no items such as crack pipes or suspected crack pipes found in the apartment. Similarly, Officer Mekus returned to the stand to testify that no crack pipe or “items associated with a crack pipe” were found in the | ¡^apartment. This testimony was elicited to dispel the notion that these drugs were possessed for personal use only. The defense declined to put on any evidence. Jenkins was convicted as charged on all three counts. In due course he was sentenced as reflected here-inbefore, and he now appeals.

DISCUSSION

Sufficiency

Our law on sufficiency is clear and well settled.

Jenkins clearly exercised some dominion and control over the apartment as shown by the testimony at trial that:

• as soon as the officers arrived, Jenkins turned and retreated into the room, closing the door behind him;
• Williams told the officers that Jenkins resided there from time to time, and had a key;
• Jenkins told Williams to insist that the officers stop the search, which she did, and which they did;
• Jenkins had obviously been in close proximity to the drugs, having access to the unit; and
• there was only one doorway, which leads one to suspect that it was a small converted motel room, making it more likely that the defendant knew what was inside the unit.

| ^Corporal Johnson’s testimony was very convincing that the items found in the apartment were consistent with distribution, as opposed to personal use. His testimony was that:

• no crack pipe was found (which could indicate personal use); and
• the packaging of the drugs, along with the quantity, as well as the presence of the gun, were indicative of possession with intent to distribute.

The provisions of La. R.S. 40:966 make it unlawful for any person to knowingly or intentionally possess certain controlled dangerous substances, including phencyclidine (PCP). To support conviction for possession, the state does not need to prove the defendant was in physical possession of the drugs; the term “possession” is broad enough to encompass both actual and constructive possession. State v. Manning, 38,083 (La.App. 2d Cir.03/12/04), 868 So.2d 283. Constructive possession may be found where the material is not in a person’s physical possession, but is under his dominion and control; a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910.

Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug, and a defendant’s guilty knowledge must be inferred from the known facts according to reason and common experience. State v. Hill, 38,400 (La.App. 2d Cir.6/23/04), 877 So.2d 173; State v. Manning, supra.

17The six rocks on the night stand are clearly imputable to Jenkins. Less obvious is our conclusion that Jenkins had ample access to the firearm. However, the state did not satisfy its burden of proof connecting the contents of the black bag, hidden above the ceiling of the bathroom closet, to Jenkins. While the evidence certainly preponderates as to his guilt on all charges, convictions require proof of all elements of the crime, beyond a reasonable doubt.

Weaknesses of the state’s case concerning the drugs in the black bag concealed in the ceiling include the following:

• no fingerprints;
• no DNA;
• no testimony as to whether there is a general record of drug activity in this specific area;
• no observation on that date of any apparent drug activity by anyone, including Jenkins;
• no way to tell how long Jenkins had been there;
• no way to tell how long the drugs in the bathroom had been there; and
• no testimony as to the size and layout of the room/apartment.

Several factors may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession. They are (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of drug paraphernalia; and |R(6) evidence that the area was frequented by drug users. See State v. Douglas, 30,393 (La.App. 2d Cir.2/25/98), 707 So.2d 512.

Of these six factors, we find that the state has proven that the defendant had access to the area where the six rocks and the pistol were found. We find, however, that the contents of the black bag were not tied to Jenkins beyond a reasonable doubt, even examining the evidence in a light most favorable to the prosecution. This leaves the state with the following evidence:

• six rocks of crack on the night stand, an amount certainly more consistent with personal use, than with an intent to distribute; and
• a pistol hidden under the cushion of a recliner.

Concerning the six rocks and the pistol, we find, under the Jackson standard, and considering the small amount of drugs imputable to the defendant, that only the elements of illegal possession were proven. From the seizures imputable to Jenkins, the jury could reasonably have concluded beyond a reasonable doubt that Jenkins knew the pistol and this small amount of cocaine were in the apartment, under his dominion and control. The state did not prove that Jenkins should be tagged with the contents of the black bag.

Double Jeopardy

This leaves the defendant with two convictions:

• Count Two — Possession of cocaine; and
• Count Three — Possession of a firearm while possessing a controlled dangerous substance, cocaine.

Every element of Count Two is included in Count Three, making these two remaining charges duplicitous, requiring us, sua sponte, to acquit on the least onerous conviction, Count Two.

[¡/To rebut a claim of double jeopardy, each offense must require proof of an element that is not required in proving the other. See State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223, citing Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Since the contents of the black bag are not imputable to the defendant, the remaining two convictions fail the Blockburger test. As we are therefore constrained to throw out Count Two, the defendant is left with a conviction for only Count Three.

Excessive Sentences

Since we are acquitting Jenkins on Counts One and Two, any sentencing issues relative to those two charges are moot.

Jenkins was sentenced on Count Three to serve five years in prison without benefits of probation, parole, or suspension of sentence. No fine was imposed. The sentence on Count Three is clearly not shocking when considering the past history of this felon, who was still under supervision on the date of this crime.

In summary:

1. We find the defendant not guilty on Counts One and Two.
2. We affirm the conviction and sentence on Count Three.

DECREE

The convictions on Counts One and Two are REVERSED. The conviction and sentence on Count Three are AFFIRMED.

SEXTON, J. (Pro Tempore), concurs.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . The trial court mistakenly advised that the possible sentence for this crime was five to 30 years with or without hard labor, which is the current sentencing exposure for a conviction of the possession of PCP. At the time of the offense, the actual exposure was five to 20 years with or without hard labor.

      . The defendant was advised by the trial court that, because of R.S. 15:574.4, the reality was that he was not entitled to parole eligibility for any of the sentence. This is true, but not because of the sentencing restrictions of this particular crime, but because of the parole eligibility limitations for third felony offenders in the state of Louisiana.

      . See Footnote 2.

      . Jenkins is her baby's daddy. We surmise that there were evidently hard feelings relative to this failed relationship.

      . At various times at trial, unit 314 of the Windsor Inn is described as a room or as an apartment. No dimensions of the living area can be found in the record. There was testimony that Angela Williams was "living” there. The record is bereft of any meaningful information about the crime situation at the Windsor Inn and in the area around the establishment. This information may have proven helpful to us on appeal.

      .There was only one door into and out of apartment/room 314.

      . This information was recited at trial, without objection.

      . The constitutional standard for testing sufficiency of the evidence is enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); that standard requires a conviction to 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, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). When circumstantial evidence is used to prove the commission of an offense, the provisions of La. R.S. 15:438 mandate that, assuming every fact to be proved that the evidence tends to prove, every reasonable hypothesis of innocence must be excluded in order to convict. The provisions of La. R.S. 15:438 do not establish a separate standard from the Jackson standard, but rather provide a helpful methodology for determining the existence of reasonable doubt; ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, supra.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Nicky Lavelle COLEMAN, Appellant.
    No. 41,764-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Christopher A. Aberle, Louisiana Appellate Project, for Appellant.

      Jerry L. Jones, District Attorney, John T. Pham, R. Nicolas Anderson, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

| Nile defendant, Nicky Lavelle Coleman, was convicted of distribution of cocaine. He was adjudicated a second felony offender and sentenced to 15 years at hard labor without benefit of parole, probation or suspension of sentence. We affirm the defendant’s conviction; we amend and, as amended, affirm his sentence.

FACTS

On January 18, 2005, a “buy/bust” operation was conducted by Lieutenant Mike Rowlan and Sergeant Jay Ellerman of the Ouachita Parish Sheriffs Office. They equipped an informant with an audio recording device and $60 in photocopied buy money. They then followed the informant in a surveillance vehicle which was equipped with a video camera. The defendant met the informant at the intersection of 11th and Adams Street in Monroe. The defendant sold $60 worth of cocaine to the informant as the deputies watched and recorded the conversation from about two blocks away. The defendant was immediately arrested.

The defendant was charged with distribution of cocaine. Following a jury trial, he was convicted as charged. The state filed a multiple offender bill in which it alleged that the defendant was a fourth felony offender. Pursuant to a plea bargain, the defendant entered a plea of guilty to being a second felony offender. He was sentenced to 15 years at hard labor without benefit of parole, probation or suspension of sentence. His motion for reconsideration was denied.

The defendant appeals.

J¿BATSON CHALLENGE

In his only assignment of error, the defendant contends that the trial court erred in denying his Batson challenge to the state’s use of a peremptory challenge against Betty Hutson, a black prospective juror. He alleged that he carried his burden of demonstrating the state’s purposeful discrimination in its use of peremptory challenges.

Of nine prospective African-American jurors not challenged for cause, the state accepted three and used peremptory challenges to strike six. (The defense used a peremptory challenge to excuse one of the three African-Americans that the state was willing to accept.) Ultimately, the 12-person jury included two African-Americans, and a third served as an alternate. Following voir dire, the defense raised a Batson objection, claiming the State used its peremptory challenges to strike potential jurors based solely upon the fact they were African-American. The trial judge denied the defense’s Batson objection.

Law

The U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. The three-step Batson process was recently described in Rice v. Collins, 546 U.S. 338,-, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the | sshowing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]

Louisiana has codified the ruling in Batson in La. C. Cr. P. art. 795.

The race-neutral explanation offered by the state in the second step must be one which is clear, reasonable, specific, legitimate and related to the particular case at bar. State v. Collier, 553 So.2d 815, 820 (La.1989); State v. Wilson, 40,767 (La.App.2d Cir.8/23/06), 938 So.2d 1111. The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995)(per curiam); Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).

A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez, 500 U.S. at 364, 111 S.Ct. at 1868-69; Batson, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724; State v. Elie, 2005-1569 (La.7/10/06), 936 So.2d 791; State v. Wilson, supra. The trial court is in a position to observe firsthand the demeanor of the attorneys and the venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, — U.S.-, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006); State v. Lawrence, 40,278 (La.App.2d Cir.3/15/06), 925 So.2d 727; State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61.

A single strike based upon race supports a Batson claim and requires reversal no matter how ably the state has defended the other strikes. Batson, 476 U.S. at 95, 106 S.Ct. at 1722; State v. Elie, supra; State v. Wilson, supra.

Discussion

As to the first step of the Batson analysis, the trial court did not expressly rule on whether the defendant made out a prima facie case of purposeful discrimination; instead the court moved directly to the second step by ordering the prosecutor to give, for the record, its race-neutral reasons for the use of its peremptory strikes against black prospective |,jurors. It has been held that a trial court’s demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272. In any case, once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Hernandez, supra, 500 U.S. at 359, 111 S.Ct. at 1866; State v. Green, 655 So.2d at 288.

Of nine black prospective jurors, the state accepted three and excused six; one of the three accepted by the state was excused by the defense. The trial court required the state to give its reasons for excusing the six black prospective jurors. The reasons for the dismissal of five of these prospective jurors were as follows: (1) a female had previously served on a criminal jury that acquitted; (2) a female had previously served on an acquitting jury and was a former client of defense counsel; (3) a female had a criminal conviction; (4) a male had a domestic abuse charge; and (5) a male gave answers about the use of informants and the burden of proof which led the state to unsuccessfully challenge him for cause.

The sixth black prospective juror, Betty Hutson, was dismissed for her “very quick answer” to a hypothetical question posed by defense counsel about an innocent person being wrongfully convicted. The question |8asked whether the jurors believed that a defendant charged with driving while under the influence could be found guilty by a jury when the evidence only established that the defendant was intoxicated while standing near his vehicle with his keys in his hand. When asked if she believed that could happen, Ms. Hut-son stated conclusively, ‘Tes, sir. It can.” The state expressed concern that she appeared open to the belief that, despite a standard of guilt beyond a reasonable doubt, she could be placed in the position of convicting an innocent person. The state also noted Ms. Hutson’s demeanor, the speed with which she answered the question, and her failure to ponder it for very long. As to other prospective jurors who gave similar answers, the prosecutor stated that they gave him less concern because of their consideration of their answers or reference to other evidence.

The defendant argues that the answers of white prospective jurors Christina Steward, James Gilbert, and Amy Sittner were comparable to those of Ms. Hutson, yet the state did not excuse them. We note that Mr. Gilbert was released by the court due to a family medical emergency; consequently, the defense cannot credibly rely on the fact that the state did not exercise a peremptory strike against him when it had no such opportunity. When asked the same question as Ms. Hutson about an innocent person being convicted, Ms. Steward stated that she “believe[d]” it could happen. She also stated that she would want proof and that she would go with the judge’s instructions. When it was her turn, Ms. Sittner stated, “If he wasn’t driving, I don’t believe that he would be convicted of driving |7while intoxicated.” Only upon further questioning was Ms. Sittner willing to admit that some people convicted of crimes have later been exonerated by scientific developments which aid in the analysis of the evidence.

On its face, therefore, the record does give support to the prosecutor’s belief that Ms. Hutson was more predisposed to believing that innocent people are often convicted of crimes. While Ms. Steward qualified her affirmative response by indicating that it was her belief that it could happen, Ms. Hutson unequivocally stated that “It can.” Ms. Sittner was even more reluctant than Ms. Steward to acknowledge the possibility when she initially indicated that if the evidence did not bear out guilt, she did not believe a defendant would be convicted.

While these are not startling distinctions, they are also to be considered in light of the fact that this court does not have the benefit of witnessing the prospective juror’s demeanor during voir dire. Furthermore, the question before the trial court was not whether Ms. Hutson was more predisposed to such a belief. The question before the court was whether the belief that she might be constituted the actual reason for the state’s exercise of its strike, rather than simply being a pretext for striking her on the basis of her race. The finding of an absence of discriminatory intent under the third step of Batson is based upon whether the trial court found the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor, by how reasonable — or how improbable — the explanations are, and by whether the proffered rationale has some basis in accepted trial strategy. Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). A trial judge’s determination on a claim of purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. State v. Qualls, 40,-630 (La.App.2d Cir.1/27/06), 921 So.2d 226.

Because the trial judge was in the best position to determine the prosecutor’s sincerity in his reasons for challenging Ms. Hutson, it would be difficult to conclude from this record that the trial court abused its discretion in determining that the prosecution’s explanations were race-neutral and that the defendant failed to make a showing of purposeful discrimination.

This assignment is without merit.

ERROR PATENT

Parole eligibility

The trial court imposed the defendant’s entire sentence without benefit of “parole, probation or suspension of sentence.” However, the defendant was sentenced as a second felony offender under La. R.S. 15:529.1. Under La. R.S. 15:529.1(G), such a sentence is to be imposed “without benefit of probation or suspension of sentence.” Additional restrictions may be imposed on the sentence provided those additional restrictions are provided in the underlying offense of conviction. State v. Hunter, 33,066 (La. App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, and 2001-2087 (La.4/19/02), 813 So.2d 424. La. R.S. 40:967(B)(4)(b), which pertains to distribution of cocaine, provides for a term of imprisonment at hard labor for not less than | ¡¡two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence. Thus, after adjudicating the defender a second felony offender, the trial court was required to impose only two years of the 15-year sentence without benefit of parole. Accordingly, we amend the defendant’s sentence to provide that only the first two years are to be served without benefit of parole, probation or suspension of sentence; the rest of the sentence is to be served without benefit of probation or suspension of sentence. The trial court is directed to make an entry in the minutes reflecting this change.

Post-conviction relief

The trial court failed to advise the defendant at sentencing that he has two years from the time his conviction and sentence are final to seek post-conviction relief as required by La. C. Cr. P. art. 930.8. The statute contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for resentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427. We now advise the defendant by this opinion that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

1 ^CONCLUSION

The defendant’s conviction is affirmed. His sentence is amended to provide that only the first two years be served without benefit of parole, probation or suspension of sentence while the rest of the sentence is to be served without benefit of probation or suspension of sentence.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . La. C. Cr. P. art. 795 provides, in pertinent part:
      C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
      D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
      E.The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

      . The state exercised eight of its 12 peremptory challenges; two of them were used against white prospective jurors. The defense peremptorily challenged 12 prospective jurors, one of whom was black and 11 of whom were white.