author: MICHAEL E. KIRBY, Judge.

text:
    Denile J. STAMPS v. Denardo DUNHAM, D.P.M. and Gulf Insurance Company.
    No. 2007-CA-0095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 2007.

      Byron J. Casey, III, Metairie, LA, for Plaintiff/Appellant.
    Gregory C. Weiss, Weiss & . Eason, L.L.P., Mandeville, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

hSTATEMENT OF THE CASE

The events leading to this medical malpractice case began on June 16,1999, when Denile Stamps sought the services of De-nardo Dunham, D.P.M., regarding pain in the toes of both feet. Dr. Dunham’s diagnosis was that Ms. Stamps had hallus val-gus interphalanges bilateral feet, as well as both hammertoe deformity and mallet toe deformity. The defendant claims he discussed the risks and benefits of both conservative surgical therapies. The plaintiff claims he did not inform her of any complications that might result from the surgical procedure. On July 9, 1999 the surgery was performed by Dr. Dunham at Lake-land Medical Center. Dr. Dunham cut through the extensor tendon and removed the head of the phalanx. He rasped the bone and reattached it to the extensor tendon and closed the wound. Ms. Stamps was discharged from the hospital during the evening following her surgery.

Ms. Stamps developed pain over the following two days. The doctor prescribed Cipro and Bactroban ointment and instructed her to keep her foot elevated. Ms. Stamps experienced various degrees of pain and discomfort and visited Dr. Dunham on several occasions for treatment. Ms. Stamps continued to |¡>see Dr. Dunham for treatment for approximately one month, indicating a 60% improvement during that treatment period. On August 9, 1999, Ms. Stamps made a decision to stop seeing Dr. Dunham for treatment and began seeing a second podiatrist, William H. Dabdoub, D.P.M., regarding the infection of her toes. Dr. Dabdoub continued to treat Ms. Stamps with antibiotics. Eventually, the infection resolved, but as the wounds healed in the following weeks, Ms. Stamps became concerned that her toes were misaligned and crooked. Dr. Dab-doub recommended a second surgery in an attempt to realign her toes and Ms. Stamps agreed to the second surgery. Dr. Dabdoub performed revision anthroplasty on Ms. Stamps on February 2, 2001 at Methodist Ambulatory Surgical Center in. an attempt to realign toes 2 and 3 on her left foot.

Denile Stamps filed a complaint with the Division of Administration alleging that Dr. Dunham deviated from acceptable standards of practice in performing the surgery of July 9,1999. On May 2, 2001, a medical review panel determined that Dr. Dunham met the appropriate standards of care in his treatment of Ms. Stamps.

On March 4, 2005, Dr. Dunham and his insurer tendered the sum of $100,000.00 in settlement of the plaintiffs cause of action filed against Dr. Dunham, as per the provision of La. R.S. 40:1299.44. In signing the settlement offer, Dr. Dunham admitted his liability and the plaintiff reserved her rights to proceed against the Louisiana Patient’s Compensation Fund for additional damages.

| JPROCEDURAL HISTORY

On October 23, 2006, the matter was called for a Jury Trial on the issue of causation and quantum regarding Dr. Dunham’s liability. On October 26, 2006 the jury awarded Ms. Stamps $15,000.00 in general damages, $35,000.00 in loss of enjoyment of life and $15,000.00 in past medical expenses.

On October 30, 2006 Ms. Stamps filed a Motion for Judgment Notwithstanding the Verdict, alternatively a Motion for New Trial and alternatively Motion for Additur. The trial court denied all aspects of the plaintiffs motion.

The plaintiff filed this Motion for Appeal on December 5, 2006.

STANDARD OF REVIEW

The plaintiff alleges that the jury erred in failing to award adequate damages for injuries sustained by the plaintiff as a result of Dr. Dunham’s negligence. A court of appeal may not set aside the jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through DOTD, 617 So.2d 880 (La.4/12/1993), citing Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has provided a two-prong test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.

Malpractice claims are subject to the general rules of proof applicable to any negligence action: the plaintiff must prove a standard of care, a breach of that standard, causation, and damages. Whether alleged malpractice constitutes negligence is a question for the jury. Aiello , citing Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 722 (La.1986). The manifest error rule also applies in appeals of medical malpractice actions. Id., citing Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, (La.1991).

ASSIGNMENT OF ERROR NO. 1:

The plaintiff contends that the jury award of $15,000 in general damages and $35,000 for loss of enjoyment of life is grossly inadequate for the nature of Ms. Stamps’ damages. Where there is a reasonable basis for the jury’s award, it should not be disturbed. Courteaux v. State ex rel. Dept. of Transp. and Development, 99-0353, p. 11 (La.App. 4 Cir. 9/22/99), 745 So.2d 91, 98. There is ample evidence supporting the jury’s awards for general damages and for loss of enjoyment of life. While the plaintiff went through pain and discomfort, the jury could reasonably make these conclusions based on the evidence: (1) Dr. Dunham was only given one month to treat the defendant after the surgery, which could limit his liability for general damages. (2) Ms. Stamps’ pain was short term as she is not presently on pain medication and no pain medication has been prescribed to her since October 22, 1999.(3) The jury examined Ms. Stamps’ toes in the courtroom and may have concluded her injuries did not warrant greater damages. All of these considerations were taken into account by the jury and state law mandates the | ^appellate courts give great deference to the jury’s determination of damages. The jury’s award was not so low as to shock the conscience and should not be disturbed. Id. at 14, 745 So.2d,at 99. We therefore affirm the judgments of $15,000 for general damages and $35,000 for loss of enjoyment of life.

ASSIGNMENT OF ERROR NO. 2

The plaintiff avers that the jury erred in failing to award Ms. Stamps the full amount of her medical expenses incurred as a result of the negligence of Dr. Dunham. The plaintiff argues that the jury abused its discretion by not awarding the full $32,244.41 in medical expenses, which is comprised of $15,000 in expenses from Dr. Dunham’s treatment and the remainder from Dr. Dabdoub’s treatment. Applying the manifest error/clearly wrong standard to this issue, we find the jury could have reasonably concluded that Dr. Dunham’s liability for Ms. Stamps’ medical expenses should have been limited to the time of Dr. Dunham’s treatment. Ms. Stamps made a unilateral decision to see another doctor for further treatment, even though the infection was resolving itself under Dr. Dunham’s care. In addition, Dr. Dunham’s x-rays revealed good alignment of the toes at the time she stopped seeing him for treatment. Ms. Stamps subsequently saw Dr. Dabdoub for additional treatment over a period of eighteen months. The jury could have reasonably concluded that the subsequent treatment by Dr. Dabdoub was too attenuated and conjectural to hold Dr. Dunham hable for those medical costs. The jury considered the fact that Dr. Dabdoub and Ms. Stamps made treatment decisions over an eighteen-month period that affected the final result of Dr. Dunham’s surgery, without any input from Dr. Dunham. Again, the issue on appeal is not whether the trier of fact was right or wrong, but whether there was a [¿reasonable basis for its decision. We do not find manifest error in the jury’s award of $15,000 and therefore affirm that part of the judgment.

ASSIGNMENT OF ERROR NO. 3

The plaintiff maintains the trial court erred in failing to grant Ms. Stamps’ Motion for Judgment Notwithstanding the Verdict (“JNOV”), alternatively her Motion for New Trial, alternatively her Motion for Additur. A JNOV is properly granted “only when the facts and inferences are so strongly and overwhelmingly in favor of one party that the trial judge believes reasonable men could not have arrived at a contrary verdict.” Adams v. Security Ins. Co. of Hartford, 543 So.2d 480, 486 (La.1989); Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991). This court noted that a JNOV is only appropriate where “the jury’s verdict is absolutely unsupported by any competent evidence.” Selico v. Intercontinental Bulktank Corp., 98-0763, p. 9 (La.App. 4 Cir. 5/12/99), 733 So.2d 1240, 1245. Thus, if the jury’s verdict is one which reasonable people could have rendered or if the trial court is convinced that, under the evidence, reasonable minds could differ as to the amount of damages, the granting of a JNOV is improper.

In considering a motion for JNOV, the trial court may not weigh the evidence, substitute its judgment of facts for that of the jury, or pass on the credibility of witnesses. In addition, the court should consider all of the evidence, not just the evidence that supports the non-mover’s case, and should give the non-mover the benefit of every legitimate and reasonable inference that can be drawn from the evidence by the jury. Department of Transp. and Development v. Wahlder, 554 So.2d 233 (La.App. 3rd Cir.1989); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984). This court, in reviewing a JNOV, must use the aforementioned criteria in deciding whether or not the motion was properly granted. Anderson v. New Orleans. Public Service, Inc., supra.

The jury heard the testimony of expert witnesses, examined all pertinent medical records and evaluated the credibility of Ms. Stamps’ testimony. After examining all of the evidence, the jury made a determination regarding Dr. Dunham’s negligence and the resulting damages. The jury’s decision can be characterized as reasonable, even though reasonable minds could have differed on the amount of damages. Under these criteria, we find no manifest error in the trial court’s denial of the Motion for Judgment Notwithstanding the Verdict.

In the alternative, the plaintiff makes a Motion for a New Trial. A motion for a new trial requires a less stringent test than for a JNOV because such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Martin v. Heritage Manor South, 2000-1023, pp. 4-5 (La.4/3/01), 784 So.2d 627, 631-632. “Although the language is similar between the standards for a JNOV and a new trial, there is a real difference between a finding that no evidence existed for a rational jury to reach a particular result and a finding that a jury could not have reached its conclusion on any fair interpretation of the evidence.” Gibson v. Bossier City General Hosp., 594 So.2d 1332, 1336 (La.App. 2d Cir.1991). In considering whether the verdict was supported by any “fair interpretation of the evidence” on a motion for new trial, the trial judge is free to weigh the evidence and make credibility determinations, and is not required to view the evidence in the light most favorable to the non-movant as on a JNOV motion. Id.

The standard of appellate review in ruling on a motion for new trial is whether the trial court abused its discretion. Anthony v. David Lumber, 629 So.2d 329, 331 (La.1993). A jury verdict cannot be set aside on the grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence. Martin v. Heritage Manor South Nursing Home, 2003-1023, p. 15 (La.4/3/01), 784 So.2d 627, 637. Recognizing the discretion of the trial court in granting or denying a motion for a new trial and recognizing the jury’s verdict is supportable by a fair interpretation of the evidence, we find the trial court did not abuse its discretion in denying the motion for new trial.

In the second alternative, the plaintiff made a Motion for Additur. The standard of review for additur is set forth in La. Code Civ. P. art. 2083(B): “[i]n reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.” We find the jury exercised reasonableness in its determination of general damages, loss of enjoyment of life, and past medical expenses. We therefore find the trial court’s denial of a Motion for Additur to be proper.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in all respects.

AFFIRMED.

      . Aiello v. Smith, 94-103 (La.App. 5 Cir. 7/26/94), 641 So.2d 664, 671.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge. MURRAY, J., GORBATY, J.,

license: Public Domain

text:
    Petrina IMBRAGUGLIO v. Barry C. BERNADAS, Individually and in his Capacity as Candidate for the Office of Sheriff, St. Bernard Parish, and Lena R. Torres, in her Capacity as Clerk of Court for the Thirty-Fourth Judicial District Court for the Parish of St. Bernard, State of Louisiana.
    No. 2007-CA-1220.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2007.

      Patrick Fanning, Gretna, Louisiana, and Salvador E. Gutierrez, Jr., Mary Ann Hand, Gutierrez & Hand, Chalmette, Louisiana, for Plaintiff/Appellee.

      Philip C. Ciaccio, Jr., Gretna, Louisiana, for Defendant/Appellant, Barry C. Berna-das.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

[jThe defendant, Barry C. Bernadas, appeals the trial court’s judgment disqualifying him as a candidate for the office of Sheriff of St. Bernard Parish. We affirm.

Facts and Procedural History

Prior to Hurricane Katrina, Barry Ber-nadas resided at 2408 Etienne Drive in St. Bernard Parish. After the hurricane, Mr. Bernadas lived in Folsom, Louisiana until August 31, 2006. Mr. Bernadas sold his home on Etienne Drive on February 23, 2006. Since August 31, 2006, Mr. Berna-das has lived with his family at a home he purchased at 7011 General Haig Street in New Orleans. Over one year later, on September 4, 2007, Mr. Bernadas filed a “Notice of Candidacy” for the office of Sheriff of St. Bernard Parish. On that sworn notarized form, Mr. Bernadas indicate that his domicile is 3000 Riverland Drive in Chalmette, Louisiana, his childhood home and the home of his parents until Hurricane Katrina and the Murphy Oil spill made it uninhabitable. Mr. Ber-nadas has not lived at |23000 Riverland Drive since 1985, in fact no one has lived at the home since Hurricane Katrina.

On September 13, 2007, the plaintiff, Petrina Imbraguglio, a resident and qualified voter in St. Bernard Parish, filed a petition objecting to the candidacy of Mr. Bernadas. The trial on this matter took place on September 17, 2007. The trial court found in favor of the plaintiff and against the defendant and disqualified him from the race. It is from this judgment that the defendant now appeals.

DISCUSSION

There are two issues in this appeal: (1) whether the trial court’s conclusion that the defendant, Barry Bernadas, could not avail himself of the provisions of La. R.S. 18:451.3 because he had voluntarily sold his residence in St. Bernard prior to the effective date of the statute was reasonable; and (2) whether the defendant, Barry Bernadas, had established a new domicile for the purposes of La. R.S. 18:451.3 by voluntarily selling his home, the only property he owned in St. Bernard Parish, and moving to New Orleans without residing anywhere in St. Bernard Parish for two years preceding the date he filed his notice of candidacy to run for Sheriff.

Longstanding Louisiana jurisprudence demands that courts of appeal give great deference to a trier of fact’s factual findings based on credibility judgments. See Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). Determinations of domicile made in the district courts are subject to the manifest error rule. Thus, it is of no consequence how the appellate court might have rule had it been sitting as the trier |3of fact, but rather whether a reasonable trier of fact could have reached the result that he did. See Augillard v. Barney, 05-466 (La.App. 5 Cir. 5/4/05), 904 So.2d 751.

La. R.S. 18:451.2, dealing with the qualifications of candidates for Sheriff provides:

At the time he files his notice of candidacy, a candidate for sheriff, tax assessor, or clerk of court shall have resided in the state for the preceding two years and shall have been actually domiciled for the preceding year in the parish from which he seeks election. The provisions of this Section shall not affect persons holding office on August 15, 1999.

In seeking to run for the office of Sheriff, Mr. Bernadas seeks to avail himself of the provisions of La.R.S. 18:451.3 which provides:

In the event the qualifications for an office include a residency or domicile requirement, any person seeking election to such office who has been involuntarily displaced from his place of residence or domicile by effects of a gubernatorially declared state of emergency shall not be considered to have vacated his domicile or residence for purposes of qualifying for or holding office, unless he has either established a new domicile or has changed his registration to an address outside the voting district in which he seeks election.

At the time he filed his notice of candidacy, Mr. Bernadas had not spent any time at all, not even a single night, at 3000 Riverland Drive for the one year period before he executed the Notice of Candidacy Qualifying Form. In fact, the defendant had not resided at 3000 Riverland Drive since he got married in 1985. He had sold his former residence in St. Bernard Parish on February 23, 2006 and in the notarial act of sale declared his domicile and residence to be St. Tammany Parish. Then on August 31, 2006 when he purchased a new home and lots in New Orleans he again claimed his residence and domicile to be in St. Tammany Parish. |4An Act of Mortgage on the property on General Haig Street also shows his domicile to be in St. Tammany Parish.

Mr. Bernadas has at no time made any attempt to return to St. Bernard Parish since both the sale of his former home and the purchase and mortgage of the new home in Orleans Parish. The trial court’s conclusion that the defendant could not avail himself of the provisions of La.R.S. 18:451.3 because he had voluntarily sold his residence in St. Bernard Parish and verified by two notarial acts subsequent that his domicile had changed to St. Tammany Parish prior to the effective date of the statute was reasonable. Once the defendant voluntarily sold 2408 Etienne Street in February 23, 2006, he was no longer involuntarily displaced from that residence. Accordingly, Mr. Bernadas definitely lost his domicile in St. Bernard Parish at the time of the first act of sale and was by his own admission a resident and domiciliary of St. Tammany Parish.

We also find no error in the trial court’s finding that the defendant established a new domicile for purposes of La. R.S. 18:451.3 (which took effect on June 8, 2006) by voluntarily selling his home, the only property owned in St. Bernard Parish, and moving to New Orleans without residing anywhere in St. Bernard Parish for two years preceding the date he filed his notice of candidacy to run for sheriff. The home the defendant purchased in New Orleans is approximately 6000 square feet and was renovated by the defendant. The defendant’s minor children are all attending schools in New Orleans.

The home at 3000 Riverland Drive is between 1200 to 1300 square feet. The idea of Mr. Bernadas, his wife, and their six children moving from a 6000 |ssquare foot renovated home to a 1300 square foot unrepaired home defies logic. It is also suspect that the defendant only changed his voter registration to Riverland Drive shortly before qualifying to run for Sheriff. A change in domicile requires the physical presence of the individual in the new domicile coupled with a present intent to permanently reside in the new domicile. Blackwell v. Blackwell, 606 So.2d 1355 (La. App. 2 Cir.1992). Based on Mr. Bernadas’s acts and current status he could not be domiciled on Riverland Drive under any circumstances and by all reasonable criteria is now be domiciled in Orleans Parish.

DECREE

For the foregoing reasons, the judgment of the trial court disqualifying Mr. Bernar-das from running for Sheriff if St. Bernard Parish is affirmed.

AFFIRMED

MURRAY, J., dissents with reasons.

KIRBY, J., dissents for the reasons assigned by J. MURRAY.

GORBATY, J., concurs, with reasons.

MURRAY, J.,

dissents with reasons.

hThe narrow issue presented by this appeal is whether Mr. Bernadas, whom the trial court found was involuntarily displaced from his residence in St. Bernard Parish by effects of Hurricane Katrina, is qualified for the office of Sheriff of St. Bernard Parish, a position that has both a residency and a domicile requirement..

The trial court found that because Mr. Bernardas’s involuntary displacement became an intentional voluntary act, he was disqualified as a candidate for Sheriff. The majority would affirm that decision. I respectfully disagree.

There is no question that Mr. Bernadas, who lived in St. Bernard Parish from the age of two until August 29, 2005, was involuntarily displaced from his residence and domicile in that parish due to the effects of Hurricane Katrina, a gubernato-rially declared state of emergency.

[2La. R.S. 18:451.3, which became effective June 8, 2006, provides:

In the event the qualifications for an office include a residency or domicile requirement, any person seeking election to such office who has been involuntarily displaced from his place of residence or domicile by the effects of a gubernatorially declared state of emergency shall not be considered to have vacated his domicile or residence for purposes of qualifying for or holding office, unless he has either established a new domicile or has changed his registration to an address outside the voting district in which he seeks election.

Pursuant to the statute, once it was established that Mr. Bernardas was involuntarily displaced by Katrina, it was incumbent upon the party seeking his disqualification to prove that he either had established a new domicile outside St. Bernard Parish or had changed his voter registration from St. Bernard Parish. However, the trial court failed to make a factual finding that either of those exceptions applied.

Despite the fact that La. R.S. 18:451.3 became effective prior to Mr. Bernadas’s filing of his notification of candidacy, the trial court found that the statute did not apply to him. The court reasoned that Mr. Bernadas’ involuntary displacement “became an intentional voluntary act” when Mr. Bernadas sold his pre-Katrina St. Bernard residence prior to the effective date of the statute. This reasoning ig-ñores the plain language of the statute, which does not include a requirement that the “involuntarily displaced” person must continue to own a residence and/or property in the parish where he resided prior to his displacement.

In my opinion the trial court committed legal error in its application of La. R.S. 18:451.3 by ignoring the plain words of the statute and by imposing a temporal limitation, not contained in the statute, on its applicability.

|3Mr. Bernadas’s situation uncontrovert-ibly falls within the ambit of the statute. Before Katrina he was domiciled in St. Bernard Parish. Like thousands of others, he was forced to flee the wrath of Hurricane Katrina. He was displaced by the effects of that storm, living with his family in East Baton Rouge, St. Tammany and Orleans Parishes. Therefore, unless he has established a new domicile or has registered to vote outside the Parish he cannot be considered to have vacated his domicile or residence for purposes of qualifying for the Office of Sheriff of St. Bernard Parish.

It is undisputed that Mr. Bernadas has not registered to vote in any parish other than St. Bernard. Therefore, absent proof by the party questioning his candidacy that he has established a domicile outside St. Bernard Parish he cannot be disqualified for having vacated his domicile or residence.

The applicable principles in determining whether an individual has changed his domicile were enunciated by the Louisiana Supreme Court in Landiak v. Richmond, 05-0758, pp. 9-11 (La.3/24/05), 899 So.2d 535, 542-44:

Louisiana case law has traditionally held that domicile consists of two elements, residence and intent to remain. When a party has not declared his intention in the manner prescribed by La. Civ.Code art. 42, proof of a person’s intention regarding domicile “shall depend upon circumstances.” La. Civ.Code art. 43. Thus, determination of a party’s intent to change his or her domicile must be based on the actual state of the facts, not simply on what the person declares them to be. “The expressed intent of the party may be at variance with the intent as evidenced by conduct.” “Each case is unique and the courts attempt to arrive at the true intent, whether express or implied.”
Every person has a domicile of origin that he retains until he acquires another. Because the case law recognizes a legal presumption against change of domicile, a party seeking to show that domicile has been changed must overcome that presumption by presenting “positive and |4satisfactory proof of establishment of domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile.” Of course, because domicile and residence are two different legal concepts the facts could indicate that one has “abandoned the former domicile” in favor of a new domicile even if the person continues to have a place of residence at the former domicile.
The case law regarding domicile reveals that Louisiana courts commonly consider a number of different factors when trying to determine domicile in fact. Since domicile is generally defined as residence plus intent to remain, a party’s uncontroverted testimony regarding his intent may be sufficient to establish domicile, in the absence of any documentary or other objective evidence to the contrary. The same might be said when a person specifically declares his intent pursuant to La. Civ.Code art. 42. However, in the absence of a formal declaration, when documentary or other objective evidence casts doubt on a person’s statements regarding intent, it is incumbent on courts to weigh the evidence presented in order to determine domicile in fact. Otherwise, the legal concept of domicile is meaningless and every person would be considered legally domiciled wherever he says he is domiciled. Some of the types of documentary evidence commonly considered by courts to determine domicile in fact include such things as voter registration, homestead exemptions, vehicle registration records, driver’s license address, statements in notarial acts, and evidence that most of the person’s property is housed at that location. Obviously, the more of these items presented by a party opposing candidacy in a given case to show lack of domicile in the district, the more difficult it will be for the candidate to overcome the plaintiffs evidence.

Id.

Applying those principles, the Supreme Court has indicated that certain common types of documentary evidence are relevant to this inquiry. In Lcmdiak, the Court considered the following documents:

(i) voter registration

Mr. Bernadas has never registered to vote anywhere other than St. Bernard Parish .

(ii) homestead exemption

|sMr. Bernadas has not taken a homestead exemption for the property in Orleans Parish in which he and his family presently live.

(Hi) vehicle registration records

Mr. Bernadas owns five vehicles, only one of which he owned before Katrina. This vehicle is registered in St. Bernard Parish, at his Etienne Drive address. The remaining vehicles were bought to replace vehicles lost as a result of the storm. These newly purchased vehicles are registered at 19143 Playmakers Drive in Cov-ington, a piece of property he had purchased for investment before Katrina. He testified the vehicles were registered there because there was no mail service in St. Bernard Parish when he purchased them.

(iv) driver’s license address

Mr. Bernadas has never used an address outside of St. Bernard Parish as his address on his driver’s license.

(Hi) statements in notarial acts

Post-Katrina, Mr. Bernadas executed three acts of sale. In these acts of sale, the notary included a recital that Mr. Ber-nadas and his wife are “residents of and domiciled in the Parish of St. Tammany.” At trial, Mr. Bernadas explained that this was an error that he did not catch until he reviewed those notarial acts in connection with this suit. He further explained that the notary incorrectly relied on his mailing address — 19143 Playmakers Drive in Cov-ington — in drafting those acts. When Mr. Bernadas realized the error, he executed Acts of Correction, which he | (¡attempted to introduce at trial. The trial court refused to allow him to introduce those documents, and they were proffered.

(iv) evidence that most of the person’s property is housed at that location.

This factor does not apply to this situation as Mr. Bernadas acknowledged that he has not lived in St. Bernard Parish since the storm.

The applicable factors, therefore, support the conclusion that Mr. Bernadas has not established a domicile in any parish other than St. Bernard. All parties and the trial court acknowledged that doubt with regard to a candidate’s domicile “must be resolved in favor of allowing the candidate to run.” Landiak, 05-0758 at p. 1, 899 So.2d at 538.

As La. R.S. 18:451.3 is applicable to Mr. Bernadas, and the party opposing his qualification for Sheriff has not shown that he changed his voter registration from that parish or established a domicile in another parish, I respectfully dissent from the majority’s affirmation of the trial court’s judgment disqualifying him.

KIRBY, J. dissents for the reasons assigned by J. MURRAY.

GORBATY, J.,

concurs, with reasons.

|TI agree with the majority’s opinion insofar as it affirms the trial court’s judgment; however, I find there are additional reasons for doing so. Therefore, I respectfully concur.

A strict interpretation of La. R.S. 18:451.3 leads to the conclusion that Mr. Bernadas was not involuntarily displaced from St. Bernard Parish once he sold his home. However, as pointed out in the dissent, “doubt must be resolved in favor of allowing the candidate to run.”. Landiak v. Richmond, 05-0758, p. 1 (La.3/24/05), 899 So.2d 535, 538.

There is no doubt in my mind, based on the record evidence, that Mr. Bernadas fits squarely under the exception to La. R.S. 18:451.3, that is, “unless he has either established a new domicile or has changed his registration to an address outside the voting district in which he seeks election.” Mr. Bernadas and his wife executed four notarial acts, one in February 2006, and three in August 2006, wherein they swore that they were domiciled in St. Tammany Parish. Mr. Berna-das is an educated man, and he is to be held accountable for the legal documents that he signs.

1 ^Additionally, Mr. Bernadas registered several vehicles in St. Tammany Parish following the hurricane. He testified that he did so only because he could not receive mail in St. Bernard Parish. I take judicial notice that mail delivery tó St. Bernard Parish residents was interrupted for only a brief time after the storm; mail pick-up for St. Bernard residents resumed before the end of 2005 with mail pick up in St. Tammany Parish. Therefore, defendant had no need to register his vehicles in St. Tammany. I find his self-serving testimony to be disingenuous.

The above facts — four notarial acts evidencing domicile in St. Tammany Parish, and the registration of several vehicles in St. Tammany Parish, combined with Mr. Bernadas’ eventual move to a home in Orleans Parish evidences that Barry Ber-nadas established a new domicile either in St. Tammany Parish or Orleans Parish. In any event, is it clear that he no longer maintains a domicile in St. Bernard Parish, and is, therefore, not qualified to run for Sheriff.

      . These four Acts of Correction were not done until September 17, 2007 during the trial on Mr. Bernadas’s qualification to run for Sheriff.

      . La. R.S. 18:451.2 provides:
      At the time he files his notice of candidacy, a candidate for sheriff, tax assessor, or clerk of court shall have resided in the state for the preceding two years and shall have been actually domiciled for the preceding year in the parish from which he seeks election. The provisions of this Section shall not affect persons holding office on August 15, 1999.

      . In August 2007, however, he changed the address on his voter’s registration from 2408 Etienne Drive to 3000 Riverland Drive as part of his renewal of his driver’s license, which had expired.

      . Clearly, the error in the notarial acts was inadvertent. The evidence is undisputed that Mr. Bernadas never lived at the Covington address. As explained above, he used that address only to facilitate receiving his mail during the post-Katrina period.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Paul T. GARIEPY, Jr. v. EVANS INDUSTRIES, INC.
    No. 06-CA-106.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.
    Kyle Schonekas, Joelle F. Evans, Maria G. Marks, Schoenkas, Winsberg, Evans & McGoey, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellee.
    Daniel A. Ranson, Glenn D. Price, Jr., Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and GREG G. GUIDRY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡/This is an appeal from a denial of a motion to quash a deposition subpoena directed to a non-party, and related relief. For the following reasons we affirm the judgment.

The facts are these. Paul Gariepy, plaintiff-appellee, was hired by Evans Industries, Inc. as its chief executive officer in July of 2003. By the end of that year certain shareholders became dissatisfied with his performance. Because of the corporate structure only the board of directors could terminate Gariepy, and they were not inclined to do so. The shareholders thereupon elected a new board in December of 2003,' and that board removed Gariepy from his position^

Gariepy filed suit against Evans claiming it had breached his contract and seeking various damages. He then amended his suit by adding as a defendant Janice Evans Hamilton, a stockholder and member of the new board of directors, alleging that this party had tortiously interfered with his alleged contract of | ^employment with Evans. He further alleged that she had obtained an invalid proxy to vote the shares of her mother, Janice Roberts Evans, at the December stockholders meeting. It was also established that Mrs. Evans had earlier in the year given her daughter a general power of attorney which specifically authorized Hamilton to vote her mother’s stock.

Gariepy’s attorney procured a deposition subpoena for Janice Evans, a non-party, presumably to inquire about her state of mind in authorizing both the power of attorney and the proxy. Mrs. Evans filed a motion to quash the subpoena on the basis of poor health, and attached a letter from her treating physician, R, Fridge Cameron, Jr., stating that in his opinion she was incapable of enduring the stress of a deposition. Plaintiffs counsel thereupon subpoenaed Dr. Cameron, as well as Mrs. Evans’ medical records in his possession for the year preceding the proxy vote. Mrs. Evans moved to quash these subpoenas, but after a contradictory hearing this motion was denied by the trial judge. This appeal (taken in October, 2005) followed.

While this appeal was pending, Evans Industries sought bankruptcy protection, and these proceedings were stayed. In April of 2007, the bankruptcy court lifted the stay as to the matters between Gar-iepy and Janice Evans Hamilton and Janice Roberts Evans. The appeal was consequently returned to the docket of this court.

The first issue here is whether this is an appealable judgment. Article 1841 of the Louisiana Code of Civil Procedure provides that “[a] judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” Article 2083(C) of that same code states that “[a]n interlocutory judgment is appealable only when expressly provided by law.” RGenerally, a judgment involving preliminary discovery matters would be deemed interlocutory and thus not appealable.

However, here the person contesting the subpoena is not a party to the litigation. The jurisprudence in this circumstance is to the effect that a judgment on a motion to quash a deposition subpoena is in fact appealable because it resolves all of the issues between the non-party deponent and the party seeking the deposition. Larriviere v. Howard, 2000-186 (La.App. 3rd Cir.10/11/00), 771 So.2d 747. We therefore conclude that the judgment here is a final appealable one.

The next issue is whether the judgment denying the motion to quash the subpoenas was proper. The question of when medical records of a non-party may be released was addressed in Moss v. State, 2005-1963 (La.4/4/06), 925 So.2d 1185. The court there noted that La. R.S. 13:3715.1 and La.Code of Evidence, Art. 510, both relating to the health care provider-patient privilege, are to be construed together in determining when patient records may be released. It further noted that although Art. 510(B)(2) provides a list of exceptions to the privilege, that list is not exclusive because La. R.S. 13:3715.1(B)(5) contemplates that there may be situations beyond those listed in which release of the information is necessary to promote the interests of justice.

The Moss court went on to point out that the privacy expectations of patients are not to be lightly set aside, and that the party seeking release of the information must make a substantial showing of both relevance and need. It further pointed out that any exceptions to the privilege should be narrowly tailored and extend only to information relevant and necessary to the case at hand. The court further admonished that:

In fashioning a remedy, there are numerous tools available to the courts, including in camera inspections, excising highly personal and/or irrelevant ^matters, or allowing depositions limited to specific relevant questions. What is to be avoided is unbridled evaluation of one’s complete medical records.
(at 1201)

In the present case, the issue to be explored is the competence of Mrs. Evans in granting the power of attorney and the proxy. While we determine that the subpoenas were properly sustained because plaintiff has no other method by which to inquire into Mrs. Evans’ state of mind, we nonetheless note that the record does not disclose whether the trial judge has limited the release of records to insure that only necessary and potentially relevant information is produced. Thus, we affirm the judgment appealed, and remand the matter to the district court with the instructions that he control the release of the information sought in accordance with the considerations set forth in Moss v. State, supra.

JUDGMENT AFFIRMED, REMANDED WITH INSTRUCTIONS.


text:
    STATE of Louisiana v. Jeremy SIMMONS.
    No. 07-KA-285.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

LOn July 14, 2006, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Jeremy Simmons, with possession of cocaine in violation of LSA-R.S. 40:967(C). At his arraignment, defendant pled not guilty. On December 1, 2006, the trial court heard and denied defendant’s motion to suppress evidence. Thereafter, defendant withdrew his former plea of not guilty and pled guilty as charged, reserving his right to appeal the denial of his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In accordance with the plea agreement, the trial court sentenced defendant to two years at hard labor, then suspended the sentence, and placed defendant on two years active probation, subject to various conditions. Defendant now appeals, challenging the trial court’s denial of his motion to suppress.

On June 21, 2006, at approximately 11:50 p.m., Deputy Harley Smith of the Jefferson Parish Sheriffs Department was patrolling an area in Terrytown that was | jjknown as a high crime, drug trafficking area. At the time, Deputy Smith was in uniform, traveling in a marked police unit, and accompanied by Sergeant Rabb, another member of the Jefferson Parish Sheriffs Office. As Deputy Smith was on patrol, he observed defendant walking on Gary Court. At the suppression hearing, Officer Smith testified about defendant’s actions upon seeing the marked police unit. According to Deputy Smith, defendant, upon observing the officers, started walking away very rapidly, repeatedly looking over his shoulder in a nervous manner. Subsequently, Deputy Smith and his partner exited their vehicle in order to investigate. As they approached, Deputy Smith observed defendant place his left hand in his left pocket and immediately toss, approximately two feet away, four rocks that were consistent with crack cocaine. After retrieving the narcotics, Deputy Smith advised defendant to put his hands on top of the parked vehicle. Deputy Smith conducted a pat down of defendant’s outer clothing, at which time he noticed that defendant’s left hand was clenched in a fist. He told defendant to open his hands. Defendant complied and placed four more off-white rock like substances on the hood of the vehicle that were consistent with crack cocaine.

After considering the evidence presented at the hearing, the trial judge denied defendant’s motion to suppress. Defendant now challenges this ruling. On appeal, defendant argues that the trial court erred in denying his motion to suppress because the evidence was illegally retrieved during a stop that occurred without any reasonable suspicion of criminal activity. He claims that the illegal stop caused him to discard the crack cocaine, and led to the subsequent retrieval of the additional crack cocaine from his fist. For the reasons that follow, we find no merit to defendant’s arguments.

| ¿The State has the burden, in a hearing on a motion to suppress evidence, of establishing the admissibility of evidence seized without a warrant. A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. LSA-C.Cr.P. art. 703(D), State v. Brown, 04-882 (La.App. 5 Cir. 12/14/04), 892 So.2d 45, 48, writ denied, 05-1274 (La.4/28/06), 927 So.2d 278.

The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). However, if an individual abandons or otherwise disposes of property prior to any unlawful intrusion, then the property may be lawfully seized and used in the resulting prosecution. State v. Butler, 01-907 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 127.

The crucial question, in this case, is whether defendant was unlawfully seized prior to his discarding of the contraband. A person is not “seized” within the meaning of the Fourth Amendment until that person either submits to a police show of authority or is physically contacted by the police. California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991). The Louisiana Supreme Court adopted the Hodari D. definition of an “actual stop” in State v. Tucker, 626 So.2d 707, 712 (La.1993). Because the Louisiana Constitution affords greater protection than does the federal constitution, a “seizure” also occurs when an “actual stop” of the individual is “imminent.” State v. Tucker, supra; State v. Brown, 892 So.2d at 49-50.

An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.... ” State v. Tucker, 626 So.2d at 712; State v. Mitchell, 04-136 (La.App. 5 Cir. 6/29/04), 877 So.2d 1151, 1155. The factors to consider in determining whether an actual stop is imminent are the proximity of the police in relation to the defendant at the outset of the encounter, whether the person has been surrounded by the police, whether the police approached the individual with their weapons drawn, whether the police and/or the individual are on foot or in motorized vehicles during the encounter, the location and characteristics of the area where the encounter takes place, and the number of police officers involved in the encounter. State v. Tucker, 626 So.2d at 712-713; State v. Brown, 892 So.2d at 50.

In State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, a police officer was on patrol at night in a high crime area when he observed the defendant standing in the middle of the street. When the defendant noticed the unmarked unit as a “police presence,” he made eye contact with the officer, and started to walk away toward the residence while looking back at the officers. When the officer exited the vehicle, the defendant began to run toward the residence. The defendant discarded the contraband before the officer made physical contact with him. This Court found that there was no unlawful intrusion and any property abandoned by the defendant was lawfully seized. State v. Burns, 877 So.2d at 1077-1078.

Likewise, in the present case, defendant was not actually stopped at the time he abandoned the first four rocks of crack cocaine. At the suppression hearing, Officer Smith testified that after observing certain actions by defendant, he decided to stop the police unit and investigate. As Officer Smith and his partner exited their vehicle and approached defendant, he discarded the drugs. The testimony at the suppression hearing did not indicate that the officers had any physical contact with defendant, or even spoke to him, before he discarded the cocaine.

1 fiMoreover, we cannot find that an actual stop was imminent. There is nothing in the record which indicates that the police came upon defendant with such force that regardless of his attempts to flee, an actual stop was virtually certain. Therefore, since defendant discarded the cocaine pri- or to any unlawful intrusion, the seized drugs could be used against him in a resulting prosecution.

Once the initial four rocks of crack cocaine were lawfully seized, the officers clearly had probable cause to arrest defendant. Therefore, the seizure of the remaining rocks was justified as a search incident to a lawful arrest. See, State v. Sherman, 05-779 (La.4/4/06), 931 So.2d 286.

Based on the foregoing discussion, and in light of the applicable jurisprudence, we find no error in the trial court’s denial of defendant’s motion to suppress evidence.

We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1976); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Accordingly, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . On cross-examination, Deputy Smith noted that this incident occurred in the 1600 block of Gary Court, and that defendant provided an address of 1636 Gary Court following his arrest.

      . Probable cause to arrest exists when the facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing the person to be arrested has committed a crime. State v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339, writ denied, 06-0608 (La. 10/13/06), 939 So.2d 372.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    James Burt WRIGHT v. SCC SERVICE SOLUTIONS, INC., Southeast Service Corporation, Twin City Fire Insurance Company, Esplanade Mall Operating Company, L.L.C. a/k/a Esplanade Mall Limited Partnership a/k/a Esplanade Mall Residual I Limited Partnership d/b/a The Esplanade Mall and Wendy’s International, Inc. d/b/a Wendy’s Old Fashioned Hamburgers/Wendy’s.
    No. 07-CA-219.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.

      Robert T. Hughes, New Orleans, LA, for Plaintiff/Appellant.
    John E. Unsworth, III, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

12This is an appeal by plaintiff, James Wright, from a summary judgment granted in favor of defendant, D & C Foods, Inc. (incorrectly and improperly named Wendy’s International, Inc., d/b/a Wendy’s Old Fashioned Hamburgers/Wendy’s). For reasons that follow, we affirm.

James Wright filed this law suit against Wendy’s International, Inc., d/b/a Wendy’s Old Fashioned Hamburgers/Wendy’s, as well as several other defendants and insurance companies, for injuries sustained in a slip and fall at Wendy’s in the food court of the Esplanade Mall in Kenner, Louisiana. D & C Foods, Inc., the franchisee of the Wendy’s where the fall took place, answered the petition alleging that it was incorrectly named and admitting that it is the proper party in interest. D & C Foods also filed a motion for summary judgment. The trial court granted D & C Foods’ motion for summary judgment and that ruling forms the basis of this appeal.

| aMr. Wright’s deposition is contained in the record. He testified that he went to the Esplanade Mall in Kenner to pick up a sandwich for his wife at Chick-Fil-A. He then went to the Wendy’s counter in the food court and waited in line for about ten minutes before his turn came to place his order for French fries. He moved down the counter to his left to wait for his order to be filled. After receiving the bag of French fries, Mr. Wright took one step backwards and slipped and fell in a puddle of clear liquid.

Mr. Wright testified that the distance from the point where he first entered the Wendy’s line to order and the point where he fell was about eight feet. He also testified that during the ten to fifteen minutes he was standing at the Wendy’s counter, he did not see or hear anyone spill anything on the floor. He did not see anyone slip, nor did he see the liquid on the floor until after he fell. However, after the fall, a customer in line in front of Mr. Wright came over to tell him that she had almost slipped as she left the Wendy’s counter.

At the hearing on the motion for summary judgment, defendants argued successfully that the plaintiff failed to show constructive notice of a dangerous condition as required by La. R.S. 9:2800.6. Plaintiffs argument to the trial court, and in brief to this court, is that constructive notice can be inferred from the fact that employees of the defendant were able to see the spill, but made no attempt to clean up the spill or warn customers of its existence.

The applicable law is found in La. C.C.P. art. 966, which places a burden on the mover to show there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. However, La. C.C.P. art. 966(2) provides that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden |4on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In our review of the grant of a summary judgment, we must refer to the substantive law applicable to the underlying claim. Boeshans v. Petsmart, Inc., 06-606 (La. App. 5 Cir. 1/16/07), 951 So.2d 414. D & C Foods is a merchant to which La. R.S. 9:2800.6 applies. Pursuant to that statute, an essential element of a cause of action against a merchant in a slip and fall case requires proof that the merchant either created, or had prior actual or constructive notice of the condition that caused the damage. Oster v. Winn-Dixie, 04-117 (La.App. 5 Cir. 8/31/04), 881 So.2d 1257; writ denied, 04-2414 (La.12/17/04), 888 So.2d 867.

La. R.S. 9:2800.6 C(l) defines constructive notice as follows:

“Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Because the statute is clear and unambiguous and contains no provision for shifting the burden to the defendant to prove his lack of culpability, it is the plaintiffs burden to prove each element of his cause of action under La. R.S. 9:2800.6(B). White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, 1082. When the plaintiff relies on constructive notice, which includes a mandatory temporal element, the plaintiff must come forward with positive evidence showing that the condition that caused the damage existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence. Id.

IfiThis court has followed White in holding that a simple showing that the condition existed is insufficient for a finding of liability and recovery. A plaintiff must make a showing that the condition existed for some time before the fall occurred. Menjivar v. Rouse’s Enterprises, L.L.C., 03-0808 (La.App. 5 Cir. 12/30/03), 865 So.2d 176.

Our review of the grant of a summary judgment is de novo. Boeshans v. PetsMart, Inc., supra. Mr. Wright, plaintiff, testified in his deposition that he was in the food court area of the mall for about fifteen minutes, in line at defendant’s counter for about ten to fifteen more before the incident occurred. He also stated that the liquid was about eight feet away from the counter. However, he testified that during that time he did not hear or see anyone drop anything on the floor. Further, he did not see the liquid on the floor until he slipped in it. There were no witnesses to establish a time line between when the liquid was spilled and when the plaintiff slipped. Thus, there is no evidence as to how long the liquid was on the floor. Further, because there has been no time line presented by plaintiff, there is no evidence •to support plaintiffs contention that the Wendy’s employees must have seen the liquid. In the absence of any proof that defendant had actual notice of the alleged defective condition, plaintiff was required to come forward with proof that she could satisfy her evidentiary burden of establishing that defendant had constructive notice. Menjivar v. Rouse’s Enterprises, L.L.C., supra.

In addition, it is inherent in the applicable statute that the spill responsible for plaintiffs fall occurred on defendant’s premises. Plaintiff has established that this incident occurred in a food court in the Esplanade Mall. There has been no showing whether Wendy’s or the Esplanade Mall was responsible for cleaning the area in which plaintiff fell. The only testimony in that regard was that the spill was | fiabout eight feet in front of the Wendy’s counter. There is nothing further to connect the spill to Wendy’s.

Consequently, we find that Mr. Wright has failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial regarding the temporal element of notice, and that the spill occurred on defendant’s premises, thereby giving defendant constructive notice.

Therefore, under the law' there is no genuine issue of material fact remaining to be decided that would defeat D & C Foods’ motion for summary judgment. Accordingly, we find the trial court’s judgment is correct and we affirm.

AFFIRMED.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES in the interest of L.B. v. L.B.
    No. 07-CA-127.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.

      Ivan A. Orihuela, Kenner, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|2The Defendant, Luis Bonilla, the father of the minor child, LB , for whom the State of Louisiana, through the Department of Social Services, was seeking a child support order, appeals from the Juvenile Court ruling ordering him to pay child support. For the reasons which follow, we' affirm.

A petition for child support was filed by the State of Louisiana through the Department of Social Services on January 21, 2005. Therein it was alleged that the Defendant was the father of a child, LB, born on February 28, 2003. It was further alleged that the mother of the child, Peggy Labra, was receiving services from the State. Support and health insurance coverage was requested from the Defendant for LB. The matter was set for hearing on September 26, 2005, but, following Hurricane Katrina, it was reset for March 6, 2006. The matter was reset again for April 3, 2006. At that time, the hearing officer collected information from the Uparties and recommended that the Defendant pay support in the amount of $357.00 per month, plus 5% for court costs, and arrears in the amount of $2,650.00. It was also determined that the Defendant should not receive a “second family credit” for an 11-month old child of his that is living in his home. The recommendation was made the order of the Court when signed by the judge on that same date.

The Defendant disagreed with the juvenile court ruling and a disagreement hearing was held on April 10, 2006. At the hearing, the Defendant did not dispute the actual child support calculation, but argued against the State’s position, adopted by the hearing officer and the juvenile court judge, that he is not entitled to a deviation from the child support guidelines or a credit for the expenses of his 11-month old child who resides with him because LB is the older child. The Defendant argued that La. R.S. 9:315.1 allows the court to consider the legal obligation of a party to support other dependents that live in his household, and to deviate from the guidelines accordingly. The Defendant further noted that the statute makes no reference to the age of the dependent, that is, whether the dependent was younger or older than the child seeking support.

The State again took the position that “the second family credit” should not be given in this case where the child living with the Defendant is younger than the child that is the subject of the hearing. The juvenile court judge agreed with the State and denied the Defendant’s request that the court deviate from the guidelines upon considering the Defendant’s legal obligation to his other child. It is from this ruling that the Defendant appeals.

On appeal, as he did in the court below, the Defendant does not disagree with the child support calculation, but strenuously disagrees with the juvenile court’s refusal to consider a deviation from the guidelines as authorized by La. |4R.S. 9:315.1, for his legal obligation to support another dependent in his household solely because the child is younger than LB.

Use of the child support guidelines is mandatory and they are to be followed by the courts. La. R.S. 9:315.2. There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. La. R.S. 9:315.1. The court may deviate from the guidelines where the application of the guidelines would not be in the best interest of the child or would be inequitable to the parties. La. R.S. 9:315.1(B); Guillot v. Munn, 96-0620 (La.6/21/96), 676 So.2d 86. Subsection (C) of La. R.S. 9:315.1 contains an illustrative list of the reasons for which a court may deviate from the guidelines. Subsection (C)(2) allows the trial court to consider, in determining whether to deviate from the guidelines, the legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household. We find no restriction on this provision in the statute or jurisprudence limiting its application only to cases where the household dependent is older than the subject of the action before the court. However, application of the provision to a specific case is not mandatory, but rather, a matter of judicial discretion. An appellate court will not disturb a child support order unless there is a finding of abuse of discretion or manifest error. State, Dept. of Social Services ex rel D.F. v. L.T., 05-1965, p. 6 (La.7/6/06), 934 So.2d 687, 690.

Reviewing the record in this case, it is clear that the juvenile court judge was well within his discretion in refusing to deviate from the guidelines and reduce the Defendant’s support obligation because he has another dependent living in his household. Defendant failed to establish that the amount of child support provided by the guidelines was not in the child’s best interest or was inequitable to him. 1 ¡/Therefore, we find no abuse of discretion in the juvenile court judge’s decision to apply the guidelines without deviation.

Accordingly, the decision of the juvenile court, finding insufficient cause to deviate from the child support guidelines in favor of the Defendant, and setting child support at $357.00 per month, plus 5% for court costs and arrears in the amount of $2,650.00 is affirmed.

AFFIRMED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the minor involved will be used to protect his identity.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. David SAMPOGNARO.
    No. 07-KA-324.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.
    Harry J. Morel, Jr., District Attorney, Kim McElwee, Assistant District Attorney, 29th Judicial District Court, Hahnville, Louisiana, for Plaintiff/Appellee.
    Regan & Associates, Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

| i>The defendant, David Sampognaro, appeals from his five year suspended sentence with five years active probation with special conditions. We dismiss the appeal, and remand.

Defendant was indicted by a grand jury on March 29, 2006, and charged with 21 counts of possession of pornography involving juveniles in violation of LSA-R.S. 14:81.1. He pled not guilty and filed several pre-trial motions. The indictment was subsequently amended by the State on September 28, 2006 to charge defendant with one count of attempt to possess child pornography in violation of LSA-R.S. 14:27 and 14:81.1. On the same day, defendant entered a nolo contendré plea to the amended charge. On December 7, 2006, he was sentenced to five years which was suspended in favor of five years active probation with numerous conditions, including that defendant comply with the registration requirements for sex offenders.

Defendant timely filed a motion to modify and/or reduce sentence on January 5, 2007 seeking to eliminate some of the conditions of his probation. After a hearing on January 11, 2007, his motion was granted in part and denied in part. No oral motion for appeal was ever made. He fax-filed a written motion for | ¡¡appeal on March 13, 2007 and filed a hard copy on March 16, 2007, which was signed by the trial judge on March 19, 2007.

The defendant’s appeal is untimely. The time delays for filing appeals are set forth in LSA-C.Cr.P. art. 914, which provides that a motion for appeal must be made no later than 30 days after the rendition of the judgment or ruling from which the appeal is taken or from the ruling on a motion to reconsider sentence filed pursuant to LSA-C.Cr.P. art. 881.1. Under Article 881.1, the State or defendant may make or file a motion to reconsider sentence within 30 days following the imposition of sentence or within such longer period as the trial court may set at sentence.

Here, defendant pled guilty on September 28, 2006 and was sentenced on December 7, 2006. He filed a motion to modify and/or reduce sentence on January 5, 2007 which was ruled upon on January 11, 2007. Under LSA-C.Cr.P. art. 914, defendant had 30 days, or until February 10, 2007, within which to make his motion for appeal. Therefore, defendant’s motion for appeal, fax-filed on March 13, 2007, was untimely.

Generally, after time for appealing has run, a conviction and sentence are no longer subject to review under ordinary appellate process. In that instance, a defendant must seek reinstatement of his appeal rights by filing an application for post-conviction relief requesting an out-of-time appeal. State v. Counterman, 475 So.2d 336 (La.1985); State v. Roberts, 06-678 (La.App. 5 Cir. 1/18/07), 951 So.2d 1154, 1156. A defendant has two years from the date the judgment of conviction and sentence has become final to file an application for post-conviction relief, unless certain exceptions apply. LSA-C.Cr.P. art. 930.8.

Defendant is entitled to file an application for post-conviction relief to obtain an out of time appeal, and we customarily remand a dismissed appeal for this purpose. See, State v. Bellow, 06-431 (La.App. 5 Cir. 12/12/06), 949 So.2d 488; State v. Roberts, supra.

Accordingly, this appeal is dismissed. The case is remanded to allow the defendant to seek reinstatement of his appellate rights by filing an application for post conviction relief.

APPEAL DISMISSED; CASE REMANDED.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Shannon BROWN.
    No. 07-KA-228.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 2007.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, Fortieth Judicial District, Parish of St. John the Baptist, Edgard, LA, for Ap-pellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Shannon Brown.
    Shannon Brown, Angola, LA, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

LQn June 9, 2004, the grand jury for St. John the Baptist Parish indicted Shannon Brown, along with co-defendant, Wendell James, for first degree murder, in violation of La. R.S. 14:30(A)(1). Shannon Brown pled not guilty on June 14, 2004. On September 19, 2006, the District Attorney’s Office for St. John the Baptist Parish amended the indictment to charge both defendants with second degree murder in violation of La. R.S. 14:30.1. Shannon Brown was re-arraigned and pled not guilty to the amended charge.

On September 19, 2006, trial of the charge against Shannon Brown commenced. On September 21, 2006, the 12-person jury found defendant guilty as charged.

On November 8, 2006, the trial court denied defendant’s motion for new trial and sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This timely appeal follows.

FACTS

On the evening of April 9, 2004, Ronald Dunn, Jr., Pettus Prine, Charles Palmer, Nathaniel Hall, Darrin Dillion, Von Dunn and Lionel Griffin were visiting their friend, Donovan Bailey, at his house on East Twenty-fourth Street in Reserve, [ ^Louisiana. As the group stood talking in Bailey’s front yard, Donovan Bailey pointed out an older model, yellow Buick that was approaching the group from Sweet Lorraine Street, which connects Twenty-fourth and Twenty-fifth Streets. Ronald Dunn recognized the car from previous encounters with its occupants.

Ronald Dunn testified that, as the car approached them, he recognized Shannon Brown, who is also known as “Shane Brown,” seated on the passenger side of the car. According to Ronald Dunn, he and Brown stared at each other as the car slowly passed by. Ronald Dunn testified that Brown turned his head and grabbed a gun from inside the car. Ronald, who was distracted by warning his mother of possible danger, then heard shots fired at the group and ran away. Ronald did not see who fired the shots but testified that it sounded like the shots came from the passenger side of the yellow car. At trial, Ronald identified the defendant as the passenger of the yellow ear who he saw with a gun immediately before shots were fired at his group.

Yon Dunn stated that he knew Brown because Brown had given him a ride in the past. Von Dunn saw defendant fire shots at his group of friends on the night of April 9, 2004. At trial, Von Dunn identified the defendant as the passenger of the yellow car who fired shots at his group.

Nathaniel Hall, Jr. testified that, Brown, who was the passenger of a slow-moving yellow car, was hanging out of the car window, shooting at him and his friends on April 9, 2004. He testified that he saw defendant fire the first shot. At trial, Hall identified the defendant as the passenger of the yellow ear who fired shots at his group.

Pettus Prine testified that, on April 9, 2004, he was in front of Donovan Bailey’s house sitting and talking with his girlfriend in her car when he noticed a I ¿yellow car moving slowly towards them on the street. He testified Brown, the passenger of the slow-moving car, was “fussing.” Pettus Prine saw Brown put his head out of the car window with a pistol in his hand and shoot into the crowd; Prine saw defendant fire the first shot. Pettus Prine knew Brown prior to the incident from school. At trial, Prine identified the defendant as the passenger of the yellow car who fired shots at his group.

Donovan Bailey testified he saw the yellow car coming down the street and recognized it from an incident his friends had been involved in two nights ago. According to Donovan Bailey, defendant and Ron-aid Dunn made eye contact and, as the car moved slowly, defendant stuck his head out of the car window and said something to Ronald Dunn. Bailey then saw defendant pull his head back into the car and reach for something in the car. Donovan Bailey did not see defendant fire the shots but heard shots come from the passenger side of the car. At trial, Bailey identified the defendant as the passenger of the yellow car. At trial, Ronald Dunn, Von Dunn, Nathaniel Hall, Pettus Prine, and Donovan Bailey all testified that no one from their group had a weapon that night.

After the car left the scene, the group members saw Lionel Griffin lying in the street, bleeding from his head. Although Lionel Griffin was rushed to the hospital, the damage from the wound'was too severe and he did not survive. The Jefferson Parish Coroner determined that Lionel Griffin died as a result of a gunshot wound to his head.

Michael Davis of the St. John Parish Sheriffs Office testified that he took photographs and collected evidence from the scene of the shooting. He identified photographs from the scene of a vehicle that was struck by a bullet.

Davis testified that, from the scene, he recovered five spent casings — three 9mm casings and two .45 caliber casings. He testified that the casings were in the | ^general proximity of each other, much less than 200 feet. He also attended the autopsy and collected .the copper-jacketed bullet that was removed from the victim’s head.

Davis stated that he could not determine when the casings that he recovered at the scene were fired or the order in which they were fired. Further, no detectable DNA was lifted from any of the casings. Michael Davis agreed that the evidence could indicate that more than one person was firing at the scene. Based on the evidence presented to him, Michael Davis was unable to determine who fired the shots in question.

Deputy Brian White of the St. John the Baptist Parish Sheriffs Office was the responding officer to the shooting. Deputy White prepared a report on the date of the incident, which included approximate distances from which evidence was collected in relation to the victim’s body. He reported that he saw three 9mm spent casings approximately 68 feet from the victim’s body but on the opposite side of the road from the Bailey residence. Deputy White found two .45 caliber casings approximately 268 feet from the victim but on the same of the road as the residence.

Patrick Lane, an expert in the field of firearms identification, testified that .the badly-damaged, copper-jacketed bullet fragment extracted from the victim at the Jefferson Parish morgue was most consistent with a .45 caliber firearm. He examined two .45 caliber casings and determined they were all fired from the same firearm. He also testified that there were sufficient markings on each of the three 9mm cartridge casings to be able to establish that they all were fired from the same firearm. Patrick Lane testified that there were at least two different guns of different calibers that fired those casings on April 9, 2004.

| (¡Detective Lieutenant Kenneth Mitchell ■ of the St. John the Baptist Parish Sheriffs Office, the case officer involved in this investigation, testified that when he arrived at the scene, Deputy Brian White indicated to him that there was a shooting and the victim was being transported to the hospital. Detective Mitchell observed three spent 9mm casings and two .45 caliber casings some distance away. He also observed a vehicle with a bullet hole in its front bumper.

Immediately after leaving the scene, Detective Mitchell interviewed Darrin Dillion, Donovan Bailey, and Von Dunn, who all identified Shannon Brown as the passenger of the yellow car who opened fire on them. Detective Mitchell interviewed Ronald Dunn, who said that shots came from the passenger side of the vehicle. According to Detective Mitchell, Von Dunn said he saw shots coming from both the passenger side and the driver side of the car.

A couple of days after the shooting, Detective Mitchell interviewed Nathaniel Hall and Pettus Prine, who both stated that they were standing with their friends in Donovan Bailey’s front yard when a yellow vehicle passed by the house. They stated that the passenger opened fire on them. They both identified defendant as the shooter.

On the day after the shooting, Detective Mitchell interviewed Shannon Brown at the sheriffs office. Brown was advised of his rights and questioned as a suspect in the shooting. Defendant denied leaving his house on Friday, April 9, 2004.

Subsequently, Detective Mitchell presented a photographic lineup that included defendant to various witnesses. Von Dunn, Donovan Bailey, Darrin Dillion, Pet-tus Prine, and Ronald Dunn identified defendant from the lineup as the shooter.

|7At trial, the defense presented testimony from co-defendant, Wendell James. James stated that, on April 9, 2004, he was driving defendant home and defendant asked to stop at someone’s house on Twenty-fifth Street in Reserve, Louisiana. When James and Brown learned that the person was not home, they decided to take Twenty-fourth Street to return to Airline Highway. On Twenty-fourth Street, James and Brown encountered a group of males on the side of the road who tried to block the road as they approached.

According to Wendell James, a light-colored male started shooting at his car. Wendell James said that the defendant shielded James from the shots with his body. Further, defendant immediately told James to leave the area, stuck his hand out of the ear window, and shot back two times. James stated that the light-colored male shot first and defendant retaliated to protect them. James testified that bullets hit the side of his car, but, upon cross examination, he admitted that he no longer possessed the car because he gave the car to the defendant after the incident. Wendell James denied shooting at anyone.

At trial, Wendell James said that he did not know if defendant had “bad blood” with the people in the street. Finally, Wendell James admitted that he lied to Detective Mitchell in their initial interview when he said that he spent the night at defendant’s house, never left the house on Friday, April 9, 2004, and never drove a yellow Buick.

LAW AND ARGUMENT

In his first two assignments of error, defendant challenges the sufficiency of the evidence. Defendant specifically argues that the evidence was insufficient to support the verdict as it failed to prove beyond a reasonable doubt that the homicide was not done in self-defense and, further, that the evidence was |smsufficient to support a verdict of guilty as charged as it proved at best that the killing was a manslaughter done in the heat of passion as a result of a confrontation brought on by the gang lurking in front of Donovan Bailey’s residence.

On appeal, defendant contends that the homicide was justifiable because he fired in self-defense. Defendant argues that this Court must reverse his conviction because no rational fact finder could have concluded on the evidence presented at trial that the State proved beyond a reasonable doubt that the killing was not justified as an act of self-defense.

Defendant argues that if his theory of self-defense is rejected, this Court should find that the mitigatory factors mandating a verdict of manslaughter were established. Defendant claims his actions were in the heat of blood and were in response to the gang’s provocative behavior.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, supra at 319, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See also, State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to |aprove, in order to convict, it must exclude every reasonable hypothesis of innocence.” 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.

This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id. The credibility of a witness 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.

In the present case to obtain a conviction for second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1 A(l); State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 441, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013.

Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1).. The determination of specific criminal intent is a question of fact. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Id. “The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to Imkill.” Id. “It is of no consequence whether defendant, in firing his weapon into a group of people, intended to hit one person or several people.” See, State v. Severin, 04-326 (La.App. 5 Cir. 9/28/04), 885 So.2d 609, 617, writ denied, 04-2805 (La.3/11/05), 896 So.2d 64.

Defendant contends the homicide was justifiable because the shooting was committed in self-defense. According to La. R.S. 14:20(1), a homicide is justifiable “[wjhen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” When a defendant claims self-defense in a case such as the present case, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Cazenave, 00-183 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151.

The relevant inquiry on appeal is whether 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 homicide was not committed in self-defense. The determination of Defendant’s culpability focuses on a two-fold inquiry, whether, from the facts presented, Defendant could reasonably have believed his life to be in imminent danger, and whether deadly force was necessary to prevent the danger. While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a Defendant had a reasonable belief that deadly force was necessary to avoid the danger.

Id. at 860.

Our review of the trial testimony reveals that, according to Ronald Dunn and Donovan Bailey, the first shot fired was from the direction of the yellow car, not from anyone in their group. According to Von Dunn, Nathaniel Hall, Pettus Prine, Shannon Brown fired the shots at their group from the passenger side of the yellow car. Further, Ronald Dunn, Donovan Bailey, Von Dunn, Nathaniel Hall, and h-, Pettus Prine testified that they did not see anyone in their group with a gun or weapon and that no one in their group fired a gun at anytime that night. When interviewed initially, defendant stated he did not leave his house the day of the incident. Detective Mitchell testified that defendant never said someone shot at him or the car he was in while he was interviewed.

Defendant argues that the physical evidence supports his claim of self-defense and impeaches the State’s witnesses. Specifically, he argues the victim’s body with the .45 caliber bullet was found in front of the residence and that the 9mm casings were only 68 feet away. He adds that the .45 caliber casings were 268 feet away, arguing that this demonstrates the victim died in a shoot-out involving a 9mm from the crowd and a .45 caliber firearm responding from the vehicle.

At trial, Michael Davis stated that he could not determine when the casings that he recovered were fired. Detective Mitchell stated that it was possible for one person to shoot two guns in succession and for two people to be shooting two guns out of the same vehicle. He explained that Von Dunn indicated shots were being fired from the driver’s side and the passenger side of the yellow car, which would also be consistent with the evidence on the scene of the crime. Detective Mitchell agreed there was no evidence that any shots came from any location other than the yellow vehicle. We find no error in the jury’s apparent determination that defendant shot first and not in self-defense as alleged.

Defendant argues, next, that the evidence only supports a conviction of manslaughter. According to La. R.S. 14:31 A(l), manslaughter is a homicide which would be first or second degree murder, but the homicide is

committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter 11?,if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.]

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter. Instead, they are mitigatory factors which may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, the- defendant is required to prove the mitigatory factors by a preponderance of the evidence. State v. Barbarin, 04-1094 (La.App. 5 Cir. 3/1/05), 900 So.2d 95,101. The question for this Court on review, is whether a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. Id., (citing State v. Lombard, 486 So.2d 106, 111 (La.1986)).

Defendant claims that the location of the spent casings supports a finding that defendant’s actions were in self-defense. Defendant contends the victim’s gang was partially blocking the street as they were driving by and fired a 9mm weapon. He claims that defendant responded with heat of blood to the gang’s behavior by firing a .45 caliber weapon out of the window.

In the present case, the jury did not find that defendant established the mitigatory factors of “sudden passion” and “heat of blood” by a preponderance of the evidence. Our review of the record reveals that the finding was reasonable because the evidence presented at trial reflects that defendant deliberately fired a gun from a moving vehicle into a group of people. Further, the evidence did not support a finding that the defendant fired at the group in “sudden passion” or “heat of blood” since the State’s witnesses testified that the defendant rode by “fussing” at the group, opened fire on the group, and that no one in their group fired a weapon at the defendant’s vehicle at any time on the night of the incident. Viewing the evidence in the light most favorable to the prosecution, the jury could 11shave reasonably found that the mitigatory factors of “sudden passion” and “heat of blood” were not established by a preponderance of the evidence.

In his third counseled and his first pro se assignment of error, defendant - argues that the court should have declared a mistrial in view of the State’s wholly improper closing argument reference to appellant’s failure to testify at trial. Defendant argues the State’s repeated, direct, and improper reference to his failure to testify during its closing argument was so prejudicial as to warrant a mistrial. He argues the trial court erred in denying his request for a mistrial and that such error requires reversal.

Defendant challenges the following comments made by the State during rebuttal argument which he contends involve defendant’s failure to testify at trial:

Ladies and gentlemen, my argument to you is that there is a certain intellectual dishonesty, if you will, about a defense that comes in and says it’s not me, it’s not my client, my client wasn’t shooting, but if it turns out that my client was shooting, if it turns out that it was him the passenger, then it was self defense [sic].

Defense counsel objected. The prosecutor also stated, “The way to present self-defense is to be up front and say, yes, I was there ... yes, I did the shooting.” The prosecutor continued with the following comment: “Now, the way to present self-defense is to be straight up front. Yes, I did the shooting but the guy was threatening my life. He was threatening me with serious bodily harm. I had to shoot him, I had no alternative.”

The defense moved for a mistrial, noting that the State’s argument constituted a comment about defendant not testifying and argued the State was attempting to shift the self-defense burden. The trial court denied the motion and gave an admonition to the jury, telling them to disregard the State’s statement since they could not consider the fact defendant was not testifying.

|u“Whether a mistrial should be granted is within the sound discretion of the trial court and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion.” State v. Steele, 01-1414 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 549, unit denied, 02-2992 (La.9/19/03), 853 So.2d 632. “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney ... in argument, refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense[.]” La.C.Cr.P. art. 770(3). Additionally, La. C.Cr.P. art. 770 provides that “[a]n admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

The granting of a mistrial based on the State’s direct or indirect reference to the defendant’s failure to testify in his own defense is a prohibition that was established to safeguard the defendant’s Fifth Amendment right against self-incrimination. State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 764, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88.

When the State makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and “it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence.” State v. Johnson, 541 So.2d 818, 822 (La. 1989) (quoting State v. Fullilove, 389 So.2d 1282, 1284 (La.1980)). The Louisiana Supreme Court further noted the following:

Where the reference to the defendant’s failure to take the stand is not direct, this Court will inquire into the remark’s “intended effect on the jury” in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from general | ^statements that the prosecution’s case is unrebutted (which are permissible).

Id.

The Louisiana Supreme Court in State v. Johnson also set forth the test for determining the “intent” of such a statement:

In cases where the prosecutor simply emphasized that the state’s evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, we have held that the prosecutor’s argument did not constitute an indirect reference to the defendant’s failure to take the stand.
On the other hand, where the defendant is the only witness who could have rebutted the state’s evidence, “a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify” and mandates a mistrial.

Id. at 822-823 (internal citations omitted). “In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s failure to testify.” State v. Mims, 806 So.2d at 764.

In the present case, we find that the comments were neither a direct reference nor an intended indirect reference to the defendant’s failure to testify in his defense. The scope of argument is provided for in La.C.Cr.P. art. 774, which provides the following:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

In his closing argument, defense counsel argued was that the homicide was committed in self-defense. In this case, we find that the State’s comments were an attempt to explain the law regarding self-defense to the jury in response to the | ^defense’s closing argument. Accordingly, we find that the trial court did not err in denying defendant a mistrial.

In his last pro se assignment of error, defendant argues that the State’s failure to disclose pictures of the victim prior to trial resulted in an unfair trial. Defendant argues that the State failed to disclose photographs of the victim prior to trial, prejudicing the defense and resulting in an unfair trial. Defendant argues although the photographs were requested for several months, they were not shown to the defense until the day of trial. Defendant challenges a photograph of the victim during the autopsy “with the brain cavity held open pointing to a location where the bullet was found, and two other bloody pictures[.]” Defendant further contends the State did not present a valid reason for using the gruesome photographs and that their probative value were of minimal value. Defendant argues the photographs were clearly prejudicial and inflammatory and their introduction into evidence caused reversible error.

Our review of the trial transcript and appellate record reflects that only one photograph of the victim that was admitted into evidence at trial. Upon review, we note that this photograph does not meet the description of the autopsy photograph being challenged nor the “two other bloody pictures” described by the defendant. Defendant does not challenge the photograph that was admitted into evidence. This assignment of error, therefore, does not present an issue for our review.

As is our routine practice, we have reviewed the record for errors patent in accordance with La.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). We have found no error requiring corrective action. Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . At the same time, Ronald Dunn saw his mother, Elaine Dunn, driving her car toward the group, approaching the yellow car from the rear. Because Ronald thought that Brown might shoot, he shouted to his mother to leave the area.

      . Michael Davis, who actually collected the evidence, reviewed Deputy Brian White’s report and believed that the distance between the two sets of casings was substantially shorter.

      . James testified that the car belonged to him even though it was registered in another person’s name.

      . For clarity, the discussion of these assignments has been combined.

      . In this case, defendant does not argue that the State failed to prove that he fired a weapon out of the vehicle. In fact, at trial, his counsel elicited testimony from its own witness, co-defendant, Wendell James that defendant fired shots from the vehicle.