author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Harold J. JONES.
    No. 2007-KA-0533.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, Patrick Enloe, Law Clerk, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
   Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME.

DAVID S. GORBATY, Judge.

LOn February 4, 2004, defendant, Harold Jones, was charged by bill of information with possession of cocaine, in violation of La. R.S. 40:967. The defendant entered a plea of not guilty at his arraignment on April 16, 2004. After a jury trial on September 28, 2006, the defendant was found guilty as charged. On October 11, 2006, the defendant was sentenced to two years at hard labor with credit for time served. On the same date, the State filed a multiple bill of information, to which the defendant pled not guilty. At the multiple bill hearing on December 14, 2006, the defendant was adjudicated a fourth felony offender. On December 18, 2006, the trial court set aside the defendant’s original sentence and sentenced defendant, under the multiple bill, to twenty years at hard labor without benefit of probation or parole, with credit for time served. Defendant filed motions to reconsider sentence and for appeal. The trial court denied the motion to reconsider sentence but granted the motion for appeal. Defendant subsequently filed this appeal.

FACTS

In the evening hours of January 12, 2004, Officer Warren Keller and his partner, Officer Robert Desevius, were on proactive patrol, driving eastbound on | j>LaSalle Street approaching the intersection of Washington Avenue and LaSalle Street. The officers observed a white four door Chevrolet Monte Carlo proceed on Washington Avenue, disregarding the red traffic light at the intersection of Washington and LaSalle. The officers made a left hand turn onto Washington Avenue and proceeded behind the vehicle. The officers activated their vehicle’s lights and sirens. The driver of the Monte Carlo pulled over in the 2500 block of Washington Avenue.

Officer Keller, over his vehicle’s p.a. system, told the occupants of the vehicle to visibly display their hands. Officer Keller stated that the driver, later identified as Daniel Jackson, immediately complied. The passenger, later identified as defendant Harold Jones, looked over his left shoulder towards the officers and then leaned forward in the vehicle towards the front passenger floorboard. The officers then approached the vehicle. Officer De-sevius walked to the driver’s side of the vehicle. Officer Keller went to the passenger side, shone his flashlight into the car, and told the defendant to show his hands and exit the vehicle. Both Jackson and defendant were then patted down for weapons and placed by the front of the police vehicle. Officer Keller returned to the front passenger side of the Monte Carlo. According to Officer Keller, he shone his flashlight into the vehicle and observed, in plain view, a clear piece of plastic containing rock-like substances which, through his experience, he believed was crack cocaine. Officer Keller then returned to the front of the police vehicle where he arrested and advised defendant of his rights. Thereafter, Officer Keller conducted a search incident to arrest and discovered a zip-lock plastic bag containing a green vegetable matter.

[sThe parties stipulated at trial that if Juan Hong was called to testify, he would qualify as an expert in the testing and analysis of controlled dangerous substances and state that the rock-like substances found on the defendant tested positive for cocaine.

ERRORS PATENTAND ASSIGMENT OF ERROR NUMBER 3

In his third assignment of error, the defendant seeks a review of the record for patent errors. A review of the record reveals that the sentence imposed by the trial court after adjudicating the defendant a multiple offender is illegal. The trial court sentenced the defendant to serve twenty years at hard labor without benefit of probation or parole. La. R.S. 40:967 and La. R.S. 15:529.1 do not prohibit parole eligibility. La. R.S. 15:529.1 states that the sentences must be served without benefit of probation and suspension of sentence. Thus, the trial court erred when it imposed the sentence to be served without benefit of parole.

Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. Furthermore, in State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefit of suspension of sentence. The correction is statutorily effected. State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

|4No other errors patent were found.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court should have granted his motion for mistrial when Officer Keller testified that he found a zip-lock bag of green vegetable matter during the search incident to arrest. The defendant contends that Officer Keller’s statement was inadmissible other crimes evidence.

La. C.E. art. 404(B)(1) provides:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La.C.Cr.P. art. 770(2) prohibits reference by a judge, a district attorney, or a court official to other crimes by the defendant as to which evidence is not admissible under penalty of mandatory mistrial. If the elements of Article 770 have not been satisfied, the decision on the motion for mistrial is governed by LSA-C.Cr.P. art. 771.

A police officer is not considered a court official under Article 770; and, absent a showing of a pattern of unresponsive answers or improper intent by the prosecutor, a mistrial is not warranted. State v. Nicholson, 96-2110 (La.App. 4 Cir. 11/26/97), 703 So.2d 173. A trial court’s ruling on whether or not to grant a mistrial for a comment by a police officer referring to other crimes evidence should |Bnot be disturbed absent a clear abuse of discretion. State v. Manuel, 94-0087, 94-0088, (La.App. 4 Cir. 11/30/94), 646 So.2d 489.

In the case at bar, Officer Keller’s statement that he found a bag of green vegetable matter incident to a search after the defendant’s arrest was not part of a pattern of unresponsive answers. Further, the trial transcript does not reveal any improper intent on the part of the prosecutor. The statement was made while the officer was giving his recitation of the incident which led to the defendant’s arrest. Therefore, La.C.Cr. P. article 770 is not applicable, and the appropriate standard for determining whether a mistrial should have been granted is La.C.Cr. P. article 771.

La.C.Cr.P. article 771 provides that when a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, upon request of the defendant, the defendant’s remedy is a request for an admonition or a mistrial. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, (La.App. 4 Cir. 1/10/97), 687 So.2d 1056. On request, the trial court shall admonish the jury to disregard such remark or comment. La.C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515 (La.1982). Mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the defendant. The determination of |fiwhether prejudice has resulted lies within the sound discretion of the trial court. Id.

In State v. Taylor, 2001-1638, pp. 10-11 (La.1/14/03), 838 So.2d 729, 741-42, the Louisiana Supreme Court discussed the admissibility of “other crimes” evidence:

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res ges-tae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

In State v. Walker, 99-2217 (La.App. 4 Cir. 10/25/00), 775 So.2d 484, judgment vacated on other grounds, 2000-3200 (La.10/12/01), 799 So.2d 461, the defendant argued on appeal that his counsel was ineffective for his failure to object to the introduction of testimony regarding cocaine seized from the trunk of a car and his conviction for possession of that cocaine. The defendant had been charged with possession of cocaine and being a convicted felon in possession of a firearm. The counts were severed, and defendant was tried on the possession of cocaine charge first. The conviction on appeal in Walker was the conviction for being a convicted felon in possession of a firearm. The police officers testified that they observed the defendant open the trunk of a car and place a handgun into it from his waistband. The police apprehended the defendant, seized the key to the trunk, opened it, and found the gun. Next to the gun were several grams of crack cocaine. The defendant argued on appeal that there was no need to include any testimony regarding the narcotics in order to substantiate the charge regarding the firearm. In considering the assignment of error, this Court noted that counsel may have believed that any objection to the evidence would have been overruled by the trial court on the grounds that the evidence was admissible under the res gestae exception because the evidence “was so closely related to the State’s case as to the charge of felon in possession of a firearm.” Walker, p. 8, 775 So.2d at 489. Prior to discussing whether the defendant’s counsel may have not objected as a matter of trial strategy, the Court discussed the res gestae exception and indicated that the evidence was admissible under it, noting that the police officers’ “narrative testimony established that all of the events leading up to the defendant’s arrest ... occurred within a short period of time.” Walker, p. 7, 775 So.2d at 489. This Court found the assignment of error to be without merit.

In State v. Rodriguez, 2000-1521 (La.App. 4 Cir. 3/14/01), 786 So.2d 122, a police officer testified that he saw the defendant throw down a plastic bag, which the officer later discovered, contained contraband. The defendant complained on appeal that the testimony was irrelevant and improperly admitted. This Court concluded that the officer’s testimony concerned the res gestae of the present offense and was properly admitted. The Court noted that the officer testified at trial that the defendant took a weapon and bag from his waistband and dropped them at the same time. When the officer went to pick up the weapon and bag, he observed the contraband in the bag and that the gun was fully loaded.

In State v. Snavely, 99-1223 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, arresting officers testified that they found a handgun in the defendant’s front right pocket after he was arrested for possession with intent to distribute cocaine. After the officers’ testimony, the gun was admitted into evidence. The Fifth Circuit found that the evidence of the discovery of the gun constituted an integral part of the crime of possession with intent to distribute cocaine. The Court noted that the “evidence was used merely to complete the story of the crime on trial and allow the state to accurately present its case.” Snavely, p. 7, 759 So.2d at 956.

In the present case, during direct examination, Officer Keller testified that he found a zip-lock bag of green vegetable matter during the search incident to arrest. The statement was part of the officer’s testimony concerning the discovery of the cocaine on the passenger side floorboard and the defendant’s arrest. The discovery of the marijuana occurred within minutes of the discovery of the cocaine and during the defendant’s arrest. As in the cases cited above, the discovery of the marijuana was part of the res gestae. The officer’s testimony was used to establish |8the facts leading up to, and including, the defendant’s arrest. The trial court did not err when it denied the defendant’s request for a mistrial.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant also argues that the sentence imposed under the multiple bill is excessive. After the multiple offender hearing on December 14, 2006, the defendant was adjudicated a fourth felony offender. On December 18, 2006, he was sentenced to twenty years at hard labor pursuant to La. R.S. 15:529.1(A)(1)(c)(i), which provides in pertinent part:

(c), if the fourth or subsequent felony is such that, upon a first conviction the defendant would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.
In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:
Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional exces-siveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.l0/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).

Under the Habitual Offender Law, it is presumed that a mandatory sentence is constitutional. State v. Bailey, 2004-85 (La.5/26/04), 875 So.2d 949. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the case to rebut the presumption of constitutionality. Id. It is the defendant’s burden to rebut the presumption of constitutionality by demonstrating:

‘He is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.’

State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531).

There must be substantial evidence to rebut the constitutionality presumption. “The trial court may not depart from the legislatively mandated h minimum simply because of some subjective impression or feeling about the defendant.” State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 927. It has been strongly emphasized by the Louisiana Supreme Court that downward departures from a mandatory minimum sentence should occur in rare situations. State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339. The Legislature maintains the sole authority to define criminal conduct and provide penalties for that conduct. State v. Johnson, 709 So.2d at 675. “[I]t is apparent that the Legislature’s determination of an appropriate minimum sentence should be afforded great deference by the judiciary.” Id. at 676. Although courts have the power to declare these sentences excessive, this should only be done when the court is clearly and firmly convinced that the minimum sentence is excessive. Id. A trial judge cannot rely solely upon the nonviolent nature of the present crime or of previous crimes to justify the rebuttal of the constitutionality presumption. Id.

In State v. Fleming, 2004-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, the Fifth Circuit upheld the defendant’s sentence of twenty years at hard labor. The defendant was convicted of possession of cocaine, adjudicated a fourth felony offender and sentenced to the mandatory minimum of twenty years without the benefit of parole, probation, or suspension of sentence. The defendant’s prior convictions included for robbery, felon in possession of a firearm, and burglary. The court noted that the defendant did not offer sufficient evidence to rebut the presumption that the sentence was constitutional and not excessive. The defendant’s only argument was that the sentence was a needless imposition of pain and suffering for such a small amount of cocaine. The Court recognized that it had previously rejected such arguments. See State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645; State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949.

In the present case, the defendant was adjudicated a fourth felony offender after the State produced evidence of prior convictions of simple robbery, illegal use of a weapon, and possession of cocaine. While the trial court did not state its reasons for the sentence, it must be noted that it imposed the minimum sentence allowed under the multiple offender statute. Further, the record provides an adequate factual basis for the sentence imposed.

The documents presented by the State reveal that the defendant was originally arrested in 1993 for armed robbery and found guilty of simple robbery. In 1994, the defendant pled guilty to a charge of possession of cocaine. Thereafter, in 1997, the defendant pled guilty to illegal use of a weapon and resisting police officer for which he was sentenced to serve two years at hard labor; said sentence to be served concurrently with time served for a parole violation.

Because the trial court imposed the minimum sentence, the burden rested upon the defendant to rebut the presumption of constitutionality by showing that he was exceptional, i.e., the sentence imposed was not meaningfully tailored to his culpability and the gravity of the offense. The defendant did not produce any evidence to rebut the presumption of constitutionality. His only argument on appeal is that the sentence is extreme for possession of a small amount of cocaine. Such an argument was rejected by the Fifth Circuit Court of Appeal in State v. Fleming, and is also rejected by this Court.

The sentence imposed by the trial court is not excessive. This assignment is without merit.

J^CONCLUSION

Accordingly, for the foregoing reasons, defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Clifton STRAUGHTER and Randall Harris, Plaintiffs-Appellants, v. Vince HODNETT dba Banana Bob’s Cantina, et al., Defendants-Appellees. Clifton Straughter and Randall Harris, Plaintiffs-Appellants, v. Colony Insurance Company, Defendant-Appellee.
    Nos. 42,827-CA, 42,870-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.
    Rehearing Denied Feb. 7, 2008.

      Anthony J. Bruscato, Monroe, for Plaintiffs-Appellants.
    Newman & Oliveaux by Trey N. McGee, Todd G. Newman, Monroe, for Defendants-Appellees, Vince Hodnett and Comet Entertainment.

      McNew, King, Mills, Burch & Landry by Brady D. King, II, Monroe, for Defendants-Appellees, Sixth Street Properties.
    Nelson, Zentner, Sartor & Snellings by George M. Snellings, IV, Allison M. Jar-rell, Monroe, for Defendants-Appellees, Peters Family Urban Properties, et al.
    Mayer, Smith & Roberts by J. Kris Jackson, Steven E. Soileau, Shreveport, for Defendant-Appellee Colony Insurance Company.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

h The plaintiffs, Clifton Straughter and Randall Harris, appeal from various trial court rulings in favor of Colony Insurance Company, Sixth Street Properties, Inc., Peters Family Urban Properties, LLC, and Osprey Properties, LLC, dismissing claims arising from an assault and battery. For the following reasons, we affirm the trial court judgment.

FACTS

In April 2005, the plaintiffs, Clifton Straughter and Randall Harris, were patrons at Banana Bob’s Cantina in Monroe, Louisiana. They claim they were attacked inside the bar and stabbed by another patron, Nicholas Short. In their original petition, Straughter and Harris filed suit against Short, as well as the bar operator, Vince Hodnett d/b/a Banana Bob’s. They alleged that Hodnett was negligent in allowing a dangerous weapon in the club, in allowing bad conduct in the bar, and in failing to have sufficient security.

The plaintiffs filed a first supplemental and amending petition naming as defendants not only Short, the attacker, and Hodnett d/b/a Banana Bob’s, but also Comet Entertainment, Inc., an entity connected with Hodnett that operated Banana Bob’s (Hodnett/Comet). In addition, the plaintiffs named as a defendant Colony Insurance Company (Colony), the insurer of Hodnett and Banana Bob’s. Colony answered, claiming that its policy excluded damages arising out of assault and battery. In November 2005, Colony also filed a motion for summary judgment, claiming that the assault and battery exclusion precluded coverage.

Un May 2006, the plaintiffs filed a second supplemental and amending petition reiterating their prior claims and adding as defendants the owner of the building leased to Banana Bob’s, Sixth Street Properties, Inc. (Sixth Street); the owners of a parking lot used by the business, Peters Family Urban Properties, LLC, and Osprey Properties, LLC (Peters/Osprey); and Colony Insurance Company (Colony), as the insurer of all defendants except Short. The plaintiffs claimed that Sixth Street and Peters/Osprey were additional insureds under Colony’s policy. In addition to their negligence claims, the plaintiffs asserted that the defendants were liable for allowing the operation of a public nuisance on the property. They contended that the defendants were aware of ongoing problems with criminal behavior at Banana Bob’s. The plaintiffs also alleged that Peters/Osprey and Sixth Street agreed to market the building and the parking lot together in order to allow a lessee such as Banana Bob’s to have enough parking to satisfy city ordinances for operation of a club.

Colony filed a second motion for summary judgment, alleging that the assault and battery exclusion in its policy precluded coverage for all of the claims against all of the defendants.

On May 17, 2006, the trial court granted the first motion for summary judgment in favor of Colony, dismissing only the claims against the insurance company set forth in the original and first amending petitions. Essentially, Colony was dismissed regarding the negligence claims against Hod-nett/Comet.

hOn June 22, 2006, Peters/Osprey filed a motion for summary judgment claiming that they do not own or have any interest in the building occupied by Banana Bob’s. They stated that they own the parking lot adjacent to the business and leased it to Banana Bob’s. Peters/Osprey noted that the incident occurred inside the building and not in the parking lot. Therefore, they argued that they were not liable to the plaintiffs.

In September 2006, Sixth Street filed an exception of no cause of action, arguing that the plaintiffs failed to allege that Sixth Street actively managed Banana Bob’s. Sixth Street asserted that it owed no duty to the plaintiffs.

On February 21, 2007, the plaintiffs filed a motion to stay the proceedings claiming that Hodnett had filed for bankruptcy.

The trial court held a hearing on the second motion for summary judgment by Colony, the motion for summary judgment by Peters/Osprey, and the exception of no cause of action by Sixth Street. On March 5, 2007, the trial court denied the motion for summary judgment filed by Colony. The court granted summary judgment in favor of Peters/Osprey and sustained the exception of no cause of action in favor of Sixth Street, dismissing those entities from the case. On March 28, 2007, the trial court 1 ¿signed a judgment dismissing Colony as to claims related to Peters/Osprey and Sixth Street.

This appeal by the plaintiffs includes the motion for summary judgment in favor of Peters/Osprey and the exception of no cause of action, dismissing Sixth Street, signed by the trial court on March 5, 2007 as well as the judgment of dismissal in favor of Colony signed March 28, 2007.

Peters/Osprey answered the appeal, claiming that it is frivolous and seeking damages.

During the course of these proceedings in the trial court, the plaintiffs filed a rule to show cause why the ruling of May 17, 2006, granting summary judgment in favor of Colony, should not be reconsidered and reversed. The plaintiffs claimed that they had only recently discovered that the insurance policy was not delivered to the parties and the assault and battery exclusion was ineffective without delivery. The plaintiffs contended that the granting of the motion for summary judgment was a nomappealable partial judgment and therefore, the trial court retained jurisdiction to review the ruling.

On January 23, 2007, the trial court made an ex parte ruling denying the request that the summary judgment be reconsidered and reversed. The court stated that the trial court did not have authority to grant a new trial on this matter. The plaintiffs filed a notice of intent to seek supervisory review of the denial of the rule to show cause and a return date was set. However, the plaintiffs failed to file a writ application.

| ¡¿The plaintiffs filed a separate lawsuit contending that the trial court should nullify the May 17, 2006 partial summary judgment due to fraud and ill practices. They based this claim on the alleged nondelivery of the insurance policy to all insureds. Colony filed an exception of no cause of action and a motion for summary judgment arguing that the plaintiffs had ample time to discover the nondelivery issue. Colony also alleged that the plaintiffs failed to timely file their motion for reconsideration. On July 25, 2007, the trial court granted the exception of no cause of action and the motion for summary judgment in favor of Colony. The plaintiffs appealed this ruling and the two cases were consolidated on appeal by this court.

DELIVERY OF POLICY AND PARTIAL SUMMARY JUDGMENT

In its first two assignments of error in Straughter I, the plaintiffs object to the trial court’s refusal to reconsider the May 17, 2006, summary judgment in favor of Colony. This summary judgment dismissed the insurance company regarding the negligence claims against Hod-nett/Comet on the basis of the assault and battery exclusion in the insurance policy. The plaintiffs argue that an insurance company has a legal obligation to clearly and explicitly identify coverage limitations and exclusions to its insureds and a legal obligation to deliver the policy to its insureds within a reasonable time after issuance. In the absence of policy delivery or other written notification, the plaintiffs claim that the limitations and exclusions in the policy are without effect. According to the plaintiffs, there was no delivery of the policy to any of the insureds. Therefore, they argue that | f,Colony’s assault and battery exclusion was not applicable, and the trial court erred in granting summary judgment to Colony as to the negligence claims against Hodnett founded on the policy exclusion.

The plaintiffs also contend that the partial summary judgment rendered on May 17, 2006, was not appealable under La. C.C.P. art. 1915. They claim that the judgment only disposed of the issue of Colony’s coverage of the negligence claim against Hodnett/Comet. According to the plaintiffs, Colony remained a defendant as to the nuisance claims against Hod-nett/Comet and as to the negligence and nuisance claims against all the other defendants. Because the summary judgment disposed of less than all the issues regarding Colony, the plaintiffs maintain that it was a non-appealable partial summary judgment and the trial court retained jurisdiction to rule on their timely motion for reconsideration. For the following reasons, we find that these arguments are not properly before us for decision.

Discussion

Every policy of insurance shall be delivered to the insured or the person entitled thereto within a reasonable period of time after its issuance. La. R.S. 22:634(A). We recognize the rule that insurance policy exclusions are not valid unless they are clearly communicated to the insured. Notice of any exclusionary provisions is essential because the insured will otherwise assume the desired coverage exists. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993); Sims v. Insurance Unlimited of West Monroe, 28,-234 (La.App.2d Cir.2/28/96), 669 So.2d 709, writ denied, 96-0785 (La.5/3/96), 672 So.2d 689. If an insurer fails to comply with the statutory requirement of delivery, it cannot rely on its policy exclusions. Naquin v. Fortson, 1999-2984 (La.App. 1st Cir.12/22/00), 774 So.2d 1277.

In this case, the plaintiffs claim that several months after the summary judgment was rendered, dismissing Colony regarding the negligence claims against Hodnett/Comet, they learned of the possibility that the policy was not delivered to the insureds. Approximately eight months after that decision, the plaintiffs filed a rule to show cause why the partial summary judgment should not be reversed.

We also recognize that the trial court’s May 17, 2006, decision was a partial summary judgment that was not appealable. Under La. C.C.P. art. 1915(B), the trial court could have reversed its decision had it chosen to do so. Instead, on January 23, 2007, the trial court denied the request to reconsider and reverse the motion for summary judgment. Without exploring whether the January 23, 2007, judgment was a partial final judgment, we note that it was subject to review, either by appeal or by writ application. The plaintiffs did not seek review of this judgment by any means.

In Straughter I, the plaintiffs obtained the following order for the instant appeal specifying the trial court’s rulings to be considered on appeal:

CONSIDERING THE ABOVE AND FOREGOING MOTION, Let Plaintiffs, CLIFTON STRAUGHTER and RANDALL HARRIS, be granted a de-volutive appeal from the Judgment on the Motion for Summary Judgment in favor of Defendants, PETERS FAMILY URBAN PROPERTIES, L.L.C. and OSPREY PROPERTIES, L.L.C. and from the Judgment on the |sException of No Cause of Action in favor of SIXTH STREET PROPERTIES, INC., in the above entitled and numbered cause, rendered at Monroe, Ouachita Parish, Louisiana on the 21st day of February, 2007, and signed on the 5th day of March 2007, and the Judgment in favor of dismissal of COLONY INSURANCE COMPANY rendered on March 2, 2007 and signed on March 28, 2007, returnable to the Second Circuit Court of Appeal for the State of Louisiana. In accord with La. C.C.P. art. 2125 30 days from the date estimated costs are paid. [Emphasis supplied.]

As to Colony, this appeal only includes the granting of the summary judgment which dismissed Colony as insurer of Sixth Street and Peters/Osprey. This order does not include the May 17, 2006 summary judgment or the January 23, 2007 judgment declining the request to reverse the summary judgment. As noted earlier, the plaintiffs filed a notice of intent to seek supervisory writs from the January 23, 2007 judgment and a return date was set; the plaintiffs failed to file a writ application. In Straughter I, the plaintiffs have simply faded to properly present for review the trial court ruling regarding the denial of the request to reconsider and reverse the motion for summary judgment in favor of Colony. Their arguments are not properly before the court and will not be considered. However, as discussed below, the plaintiffs filed a separate suit attacking the May 17, 2006, summary judgment, claiming it should be nullified; they have properly appealed from the denial of their claims in that suit.

FRAUD AND ILL PRACTICES

In Straughter II, the plaintiffs filed a separate suit claiming that the trial court erred in dismissing their petition to reverse the May 17, 2006 partial summary judgment. (The May 17, 2006 summary judgment in favor of Colony dismissed claims against the insurance company regarding | ¡¡coverage of Hodnett/Comet based on the assault and battery exclusion.) The new suit seeking to nullify the judgment was filed May 17, 2007. The plaintiffs claimed that the summary judgment in favor of Colony was improvidently granted because the plaintiffs and the court were unaware of the issue of nondelivery of the insurance policy which would void the assault and battery exclusion. They claimed to have learned of this issue while deposing the insureds after the summary judgment was granted. They pointed out that they sought to have the trial court reconsider and reverse the prior judgment, but the court refused.

In response to the plaintiffs’ claims, Colony filed an exception of no cause of action and a motion for summary judgment. Colony urged that only judgments obtained by fraud or ill practices can be annulled and that the plaintiffs failed to allege any fraud or ill practices on the part of the insurance company. Therefore, Colony asserted that the plaintiffs failed to state a cause of action. Further, Colony claimed that the plaintiffs had sufficient time between the filing of the first motion for summary judgment on behalf of Colony and the granting of the judgment to discover whatever issues or facts were pertinent to their cause of action. Colony claimed there was no showing of fraud or ill practices and that summary judgment should be granted in its favor.

The judgment signed on July 25, 2007, by the trial court states that it sustained the exception of no cause of action and granted the motion for summary judgment.

ImThe plaintiffs appealed, claiming that the failure to consider the nondelivery issue and the failure to overturn the May 17, 2006 summary judgment in favor of Colony deprived the plaintiffs of a legal right and made the enforcement of the judgment inequitable.

Discussion

The nullity of a final judgment may be demanded for vices of either form or substance. La. C.C.P. art.2001. Vices of form are governed by La. C.C.P.2002 and are not applicable to this case. The only ground possibly available to the plaintiffs to nullify the May 17, 2006 judgment is a vice of substance. Vices of substance are governed by La. C.C.P. art.2004 which provides in pertinent part:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer. Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058; Johnson v. Unopened Succession of Alfred Covington, Jr. 42,488 (La.App.2d Cir.10/31/07), 969 So.2d 733. The historical development of this provision established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. The Louisiana Supreme In Court has accepted those two requirements as the necessary elements in establishing a nullity action under La. C.C.P. art.2004. Gladstone v. American Automobile Association, Inc., 419 So.2d 1219 (La.1982); Wright v. Louisiana Power & Light, supra.

La. C.C.P. art.2004 is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Wright v. Louisiana Power & Light, supra.

“Deprivation of legal rights” is conduct which prevents an opposing party from having an opportunity to appear or present a defense. The right to a fair and impartial trial is a legal right afforded to all participants in a legal proceeding. Wright v. Louisiana Power & Light, supra.

An action for nullity is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals. Wright v. Louisiana Power & Light, supra.

Discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity. Gladstone v. American Automobile Association, Inc., supra; Wright v. Louisiana Power & Light, supra. Furthermore, even if a new witness is not discovered until after the judgment becomes final, despite the exercise of |iadue diligence, that fact is not grounds for nullity of judgment unless fraud was involved or unless the enforcement of the judgment would be inequitable and unconscionable. Otherwise, the finality of judgments would be seriously impaired. Gladstone v. American Automobile Association, Inc., supra.

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

Initially, the movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant successfully meets, this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La.5/22/07), 958 So.2d 634.

The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., supra.

The plaintiffs did not submit any evidence that the insurance policy had not been delivered to Hodnett/Comet. The trial court did not err in granting Colony’s motion for summary judgment in Straughter II. The pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits show that there was no genuine issue of material fact regarding the plaintiffs’ request to nullify the May 17, 2006 judgment. We pretermit any discussion on the no cause of action exception due to our finding that the summary judgment was properly granted.

LIABILITY OF LESSORS

The plaintiffs argue that premises lessors can be held liable for an assault in a bar when the bar is being operated as a public nuisance and the lessors are on notice of that fact. They claim that Sixth Street and Peters/Osprey were on notice that the bar was being operated as a public |14nuisance and they failed to exercise their authority to terminate the lease under the public morals clause of the lease.

The plaintiffs acknowledge that Peters/Osprey leased only the parking lot and that the stabbing occurred inside the building. However, they argue that the agreement between Sixth Street and Peters/Osprey was a package deal for the lease of the building and the parking lot for operation of a single business. Without this cooperation, the business could not have operated. These arguments are without merit.

Discussion

The plaintiffs alleged that Sixth Street and Peters/Osprey were liable because they allowed a nuisance to operate on their property which resulted in injury to the plaintiffs. In the present case, although the plaintiffs seek to expand their cause of action to include Sixth Street and Peters/Osprey on a claim of allowing a nuisance to operate on the property, what is actually alleged is that these defendants were negligent and breached a duty owed to the plaintiffs.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. Beck v. Schrum, 41,647 (La.App.2d Cir.11/1/06), 942 So.2d 669.

Although the owner or operator of a facility has the general duty to exercise reasonable care for the safety of persons on his premises and the duty not to expose such persons to unreasonable risks of injury or harm, this |1sduty does not extend to unforeseeable or unanticipated criminal acts by third persons. While a business operator may have a duty to guard against the predictable risk of assaults, no jurisprudence has extended that duty to lessors. See Ledet v. Doe, 00-112 (La.App. 5th Cir.5/17/00), 762 So.2d 242. See also Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d 1282.

Even an owner who operates a club is not liable for injuries occurring on adjacent property unless certain factors are present such as inviting patrons to use that property or where the property provides a means of access to the business premises. Ledet v. Doe, supra. Lessors who have no responsibility for the operation of a business or a parking lot have a lesser duty than that of an owner/operator.

The duty of lessors to third parties is usually found in the ambit of premises defects and not in some obscure negligent leasing theory. The plaintiffs have simply failed to clearly articulate what duty they perceive was owed by Sixth Street and Peters/Osprey. If the plaintiffs contend that these parties had a duty not to lease the property to Banana Bob’s to begin with, then that argument must fall. At the time the lease was confected, there was no reasonably foreseeable risk that these plaintiffs would be harmed by the criminal act of a third party on the premises. Further, there was no clear showing that Sixth Street or Peters/Osprey had a duty to terminate the lease. This incident occurred during the term of the lease. Our examination of that document does not reveal a public morals clause as hr,argued by the plaintiffs. Under La. R.S. 9:3221, Hodnett/Comet assumed all responsibility for liability arising out of the operation of the business.

La. R.S. 9:3221 provides in pertinent part:

[T]he owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

The lease contained a “hold harmless” clause whereby the operator of Banana Bob’s agreed to assume the responsibility for the condition of the property and to hold Sixth Street and Peters/Osprey harmless from any claims arising from the use of the property. The lease specifies:

LESSEE hereby assumes responsibility for condition of the leased premises as contemplated under R.S. 9:3221.

Sixth Street was released on an exception of no cause of action. Even though Sixth Street owned the building, there was no allegation that the entity was operating the bar. See and compare Adams v. Traina, 36,306 (La.App.2d Cir.10/25/02), 830 So.2d 526, writs denied, 2002-2844 (La.2/7/03), 836 So.2d 101, 2002-2898 (La.2/7/03), 836 So.2d 102. Further, there were insufficient allegations that Sixth Street was the cause of the alleged public nuisance or that Short was an agent or employee of Banana Bob’s. There was also no specific allegation of a duty owed by Sixth Street to protect against the risk encountered by the plaintiffs. The trial court did 117not err in sustaining the exception of no cause of action in favor of Sixth Street.

Also, the trial court did not err in granting summary judgment in favor of Peters/Osprey. In their brief, the plaintiffs argue that a landowner who allows a public or private nuisance to operate on his premises may be liable to third parties. None of the authority cited by the plaintiffs supports a finding that Peters/Osprey, the lessors of the parking lot across the street from Banana Bob’s, should be liable to the plaintiffs.

In the present case, the plaintiffs were inside the building leased to Banana Bob’s when they were injured. They were not on the parking lot owned by Peters/Osprey at the time of the injury and there were no allegations that the condition of the parking lot led to the injuries sustained. Hodnett/Comet assumed responsibility for security and all other aspects of duty connected with operating Banana Bob’s. Under these facts, there was nothing Peters/Osprey could have done to prevent the harm incurred by the plaintiffs inside the club. The plaintiffs’ damages were caused by the criminal actions of Short in striking and stabbing them. These defendants |18simply did not owe a duty to the plaintiffs to protect them from criminal acts committed by third parties on adjacent property. In Ledet v. Doe, supra, an owner/operator was not liable for this type of claim. In this case, the lessors’ duty is more attenuated. Where the injuries were not sustained in the parking lot, no condition of the parking lot led to the injuries, and the operator of the club assumed the responsibility for injuries occurring on the property, we find that the trial court did not err in granting summary judgment in favor of Peters/Osprey.

POLICY EXCLUSION AND NUISANCE CLAIM

The plaintiffs next argue that, assuming that the assault and battery exclusion in the insurance policy is enforceable against Hodnett/Comet, Peters/Osprey, and/or Sixth Street in the absence of delivery, the exclusion does not contain any reference to nuisance claims and does not specifically exclude nuisance claims. This argument is without merit.

Discussion

Our review of the insurance policy shows that the assault and battery exclusion is sufficiently broad to cover the nuisance claim the plaintiffs have attempted to raise in this case.

Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Huggins v. Gerry Lane Enterprises, Inc., 2006-2816, 2006-2843 (La.5/22/07), 957 So.2d 127. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in | ^interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art.2045; Huggins v. Gerry Lane Enterprises, Inc., supra. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art.2047; Huggins v. Gerry Lane Enterprises, Inc.

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Huggins v. Gerry Lane Enterprises, Inc., supra.

If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. That strict construction principle, however, is subject to exceptions. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Huggins v. Gerry Lane Enterprises, Inc., supra.

I ¡>nThe assault and battery exclusion in this case provides as follows:

This insurance does not apply to damages or expenses due to “bodily injury,” “property damage” or “personal or advertising injury” arising out of or resulting from:
(1) Assault and Battery committed by any person;
(2) The failure to suppress or prevent assault and battery by any person;
(3) The failure to provide an environment safe from assault and battery or failure to warn of the dangers of the environment which could contribute to assault and battery;
(4) The negligent hiring, supervision, or training of any person;
(5) The use of any force to protect persons or property whether or not the “bodily injury” or “property damage” was intended from the standpoint of the insured or committed by or at the direction of the insured.

The language of the assault and battery exclusion is sufficiently broad to exclude coverage for the alleged nuisance claims urged by the plaintiffs. Those claims fall under those parts of the exclusion denying coverage for the failure to suppress or prevent assault and battery or to provide a safe environment from assault and battery or failure to warn of the dangers of the environment which could contribute to assault and battery. This is the type of harm that the plaintiffs claim constitutes maintaining a nuisance on the property. The plaintiffs’ arguments to the contrary are without merit.

FRIVOLOUS APPEAL

Peters/Osprey argues that the trial court correctly granted summary judgment in their favor because they only owned the parking lot of Banana Bob’s and the incident in this case occurred inside the building they did not own. Peters/Osprey argues that it did not have a duty to protect against the |21harm encountered in this case. They allege that the appeal by the plaintiffs is frivolous and that they should be awarded damages for defending against this frivolous appeal. This argument is without merit.

Discussion

La. C.C.P. art. 2164 specifies that the appellate court may award damages for a frivolous appeal. This provision is penal in nature and is to be strictly construed. Pratt v. Louisiana State Medical Center in Shreveport, 41,971 (La.App.2d Cir.2/28/07), 953 So.2d 876. An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing. Appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. On those rare occasions when such damages are awarded, the amounts are modest and may consist of an amount representing a reasonable attorney fee award for answering and defending the appeal. Pratt v. Louisiana State Medical Center in Shreveport, supra.

The record does not show that this appeal was taken solely for delay or that the plaintiffs did not seriously believe in their position. Damages for frivolous appeal are not warranted.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment in all respects. Costs in this court are assessed to the plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.

      . In the trial court, Mr. Hodnett filed a motion for summary judgment urging that he is not the owner of Banana Bob’s. He asserted that the business was owned by Comet Entertainment, Inc., and that he is the sole shareholder thereof. This motion was not ruled upon by the trial court. Mr. Hodnett’s attorney filed a letter in this matter stating that his client is not involved in the issues raised in this appeal and would not be filing a brief. He also states that Mr. Hodnett has recently declared bankruptcy and should be severed from this matter at the trial and appellate court levels. We find that no decision is required because the issues decided in this appeal do not include any judgments against Mr. Hodnett.

      . For ease of reference, this appeal will be referred to as Straughter I.

      . This appeal will be referred to as Straughter II.

      . The insurance policy shows that the named insured was Comet Entertainment d/b/a Banana Bob’s Cantina. Additional insureds under the policy were Peters/Osprey and Sixth street. That the insurance policy may not have been delivered to the additional insureds does not prove that the named insured did not receive a copy.

      . Bibbins v. City of New Orleans, 2002-1510 (La.App. 4th Cir.5/21/03), 848 So.2d 686, writ denied, 2003-1802 (La.10/10/03), 855 So.2d 357, is somewhat instructive. In Bibbins, the Alcohol Beverage Control (ABC) Board sought to revoke the liquor license of a club. The ABC Board claimed that the club was operating in a manner that permitted disturbing the peace and/or created or maintained a public nuisance. The club filed exceptions of vagueness and no cause of action. Although the ABC Board attached police reports to its petition, the fourth circuit found that the petition failed to state how the club was the cause of the disturbance of the peace or the existence of a nuisance regarding an attempted murder and a murder which occurred outside the club. According to the fourth circuit, criminal charges were brought against specific individuals who were not agents or employees of the club. The fourth circuit held that the petition in that case failed to state a cause of action for public nuisance.

      . City of Gretna v. Russland Enterprises, Inc., 564 So.2d 367 (La.App. 5th Cir.1990), writ denied, 568 So.2d 1078 (La. 1990), held that La. R.S. 13:4711 et seq., dealing with abatement of nuisances, was not unconstitutional; Adams v. Traina, supra, dealt with a negligence claim, not a nuisance claim.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Tommy Louis DAVIS, Appellant.
    No. 42,907-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.
    Rehearing Denied Feb. 7, 2008.

      W. Jarred Franklin, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

| ,The defendant, Tommy Louis Davis, was charged by bill of information with attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. Following a trial, a jury found the defendant guilty as charged. He was adjudicated a second felony offender and was sentenced to serve 40 years in prison at hard labor without benefit of probation, parole or suspension of sentence. This court affirmed the defendant’s conviction, but vacated the habitual offender adjudication and sentence. State v. Davis, 41,245 (La.App.2d Cir.8/9/06), 937 So.2d 5.

On remand, the defendant was sentenced to serve 25 years in prison at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. For the reasons that follow, we affirm the defendant’s sentence.

FACTS

On April 28, 2004, the defendant entered the home where his ex-girlfriend, Victoria Moore, and her sister were putting their young children, including the defendant’s infant daughter, to bed. The defendant entered the house and asked Moore to come with him. When she refused, the defendant dragged her out of the house. Moore escaped and ran back inside, and the defendant re-entered the home and locked himself and Moore in a bathroom where he began stabbing her. While they were shut in the bathroom, Moore?s wheelchair-bound grandmother was able to open the bathroom door allowing Moore to flee. The defendant followed Moore into the living room where he began to stab her again. Moore suffered multiple stab wounds and a collapsed lung.

_[¿The defendant was charged by bill of information with attempted second degree murder and was convicted as charged. He was initially sentenced to 25 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant was subsequently adjudicated as a second felony offender based on a prior felony conviction in Texas, and the trial court vacated the original sentence and imposed a new sentence of 40 years in prison at hard labor without benefit of parole, probation or suspension of sentence. On appeal, this court affirmed the conviction, but reversed the habitual offender adjudication. Finding that the state failed to prove that the current offense occurred before the expiration of the 10-year “cleansing period” following his discharge from custody for the prior conviction, this court vacated the sentence and remanded for further proceedings to determine the defendant’s status as a habitual offender and for resentencing.

After remand, the defendant filed a motion to quash the habitual offender bill. On January 10, 2007, the trial court minutes reflect that the trial court sentenced the defendant to 25 years in prison at hard labor, with the first 10 years to be served without benefit of probation, parole or suspension of sentence. In doing so, the trial court ordered that the record from the original sentencing of the defendant be made a part of the record.

On January 22, 2007, the defendant filed pleadings purportedly seeking an appeal from the new sentence, but the pleadings were treated by the court as a motion to reconsider sentence. In response to this filing and the motion to quash the habitual offender bill filed before his resentencing, lathe trial court vacated the new sentence and reset the matters for hearing.

At the resentencing hearing, the trial court informed the defendant that the sentence imposed on January 10, 2007 had been vacated and gave the defendant an opportunity to address the court before resentencing. Relying on the contents of the pre-sentence investigation and the reasons given for the original sentence of 25 years’ imprisonment imposed before the habitual offender adjudication, the trial court sentenced the defendant to 25 years in prison at hard labor without benefit of probation, parole or suspension of sentence with credit for time served. The court stated that any lesser sentence would deprecate the seriousness of the offense. This appeal followed.

DISCUSSION

The defendant contends the sentence imposed is excessive for this offense and this offender. The defendant argues that in imposing sentence, the trial court failed to adequately consider his age, the effect of the sentence on his family and his previous criminal history.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth .in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of Article U894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. (State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779.

In the instant case, prior to imposing sentence, the trial court referenced as its reasons the content of the PSI report and the original sentencing hearing from July 1, 2005. A review of the July 1, 2005 transcript indicates that the court reviewed the sentencing guidelines as found in LSA-C.Cr.P. art. 894.1. Specifically, the trial court examined the Ifidefendant’s criminal history as outlined in the presentence investigation (“PSI”) report, evidencing that the defendant had a history of violent behavior, including a 1988 felony conviction for rape in the state of Texas, various unresolved charges arising out of complaints of domestic violence and numerous pending drug-related charges. The trial court also noted that the defendant had an 11th grade education and lacked a history of steady employment.

The PSI report also noted that the defendant attempted to minimize the severity of his actions, an action the defendant repeated at the July 1, 2005 sentencing hearing. Given an opportunity to address the court, the defendant indicated that he had simply gone to the victim’s home to speak to the victim and that the altercation ensued because of the presence of another man. He indicated that he followed the victim into the bathroom. The defendant stated:

[T]he fact that she went in the bathroom and we had the door shut and she was discussing some problems with me in the bathroom. And she had a knife and I had a knife and she was stabbing herself. ... [I] tried to run out of the house and she grabbed me. Didn’t nobody see nothing that happened but me in the bathroom. That’s what really happened.
She got stabbed practically what she was doing, sir. I didn’t walk in there and stab her. I stabbed her a couple of times. I hit her [bjecause she had stabbed me, but I didn’t walk in there and start stabbing on her, nothing like that.

Lastly, the defendant indicated that Moore’s grandmother could not have pulled him off of her as reported because he had been studying “Kung-Fu” |7since he was “like eight years old, practically seven years old.”

The statutorily mandated sentence for the crime of second degree murder is life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:30.1(B). LSA-R.S. 14:27(D) provides, in pertinent part:

Whoever attempts to commit any crime shall be punished as follows:
(l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.
* * *

Thus, in the instant case, the defendant’s sentencing exposure for the conviction of attempted second degree murder was imprisonment at hard labor for not less than 10 years nor more than 50 years without the benefit of parole, probation or suspension of sentence.

In the instant case, we find that the defendant’s contention that the trial court failed to give adequate consideration to his age, the impact of the sentence on his family and his prior criminal history is not supported by the record. The PSI report did not indicate that any family members rely on the defendant for support and, as noted above, his prior criminal history is extensive and was expressly relied upon by the trial court.

With regard to the issue of the defendant’s age, the defendant was 45 years old at the time he committed the offense. At the resentencing hearing, the trial court asked the defendant why he thought he should received the minimum sentence. The defendant responded:

U’m at a age — about another year, I’ll be fifty years old. And I admit it was a mistake made. I’ll be fifty years old. Twenty-five years is a long time for a fifty year old guy like me.

We also note that the defendant had been incarcerated for over one year at the time the report was prepared in June 2005. Accordingly, with credit for time served, the defendant would be 70 years old at the completion of his 25-year sentence. To the extent that defendant’s age at the time of release is a mitigating factor, it is the sole mitigating factor in this case. However, age alone does not render his mid-range sentence so severe as to “shock the sense of justice.”

Under the facts of this case, we find that the defendant’s sentence is not disproportionate to the severity of the crime nor a needless imposition of pain and suffering. Thus, we find no abuse of the trial court’s discretion in sentencing this defendant. The sentence is not constitutionally excessive.

This assignment of error is without merit.

CONCLUSION

For the reasons set forth above, we affirm the defendant’s sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.


author: STEWART, J.

text:
    Jeraldine ALEXANDER, Appellant, v. BROOKSHIRE GROCERY COMPANY, Appellee.
    No. 42,855-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.
    Rehearing Denied Feb. 7, 2008.

      Jeraldine Alexander, In Proper Person.
    Lemle & Kelleher by Dale G. Cox, Shreveport, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

[jeraldine Alexander appeals the workers’ compensation judge’s (WCJ) denial of her claim for indemnity benefits and medical treatment against her former employer Brookshire’s. Finding no merit in her claims, we affirm the WCJ.

FACTS

While in the course and scope of her employment at Brookshire Grocery Company (“Brookshire’s”) as a perishable stocker, Jeraldine Alexander tore her left rotator cuff on May 18, 2004. She underwent two surgeries to repair the tear performed by Dr. John Ferrell.

Following the surgeries, Alexander continued to have shoulder pain. She sought and obtained care with four other orthopedic surgeons-Drs. Talbert, Bilderback, Whyte, and McWilliams. Brookshire’s paid for each treatment.

Following the recommendation of one of her treating orthopedic surgeons, Dr. Bild-erback, Alexander under went a functional capacity examination (FCE) by Dr. Paul Procell on January 20, 2005. Dr. Procell determined that Alexander could return to work at a job that did not require her to lift or carry more than ten pounds with her left arm. To accommodate Ms. Alexander, Brookshire’s offered her a position as a kiosk operator at the gasoline pumps in a letter dated January 28, 2005. The job paid $8.50 and hour and ensured that she would be able to earn two-thirds of her pre-injury wages. In this job, Alexander would do nothing more than sit in a chair all day and punch computer entries to ensure that the gasoline product is maintained and that the customer was given appropriate change for small pitems offered for sale. Drs. Talbert, Bilderback, and Whyte approved this job. Dr. McWil-liams deferred to these physicians and also agreed that Alexander should be able to perform the job.

On February 11, 2005, Alexander fell at her home and injured her left shoulder. Apparently, Alexander related to Brook-shire’s representative, Randy Modesitt, that she never fell on her left shoulder but rather fell on her right shoulder, but that her left shoulder still hurt as before. The WCJ found this testimony to lack credibility as the medical records from her visit- to Willis Knighton following the fall indicated that Alexander only complained of injury to her left shoulder to the emergency room physician, Dr. Fred Willis, Jr.

After Alexander refused the light duty release to gasoline kiosk attendant, Brook-shire’s refused to reinstate benefits. Alexander began pain management with Dr. Clifton Shepherd from LSUHSC. Dr. Shepherd later left LSUHSC to form his own practice. Alexander selected him as her choice to continue pain management services. However, Brookshire’s refused to pay Dr. Shepherd contending that Alexander had selected LSUHSC as her pain management specialist.

The WCJ ruled that Brookshire’s was required to pay for Dr. Shepherd’s care. However, Dr. Shepherd closed his practice and Alexander sought and obtained treatment from Dr. Kathleen Majors. Brook-shire’s paid Dr. Majors until she withdrew from treating Alexander because of her noncompliance with the treatment regimen.

| .Alexander filed a 1008 complaint seeking indemnity benefits and Brookshire’s answered citing intentional misrepresentation pursuant to La. R.S. 23:1208. The WCJ rejected both parties’ claims and the following appeal ensued.

DISCUSSION

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Smith v. Riverwood International, 35,727 (La.App.2d Cir.2/27/02), 810 So.2d 1175, writ denied, 02-0958 (La.5/31/02), 817 So.2d 101. The courts have consistently held that the manifest error standard applies upon appeal in workers’ compensation actions, even though the evidence before the trier of fact may consist solely of written reports, records and depositions. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 825 (La.1987); Feild v. General Motors Corp., 36,339 (La.App.2d Cir.9/18/02), 828 So.2d 150. See also, Shephard on behalf of Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308; McGill v. Cochran-Sysco Foods, 35,898 (La.App.2d Cir.5/8/02), 818 So.2d 301, writ denied, 02-1609 (La.9/30/02), 825 So.2d 1196; Haile v. City of Monroe, 31,315 (La.App.2d Cir.12/14/98), 722 So.2d 1192; Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3d Cir.11/2/00), 774 So.2d 1022.

| /Release to Work

Alexander claims that she was never given the option to consult with a physician of her own choosing before being ordered to return to work by Brookshire’s in violation of La. R.S. 23:1121(D). She asserts that Brookshire’s claim that they had probable cause to order was based on a faulty FCE, and its failure to follow La. R.S. 23:1121(D) was arbitrary and capricious. We find no merit in these claims. Brookshire’s paid for Alexander’s treatment through four orthopedists and the conclusion of each was that her pain may be real, but she is greatly magnifying and exaggerating her physical impairment related to the pain. The record is clear in its demonstration that Brookshire’s went to considerable lengths to accommodate Mr. Alexander’s physical limitations. There is no merit to this claim.

Inconsistent or Fraudulent Statements

Alexander contends that the WCJ erred in his determination that she made numerous inconsistent statements in pursuit of this claim and that these statements negatively impacted the court’s assessment of her credibility. She contends that this finding has no basis in fact as her statements do not rise to the level of misrepresentation under La. R.S. 23:1208.

The WCJ determined that Alexander’s inconsistent statements negatively impacted her credibility, but did not amount to intentional or fraudulent representations necessitating a forfeiture of benefits under 23:1208. We find no error in this determination.

| BIntentional Infliction of Emotional Distress

Alexander contends that Brook-shire’s intentionally violated her rights under the Worker’s Compensation Act causing her undue stress and depression. Because of Brookshire’s actions, she asserts that she was improperly ordered back to work and the pain she endured prompted her to attempt suicide. But for Brookshire’s actions, she would not have contemplated this course of action. As such she is entitled to compensation for mental injury under the Worker’s Compensation Act.

La. R.S. 23:1021(8)(c) allows an injured worker to claim mental injury caused by a job-related injury or physical stress. Alexander claims neither. She contends that Brookshire’s conduct at trial and the trial court’s order releasing her to return to work are the factors that caused her to suffer injury. Neither gives rise to com-pensable injury under the statute.

The WCJ properly found that Ms. Alexander’s mental health issues were not compensable under the Worker’s Compensation Act. The record shows that Ms. Alexander had a considerable history of mental issues. In fact, the testimony reveals that Alexander had a similar cycle in Colorado, where she exhibited a right shoulder injury, continuing and increasing pain, and resulting mental health problems such as those complained of in the instant case.

Penalties and Attorney Fees

We find that WCJ properly found that Brookshire’s should not be forced to pay penalties for its denial of benefits and actions in contravention of the Workers’ Compensation Act. Alexander contends that the WCJ’s | f,ruling denying her indemnity benefits, penalties and attorney fees should be reversed because she was physically unable to work. The WCJ properly determined that Alexander sustained a left rotator cuff tear as the result of a job-related accident at Brookshire’s but that the accident did not cause the reflex sympathetic dystrophy that she complains of. Alexander was ordered to return to work within the restrictions recommended by Mr. Procell and approved by three of her treating physicians.

The WCJ not only determined that Alexander does not suffer from the sympathetic reflex dystrophy, but that she exaggerates and magnifies her pain. The WCJ properly found that she was not a credible witness. The WCJ found that she could not earn 90 percent of her pre-injury wage and was entitled to supplemental earnings benefits, but also noted that Brookshire’s had offered suitable employment within the needed restrictions. Simply stated, the WCJ properly determined that Alexander did not establish an entitlement to temporary total disability or permanent total disability. She must prove by clear and convincing evidence that she is unable to work in any gainful employment. The medical evidence submitted in the record demonstrated that Alexander could return to light duty but was a malingerer.

With respect to the penalties and attorney fees, the WCJ expressly found that the plaintiffs lack of credibility was a sufficient basis upon which it could resist this claim. As such, plaintiffs claims are without merit.

^CONCLUSION

Based on the above and foregoing, we affirm the WCJ’s ruling denying indemnity benefits to Ms. Alexander. Cost assessed to appellant.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.