author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Jerome THOMAS, Appellant.
    No. 41,095-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Lea R. Hall, Jr., Dhu Thompson, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

| defendant, Jerome Thomas, appeals his convictions of two counts of second degree murder and concurrent sentences of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. We affirm.

Facts

On February 27, 2001, while working at the Rite Way Liquor Store located at 1750 Martin Luther King Drive in Shreveport, Louisiana, Demir Elikara and his father, Cengiz Elikara, were shot and killed during an armed robbery. More than $3,000 was taken in the robbery, as well as several cartons of Newport cigarettes, a large plastic jar of pennies, and a videotape of the film “My Cousin Vinny” which the assailants believed to be footage from a video surveillance system but which was actually used by store employees to watch movies.

At the scene officers found bloody footprints on the floor, two cups of melting ice on the counter, a pint bottle of Absolut Vodka on the floor next to Demir, and several spent shell casings. Two guns which did not appear to have been fired were located behind the store counter.

Two days later, on March 1, 2001, defendant, Jerome “Doo Doo” Thomas, accompanied by his uncle, mother, and sister, came to the Shreveport Police Department wanting to talk about the double homicide at Rite Way Liquor. Detectives Gary Foster and Kevin Crow were in the J^office. Defendant’s mother told Detective Foster that she thought her son might need an attorney. Jerome told the detectives that he wanted to talk about the case but didn’t know whether he might need a lawyer. Detective Foster told defendant he would try to get him an attorney. Because it was late in the evening, Det. Foster called an assistant district attorney, who said he would call a district judge to see if he could have an attorney appointed.

While the officers were waiting to hear back from the ADA, defendant spoke with his family in private. Defendant’s family then told Det. Crow that defendant wanted to give a statement and didn’t want to wait for an attorney. Defendant requested that his mother not be present during his statement.

After being advised of his Miranda rights and waiving these rights, defendant told Dets. Foster and Crow that he was a college freshman and could read and write the English language. He also stated that he came to the police station voluntarily. Defendant then confessed to being present during the robbery, which he claimed was committed by Demarein Mims. According to defendant, he did not expect anyone to be killed during the robbery and he named Mims as the triggerman. Defendant described Mims’ gun as a .40 caliber Glock and denied receiving any of the money from the robbery. Defendant admitted that he complied with Mims’ order to remove the videotape from the VCR. Once he got the tape, he gave it to Mims, and the pair fled the store on foot. Defendant’s statement was recorded in its entirety.

| .¡Defendant was thereafter interviewed by Detective Sean Hinderberger, the officer in charge of the Rite Way murder/robbery investigation. Detective Hinderber-ger did not readvise defendant of his rights and this interview was not recorded. Defendant was immediately placed under arrest. Demarein Mims later turned himself in to the police.

Defendant and Mims were indicted on two counts of first degree murder, but the charges were later amended to two counts of second degree murder. Demarein Mims was convicted as charged, and his conviction and sentence were affirmed by this court in State v. Mims, 39,757 (La.App. 2d Cir.06/29/05), 907 So.2d 237.

At defendant’s trial, Robert “Popeye” Webb testified that he was with defendant and Mims around noon on February 27, 2001, on Legardy Street, and he heard them talking about “hitting a lick,” or “doing a lick,” which refers to committing a robbery.

Webb testified that later that evening, he was in a car with Monolo “Nolo” Baker and Lonnie Bryant. Webb said that Baker “rented” Mims and defendant his .40 caliber Glock pistol. Defendant and Mims already had a .380 caliber gun. Later that evening, Webb saw defendant and Mims walking toward Rite Way Liquor Store. About 20 minutes later, Webb and Baker were driving near the liquor store when they saw Judy Gibbs, the customer who discovered the crime, running across the street. She was “hollering and crying” that someone in the liquor store was dead. Baker pulled up and asked her whether she had seen somebody run out of the store, and she said that she had seen a man running across the street.

4Webb and Baker then drove to Jackie Robinson Drive, where they observed defendant and Mims emerge from a trail in the woods. The two men were muddy and out of breath. Baker picked them up and got back his Glock. The clip was missing from the weapon. Defendant and Mims paid Baker some money for using the gun and losing the clip.

Webb testified that Mims was upset with defendant because defendant had “frozen up” on him. According to Webb, Mims said he “had to do it all by himself.” Later, at Baker’s house, Webb saw defendant counting his money from the robbery, which Webb thought was about $800-$900.

Pursuant to a search warrant, the police recovered the Glock pistol and the crime lab matched the casings and bullet fragments recovered in the investigation to the pistol. This Glock pistol had been taken from the trunk of a Caddo Parish Sheriffs patrol car that had been stolen two days prior to the robbery/murders.

Defendant’s girlfriend, Katrina Bailey, testified that around 5:00 p.m. on February 27th, defendant and Mims were at her house. Defendant and Mims left her house on foot. Katrina saw defendant again later in the evening when she rode with her cousin, Stephanie Shorter, who was Mims’ girlfriend, to pick defendant up from Nolo Baker’s house. Katrina said that she and defendant went to her house to spend the night. She hid one of defendant’s Nike shoes in a hole in her closet because it looked like it had blood on it. Katrina stated that some blue and black Nikes defendant usually kept in her carport were gone the next morning. Later that day, ^defendant called Katrina on her cell phone while she was at school and told her that he and Mims were involved in the armed robbery of the Rite Way Liquor Store the previous night. Defendant told Katrina that he was the “watchman” and that Mims shot both owners three times.

Stephanie Shorter’s testimony basically corroborated that of Katrina, adding that when the two arrived at Baker’s home, she saw Baker’s gun on the coffee table. Stephanie also stated that Mims contacted her around 3:00 a.m. the next morning and she picked him up from his cousin’s apartment. Mims was upset and drunk. Stephanie admitted to moving one of defendant’s “gangster” Nikes from Katrina’s home to Mims’ cousin’s apartment and later showing the police where it could be found. During the investigation, it was determined that defendant’s “gangster” Nikes made footprints “consistent” with the bloody footprints at the murder scene but that a positive “match” could not be made nor could any blood evidence be recovered from the shoes, which appeared to have been washed.

Elmer Henderson, who worked with and had known defendant for many years, testified that in early March 2001, defendant started crying while riding with Henderson but refused to tell Henderson what was wrong. After they arrived at defendant’s sister’s home, defendant locked himself in the bathroom. Henderson, who was a large man, pushed in the door and persuaded defendant to tell him what he was crying about. Defendant confessed to Henderson his involvement in the robbery/murders and admitted that both he and Mims had been armed. Defendant told Henderson that he (defendant) “just froze up” when Mims “started murdering folks.”

hA jury found defendant guilty as charged, and the trial court sentenced him to concurrent life terms. Defendant has appealed his convictions and sentences and has filed a supplemental pro se brief.

Discussion

Sufficiency of the Evidence

The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Louisiana Revised Statute 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

As explained by this court in De-marein Mims’ case:

[T]o obtain a conviction for second degree murder, the state was required to prove that either [Demarein] Mims or [defendant, Jerome] Thomas killed the victims with either specific intent to kill or to inflict great bodily harm, or while they were engaged in an armed robbery, even though there was no intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1) and (2). The state also had to prove beyond a reasonable doubt that Mims was “concerned in” the commission of the armed robbery so as to be a “principal” in committing each element of that crime. La. R.S. 14:24. A principal to an armed robbery in which the victim is fatally shot by another may be convicted of second degree murder. State v. Huff, 27,212 (La.App. 2d Cir.08/23/95), 660 So.2d 529, writ denied, 96-0212 (La.05/01/97), 693 So.2d 754; State v. Stokes, 26,003 (La.App. 2d Cir.06/22/94), 639 So.2d 395, writ denied, 94-1880 (La.11/11/94), 644 So.2d 387.

7State v. Mims, 907 So.2d at 244.

The record reveals that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to reasonably conclude that all of the elements of the crimes of second degree murder were proven beyond a reasonable doubt as required by Jackson v. Virginia, supra. Defendant’s role as a principal in the armed robbery is supported by the evidence, in particular, his own statements to police. These statements established defendant’s participation with Mims in planning the armed robbery, including their use of the Glock pistol. Defendant’s subsequent statements to Katrina Bailey and Elmer Henderson that he (defendant) was involved in the robbery at the liquor store and the testimony of Robert Webb and Stephanie Shorter clearly established defendant’s culpability. The evidence was legally sufficient to support his convictions for second degree murder as a principal to an armed robbery in which two victims were fatally shot, whether or not Mims did all the shooting. See State v. Huff, supra; State v. Stokes, supra.

Denial of Motion for Mistrial

During his rebuttal closing argument, the state’s attorney said, “You have officers putting in man hours to the point where they’re working day by day without sleep. You have an investigation that lasts weeks.... I ask on behalf of our victims, on the police investigating this case, ...” Then following an objection the ADA stated, “I ask (for a guilty verdict) on behalf of the victims who seek justice in this case.... ”

Is After the jury retired for deliberations, defense counsel moved for a mistrial, claiming that the prosecutor’s remarks were designed to elicit sympathy for the victims and for the police. We find that there was nothing inappropriate about the ADA’s comments. They simply stated that the police worked hard on the case, and the victims deserved justice. We further note that defendant did not ask the court to instruct the jury about what constituted an appropriate closing argument.

Denial of Motion to Suppress

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court recognized the coercive atmosphere created by police custody and created a procedural mechanism to safeguard a defendant’s Fifth Amendment Rights. Before interrogating a suspect in custody, law enforcement officials must inform the suspect that he has the right to remain silent, that his statements may be used against him at trial, that he has a right to an attorney, and that if he cannot afford an attorney, one will be appointed for him. Id,.; State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).

Once a suspect expresses his desire, at any stage of the process, for counsel, all questioning must cease, and the accused may not be further questioned unless the accused initiates contact with the police and waives his earlier request for counsel. Id.; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020.

|flThe record supports the trial court’s finding that defendant clearly and unequivocally initiated, through his family, his desire to talk with the officers and validly reversed his earlier hesitancy to speak without counsel. See State v. Hobley, supra; State v. Murray, supra. Defendant’s decision was made in the presence of close and trusted family members. The record affirmatively shows that defendant was advised of and waived his rights as per Miranda prior to giving his first recorded inculpatory statement. See State v. Bowers, 39,970 (La.App. 2d Cir.08/19/05), 909 So.2d 1038; State v. Roddy, 33,112 (La.App. 2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288. The record also affirmatively shows that the statements were free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. See La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, supra; State v. Roddy, supra.

Jury Composition

During trial, juror Deveda Moore brought it to the attention of the trial court that she knew Richard Beighley, a criminalist who was a state’s witness concerning firearm identification and footwear impressions. Ms. Moore was then questioned by the trial court outside the presence of the other jurors. The trial court noted that in voir dire questioning Ms. Moore stated that she knew Beighley when the list of prospective witnesses was read to the jury panel. The trial court noted that there was no follow-up questioning by the attorneys at that time. In response to the trial court’s questions, Ms. Moore stated that she could be a fair and impartial juror and|1f)couId evaluate Beigh-ley’s testimony “just like any other witness.” The trial court concluded that Ms. Moore could be fair and impartial, and she continued to serve as a juror. Defense counsel objected and requested that he be allowed to question Ms. Moore. Noting the sensitivity of questioning a sitting juror, the trial court denied the request.

A trial judge is granted great discretion in determining whether to seat or reject a juror for cause and such rulings will not be disturbed without a showing of an abuse of that discretion. State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Wilson, 01-0625 (La.App. 3d Cir.12/28/01), 806 So.2d 854, writ denied, 02-0323 (La.09/13/02), 827 So.2d 1121; State v. Peterson, 446 So.2d 815 (La.App. 2d Cir.1984). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Wilson, supra, citing State v. Hodgeson, 305 So.2d 421 (La.1974); State v. Holland, 544 So.2d 461 (La.App. 2d Cir.1989), writ denied, 567 So.2d 93 (La.1990).

The record reflects that the trial court made a sufficient inquiry and its decision to limit questioning and to allow the juror to continue was within its discretion.

| ^Excessive Sentence

Defendant was convicted as charged of two counts of second degree murder. The mandatory sentence for second degree murder is punishment by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). Where there is a mandatory sentence there is no need for the trial court to justify a sentence it is legally required to impose. State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

Defendant was a willing participant in an armed robbery which resulted in the senseless and brutal killing of two men. Defendant’s life sentence is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice and is not unconstitutionally excessive. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

Conclusion

For the reasons set forth above, defendant’s convictions and sentence are affirmed.

      . Mohammed "Mike” Rahman, Demir Eli-kara's business partner, told officers that the store stocked the small pint bottles of Absolut for only one customer, Holley Mims, Sr. At trial, Rahman testified that every weekday and twice on weekends, Holley Mims came to the Rite Way to buy a pint of Absolut. Rah-man stated that Mims' son, Demarein Mims, was also a regular customer who bought tobacco products at the store.

      . Also during trial, juror Jo Ann Taylor reported to Caddo Parish Deputy Daryl Smith that she knew defendant's father. With the jury out of the courtroom, the trial court questioned Deputy Smith regarding the matter. Deputy Smith related that Ms. Taylor told him that she had just realized that she worked with defendant's father at the hospital. The trial court then questioned Ms. Taylor on the record and outside the presence of the other jurors. Ms. Taylor stated that she works at the same hospital with defendant's father and that defendant’s mother used to work there too; however, she is not friends with defendant's parents and did not see them on a daily basis, she just knew them well enough to say hello. Ms. Taylor assured the trial court that this would not affect her ability to be a fair and impartial juror in this case. After hearing arguments from counsel, the trial court determined that Ms. Taylor could be a fair and impartial juror. There was no objection to the trial court's ruling regarding Ms. Taylor's continued service. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Smith, 39,698 (La.App. 2d Cir.06/29/05), 907 So.2d 192; State v. Bosley, supra; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992).


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Donna Norman ROWE and Emery David Rowe, Plaintiffs-Appellants v. Carolyn B. WILLIAMS, Cornelius Charles Cole and Allstate Insurance Company, in Solido, Defendants-Appellees.
    No. 41,082-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Jack Bailey Law Corp. by Jack M. Bailey, Jr., J. Allen Cooper, Jr., Shreveport, for Appellants.
    Chris J. Roy, Jr. A Law Corp. by Christopher J. Roy, Jr., Alexandria, for Interve-nor Appellee.
    Tutt, Stroud & McKay by Charles G. Tutt, Jennipher P. McKay, Shreveport, for Appellee State Farm General Ins. Co.
    WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

h Donna Norman Rowe and Emery David Rowe (“the Rowes”) appeal the trial court’s grant of summary judgment in favor of Carolyn Williams, Cornelious Cole, and Allstate Insurance Company (“Allstate”) finding that the Rowes were not entitled to uninsured motorist benefits pursuant to La. R.S. 22:680 in that they could not stack uninsured motorist coverage involving a vehicle they did not own. For the reasons that follow, we affirm the trial court.

FACTS

On August 20, 2001, Donna Rowe was involved in an automobile accident at the intersection of Murphy Street and Allen Avenue in Shreveport when her vehicle was struck by a vehicle driven by Cornelious Cole. She had gone to the Shreveport Police Station to pick up a police report for her employer, Rice and Kendig, and she was on her way back to the office when the accident occurred. Cornelious Cole allegedly failed to obey a traffic signal and struck Mrs. Rowe. The Rowes filed suit against Cole, Carolyn Williams, the owner of the car Mr. Cole was driving, and their insurer, Allstate. The Rowes alleged that they suffered damages in excess of the liability limits of the Allstate policy covering Mr. Cole. The Rowes sued their UM carrier, State Farm Mutual Automobile Insurance Company (“State Farm Mutual”). The Rowes also filed a second and amending petition naming State Farm General Insurance Company (“State Farm General”), the insurer of Ms. Rowe’s employer, Carl Rice, alleging that Mr. Rice’s policy also provided uninsured motorist coverage.

| j,State Farm General filed a motion for summary judgment asserting that the Rowes could not recover from it because they had already collected from the tort-feasor’s insurer and their personal UM carrier. The trial court granted the motion for summary judgment based on the language contained in La. R.S. 22:680 which disallows stacking. This appeal followed.

DISCUSSION

The trial court granted State Farm General’s motion for summary judgment based on our decision in Richard v. State Farm, 39,868 (La.App. 2d Cir.6/29/05), 907 So.2d 886. In Richard we denied a claimant’s attempt to stack UM coverages from his and his wife’s separate insurance policy citing the anti-stacking language in La. R.S. 22:680(l)(c), formerly La. R.S. 22:1406(D), which provides:

(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subpara-graph (l)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recovery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
ls(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

Generally, the UM coverage of the occupied vehicle is the applicable coverage, and Section (c)(i) establishes the general rule that the insured may not stack UM coverages even when the insured has UM coverage available to him under more than one policy.

In Richard, Ezra Richard was driving his wife’s separately owned vehicle when he was struck from the rear by a vehicle driven by Kenisha Bullard. Both vehicles were insured by State Farm, which paid Mr. Richard the limits of the policy available under Ms. Bullard’s policy and the $10,000.00 in UM coverage available under his wife’s policy. Mr. Richard then attempted to use the UM coverage available under the policy covering his separate vehicle.

The trial court determined that to allow Mr. Richard to collect UM benefits under his personal policy in addition to his wife’s policy would be a violation of the anti-stacking provisions of La. R.S. 22:680. We agreed and affirmed the trial court.

In the instant case, the Rowes seek to not only recover under the policy of their personal UM carrier, but they seek to recover from Ms. Rowe’s employer’s UM. Ms. Rowe was driving a vehicle owned by her at the time of the accident. Thus, she, like the plaintiff in Richard, does not fit Rwithin the exception language of La. R.S. 22:680(l)(c)(ii). The exception is only applicable in the instance of a person suffering injury while occupying an automobile not owned by that injured person, a resident spouse, or resident relative. The Rowes assert that their claim is distinguishable from cases disallowing stacking because she was driving for her employer. We find the Third Circuit case of Irvin v. State Farm Mut. Auto. Ins. Co., 2003-717 (La.App. 3d Cir.12/10/03), 867 So.2d 777, writ denied, 2003-3537 (La.3/26/04), 871 So.2d 347, instructive. In Irvin, the court denied a plaintiffs attempt to pursue an employee to seek benefits under her employer’s UM policy after she was injured while acting in the course and scope of her employment citing La. R.S. 22:680. In Irvin, the plaintiff had her own UM coverage, and summary judgment was granted in favor of her employer’s UM carrier. Those facts are directly on point in the case before us. We find that such a reward would violate the anti-stacking provisions of La. R.S. 22:680. Thus, we affirm the trial court.

CONCLUSION

Based on the above, we affirm the decision of the trial court granting State Farm General’s motion for summary judgment. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . The section was moved and slightly changed by Acts 2003, No. 456.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Donald W. NUGENT, Appellant.
    No. 41,070-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Rehearing Denied Sept. 21, 2006.

      Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, for Appellant.
    Jerry Jones, District Attorney, George D. Ross, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

_jjThe defendant, Donald W. Nugent, was originally charged with unauthorized use of a movable, malfeasance in office, and public bribery. The defendant pled guilty to unauthorized use of a movable in exchange for the state’s agreement to dismiss the other charges. The trial court imposed a sentence of imprisonment for one year, with the first six months to be served without suspension of sentence, the remainder of the sentence to be suspended, and a $3,500 fine with 180 days in default of payment. The defendant was also placed on supervised probation for one year.

The defendant appeals. We affirm.

FACTS

Between January 1, 1996 and December 31, 2002, the defendant was employed as fire chief for the Ouachita Parish Fire Department. During this time, the defendant made false claims for travel expenses and reimbursements relating to out-of-town meetings. After the Office of Legislative Auditor received information of possible improprieties, the auditor performed an investigative audit. The audit revealed that there was approximately $8,464 in false claims. Upon receipt of the audit, the Ouachita Parish Sheriffs Office initiated an independent investigation. The defendant, along with four other individuals, was subsequently indicted.

Following his guilty plea and sentencing, the defendant filed a motion to reconsider sentence. The trial court denied the motion.

I ¿DISCUSSION

On appeal, the defendant contends that the sentence is excessive and that the trial court erred in denying his motion to reconsider sentence. He argues principally that his sentence is disproportionate to the suspended sentences received in the four other prosecutions arising from the same investigations.

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

There is no requirement that co-defendants be treated equally by the sentencing judge. State v. Rogers, supra; State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State 3v. Quimby, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App.2d Cir.5/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/6/98), 727 So.2d 444.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. The record here shows more than adequate compliance with the statutory considerations.

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

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

During the sentencing hearing, the court addressed the defendant’s contention that he should not be required to serve any active jail time |4because it would not be proportionate to the other defendants’ suspended sentences. The court stated that it is not bound by those cases. Distinguishing between those cases and the present case, the court noted that the other persons had agreed pleas and sentences. The court also noted that those were persons of lower rank.

Prior to imposing the sentence, the court discussed several factors, which were listed in the presentence investigation report. The defendant was 49 years old at the time of sentencing. As to the defendant’s criminal history, the court noted that the defendant had no prior convictions.

Responding to the sentencing guidelines, the court observed that this conduct took place over a number of years. The court also stated that the offense involved the loss of funds until reimbursement was made to the government. The court noted that the defendant had been indicted for other charges, which were dismissed pursuant to this plea. The court explained that jail time may be used as punishment and to deter others who are in a public office or positions from abusing their positions or violating public trust. As mitigating factors, the court found that the defendant’s actions are inconsistent with his background and history. The court expressed that, as fire chief, the defendant did an outstanding job in reducing insurance premiums and providing a more professional fire force. The court specified that, when questioned about being paid twice for travel expenses, the defendant refunded the overpaid amount to the legislative auditor. The court also took into consideration the defendant’s letter, as well as numerous letters from his relatives and friends.

[^Unauthorized use of a movable having a value in excess of $1,000 carries a penalty of imprisonment, with or without hard labor, for not more than five years, a fine of not more than $5,000, or both. The trial court imposed a sentence of imprisonment for one year with the first six months to be served without suspension of sentence, the remainder of the sentence to be suspended, supervised probation for one year, and a $3,500 fine with 180 days in default of payment.

On this record, we do not find constitutional error. The sentence is lawful and less than one-fourth of the maximum sentence for a person who committed unauthorized use of a movable having a value in excess of $1,000. Additionally, the defendant received substantial benefits as a result of the plea bargain agreement. Because the sentence was tailored to fit the defendant and offense, the court did not err in denying the defendant’s motion to reconsider sentence. We do not find that the sentence is grossly disproportionate to the severity of the offense nor does it shock our sense of justice.

CONCLUSION

The defendant’s sentence is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.


text:
    STATE of Louisiana, Appellee, v. Joseph Leath JAMES, Appellant.
    No. 41,069-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Louisiana Appellate Project by Carey J. Ellis, III, Leslie W. Kelly, for Appellant.
    Joseph Leath James, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, William M. Altimus, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

h The defendant, Joseph Leath James, was convicted of theft, and that conviction was affirmed by this court in State v. James, 36,493 (La.App.2d Cir.12/11/02), 833 So.2d 1162. He was adjudicated a third felony offender and sentenced to four years imprisonment at hard labor without parole, probation, or suspension of sentence, to be served consecutively to any other sentence. This court amended the sentence by striking the provision denying the benefits of parole eligibility. The defendant filed an application for post-conviction relief which was denied at the trial court and then filed a writ with this court.

On May 11, 2005, we granted the defendant’s writ in part based upon an invalid guilty plea being used as a predicate offense to the habitual offender adjudication and an ineffective counsel claim. (No. 40,-153-KH) The issue was remanded to the trial court for an evidentiary hearing. The trial court found the prior plea to be defective and resentenced the defendant as a second felony offender to four years at hard labor, to be served consecutively to any other sentence. For the reasons explained more fully below, we affirm his sentence.

FACTS

In the previous appeal, the defendant’s conviction for stealing a nail gun valued at over $300 from Tubbs Hardware and Rental in Bossier City was affirmed. The defendant was adjudicated a third felony offender based upon two prior guilty pleas entered in Vernon and Jefferson Davis Parishes. We amended the sentence imposed on the defendant as a third felony offender by removing the trial court’s restriction on parole. James, supra.

|aThe defendant filed an application for post-conviction relief which was denied by the trial court and then filed a writ of supervisory review with this court. (No. 40,153-KH) The defendant’s claims regarding an invalid confession and improper use of hearsay were denied. However, his claims of ineffective counsel and the trial court’s use of an invalid guilty plea as a predicate offense supporting the habitual offender status were found to have merit. We found that the guilty plea had been accepted in 1994 in Vernon Parish even though the transcript showed a complete failure to comply with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is no showing that this guilty plea transcript was presented at any point prior to the application for post-conviction relief. In fact, no transcript was in the exhibit entered into evidence by the state at the habitual offender hearing. The matter was remanded to the trial court for an evidentiary hearing and reconsideration.

The trial court refused to reconsider other aspects of the prior habitual offender hearing, but ruled that the guilty plea taken in Vernon Parish would not be used to support the habitual offender status because this court had stated as much. The defendant was therefore adjudicated a second felony offender. At the sentencing hearing, the trial court again sentenced the defendant to four years at hard labor to be served consecutively with any other sentence.

DISCUSSION

The defendant argues that there were procedural irregularities in the habitual offender adjudication including the failure to arraign him on the Inhabitual offender bill. The defendant claims that the bill was filed on March 11, 2002, and that the habitual offender proceeding was held immediately thereafter. The defendant states that he was not given the requisite time period in which to file objections to the bill before the first habitual offender hearing or after remand. The defendant also argues that there were no written reasons provided for the adjudication either time.

Secondly, the defendant argues that the state failed to meet its burden under State v. Shelton, 621 So.2d 769 (La.1993) by providing proof that the prior guilty pleas were voluntary and that he was represented by counsel. James claims that because the initial burden was not met, the burden had not yet shifted to him to raise procedural defects in the proceedings. The defendant further requests review to determine whether the 1994 guilty plea was informed and voluntary, and whether the plea was made with an articulated waiver of the three Boykin rights.

The state does not address that second argument regarding the burden of proof, but agrees that the defendant correctly contends in his brief that the record does not reflect an arraignment on the habitual bill of information. The state also briefly summarizes that the defendant was not informed of his rights under La. R.S. 15:529.1(D)(l)(a).

Habitual Offender Adjudication

If it appears that a person convicted of a felony has previously been convicted of a felony, the district attorney of the parish in which a subsequent conviction occurred may file a bill of information accusing the person of a previous conviction. The court in which the subsequent [¿conviction occurred shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record, and he shall be given 15 days to file particular objections to the information. La. R.S. 15:529.1(D)(l)(a).

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing rather than by admission of the defendant. State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077, citing State v. Bell, 03-217 (La.App. 5th Cir.5/28/03), 848 So.2d 87, 90.

A failure to arraign the defendant, or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. La. C. Cr. P. art. 555. See also State v. Collier, 39,650 (La.App.2d Cir.7/27/05), 909 So.2d 23.

The state’s burden of proof in habitual offender proceedings under La. R.S. 15:529.1 is stated in State v. Shelton, supra:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the | ..¡defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. [Footnote omitted.]

A review of the record confirms both the defendant and state’s assertion that the defendant was not arraigned on the habitual offender bill of information. He was not asked whether the allegations were true at the original hearing or the hearing on remand. The habitual offender bill of information was filed with the court on March 12, 2002. The habitual offender hearing was held immediately after filing the bill. At the hearing on remand, the defendant was offered a reduction of his sentence to three years if he agreed to not have a hearing. The record shows that the defendant asked if that sentence would run concurrent with any others, and was told that it would not. The defendant requested permission to ask questions and was instructed to speak to his counsel. The trial court then stated, “Let’s just proceed with the hearing.”

Because the defendant was not arraigned on the habitual bill of information, the trial court violated La. R.S. 15:529.1(D)(l)(a), and there is no showing that the defendant was given 15 days to file particular objections to the information. However, any issue regarding the trial court’s failure to arraign the defendant was waived because he did not object before |fithe trial portion of the habitual offender proceeding. La. C. Cr. P. art. 555; see also State v. Callier, supra (wherein this court ruled that the trial court’s failure to arraign a defendant on the habitual offender bill of information was waived). In State v. Mason, supra, we held that the failure of a trial court to properly advise the defendant of his rights is not reversible error where the defendant’s habitual offender status was shown by competent evidence offered by the state at the hearing rather than an admission by the defendant.

Here, the defendant neither admitted nor denied the allegations. Instead, the state presented evidence in the form of a certified copy of the bill of information, minutes, and sentencing transcript hearing for the prior conviction in Vernon Parish, and a certified copy of the bill of information and minutes for the prior conviction in Jefferson Davis Parish. The state also presented testimony by John D. Garland and Glenn Hanks as to the defendant’s identity.

In Shelton, supra, the Louisiana Supreme Court referenced State v. Bland, 419 So.2d 1227,1232 (La.1982), where that court found that a minute entry evidencing advisement of Boykin rights could be sufficient proof of a prior guilty plea. In the instant case, the state offered minutes from Vernon Parish that stated the defendant had been represented, “freely gave the plea,” and that trial court had “explained to the defendant the charge against him, the possible penalty, his constitutional right to trial by Jury [sic ], the presumption of innocence, right to confront and cross-examine accusers, right to compulsory process and the right to remain silent |7and not incriminate self.” [sic ]. The minutes stated that the defendant “understood and waived those rights” and that “[a]n Explanation of Constitutional Rights Form [sic] was filed into the record.” Id. The state also offered the minutes from Jefferson Davis Parish regarding the 1993 guilty plea that stated the defendant was represented by counsel and entered his plea “freely and voluntarily” after the trial court “informed the defendant of his right to a jury trial, the right to confront and cross examine [sic ] the witnesses against him and the right against self incrimination.” Id. We find that the state did comply with the initial burden of proof under Shelton, supra, by presenting these minutes which showed the minimum proof required.

The problem with the inaccuracy of the minutes from the guilty plea entered on June 6, 1994, in Vernon Parish was not presented until after the habitual offender hearing held on March 11, 2002. The record contains a motion requesting Boykin transcripts for theft and cocaine possession guilty pleas entered in 2002, but no motion requesting the 1994 transcript. The defendant further discussed the transcript and lack of proper advisement in the amendment to the application filed in the district court on March 21, 2005. The defendant made similar arguments in his writ application to this court, filed on January 17, 2006, but elaborated on the connection between ineffective counsel and the failure to discover the defective guilty plea.

A review of the 1994 guilty plea transcript as provided in the defendant’s application for post-conviction relief shows that the trial court obviously failed to advise the defendant of his rights under Boykin, and that |sthe minutes incorrectly stated that the defendant had been informed of and waived those rights. We have no knowledge of the. validity of the plea taken in Jefferson Davis Parish as the defendant has not claimed deficiency of that plea and no copy of the transcript is provided in the record.

If the defendant had objected to the use of the 1994 guilty plea at the time of habitual offender hearing and shown some evidence of irregularity, thereby rebutting the presumption of regularity in final judgments under Shelton, supra, the burden would then have shifted to the state to produce a “perfect” transcript of the taking of the guilty plea.

Our review of the record shows that the state met its initial burden under Shelton, supra, and review of the “prior guilty plea” as requested in the defendant’s brief shows that the plea was indeed defective as ruled by the trial court on remand. This issue has already been corrected during the evidentiary hearing on remand by ruling that the defendant was a second felony offender instead of a third felony offender.

Finally, the defendant also argued that the trial court failed to provide written reasons for the habitual offender adjudication. The trial court’s failure to do so is harmless error because the transcripts of the habitual offender proceedings show oral reasons and the sufficiency of the evidence presented. See State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 05-0845 (La.11/29/05), 916 So.2d 165, petition for cert. filed. This assignment is without merit.

| ¡,Excessive Sentence

The defendant argues that the sentence imposed was constitutionally excessive, noting that the sentence remained the same after his habitual offender status had been reduced from third felony offender to second felony offender. He claims that the trial court failed to consider his personal, social, or employment history, and merely relied upon his criminal history. He argues that the maximum sentence was constitutionally excessive. The state argues that the defendant’s criminal history supports the sentence imposed, that the sentence was within the statutory limits, and that the trial court did not abuse its broad discretion in imposing the sentence.

A person convicted of theft when the misappropriation or taking amounts to a value of $300 or more, but less than $500, shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than $2,000, or both. La. R.S. 14:67(B)(2). A person who has been adjudicated as a second felony offender, if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1(A)(l)(a).

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Adger, 35,111 (La.App.2d10 Cir.9/26/01), 797 So.2d 146. See also State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991). A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

The test imposed by a 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 La. 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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

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

The defendant filed a motion to reconsider sentence which seemed to incorrectly argue that this was a mandatory minimum sentence under the habitual offender law. That motion was denied by the trial court because it gave full consideration to the issues at the time of sentencing. The defendant argues in his brief that this sentence was constitutionally excessive.

The sentencing range applicable in this case based on the defendant’s habitual offender status is between one and four years, with or without hard labor, without the benefits of probation or suspension of sentence. The sentence imposed, while it is the maximum allowed, is not constitutionally excessive. The trial court reviewed the pre-sentence investigation report which summarized the defendant’s lengthy criminal history, including the following: an arrest in 1991 for unauthorized use of an access card which was dismissed, arrests for three counts of theft in 1992 (also dismissed), a guilty plea in 1992 to forgery and theft charges, probation revocation on the sentence imposed for that conviction in 1996, another arrest for forgery and theft in 1992, two convictions for theft in 1993, a guilty plea in 1994 to four |, ¡.counts (out of the 11 charged) of simple burglary, another 1994 guilty plea to unauthorized use of an access card, the present conviction for theft of goods in 2001, and another arrest in 2001 for possession of a Schedule II CDS.

The defendant appears to be a career criminal as he was born in 1971 and has been repeatedly involved in criminal activity since 1991. Considering the defendant’s prolific criminal past, the imposition of the maximum sentence here does not shock the sense of justice. This assignment is without merit.

CONCLUSION

Finding no merit in the assignments of error, we affirm the habitual offender adjudication and the sentence.

AFFIRMED.


text:
    Nancy C. BUCHIGNANI, Plaintiff-Appellee v. LAFAYETTE INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 41,384-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, Shreveport, for Defendant Appellant, Lafayette Ins. Co. and Sci-Port Discovery Center.
    Sockrider, Bolin, Anglin, Batte, by James E. Bolin, Jr., Shreveport, for Plaintiff Appellee, Nancy C. Buchignani.
    The Malone Law Firm, by Dannye W. Malone, Shreveport, for Defendant Appel-lee, City of Shreveport.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

|T Nancy C. Buchignani, the plaintiff, tripped at an expansion joint and fell down six concrete steps. She sued Sci-Port Discovery Center, Lafayette Insurance Company (Sci-Port’s insurer), and the City of Shreveport for damages. The claims against the City of Shreveport were dismissed at trial and are not at issue. As to the claims against Sci-Port and its insurer, the trial court determined that the defect at the expansion joint presented an unreasonable risk of harm and found Sci-Port at fault. The trial court assessed Ms. Bu-chignani with thirty percent comparative fault and awarded total damages of $50,000, reduced by her percentage of fault to $35,000. On appeal, Sci-Port argues that the trial court erred in finding the defect to be an unreasonably dangerous condition and in assessing the plaintiff with only thirty percent comparable fault. Ms. Buchignani answered the appeal, asserting error in the trial court’s assessment of fault to her. Finding no reversible error, we affirm.

FACTS

The accident occurred on November 28, 2003, as Ms. Buchignani, age 66, was departing Sci-Port with her two sons, daughter-in-law, and grandchild. They walked along the outdoor plaza to the steps leading down to the north parking lot. Mrs. Buchignani’s oldest son, Dan, was about ten feet ahead of her with his family, and her younger son, Brian, was about six to ten feet behind her.

The plaza was made of poured concrete slabs with numerous expansion joints. The expansion joints facilitated independent movement of the slabs to reduce the potential for stress cracking. Photographic evidence |¡¡shows an expansion joint at the top of the steps alongside a concrete slab just ahead of the top step and in front of the handrails. The steps have handrails on both sides and a rail in the middle. Ms. Buchignani tripped at the expansion joint before reaching the first step.

Ms. Buchignani, whose left hand was in a cast at the time of the accident, gave the following account of how the accident occurred:

Well, I was walking toward the steps at a reasonable pace, and what I remember is when my right foot landed on the platform before you go down the stairs, and then my left foot tripped. And I think I was in the process of probably getting ready to hold on to the rail on the right-hand side, but I was in the middle. And I guess my plan was to walk off toward where I could reach the rail, but where my foot caught on something. ...

Ms. Buchignani marked her approach to the steps on a photograph. She placed herself just to the right of the middle rail. She testified that when she tripped, she was unable to grab the nearest rail, which was the middle rail, due to the cast on her left hand, so she turned her body to try to grab the middle rail with her right hand. She was unable to reach the rail and fell down the six concrete steps. She sustained injuries to her head and right hip area, and she lost consciousness momentarily.

Brian Buchignani saw his mother’s foot catch on something and then watched her fall down the steps. He rushed to her aid and held her head until she regained consciousness. Dan Buchignani did not see the accident, but he saw his mother lying on the pavement at the bottom of the steps. After having someone call 911, Dan, who worked as a claims adjuster, retrieved a camera from his vehicle and photographed the accident scene. He measured and photographed the difference in elevation at the expansion | ¡¡joint where his mother tripped. The photograph taken by Dan shows a height variance of one and one-half inches at the joint.

Mr. Harold E. Hunt, III, an operations assistant at Sci-Port, was notified after the accident occurred and saw Ms. Buchignani at the bottom of the steps. He testified that there was a slight raise in elevation between the step and the plaza area and that the condition had been there since he began working at Sci-Port in August 2002. He used the steps numerous times and did not see the defect as a problem. He knew of no prior accidents.

Mr. Munkith Al-Najjar, Sci-Port’s CEO who was senior vice-president with responsibility for operations and building maintenance at the time of the accident, also had not noticed the difference in elevation at the joint by the steps prior to the accident. Mr. Al-Najjar testified that he sometimes used the steps. He also used the ramp, which was available as an alternative route to the parking lot at the time of the accident. According to Mr. Al-Najjar, Sci-Port receives around 200,000 visitors each year. Most visitors use the north entrance where the accident occurred, because it is nearer to the parking lot. He did not know of any prior accidents at the steps or of any complaints regarding the condition of the area around the steps. Mr. Al-Najjar testified that he was notified about the accident on the following Monday. He inspected the area and noticed a separation between the plaza and a slab by the steps. He said the separation looked to be “an inch or less.” He then contacted the architect who designed the building and learned that the problem was due to normal settling and that it would 14get worse. The steps were closed to traffic. Signs directing visitors to use the ramp instead of the steps were made by the graphic arts department at Sci-Port and posted at the steps.

An agreement entered into by the City of Shreveport and Sci-Port in 1998 sets forth the duties of each party. Though the City of Shreveport owns the immovable property .and building in which Sci-Port operates, Section 2.2 of the agreement gives Sci-Port the exclusive right to possession and occupancy of the property and “to manage, operate and provide all services for the Center and the Outdoor Exhibits, including but not limited to the maintenance of all buildings, exhibits and facilities (except for major repairs ... to be done by the City of Shreveport).” Mr. Al-Najjar testified that he notified the City of Shreveport about the defect either Tuesday or Wednesday after the accident. A purchase order and an invoice for the City of Shreveport shows that the repairs were made in August 2004, at a cost of $1,790.00.

Following the accident, Ms. Buehignani was diagnosed with cervical strain and blunt trauma to the right hip at the emergency room. She was given pain medication and advised to follow-up with her physician. On December 2, 2003, she saw Dr. Wen Liu, an internal medicine specialist, for complaints of neck pain, chest wall pain, and blurred vision in her right eye. She also sought treatment for blurred vision and headaches from her ophthalmologist, Dr. David D. Bryan, who related her problems to the accident. Dr. Bryan J. Yerkovius, a specialist in neuro-ophthal-mology, also found Ms. Buehignani to have suffered some visual loss with headaches as | swell as significant dry eye syndrome related to the closed heard injury she sustained. In February 2004, she sought treatment from Dr. Henry J. Hollier, an ear, nose and throat specialist, for recurring headaches and left ear pain. Dr. Hollier found she had significant post-traumatic muscle spasms on the left side of her head. The medical evidence further showed that Ms. Buehignani sustained aggravation of a pre-existing TMJ condition from the accident, resulting in pain, headaches, and earaches that was ongoing at the time of trial and would possibly continue up to another year.

Regarding her medical history prior to the accident, Ms. Buehignani testified that she had major surgery in September 2003 and a second surgery on her left hand in October 2003. She had been diagnosed with osteoporosis, arthritis, fibromyalgia, and Meniere’s disease. Though she was prescribed glasses for driving and reading, she was not wearing any when she fell. She was on numerous medications. She also had a history of blackouts as recent as November 3, 2003.

After the completion of testimony, the trial court granted the City of Shreveport’s motion for involuntary dismissal on the grounds that the City had neither actual nor constructive notice of the defect prior to the accident. The City’s dismissal is not at issue.

The trial court ruled in favor of Ms. Buehignani against Sci-Port. The trial court found that the difference in elevation of one and one-half inches at the exact area of the steps created an unreasonable risk of harm that was not easily observable. However, the trial court also attributed thirty percent of the fault to Ms. Buehignani. The trial court noted that she was | ¿‘medically fragile” and that she had a history of profound vision problems with uncorrected vision of 20/400. The trial court further noted that she was not wearing her glasses at the time of the accident and that she failed to take the precautions that someone with her vision problems should have taken. The trial court awarded damages in the amount of $50,000, reduced by her percentage of fault to $35,000. This appeal followed.

DISCUSSION

Sci-Port appeals the trial court’s finding that the height variance at the expansion joint by the slab at the start of the steps presented an unreasonably dangerous condition, particularly to a prudent person exercising ordinary care. Sci-Port contends that the trial court erred in its analysis by not considering the utility of expansion joints. Sci-Port also appeals the trial court’s assessment of only thirty percent of the fault to Ms. Buchignani. However, Ms. Buchignani answered the appeal to assert that the trial court erred in assessing her with fault in the accident and in not finding Sci-Port to be fully at fault. Thus, two issues are presented for review—-whether the height variance at the expansion joint between the plaza and the concrete slab adjacent to the steps created an unreasonable risk of harm, and whether the trial court erred in its assessment of fault.

Unreasonable Risk of Harm

The determination of whether a defect presents an unreasonable risk of harm involves factual findings which differ in each case. Thus, there is no fixed or mechanical rule for determining whether a defect presents an unreasonable risk of harm. McAdams v. Willis Knighton Medical Center, 738,181 (La.App. 2d Cir.12/19/03), 862 So.2d 1186; Reitzell v. Pecanland Mall Associates, Ltd., 37,524 (La.App. 2d Cir.8/20/03), 852 So.2d 1229. The trier of fact determines whether a defect presents an unreasonable risk of harm and that determination is reviewed under the manifest error standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

The unreasonable risk of harm analysis requires the trier of fact to balance the gravity and risk of harm against individual and societal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Reed v. Wal-Mart Stores, Inc., supra; Reitzell, supra. The accident history of the defect is also a pertinent consideration. Boyle v. Board of Supervisors, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080; Reed, supra. The question for the trier of fact is whether the social value and utility outweigh, and thus justify, the potential harm to others. Reed, supra.

The mere occurrence of an accident because of a defect does not establish that the defect is unreasonably dangerous. Rather, the vice or defect must present a dangerous condition that would be reasonably expected to cause injury to a prudent person exercising reasonable care under the circumstances. Entrevia v. Hood, 427 So.2d 1146 (La.1983); Williams v. City of Baton Rouge, 2002-0682 (La.App. 1st Cir.3/28/03), 844 So.2d 360. As noted by the Louisiana Supreme Court:

It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints and curbs. These surfaces are not | ^required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

Reed, supra, 97-1174, p. 2; 708 So.2d at 363.

Sci-Port argues that the difference in elevation at the expansion joint did not create an unreasonable risk of harm. It notes the lack of prior accidents or complaints, the presence of handrails at the steps, the presence of a ramp as an alternative route, and Ms. Buchignani’s medically fragile condition and poor vision as factors weighing against a finding of an unreasonable risk of harm. Also, Sci-Port argues that the trial court ignored the utility of expansion joints in making its determination. Sci-Port cites Reed, supra, and Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1st Cir.9/26/99), 744 So.2d 206, writ denied, 2000-0011 (La.2/18/00), 754 So.2d 974, to support its argument.

In Reed, supra, the plaintiff tripped on an expansion joint between concrete blocks in a parking lot. There was a height difference of one-half inch to one-fourth inch along the joint. The trial court found the height variance to be an unreasonably dangerous condition, and the appellate court affirmed. In reversing the lower courts, the supreme court found the height variance at the joint to be minimal. The defect was in a high traffic area, and there had been no prior reported accidents. The court considered the social utility of paved parking lots and expansion joints, which allow concrete to expand and contract with hot and cold weather so as to avoid cracking or buckling. The court also considered the prohibitively high cost |9to both businesses and the public of repairing all such defects in parking lots and similar surfaces.

In Williams, supra, the plaintiff tripped at an expansion joint while walking along the curb of a roadway from a parking lot to the hospital. Her shoe came off and remained in the joint when she fell. The height variance at the joint was similar to that in Reed, supra. Although the trial court found the defect to be an unreasonably dangerous condition, the appellate court reversed. The appellate court noted that the trial court failed to consider either the lack of prior accidents or the utility of paved parking and expansion joints. The appellate court also found that the expansion joint was clearly visible to the plaintiff as shown by photographs. Considering the obviousness of the expansion joint, there was no reason for the hospital to have warned the plaintiff of the height differential. The court explained:

[W]e do not live in a perfect world. We cannot impose a duty on a landowner to have perfectly flawless premises. Sidewalks and parking lots are not always level, and individuals must assume some responsibility for their own safety. Everyday life presents risks which must be encountered and negotiated.

Williams, supra at 98-1029, p. 9, 744 So.2d at 211.

While both cases cited by Sci-Port are analogous to the present matter in that all involve an incident at an expansion joint, neither is dispositive. As explained, determining whether a defect presents an unreasonable risk of harm is a fact specific inquiry, and great deference is to be given to the trier of fact’s determination. In its reasons for judgment, the trial court found that the defect in elevation involving a variance of one and one-half inches was not apparent or easily seen and that its presence right at the steps | ^presented an unreasonable risk of harm. Even considering the clear utility of the expansion joint and the lack of prior accidents or complaints, we cannot say that the trial court erred in its finding.

The height difference of one and one-half inches at the joint was greater than that in either Reed or Williams. We place great significance on the location of the expansion joint at the start of the steps leading down to the parking lot. The presence of a height variance of up to one and one-half inches at a joint by the steps poses a much greater danger than height variances at joints on flat surfaces. A greater risk of harm exists when a height variance at an expansion joint causes a person to trip and fall down a flight of concrete steps than when a person falls only to the ground on a flat surface. We believe that this enhanced danger outweighs the fact that no prior accidents had been reported.

While we recognize the purpose served by expansion joints as explained in Reed, supra, and shown by evidence in this case, that factor does not outweigh the potential of harm posed by the defect at the top of a series of concrete steps. Moreover, we do not find the cost of repairing the defect to be prohibitive. Evidence shows that the defect was repaired by the City for under $2,000. Elimination of every variance at every expansion joint is not required as suggested in Reed, supra, because the dangerous nature of this defect was not due simply to the variance in height at the joint but was due to the defect’s proximity to concrete steps, which created a particularly dangerous risk of harm.

h Neither the presence of handrails nor the ramp as an alternative route make a difference in our analysis of whether the defect was unreasonably dangerous. The handrails may have been within reach upon stepping on the slab just in front of the steps, but they do not prevent a person from first tripping on the expansion joint and falling down the steps before being able to grasp the railing. Ms. Buchigna-ni’s decision to use the steps rather than the ramp is a factor more appropriately considered in assessing her comparative fault than in determining whether the defect presented an unreasonable risk of harm.

Landowners or custodians of property are not required to maintain “perfectly flawless premises,” but they are required to guard against defects which pose an unreasonable risk of harm. Here, the height variance at the expansion joint where Ms. Buchignani tripped posed an unreasonable risk of harm. We find no manifest error in the trial court’s judgment.

Allocation of Fault

Both Sci-Port and Ms. Buchignani complain that the trial court erred in assessing her with thirty percent comparative fault. Sci-Port argues that Ms. Bu-chignani did not exercise the reasonable care to be expected of someone with her various health problems and should bear the bulk of the fault for the accident. Sci-Port points out that she was not wearing glasses even though she had a history of profound vision problems. Sci-Port also points out that she did not hold the handrail, that she could have used the ramp, and that she could have had her sons assist her down the steps.

|12For her part, Ms. Buchignani contends that she did not need to wear glasses for walking and that she had no duty to see a defect that was not even easily noticeable. She further contends that she was conducting herself in her normal fashion, that she did not need or use glasses for walking, and that she was not dizzy or unstable at the time of the accident. She asserts that she should not be penalized for choosing the steps instead of the ramp.

In assessing the comparative fault of parties, various factors may influence the degree of fault assigned. These include whether the conduct resulted from inadvertence or involved an awareness of danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the superior or inferior capacity of the parties, and any extenuating circumstances which might require one to proceed in haste and without proper thought. Watson v. State Farm, Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985).

The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong or manifestly erroneous. Hughes v. Scottsdale Ins. Co., 35,043 (La.App. 2d Cir.8/22/01), 793 So.2d 537.

In finding comparative fault on the part of Ms. Buchignani, the trial court described her as medically fragile with a history of profound vision problems. The record supports this description. The court concluded that Ms. Buchignani must bear some responsibility for not wearing glasses, for choosing to take the steps, and for not exercising caution as someone with her vision problems should. We agree. We also note that Ms. Buchignani |1ghad undergone surgery weeks prior to the accident and was wearing a cast on her left hand. She approached the steps where her unusable left hand was closest to the handrail, rather than taking a route which would enable her to grasp the rail with her right hand as soon as the rail was within reach. While there was no reason for Ms. Buchignani to be aware of the specific defect which caused the accident, she should have considered the general dangers posed by the irregularities inherent in concrete walkways and steps, such as joints, cracks, and other variations, in choosing her, route and exercising caution in approaching the steps.

The record supports allocation of some fault to Ms. Buchignani, but it does not support allocation of the majority of the fault to her as urged by Sci-Port. Sci-Port had the duty to maintain its facilities. Harold E. Hunt, III, Sci-Port’s operations assistant, had been aware of the defect since 2002. However, he did not notify anyone. Mr. Al-Najjar used the steps at Sci-Port but had never even noticed the defect. In the absence of such inadvertence, Sci-Port could have easily had the defect repaired by notifying the City of Shreveport as was done after the accident. Also, Sci-Port could have made the difference in elevation more visible by highlighting the area with paint, by posting warnings advising patrons to use the ramp or exercise caution in taking the steps, or by closing the steps until the repair was made. Clearly, Sci-Port had the superior capacity to find and correct the defect prior to any accident happening.

Both parties were at fault in the accident. While we may have allocated fault differently as trier of fact, we cannot say that the trial court | Ua,bused its discretion in allocating thirty percent of the fault to Ms. Buchignani.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment. Seventy percent of the appeal costs are assessed to Sci-Port and its insurer, and thirty percent are assessed to Ms. Buchignani.

AFFIRMED.


author: WILLIAMS, J.

text:
    John C. COOKSEY, Plaintiff-Appellant v. Ron W. STEWART, Defendant-Appellee.
    No. 41,336-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Donald L. Kneipp, Monroe, for Appellant.
    Todd G. Crawford, Lafayette, for Appel-lee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

| plaintiff, former Congressman John C. Cooksey, filed a defamation action against defendant, Ron W. Stewart, his former personal accountant and former treasurer of the Cooksey for Congress Committee and the Cooksey for Senate Committee. The district court sustained defendant’s exception of no cause of action, and plaintiff appealed. For the reasons that follow, we affirm the district court’s ruling.

FACTS

In the defamation action, plaintiff alleged that on March 11, 2004, he terminated defendant’s services as his accountant. The following day, defendant sent letters to the Federal Election Commission (“the Commission”) and the Office of Public Records in which he notified both entities that he was resigning as treasurer of plaintiffs campaign committees due to “inappropriate conduct by the candidate, John C. Cooksey.”

Plaintiff alleged that the “inappropriate conduct” statement was “false, misleading and malicious” and was made “solely because plaintiff had terminated defendant’s services as his accountant.” Plaintiff further alleged that defendant’s statement caused “serious damage to his personal and business reputation.”

In response, defendant filed an exception of no cause of action, asserting that plaintiffs claim did not satisfy the elements required for a defamation action. The district court sustained the exception of no cause of action, concluding that defendant’s statement to the Commission was subject to an absolute privilege.

| .DISCUSSION

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690 (La.7/5/94), 640 So.2d 237; Short v. Short, 40,136 (La.App. 2d Cir.9/23/05), 912 So.2d 82, writ denied, 2005-2320 (La.3/10/06), 925 So.2d 519. Generally, no evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Short, supra; Rogers v. Ash Grove Cement Company, 34,934 (La.App. 2d Cir.11/2/01), 799 So.2d 841, writ denied, 2001-3187 (La.2/8/02), 808 So.2d 351.

An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes alléga-tions that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. City of New Orleans, supra; Rogers, supra.

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should conduct a de novo review because the | .exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207; Short, supra.

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129; Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 715. A successful claimant in a defamation action must establish the following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice; and (5) injury. Rogers, supra. If even one of the required elements of the tort is lacking, the cause of action fails. Costello, supra; Douglas v. Thomas, 31,470 (La.App. 2 Cir. 2/24/99), 728 So.2d 560, writ denied, 99-0835 (La.5/14/99), 741 So.2d 661; Kosmitis v. Bailey, 28,585 (La.App. 2d Cir.12/20/96), 685 So.2d 1177.

Even when a plaintiff makes a pri-ma facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either (1) the statement was true, or (2) the statement was protected by a privilege, absolute or qualified. Costello, supra; Doe v. Grant, 2001-0175 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, writ denied, 2003-0604 (La.5/2/03), 842 So.2d 1102.

In this case, plaintiff contends the district court erred in determining that defendant’s words were subject to an absolute privilege. Conversely, defendant contends the ruling was correct, pursuant to Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969), rev’d on other grounds by Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975).

l4In Bienvenu, supra, the defendant opposed the plaintiffs appointment as Director of Public Welfare for St. Martin Parish. Prior to confirmation of the appointment, the defendant informed an investigator for the state Civil Service Commission that the plaintiff had a “poor reputation” in the community. The plaintiff filed a defamation action. The trial court concluded that the statements made to the Civil Service investigator were absolutely privileged, and the appellate court affirmed. On review, the supreme court reversed the ruling, stating:

It is true that communications made in judicial or quasi-judicial proceedings carry an absolute privilege. This protection is offered in such proceedings so that the witness, who is bound by his oath to tell the truth, may speak freely without fear of civil suit for damages for defamation. The privilege is extended to an administrative agency only when that agency is exercising judicial or quasi-judicial functions. Investigatory work in the field, such as was performed by [the Civil Service investigator] is not the exercise of an adjudicative or quasi-adjudicative function, for those who are questioned are not under oath or subject to sanctions for making a false statement, and such investigations are not encompassed within quasi-judicial hearings or proceedings. Communications made during such an investigation are not accorded an absolute but only a qualified privilege, and the communication from [the defendant] to [the investigator] fall into this category.

Id., 223 So.2d at 144 (Emphasis added).

More recently, in Connolly v. Stone, 2001-929 (La.App. 5 Cir. 1/15/02), 807 So.2d 979, during an investigation of the plaintiffs conduct as a Jefferson Parish poll commissioner, the Jefferson Parish Board of Election Supervisors (“the board”) solicited comments from persons who had “voiced complaints of misconduct” against the plaintiff during a certain | selection. In response, the defendant sent a letter to the board, detailing his observations of the plaintiff during the election at issue. Thereafter, a hearing into the allegations was conducted, and the defendant’s letter was introduced as evidence. The plaintiff filed a lawsuit for defamation against the defendant. The trial court ruled that the defendant’s letter and its contents were absolutely privileged, and the court of appeal affirmed, stating:

[T]he Jefferson Parish Board of Election Supervisors investigated [the plaintiff] to determine his qualifications as a polling commissioner. We find, therefore, that the [board], as they conducted their inquiry of [the plaintiff] to determine the veracity of the allegations against him, exercised a quasi-judicial function.

Id. at 982.

In this case, the district court concluded that the powers of the Commission are “quasi-judicial in nature” because the Commission is “an independent agency under the Executive Branch of the federal government” and has the power “to administer oaths, conduct investigations and hearings, and to render advisory opinions.” The district court further noted that false statements to the Commission are subject to criminal penalty under federal law.

We find that the district court was correct in concluding that the Commission has the authority to exercise quasi-judicial functions. See, 2 U.S.C. § 437. However, in this case, the Commission was not in the process of exercising its quasi-judicial authority at the time the remark was made. Unlike in Bienvenu and Connolly, at the time the letters were sent to the Commission, no investigation was underway with regard to plaintiffs |Rconduct, and the Commission had not requested any information from defendant. As the supreme court concluded in Bienvenu, an absolute privilege only applies when an administrative agency is actually exercising judicial or quasi-judicial functions. Therefore, we conclude that the district court erred in determining that defendant’s statement to the Commission was subject to an absolute privilege.

Nevertheless, our de novo review of the record supports the district court’s ruling sustaining the exception of no cause of action. The threshold issue in a defamation action is whether the words complained of are defamatory, i.e., capable of a defamatory meaning. Costello, supra. Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Id.; Fitzgerald, supra. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Id.

The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Costello, supra; Sassone v. Elder, 626 So.2d 345 (La.1993). The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Id.

In this case, plaintiffs petition contained the following allegation:

M-
On March 12, 2004, defendant sent a letter to the Federal Election Commission and the Office of Public Records advising them that he was resigning as Treasurer of the Cooksey for Congress Committee and Treasurer of the Cook-sey for Senate Committee and cited as the reason “inappropriate conduct by the candidate, John C. Cooksey....”
* * *

The First Amendment freedoms afford, at the very least, a defense against defamation actions for expressions of opinion. Thompson v. Lee, 38,930 (La.App. 2d Cir.10/27/04), 888 So.2d 300; Ray v. City of Bossier City, 37,708 (La.App. 2d Cir.10/24/03), 859 So.2d 264, writs denied, 2003-3214, 2003-3254 (La.2/13/01), 867 So.2d 697. A pure statement of opinion, which is based totally on the speaker’s subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation. Bussie v. Lowenthal, 535 So.2d 378 (La.1988); Thompson, supra; Ray, supra. That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false. Id. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the speaker did not intend to assert another objective fact but only his personal comment |son the facts which he had stated. Id.

“[T]he crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” Mashburn v. Collin, 355 So.2d 879, 885 (La.1977).

In the instant case, we find that the statement written by defendant was not defamatory under our law. Defendant did not accuse plaintiff of any criminal, unprofessional, immoral or unethical conduct. Defendant’s comments merely indicated that he believed that plaintiffs conduct was “inappropriate” in some unspecified regard. The statement was based upon defendant’s subjective view, and no underlying facts were either stated or implied. Therefore, we find that the statement regarding “inappropriate conduct” was an expression of defendant’s opinion, and as such, the statement can be neither true nor false. For these reasons, we conclude that the defendant’s statement is not actionable in defamation, and we affirm the trial court’s ruling granting defendant’s exception of no cause of action.

CONCLUSION

For the reasons stated above, the judgment of the district court sustaining the exception of no cause of action is hereby affirmed. Costs of this appeal are assessed to the appellant, John Cooksey.

AFFIRMED.

      . Attached to plaintiff’s petition was defendant's letter to the Commission, in which he stated:
      This is to advise you of my resignation as Treasurer of the Cooksey for Congress Committee effective 4:30 pm central standard time, Thursday, March 11, 2004.
      The reason for the resignation is inappropriate conduct by the candidate, John C. Cooksey.