author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Benjamin WRIGHT, Appellant.
    No. 40,945-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.
    Rehearing Denied June 23, 2006.

      Culpepper & Carroll by Bobby L. Cul-pepper, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, Charles A. Smith, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, Benjamin Wright (“Wright”), appeals the judgment of the 26th Judicial District Court, Parish of Webster, State of Louisiana. Wright was convicted of three counts of video voyeurism. Wright was sentenced to serve five years’ imprisonment at hard labor on count one, ten years on count two and ten years on count three without benefits, with the sentences to be served concurrently. We affirm the convictions but vacate the sentences and remand for resentencing.

FACTS

On March 18, 2004, the defendant, Benjamin Wright, was arrested pursuant to an arrest warrant for an unrelated charge. When the police stopped Wright’s vehicle to make the arrest, they found a box of 17 videotapes in the trunk. Pursuant to a search warrant, closer inspection of the videotapes revealed many were pornographic, and some were of female customers changing clothes in the dressing room at Wright’s clothing store. Also seized was a videotape óf a television show newscast dealing with a video voyeurism case and the fact that at that time Louisiana did not have a law prohibiting video voyeurism. Louisiana enacted a video voyeurism law in 1999.

Wright was charged by amended bill of information with two counts of video voyeurism involving a child under the age of 17, a violation of La. R.S. 14:283(B)(4), and one count of video voyeurism, a violation of La. R.S. 14:283(B)(3). At Wright’s trial, police officers testified regarding the circumstances surrounding the defendant’s arrest and the subsequent seizure of the videotapes and searches.

At trial, victims S.H. and E.C. testified that they both tried on clothes, including bathing suits, in the dressing room while Wright was at the store ^counter. When Wright later left the store for a short time, the girls discovered a monitor hidden behind the counter. They flipped through the channels and saw that one view was of the inside of the dressing room. Upon close inspection of the dressing room, they slid a mirror to the side and discovered a hole in the wall with a camera inside. S.H. and E.C. identified themselves in a dressing room videotape, one of the many discovered in Wright’s car, and stated that they were unaware that they were being videotaped by Wright and denied ever giving Wright permission to videotape them. S.H. and E.C. then made a complaint to the police. E.C. was 12 years old at the time of the offense.

Another victim, C.G., who was 15 years old at the time of trial, testified that she shopped in Wright’s store in 2003. She identified herself in a dressing room videotape and stated that she was unaware that she was being videotaped by Wright and denied ever giving Wright permission to videotape her. The dressing room videotapes of the victims and the television show newscast videotape were shown to the jury.

Wright testified on his own behalf. He admitted that he was arrested in August of 1996 for having cameras in the dressing room of another store, his T-shirt shop, and for selling pornographic videotapes. He explained that the charges were dismissed in spring of 1999 and denied having any cameras in any dressing room since 1996. Wright acknowledged that the television show newscast videotape was his, but that it was in his store. He denied ever seeing the box of 17 videotapes, and Wright explained that the video cameras were to prevent shoplifting.

Wright was convicted, as charged, of three counts of video voyeurism. He was sentenced to serve five years’ imprisonment at hard labor on count one, ten Lyears on count two, and ten years on count three without benefits, to be served concurrently. His motion to reconsider sentence was denied, and this appeal ensued.

DISCUSSION

Since 1999, the Louisiana legislature has been a leader in addressing the relatively new offense known as video voyeurism and providing a legal remedy for victims of this unacceptable invasion of privacy. Although there is no physical contact, video voyeurism is nonetheless a violation of the same personal nature. Ultimately this offense is a betrayal of our societal trust and must be dealt with accordingly. Several other states have followed in our legislation’s footsteps, and the federal government has, in turn, mirrored the Louisiana statute to make video voyeurism a federal crime. Louisiana Revised Statutes 14:283 states, in pertinent part:

A. Video voyeurism is:
(1) The use of any camera, videotape, photo-optical, photo-electric, or any other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping and it is for a lewd or lascivious purpose; or
(2) The transfer of an image obtained by activity described in Paragraph (1) of this Subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service.
B.
* * *
(3) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any vaginal or anal sexual intercourse, actual or simulated sexual intercourse, masturbation, any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.
14(4) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of the offender shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.

Wright raises several assignments of error which this court will now address.

Sufficiency of the Evidence

When issues are raised on appeal both, as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. Wright properly raised sufficiency of evidence by a motion for post-verdict judgment of acquittal. State v. Howard, 31,807 (La.App. 2d Cir.08/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.05/05/00), 760 So.2d 1190.

In order to convict Wright of the two counts of Video Voyeurism of a Juvenile, La. R.S. 14:283(B)(4), the state is required to prove beyond a reasonable doubt that defendant (1) used an image recording device for the purpose of observing, viewing, photographing, filming, or videotaping another person; (2) that the person did not consent to being observed, photographed, or videotaped; (3) that the conduct was done for a lewd or lascivious purpose; and (4) that the child being observed, photographed, or videotaped was under the age of seventeen years and for the intent to arouse or gratify the offense’s sexual desires. For purposes of La. R.S. 14:283(B)(3), in this case, the state must show the first three elements mentioned above, and also that the images are of any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, Isdeft of the buttocks, vulva, or genitals. La. R.S. 14:283(B); See 17 Louisiana Civil Law Treatise § 10.283(1) (2d ed.2003).

A review of the evidence presented at trial reveals that it was sufficient to support Wright’s convictions of all three counts of video voyeurism. In addition to Wright’s admission of his previous criminal history, the evidence included the testimony of the victims and videotapes of various females in his dressing room. After viewing the evidence in the light most favorable to the prosecution, including witnesses’ testimony and the exhibits, any rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Furthermore, the circumstantial evidence clearly excludes every reasonable hypothesis of innocence. La. R.S. 15:438. These arguments are without merit.

Motion to Suppress

Wright filed a motion to suppress the evidence seized in connection with the search of his vehicle and the subsequent searches, made pursuant to search warrants, of his residence, place of business and computer. At the hearing on the motion to suppress, Lieutenant Scott Tucker of the Minden Police Department testified that Wright was stopped in his vehicle for the execution of an arrest warrant for public intimidation of a child protection investigator. A routine inventory search of Wright’s vehicle revealed videotapes in the trunk, some of which were clearly labeled as pornographic-type tapes. Lieutenant Tucker testified that Wright had been previously arrested in August 1996 for obscenity for videotaping in the dressing rooms at Wright’s place of business. At that time, video voyeurism was not illegal.

| fiA search warrant was issued to seize and view the tapes for possible illegal sexual acts or video pictures of females taken without their permission based on the evidence found in the trunk, along with an affidavit in support. The affidavit in support of the search warrant set forth the facts regarding Wright’s previous videotaping of the dressing rooms, the pending investigation regarding Wright’s alleged sexual abuse of his girlfriend’s four-year-old son, and the circumstances of Wright’s instant arrest from the routine inventory search. Several videotapes indeed contained footage of women and young girls changing clothes and in various stages of undress, including total nudity.

The videotapes served the basis for a second search warrant of Wright’s place of business, for evidence of electronic devices for photographing unknown customers from the dressing room or restrooms of the business without their consent, for tapes of past customers, and for any electronic devices used for editing, viewing and transmitting such images of unknown customers. A cursory search of a computer revealed three different audio-video files containing child pornography. Electronic storage media was found around the computer and in the office area of the store. A search of the dressing room at the store revealed that the cameras had been present but had been removed.

A third search warrant was issued to search Wright’s residence for any and all computers, electronic media related to child pornography and any peripheral equipment of any kind, any videotapes, magazines or publications pertaining to child pornography, and any audio video equipment used in filming, copying, editing, and transmitting child pornography or other illegal images. A final search warrant was issued for a forensic search of the computer, monitor, media and electronic storage devices located at Wright’s business for child pornography.

|7The trial court noted that the supplementation of each affidavit as more information was gathered did establish probable cause on each warrant. In addition, three different judges ultimately issued and signed the search warrants in connection with this matter. After reviewing the record, we find that every search was substantiated with sufficient probable cause. This argument is without merit.

Venue

Wright filed a pretrial motion for change of venue alleging that the widespread publicity prejudiced the community against him. A hearing was held, and the trial court denied the motion. Wright re-urged his motion before and following jury selection. The trial court determined that a fair and impartial jury had been selected and denied his motion for a change of venue.

Changes of venue are governed by La. C. Cr. P. art. 622, which provides:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change of venue, the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

In State v. Bell, 315 So.2d 307 (La.1975), the supreme court enumerated several factors to consider when determining whether to change venue. They include, (1) the nature of pre-trial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors Istoward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. Id. at 311.

In State v. Frank, 1999-0553 (La.01/17/01), 803 So.2d 1, 16, the supreme court explained that, “there is not a bright line test for determining the degree of prejudice existing in the collective mind of the community. There is no established minimum level of exposure to negative publicity or percentage of challenged jurors that illustrates a corruptive atmosphere mandating venue transfer.” The Frank court suggested a comparison to other cases as a method of analyzing the questions of possible community prejudice. However, “the defendant must prove more than mere public knowledge or familiarity with the facts of the case to be entitled to have his trial moved to another parish; rather, the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial.” Id. at 14.

In the instant case, the trial court noted, of the 44 prospective jurors, only 15 indicated that they had neither read nor heard anything about the case. Furthermore, although 11 challenges for cause were granted, not all were granted on the issue of new media coverage, and only 6 had formed an opinion regarding guilt. After a review of the record and comparison of the facts surrounding the questioning of the jury venire in this case with examples set forth in State v. Clark, 2002-1463 (La.06/27/03), 851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004), Wright failed to meet his burden of proving that a fair trial was impossible. The trial court’s decision to deny the motion to change venue was not an abuse of discretion and was without error. These arguments are without merit.

| cflecusal of the District Attorney’s Office

Wright filed and the trial court denied a motion to recuse the district attorney’s office alleging that the District Attorney had given untrue and inadmissible information to the press. Louisiana Code of Criminal Procedure art. 680, regarding grounds for recusation of a district attorney, provides in pertinent part that, “A district attorney shall be recused when he: (1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice.” In State v. Anderson, 29,282 (La.App. 2d Cir.06/18/97), 697 So.2d 651, this court held that the defendant’s motion to recuse the district attorney, which primarily contained conclusory allegations, failed to show by a preponderance of the evidence any ground for relief enumerated by La. C. Cr. P. art. 680.

At the hearing on the motion to recuse, the defense questioned J. Schuyler Marvin, the Webster Parish District Attorney, about his contact with a local reporter, Kristi Richie. Several articles Richie authored quoted Marvin several times including that he “wanted to try this case.” Marvin did not know how Richie received her information for the articles. He denied having any personal interest in this case which would conflict with the fair and impartial administration of justices and he further denied having a relationship to any victim or to the defendant. Although Richie contradicted portions of Marvin’s testimony with regard to her source of information for several of her articles, Wright fails to show by a preponderance of the evidence any ground for relief enumerated by La. C. Cr. P. art. 680. This argument is without merit.

hnPost-trial Motions

Wright assigns as error that the trial court erred in denying his post trial motions.

Motion for New Trial

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for an error of law. La. C. Cr. P. art. 858; State v. Horne, 28,327 (La.App. 2d Cir.08/21/96), 679 So.2d 953, writ denied, 1996-2345 (La.02/21/97), 688 So.2d 521.

Wright filed a motion for new trial which listed previous objections made during trial and rulings by the trial court, all of which were individually listed as assignments of error in this appeal (i.e. sufficiency of the evidence, concerns with the amended bill of information, denial of challenges for cause, admissibility of the state’s exhibits, etc.). In fact, Wright’s brief refers this court to review the arguments presented with the specific assignments of error.

Nothing presented by Wright in his Motion for New Trial constituted grounds showing injustice done to him, nor did it amount to reversible error. Here, after analyzing and discussing in detail the grounds for the motion for new trial raised as assignments of error with this opinion, we find that the record supported the trial court’s ruling and the evidence was sufficient to sustain the conviction. It cannot be said that the trial court abused its discretion in denying Wright’s motion for new trial.

Motion In Arrest of Judgment

The defendant filed a motion in arrest of judgment alleging that: (1) the trial court erred by allowing an amendment to the bill of information after the jury had been selected; and, (2) the statute Wright was convicted under is .unconstitutional.

In As to the first issue, Wright was originally charged by bill of information filed May 7, 2004, with four counts of violating La. R.S. 14:283(B)(4). The state filed an amended bill of information on October 12, 2004, charging the defendant with two counts of video voyeurism involving a child under age 17, a violation of La. R.S. 14:283(A)(4), and one count of video voyeurism, a violation of La. R.S. 14:283(A)(3). After the jury was selected but before opening remarks at trial, the state moved to amend the amended bill of information, changing the subsection on the amended bill from “A” to “B”; La. R.S. 14:283(Z? )(4) and La. R.S. 14:283(15 )(3). (Emphasis Added.) The defense objected to the amendment, complaining that the bill was amended after the jury was selected and it had already prepared for trial based on the previous bill of information.

Louisiana C. Cr. P. art. 487 provides in pertinent part:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

The purpose of requiring the state to file an amendment to the indictment before trial is to provide the defendant with adequate notice of the crime for which he is charged so that he can properly prepare his defense. State v. Offord, 1995-290 (La.App. 3d Cir.10/04/95), 663 So.2d 296; State v. Young, 615 So.2d 948 (La.App. 1st Cir. 1993), writ denied, 620 So.2d 873 (La.1993). However, miscitations to relevant criminal statutes in the bill of information have been held |1⅞⅛) be harmless error. State v. Belino, 96-0789 (La.App. 1st Cir.12/20/96), 686 So.2d 101, writ denied, 1998-2992 (La.06/25/99), 745 So.2d 625.

The trial court noted that the amendment of the indictment was to correct a typographical error in the way the subsections were identified, but that the wording of the bill of information remained the same. It found that the amendment did not make a change of substance, but was to correct a formal defect, which can be corrected by the court at any time, citing La. C. Cr. P. art. 487(A). Thereafter, the defense was given time to make the necessary corrections to its opening statement.

Here, the amendment was clearly made to cure miscitations of subsections to the charges of video voyeurism, which, if error, was harmless. Furthermore, Wright suffered no prejudice when the indictment against him was amended such that he cannot claim that he lacked notice of the crime with which he was charged. Also, Wright was obviously aware that he was to be tried for video voyeurism. Thus, the defendant suffered no prejudice from the amended indictment, and the indictment does not suffer from a defect of substance. This argument lacks merit.

As to determining the constitutionality of a statute, we must follow the basic rules of statutory construction. State v. Shumaker, 40,275 (La.App. 2d Cir.10/28/05), 914 So.2d 1156. A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. State v. Cunningham, 2004-2200 (La.06/13/05), 903 So.2d 1110. A statute should be upheld whenever possible. State v. Shumaker, supra.

To prove that the law is unconstitutional, the defendant is required to show that an ordinary person of reasonable intelligence could not understand and follow the law. State v. Hair, 2000-2694 (La.05/15/01), 784 So.2d 1269. Broad 1 ^language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. Id. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3.

Although there is no reported constitutional challenge to Louisiana’s video voyeurism law, there is sufficient jurisprudence holding that the terms “lewd and lascivious” need not be defined by the statute for that statute to survive a constitutional challenge for vagueness. See State v. Interiano, 2003-1760 (La.02/13/04), 868 So.2d 9. A plain reading of the activity proscribed by the video voyeurism statute is sufficiently narrow and gives adequate notice to those who would engage in such activities that the conduct is proscribed. Furthermore, the statute is not overbroad because the challenged statute affects conduct rather than speech. Also, it is clear that the legislature intended to make criminal all acts of a certain kind. See State v. Shumaker; supra; State v. Neal, 500 So.2d 374 (La.1987). A review of the record reveals that the trial court did not err in determining that the defense did not meet its burden of clearly establishing unconstitutionality. These arguments are merit-less.

Determination of Wright’s Competency to Stand Trial

Because Wright failed to brief or argue his assignment of error regarding his competency to stand trial, this issue is considered abandoned on appeal. URCA Rule 2-12.4; State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writs denied, 558 So.2d 1123 (La.1990).

J¿¿Jury

Wright asserts several assignments of error surrounding the jury process which we will discuss next.

Improper Verdict

Wright asserts that the jury failed to specify a particular portion of the female body, and merely quoted from the statute, which resulted in an improper verdict for count three. The applicable statute La. C. Cr. P. art. 810 provides in pertinent part:

When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. There shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention.

As per La. C. Cr. P. art. 810, there is no formal requirement as to the language of the verdict. The record reflects that the verdict clearly conveyed the intention of the jury to find the defendant guilty of the charged offense. This argument is merit-less.

Challenges of Prospective Jurors

Wright challenged for cause, and the trial court denied, several prospective jurors during the voir dire proceeding. La. C. Cr. P/ art. 797 provides, in pertinent part, that:

[T]he State or the defendant may challenge a juror for cause on the ground that:
* * *

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

⅜ ⅜ #

(4) The juror will not accept the law as given to him by the court;

11fiLouisiana Constitution article I, § 17 guarantees to a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of peremptory challenges granted a defendant in a case other than a capital case is fixed by law at 6. Louisiana C. Cr. P. art. 799. The trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the entire' voir dire reveals an abuse of discretion. Therefore, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate (1) the erroneous denial of a challenge for cause; and, (2) the use of all his peremptory challenges. State v. Juniors, 2003-2425 (La.06/29/05), 915 So.2d 291; State v. Cross, 1993-1189 (La.06/30/95), 658 So.2d 683; State v. Robertson, 92-2660 (La.01/14/94), 630 So.2d 1278.

In the instant case, Wright exhausted his peremptory challenges; therefore, we need only determine whether the trial court erred in denying defendant’s challenges for cause. After an extensive review of the record, we find that the defense did not demonstrate an erroneous denial of a challenge for cause. The record reflects that the responses of the prospective jurors in question as a whole do not reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. A review of the entire voir dire does not reveal any abuse of discretion by the trial court in ruling on these challenges for cause. These arguments are meritless.

Jury Instructions

Wright requested two jury instructions particularizing the elements of the video voyeurism statute. The state argued that the proposed instructions were not wholly correct. The trial court refused to give the requested instructions to the Injury because the definition of video voyeurism and the essential elements of the statute were contained in the court’s general charge. The trial court noted that the general charge repeatedly defined video voyeurism and explained' criminal intent. Wright’s objection was noted for the record.

Louisiana C. Cr. P. art. 807, regarding special written charges, provides in pertinent part:

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Failure to read a special charge constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused or a violation of a constitutional or statutory right. State v. Edwards, 25,963 (La.App. 2d Cir.05/04/94), 637 So.2d 600; see also State v. Fradieu, 2002-0077 (La.App. 4th Cir.06/25/03), 851 So.2d 345, writ denied, 2003-2079 (La.01/16/04), 864 So.2d 627.

Here, the trial court’s failure to read the special charges did not constitute reversible error as there was no evidence of jury confusion. Furthermore, the record reveals that there was no miscarriage of justice, prejudice to the substantial rights of the defendant or a violation of a constitutional or statutory right. The record supports the conclusion that the trial court did not err in denying Wright’s request for the two special charges.

Wright also made an objection regarding the responsive verdicts to count three. The court gave five responsive verdicts to count three:

1. Guilty of video voyeurism of any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals;
|172. Guilty of attempted video voyeurism of any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals;
3. Guilty of video voyeurism;
4. Guilty of attempted video voyeurism; or
5. Not guilty.

Wright requested that the responsive verdicts be the following: guilty of video voyeurism, guilty of attempted video voyeurism, or not guilty complaining that the statute is confusing. In other words, Wright believed that the responsive verdicts gave the jury more options for a finding of guilty than not guilty. The trial court denied the request, and noted that because count three required a finding of additional special conduct, it was more accurate to give the five responsive verdicts. The defense’s objection was noted for the record.

Louisiana C. Cr. P. art. 814 provides responsive verdicts for specified criminal offenses. However since video voyeurism is not one of the specified criminal offenses, La. C. Cr. P. art. 915 instructs that for all cases not provided for in Article 814, the following verdicts are responsive:

(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3)Not Guilty.

Considering the elements of the crime, including the special conduct charged under count three, and the provisions of La. C. Cr. P. art. 815, the trial court did not err in setting forth these five responsive verdicts. See 17 Louisiana Civil Law Treatise § 10.283(1) (2d ed.2003). This argument is meritless.

h ¡¡Motions for Mistrial

Wright argues that the trial court erred in failing to grant mistrials in two instances (1) because of comments made by prospective juror T.J. Williams; and, (2) after exhibit S-3 was shown to the jury. Louisiana C. Cr. P. art. 775 provides that a mistrial shall be ordered when prejudicial conduct in the courtroom makes it impossible for the defendant to obtain a fair trial. Because a mistrial is a drastic remedy, it should be granted only when the error resulted in substantial prejudice sufficient to deprive the defendant of any reasonable expectation of a fair trial. The decision to grant or deny a mistrial for prejudicial conduct rests within the trial court’s discretion and will not be disturbed absent an abuse of discretion. See State v. McGee, 39,336 (La.App. 2d Cir.03/04/05), 895 So.2d 780; State v. Turner, 37,162 (La.App.2d Cir.10/29/03), 859 So.2d 911, writ denied, 2003-3400 (La.03/26/04), 871 So.2d 347.

As to the comments made by Williams during the voir dire, the following colloquy transpired:

Mr. Smith: Do you know anything about this case?
Williams: Just what I read in the paper.
Mr. Smith: Okay. Based — having read something in the paper or maybe even heard it on the radio or seen it on television, has it caused you to reach an opinion as to guilt or innocence of Mr. Wright?
Williams: I’m not sure. I guess I need to listen to it in court.
Mr. Smith: Okay.
Williams: What I read in the paper, if what I read is true, you know,—
Mr. Smith: I understand.
Williams: He looks pretty guilty to me. I assume that if what I read in the paper is true.
(LAUGHTER IN THE COURTROOM)

At a sidebar conference, the defense made a motion for mistrial based on Williams’ statement. It argued that Williams said exactly what he was trying to keep the other prospective jurors who hadn’t read the paper from hearing. The | ^motion for mistrial was denied by the trial court. It noted that Williams did not go into any specific facts. The defense did not request an admonition from the court. Williams was later challenged for cause by the defense and did not serve on the jury.

In the second instance, after the admission into evidence of Exhibit S-3, the videotape of the television show newscast regarding video voyeurism, the video was viewed by the jury over the defense’s objection. The defense’s motion for mistrial based on the alleged highly prejudicial content of the video was denied by the trial court.

A review of the record regarding both motions for mistrial reveals that the alleged prejudicial conduct did not make it impossible for Wright to obtain a fair trial. That is, the alleged errors did not result in substantial prejudice sufficient to deprive Wright of any reasonable expectation of a fair trial. The trial court’s decision to deny the motions for mistrial for prejudicial conduct was clearly not an abuse of discretion.

Testimony at Trial

Wright complains of the testimony presented at trial by two witnesses. In addition, Wright complains of his inability to testify as to a limited issue.

Lt. Seott Tucker

During the testimony of Lt. Scott Tucker, Wright objected to his specific testimony regarding the items removed from Wright’s vehicle after the vehicle stop. Lieutenant Tucker was present during the stop and assisted Detective Weaver in seizing the box containing 17 videotapes from Wright’s vehicle during the inventory search of the vehicle. He identified the box of videotapes Det. Weaver turned over to him as the same box he saw in Wright’s trunk. Lieutenant | j>nTucker further identified his signature on the evidence tag indicating when he received the evidence from Det. Weaver after reviewing the tapes in Det. Weaver’s office.

Lieutenant Tucker testified that Exhibits S-1A and S-2A were tapes of excerpts he made from the original videotape. The state subsequently introduced Exhibits S-1 (videotape); S-1A (excerpt from S-l); S-l-B (excerpt from S-l); and S-2 in globo (box of 17 videotapes). The trial court overruled Wright’s objection regarding chain of custody and foundation and the exhibits were subsequently admitted into evidence. Wright notes that Lt. Tucker was not the officer who collected the evidence, and argues that it was hearsay for Lt. Tucker to testify regarding what Det. Weaver did during the collection of the evidence in question.

Louisiana C.E. art. 602 provides:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This Article is subject to the provisions of Article 703, relating to opinion testimony by expert witnesses.

Personal knowledge is information acquired through the use of a witness’ senses. Comment, La. C.E. art. 601; State v. Wiley, 614 So.2d 862 (La.App. 2d Cir.1993). The testimony of a police officer may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. State v. Maise, 2000-1158 (La.01/15/02), 805 So.2d 1141; State v. Monk, 315 So.2d 727, 740 (La.1975). A review of the record reveals that the trial court did not err in allowing Lt. Tucker to testify regarding customary police procedure for the custody of evidence, which is clearly within the realm of a police officer’s personal knowledge. Also, under La. C.E. art. 602, it was not error | aito allow Lt. Tucker to testify to facts within his personal knowledge regarding his contact with the evidence in question during its initial seizure and afterward. This argument is without merit.

Testimony of C.G.

Over Wright’s objection, C.G. was allowed to testify at trial regarding her lack of consent. Wright argued that count one of the bill of information dealt with charges involving the juvenile, C.G., but did not allege that this incident occurred without her consent. In so ruling, the trial court noted that Wright had been put on sufficient notice by the filing of the bill that he was accused of video voyeurism and of the particular statute. The trial court observed lack of consent of the victim is implicit in that statute.

The defendant has a constitutional right to be advised, in a criminal prosecution, of the nature and cause of the accusations against him. Louisiana Const.1974, art. I, § 13. La. C. Cr. P. art. 464 provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

The omission of essential facts from an indictment, however, is not necessarily prejudicial error because such facts can be given through responses in a bill of particulars. State v. Duncan, 94 1563 (La.App. 1st Cir.12/15/95), 667 So.2d 1141.

A review of this record reveals that Wright was not prejudiced by any alleged deficiency in the bill. The bill correctly cites the statutory provision for video voyeurism and put Wright on notice of the crime charge, including the | ¡^element of lack of consent. At trial, the correct subsections of the statute were used, and the conviction was responsive to the original charge. Therefore, any misstatement of statutory language on the bill of information amounted to harmless error. Wright did not request a bill of particulars, and he did not move to quash the bill of information. Thus, any alleged defect in the bill, and the subsequent testimony of C.G. regarding the issue of consent, is not reversible.

Limited Testimony of Wright

During Wright’s cross-examination of Lt. Tucker at trial, Wright requested that he be allowed to testify to a limited issue regarding whether the trunk of his vehicle was secured during transport by the wrecker at the time of his initial arrest. Specifically, Wright wanted to explain that there may have been access to his trunk when the vehicle was confiscated. The trial court denied the request, stating that if Wright testified on this issue, he would then be subject to cross-examination on the entire case.

Louisiana C.E. art. 611, regarding mode and order of interrogation and presentation, provides in pertinent part:

A. Control by court. Except as provided by this Article and Code of Criminal Procedure Article 773, the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
B. Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the ease, including credibility.

The provisions of La. C.E. art. 611(B) clearly provide that a witness may be cross-examined on any matter relevant to any issue in the case. Similarly, the laswide scope for cross examination is explained in other trial procedure articles as seen with La. C. Cr. P. art. 703(E)(2) which states, “[i]f the defendant testifies before the jury at the trial on the merits, he can be cross-examined on the whole case.”

By extension, the statute does not support Wright’s request to testify and be cross-examined on a limited issue. We also note that Wright provided no case law or other statutory provisions, nor have we found any, to support this request. Also the transcripts reveal that Wright testified in his own defense at trial and had the opportunity to address this specific issue. Considering the discretion a trial court has to exercise control over witnesses, the trial court did not err in denying the defense’s request for the defendant’s limited testimony during the state’s case. This argument is meritless.

Exhibits

Wright objected, and asserts several assignments of error, to the admissibility of several of the state’s exhibits, specifically a television show newscast regarding video voyeurism. In addition, Wright asserts that the trial court erred in allowing the jury to review the exhibits during deliberation.

Admissibility of State Exhibits

The trial court overruled the defense’s objection regarding chain of custody and foundation and the state’s exhibits were admitted into evidence. The Louisiana Supreme Court has stated that to admit demonstrative evidence at trial, the law requires that the object be identified. State v. Smith, 430 So.2d 31, 43 (La.1983); State v. Moore, 419 So.2d 963 (La.1982); State v. Drew, 360 So.2d 500 (La.1978). A sufficient foundation has been laid for the admission of demonstrative evidence if it has been established that it is more probable than not l^that the object is the one connected with the case. State v. Sharp, 414 So.2d 752 (La.1982); State v. Davis, 411 So.2d 434 (La.1982).

The record supports a finding that the trial court did not err in admitting the contested exhibits into evidence. The state, through the extensive testimony of Lt. Tucker and related physical evidence, i.e., evidence tags, laid a sufficient foundation for the admission of these exhibits by their identification, and by establishing that it is more probable than not that these exhibits were connected with this case.

Specifically as to the newscast video, Wright argues that its admission was unduly prejudicial to him because the only purpose was an attempt to show that the defendant was a bad person trying to get around video voyeurism laws and to continue videotaping in his stores. The trial court has great discretion in admitting photographs into evidence, and the court’s ruling will not be disturbed absent an abuse of that discretion. State v. Hopkins, 39,730 (La.App. 2d Cir.08/17/05), 908 So.2d 1265, writ denied, 2005-2253 (La.03/17/06), 925 So.2d 541. “Photographs” include still photographs, X-ray films, videotapes, motion pictures, and their equivalents. La. C.E. art. 1001(2). Photographs that illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted are admissible, assuming that their probative value outweighs any prejudicial effect. La. C.E. arts. 401, 403; State v. Battaglia, 03-692 (La.App. 5th Cir.11/25/03), 861 So.2d 704, writ denied, 2004-1701 (La.04/29/05), 901 So.2d 1058.

A review of the record reveals that the trial court did not abuse its great discretion in admitting the newscast videotape into evidence. The videotape shed light on Wright’s criminal intent. It also illustrated the lack of video voyeurism Inlaws in Louisiana prior to the enactment of La. R.S. 14:283. Other evidence at trial, including Wright’s own testimony, showed that he had previously been involved in an incident involving video voyeurism, but escaped prosecution because of the lack of a video voyeurism statute at the time. Considering the other evidence presented to prove this element of the offense, the introduction of the videotape had little prejudicial effect and was outweighed by its probative value. These assignments are also meritless.

The Jury’s Review of the Exhibits

During jury deliberation, the jury requested to see “the videos and other evidence.” Over Wright’s objection, the trial court permitted the jury to see the videotapes, the actual box that contained the videotapes, and the bill of information. However, the trial court did not permit the jury to see the newscast videotape.

Louisiana C. Cr. P. art. 793(A) provides:

A. A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

Under the plain language of La. C. Cr. P. art. 793, a videotape/audiotape recording of a crime as it occurs is neither written evidence nor testimony. State v. Brooks, 2001-0785 (La.01/14/03), 838 So.2d 725. Subject to the explicit restrictions imposed by that statute, and by our jurisprudential rule precluding the use of a defendant’s confession in any form in the course of jury deliberations, a trial judge has sound discretion in permitting the jury’s review of 1 improperly-admitted evidentiary exhibits during its deliberations, including audiotapes and videotapes. See State v. Brooks, supra.

A review of the record in the case sub judice reveals that the trial court did not abuse its sound discretion in permitting the jury’s review of the properly-admitted videotapes during its deliberations. Furthermore, the trial court showed judicial restraint in not allowing the television show newscast videotape to be viewed by the jury. This argument is without merit.

Sentencing

Wright asserts that the sentence imposed is excessive and the trial court erred in denying his motion to reconsider. However, in light of an error patent, a discussion of the constitutionality of the sentences is pretermitted.

The maximum sentence that can be imposed for counts one and two, in violation of La. R.S. 14:283(B)(4), is a fíne of not more than $10,000.00 and imprisonment at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence. The maximum sentence for count three, in violation of La. R.S. 14:283(B)(3), is a fine of not more than $10,000.00 and imprisonment at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.

The trial court sentenced the defendant to serve five years imprisonment at hard labor on count one, ten years on count two, and ten years on count three. Each sentence was imposed without benefit of probation, parole or suspension of 1 {^sentence, and ordered to be served concurrently. The defendant’s oral motion to reconsider sentence was denied.

The sentence imposed for count three is illegal because it is five years more than the maximum possible sentence under La. R.S. 14:283(B)(3). It is clear that the trial court intended to impose the maximum sentences on all three counts of the bill of information, but instead imposed those sentences upon the incorrect count numbers. Therefore all three sentences are vacated, and the matter remanded for re-sentencing.

CONCLUSION

For the foregoing reasons, the trial court’s convictions are affirmed. However, because of the sentencing error noted, we vacate the sentences and remand for resentencing.

CONVICTION AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

      . However, we. note that a hearing was held to determine Wright’s competency to stand trial. The issue was submitted to the court based on reports from Dr. Richard Williams and Dr. George Seiden who evaluated the defendant. Both doctors determined that Wright had the ability to consult with his attorney and understand the nature of the charges against him and that he is competent to stand trial on these charges. The trial court noted that no other evidence to indicate anything to the contrary was introduced by the defense, and ruled accordingly.

      . When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883; State v. Robinson, 33,921 (La.App. 2d Cir. 11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App. 2d Cir.04/05/00), 756 So.2d 1218, writ denied, 2000-1572 (La.03/23/01), 787 So.2d 1010; State v. Deny, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Desmond Joseph SENEGAL.
    No. 2005-1633.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      Michael Harson, District Attorney, David Hutchins, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Bossier City, LA, for Defendant-Appellant, Desmond Joseph Senegal.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   COOKS, Judge.

| defendant is before this court challenging his conviction and sentence for possession of cocaine, second offense, in violation of La.R.S. 40:967 and 40:982. For the reasons which follow, we vacate Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On July 2, 2004, after 10:00 p.m., Officer Brian Gilbert, assigned to the Lafayette street level narcotics unit, was patrolling in the vicinity of Sunnyside Street, a high crime area. Officer Gilbert testified he saw Defendant, Desmond Joseph Senegal, riding a bicycle with no headlight in the travel lane of a city street. Since there is a statute which requires bicycles to have headlights after dark, Officer Gilbert conducted a traffic stop. Upon speaking with Defendant, Officer Gilbert noticed he was nervous and began shaking. According to Officer Gilbert, Defendant was looking around, and the officer assumed he was looking for “a path of maybe an exit, if he was going to run.”

A safety patdown search of Defendant was conducted by Officer Gilbert, during which Officer Gilbert noticed the Defendant was chewing on something. Officer Gilbert testified that it is common for street level drug dealers to consume narcotics in an attempt to destroy evidence. Prior to the patdown, Defendant did not want to talk or look at Officer Gilbert and this made Officer Gilbert believe that he might be destroying evidence. Officer Gilbert handcuffed Defendant for his safety and advised Defendant of his Miranda rights. He then asked Defendant to spit on the ground, which he did voluntarily. Officer Gilbert testified he noticed some white crumb residue in the saliva, so he took his business card and scraped it up off the ground. A field test conducted on the substance indicated the presence of cocaine. Officer Gilbert testified he then advised Defendant he was under arrest and he ^detained him in his car while he secured the evidence. After being advised of his Miranda rights, Defendant stated that he had eaten two rocks of cocaine and that he was out trying to take care of his family.

Defendant was charged by bill of information with possession of cocaine, second offense, in violation of La.R.S. 40:967 and 40:982. Defendant waived his right to a jury trial and a bench trial was held. The trial judge convicted Defendant of the charged offense and ordered that a pre-sentence investigation report be completed. Defendant was subsequently sentenced to serve five years at hard labor with credit for time served. Defendant is before this court challenging his conviction and sentence. Specifically, he contends the evidence was insufficient to convict him; that the evidence was illegally obtained; that his prior conviction should not have been included in the bill of information; and finally, that his sentence is excessive.

I. Inclusion of Prior Conviction.

Defendant contends it was improper for the State to include his prior conviction of distribution of counterfeit cocaine in the bill of information. Its presence in the bill made the trier of fact aware of the prior offense during trial, and Defendant contends the inclusion of the charge in the bill was improper pursuant to the supreme court’s ruling in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. In Skipper, the defendant filed a motion to quash the bill of information charging him with a second drug offense under La.R.S. 40:982. The trial court granted the motion to quash and the state appealed. The supreme court held:

[W]e hold that La. R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drug-related offense nor may evidence of the prior offense be presented to the jury determining the defendant’s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La. |sR.S. 40:982.
State v. Murray, 357 So.2d 1121 (La.1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La. R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La. R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.

Id. at 416-17.

In reaching its conclusion, the Skipper court found that La.R.S. 40:982 “does not in and of itself define a crime.” Id. at 416. Defendant’s failure to file a motion to quash contesting the inclusion of La.R.S. 40:982 in the bill does not preclude this court from reviewing this issue. Comment (b) to La.Code Crim.P. art. 535 provides that a motion to quash based on the grounds that the offense is not punishable under a valid statute is “within the scope of appellate review without prior objection, under Art. 920(2), since it is an error discoverable by a mere inspection of the pleadings and proceedings and without the inspection of evidence.”

The Defendant in the present case was convicted and awaiting sentencing when the Skipper ruling was issued. Thus, we first address whether the decision should be retroactively applied to Defendant.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United | ¿States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling was rendered as well as those that were pending on direct review at the time the new ruling was issued. In doing so, the court discussed Justice Harlan’s suggestion of a new test for retroactivity in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971). The Taylor court explained:

Accordingly, he proposed a general principle whereby “all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final.” [Mackey ] Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules — i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of “those procedures that ... are implicit in the concept of ordered liberty” and altered our understanding of the “bedrock procedural elements” of a fair trial....
In the next several years, the Court began to gradually move away from Linkletter and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan’s view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Id. at 1294.

The Supreme Court, in Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), held “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the|spast.”

The Taylor court also discussed pertinent Louisiana court rulings on retroactivity:

Turning now to our state law decisions on retroactivity, we find they have also recognized the principle that the constitution does not prohibit nor require courts to give retroactive application to criminal law decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases decided after Linkletter reflect the confused state of the law under that case.
Subsequently, our cases have followed Griffith v. Kentucky, swpra, and have applied new rules to cases pending on direct review or not yet final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515 So.2d 769 (La.1987). In fact, we recently applied the Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) rule to a case pending on direct appeal at the time Cage was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).

Taylor, 606 So.2d at 1296.

See also State v. Naquin, 00-291 (La.9/29/00), 769 So.2d 1170 and State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293, wherein the courts, relying on Griffith, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, applied a new ruling to a case pending on appeal.

In light of the foregoing jurisprudence, Skipper should be retroactively applied to Defendant’s case. When Skipper was decided, Defendant had been tried and convicted and was awaiting sentencing. Clearly, his conviction was not yet final and the foregoing jurisprudence supports the retroactive application of Skipper to his case. Thus, under Skipper it was error for the State to include the prior offense in the bill of information.

Because Defendant was convicted pursuant to La.R.S. 40:982, which is not a substantive criminal offense under Skipper, he was convicted of a non-existent crime. 1 r,Since possession of cocaine, second offense is a “non-crime,” the conviction and sentence for a violation of La.R.S. 40:982 must be vacated. Further, we find a harmless error review under State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, is inapplicable.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are vacated. Since Defendant was convicted of a nonexistent crime there is no double jeopardy bar to re-trial and we remand this case to the district court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.

      . In Skipper, the case was in a pretrial stage when the issue concerning the inclusion of the prior offense in the bill of information was raised. The supreme court noted that it was not called upon to discuss the applicability of a harmless error analysis or the “possible ameliorative effects of a limiting instruction post-State v. Green, 493 So.2d 588 (La.1986), to circumstances in which a prior offense was listed in the charging instrument, read to the jury and of which evidence was presented at trial.” Id. at 416.

      . In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court defined the finality of a conviction as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certio-rari finally decided.” Id., 107 S.Ct. at 712 (footnote 6).

      . It is unnecessary to decide in this case whether the ruling in Skipper should be retroactively applied to a case in which the defendant’s conviction was final at the time the ruling was issued.

      . We also note that in our view the inclusion of a prior conviction can never be harmless error. In State v. Prieur, 277 So.2d 126, 128 (La.1973), the Louisiana Supreme Court recognized the prejudicial effect of the introduction of prior convictions, stating:
      The admissibility of other acts of misconduct involves substantial risk of grave prejudice to a defendant. As to the prejudicial effect of evidence of other crimes, Wigmore says:
      ' * * * naturaj an(j inevitable tendency of the tribunal' — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * * ' 1 Wigmore, Evidence § 194 (3rd Ed.).
      This court in State v. Williams, 96-476 (La.App. 3 Cir. 4/30/97), 693 So.2d 870, 873, writ denied, 97-1365 (La. 10/31/97), 703 So.2d 20, also stated its concerns with listing prior convictions in a bill of information:
      In our view, a prior conviction that is not an element of the substantive offense should not be alleged in a bill of information. It offends the notion of a fair trial. It is naive to think that its prejudicial impact is somehow vitiated by a limiting jury instruction ... This statute, La.R.S. 40:982 ... is a sentencing mechanism. Sentencing is not a jury function; it is a judge function. The jury has no business hearing evidence of the conviction of another crime for the purpose of enhancing a defendant’s sentence because it has nothing to do with what sentence will be imposed.


author: GREMILLION, Judge.

text:
    Jane D. SORREL v. ALLSTATE INSURANCE CO., et al.
    No. 05-1618.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      Frank E. Barber, New Iberia, LA, for Plaintiff/Appellant, Jane D. Sorrel.
    Mesonie T. Halley, Jr., Lake Charles, LA, Stacy Skolfield Lee, Lafayette, LA, for Defendant/Appellee, Allstate Insurance Co., Edward J. Cavalier.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   GREMILLION, Judge.

k The plaintiff, Jane Sorrel, appeals the trial court’s judgment based on the jury’s verdict, arguing that it awarded her insufficient general damages and erred in failing to award her damages for future medical expenses. For the following reasons, we affirm as amended.

FACTS

This suit stems from an automobile accident which occurred when Sorrel’s vehicle was rear-ended by a vehicle driven by the defendant, Edward Cavalier. .The accident occurred on Pinhook Road in Lafayette, Louisiana. As a result of this accident, Sorrel sought medical treatment for various injuries, including an injury to her neck. She was treated by Dr. John Cobb, an orthopedic surgeon, who eventually recommended that she undergo neck surgery to address a degenerative disc at C5-6. At the time of trial, Sorrel, although desirous of having the procedure, had not yet undergone surgery.

Sorrel filed suit against Cavalier and his insurer, Allstate Insurance Company (referred to collectively as Cavalier), seeking damages for the injuries she suffered during the accident. Cavalier answered the petition and requested trial by jury. The matter proceeded to a jury trial, after which the jury reached a verdict finding that Cavalier was totally at fault in causing this accident. The jury awarded Sorrel $10,000 in general damages, $17,980.07 in past medical expenses, but nothing for future medical expenses. A judgment was rendered by the trial court based on the jury’s verdict. Both Sorrel and Cavalier filed motions for JNOV; Sorrel sought additional damages and Cavalier sought to correct the award of past medical | ^expenses. The trial court denied Sorrel’s motion, but granted Cavalierfs motion by reducing the award of past medical expenses from $17,980.07 to $15,207.17. This appeal by Sorrel followed.

ISSUES

On appeal, Sorrel argues that the jury erred in awarding her only $10,000 in general damages and nothing for-future medical expenses.

STANDARD OF REVIEW

General damages are speculative in nature and, thus, are incapable of being fixed with any mathematical certainty. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. As they are speculative, a jury’s award of such damages is reviewed in light of the standard set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). First, we determine if the trial court’s award for the particular injury and its effect under the particular circumstances on this plaintiff is a clear abuse of the jury’s “much discretion.” Id. at 1260. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1261.

Special damages are those damages which may be determined with some degree of certainty and include past and future medical expenses. The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the | sevidence. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541. The award of future medical expenses must be supported by testimony indicating both their need and probable cost. Holliday v. United Servs. Auto. Ass’n, 569 So.2d 143 (La.App. 1 Cir.1990).

General Damages

After the accident, Sorrel testified that she felt a big jolt and then felt woozy, as though her brain was shaking. She said that she experienced head, neck, and lower back pain and, eventually, neck spasms and headaches. She was treated briefly by her family doctor, Dr. Alberto Palmiano, and by a chiropractor, Dr. Adel Malakmeh. When her condition failed to improve, she was referred to Dr. Cobb, who recommended that she undergo neck surgery.

Sorrel testified that her lower back injury resolved a year after the accident. She explained that she had previously injured her lower back in 1995, as a result of a work-related injury, and had undergone a discectomy at L4-5. She said that she was unemployed as a result of this injury. After the present accident, she stated that her lower back ached and that she treated her condition with heat and pain medication.

With regard to her neck, Sorrel stated that her symptoms have never totally gone away, although she was able to resume most of her activities a year after the accident. She testified that her neck continues to feel stiff and painful and she suffers from headaches, especially when she uses her arms. Sorrel said that it hurts to bend over and brush her teeth; her neck becomes stiff if she looks down too long while reading, does not move her neck, or turns her head to the right while backing 14her car. She said that she gets a headache when she tries to use her arms to trim her hedges.

As a result of her neck condition, Sorrel testified that she had to learn new hobbies and a new lifestyle. She stated that she had to hire someone to help her maintain her home. Prior to the accident, she kept her house up, mowed the grass, and trimmed the hedges. Afterwards, she stated that she was unable to do these things because of pain. Sorrel further testified that prior to the accident, she liked attending church functions, visiting friends, and decorating her home. After-wards, she said that she was no longer able to do these things. She stated that she could no longer sew because sitting was painful. When her neck feels good, she states that she is able to relax, watch a movie, listen to music, and read without pain.

Sorrel testified that she had been involved in four previous accidents prior to the July 10, 2000 accident. She injured her lower back in the work-related accident in 1989, for which she underwent a discectomy at L4-5. She was injured in a bus accident, when the bus she was riding in was hit by a truck. She stated that she filed a lawsuit against the driver of the truck, but settled her claim with him. Sorrel said she was involved in another automobile accident in 1995, in which she suffered temporary injuries to her lower back and sought treatment from Dr. Cobb. Although Dr. Cobb’s medical records state that she complained of neck pain after this accident, Sorrel stated that the pain was very temporary. She was also involved in an accident at a person’s home in December 1995. She stated that she tripped and fell, breaking the radial tuberosity in her right shoulder, for which she underwent surgery.

| ¡¿Dr. Cobb testified that he first evaluated Sorrel on August 16, 2000, at which time she complained of frequent headaches and aching on the top of her skull, accompanied by vomiting and blurred vision. She also complained of neck pain, which was made worse by lifting, and pain from the back of her neck to her shoulders, with aching in both arms and wrists, the right worse along her little finger. Dr. Cobb indicated that Sorrel also complained of aching in her knees and right ankle, and stiffness in her neck, back, and fingers. She rated her pain as being an eight on a scale of ten.

Dr. Cobb described Sorrel’s injury as an acceleration injury in which the head is thrown back and then forward. He stated that this results in an “S” shaped deformity when the neck is hyper-extended as it goes backward, the spine is then thrust upward into the back of the skull, and finally, the neck flexes forward. When the neck hyper-extends, Dr. Cobb stated that there is a distraction force on the front of the spine and a compression force on the back of the spine. This process is reversed when the neck flexes forwards. Thus, the spine’s joints and ligaments are either being stretched or compressed depending on whether the neck is hyper-extending or flexing.

Dr. Cobb stated that x-rays and a November 10, 2000 MRI revealed that Sorrel was suffering from spondylosis at C5-6, as well as a small, mild, left-sided broad-based disc bulge at that level. He described spondylosis as an adaptive process that the spinal column goes through as a result of degenerating discs caused by aging. He stated that this eventually results in a narrowing of the neural foramina, the | ^formation of bone spurs, thickening of ligaments, and the calcification or hardening at the back of and an enlargement of the affected vertebrae.

Dr. Cobb felt that some of Sorrel’s symptoms were related to her spondylosis, which had become symptomatic as a result of the July 10, 2000 accident. On January 22, 2001, he testified that he discussed the options available to her, which were injections, surgery, physical therapy, and the passage of time. At that time, he stated that she decided to give her neck condition time to resolve on its own. On July 16, 2001, he stated that she was still complaining of neck symptoms, so they again discussed her options of treatment. At that point, Dr. Cobb stated that Sorrel’s condition was somewhat guarded, in that he did not feel that ■ her neck condition would resolve itself anytime soon.

Sorrel returned to Dr. Cobb on June 3, 2002. He stated that she was still complaining of neck pain, as well as fairly significant occipital headaches. She also indicated having symptoms in her left arm and wrist. Dr. Cobb noted in his examination that her head was slightly shifted forward, which indicated a de-conditioning of the musculature in the back of the neck. He now felt that surgery was required in order to afford Sorrel permanent pain relief. A September 19, 2002 discogram confirmed that Sorrel’s C5-6 disc abnormality was the cause of her pain. After this test, Dr. Cobb recommended that she undergo an anterior discectomy and fusion at C5-6. He stated that he last saw Sorrel on October 7, 2002, although he prescribed medication for her in December 2004.

Dr. Sorrel testified that he had previously treated Sorrel in 1989, for a lower back injury secondary to a lifting injury. He said that he next saw her in |7September 1995, after she was involved in an automobile accident. At that time, he stated that she indicated she had undergone lower back surgery in 1990, by Dr. Llewellyn, a neurosurgeon in New Orleans. During follow-up for her 1995 injury, Dr. Cobb testified that Sorrel told him that she was experiencing neck pain and headaches. As she was being treated for these symptoms by Dr. Hurst, a neurosurgeon, he stated that he did not inquire further into the cause or the condition of her neck. Dr. Cobb stated that he last treated Sorrel in 1995 and 1996, after she tripped and suffered a non-displaced fracture of the radial tuberosity in her right shoulder in December 1995.

Dr. Joe Morgan, an orthopedic surgeon, examined Sorrel at the request of Allstate on September 29, 2004. At the examination, he stated that she complained of intermittent neck pain and headaches, especially when she turned her head to the right. She further complained of intermittent numbness in her hands, when sitting; intermittent weakness in her arms, when trying to work; and daily swelling in her legs and ankles. She reported that her neck pain was worse if she was up for awhile and that she had trouble driving because it hurt to turn her neck. In examining Sorrel, Dr. Morgan noted tenderness at the extremes of extension and rotation bilaterally in her cervical spine, which he considered objective signs. He also stated that she had full range of motion in her neck. He testified that x-rays revealed mild spurring anteriorly and posteriorly, with disc space narrowing at C5-6. He further found the results of a grip test administered in his office to be invalid, as her results failed to form a bell-shaped curve and he found her values too low for someone exhibiting her muscle mass and a full range of motion in her upper extremities.

|sDr. Morgan opined that Sorrel had probably sustained a cervical strain, which was superimposed onto a preexisting cervical spondylosis. He further felt that she had sustained a lumbar strain, which was superimposed upon a prior lumbar lami-nectomy and discectomy at L4-5, arthritis of the lumbar spine, a protrusion at L5-S1, and a bulging at L4-5. He felt that the cervical and lumbar strains by themselves should only take a couple of months to resolve, but superimposed over the named preexisting conditions, should take approximately four months to resolve. ■

Dr. Morgan further opined that no surgery was required for Sorrel’s cervical spine as a result of the July 10, 2000 accident. He stated that she might require a cervical fusion at C5-6 based on her preexisting condition, but doubted whether this was necessary based on the long periods of time between her appointments with Dr. Cobb. He found this to be atypical of a person suffering from a neck condition requiring surgery. Dr. Morgan testified that he found no objective signs of the need for surgery in his examination of Sorrel. He said that her brachioradialis reflexes were present and that there was no atrophy or localized weakness in either upper extremity, which would indicate a nerve root problem in her cervical spine. Although he would assign Sorrel a physical impairment rating, he stated that this was based solely on her preexisting lower back condition. Dr. Morgan further opined that no limitations should be placed on Sorrel as a result of this accident, as he found no objective weakness in her upper extremities, despite her weakness in the grip testing. With regard to her headaches, he suggested that a neurologist should address this problem. Finally, he felt that Sorrel required no pain 19medication as a result the accident, but stated that she might require such medications based on her preexisting condition.

Although Sorrel may have suffered from a preexisting cervical spondylosis, as acknowledged by both Drs. Cobb and Morgan, it is axiomatic that a defendant takes his plaintiff as he finds her. “A defendant’s liability for damages is not mitigated by the fact that the plaintiffs preexisting physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant.” Spears v. City of Scott, 05-230, p. 21 (La.App. 3 Cir. 11/2/05), 915 So.2d 983, 997. Here, there is no evidence, other than a brief mention that Sorrel complained of neck pain in 1996, that her spondylosis was symptomatic prior to the July 10, 2000 accident. However, the evidence proves that it became symptomatic following the accident. After reviewing the medical evidence and Sorrel’s testimony with regard to the pain she suffered and continues to suffer as a result of this accident, we find that the jury’s award of $10,000 is abusively low. Considering the facts of this case, we find that the lowest amount that the jury could reasonably have awarded is $40,000. Coco v. Winston Indus. Inc., 341 So.2d 332 (La.1976).

Future Special Damages

The jury awarded Sorrel nothing for future special damages despite testimony from her that Dr. Cobb recommended that she undergo an anterior discectomy and fusion at C5-6. Although she had not yet undergone the procedure, Sorrel testified that she now wants to have the surgery so that she can experience a better quality of life, move her neck freely, and be in less pain. She stated that she wants to be able to do all of the things which her pain prevents her from doing, such |inas driving her car on a trip, trimming her hedges, sewing, and increasing her hobbies. She said that she held off from having the surgery because she was scared and because she could not afford it. She further thought that her condition would improve over time and with the use of medication. However, she said that it has not done so.

Dr. Cobb described Sorrel’s condition as being somewhat guarded; he did not feel that her condition would spontaneously resolve in the near future. Based on her condition, he recommended that she undergo an anterior discectomy and fusion at C5-6. However, he agreed that surgery was one option available to Sorrel, in that she could choose to continue as she had done for the last couple of years by trying to manage her pain conservatively. He stated that for patients with chronic pain, the issue becomes one of lifestyle. Either they choose to have surgery, or they modify their lifestyle, despite suffering from significant pain, to try and control their pain. In this instance, Dr. Cobb stated that Sorrel’s condition was not life threatening and that she could live without the surgery.

Dr. Cobb described the surgery as being a major procedure, requiring an overnight stay in the hospital and then six months of follow-up care. He estimated that the surgery alone would cost $20,000, the hospital stay would cost $15,000, and the bone graft or plate would cost $6000.

Although the jury awarded Sorrel past medical expenses, it awarded her nothing for future medical expenses. The burden was on Sorrel to prove her entitlement to such damages by a preponderance of the evidence. In this instance, the jury heard testimony that her chronic pain could be treated by the surgery recommended by Dr. Cobb, which she now desires to undergo. However, there was ^further testimony that Sorrel could try to manage her pain conservatively by altering her lifestyle. As Sorrel has waited two-and-a-half years before choosing this option, it was reasonable for the jury to find that she had chosen to treat her condition conservatively. Although she stated that she was scared of undergoing surgery, the record revealed that she previously underwent two surgeries with good results. Accordingly, we find no error in the jury’s finding that Sorrel is not entitled to an award for future medical expenses.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to increase the general damages awarded to the plaintiff-appellant, Jane Sorrel, from $10,000 to $40,000. The judgment is affirmed in all other respects. The costs of this appeal are assessed to the defendants-appellees, Edward Cavalier and Allstate Insurance Company.

AFFIRMED AS AMENDED.


author: SULLIVAN, Judge.

text:
    In re EDC CONTRACTOR INSURANCE LITIGATION.
    No. CW 2005-1064.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.
    George B. Hall, Jr., Stephen Porter Hall, Marian T. Harrison, Phelps Dunbar, LLP, New Orleans, Louisiana for Applicant, Liberty Mutual Insurance Company.
    Allen J. Mitchell, II, Mitchell & Blanco, Lake Charles, Louisiana, for Applicant, Liberty Mutual Insurance Company.
    John Ellison, Richard P. Lewis, Anderson, Kill & Olick, Philadelphia, Pennsylvania, for Respondent, ConocoPhil-lips Company.
    George Andrew Veazey, Huval, Veazey, Felder & Aertker, Lafayette, Louisiana, for Respondent, ConocoPhillips Company.
    Joseph L. McReynolds, Deutsch, Kerri-gan & Stiles, New Orleans, Louisiana, for Respondents, New York Marine, Somerset Insurance Company, Boston Old Colony Insurance Company, Reliance Insurance Company, General Insurance Company.
    Arthur W. Landry, Plauche’, Maselli, Parkerson, LLP, New Orleans, Louisiana, for Defendant, American Motorists Insurance Company.
    William T. McCall, Guillory & McCall, Lake Charles, Louisiana, for Respondent, Westchester Surplus Lines Insurance Co.
    James R. Nieset, Plauche, Smith, & Nieset, Lake Charles, Louisiana, for Respondent, General Star Indemnity Co.
    Charles R. Talley, Lemle & Kelleher, New Orleans, Louisiana, for Respondent, Sphere Drake Insurance Co.
    Michael J. Vondenstein, Metairie, Louisiana, for Respondent, North American Specialty Insurance Company.
    John Hatch Hughes, Allen & Gooch, Lafayette, Louisiana, for Respondent, Texas Property & Casualty Insurance Guaranty Association.
    Anna R. Gray, The Gray Law Firm, Lake Charles, Louisiana, for Respondent, Professional Industrial Maintenance.

      John William Hite, III, Salley, Hite, Rivera & Mercer, New Orleans, Louisiana, for Respondent, United National Insurance Co.
    James J. Hautot, Jr., Judice & Adley, Lafayette, Louisiana, for Respondent, American Indemnity Company.
    Gregory Edgar Bodin, Taylor, Porter, Brooks, Baton Rouge, Louisiana, for Respondent, Hawley Insurance Company.
    Melvin Alan Eiden, Rabalais, Hanna & Hebert, Lafayette, Louisiana, for Respondent, Scottsdale Insurance Company.
    David Perry Salley, Salley, Hite, Rivera & Mercer, Baton Rouge, Louisiana, for Respondent, Zurich American Insurance Company.
    Timothy Patrick Farrelly, Hailey, McNamara, Metairie, Louisiana, for Respondent, North American Specialty Insurance Company.
    Marshall Joseph Simien, Jr., Simien Law Firm, Lake Charles, Louisiana, for Respondent, National Union Fire Insurance Company of Pittsburgh, Commerce & Industry Insurance Company, American International Specialty Lines Insurance Company, Lexington Insurance Company.
    Todd Michael Ammons, Stockwell, Sie-vert, Lake Charles, Louisiana, for Respondent, Homestead Insurance Company.
    William James Kelly, III, Adams & Reese, New Orleans, Louisiana, for Respondent, Valley Forge Insurance Company, CNA-A Stock Insurance Company, Transcontinental Insurance Company, CNA-Transportation Insurance Company, Continental Casualty Company.
    Joshua Simon Force, Sher, Garner, Ca-hill, Baton Rouge, Louisiana, for Respondent, Colonial Insurance Company.
    Samuel Bryan Gabb, Lundy & Davis, Lake Charles, Louisiana, for Respondent, Transco Syndicate # 1 Ltd., Reliance Insurance Company, Louisiana Insurance Guaranty Assoc.
    Erin Fury Parkinson, McGlinchey, Stafford, & Lang, New Orleans, Louisiana, for Respondent, American International Specialty Lines Insurance Company, Lexington Insurance Company, Commerce & Industry Insurance Company, National Union Fire Insurance Company of Pittsburgh.
    Kelly Cambre Bogart, Metairie, Louisiana, for Respondent, Pacific Insurance Company.
    Pamela J: Lormand, Preston & Cowan, New Orleans, Louisiana, for Respondent, Highlands Insurance Company.
    Erin McGonagle, Jackson & Campbell, Washington, DC, for Respondent, Commerce & Industry Insurance Company, Lexington Insurance Company, National Union Fire Ins. Company of Pittsburgh, American International Specialty Lines Insurance Company.
    Richard W. Bryan, Jackson & Campbell, Washington, DC, for Respondent, National Union Fire Insurance Company of Pittsburgh, Commerce & Industry Insurance Company, American International Specialty Lines Insurance Company, Lexington Insurance Company.
    Sheila R. Caudle, Ross, Dixon & Bell, Washington, DC, for Respondent, Transcontinental Insurance Company, Continental Casualty Company, Valley Forge Insurance Company, CNA-A Stock Insurance Company, CNA-Transportation Insurance Company.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

hAt issue in this writ application is whether the trial court properly denied summary judgment sought by Liberty Mutual Insurance Company (Liberty Mutual) regarding a commercial general liability (CGL) policy it issued to S & B Engineers & Constructors, Ltd. (S & B). For the following reasons, we deny the writ.

Facts

In the mid-1990’s, Conoco discovered that ethylene dichloride (EDC) had been discharged on its premises. As a result of the EDC discharge, Conoco contracted with S & B and numerous other contractors to recover the discharged EDC and to remediate EDC-damaged property at their Westlake, Louisiana site. Conoco’s contract with S & B is dated October 7, 1994. Pursuant to their contracts with Conoco, S & B and the other contractors were obligated to maintain CGL policies which provided $1 million in liability coverage and named Conoco as an “additional assured.” Liberty Mutual sold S & B two CGL policies dated January 1, 1994 and January 1, 1995, which contained blanket additional insured endorsements that provide additional insured coverage to Conoco.

After working at Conoco’s site, employees of many of Conoco’s EDC contractors filed suit against Conoco, seeking damages for injuries they allegedly suffered as a result of being exposed to EDC. Conoco settled the employees’ claims, then filed this suit, contending that Liberty Mutual’s policies provide coverage for the employees’ claims.

Liberty Mutual filed a motion for partial summary judgment, seeking a declaratory judgment that Texas law governs the interpretation of its policies and that, pursuant to Texas law, the total pollution exclusions contained in the two policies exclude coverage for Conoco in the underlying lawsuits. In opposition, Conoco 12argued that Louisiana law, which may result in coverage for the underlying lawsuits, should be applied to interpret the policy. After a hearing, the trial court denied the motion. Liberty Mutual urges in this writ application that the trial court erred in denying its motion.

Summary Judgment

A motion for summary judgment will be granted “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.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a | Jitigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Discussion

Liberty Mutual maintains that the choice of law analysis provided in the Louisiana Civil Code mandates that Texas law be applied to the interpretation of its policies and that, pursuant to Texas law, the total pollution exclusion contained in those policies excludes coverage for Conoco’s demands against it. Articles 3515 and 3537 of the Louisiana Civil Code are at issue here. Article 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Article 3537 states:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

14Liberty Mutual argues that these conflict of law articles and the jurisprudence interpreting them mandate a conclusion that Texas law governs the interpretation of its policies. It outlines the factors which it contends require application of Texas law:

1) S & B is located in Houston, Texas;
2) the Liberty Mutual office which sold the two policies at issue is located in Houston, Texas; and
3) the Liberty Mutual polices at issue were negotiated, executed, issued, and delivered in Texas.

Liberty Mutual cites a number of cases in which various Louisiana courts have considered similar choice of law conflicts and determined that the law of the state where the insurer and the insured were located and the policies were sold and delivered governed interpretation of the contracts. See Murden v. Acands, Inc., 04-2122, 05-319 (La.12/14/05), 921 So.2d 165; Harrison v. R.R. Morrison & Son, Inc., 37,992 (La.App. 2 Cir. 12/10/03), 862 So.2d 1065, writ denied 04-101 (La.3/19/04), 869 So.2d 857; Norfolk S. Corp. v. Ca. Union Ins. Co., 02-369, 02-371, 02-372 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, writ denied, 03-2742 (La.12/19/03), 861 So.2d 579; Shell Oil Co. v. Hollywood Marine, Inc., 97-106, 97-611 (La.App. 5 Cir. 10/15/97), 701 So.2d 1038; and Holcomb v. Universal Ins. Co., 93-1424 (La.App. 3 Cir. 6/1/94), 640 So.2d 718, writ denied, 94-1740 (La.10/7/94), 644 So.2d 643. See also Resure, Inc. v. Chem. Distrib., Inc., 927 F.Supp. 190 (M.D.La.1996), aff'd 114 F.3d 1184 (5th Cir.1997), cert. denied, 523 U.S. 1072, 118 S.Ct. 1511, 140 L.Ed.2d 665 (1998).

Conoco makes a number of arguments against summary judgment and why Louisiana law should be applied to the interpretation of Liberty Mutual’s policies. One of those arguments is that summary judgment is premature at this time because | sadditional discovery is necessary before an adequate conflict-of-laws analysis can be made.

An analysis under Articles 3515 and 3537 is fact intensive. Liberty Mutual relies on Article 3537, which identifies numerous factors that must be considered in an analysis thereunder: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

Liberty Mutual filed its motion for partial summary judgment on April 25, 2005. Conoco filed its opposition to the motion of June 20, 2005, arguing in part that Liberty Mutual’s motion was not supported by admissible evidence. On July 1, 2005, Liberty Mutual filed a supplemental memorandum in support of its motion to which it attached an affidavit executed by Richard Ruse, the agent who sold S & B its policy. Mr. Ruse stated that he negotiated and handled the issuance of the policies Liberty Mutual sold to S & B which are at issue here and that all actions regarding S & B’s purchase of those policies, i.e., negotiations, issuance, and delivery occurred in Houston, Texas. In many respects, his statements were non-specific and self-serving; they essentially tracked the factors enumerated in Article 3537.

One of Conoco’s arguments to the trial court was that it had outstanding discovery, including a motion to compel discovery and a request for a corporate deposition of Liberty Mutual, which needed to be completed before Liberty Mutual’s | ^motion should be considered. In its reasons for judgment, the trial court identified the need for additional discovery as one reason for denying summary judgment. Shortly thereafter, Conoco continued its attempts to depose Liberty Mutual representatives; however, Liberty Mutual refused the requested discovery because of this pending writ application.

Initially, we observe that Richard Ruse’s affidavit was not filed fifteen days before the hearing as required by La.Code Civ. P. art. 966(A). More importantly, the affidavit does not detail what the “negotiations” between S & B and Liberty Mutual involved. Did S & B simply request a CGL policy with an blanket additional insured provision or did representatives of both companies negotiate back and forth regarding specific coverage provisions and exclusions to be included in the policies? Was the additional insured endorsement negotiated between S & B and Liberty Mutual or did S & B simply request the endorsement with no discussion at all? Did S & B question the application of the additional insured endorsement regarding contracts it performed outside the state of Texas? We find this important as S & B is in the business of remediating hazardous waste sites and the companies with which it contracts for these services may often require additional insured endorsements. Additionally, as noted by the trial judge, was the premium charged for the additional insured endorsement a flat rate premium or was it calculated based on factors which are pertinent to the issues here?

We have considered the numerous cases cited by Liberty Mutual which indicate it would be appropriate to apply Texas law to the insurance coverage issues presented here. However, there is no discussion in those cases of the specific facts outlined above which we believe are pertinent to a choice of law analysis of the 17factors here. We cannot tell from the discussions in those cases whether there was extensive discovery concerning the negotiation and issuance of the policies, whether the negotiations for the issuance of the policies were detailed, or whether a simple request for a policy was submitted by the insured to its insurer.

Mr. Ruse’s affidavit and Liberty Mutual’s policies do not allow for a complete and adequate analysis of the factors and policies enumerated in Articles 3515 and 3537. Consequently, Liberty Mutual has not established that it is “entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(A)(2).

Disposition

There was no error in the trial court’s ruling.

WRIT DENIED.