text:
    STATE of Louisiana v. Kedrick BURBANK, Jr.
    No. 07-KA-125.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Robert C. Jenkins, Jr., Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

^Defendant, Kedrick Burbank, appeals from his conviction for possession of cocaine within 1,000 feet of a drug free zone and his sentence as a second offender to seven and one-half years at hard labor without benefit of probation or suspension of sentence. For the reasons which follow, we affirm.

At approximately 5:50 p.m. on June 14, 2005, Officers Dominick Rodi and Joseph Lovett were on patrol in the 2600-2700 block of Huntsville Street in the Susan Park area of Kenner when they observed and approached a parked vehicle. As the officers neared the vehicle, Officer Rodi observed a clear plastic bag containing off-white rock-like objects on the center console. Defendant quickly exited the driver’s side of the vehicle and started walking away at which time Officer Lovett asked Defendant to place his hands on the vehicle to facilitate a weapons search. Defendant initially seemed cooperative but then fled before complying. Officer Lovett chased Defendant and ultimately apprehended him in ajjnearby residence where he was hiding under the bed. The clear plastic bag was removed from the car and subsequently tested positive for cocaine.

Defendant was charged in a bill of information on August 5, 2005, with possession of cocaine within 1,000 feet of a drug free zone in violation of La. R.S. 40:981.3. He pled not guilty and proceeded to trial on January 4, 2006. A unanimous six-person jury found Defendant guilty as charged. He was sentenced to seven and one-half years at hard labor.

The State filed a multiple offender bill of information alleging Defendant to be a second felony offender based on a prior conviction for witness intimidation. Defendant admitted his status as a second felony offender and was resentenced as a multiple offender to seven years and six months imprisonment at hard labor without the benefit of probation or suspension of sentence. It is from this conviction and sentence that Defendant appeals. On appeal he assigns six errors.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues the evidence was insufficient to support his conviction for possession of cocaine within 1,000 feet of a drug free zone. He asserts the State failed to prove he knowingly possessed the cocaine. He contends that he did not own the vehicle in which the cocaine was found and did not have the requisite knowledge of the cocaine. He maintains his mere physical presence near the cocaine was insufficient to constitute possession. Defendant alleges the State failed to rebut the reasonable hypothesis of innocence that the cocaine belonged to someone else, namely, his nephew, who was related to the owner of the car in which the cocaine was found.

It is well settled that in reviewing a claim of insufficient evidence, the court considers whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the Lessential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

To support a conviction of possession of cocaine, the State must prove defendant was in possession of the drug and that he knowingly possessed it. State v. Wright, 05-477, p. 5 (La.App.5 Cir.12/27/05), 920 So.2d 871, 874, writ denied, 06-1141 (La.2/16/07), 949 So.2d 404.

The element of possession may be established by showing the defendant exercised either actual or constructive possession of the cocaine. A person not in physical possession of a drug may have constructive possession if the drugs are under that person’s dominion or control. The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. Id. However, the defendant’s proximity to the drug may establish a prima facie case of possession when colored by other evidence. Id. at 5, 920 So.2d at 875. Guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance. It is a state of mind that need not be proven as fact but may be inferred from the circumstances. State v. Robinson, 04-964, p. 5 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1121. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Id. Evidence of flight, concealment, and attempt to avoid apprehension is relevant in that it indicates consciousness of guilt. State v. Davies, 350 So.2d 586, 588 (1977).

In an identical case, State v. Wright, 05-477 (La.App. 5 Cir. 12/27/05), 920 So.2d 871, writs denied, 06-1141 (La.2/16/07), 949 So.2d 404, this Court ^concluded the defendant had constructive possession of the cocaine found in plain view on the center console of the vehicle he was driving, despite the fact he did not own the vehicle. This Court stated it is presumed that the sole occupant of a vehicle has dominion and control over the contents of the vehicle, including cocaine that is within the occupant’s immediate reach, regardless of the ownership of the vehicle. This Court found the fact that the defendant had borrowed the car was inconsequential. We also found the evidence sufficient to show the defendant had guilty knowledge of the cocaine found in plain view in the car in which defendant was the sole occupant. This Court noted that the defendant would have seen the cocaine while driving because it was next to the stick shift. This Court cited a Second Circuit case, State v. Christopher, 561 So.2d 935 (La.App. 2 Cir. 1990), unit denied, 567 So.2d 1124 (1990), that also found sufficient evidence of guilty knowledge after noting one would expect the defendant to have noticed the cocaine while driving the vehicle since the officer readily noticed the cocaine in plain view in the vehicle in the middle of the night.

Similarly, in State v. Williams, 01-644 (La.App.5 Cir.11/27/01), 802 So.2d 909, this Court found that the defendant knowingly possessed cocaine found in plain view in a cupholder on the console of the car he was driving, even though the car belonged to another person. Upon seeing the police officers, the defendant sped up, parked, exited the car, walked into a nearby store after making eye contact with the police, and disappeared from sight: This Court concluded the defendant had custody of the car and the cocaine was in plain view and within his immediate control. His attempted avoidance of apprehension supported the inference of knowledge of the cocaine. This Court noted the defendant’s non-ownership of the vehicle did not negate his control over the car and its contents.

|fiIn the present case, as in Wright and Williams, there was sufficient evidence from which a reasonable juror could have concluded Defendant knowingly possessed the cocaine while in the vehicle. ' Defendant was the sole occupant sitting in a vehicle in which cocaine was found in plain view on the center console between the driver’s seat and passenger’s seat. Officer Rodi testified the cocaine was easily seen on the center console as he approached the vehicle. Defendant exited the driver’s side of the vehicle and he then attempted to flee from the police.

Defendant testified at trial that he borrowed the car from his niece and was not aware of the cocaine in the vehicle. He suggested the cocaine belonged to his nephew, to whom he had earlier given a ride. Defendant also testified he fled from the police because he was on probation and had violated the conditions of his probation. However, a juror may accept or reject the testimony of a witness in whole or in part and a reviewing court does not second-guess the credibility determinations made by the trier of fact or reweigh the evidence. State v. Crawford, 03-1494, p. 28 (La.App. 5 Cir. 4/27/04), 873 So.2d 768, 786, writ denied, 04-1744 (La.5/6/05), 901 So.2d 1083; State v. Carter, 98-24, p. 14 (La.App.5 Cir.5/27/98), 712 So.2d 701, 708, writ denied, 98-1767 (La.11/6/98), 727 So.2d 444.

Accordingly, we find sufficient evidence in the record to support the jury verdict.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the Defendant argues he was denied his right to counsel of his choice when the trial court denied his motion to continue trial to allow his retained counsel time to appear. He contends he was forced to go to trial with appointed counsel who was unprepared for trial.

j 7A criminal defendant has the right to counsel of his choice. State v. Leggett, 363 So.2d 434, 436 (La.1978). However, this right is not absolute and it must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. State v. Bridgewater, 00-1529, p. 20 (La.1/15/02), 823 So.2d 877, 896, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant’s right to counsel of his choice cannot be manipulated “to obstruct orderly court procedure or to interfere with the fair administration of justice.” Id. at 20, 823 So.2d at 896. “Absent a justifiable basis, ‘[t]here is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.’ ” Id., quoting State v. Leggett, 363 So.2d at 436. Thus, once the trial date has arrived, “the question of withdrawal of counsel largely rests with the discretion of the trial court, and his ruling will not be disturbed in the absence of a clear showing of abuse of discretion.” State v. Seiss, 428 So.2d 444, 447 (1983); State v. Zapata, 97-1230, p. 13 (La.App. 5 Cir. 5/27/98), 713 So.2d 1152, 1161, writ denied, 98-1766 (La.11/6/98), 727 So.2d 443.

The record shows Defendant first advised the court at his arraignment that he had retained Bruce Netterville as his attorney and wished to have him present for the arraignment. The arraignment was continued and reset for the next day at which time retained counsel did not appear. Defendant was represented by the Indigent Defender Board (IDB) for arraignment. Defendant again advised the court he intended to hire his own attorney. Two weeks later, on August 23, 2005, a pre-trial conference was held. Retained counsel made no appearance personally or of record. IDB was appointed to represent Defendant. Trial was set for October 11, 2005. Five days later, Hurricane Katrina hit the New Orleans area.

| /Trial was continued three times, twice at the request of the trial court on October 11, 2005, and October 13, 2005, and once at the request of defense counsel (IDB), on December 5, 2005. Trial commenced on January 4, 2006.

On the morning of trial, Defendant’s IDB counsel, Anthony Angelette, advised the trial court that Defendant informed him he had retained Robert Jenkins, who was not present, to represent him. Mr. Angelette requested a continuance on Defendant’s behalf. The trial court denied the continuance and noted that Mr. Jenkins had neither signed the record nor called the court to advise of his representation. Defendant attempted to explain Mr. Jenkins’ failure to make an appearance on the fact Mr. Jenkins believed no one was returning to Gretna this soon. The trial court noted that the case was public record and Mr. Jenkins had every opportunity to sign the record. Mr. An-gelette had been appointed to represent Defendant on August 23, 2005, that he received Defendant’s file upon the post-Katrina return of the parish in October 2005, and mailed correspondence to Defendant asking Defendant to contact him but Defendant failed to respond. Mr. Angelette stated that Defendant acknowledged he wrote to him in jail but Defendant “did not get in touch with [him].” Mr. Ange-lette never asserted that he was unprepared for trial. The trial court denied the motion for continuance and proceeded to trial.

In State v. Mitchell, 95-552, p. 8 (La. App. 5 Cir. 7/30/96), 680 So.2d 64, 68, this Court addressed a defendant’s right to the counsel of his choice and, quoting from the Louisiana Supreme Court decision in State v. Seiss, 428 So.2d 444 (La.1983), found that the right is not absolute:

In State v. Seiss, 428 So.2d 444, 447 (La.1983), the Louisiana Supreme Court emphasized that the defendant’s right to counsel of his choice “cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair | 9administration of justice.” Thus, a defendant “must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings.” Id. Further, the Court noted that “[a]bsent a justifiable basis, ‘there is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.’ ” Id. Accordingly, once the trial date has arrived, “the question of withdrawal of counsel largely rests with the discretion of the trial court, and his ruling will not be disturbed in the absence of a clear showing of abuse of discretion.” Id.

In State v. Bond, 94-509 (La.App. 5 Cir. 1/31/95), 650 So.2d 354, this Court affirmed a trial court ruling denying a defendant a continuance requested on the day of trial to replace appointed counsel with retained counsel. This Court concluded the trial court did not err in denying the continuance considering the defendant’s court-appointed attorney was assigned the case two months before trial, had filed several pre-trial motions, and told the trial court on the day of trial that he was ready to proceed.

Defendant relies on State v. Mitchell, 95-552 (LaApp. 5 Cir. 7/30/96), 680 So.2d 64, in support of his argument. In Mitchell, this Court reversed the ruling by the trial court denying the Defendant’s motion for a continuance so he could replace his attorney. However, in that case, defense counsel was retained, he failed to appear for hearings, he advised the court in advance that he would not be prepared for trial because he was running for an election, failed to file the papers the court requested for a continuance and, on the day of trial, stated that he was not prepared to try the case. Defendant had another attorney present in court and ready to enroll provided the trial was continued so he could prepare. This Court concluded the trial court abused its discretion in denying the Defendant’s motion to continue the trial so he could replace his attorney.

|1flIn the present ease, Defendant sought a continuance on the morning of trial to allow an attorney he contended his family had retained to represent him. This was the third time Defendant had claimed to have, or that he would get, retained counsel, without having retained counsel appear. Additionally, there was no indication Defendant was displeased with his appointed counsel at the time of trial. Defendant simply advised the trial court that he wanted the case continued for retained counsel. Despite Defendant’s claim on appeal that appointed counsel was unprepared for trial, discussed below, the record indicates appointed counsel was adequately prepared for trial as demonstrated by his performance. Appointed counsel made numerous objections during the State’s direct examination of witnesses, thoroughly cross-examined the State’s witnesses, and presented a defense.

As pointed out by the trial court on the day of trial, the alleged retained counsel had neither made an appearance in the record nor called the court to advise of his representation of Defendant. The trial court noted the case was public record and if counsel had been retained, he had adequate time to appear. The only evidence of retained counsel was the Defendant’s assertions which lacked credibility in view of his two previous similar assertions when retained counsel had not appeared. Of note, Mr. Jenkins’ first appearance on the record was a motion to enroll filed on May 30, 2006, almost five months after trial. Thus, under the circumstances presented, we find no error in the trial court’s refusal to grant a continuance on the morning of trial so the Defendant could retain counsel.

This assignment of error lacks merit.

|, ^ASSIGNMENT OF ERROR NUMBER FIVE

By this assignment of error the Defendant argues that he was denied effective assistance of counsel because his appointed counsel was unprepared for trial. In support of his claim, he cites the fact defense counsel did not receive the file until three months prior to trial and did not have contact with Defendant prior to trial. He again contends he was denied his right to counsel of choice.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. McIntyre, 97-876, p. 10 (LaApp. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. When the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. Id.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042, p. 9 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. To establish the deficiency prong of the test, the defendant must show that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Constitution. To establish prejudice, the defendant must show that, but for counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, 93-1042 at 9, 636 So.2d at 1075. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131, p. 4 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388.

Other than his broad assertion that appointed counsel was “unprepared” for trial, Defendant does not allege any specific errors, acts, or omissions that constituted deficient performance or that resulted in prejudice to the Defendant. Nor have we found any in the record.

Appointed counsel in this case never once suggested he was unprepared for trial. His motion to continue was based solely on Defendant’s indigent status and retention of new counsel. Although the record does not reveal whether appointed counsel had open file discovery of the prosecutor’s file, he had the police report. Additionally, defense counsel was appointed over four months prior to trial. Even considering the impact of Hurricane Katrina, appointed counsel stated he received Defendant’s file more than two months prior to trial. As noted above, defense counsel did not have contact with Defendant because, despite his numerous attempts to contact Defendant, and Defendant’s acknowledgment of receipt of the correspondence, Defendant did not respond. Nevertheless, the record shows appointed counsel vigorously defended the case. He moved for a mistrial based on media exposure, he thoroughly cross-examined the State’s witnesses, and made numerous objections based on other crimes evidence. Thus, we find the record falls far short of showing defense counsel’s performance was deficient or that he failed to function as the counsel guaranteed by the Constitution.

This assignment of error lacks merit.

1, ^ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, the Defendant argues the trial court erred in denying his motion for a mistrial on the basis of the jury’s exposure to media publicity. He claims his trial was corrupted when the Times-Picayune newspaper published an article concerning his trial, which was the first jury trial post-Katrina. He asserts he was prejudiced by the article because one juror admitted glancing at the newspaper the morning of trial.

The State argues that Defendant failed to prove the newspaper article caused the jurors to prejudge the case or that there was community prejudice against Defendant.

On the second day of trial, defense counsel raised the issue of prejudice from a newspaper article that appeared in that morning’s paper. In response, the trial judge questioned each juror separately as to whether he or she had read the newspaper. Only one of the six jurors stated they had seen a newspaper or heard any new reports. That juror stated she had “glanced” at the paper but had not read anything about the trial. She explained she had read the headlines on the first page of the front section. She further stated she had listened to the news that morning but again stated she had not heard anything about the present trial. The juror also denied discussing the trial with anyone.

After the jurors were questioned, defense counsel reurged his motion for a mistrial on reasons previously stated and introduced the newspaper article at issue into evidence. The trial court implicitly denied the motion and the matter proceeded to trial.

La.C.Cr.P. art. 775 requires that the trial court grant a mistrial on the Defendant’s motion when “prejudicial conduct in or outside the courtroom makes |uit impossible for the Defendant to receive a fair trial[.]” Prejudicial conduct may include pre-trial or mid-trial publicity about the case. State v. Austin, 04-993, p. 22 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 883, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143, citing State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. A mistrial is a drastic remedy and determination of whether prejudice has resulted is within the sound discretion of the trial court. Id. A mistrial is not warranted unless the court determines “that the jurors were actually exposed to the publicity in question and were so impressed by it as to be incapable of rendering a fair and impartial verdict.” State v. Banks, 96-2227, at 2, 692 So.2d at 1053.

In a much closer case, the Court in Banks found no error in the denial of a mistrial based on some jurors’ exposure to trial publicity. Three of the six jurors admitted seeing a local newspaper article that contained general information about the trial and the charges against the defendant. The article also referenced other pending similar charges against the defendant. One of the jurors indicated he had not read the entire article. The other two jurors had read the entire article but stated they could set aside what they read and decide the case on the facts presented. In concluding a mistrial was not warranted, the Supreme Court reasoned that the two affected jurors gave emphatic and unequivocal assurances that they could be impartial and there was no “evidence that information in the news account infected the entire jury panel and became a matter of general discussion.”

In the present case, the juror who had glanced at the newspaper stated she only read the headlines on the front page of the first section and had not read any article about the trial. The article at issue appeared in the Metro section of the newspaper and was titled, “Jury trials resume in Jeff.” Furthermore, although the 115article briefly referenced Defendant’s possible probation revocation if convicted on the current charge, the article’s focus was on the return of the judicial system following Hurricane Katrina and not the Defendant or his charges. There is no evidence any of the jurors were actually exposed to the article at issue. Thus, we find no abuse of the trial court’s discretion in denying Defendant’s motion for a mistrial urged on the basis of the jury’s prejudicial exposure to media publicity

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

By this assignment of error, the Defendant argues he was prejudiced when the trial court admitted evidence of other bad acts that were immaterial to the charged crime. He specifically complains of the following evidence: 1) a picture that showed a marijuana butt in the same center console as the cocaine; 2) testimony that he broke into another person’s home when he fled from the police; and 3) testimony that he was on probation at the time of the offense and had violated the conditions of the probation. Defendant maintains this evidence had no independent relevance and was used simply to show he was a bad person.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404 B(l); State v. Prieur, 277 So.2d 126, 128 (1973). However, evidence of other crimes, wrongs or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceedings.” La. C.E. art. 404(B)(1). A close connexity between the charged and uncharged conduct is required to insure that “ ‘the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Noten, 01-1818, p. 2 (La.6/25/01), 791 So.2d 607, 609 (Per Curiam ), quoting State v. Haarala, 398 So.2d 1093 (La.1981).

Defendant first challenges the admissibility of a photograph that showed the center console of the vehicle with a plastic baggie containing a white mixture sitting on top of what appears to be the butt of a cigarette. The State used the photograph during the testimony of Officer Rodi. Officer Rodi testified the picture depicted the clear cellophane plastic with rock-like objects that he observed in the vehicle. He confirmed the photograph showed the location of the cocaine when he first saw it. Defendant objected to the photograph on the grounds it also showed a marijuana butt under the cocaine. The trial court ruled that the marijuana was res gestae because it was part and parcel of the offense.

Upon review, we find there was no reference to marijuana in front of the jury at any time during trial. The State used the photo to show exactly what Officer Rodi observed prior to arresting Defendant. Questions about the photograph at issue were limited to the cocaine, which was prominent in the photo. No questions were asked about the object under the cocaine and no attention was brought to it. The exact location of the cocaine was an integral part of the State’s case, as discussed above. Additionally, the marijuana butt is not discernible to an average person. The photo shows only a sliver of a brown colored object under the cocaine. Thus, we find no error by the trial court in allowing the photograph into evidence as an integral part of the State’s case.

Defendant next complains evidence that he broke into another person’s home when he fled from the police was inadmissible other crimes evidence. Defendant first objected during the prosecutor’s opening statement when he stated, “Officers Lovett and Rodi gave chase to the Defendant. He ran into a house. They kicked the door down. He ran in a house, broke out a window and hid underneath 117the bed.” Defendant objected on the basis the State was suggesting an unauthorized entry for which he was not on trial. The prosecutor explained he was simply telling the jury about the flight issue. The trial court overruled Defendant’s objection.

Defendant again objected during the testimony of Officer Rodi. Officer Rodi testified that when Defendant fled from the vehicle, he was chased and ultimately located hiding under a bed inside a residence. The trial court overruled Defendant’s objection explaining, “[i]t is part and parcel of the scene of this offense.” Defendant asked that his objection be continuing to other crimes evidence. Officer Lovett later testified that Defendant was caught inside a residence under a bed.

As stated previously, evidence of flight, concealment, and attempt to avoid apprehension is relevant to show consciousness of guilt from which a jury may infer guilt. State v. Davies, 850 So.2d 586, 588 (La.1977). This rule applies even though the evidence may disclose another crime. Id.

In State v. Davies, supra, the Defendant argued that evidence which revealed a “possible burglary or assault which occurred after the attempted aggravated rape for which (he) was tried, and for which he had been charged under a separate bill of information,” was inadmissible evidence of other crimes or misconduct for which he was not on trial. The evidence showed Defendant fled the scene of the crime, entered the house of a third party, and resisted leaving that location. The Supreme Court held the evidence was admissible since it was evidence of flight and attempt to avoid apprehension which is relevant to proving guilt. The Supreme Court explained that, “... evidence as to the conduct and actions of [the] accused during the period of his flight is generally relevant, and |iscriminal conduct by [the] accused during this period may be shown where such conduct was an inseparable part of the flight.”

Similarly, in the present case, Defendant fled from the police, ran into a nearby home, and hid under a bed, all of which is evidence of flight and attempt to avoid apprehension. Therefore, this evidence was relevant and inseparable from the evidence of flight which was also an integral part of the State’s case against the Defendant. We find no error in the trial court admission of the evidence at trial.

Defendant also argues testimony about his probation violations, namely associating with known felons and failing to maintain employment, was inadmissible other crimes evidence and was immaterial to the charged crime. During the State’s case in chief, no testimony or reference was made to Defendant’s probation status. The first mention of Defendant’s probation status came from his own testimony. He testified that at the time of the charged offense he was on active probation for a prior conviction for intimidating a witness. He denied any knowledge of the cocaine in the vehicle. He stated he fled from the police because he was on probation and had violated certain conditions of his probation, namely the failure to pay probation fees and fines, for which his probation officer had previously threatened to “lock him up.”

On cross-examination, the State questioned Defendant about his claim that he was unaware of the cocaine in the vehicle. Defendant suggested the cocaine belonged to his nephew, who had been in the car earlier and who Defendant knew sold “dope.” The State then elicited testimony from Defendant that he knew he was not supposed to be associating with felons. The State later questioned Defendant about his activities while on probation. Defendant admitted that at the time of the offense Defendant did not have a job despite requirements of probation |19that he be employed. The State concluded its questioning by asking Defendant if he was still violating his probation to which Defendant responded affirmatively.

Where the defendant first testifies about other crimes he has committed or opens the door to such questioning, there is no reversible error where the state follows up on the testimony. State v. Pickrom 31,987, p. 17 (La.App. 2 Cir. 5/5/99), 732 So.2d 800, 811; State v. Cotten, 438 So.2d 1156 (La.App. 1 Cir.1983), writ denied, 444 So.2d 606 (La.1984).

Prior to Defendant’s testimony in the present ease, there was no mention of Defendant’s probation either by the prosecutor or during the testimony of any of the State’s witnesses. On direct examination, Defendant testified about his non-compliant probationary status to explain the reason why he fled from the police. Thus, the issue of Defendant’s probationary status was initiated by Defendant’s own testimony. This testimony “opened the door” to further questions by the State regarding Defendant’s probation. Therefore, we find no error in the trial court action allowing the State to briefly pursue this line of questioning.

In summary, we find no error in the admission of any of the evidence relating to other crimes of which Defendant complains.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER SIX

By this assignment of error, the Defendant argues that the cumulative effect of all of the above assigned errors resulted in an unfair trial. He contends that the errors in his trial cumulatively mandate reversal.

Both this Court and the Louisiana Supreme Court have been “unwilling to say that the cumulative effect of assignments of error lacking in merit warrants reversal of a conviction or sentence.” State v. Strickland, 94-0025, p. 51 (La.11/1/96), 683 So.2d 218, 239; State v. Williams, 03-942, p. 20 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1016, writ denied, 04-0450 (La.6/25/04), 876 So.2d 832. A Defendant is not entitled to a perfect trial, only a fair one. Strickland, supra; Williams, supra.

We have determined that the foregoing assignments of error, considered individually, lack merit. The cumulative effect of assignments of error lacking merit do not warrant reversal of a conviction or sentence.

This assignment of error lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record reveals no errors which require corrective action by this Court.

Accordingly, the Defendant’s conviction for possession of cocaine within 1,000 feet of a drug free zone and his sentence, as a second offender, to seven years and six months imprisonment without benefit of probation or suspension of sentence are affirmed.

AFFIRMED.

      . Defendant, in this case, was specifically convicted of a violation of La. R.S. 40:981.3, which requires the State to additionally prove Defendant possessed the drug within 1,000 feet of a drug free zone. Defendant does not claim the State failed to prove this element of the offense. We find ample proof of this fact in the record.

      . This assignment of error is addressed out of order because it is closely related to assignment of error number two.

      . The trial transcript does not include defense counsel’s initial request for a mistrial or his stated reasons for the mistrial. The transcript provided begins at some point after the parties began discussing the newspaper article.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Amber D. COLE, Karen Renner and Jeffery Lacour v. Darrell L. COLE.
    No. 07-CA-504.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Phyllis C. Coci, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.
    Barbara A. Watzke, Attorney at Law, Slidell, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

Lin this domestic matter, plaintiffs Amber Cole, Karen Renner and Jeffrey Lac-our appeal the portion of an April 20, 2007 judgment in which the trial judge declined to exercise jurisdiction at this time, and stayed child custody proceedings for 90 days pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940. Defendant Darrell Cole argues in brief that the trial judge erred in extending a temporary restraining order, which effectively prohibits the child’s removal from the state of Louisiana. Although defendant seeks a reversal of the portion of the judgment extending the temporary restraining order, he did not file an appeal nor did he answer the appeal. As such, we cannot consider his claim. Miceli v. Riso, 02-810 (La.App. 5 Cir. 1/14/03), 889 So.2d 141, 149-150, 149, n. 3, writ denied, 03-0442 (La.5/2/03), 842 So.2d 1100. See also, La.C.C.P. art. 2133.

For reasons that follow, we find the April ruling that temporarily stayed the proceeding to be a non-appealable, interlocutory judgment. We convert this matter to a supervisory writ and grant the writ, reversing the judgment, and remanding the matter to the District Court for further proceedings.

| oAmber Cole and Darrell Cole, the parents of Kaitlyn Cole, were married in Jefferson Parish, Louisiana on December 21, 2004. Shortly afterward, Darrell enlisted in the United States Army and was sent to basic training in Lawton, Oklahoma in January of 2005. Amber, who was pregnant, stayed in Louisiana until Kaitlyn Cole was born on March 17, 2005 in Jefferson Parish.

Amber and Kaitlyn joined Darrell in Oklahoma shortly after Kaitlyn’s birth where they continued to live until their Oklahoma consent-judgment divorce. Pursuant to that judgment, Darrell was awarded full custody of Kaitlyn. After the divorce Darrell and Kaitlyn continued to live in Fort Sill, Oklahoma.

Darrell received orders for deployment to Iraq in December of 2005. Before leaving Darrell executed a special military power of attorney making Amber’s mother, Karen Renner and her fiance’, Jeffrey Lacour his attorney in fact to take custody of Kaitlyn and to act in loco parentis for him and for his account. Karen Renner and Jeffrey Lacour live in Jefferson Parish, Louisiana. Darrell returned from Iraq, and on March 26, 2007 executed a revocation of the special military power of attorney which had made Karen and Jeffery his attorney in fact for custody.

On March 15, 2007, Amber, Karen and Jeffrey filed a petition for child custody and injunctive relief. The plaintiffs asked for and received an ex parte temporary restraining order prohibiting Darrell from removing the child from Louisiana until the matter could be resolved.

In response, Darrell filed exceptions of improper venue, motion to dismiss and vacate, and lack of jurisdiction. Alternatively, he requested an expedited hearing and asked the court to restore custody.

l/The trial court set an expedited hearing on the exceptions for April 3, 2007. At the hearing, Darrell made an oral motion to stay the proceedings under the Soldiers’ and Sailors’ Civil Relief Act of 1940. Amber, Karen and Jeffrey argued that the court had jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act. They further argued that pursuant to that act, the court should grant emergency custody to Karen and Jeffery.

The trial court stayed the proceedings for 90 days. He denied jurisdiction “at this time” because he felt the Soldiers’ and Sailors’ Civil Relief Act of 1940 prevented him from exercising jurisdiction. The judgment also maintained the order enjoining Darrell from removing the child from Louisiana.

Although counsel for Amber, Karen and Jeffrey noticed her intention to take writs on the judgment, no such review was sought. Instead, counsel filed a motion for devolutive appeal, in which she argued the trial court erred in denying jurisdiction and staying the proceedings.

The issuance of a stay order is an interlocutory, not a final judgment. Shirer v. Exxon Corp. (La.App. 4 Cir.1989), 542 So.2d 696, 698. Accordingly, this judgment is non-appealable. La. C.C.P. Art. 1915. Plaintiffs’ correct remedy was by way of supervisory writ application at the time the judgment was rendered. Even so, this court has the discretion to convert an appeal to an application for supervisory writs. Stelluto v. Stelluto, 914 So.2d 34, 39 (La.2005); In re Medical Review Panel of Tammy Mineo Freed, 902 So.2d 472 (La. App. 5 Cir. 4/26/05). In this instance we exercise that discretion.

“In order to avoid deciding abstract, hypothetical or moot questions, courts require cases submitted for adjudication to be justiciable, ripe for decision, and not brought prematurely.” Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1193 (citing St. Charles Parish Sch. Bd. v. GAF Corp., 512 So.2d 1165, 1165 (La.1987)). Since the stay order 1ñhas expired, the need for relief from that order has arguably ceased to be a justiciable issue. Even so, “[t]he high court has held that although it may become unnecessary or impossible to grant the primary relief originally sought in an action, remaining consequences of the litigation may prevent the ease from becoming moot.” St. Charles Parish School Bd., supra, 512 So.2d at 1172.

Since Darrell is an active member of the service, we find there are remaining consequences of the litigation that may prevent the case from becoming moot as a consequence of Darrell’s active status. Thus, the issue is not moot.

In order to continue a matter pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.Code App. Section 202 requires the court on its own to find or the applicant service member to produce in writing facts stating the manner in which current military duty requirements materially affect the service member’s ability to appear. Darrell was present, represented by counsel and had, prior to the hearing date, filed responsive pleadings with supporting documentation. There was no evidence that his military service would have materially affected Darrell Cole’s defense against the requested injunctive relief or the prosecution of his own exceptions and motions. Thus, the trial judge erred in granting the stay and we reverse that portion of the judgment.

The remaining issue is the trial court’s declining jurisdiction at that time.

While the district court in its judgment purported to decline to exercise jurisdiction and to stay the proceedings, it in fact exercised jurisdiction and acted when the court extended the temporary restraining order prohibiting Darrell from removing Kaitlyn from Louisiana. The trial judge’s exercise of his jurisdiction to extend the restraining order was premature absent an initial determination that the court had jurisdiction. The trial judge could not extend the restraining order until Ifihe addressed the threshold issue of whether there was jurisdiction to do so. As such, we set aside the judgment in its entirety.

Moreover, in declining jurisdiction, the trial judge was required to apply La. R.S. 13:1700 et seq., the Louisiana UCCJA, particularly section 1702 and La. C.C.P. art. 3945, if applicable to an emergency situation.

This matter is remanded to the District Court to entertain immediately the exceptions of lack of jurisdiction and of improper venue pursuant to La. R.S. 13:1701, et. Seq. and 43 Okl.St.Ann. § 551-202 and for further proceedings as warranted.

APPEAL CONVERTED TO SUPERVISORY WRIT; JUDGMENT REVERSED, AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

      . We note that the original custody decree was signed in Oklahoma and Renner and Lacour had custody only pursuant to the special military power of attorney assignment. When Darrel Cole executed the Revocation of Special Power of Attorney Regarding Custody on March 26, 2007, the custody of Kaitlyn Cole reverted to him. In Louisiana, the authority to modify a custody order is reserved to the courts pursuant to La.C.C.art. 131 et seq. for contested matters and La.Ch.C. art. 1510 et seq. for uncontested matters, rather than through a revocable military power of attorney. Lebo v. Lebo, 04-0444 (La.App. 1 Cir. 6/25/04), 886 So.2d 491, 493.

      . Importantly, La. C.C.P. Art. 3945 C(l) provides that a temporary restraining order expires by law at the end of 15 days with one 10 day extension for good cause. A preliminary injunction may not issue thereafter without the opportunity for a hearing. La. C.C.P. Art 3602.
      Therefore, even assuming the trial judge had determined jurisdiction was proper, he had no authority to extend it. No evidence was received at the April 3, 2007 hearing, which would otherwise justify the extension.

      . Effective August 15, 2007, 2006 La. Acts No. 822, § 2 repealed the former UCCJA, R.S. 13:1700 through 1724. Act 822 enacted the new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The new law is contained in R.S. 13:1801 et. seq, which became effective August 15, 2007 after this proceeding began. R.S. 13:1842, however, provides a transitional provision: "A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this Act is governed by the law in effect at the time the motion or other request was made.” See also, Act 822, § 3, which provides: "A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this Act is governed by the law in effect at the time the motion or request was filed.”


author: LEON A. CANNIZZARO, JR., Judge. LOMBARD, J.,

text:
    Norma STEPTER v. DEPARTMENT OF POLICE.
    No. 2007-CA-1166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2007.

      Marie A. Bookman, New Orleans, LA, for Appellee, Norma Stepter.
    Joseph V. DiRosa, Jr., Chief Deputy-City Attorney, Penya Moses-Fields, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Heather M. Valliant, Assistant City Attorney, New Orleans, LA, for Appellant, Department of Police.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

__JjIn this appeal, the Department of Police of the City of New Orleans (“Department”) seeks review of the decision of the Civil Service Commission (“Commission”) granting the appeal of the plaintiff, Norma Stepter (“Officer Stepter”), and ordering her reinstatement with all back pay and emoluments of office. For the reasons that follow, we vacate the judgment and remand the case to the Commission with instructions.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Department hired Officer Stepter on November 22, 1998, as a police officer. Officer Stepter failed to report for duty on August 31, 2005, as required due to the conditions presented by Hurricane Katrina. The Department issued a formal notice of termination dated February 16, 2006. The Department issued the termination letter without holding a pre-termi-nation hearing.

Officer Stepter filed an appeal with the Civil Service Commission. The Commission granted the appeal, concluding that the Department failed to grant Officer Stepter a proper pre-termination hearing, including notice and an opportunity to be heard, prior to the imposition of discipline. The Commission ordered the Department to reinstate Officer Stepter to her prior position with all | ¡jback pay and emoluments of office. The Department filed a motion for appeal seeking review of the Commission’s decision.

DISCUSSION

In Reed v. Dept. of Police, 2006-1498, p. 1 (La.App. 4 Cir. 10/10/07), 967 So.2d 606, this Court considered the issue of whether the failure to hold a pre-termination hearing was an illegal denial of due process. En banc, this Court held that Hurricane Katrina, with its effects upon the City of New Orleans and its government, was an extraordinary event such that the Department could discipline its officers without a pre-termination hearing. This Court further held that under the unique circumstances presented, a post-termination hearing which allows the accused officer an opportunity to present all relevant evidence which would have been introduced at a pre-termination hearing satisfies the due process requirements of both the United States and Louisiana Constitutions. This Court vacated the decision of the Commission and ordered the Commission to receive from the parties such additional evidence as necessary to appropriately resolve the matter on the merits. Id. at p. 6, 967 So.2d at 610.

DECREE

Accordingly, the decision of the Commission is vacated, and the case is remanded to the Commission to conduct a post-termination hearing, to allow each party to introduce evidence at such hearing and to render a decision on the merits of the case.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

LOMBARD, J., dissents.

LOMBARD, J.,

dissents.

_JjDue process does not always require a full-blown trial-type hearing, but even in extraordinary circumstances some sort of rudimentary notice and opportunity to respond should be afforded to an individual whose interests may be affected by a deprivation of life, liberty, or property. Accordingly, for reasons previously stated, see Reed, v. Dept, of Police, 2006-1498 (La.App. 4 Cir. 10/10/07), 967 So.2d 606 (Lombard, J., Dissents), I respectively dissent.


author: DENNIS R. BAGNERIS, SR., Judge. JONES, J., LOVE, J., TOBIAS, J., LOMBARD, J., MURRAY, J., McKAY, J., GORBATY, J., CANNIZZARO, J., BELSOME, J.,

text:
    David R.M. WILLIAMS v. Arthur MORRELL, in his official capacity as the Clerk of Criminal Court for the Parish of Orleans, Jay Dardenne, in his official capacity as the Secretary of State for the State of Louisiana, Sandra Wilson, Etc.
    No. 2007-CA-1447.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2007.

      Dominic N. Varrecehio, New Orleans, LA, for Plaintiff/Appellant.
    Terrel J. Broussard, Montgomery Barnett Brown Read Hammond <& Mintz, James Gray II, Gray & Gray, A. P.L.C., Ernest Jones, Elie & Jones & Associates, New Orleans, LA, for Cheryl Gray.
    William E. Crawford, Jr., Merietta Spencer Norton, Office of the Secretary of State, Baton Rouge, LA, for Jay Dard-enne.
    Charles C. Foti, Jr., Attorney General, William P. Bryan III, Assistant Attorney General, Baton Rouge, LA, for Sandra Wilson.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

|7The Appellant, David Williams, appeals the judgment of the district court granting the Appellees’ exceptions of no cause of action resulting in the dismissal of the Appellant’s claim. For the reasons stated herein, we affirm the judgment of the district court.

Mr. Williams was a candidate for Louisiana Senator District 5 in Orleans Parish. A primary election was held on October 20, 2007 in which Mr. Williams received 3,615 votes. The other candidates received the following votes: Cheryl Gray, 4,929; Jalila Jefferson-Bullock, 3,665 and Irma Muse Dixon, 1,840. A run-off between Ms. Gray and Ms. Jefferson-Bullock is scheduled for November 17, 2007.

On October 26, 2007, Mr. Williams filed a Petition to Contest Election, Petition to Declare Statute Unconstitutional, or in the Alternative, Void and Request for Temporary Restraining Order against Arthur Morrell, Clerk of Criminal Court for the Parish of Orleans; Jay Dardenne, in his official capacity of Secretary of State; Sandra Wilson, as Registrar of Voters for the Parish of Orleans, and the State of Louisiana. Mr. Williams later amended his petition to add Cheryl Gray and Jalila Jefferson-Bullock as defendants.

lain response to Mr. Williams’ petition, the Secretary of State filed an exception of no cause of action, exception of improper cumulation, motion to quash plaintiffs discovery and a motion to release the voting machines. Ms. Gray filed an exception of no right of action and no cause of action. Sandra Wilson filed a peremptory exception of no right of action, no cause of action, and improper joinder of parties, and a motion to quash plaintiffs discovery. Arthur Morrell filed a motion to adopt the motions and exceptions filed by the Secretary of State.

The district court rendered judgment on November 5, 2007, denying Ms. Gray’s motion for involuntary dismissal and the Secretary of State’s exception of improper cumulation. However, the district court granted the exceptions of no cause of action dismissing Mr. Williams’ claim with prejudice and at his cost. It is from this judgment that Mr. Williams timely appeals.

Mr. Williams asserts four issues for this Court to review: (1) whether the petition, as amended, states a cause of action for relief; (2) whether a failure to give notice of the withdrawal of a candidate whose name appears on the ballot, in violation of La. R.S. 18:503, can serve as a basis for an election contest; (3) whether the petition, as amended, alleges irregularities in the conduct of the election sufficient, in themselves or in the effect, to serve as a basis for an election contest; and (4) whether the petition, as amended, alleges irregularities in the conduct of the election, and the effect of those irregularities, with sufficient specificity.

In his petition, Mr. Williams asserts that Andrew Gressett lawfully withdrew from the election approximately four weeks pri- or to the primaries and that his name remained on the ballot causing Mr. Williams to lose out on many votes. Mr. Williams further asserts numerous allegations of irregularities that he maintains are | ¡¡arguable under La. R.S. 18:503, including, but not limited to, failure of the Clerk of Court and Secretary of State to post notices of Gressett’s withdrawal, alleged canvassing by the Registrar of Voters and Secretary of State, broken voting machines and the “purging” of voters by the Secretary of State.

We find that the issue before this court is whether the district court properly granted the defendants’ exceptions of no cause of action.

LSA-R.S. 18:1406(B) states:

The petition shall set forth in specific detail the facts upon which the objection or contest is based. If the action contests an election, the petition shall allege that except for substantial irregularities or error, fraud, or other unlawful activities in the conduct of the election, the petitioner would have qualified for a second party primary election or for a general election or would have been elected. The trial judge may allow the filing of amended pleadings for good cause shown and in the interest of justice.

The district court reasoned that while “the plaintiff presented arguments, he presented no authority or evidence of the alleged unconstitutionality of La. R.S. 18:503.” Further, the district court concluded in open court that “... the Election Code and the law clearly requires and mandates that you (petitioner) state specifically what the allegations, what the irregularities are. I think you’ve got to show that they’re so favored and so flawed that they would reverse the election.”

“[T]he jurisprudence on election contests states that a petition challenging an election must allege particularized instances of irregularities, fraud, or wrongdoing, in detail sufficient to permit the contestee to prepare a defense thereto.” Gremillion v. Rinaudo, 240 So.2d 237 (La.App. 1 Cir.1970). However, our jurisprudence indicates that general charges of fraud and irregularities are not sufficient to state a cause of action in an election contest suit. Wayne v. Green, 389 So.2d 102 (La.App. 1 Cir.1980); Garrison v. Connick, 291 So.2d 778 (La.1974); and Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755 (1958). Higginbotham v. Morris 33,506 (La.App. 2 Cir.12/9/1999), 749 So.2d 840, 843.

The Plaintiffs petition makes general allegations of irregularities and fails to offer facts sufficient to sustain a remedy in light of the La. R.S. 18:503. On the face of Mr. Williams’ petition, he did not provide the district court with a cause of action wherein he can offer evidence that would cause the reversal of the election.

Decree

For the reasons stated herein, we find no error by the district court and affirm its judgment dismissing Mr. Williams’ claim.

AFFIRMED.

JONES, J., concurs.

LOVE, J., concurs.

TOBIAS, J., concurs in the result and assigns reasons.

LOMBARD, J., concurs.

MURRAY, J., dissents and assigns reasons.

McKAY, J., dissents.

GORBATY, J., dissents for the reasons assigned by Judge MURRAY.

CANNIZZARO, J., dissents and assigns reasons.

BELSOME, J., dissents with reasons.

JONES, J.,

concurs.

hi respectfully concur for the reasons assigned by Judge Lombard.

LOVE, J.,

concurs.

hi concur for the reasons assigned by Judge Lombard.

TOBIAS, J.,

concurs in the result and assigns reasons.

hi respectfully concur in the result.

I find that the plaintiff/appellant’s petition states a cause of action. Ergo, the trial court was in error granting the peremptory exception of no cause of action. Given the time constraints for election contests set forth in La. R.S. 18:1409, the plaintiffiappellant was obligated to proffer the evidence that he would have presented at the trial of the merits of his case. When the trial court refused to allow the plaintiff/appellant to proffer the evidence, something that the trial court was required by La. C.C.P. art. 1636 to do, the trial court again erred as a matter of law. At that point, it was incumbent upon the plaintiffiappellant to seek a writ of mandamus, La.C.C.P. art. 3861, et seq., from this court to order the trial court to permit him to proffer the evidence. The plaintiff/appellant appealed without seeking a writ of mandamus. The appeal divested the trial court of jurisdiction over the case. La. C.C.P. art. 2088. At this stage of the proceedings and specific facts of this case, the law affords the plaintiffiappellant no procedural relief, even considering the provisions of La. C.C.P. art. 2164.

LOMBARD, J.,

concurs.

|J concur in the decision to affirm the district court judgment. I am, however, disturbed by the allegation of a voter canvass conducted by the Secretary of State on election day. Such activities, if true, have a chilling effect on the voter, discouraging and often denying a citizen’s constitutional right to vote.

MURRAY, J.,

dissents and assigns reasons.

hln my view, the petition in the instant case alleges irregularities sufficient to state a cause of action under La. R.S. 18:1401(B). That statute provides, in pertinent part:

§ 1401 Objections to candidacy and contests of elections; parties authorized to institute actions
⅜ ⅜ ⅜ ⅜
B. A candidate who alleges that, except for substantial irregularities or error, or except for fraud or other unlawful activities in the conduct of the election, he would have qualified for a second party primary election or for a general election or would have been elected may bring an action contesting the election.

This is the appropriate statute to look to in determining whether Mr. Williams’ petition states a cause of action recognized by law. Despite the majority’s focus upon R.S. 18:503, the petitioner does not merely allege that the clerk of court failed to post notice of the withdrawal of candidate Andrew Gressett at the polling places. He alleges that this failure, coupled with the clerk’s posting of notice at those same polling places of the withdrawal of other candidates from other races (including candidates who withdrew after the date of Mr. Gressett’s withdrawal) misled the electorate to the extent that nearly ten percent of the votes cast in this particular race were cast for Mr. Gressett. Although La. R.S. 18:503 provides that the failure of the clerk to post notice shall not void the election, the | ^petitioner herein has alleged irregularities that go beyond the mere failure to post notice. In particular, he alleges that an illegal “canvass” of the electorate improperly removed registered voters from District 5 and added other voters to the district in numbers sufficient to change the outcome of the election. He also alleges that a significant number of those voters who showed up at the polls were required to fill out and sign a verification of address form, which intimidated many voters and caused them to abandon their intention of voting.

In Jenkins v. Williamson-Butler, 04-1726 (La.App. 4 Cir. 10/8/04), 883 So.2d 537, this court noted that the law no longer requires the challenger in an election contest to prove “but for” the alleged irregularities, he would have prevailed. Instead, a candidate contesting an election must show that because of the irregularities, the outcome of the election is impossible to determine. 04-1726, p. 4, 883 So.2d at 540 (citations omitted). Moreover, we stated:

A trial judge is not limited to strictly numerical considerations in declaring an election void.... [In making that a determination] “a judge can and should consider whether the proven frauds or irregularities are of such a serious nature so as to deprive the voters of the free expression of their will.”

Id. (citation omitted)

I believe the irregularities alleged by the petitioner herein are sufficiently serious to potentially affect the outcome of the election. Therefore, the trial court erred by dismissing the petition on the basis of the exceptions of no cause of action. Whether the petitioner is able to prove his allegations remains to be seen, as he was precluded from putting on any evidence in the trial court.

Accordingly, I would reverse the trial court’s granting of the exceptions of no cause of action and remand to that court for trial. Due to the approaching “runoff’ election date, I would also order the trial court to postpone that election pursuant to the provisions of La. R.S. 18:1409(33).

For these reasons I respectfully dissent from the holding of the majority.

McKAY, J.,

dissents.

hi dissent for the reasons assigned by Judge Murray.

GORBATY, J.,

dissents for the reasons assigned by Judge MURRAY.

CANNIZZARO, J.,

dissents and assigns reasons.

hi respectfully dissent and adopt the reasons assigned by Judge Murray. I write separately to address the concurring opinion of Judge Tobias.

Nowhere in the Louisiana Code of Civil Procedure does it mandate an attorney to proffer the evidence he would have presented at the trial once a trial judge grants an adverse peremptory exception of no cause of action. It is undisputed that an exception of no cause of action is decided on the four corners of the petition. Industrial Co., Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. La. C.C.P. art. 931 mandates that there be no evidence presented in support of or in opposition to the exception of the no cause of action. If the exception is improperly sustained, then the plaintiff should be afforded the opportunity to present his evidence before the judge at the trial of the matter. Nor is it required that, if a plaintiff is unsuccessful with regard to an exception of no cause of action, that he is then obligated in any way to proffer the evidence he would have presented at the trial on the matter. Applying these principles to the case at hand, the plaintiff in the instant case, as was his right, took a timely appeal from the adverse ruling to this court. To dismiss the plaintiffs appeal because he does not proffer evidence or object and appeal the denial of a proffer of evidence sets forth | principles of law not expounded in the Louisiana Election Code, La. R.S. 18:1, et seq., or the Louisiana Code of Civil Procedure.

I recognize a need for swift justice in cases involving elections. Notwithstanding, the overriding concern should be to ensure that the will of the electorate is constitutionally protected.

BELSOME, J.,

dissents with reasons.

hi respectfully dissent and adopt the reasons assigned by Judge Murray. However, I disagree with the postponement of the election. I would remand the matter to the district court for an immediate trial on the merits in an effort to avoid a delay of the upcoming election.

      . If the election ballot was printed with a withdrawn candidate’s name on it, the clerk of court of any parish where such ballot will be used shall, to the extent possible, cause notice to be made of the withdrawal of such candidate at any polling place where the candidate’s name appears on the ballot. Failure to provide such notice of withdrawal shall not void the election.

      . November 5, 2007 Written Reasons for Judgment.

      . Trial shall begin at 10:00 a.m. no later than the fourth day following the filing of the petition. La. R.S. 18:1409 A(l).


author: LOMBARD, Judge.

text:
    Marianne COGHLAN v. Eden SMITH, State Farm Mutual Automobile Insurance Company, Progressive Security Insurance Company and ABC Insurance Company.
    No. 2007-CA-0485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.

      George J. Nalley, Jr., Nalley and Dew, A PLC, Metairie, LA, for Plaintiff/Appellant.
    Renee’ Clark McGinty, Wallace, Casler & McGinty, Metairie, LA, for Defendant/Appellee, Progressive Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   LOMBARD, Judge.

11 Plaintiff/appellant, Marian Coghlan, appeals the judgment of the trial court denying her motion for a judgment notwithstanding the verdict (“JNOV”) and addi-tur. After review of the arguments of the parties in light of the record and applicable law, we affirm the judgment of the trial court and the verdict of the jury.

Relevant Facts and Procedural History

On October 3, 2003, the plaintiff was involved in an accident with a uninsured motorist, suffering soft-tissue injuries. On January 21, 2004, she filed this lawsuit, naming as defendants, Eden Smith (the uninsured driver), ABC Insurance Company, State Farm Mutual Automobile Insurance Company (“State Farm”), and Progressive. After a two-day trial beginning on September 11, 2006, the jury returned a verdict finding Mr. Smith to be 100% at fault and awarding $35,000.00 in past general damages, $7500.00 for past medical expenses (pursuant to a stipulation among the parties), $10,000.00 in future general damages, and $45,000.00 in future medical expenses.

The trial court signed the judgment on September 18, 2006, and the plaintiff filed a timely motion characterized as a “Motion for a JNOV or, in the alternative, Ran additur/new trial”, asserting that the jury abused its discretion in awarding $10,000.00 for future general damages when the award for future medical treatment was $45,000.00 for the injuries arising out of this automobile accident. The trial court denied the plaintiffs motion and she timely filed this appeal.

Discussion

The assessment of the appropriate amount of damages by a trial judge or jury is a determination of fact which is entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. Accordingly, the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id. (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)). Thus, before disturbing an award made by the jury, an appellate court must first find that the jury abused its great discretion. Wainwright, 774 So.2d at 74 (citing Coco v. Winston Indus., Inc. 341 So.2d 332, 334 (La.1977)).

The plaintiff asserts that the jury verdict was inconsistent because it awarded $45,000.00 for future medical treatment and only a “nominal” $10,000.00 for future general damages. First, we disagree with the plaintiffs characterization of $10,000.00 as a nominal award for future general damages based on soft-tissue injuries. Moreover, as the Louisiana Supreme Court specifically held in Wainwright, a jury ... can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured com-pensable pain and suffering as the result of defendant’s fault, Wainwright, 774 So.2d at 76, and once the jury has made its determinations, this court will not disturb those determinations absent evidence of unfairness, mistake, Impartiality, prejudice, corruption, exorbitance, excessiveness, or a result that is offensive to the conscience and judgment of the court. Wainwright, 774 So.2d at 77.

The plaintiffs reliance on Kreher v. Semreh Club, 95-0736 (La.App. 4 Cir. 5/14/97), 694 So.2d 1222, as supporting authority is misplaced. In that case, this court affirmed the trial courts decision to grant a JNOV and raise the damage award in light of the testimony of two treating physicians that the plaintiff had sustained a C6-7 herniated disc affecting the C-7 nerve root confirmed by a cervical MRI, resulting in ten to fifteen percent disability of the body as a whole, and had a fifty percent chance of needing surgery (with its associated risks of death, paralysis, and infection) in the future.

In this case, the plaintiff was treated for soft-tissue/whiplash neck injuries from October 3, 2003, until November 8, 2004, and then was treated only intermittently in 2005 and once in 2006. She underwent a MRI in 2004 and again in 2005, which revealed pre-existing degenerative disc disease, but no evidence of any problem (such as disc rupture, disc herniation, or nerve root impingement) attributable to the accident. Dr. Mark Juneau, the plaintiffs treating orthopedic surgeon, testified at trial that the plaintiff had no acute injury and that x-rays showed only degenerative disc disease in the form of scoliosis and spondylosis. Although the plaintiff had been examined by both a neurologist and neurosurgeon, neither physician found her to be a surgical candidate and neither physician testified at trial. Dr. Justin Lundgren, the plaintiffs treating physician and an expert in the field of physical medicine and rehabilitation, testified that the plaintiffs symptoms were all subjective with no true pain trigger-points and that she neither completed physical therapy nor took medications as prescribed. Dr. |4Peepak Awasthi, a neurosurgeon who performed an independent medical examination of the plaintiff, testified by videotaped deposition that the plaintiffs complaints were related to her cervical spondylosis, a degenerative condition, and/or a cervical sprain and that, although a future surgical fusion was a possible treatment option for her cervical spondylosis, such surgery would be related only to the degenerative cervical condition and not to any injuries arising from the accident underlying this litigation.

On this record, we do not find that the trial court erred in denying the plaintiffs motion for a JNOV and additur or that the jury award of $10,000.00 in future general damages constitutes an abuse of discretion. Although the award for $45,000.00 in future medical expenses appears generous, based upon the cost of her past medical treatment, it is not without basis.

Conclusion

The judgment of the trial court denying the plaintiffs motion for a JNOV and addi-tur is affirmed.

AFFIRMED.

      . State Farm was the plaintiff’s uninsured motorist ("UM”) carrier and Progressive was the UM carrier on the car that she was operating at the time of the accident


author: EDWIN A. LOMBARD, Judge.

text:
    Susan Radlein, Wife of/and Robert RADLEIN. v. HOLIDAY INNS, INC., Felcor Lodging Company, L.L.C., Felcor Lodging Trust, Inc., Felcor Lodging Limited Partnership, Bristol Lodging Tenant Co., Bristol Hotel Asset Co., Bristol Hotels & Resorts, Fireman’s Fund Insurance Co., et al.
    No. 2007-CA-0322.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.

      Jerome M. Volk, Jr., Michael E. Escudier, D’Aquila, Volk, Mullins & Contreras, Kenner, LA, For Plaintiffs/Appellants.
    G. Bruce Parkerson, Plauche’ Maselli & Parkerson LLC, New Orleans, LA, for Holiday Inns, Inc., Felcor Lodging Co., L.L.C., Felcor Lodging Trust, Inc., Felcor Lodging Limited Partnership, Bristol Lodging Tenant Co., Bristol Hotel Asset Co., Bristol Hotels and Resorts, and Firemen’s Fund.
    David E. Walle, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Central Parking System of Louisiana, Inc. and First Specialty Insurance Corporation.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| TAfter a jury trial in this slip and fall case, the trial court found for the Defendants and Plaintiffs appealed. For the reasons more fully set forth below, we affirm the trial court’s judgment.

RELEVANT FACTS and PROCEDURAL HISTORY:

On April 26, 1999, Plaintiff, Susan Rad-lein (“Mrs. Radlein”), was vacationing in the French Quarter with her husband and daughter and was a guest at the Holiday Inn French Quarter Hotel. According to Mrs. Radlein, at around eight o’clock in the evening, as she left her hotel through an exit-way in the adjacent parking garage, she slipped and fell on the downslope of a concrete exit ramp that she alleges was slick with an oily substance and/or otherwise defective. Immediately after the alleged accident, Mrs. Radlein went out for dinner with her family and did not report the accident to the hotel’s guest services manager until the morning after it occurred. Later that day, Mrs. Radlein sought medical treatment at Tulane Medical Center. The Holiday Inn French Quarter paid for this treatment and Mrs. Radlein returned home to California.

Later, Mrs. Radlein and her husband, Robert (“Mr. Radlein”), brought suit against Holiday Inns, Inc., Holiday Inn’s garage operator, Central Parking, and their respective insurers, alleging that a defect in the construction or design and/or | athe negligent maintenance of the area on ramp leading from the garage to Exchange Alley exit way caused her accident and that the defendants were liable for her damages.

Before trial, Plaintiffs attempted to amend their petition to add a breach of contract claim based on a note purportedly written by the hotel’s guest services manager, Daniel Morning, the morning after the incident. This note, which directed Plaintiff to go to Tulane Medical Center, contained the words “bill to” Holiday Inn French Quarter. The trial court judge would not allow Plaintiffs to amend their petition to add the contract claim and reserved ruling on the admissibility of the note until the day of trial. On the morning of trial, the court ruled that the note was inadmissible. Plaintiffs filed an emergency writ to this Court, which was denied on the basis that Plaintiffs would have an adequate remedy on appeal. Plaintiffs did not seek supervisory review of the trial court’s denial of their motion for leave of court to amend their petition.

The matter was tried before a jury from August 28, 2006 to September 7, 2006. At trial, Mrs. Radlein and her daughter, Barbara, testified that there was an oily, slippery, substance on the surface of the concrete exit ramp that caused Mrs. Radlein to fall. They further testified that the oily substance was caked all over Mrs. Rad-lein’s dress and stockings after the fall and that they had to wipe the oily substance from their hands. Photographs taken by Barbara Radlein on the night of the accident, which depicted the area where Mrs. Radlein fell, were also introduced into evidence.

Mr. Radlein, an architect, testified as both a fact and an expert witness at trial. He testified that in his opinion, the brushed concrete surface of the ramp was | sinherently unsafe and a poor surface for a walkway. Plaintiffs also called Dennis Howard, a “safety expert,” as an expert witness. Mr. Howard rendered his opinion as to the inherently dangerous slope and surface of the ramp, but was restricted from testifying as to his opinions regarding the maintenance of the ramp or the existence of an oily substance on the ramp, since those opinions were held to be outside the scope of his previously disclosed opinions.

Defendant’s expert, Sonny Launey, a registered Professional Civil Engineer, testified that there was nothing inherently dangerous about the surface of the ramp and that it complied with all applicable codes and standards. Mr. Launey also analyzed the photographs taken by Barbara Radlein on the night of the accident. He testified that the photographs do not depict any grease or oil in the area in which Mrs. Radlein fell.

At the conclusion of the evidence, the jury found that Plaintiffs did not prove by a preponderance of evidence that Mrs. Radlein slipped and fell due to an unreasonably unsafe condition. In accordance with the jury’s finding, the trial court rendered a judgment dismissing Plaintiffs’ claims. Plaintiffs filed a post-trial motion to overturn the jury’s decision, which the trial court denied. This appeal followed.

ASSIGNMENTS OF ERROR

Although the pages entitled “Assignments of Error” and “Issues Presented for Review” were left completely blank in Plaintiffs’ brief, we were able to glean an understanding of how and where Plaintiffs ■feel the trial court erred. Plaintiffs essentially argue that the trial court erred in failing to provide proper jury | ¿instructions to the jury, failing to allow the note from the hotel manager into evidence, and failing to allow Plaintiffs’ expert, Dennis Howard, to testify as to maintenance issues.

LAW AND ANALYSIS

Plaintiffs argue that the jury’s verdict was flawed and should be thrown out because the charges given by the trial court were manifestly erroneous and do not properly reflect the state of the law. Specifically, Plaintiffs argue that jury instruction as to the standard of care owed by the hotel was an incorrect statement of the law. They argue that a hotel owes a high duty of care to its guests, rather than merely the duty of reasonable care that as is owed by merchant to its invitee. Plaintiffs also argue that the trial court committed manifest error in instructing the jury on the law regarding an unreasonably dangerous or unsafe condition. Finally, Plaintiffs also argue that the jury’s verdict was fatally flawed because the jury answered only the first jury interrogatory and none of the following interrogatories.

The trial judge has wide discretion in determining which instructions to provide to a jury and his decision will not be overturned absent an abuse of that discretion. Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117. We find no error in the charges given to the jury by the trial court. The jury charge regarding the standard of care owed by Holiday Inn to Mrs. Radlein was a correct statement of the law. Reasonable and ordinary care is the proper standard by which to judge the duty of a hotel to prevent a slip and fall in the public area of a building. See Jones v. Hyatt Corp. of Delaware, 94-2194 (La.App. 4 Cir. 7/26/95), 681 So.2d 381. Therefore, this assignment of error has no merit.

| ¡^Plaintiffs argue that the trial court committed manifest error in providing the jury charge regarding the law on unreasonably dangerous or unsafe condition. The trial court’s jury charge was as follows: “In the context of slip and fall cases, proof of hazardous conditions requires plaintiff to prove the existence of a foreign substance on the floor or an otherwise unreasonably dangerous or unsafe condition.” We find the jury charge to be a proper statement of the law. “A Plaintiff must first show that he has fallen on a foreign substance or object on the floor in order to establish a prima facie case.” Jones v. City of New Orleans, et al., 559 So.2d 28 (La.App. 4 Cir.1990); See also, Hess v. Schwegmann Giant Super Markets, Inc., 595 So.2d 754 (La.App. 4 Cir. 1992) (Plaintiff bears the burden of proving that a foreign substance or hazard caused her to fall and sustain an injury; once such facts are established, the burden shifts to the defendant to exculpate himself from the presumption that he was negligent.) Accordingly, we cannot say that the trial court abused its discretion in giving this particular charge to the jury.

Plaintiffs argue that the jury verdict form was flawed and that the jury committed manifest error in answering only interrogatory number one and neglecting to answer the additional interrogatories regarding damages and apportionment of fault. Jury Interrogatory No. 1 read:

1. Do you find by a preponderance of the evidence that Mrs. Radlein slipped and fell due to an unreasonably dangerous condition? If your answer to No. 1 is “No,” then sign this form and return to the courtroom without answering any further questions. If your answer to No. 1 is “Yes,” please proceed to No. 2

Plaintiffs argument is meritless. In the instant case, the threshold question was whether Plaintiffs proved the accident was caused by either an inherently | ^dangerous defect in the concrete surface itself or an oily substance on the surface of the concrete. Since eleven out of the twelve jury members determined that Mrs. Radlein did not prove that she slipped and fell due to an unreasonably dangerous condition, there was no need for those jury members to answer the irrelevant interrogatories regarding damages and apportionment of fault. Moreover, in order to sustain a reversal on appeal, appellants must show that they preserved the issue on appeal by an objection. La.Code Civ. Proc. art. 1793(C). Here, as Appellees point out, Plaintiffs’ counsel failed to object to the wording of the jury interrogatories during the jury charge conference. Therefore, this issue was not properly before this Court.

Plaintiffs also argue that the trial court erred in not allowing the note from the manager of guest services into evidence at trial. Plaintiffs argue that the note should have been allowed into evidence to impeach the guest services manager’s credibility, since he testified at deposition that he did not recall writing a note. Appellees, on the other hand, argue that the trial court properly excluded references to the note because this case was based purely on tort and there was no claim for breach of contract.

We cannot overturn a trial court’s rulings on the admissibility of evidence unless those rulings were clearly wrong or we find that the trial court abused the vast discretion it is accorded. King v. Phelps Dunbar, L.L.P., 01-1735 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Id. Historically, an offer to pay medical expenses is generally not admissible because it could be misconstrued as an admission of liability. See, e.g., Francis v. Brown, 95-1241 (La.App. 3 Cir.3/20/96), 671 So.2d 1041, 1047. Further, Louisiana Code of Evidence Article 409 provides,

[Ejvidence of furnishing or offering or promising to pay expenses or losses occasioned by an injury to person or damage to property is not admissible to prove liability for the injury or damage nor is it admissible to mitigate, reduce, or avoid liability therefore. This article does not require the exclusion of such evidence when it is offered solely for another purpose, such as to enforce a contract for payment.

We cannot say the trial court was clearly wrong in excluding the note from evidence. In this case, which is a suit for damages in tort, and not in contract, the trial court was within its discretion in refusing to allow the note into evidence, as doing so would have prejudiced the jury. Moreover, the note was irrelevant since it could only be used to prove the existence of an agreement to pay damages and there was no contractual claim for payment of medical expenses in this case. Therefore, the trial courts ruling on this issue was not clearly wrong and cannot be overturned.

Finally, Plaintiffs argue that the trial court erred in refusing to allow Dennis Howard to offer a direct opinion as to maintenance issues. A trial judge has wide discretion in determining whether to allow a witness to testify as an expert and his judgment will not be disturbed by an appellate court unless it is clearly erroneous. Avenal v. State Dept. of Natural Resources, 01-0843 (La.App. 4 Cir. 10/15/03), 858 So.2d 697. A trial judge also has great discretion in limiting evidence introduced at trial which was not disclosed prior to trial. Coignet v. Deubert, 413 So.2d 253, 256 (La.App. 4 Cir.1982).

Mr. Howard was deposed prior to trial. His opinions at the time of his deposition were limited to the slope and surface of the ramp and the warnings | ^present in the area. When deposed, Mr. Howard did not offer any opinions as to the maintenance of the ramp or any criticisms of the maintenance procedures of the hotel or parking garage operator. After the deposition, Mr. Howard agreed to supply any additional opinions in writing. He did not supply any updated opinions critical of the maintenance procedures employed by the hotel or the parking garage operator. Based on these facts, the trial court properly limited Mr. Howard’s testimony at trial and the court did not abuse its discretion by limiting Dennis Howard’s testimony to the topics and scope he had testified about at deposition.

After reviewing the evidence considered by the jury, we find that the jury verdict was correct and is supported by the evidence. The jury viewed the photographs of the scene of the accident and the condition of the concrete surface. The jury heard the testimony of Mrs. Rad-lein and her daughter about the oily substance on the surface of the ramp, and of Mr. Radlein and Dennis Howard regarding the supposed inherently dangerous condition of the surface upon which Mrs. Rad-lein was walking when she fell and was injured. The jury also heard the testimony of the defendants’ expert who testified that there was nothing inherently dangerous about the slope or surface of the ramp in question. In the end, the jury concluded that Mrs. Radlein’s fall was not caused by an unreasonably dangerous condition. Apparently, the jury found Defendants’ expert more credible and compelling than the Plaintiffs and their expert witness. When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Ferrell, 650 So.2d at 746; Rosell, 549 So.2d at 844.

The evidence in this case was sufficient to support the jury’s finding and the trial court’s judgment should not be overturned. Moreover, the trial court did not |nabuse its great discretion in failing to allow the note into evidence, by limiting Dennis Howard’s testimony, or in providing the jury instructions. For the foregoing reasons, we affirm the judgment of the trial court and assess costs of this appeal to plaintiffs.

AFFIRMED.

      . 2006-C-l 168.

      . On the morning of the hearing before this Court, Plaintiffs filed a Motion to Allow the Supplementing and Amending of the Original Brief on Behalf of Appellants, which was denied.