author: MAX N. TOBIAS, Jr., Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Joseph BROWN and Jeffery Harris.
    No. 2005-KA-1100.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2006.
    Rehearing Denied Nov. 15, 2006.

      Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plain-tifflAppellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant, Jeffery Harris.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant, Joseph Brown.
    (Court Composed of Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, Jr., Judge.

|i>On 30 March 2004, the state filed a bill of information charging the defendants-appellants Jeffery Harris (“Harris”) and Joseph Brown (“Brown”) each with one count of possession of cocaine with the intent to distribute, a violation of La. R.S. 40:967(A). Both defendants were arraigned and entered not guilty pleas on 1 April 2004. The trial court denied the defendants’ motions to suppress evidence on 1 July 2004. On 11 January 2005, the trial of both defendants commenced before a twelve-person jury. The trial concluded the following day. As to Harris, the jury returned a responsive verdict of guilty of attempted simple possession of cocaine. As to Brown, the jury’s verdict was guilty as charged.

On 13 January 2005, the state filed multiple bills of information. The defendants were arraigned on the bills and entered not guilty pleas. On 27 January 2005, Harris changed his plea of not guilty to guilty of being a second offender. The court sentenced him to eighteen months at hard labor to run concurrently with any other sentence. As to Brown, a hearing was held on the multiple bill, which charged him with being a quadruple offender. At the end of the hearing, the court reset the matter for argument on 11 February 2005. On 10 February 2005, Brown’s defense counsel filed the written objections to the multiple bill. Also on 10 February 2005, Harris’s counsel filed a motion for new trial, which was denied; a motion for appeal was granted. On 11 February 2005, the court found Brown to hbe a fourth offender. On motion of the defense, sentencing was set for 14 February 2005. On that day, counsel for Brown filed a motion for new trial, which was denied. Brown waived sentencing delays, and the trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Brown’s motion to reconsider sentence was denied; his motion for an appeal was granted.

FACTS

On 23 February 2004, Detective Dennis Bush began a surveillance of a double house located at 2612-14 St. Phillip Street, New Orleans, Louisiana. The detective watched the location from an unmarked vehicle parked a short distance away. He observed two men, later identified as the defendants, exit 2612 St. Phillip Street and enter the other side of the double. A few minutes later they exited. Thereafter, the defendants loitered in front of the residences. Detective Bush watched for approximately thirty minutes, during which he saw six or seven individuals walk up to the defendants and hand one or the other of them what appeared to be currency. After receiving the currency, one of the defendants would remove a plastic bag, retrieve an object inside, and then hand the object to the person who had approached them. Once or twice, the defendants went in and out of both sides of the double house. Believing that the defendants’ actions were consistent with selling drugs stored in the building, Detective Bush ended the surveillance and drove a few blocks away where he met with three other officers. To avoid having the undercover vehicle compromised, Detective Bush got in the marked police unit, and he and the other officers drove back to 2612-14 St. Phillip Street with the intention of conducting an investigatory stop of the defendants.

¡¿When the officers arrived in the block, Harris ran from the scene. Detectives Roc-caforte and Arcana, chased him on foot and apprehended him less than two blocks away. The officers seized $292.00 in currency from him, but he was not in physical possession of any narcotics. Meanwhile, Brown did not flee and was detained by Detective Bush. Detective Bush discovered a plastic bag in Brown’s hand; it contained numerous small white objects. Currency in the amount of $165.00 was also seized from Brown.

After the defendants had been detained, the officers decided to enter the building. The door to 2612 St. Phillip Street was partially open, and the officers could see that it appeared to be an abandoned residence. On a chair inside near the door was a loaded .357 magnum handgun.

As to 2614 St. Phillip Street, the officers knocked and were admitted by the occupant, Gail Ricks. They asked her if there was cocaine inside and she said “no,” but gave them permission to search. In one of the bedrooms, the officers discovered a bowl containing several small packaged bags of marijuana. Ms. Ricks was arrested for possession of this marijuana. One small piece of crack cocaine was also found in the kitchen.

At trial, Nhon Hoang was accepted by stipulation as an expert in the analysis of narcotics and narcotics packaging. He identified a plastic bag containing twenty-three pieces of a rock-like substance, with each piece also being wrapped in plastic, and stated that the material tested positive for cocaine. He also testified that a green vegetable matter he tested was positive for marijuana and that a single piece of rock-like substance tested positive for cocaine.

The defendants presented no witnesses at trial.

ERRORS PATENT

IsA review of the record for errors patent reveals one potential error. After the jurors began their deliberations, they returned to the courtroom with a question and then resumed deliberations. At that time, the prosecutors informed the court that they believed one of the jurors (Juror Number 7) had signaled to one of the defendants. Juror Number 7 was briefly questioned by the court after which he returned to the jury room. On his way there, Juror Number 7 advised one of the deputies that he no longer wanted to serve on the jury and, after rejoining the jury, Juror Number 7 told the rest of the panel exactly what transpired in the courtroom. After learning of the incident, the trial court admitted it had erred in failing to admonish Juror Number 7 from speaking of the questioning to his fellow jurors. Counsel for both defendants moved for a mistrial, which the court denied.

The jury returned to the courtroom where they were instructed by the court to cease deliberations and were taken back to the jury room. After being questioned a second time outside the presence of the remaining jurors, Juror Number 7 was excused. The jurors were escorted into the courtroom, at which time the alternate juror became a member of the jury; the jurors were told that this action required them to begin deliberations anew. However, the court also informed the jurors that there was a problem obtaining dinner for them. The court asked them if they wished to deliberate for a while, and if unable to reach a decision, go home, or would they rather “go home now.” The jurors indicated they wished to go home immediately. The court instructed the jurors not to discuss the case with anyone, stating that they were “sequestered” but that they would not be |fisent to a hotel. The court then released the jurors to. their homes with instructions to return the next morning.

Although the trial court stated that the jury was “sequestered,” allowing them to go to their homes meant that they were not sequestered. Moreover, it was error to allow them to go home after they had been charged. La.C.Cr.P. art. 791 states:

A. A jury is sequestered by being kept together in the charge of an officer of the court so as to be secluded from outside communication, except as permitted by R.S. 18:1307.2.
B. In capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered.
C. In noncapital cases, the jury shall be sequestered after the court’s charge and may be sequestered at any time upon order of the court. [Emphasis supplied.]

In State v. Hill, 562 So.2d 12 (La.App. 5 Cir.1990), the trial judge released the jurors after they had deliberated for two hours. The appellate court held that the trial judge’s failure to observe the mandate of Article 791(C) was an error patent and grounds to reverse the conviction. In doing so the court, quoted State v. Willis, 371 So.2d 1327, 1328 (La.1979):

The purposes of sequestration are to insulate the jurors from outside influence, or the possibility thereof, and to insure that their verdict will be based upon the evidence developed at trial. State v. Parker, supra [372 So.2d 1037 (La.1979) ]; State v. Marchand, 362 So.2d 1090 (La.1978). So strictly is the prophylactic rule enforced that upon separation of the jury a presumption of prejudice arises which may only be rebutted if it affirmatively appears that no prejudice to the accused could have resulted.

State v. Hill, 562 So.2d at 14.

|7In Willis, the Supreme Court reversed the defendant’s conviction because the record did not affirmatively show that the defendant did not suffer prejudice. The Fifth Circuit reached the same conclusion in Hill. However, the Fifth Circuit later distinguished both of these cases in State v. Allen, 97-696 (La.App. 5 Cir. 1/14/98), 707 So.2d 72. There, the court did not sequester the jurors, but then later questioned them on whether they had been influenced by anyone or discussed the case, to which they all responded negatively. Additionally, when the jury was polled after the verdict, the court asked them to write on the polling slips whether anyone had influenced them. Each of the jurors wrote the word “no.” Moreover, the record showed that the defendant was thoroughly questioned by the trial court: he stated that he understood his rights including his right to move for a mistrial and he waived that right. The defendant also stated that he did not feel that he had been prejudiced by the fact that the jury was not sequestered as required by La. C.Cr.P. art. 791.

In State v. Parker, 372 So.2d 1037 (La. 1979), there were several instances during the capital trial where the record did not show that the jurors had been sequestered or placed under the supervision of a court officer during a recess. They were allowed to make unsupervised phone calls and drive themselves to and from the court and the hotel. Although the defense never objected at trial and actually agreed to several of the violations, the Supreme Court reversed the conviction when the sequestration issue was raised for the first time on appeal. In a footnote, the court stated:

|sWe note, however, that the jurisprudence of this state has long recognized that it is not necessary for a defendant to complain of injury resulting from the failure of the trial court to sequester jurors as required by law, nor may an accused prejudice his rights by affirmatively consenting to such a method of conducting his trial. [Citations omitted.]

Id. at 1038 n. 1.

The Supreme Court itself distinguished Parker in State v. Miller, 391 So.2d 1159 (La.1980), another capital case. In Miller, the jury was allowed by the trial court to read newspapers and watch television, as well as have unsupervised access to telephones in their hotel rooms during the trial. On appeal the defendant argued that the court should presume prejudice and reversible error. The court declined to do so, finding that in Parker, there had been a continuing and substantial failure to adhere to the sequestration rule. The court rejected the defendant’s argument of presumed prejudice, finding that under the facts no such presumption was warranted, and concluded that “[b]ecause no prejudice has been shown, any error here was harmless.C.Cr.P. 921.” Id. at 1161.

In Willis, no objection was made by the defense when the court released the jurors to their homes on Friday evening with the instructions to return on Monday to resume their deliberations. However, the Supreme Court stated that because the violation of the sequestration rule was an error patent on the face of the record, it was reviewable in the absence of an objection. The court further stated that the “extended separation” of the jury “exposed it to improper influences” which could only be speculated upon, and because there was “no indication that defendant was not prejudiced” reversal was required. Willis, 371 So.2d at 1328. The offense in Willis was not a capital offense.

[sIn Hill, supra, rendered several years after Miller, the appellate court specifically recognized that there had been no objection at trial, that the issue was not raised by the defendant on appeal, and the defendant had not alleged that he was prejudiced in any way. The court even stated that it was because the issue had not been raised at the trial court level that “the record fails to disclose that no prejudice to the defendant could have resulted from the overnight release of the jury during deliberation.” Hill, 562 So.2d at 14-15. The court found that, despite the total failure of the defendant to raise the issue or aver prejudice, “the mandate of Art. 791 to sequester the jury after the court’s charge must be complied with or it is reversible error.” Id. at 15. In Hill, the jurors were released to go home overnight after they deliberated for approximately two hours, and, upon their return the next day, concluded the deliberations and rendered a verdict.

In the case at bar, the jury deliberated for over an hour before Juror Number 7 was excused from the panel and the alternate was substituted in his place. At no time were the remaining eleven jurors told to disregard anything Juror Number 7 may have said about the case or the events leading up to his dismissal from the jury. We are unable rebut any prejudice that may have arisen as a result of these events.

In Willis, the jurors were allowed to go home for the weekend. Thus, the instant case, like Hill and Willis, would appear at first glance to present reversible error. Also, contrary to what occurred in Allen, the trial court did not ask either defendant to concur in the decision not to sequester the jury, and the court did not explain the issue of sequestrating the jury to them. However, neither of the two defense attorneys objected to the decision to send the jury home for the night, |inalthough both raised the court’s violation of Article 791(C) in their separate motions for new trial.

With respect to whether the record demonstrates any prejudice to the defendants, the record shows that the court spoke to the jurors about their obligations. Specifically, when the court released them for the night at the end of the first day of the trial, the court instructed the jurors not to discuss the case with anyone. More particularly, the court told them:

Do not discuss any aspect of this case with anyone. Not with your spouse, not with your family members, children, don’t call your friends and ask, don’t call pastor and say this is what’s going on, what should I do. You’re sequestered in that you’re still part of this deliberating jury, but we’re not going to send you to a hotel. Everybody is going to go home for the night.

The court further advised the jurors that they would commence their deliberations anew the next morning.

When the jury returned to court the next morning, the court inquired as to whether the jurors had complied with the court’s instructions not to discuss the case with anyone: “Did everyone comply with the court’s instructions regarding not discussing the case after you left here last night?” At this point, the record on appeal reflects that the “JURORS ANSWER IN AFFIRMATIVE.” The record does not reflect whether each juror individually responded to the question or replied as a group (and if answering as a group that the court noted that all jurors responded). The court continued immediately thereafter:

Is there anyone who did not comply with those instructions? Okay. Ladies and gentlemen, you may now proceed upstairs to the jury room and commence your deliberations.
Ladies and gentlemen, let me just advise you of something that I didn’t talk about before but I’m sure you would understand this. If at any time during your | n deliberations any one juror leaves the room for any reason, such as, to go [sic] restroom, just stop your deliberations until that juror gets back. Okay?

We note the court did not inquire as to other possible outside influences, such as exposure to television or newspapers. On the other hand, because the alternate juror had been substituted the previous evening, the jurors began their deliberations anew upon their return to court on the second day of trial. They remained sequestered thereafter until they returned the verdicts.

In terms of the timeline of deliberations, the jury was originally charged at 7:00 p.m. on the first day of the trial. They retired to deliberate at 7:16 p.m. and returned to court with a question at 8:40 p.m. They were sent out again two minutes later at which point the issue arose regarding Juror Number 7. After this, the juror was twice brought into the court, outside the presence of the other jurors, and was finally dismissed at 9:32 p.m. It was then that the alternate was substituted and the jury dismissed for the night. The next morning, the jury retired to deliberate at 8:43 a.m. and returned its verdict approximately one hour later, at 9:38 a.m. While time itself does not indicate that no influence was placed on the jurors, it does at least indicate that the jury spent some time in its deliberations after the alternate was substituted. Furthermore, the jury returned different verdicts (both 10 to 2 votes) as to each defendant, and the verdicts implicitly reflect the fact that one defendant was found in physical possession of cocaine and one was not.

A review of the changes enacted to Article 791(B) tends to support the conclusion that, absent an objection and showing of prejudice, the error is not reversible. When the legislature amended Article 791(B) to allow the parties to h¡.waive sequestration of the jury in a capital trial, it did not add any similar language to Paragraph C. Considering that the Supreme Court in Miller had already recognized that the error could be harmless, the legislature may have felt that no amendment was necessary.

The record reveals no other errors patent.

CONCLUSION

Based on the foregoing, we find that the trial court erred in failing to sequester the jurors after their being given the jury charge as mandated by the literal language of La.C.Cr.P. art. 791(C). We further find that the trial court failed to properly question each juror on the record whether he or she had been influenced by another person, viewed television, heard a radio broadcast, or read a newspaper article about the case on the morning they began to deliberate. Finally, we find that insufficient instructions were given to the remaining eleven jurors after the dismissal of Juror Number 7. Consequently, we reverse the convictions of the defendants and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

LOMBARD, J., Concurs.

BELSOME, J., Concurs for Reasons Assigned by LOMBARD, J.

LOMBARD, J.,

Concurring.

| pursuant to La.Code Crim. Proc. art 791(C), “[I]n noncapital cases, the jury shall be sequestered after the court’s charge and may be sequestered at any time upon order of the court.” The trial court’s failure to sequester the jury after charging the jury was clear error. Accordingly, I concur in the result.

      . The fact that Juror Number 7 told the remaining jurors what had occurred was reported by the trial court's secretary who was standing by the door of the jury room.

      . At the time, La.C.Cr.P. art. 791(B) did not contain the provision, which allows the parties to jointly move that the jury in a capital case not be sequestered. Acts 1995, No. 1277 added that provision. No change was made to Paragraph C regarding mandatory sequestration of a jury after being charged in a non-capital case.

      . The record does not reflect what the question was, nor does the transcript or record indicate that there were any objections lodged during this portion of the proceedings. It appears however that no additional charge was given.

      . The amendment to Article 791(B) enacted by Acts 1995, No. 1277 was the second amendment that year. In Acts 1995, No. 1172, paragraph B was initially amended to provide for two subparagraphs. The first tracked the present language requiring sequestration in capital cases unless the court grants a joint motion waiving sequestration. Subparagraph (2) stated that when the court granted a joint motion under subparagraph (1), "the jury shall be sequestered after the court’s charge until the completion of the sentencing hearing. The jury may be sequestered at any time upon order of the court.” This language tracked that of Article 791(C) pertaining to sequestration in non-capital cases. The legislature's decision in Acts 1995, No. 1277 to remove the requirement for sequestration after the jury is charged in capital case implies that sequestration is also waiva-ble in non-capital cases, either through action or inaction, as the requirements in non-capital cases generally are less stringent than capital cases.

      .Because we are reversing the case on the error patent, the defendants' remaining assignments of error are moot.


source: Caselaw Access Project

author: COOKS, Judge. COOKS, J.,

license: Public Domain

text:
    STATE of Louisiana v. John THOMPSON, III.
    No. 2006-474.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 8, 2006.

      Bennett R. LaPoint, Assistant District Attorney, Jennings, LA, for Appellee: State of Louisiana.
    Derriel C. McCorvey, Lafayette, LA, for Defendant-Appellant, John Thompson, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   COOKS, Judge.

hThe Defendant, John Thompson, III, was charged with illegal carrying of weapons, in violation of La.R.S. 14:95(E). Defendant entered a plea of not guilty. A jury returned a verdict of guilty, and Defendant was sentenced to seven years at hard labor, to be served without benefit of probation, parole, or suspension of sentence. Defendant filed a Motion to Reconsider Sentence, which was denied.

Defendant filed this appeal and is now before this court asserting the following six assignments of error:

1) the evidence was insufficient to support his conviction;
2) the trial court erred in revising its ruling on his motion to suppress;
3) the trial court erred when instructing the jury regarding constructive possession;
4) the trial court erred in failing to include attempt in the jury instructions;
5) his right to trial by jury of his peers was denied; and
6) the trial court erred in sentencing him to seven years at hard labor.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends the evidence, when viewed in the light most favorable to the prosecution, was insufficient to sustain a verdict of guilty of illegal carrying of weapons.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Pigford, 05-477, pp. 5-6 (La.2/22/06), 922 So.2d 517, 520-21.

Louisiana Revised Statute 14:95(E) provides, in pertinent part, as follows:

|Jf the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, ... while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.

Thus, in order to convict Defendant of this crime, the State was required to prove beyond a reasonable doubt that Defendant: “(1) knowingly or intentionally possessed any firearm or other instrumentality customarily used o[r] intended for probable use as a dangerous weapon, while at the same time (2) knowingly or intentionally possessing a controlled dangerous substance .... ” State v. Blanchard, 99-3439, p. 10 (La.1/18/01), 776 So.2d 1165, 1174 (footnote omitted).

Natassia Arceneaux testified that on March 1, 2004, after she first saw Defendant at the home of another woman, he ran her off the road and subsequently followed her to the Jennings Police Department. At a hearing on Defendant’s motion to suppress, Arceneaux testified she saw Defendant with a gun that night.

Sergeant Kevin Hoover testified that Arceneaux entered the police department and claimed the Defendant ran her off the road, followed her to the police department, pulled up behind her, and got out with a gun. At that time, Sergeant Hoover, Lieutenant Ferroll LeBlanc, and Officer Michael Hill began looking for Defendant.

Subsequently, Deputy Angie Theunissen of the Jefferson Davis Parish Sheriffs Office saw Defendant’s vehicle weaving in the roadway at a caution light in Roanoke. Deputy Theunissen was advised that officers with the Jennings Police Department were looking for Defendant to question him regarding the gun incident, but he should not be stopped until he was closer to the roadblock set up by those officers. Defendant eventually pulled into the driveway of Henry Riley, III. He got out of his vehicle and was walking toward the house when Deputy Theunissen stepped out of 1 o.her car and asked Defendant to approach her vehicle. Defendant complied with the request. At that time, Defendant was approximately thirty to thirty-five feet from his vehicle.

Lieutenant Ferroll LeBlanc arrived at the scene followed by Sergeant Hoover. Lieutenant LeBlanc testified he asked Defendant if he had a gun. Defendant stated he did, and Lieutenant LeBlanc then asked if he could look for the gun. Defendant informed Lieutenant LeBlanc he could find the gun in the center console of the vehicle. Lieutenant LeBlanc’s testimony was confirmed by Sergeant Hoover. Sergeant Hoover testified that while Lieutenant LeBlanc went to look for the gun he patted down Defendant, finding one thousand four hundred dollars in Defendant’s front pocket.

Lieutenant LeBlanc testified he opened the center console of Defendant’s vehicle and found a revolver. As he was removing the gun from the console, Lieutenant LeBlanc noticed a bullet and a “white powdery substance” that appeared to be cocaine on the driver’s seat. Sergeant Hoover confirmed Lieutenant LeBlanc’s findings. Deputy Douglas Britnell then retrieved a field test kit from the trunk of his police car and gave it to Lieutenant LeBlanc and Sergeant Hoover. The white substance was then tested, and the results were positive for cocaine.

Sergeant Hoover retrieved additional bullets, a speed loader, and a syringe from the console of Defendant’s vehicle. He also found a green pill bottle with a white cap “right at the front of the driver’s seat kind of right underneath the driver’s seat.” The bottle contained a “rock-like powdery substance.” Lieutenant LeBlanc saw Sergeant Hoover retrieve the bottle.

Deputy Theunissen, whose police ear was twelve to fifteen feet from Defendant’s vehicle during this time, testified she did not see anything on the driver’s |4seat of Defendant’s vehicle, nor did she remember seeing a pill bottle on the floor of the vehicle. Deputy Theunissen later indicated it was possible these things were on the seat and she did not see them because her attention was not focused on that area.

Officer Michael Hill testified he handcuffed Defendant after he was informed that a gun and paraphernalia had been found inside Defendant’s vehicle. He then transported Defendant to the police station.

While at the police station, Sergeant Hoover noticed a “white patch” on the back of Defendant’s pants and took a photograph of it. Sergeant Hoover testified the white powder on Defendant’s pants was the same consistency as the substance found on the seat of the Defendant’s vehicle.

Henry Riley, III, testified that at 2:00 a.m. on March 1, 2004, Defendant was on his porch knocking on the door. At that time, a female officer pulled up and asked Defendant to speak with her. Once several other officers arrived, Riley stated Defendant was searched and handcuffed. After he was handcuffed, Defendant was brought to a police car. Riley testified Defendant was not asked for permission to search his vehicle. However, “they” went inside the Defendant’s vehicle and “came out” with a gun, which was placed on top of the female officer’s car. The officer with the tan shirt then “went to his vehicle, and he come out with a — a clear bottle.” The bottle was taken from the trunk of the officer’s car. According to Riley, the group of officers then went back to Defendant’s vehicle for a few minutes and one of the officers “came out” and had the bottle in his hand and was shaking it. One of the officers then said “you can let him know he’s being arrested.”

Riley was shown the bottle Sergeant Hoover testified he found on the driver’s side floor of Defendant’s vehicle, and Riley indicated that it looked like the bottle he saw an officer get out of the trunk of his car. Riley was also shown the field test kit | ¡¡that was used the night of the offense, and he testified it was not the bottle retrieved from the police car. He was positive the green bottle he was shown in court was the clear bottle he saw the night of the offense.

The lab report established the white powdery substance found on Defendant’s seat and in the green plastic bottle found on the floor of Defendant’s vehicle tested positive for cocaine base.

Defendant argues the State was required to prove that the firearm had to be within his immediate control “at the time of arrest.” Defendant further argues he exercised no control over the gun or drugs found inside his vehicle, as he was approximately thirty feet away from his vehicle when he was arrested. Defendant also asserts there was no connection between the gun and the drugs. Additionally, Defendant argues the State failed to prove beyond a reasonable doubt that he was ever in possession of the drugs based on the eyewitness testimony of Deputy Theunissen or that there was a nexus between the gun and the drugs. Therefore, the evidence presented was insufficient to support the jury’s verdict.

We find the jury’s verdict indicates it chose to believe the testimony of the several police officers over that of Riley or the equivocal observations of Deputy Theunis-sen. That credibility determination should not be second guessed by this court. State v. Anderson, 03-1601 (La.App. 3 Cir. 5/12/04), 872 So.2d 1251. Accordingly, the evidence proves, beyond a reasonable doubt, that a gun and cocaine were found inside Defendant’s vehicle.

We turn to address Defendant’s argument that he did not have possession of the gun and drugs found inside his vehicle and they were not in his immediate control. In Blanchard, 776 So.2d 1165, the supreme court stated the following regarding the term “possess” and the requirements of La.R.S. 14:95(E):

1 fiThis Court has previously considered the meaning of the word “possess” in La. R.S. 14:95(E). In State v. Sandifer, [95-2226 (La.9/5/96), 679 So.2d 1324] supra, .... [W]e held that the word “possess” “need not be defined statutorily because it has a ‘well known and commonly understood meaning.’ ” 679 So.2d at 1331 (citing State v. Richard, 245 La. 465, 158 So.2d 828, 831 (1963)). We held that in this statute, as in the statutes dealing with possession of drugs and possession of guns, the term “possess” “is broad enough to encompass both ‘actual’ and ‘constructive’ possession.” Id. ... Thus, we have already held that “possession” under La. R.S. 14:95(E), taken in its usual sense, includes constructive possession and we reaffirm that holding today. Further, this holding is reinforced by the fact that to interpret “possess” to mean only “actual possession” would lead to absurd consequences, as it would fail to punish a drug dealer found with a load of guns and drugs in the trunk of his car because the guns would not be on his person and they might not be found to be within his immediate control, depending on his location.

Id. at 1169-70 (footnotes 7 and 8 omitted).

The supreme court went on to find the following:

[U]nder La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more tha[n] mere possession of the firearm. It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.

Id. at 1173.

In State v. Dabney, 02-934 (La.4/9/03), 842 So.2d 326, the defendant was |7convicted of possession of a firearm while in possession of a controlled dangerous substance and possession of a firearm by a convicted felon. On the date of the offense, a group of men were gathered near a car parked in the middle of the 700 block of Kim Drive in Opelousas. Police testified they smelled a heavy odor of marijuana and pulled over in front of the group. The officers alleged marijuana was found near the defendant’s feet and a partially smoked blunt was inside his mouth. The officers testified the defendant consented to a search of the vehicle he was driving and informed them a gun was located under the driver’s seat. Police then retrieved a gun from the vehicle. The defendant denied possessing any drugs and indicated he discovered the gun when he went to retrieve a cassette tape from the vehicle. The defendant testified he had no intention of leaving the scene in the vehicle, as he was on parole at the time. A defense witness corroborated the defendant’s testimony.

The supreme court in Dabney found that rational jurors could have concluded, even accepting the defendant’s account as to his discovery of the gun, that his behavior in standing next to the vehicle did not constitute an act of divestiture of the weapon, “which remained subject to his dominion and control by virtue of its proximity to him in the vehicle in his exclusive possession at that time.” Id. at 330. The court also found the defendant had constructive possession of the gun. The court then cited the following: “Cf. State v. Blanchard, 99-3439, p. 9 (La.1/18/01), 776 So.2d 1165, 1173 (requiring a nexus between the firearm and the drug offense for purposes of La.R.S. 14:95(E) when the firearm is not in the actual possession of the defendant and not within his or her immediate control).” Id.

The supreme court then reversed the decision of this court, which had reversed the defendant’s conviction, and remanded the case. It did not, however, specifically Isdiscuss whether there was a nexus between the drugs and the gun.

In State v. Jarvis, 01-1277 (La.App. 4 Cir. 2/13/02), 811 So.2d 38, writ denied, 03-248 (La.2/13/04), 867 So.2d 677, the defendant was stopped for a traffic violation. The defendant was asked to step out of his vehicle and, as he exited, a bag of marijuana fell to the ground. When the officer reached over to pick up the bag, he saw a revolver on the floorboard of the driver’s side of the vehicle. The defendant was immediately arrested. On appeal, the defendant alleged the trial court erred in failing to properly instruct the jury on the state’s burden of proof, as the trial court did not instruct the jury that a connection was required between the possession of the weapon and the possession of the drugs. The court in Jams found that the defendant’s reliance on Blanchard, 776 So.2d 1165, was misplaced because Blanchard was limited to cases of constructive possession. Although the defendant denied any knowledge of the weapon and drugs, the court found the evidence established the weapon was on the floor at the defendant’s feet; therefore, the gun was in the defendant’s immediate control prior to his stepping out of the vehicle.

Defendant in this case was not in actual possession of the gun and the drugs at the time he was approached by Deputy Theunissen, as he had just exited his vehicle where the items were located. However, the gun and the drugs were in the Defendant’s immediate control prior to his exiting the vehicle, as in Jarvis, 811 So.2d 38. Therefore, the State was not required to prove a nexus between the gun and the drugs. However, the State was also required to prove Defendant knowingly possessed the gun and the drugs.

[G]uilty knowledge, an essential component of any showing that a defendant has constructive possession of contraband, i.e., dominion and control over it although the contraband is not in his actual possession, State v. Bell, 566 So.2d 959, 960 (La.1990); State v. Sweeney, 443 So.2d 522, 528 (La.1983), may be inferred from the circumstances of the transaction. [State v.] Major, 03-3522[,] at fepj 8-9 [ (La.12/1/04) ], 888 So.2d [798] at 803; State v. Goiner, 410 So.2d 1085, 1087 (La.1982).

Pigford, 922 So.2d at 521.

The evidence proves Defendant had knowledge that the gun was in his vehicle, as he informed police of its location. Additionally, the evidence proves Defendant had guilty knowledge of the drugs. In State v. Wright, 05-477 (La.App. 5 Cir. 12/27/05), 920 So.2d 871, 875, the court stated the following:

In the present case, defendant was stopped while driving a vehicle in which cocaine was found in plain view on the center console between the driver’s seat and passenger’s seat. As the driver, defendant necessarily had dominion and control over the vehicle he was driving. As the sole occupant, it is presumed he had dominion and control over the contents of the vehicle, including the cocaine which was within his reach while he was driving. See, State v. Walker, [03-188 (La.App; 5 Cir. 7/29/03), 853 So.2d 61, writ denied, 03-2343 (La.2/6/04), 865 So.2d 738] supra, and State v. Christopher, 561 So.2d 935, 939-940 (La.App. 2 Cir.1990), writ denied, 567 So.2d 1124 (La.1990).

In the case at bar,' Defendant was driving a vehicle in which cocaine was in plain view on the driver’s seat and found in a bottle on the driver’s side floorboard. Defendant was the. driver and sole occupant of the vehicle. Accordingly, as in Wright, Defendant is presumed to have dominion and control over the contents of his vehicle, including the cocaine which was within his reach when he was inside the vehicle.

Thus, the evidence, when viewed in the light most favorable to the prosecution, proves beyond a reasonable doubt that Defendant knowingly or intentionally possessed a gun while knowingly or intentionally possessing cocaine. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant contends the trial court erred when instructing the jury on the law concerning constructive possession.

|inAt a conference regarding jury instructions, Defendant objected to the portion of the instructions regarding possession, as it did not include the phrase “at the time of arrest.” Defendant sought to have the instructions state that a person was in possession of an object if the person had physical contact with the object “at the time of the arrest.” The trial court denied Defendant’s request, indicating the addition of the language would lead to absurd consequences.

Defendant contends the trial court’s decision to exclude “at the time of arrest” in the jury instructions was erroneous and in direct contradiction of Blanchard, 776 So.2d 1165. In support of his argument, Defendant points out in Blanchard the supreme court cited the following from the case of Commonwealth v. Montaque, 23 S.W.3d 629 (Ky.2000).

Similarly, the Supreme Court of Kentucky, in Commonwealth v. Montaque, 23 S.W.3d 629 (Ky.2000), recently decided that under their enhancement statute, Ky.Rev.Stat. Ann. § 218A.992(1), for possession of a weapon at the time of the commission of a drug crime, there must be a nexus between the crime committed and the possession of a firearm, unless the defendant has actual possession of the firearm or constructive possession of a firearm within his immediate control when arrested:
While we decline to draw a bright-line rule to conclusively determine whether a nexus between the commission of the offense and the firearm possession has been established, we can make some general observations. First, whenever it is established that a defendant was in actual possession of a firearm when arrested or that a defendant had constructive possession of a firearm within his or her “immediate control when arrested,” then, like under the federal sentencing guidelines, the Commonwealth should not have to prove any connection between the offense and the possession for the sentence enhancement to be applicable. However, the defendant should be allowed to introduce evidence to the contrary, which would create an issue of fact on the issue. Next, when it cannot be established that the defendant was in actual possession of a firearm or that a firearm was within his or her immediate control upon arrest, the Commonwealth must prove more than mere possession. It must prove some connection between the firearm possession and the crime.
I iiM at 632-633. The court reasoned that “requiring proof of a nexus between the commission of the offense and the possession of the firearm reduces or eliminates [the risk that the statute could be used to punish non-criminal activity] without lessening the statute’s legitimate penal purpose.” Id. at 632.

Id. at 1172.

We note the “at the time of arrest” language used in Commonwealth was not adopted by our supreme court in its holding in Blanchard. As pointed out earlier, the supreme court set forth the following in its decision in Blanchard, 776 So.2d 1165:

... under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more that [sic] mere possession of the firearm. It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.

Id. at 1173.

Additionally, as noted earlier, the court in Jarvis, 811 So.2d 38, found the defendant was in possession of a gun and drugs prior to stepping out of his car when stopped by police. The same is true in the case at bar. Once Defendant stopped and exited Ms vehicle, Deputy Theunissen asked Defendant to approach her vehicle so she could speak to him. The gun and the drugs were in Defendant’s immediate control prior to his exiting his vehicle. Therefore, the trial court did not err in failing to instruct the jury that Defendant had to possess the gun and the drugs “at the time of arrest” in order to convict the Defendant.

I ^ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court erred in reversing a previous ruling granting his Motion to Suppress, based solely upon additional evidence that a witness (Henry Riley, III) called by Defendant lied about having a felony conviction within the last ten years.

A bill of information was filed on March 25, 2004 charging Defendant with possession of cocaine, and the case was assigned docket number CR-288-04. A Motion to Suppress was filed referencing that docket number on May 18, 2004. The bill of information was amended on July 8, 2004 to charge Defendant with possession of cocaine with intent to distribute. On that same date, a hearing on a Motion to Suppress was held, at which time the court granted the motion. On July 8, 2004, Defendant was charged with illegal carrying of weapons, and that matter was assigned docket number CR-578-04.

Defendant proceeded to trial on both docket numbers on March 15, 2005. On March 16, 2005, the charge of possession of cocaine with intent to distribute was dismissed by the State. After Defendant was convicted of illegal carrying of weapons, Notices of Appeal were filed in both docket numbers.

Two appeals were lodged with this court on March 31, 2006, one bearing docket number KA06-473 and the other bearing docket number KA06-474. This court issued a rule to show cause why the appeal in docket number KA06^73 should not be dismissed as moot, as the appeal pertained to the dismissed charge of possession of cocaine with intent to distribute. Counsel for Defendant failed to respond and the appeal in docket number KA06-473 was dismissed on May 17, 2006.

Therefore, the issue in this assignment of error is not properly before the court. The Motion to Suppress was filed in docket number CR-288-04 and not docket | ^number CR-578-04, which is the docket number presently before this court on appeal.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, Defendant contends the trial judge and his counsel erred in relying on the third circuit case of State v. Dabney, 01-1110 (La. App. 3 Cir. 2/27/02), 809 So.2d 1196, writ granted, 02-934 (La.11/22/02), 829 So.2d 1034, decision reversed and remanded, 02-934 (La.4/9/03), 842 So.2d 326, on remand, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784, as supporting their failure to include attempted illegal carrying of weapons in the jury charge.

At trial, defense counsel, who is also appellate counsel, informed the court he objected to the inclusion of the lesser included offense of attempted illegal carrying of weapons in the jury instructions. Defendant was also questioned and indicated he had discussed the matter with counsel and agreed with counsel’s decision. Accordingly, the court excluded any reference to attempted illegal carrying of weapons from its jury instructions. See State v. Morris, 05-290 (La.App. 5 Cir. 11/29/05), 917 So.2d 633. As Defendant moved to have the lesser included offense excluded from the jury instructions, he may not complain of the error. La.Code Crim.P. art. 841(A).

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, Defendant contends his right to a trial by a jury of his peers was denied since the jury consisted of eleven whites and one African American.

During a discussion regarding the selection of alternate jurors, the following exchange occurred:

THE COURT: All right. We’ll select two (2). Each side will have two (2)— two (2) challenges — excuse me, each side will have one (1) challenge — one (1) peremptory.
_Llá-
THE COURT: — left over are gone, and you’ve got one (1) each I’m giving you to exercise for the two (2) alternate jui-ors that would be selected,—
THE COURT: But I’m going to let you use your baekstrikes, I mean, if you still—
MR. MCCORVEY: No. No, Your Honor, I’m good with everyone.
THE COURT: Okay.
All right. And then — and then finally then do we have any challenges — any Batson-type challenges in the use of any peremptory challenges by either the State of the defense?
MR MCCORVEY: No, I don’t.
MR. LAPOINT: No.
THE COURT: Okay.
All right. So we’re going to swear our twelfth juror in and then select the two (2) alternates.

The Defendant failed to make any objection regarding the make up of the jury in this case. Therefore, any alleged Batson violation was waived. La.Code Crim.P. art. 841(A) and State v. President, 97-1593 (La.App. 3 Cir. 7/15/98), 715 So.2d 745, writ denied, 98-2115 (La.12/11/98), 729 So.2d 590.

ASSIGNMENT OF ERROR NO. 6

In this assignment of error, Defendant contends the trial judge erred in sentencing him to seven years at hard labor.

In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the supreme court held that when a defendant claims a sentence is excessive “[t]he only relevant question on review ... [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984).”

State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.

| i./The Defendant was convicted of illegal carrying of weapons. A person convicted under La.R.S. 14:95(E) “shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.” The Defendant received a sentence of seven years.

The Defendant contends his sentence is excessive, as he was thirty-five years old, paying child support for three children, and was a high school graduate who had attended two colleges on a basketball scholarship. Additionally, his criminal record consisted of an outstanding warrant for dog fighting in Mississippi, he possessed only .07 grams of cocaine at the time of his arrest for the current offense, and the gun found inside his vehicle was unloaded. The Defendant further contends he is the victim of the legislature’s failure to assign a sentence under La.R.S. 14:95 that “reasonably punishes an offender who is found in possession of very small quantities of contraband while in lawful possession of a firearm; in the absence of a drug transaction; where the firearm is unloaded, and where the firearm is constructively possessed.”

We find Defendant’s sentence is not excessive. His behavior preceding the arrest, the other evidence, which included a large amount of cash and a syringe, were also considered by the trial court. Further, the sentence was only two years more than the minimum sentence, Defendant received no fine, and the trial court thoroughly reviewed the Defendant’s background before imposing the sentence. Additionally, the trial court’s original intent was to sentence the Defendant to eight years.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

COOKS, J., dissents in part and assigns reasons.

COOKS, J.,

dissents in part.

|,Although Defendant’s sentence was within the statutory range provided for the crime he was convicted of committing, the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) made clear the Due Process Clause requires that the “maximum sentence” the judge actually imposed must be based on the facts presented to the jury or admitted by the defendant. The Court explained the “statutory maximum” and the maximum sentence which may be imposed based on the admitted or proven facts for Apprendi purposes are not the same. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A sentence, though falling within the statutory maximum range, may violate the Constitution if the defendant received a greater sentence based on “facts” which were not submitted to the jury or admitted by him. In Blakely, the Supreme Court specifically held, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ... In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id., 542 U.S. at 303-04, 124-S.Ct. 2531 (emphasis added). It is constitutionally impermissible for a judge to impose an “excessive” sentence even if that sentence falls within the statutory range. In determining whether a sentence is excessive, an appellate court often examines the ^aggravating and mitigating factors considered by the trial judge. “We have previously held that factors such as the particular circumstances surrounding the commission of the crime, the offender’s personal history, prior criminal record, and the likelihood of recidivism or rehabilitation should be considered.” State v. Taves, 02-709, p. 7 (La.App. 3 Cir. 1/15/03), 846 So.2d 1, 10. When the sentence imposed is grossly disproportionate to the degree of culpability, severity of the crime and the damage to society, it makes no measurable contribution to acceptable penal goals and offends our sense of justice. State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131. Moreover, “a sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits, regardless of mitigating factors.” State v. Sepulvado, 367 So.2d 762, 769-70 (La.1979). Apprendi also instructs it is constitutionally impermissible for a judge to impose a greater or increased sentence other than the “maximum” he would impose in like cases based on “aggravating facts” not submitted to the jury, admitted by defendant or supported by prior convictions.

Defendant was thirty-five years old at the time of sentencing, a first felony offender and had no prior criminal history other than an outstanding warrant for dog fighting. He was convicted of violating La.R.S. 14:95(E) by illegally carrying an unloaded weapon while constructively “possessing” a controlled dangerous substance. Although this statute also includes within its prohibition the “sale and distribution” of a controlled dangerous substance, the evidence presented to the jury only proved Defendant “possessed” a very “small amount of drugs on his person” and no evidence was presented to the jury which proved Defendant had a history of dealing drugs. In fact, no evidence exists in the record at all to prove Defendant was a drug dealer at any time. The only evidence the trial judge used to conclude Defendant was engaged in the “sale or distribution” of drugs was that he had [a$l,400.00 in cash and a syringe in his possession at the time of arrest. His decision to impose a seven year sentence without benefit of probation, parole or suspension of sentence for the crime Defendant committed was clearly based on his conclusion that the more “aggravated” circumstances or elements — sale and distribution — existed in this case. The majority’s reference to Defendant’s conduct prior to arrest also imputes alleged criminal conduct, i.e., aggravated assault, in the sentencing process which was not decided by the jury or admitted by Defendant. I am satisfied an Apprendi due process infringement occurred in the sentencing phase of this case.

I also respectfully dissent from the majority’s decision to affirm Defendant’s sentence because he received the same or a more severe penalty than more egregious offenders.

In State v. Phillips, 04-827 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, the defendant was sentenced to five years for illegal carrying of weapons and also pled guilty to possession of cocaine and obstruction of justice. This court found the defendant’s sentence was not excessive and noted that the trial court found the defendant had a criminal history of crimes against the person, drug offenses, and a long juvenile record.

In State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784, the defendant was sentenced to seven years for illegal carrying of weapons and ten years for possession of a firearm by a convicted felon. The court noted the defendant was a second felony offender who was on probation at the time of the offenses and held his sentence was not excessive.

A sentence more than the minimum is excessive in this case considering the record on appeal.

      This court has not interpreted the term "immediate control” for purposes of La.R.S. 14:95(E). However, in Sandifer, we found that where defendant was found sleeping in the driver’s seat of a car with a gun on the passenger seat and a gun on the floor, these guns were within his immediate control. We have interpreted the term "immediate control” under La. R.S. 14:64, which defines armed robbery as the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. This Court has stated the “immediate control” requirement of the armed robbery statute is satisfied when property is taken is within the presence of the owner. State v. Cooks, 97-0999 (La.1998), 720 So.2d 637, 652; State v. Refuge, 300 So.2d 489 (La.1974). This Court has further noted that armed robbery may occur where property taken is not in actual contact with the victim. Id.; State v. Verret, 174 La. 1059, 142 So. 688 (1932); State v. Boelyn, 432 So.2d 260 (La. 1983).

      . We will address this assignment of error out of order, as it pertains to an interpretation of Blanchard, 776 So.2d 1165, and other cases discussed in Assignment of Error No. 1.

      The statute provides in pertinent part:
      [A]ny person who was at the time of the commission of the offense in possession of a firearm, shall: (a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or (b) Be penalized as a Class D felon if the offense would otherwise be a misdemeanor.

      . Even the minimum is bordering on exces-siveness considering the particular admissible and proven facts.


author: DREW, J.

text:
    BRIDGEFIELD CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. Janice TRIPP and Allstate Fire and Casualty Insurance Company, Defendant-Appellee.
    No. 41,483-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2006.
    Rehearing Denied Dec. 7, 2006.

      Lynn Edward Estes, Jr., Shreveport, for Intervenor-Appellant, Robin Peters.
    John Avender London III, Baton Rouge, for Plaintiff-Appellee, Bridgefíeld Casualty Insurance Company.
    Law Offices of Harold G. Toscano by Steven Curtis Mitchell, Baton Rouge, for Defendant-Appellee, Allstate Insurance Company.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

11 Robin Peters appealed the summary judgment dismissing Allstate Insurance Company from the suit based upon the policy exclusion for intentional harm. For the following reasons, we affirm.

Employed at Holmes Honda as a service consultant, Robin Peters was injured on the job in an altercation with Janice Tripp, a customer of the automobile dealership. Bridgefíeld Casualty Insurance Company paid Peters worker’s compensation benefits. Allstate Insurance Company was Tripp’s homeowner liability insurer. Bridgefíeld sued Tripp and Allstate for reimbursement of its payments. Peters intervened seeking damages from Tripp and her insurer. Tripp was never served and is not a party to this suit. La. C.C.P. art. 6. Jurisdiction over the person is legal authority of court to render judgment and must be based upon service of process or submission of party to exercise of jurisdiction over that party personally, or upon waiver of that party’s objections. Webb v. Webb, 28,411 (La.App. 2 Cir. 6/26/96), 677 So.2d 630, writ denied, 1996-2274 (La.11/15/96), 682 So.2d 774.

Allstate filed a motion for summary judgment to have the suit dismissed because Tripp’s policy with Allstate excluded liability coverage for intentional acts. Specifically, the policy stated:

Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct;
lab) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or
c) such bodily injury or property damage is sustained by a different person than that intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

Accompanying Allstate’s motion and its supporting memorandum were its policy issued to Tripp and Peters’ deposition, in which she described her encounter with Tripp.

Employed at Holmes Honda as a service technician for eight years, Peters stated she took information from customers and created a paper record for technicians to use to diagnose the service needed. Peters, in turn, reported the findings to the customer and “sold the repairs.” Peters also answered inquiries during service and dealt with the customer when the car was returned. Peters further said:

• The day before the incident on July 24, 2003, Tripp brought in an early 1990s Honda Accord for service. A salesman who was dating one of Tripp’s relatives brought Tripp to the service area and informed Peters what Tripp wanted done. Tripp could not speak due to a stroke. Tripp left a signed check to be filled in with the amount of the service charges.
• Peters learned after their altercation that Tripp purchased a used Honda Passport after leaving her car for service and presumably left the dealership in that Passport.
• Tripp’s car was ready when Tripp arrived in the Passport and parked in Lane 2 of the service area.
• Peters approached Tripp, who was seated in the Passport, showed her the amount for which her check written, and requested her signature on the dealership’s paperwork showing that Tripp had taken delivery of her Accord.
|⅞* Tripp showed Peters her checkbook in which she had written a down payment for the Passport. Tripp gestured to Peters, who could not understand what Tripp wanted; Peters learned later Tripp wanted to return the Passport, which Peters did not know Tripp had purchased the day before.
• Tripp became frustrated because she could not get Peters to understand what she wanted. Tripp signed the papers but wanted Peters to make her two copies. The miscommunication continued for about 30 minutes during which Tripp was seated in the Passport.
• Peters got “aggravated with her” and when she had the opportunity, Peters reached in and “kind of snatched” the papers from Tripp while telling her she would make Tripp’s copies.
• Peters backed up four or five steps while Tripp exited the vehicle, advanced, and grabbed Peters around her upper body in a bear hug. Peters asked Tripp to release her and Tripp did so.
• Describing the encounter as “two-year-old keep-away,” Peters said she kept the papers behind her as Tripp tried to get them. Peters continued to back away and was against the wall when Tripp grabbed her the second time. “And that’s when I dipped down and pivoted and just twisted my body to get away from her. And I think in the struggle I may have lifted her up off the ground, you know, just trying to break her grasp.”
• Peters retreated to the service manager’s office for help and her manager took over dealing with Tripp. Eventually, Tripp took her Accord and left the premises.
• Peters stated she did not believe that Tripp was trying to hurt her but was frustrated over her inability to communicate and attempting to retrieve the paperwork.

In opposing Allstate’s motion for summary judgment, Peters attached Allstate’s answers to interrogatories which stated the reason Tripp grabbed Peters was unknown to Allstate. Since Allstate responded “none at this time” to Peters’ request for production of any witness statements, Peters argued that Allstate had not taken Tripp’s statement and could not know Tripp’s intent. Without knowing Tripp’s subjective intent, Peters contended that the exclusion for intentional behavior could not be applied.

j ¿DISCUSSION

In Hill v. Shelter Mut. Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691, 693-694, the supreme court set out the well-settled rules concerning interpretation of insurance policies; ie., insurance policies are contracts between the parties and should be interpreted using the general rules of interpretation of contracts set forth in the Civil Code. If the words of the policy are clear and explicit and lead to no absurd consequences, the policy must be enforced as written. Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Herzog Contracting Corp. v. Oliver, 40,342 (La.App.2d Cir.12/16/05), 918 So.2d 516.

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 of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Appellate courts review summary judgments de novo under the same' criteria that govern the district court’s consideration of whether summary judgment is appropriate.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the [ 5matters stated therein. La. C.C.P. art. 967. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of-the party opposing the motion and all doubt must be resolved in the opponent’s favor. Shelter Insurance Company v. Broan-Nutone, LLC, 39,625 (La.App.2d Cir.5/11/05), 902 So.2d 1146, writ denied, 2005-1483 (La.12/16/05), 917 So.2d 1112.

Peters correctly stated that the appellate record is devoid of evidence concerning Tripp’s intentions. However, Peters’ reliance on Young v. Brown, 37,503 (La. App. 2d Cir. 4/9/03), 846 So.2d 88, is misplaced. The Allstate policy in Young contained different exclusion language:

We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.

In Young, supra, this court explained that the insurer has the burden to prove that the intentional injury exclusion applies. An intentional injury results from an intentional act only when the doer either consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct, or knew that the result is substantially certain to follow from his conduct. The subjective intent of the insured is the key and not what the average or ordinary reasonable person would expect or intend. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur. Young, supra.

[¡As previously noted, Tripp’s Allstate policy contained significantly different exclusion language and does not cover any bodily injury intended by, or which may reasonably be expected to result from, the intentional or criminal acts or omissions of any insured person, even if such bodily injury differed from the kind or degree than intended or reasonably expected. In essence, this strict exclusionary language makes subjective intent irrelevant if injury results from an intentional act.

In Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943, the supreme court stated that a battery is harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to receive such a contact. The defendant’s intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the defendant intends to inflict either a harmful or offensive contact without the other’s consent. All intended wrongs have in common the element that they are inflicted without the consent of the victim. Doe v. Breedlove, 2004-0006 (La.App. 1st Cir.2/11/05), 906 So.2d 565.

In King v. Galloway, 2001-1358 (La. App. 4th Cir.9/11/02), 828 So.2d 49, writs denied, 2002-2598 (La.11/27/02), 831 So.2d 281, 2002-2510 (La.11/27/02), 831 So.2d 283, the Allstate exclusion was identical to the exclusion in Tripp’s policy. The victim’s ankle was broken during a domestic disturbance. The Allstate policy excluded coverage for King’s bodily injury resulting from Galloway’s intended criminal acts regardless of the degree of injury intended or expected.

|7The identical Allstate exclusion language was interpreted in Fontenot v. Duplechine, 2004-424 (La.App. 3d Cir. 12/8/04), 891 So.2d 41, in which one student hit another in the head with a desk top. The court observed that the Allstate exclusion was not ambiguous and provided no coverage for intentional acts and the expected and unexpected results of those intentional acts.

While the intentional acts in King, supra, and Fontenot, supra, were more dramatic than Tripp’s twice hugging Peters, the result is the same. In an apparent effort to retrieve paperwork, Tripp grabbed Peters without her permission and on Peters’ request, released her the first time. Tripp then continued to approach Peters and gave her a bear hug from which Peters was injured in her efforts to free herself. Peters acknowledges that she does not believe Tripp intended to injure her. However, for reasons that are not dear, Tripp clearly intended to touch Peters without Peters’ consent. While Peters’ injuries were unexpected, the Allstate policy excludes coverage under these circumstances.

La. C.C.P. art. 966(C)(1) requires that “adequate discovery” has occurred before a party may file a motion for summary judgment. Peters’ contention that the trial court erred in granting Allstate’s summary judgment due to inadequate discovery is without merit. Peters intervened in Bridgefield’s action on May 27, 2005. Allstate filed its motion for summary judgment on September 12, 2005. The summary judgment was not signed until March 29, 2006. Allstate correctly pointed out that Peters’ own deposition and allegations contained within her pleadings established that|sthere is no coverage under the terms of this Allstate policy. Tripp twice grabbed Peters without Peters’s consent, and Peters was injured in freeing herself. The non-moving party, Peters, failed to produce evidence of a material factual dispute which would have made the summary judgment inappropriate. The Allstate policy unambiguously excluded coverage for this apparently unintended injury resulting from Tripp’s grasping Peters on two separate occasions.

DECREE

The summary judgment of the trial court is affirmed at Robin Peters’ costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and DREW, JJ.

Rehearing denied.

BROWN, J., would grant rehearing.