text:
    STATE of Louisiana, Appellee v. Matt BANKS, Appellant.
    No. 46,898-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Louisiana Appellate Project, by James Edward Beal, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

| ¶Matt Banks was convicted by a jury of two counts of second degree murder, La. R.S. 14:30.1. He was sentenced to consecutive life sentences, without benefit of parole, probation, or suspension of sentence. He appeals, alleging insufficiency of the evidence in this circumstantial case. We affirm in all respects.

FACTS

Shortly after 11:00 p.m. on June 29, 2002, firefighters found the bodies of Irma Williams and her brother, Roy Tugler, inside their burning home at 1606 Hwy. 139 in Monroe, Louisiana. Each body revealed blunt force trauma. The body of Williams was partially burned and smelled of accelerant.

Williams and Banks were involved in a violent relationship for over a decade. They had recently broken up, and she was dating another man.

Authorities interviewed Banks on the day after the murders. His truck and home were searched and items removed for analysis. Also occurring on the day after this horrific event was the discovery of an iron plumbing pipe at the crime scene. Banks is a plumber. Human hairs were embedded in one end of the pipe along with what was believed to be blood. None of the physical evidence linked Banks to the crime scene. The case lay dormant for seven years.

In 2009, a former deputy revealed that a neighbor of Banks’s might have relevant information. The neighbor stated that on the night of the murders, he heard Banks talking loudly with Williams and then later saw Banks walking away from the neighborhood. After further investigation, 12Banks was arrested and indicted for two counts of second degree murder. He was convicted as charged.

TESTIMONY AT TRIAL

Michael Johnson testified that on June 29, 2002, he saw and immediately reported smoke at the burning home.

Ronald Daley testified that:

• he was a Ouachita Parish fireman who responded to the emergency call;
• the fire department arrived four minutes after the call to find chest-high smoke coming from the house, indicating that the fire was just starting;
• an unresponsive female and male were found and removed from the home;
• both of the victims were dead;
• each body reflected massive blunt force trauma to the head;
• the female was burned from the head to just above the knees;
• the fire was small and concentrated in a side bedroom;
• a chair in the room appeared to be the focus point of the fire; and
• the fire was extinguished in less than a minute by 50-100 gallons of water.

Greg Thompson, a fire department investigator, testified that:

• he concluded that the fire was started in a bedroom by a person using an acceler-ant, gasoline;
• he was aware of no burns on the male victim; and
• the fire had burned for less than 30 minutes before fire personnel arrived.

Lt. Renee Smith testified that:

|s* at the time of the fire, she was a sergeant with the crime scene unit of the investigation division of the Ouachita Parish Sheriffs Office;
• both bodies had already been removed from the house when she arrived;
• Williams’s body was charred from her head to just above her knees;
• the odor of gasoline was noted on Williams’s body;
• there were no burn areas on Tugler’s body;
• she identified photographs and video taken at the crime scene;
• technicians noted a broken lamp, directional blood splatter, blood splatter on the headboard, and transfer evidence of blood;
• more directional blood splatter was found in the kitchen;
• dishes were turned over and broken, suggesting a possible struggle;
• the hallway also reflected signs of a struggle, including black shoe marks on the wall and indentations where apparently the weapon used struck the wall;
• upon returning to the crime scene the next day, technicians found a 22-inch plumbing pipe on the water-pooled floor in the front bedroom;
• the pipe had not been seen the night before, when the house was very dark;
• hair was on one end of the pipe, a sample of which was taken to the crime lab;
• nothing at the crime scene could be traced back to Banks;
• the material on the end of the pipe was from a human;
• no DNA evidence was recovered from the pipe or the hairs;
• a metal T-ball bat and a wooden bat were also found inside the house, but there was no indication that they had been used in either murder;
• technicians recovered a butane lighter in a walkway outside the house;
• a blood-soaked pillow was found in the yard;
14» investigators did not find Banks’s fingerprints or palm prints at the scene;
• only a trailer separated Banks’s house from the burned home;
• both homes had light poles out front;
• during a June 30, 2002, search of Banks’s house, several items were seized;
• no accelerant was found at Banks’s house, nor was any odor of an accelerant detected on any of his clothing;
• neither the items seized from his home nor those seized from his motor vehicle connected Banks to the crime scene;
• given the indications of a struggle and the large amount of blood, she assumed that had Banks been there, he would have had quite a bit of blood on him; and
• blood evidence can be destroyed by fire, diluted by water, or destroyed by some chemicals, such as are found in laundry detergent, the use of which makes the recovery of blood evidence quite difficult.

Capt. Larry Knight testified that:

• in 2002, he was an investigator with the Ouachita Parish Sheriffs Office;
• the night of the crimes, he sent to all local agencies a BOLO for Banks’s truck;
• Banks was located about 3:00 a.m. on June 30, 2002, at the residence of Beverly Connor on Outlet Road in Monroe;
• Banks voluntarily agreed to accompany the officers to the sheriffs office;
• he admitted that he and Williams had a violent relationship for 11 years, but they had become friends, though he hadn’t seen her for two weeks;
Is* Banks said that Williams had previously accused him of certain crimes and that he pled guilty to kidnapping and to stabbing her, but those charges were false;
• Banks said that Williams was a drug addict with a crack cocaine problem;
• Banks was angry about her drug use, and had called the Sheriffs Department on the day of the fire, reporting that Williams was dealing drugs;
• Banks didn’t like being broken up with Williams, who had a new boyfriend;
• on the day of the murders, Banks said that he was at home and saw Ronnie Hands walking in the neighborhood, looking for his dad;
• Banks never went to Williams’s house that day;
• Banks said he left his house around noon, went to get beer, and then went to his relative’s house on Outlet Road, where he played dominos;
• Banks said he later drank more beer at the home of someone named Steve, whose address he could not remember;
• Banks said he returned to the Outlet Road home and got his hair braided;
• Banks said he stayed there until officers contacted him around 3:00 in the morning, at which time he knew nothing of the fire or the deaths;
• Banks asked if Williams had been killed with a pipe or a bat, which surprised the officers, who were at that time unaware of the pipe at the crime scene;
• Banks allowed the officers to search his home and property;
• officers retrieved Banks’s phone records for the land line at his house;
|fi*he (Knight) took over the case about two days into the investigation and remained on the case throughout the year;
• none of the details were released to the public or to participating witnesses;
• no arrests were made but officers continued to investigate;
• after early 2003, there was no further activity in the investigation;
• he was transferred to patrol in 2004, ending his involvement in the case;
• Banks was very cooperative and neatly dressed during the interview, with no scratches, abrasions or bruises;
• Banks cried and was emotional during the interview;
• Williams’s last boyfriend, Michael Jones, was questioned, but had an alibi;
• Jones was never really considered a suspect, and his house was not searched;
• Jones would have been physically unable to kill the victims;
• his agency had information that Williams tried to buy drugs on the day before her death, along with a friend named Pauline, who provided confirmation;
• he never found out the identity of the alleged supplier;
• he knew of no drugs or drug paraphernalia found at the crime scene; and
• no evidence was recovered linking Banks to the crime scene.

Frank Anzalone testified that:

• he owned a Monroe hardware store that sold plumbing supplies;
• he had known Banks for 20 years, as he was a frequent customer;
• he had referred customers to Banks for odd jobs;
17* the pipe shown him at trial was sold from his store; and
• only his store and Ace Hardware carried that pipe brand in the Monroe area.

Eddie Barnes testified that:

• on the night of the fire, he was in the neighborhood, waxing his truck and listening to the radio, under a bright moon;
• there was a light right by Banks’s house;
• he saw Banks arrive in his white pickup truck about 10:00 or 10:30 p.m.;
• Banks usually parked in back of his house, but this time he parked out front;
• his cousin also noted that Banks had come home;
• he (Barnes) saw Banks exit the truck and head toward Ruthie Williams’s trailer, near the house of the victims, but he did not see Banks actually get to the house;
• after he finished waxing his truck, he and his nephews watched a movie at home; and
• later that night he heard the ambulance.

Michael Jones testified that:

• in 2002, he and Williams were dating, and he often stayed at her house;
• during the week before she was killed, Banks came over to her house and argued with her, calling her a bitch and a whore;
• he once saw Banks hiding in the woods, looking at him; .
• he (Jones) and Williams had lived together in a house off Jackson Street, but Williams’s aunt, Ruthie Williams, let her live in the house next to her trailer;
• she had been living there for about a month when the homicides occurred;
|s* on the date of the murders, Ruthie Williams took him home to get his stuff;
• only he, Ruthie Williams, and Tugler had been present when he left;
• he was planning on moving in with Irma Williams; and
• he knew about her drug usage.

Zandria Lollie testified that:

• at the time of the murders, she lived in Bastrop with her parents and her fiancé, Antonio Connor, who is a cousin to the defendant;
• she and Antonio were in Monroe that weekend, staying with his mother;
• on June 29, 2002, Banks came over mid-morning to play dominoes;
• her mom and stepdad picked her up so she could do her mother’s hair;
• about 9:00 p.m., she was still at her mother’s house when she received a phone call from Antonio, whose whereabouts were unknown to her;
• she hung up and went to Beverly Con-nor’s house on Outlet Road, arriving about 9:40 p.m., at which time she did not see Banks;
• hours later, Banks burst inside, sweaty and wearing muddy clothes;
• he said that he had done something bad but did not say what;
• he grabbed some cleaning supplies and a towel and went back outside;
• he returned with his truck seat covers, which he put into separate bags;
• she was helping Beverly Connor pack away old clothes when Banks returned;
• he changed into some of the clothes and bagged the garments he was wearing;
• Banks asked her to braid his hair, which was sweaty and wet;
13* he had never asked her to braid his hair before;
• while she was braiding his hair, Banks turned on a police scanner;
• she heard the police describing a truck like his, but when they read the license plate number, he sighed and said, “That ain’t my truck”;
• she heard the police talking about coming for Banks;
• he asked that she keep the seat covers at her mother’s house and she said no;
• she did not know what Banks did with the seat covers after that; and
• right before the police arrived, he got on the couch and faked being asleep.

Antonio M. Connor testified that:

• on June 29, 2002, he was living with his girlfriend, Zandria Lollie, and her mother and stepdad in Bastrop, Louisiana;
• that day he and Banks were drinking and playing dominoes at his mother’s house when they left to go to Steve’s house, where they drank more;
• that evening, they left Steve’s house, stopped at the store and then went to Banks’s house, where he (Connor) called Lollie in Bastrop;
• he and Banks returned to Beverly Con-nor’s Outlet Road home; and
• he never saw Banks again that day.

Kenneth Jones testified that:

• he was married to Charlotte Jones, who was the aunt of the victims;
• Williams and Tugler would often stay with them;
• Williams was a nice person who did not cause trouble;
• Tugler did not bother people, but he would defend himself, if needed;
• Tugler was very protective of his family, including Williams;
• he knew that Banks and Williams previously had a “raggedy” relationship;
| in* Banks and Williams often argued, and two weeks before Williams died, he came home to find Banks pinning Williams and choking her;
• he went inside to get a gun, but came out unarmed, as Banks was leaving;
• Tugler walked up and spoke to his sister; and
• Banks yelled as he left that he was going to get all of them.

Charlotte Jones testified that:

• her niece was a sweet, loving, and kind person;
• Tugler was a loving and kind person, who was very protective of his family;
• she had known Banks for a long time, and he was very controlling;
• Williams and Banks had a rocky relationship and would argue all the time;
• Banks tried to keep Williams isolated from her and her husband; and
• she also saw Banks choking Williams two weeks before her death.

Capt. Jay Ellerman, testified that:

• on April 18, 1998, he was a corporal in the Ouachita Parish Sheriffs Office;
• on that date, he answered a domestic disturbance complaint made by Williams, who alleged that Banks had stabbed her twice on her thigh;
• she had scratches on and behind her ear, and facial swelling;
• he arrested Banks for aggravated battery and aggravated kidnapping; and
• Banks was prosecuted for aggravated battery and false imprisonment, and was placed on supervised probation for five years.

Tenisa Lyles, daughter of Irma Williams, testified that:

• her mother was a good person, sweet and nice, and not a fighter;
• Williams was a good mother, who took care of Lyles and her siblings;
she knew her mother had a drug problem;
• Tugler, her uncle, treated her like he was her father and was a gentleman;
• her mother dated Banks for about 10 years, during which time they lived off- and-on with him, their relationship being “horrible”;
• she did not know why Williams stayed with Banks, who would beat her and isolate her from her children, sometimes making her live in a tent;
• Banks said that if he could not have Williams then no one could; and
• she last saw her mother on Friday, June 28, 2002.

Deputy Larry Ludlow testified that:

• in June of 2009, he was an investigator with the Ouachita Sheriffs Department;
• he learned that an inmate named Mario Greely had information on the murders;
• he had dealt with Greely before during his time with the Sheriffs Department;
• Greely told him that on June 29, 2002, he was across the street from Williams’s house and saw Banks walking away from there about the time of the murders;
• the facts Greely gave him were consistent with what he knew about the case;
• he (Ludlow) lived not far from the area where Williams, Banks, and Greely lived in 2002, and people often hung out in that neighborhood; and
• he felt Greely’s statement provided probable cause to arrest Banks.

Gene Benoit, a former sheriffs deputy, testified that:

• he owned a car wash and storage facility, and Williams had been a customer for about 10 years, and had rented storage space on two or three occasions;
each time, Williams had serious arm and leg injuries and she told him that she had been beaten by Banks and she was trying to get out of the situation; and
• he had known Banks for about 30 years.

Mario Greely testified that:

• he lived on Burkes School Road, off of Hwy. 139;
• he had known Tugler for about five years and knew of Williams;
• he had known Banks all of his life, about 36 years;
• he lived across the highway from Banks, about 100 yards away;
• he did not know that Williams and Tu-gler were sharing a house in 2002, but he knew that Tugler lived two houses down from Banks;
• in 2002, people would hang out and drink every day around a tractor tire about 100 yards directly across the street from where Williams and Tugler lived;
• nothing blocked the view from that tractor tire to the house;
• on the day of the murders, he had been hanging out at the tractor tire when Williams and Tugler joined him during the early part of the afternoon;
• Banks asked Williams to go across the street with him, but she refused;
• in the early evening, he heard Williams and Banks arguing in her house;
• he later looked up and saw Banks walking along the fence line that runs along the back of the properties, heading toward his house;
• Banks was not wearing a shirt when he saw him;
• Greely continued to sit and drink for a while until he went home about 9:00 p.m., about 90 minutes before the fire trucks began arriving;
• when Ludlow interviewed him in June of 2009, he was in jail;
|1S* he (Greely) took Tugler to buy crack cocaine, without Williams;
• no one else was in the area where he was sitting at the time he saw Banks;
• at that point he had been drinking, but he was not intoxicated; and
• he heard no yelling or screaming that night, nor did he hear Banks make any threats to Williams earlier that day at the tractor tire.

Dr. George McCormick, who conducted the 2002 autopsies, was deceased at the time of trial.

Dr. Frank Peretti was accepted by the court as an expert in the field of forensic pathology, and he studied Dr. McCormick’s autopsy report. He testified that:

• the bodies were exhumed on January 28, 2011;
• he conducted a second autopsy of both victims on January 29;
• on review of photographs taken in 2002 of Tugler’s body, Peretti noted blunt force trauma to the head with multiple lacerations and massive multiple fractures of the skull, with skull bones being imbedded in the brain;
• the blunt force injury led to three types of hemorrhage;
• there were four or five impact sites on Tugler’s skull with massive crushing injuries, blows which would have rendered Tugler immediately unconscious;
• he concurred with McCormick’s assessment that the cause of Tugler’s death was multiple blunt force head injuries;
• Williams had post-mortem thermal burns and multiple impact sites;
• autopsy photos indicated a pattern of injuries consistent with a valve on a pipe;
• he concurred with McCormick’s finding of 23 lacerations on Williams’s body;
• Williams’s cause of death was blunt force head trauma; and
|14* at death, both victims had cocaine in their system.

Linda Armstrong, director of the North Louisiana Crime Lab, was accepted as an expert in the field of DNA analysis. She testified that:

• an organic stain does not always translate into a DNA analysis;
• an accelerant similar to gasoline was on Williams’s hair and clothing;
• the hairs from the iron pipe had no root material, preventing DNA analysis;
• the pipe was swabbed for suspected blood and a cluster of hair and fuzz was collected from the pipe, all of which lacked DNA material;
• the only DNA found at the scene was that of the two victims;
• if the pipe had sat submerged in water, there would be no remaining blood or DNA cells left by skin shed on contact with the pipe;
• Banks’s truck was thoroughly searched by the crime lab;
• even though Banks had driven the truck for many years, absolutely no DNA was recovered from the vehicle, not even his own;
• seat covers would normally reveal the most DNA material;
• scrubbing the seats with detergent would destroy any DNA present; and
• none of the physical evidence analyzed connected Banks to the crime scene.

DISCUSSION

Banks posits that this record is insufficient to sustain any conviction.

Banks was charged and convicted of violating La. R.S. 14:30.1, second degree murder, the elements of which can be satisfied by proving the killing of a human being with the specific intent to kill or inflict great bodily harm.

| ]5Our law on appellate review of sufficiency questions is well settled.

11 (¡There is no physical evidence tying Banks to these homicides.

The total absence of any DNA material in his truck, however, suggests that he sanitized the vehicle. Fire and water destroyed the perpetrator’s DNA at the murder scene. Banks changed clothes and discarded the garments he had worn that night. His own words admitted doing something wrong. More circumstantial evidence is reflected by Banks’s conduct just after the killings, including cleaning his truck late at night, changing clothes, asking someone to keep the seat covers in Bastrop, disposing of his clothes and his seat covers, and pretending to be asleep when the police arrived. He lied about his location that evening, according to the cell phone evidence. He was a violent man, and he had harmed Williams before.

Testimony by Greely and Jones contradicted Banks’s statement about not having seen Williams for two weeks prior to her death. The afternoon before her death, Jones saw and heard Banks arguing with her. Greely saw him talking to her at the tractor tire that afternoon, and heard them talking at her home that evening.

Banks’s actions suggest that after 10 years of violence, he was not going to leave her alone even though they had broken up and she was dating someone else.

The jury weighed the credibility of all witnesses. The verdict suggests the state’s witnesses were credible. Such determinations of weight and credibility, by the fact finder are given great deference and are not reassessed on review.

117The jury could have reasonably found that Banks killed Williams and Tugler. As he was a plumber, he obviously had on hand, or could easily obtain, the likely murder weapon, a plumbing pipe with a valve on one end. He had a history of violence regarding Williams, and he had recently choked her. In the days before the killings, he had threatened the victims. He was intent upon continuing the violent relationship, even though she had a new boyfriend. He admitted being angry with Williams, and he placed nine phone calls that day to turn her in for drug dealing. In a depraved story as old as time, he did not want another man to have her.

Banks had the opportunity, the means, the physical ability and the emotional outrage necessary to kill both victims. His specific intent to kill is evidenced by the massive blunt force trauma to both victims. He burned her, then went to great lengths to cover up his crimes — and he got away with it for seven years.

That evening, Banks frantically told Lol-lie that he had done something wrong. He then set about to destroy evidence by removing all DNA from his vehicle, by disposing of his clothes and car seat covers, and by lying to law officers about where he had been that day and when he had last seen Williams. His monitoring of the police scanner and feigned sleep also speak volumes. His own words and actions proved beyond a reasonable doubt that he committed these atrocities.

No evidence contradicts the state’s theory. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have |1sfound that all elements of these second degree murders were proven beyond a reasonable doubt.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . Among the seizures: a 24-inch iron gas pipe, taken from the gas heater in his bedroom, wood flooring, cabinet doors, floor tile, the back door, boots, and black leather loafers. Smith said that all possible bloodstains on these items were dried, making it difficult to determine when they were made. A washing machine, filled with wet clothes, was also taken.

      .
      • On the morning of June 29, 2002, Banks called the Ouachita Parish Sheriff's Department six times: at 10:23, 10:50, 10:54, 10:56. 10:57. and 11:48:
      • during the 10:57 call he left an anonymous message that drugs were being dealt at the victims' residence at 1606 Highway 139;
      • at 10:48 and 10:50 a.m., Banks called the Monroe Police Department;
      • at 10:52 a.m., Banks called Metro Narcotics;
      • at 12:01 p.m., a phone call to the plumbing supply warehouse was made;
      • at 4:30 p.m., a call was made to Beverly Connor’s home on Outlet Road; and

        • at 9:09 p.m., a call was made to a number belonging to Chasity Bradshaw at 10645 Parkwood Drive, Bastrop, Louisiana, where Zandria Lollie lived.

      . Jones had physical disabilities, necessitating his dependence on others for transportation.

      . He was incarcerated for possession of marijuana, a charge later dropped.

      . Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d Cir.4/5/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1).
      In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that the proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Jackson v. Virginia, supra. Having been fully implemented by the Louisiana Supreme Court and legislatively enacted in La. C. Cr. P. art. 821, the Jackson reasonable doubt standard is now the only standard of review of facts for Louisiana appellate courts. See State v. Mitchell, 1999-3342 (La.10/17/00), 772 So.2d 78.
      The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Macon, 2006-481 (La.6/1/07), 957 So.2d 1280; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, supra.

      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      The facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, supra.

      Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. The trier of fact is charged with weighing the credibility of this evidence, and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder’s conclusions. Id.

      When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra. Once the reviewing court determines what reasonable inferences may be drawn from the circumstantial evidence, it then must determine whether they exclude all reasonable, not all possible, theories of innocence. Id.

      . The intent required to prove second degree murder could be the lesser standard of specific intent to inflict great bodily harm.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    BASELINE CONSTRUCTION & RESTORATION OF LOUISIANA, L.L.C. v. FAVROT REALTY PARTNERSHIP d/b/a Chateaux Dijon Apartments, Chateaux Dijon Land, L.L.C., d/b/a Chateaux Dijon Apartments, CDJ Apartments, L.L.C. d/b/a Chateaux Dijon Apartments, as Successors in Interest to Chateaux Dijon Land, L.L.C., B & S Favrot, L.L.C., et al.
    No. 2011-CA-0820.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.

      George J. Nalley, Jr., Dona J. Dew, Jessica L. Smith, Nalley and Dew, APLC, Metairie, LA, for Plaintiff/Appellant.
    George P. Hebbler, Jr., Michael J. Gautier, Hebbler & Giordano, LLC, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   EDWIN A. LOMBARD, Judge.

|! This devolutive appeal is from the trial court judgment granting summary judgment and dismissing the defendant’s third party claim against one of the plaintiffs insurers. After de novo review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

Chateau Dijon Apartments, a large apartment complex in Metairie, sustained damage during Hurricane Katrina in 2005. CDJ Apartments, L.L.C. (“CDJ”), owner and operator of the complex, first hired SCS General Contractors, Inc., for the repairs but, in December 2005, terminated that contract and entered into a contract with Baseline Construction & Restoration of Louisiana, LLC (“Baseline”) to repair the damaged complex. The repair work was substantially completed in May 2007 but a dispute arose over payment and, accordingly, Baseline filed this lawsuit in July 2007 against CDJ and Favrot Realty Partnership d/b/a Chateau Dijon and Fav-rot I Trust No. 1.

In April 2008, CDJ, individually and as successor by operation of law to Favrot Realty and Favrot Trust, answered the petition and made a reconventional demand against Baseline, alleging a variety of construction problems attributable pto Baseline’s work. Shortly thereafter, in September 2008, the apartment complex sustained extensive roof and interior damage from Hurricane Gustav. Accordingly, in December 2008, CDJ amended its re-conventional demand to assert additional claims alleging that damages sustained in Hurricane Gustav were the result of Baseline’s faulty construction work. In addition, CDJ named three alleged liability insurers of Baseline, including Catlin Specialty Insurance Company (“Catlin”), as defendants in its action against Baseline.

In October 2009, Catlin filed the instant motion for summary judgment, arguing that the Commercial General Liability (“CGL”) policies at issue in this matter, covering two consecutive periods beginning in September 4, 2007, and ending on September 5, 2009, provided no coverage for the claims asserted by CDJ against Baseline because Baseline completed its work on the complex in May 2007 before the policy took effect and therefore Catlin had no duty to indemnify Baseline or any other party in this litigation. The trial court granted Catlin’s motion for summary judgment on May 28, 2010, dismissing all claims against Catlin.

CDJ did not appeal the dismissal of its reconventional demand against Catlin, but on July 27, 2010, Baseline filed this devolu-tive appeal, asserting that there is a genuine issue of material fact as to whether the policies issued by Catlin provide coverage for claims asserted by CDJ against Baseline.

|aApplicable Law

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966. On appeal, motions for summary judgment are reviewed de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Services & Specialty Co., Inc., v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. The burden is on the mover to establish that no material fact issues exist but, where the movant will not bear the burden of proof at trial, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ. Proc. art. 966(C)(2); Greenhouse v. C.F. Kenner Associates Ltd. P'ship, 98-0496, p. 4 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1007. Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish that a genuine issue of material facts exists such that summary judgment is not appropriate. Id. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Reynolds v. Select Properties, Ltd., (La.4/11/94), 634 So.2d 1180, 1183 (citation omitted). Summary judgment declaring a lack of coverage under an insurance policy is appropriate only when there is no reasonable interpretation of |4the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Id.

Because an insurance policy is a contract between the parties, it is construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Id. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Id.; La. Civ. Code art. 2045. Words and phrases used in a policy are construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. Reynolds, supra (citation omitted); La. Civ.Code art. 2047. An insurance policy should not be interpreted in an unreasonable or a strained manner to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds, supra (citation omitted).

It is well settled that subject to the applicable rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id. (citation omitted). Policy language that is clear, unambiguous, and expressive of the intent of the parties must be enforced as written. Id. (citation omitted). If an ambiguity remains after construing the policy language in accordance with the rules of construction, the ambiguous provision will be construed against the drafter and in favor of the insured but the court should not pervert the language or exercise its inventive powers to create an ambiguity where none exists or create a new contract for the parties. Id.

Discussion

In its motion for summary judgment, Catlin asserts that it is entitled to summary judgment because its CGL policies issued for the periods September 4, | b2007 to September 5, 2008, and September 5, 2008 to September 5, 2009 (Policy Nos. 1700500533 and 1700500533, respectively), do not provide coverage for claims asserted by the CDJ as a result of damages sustained on September 1, 2008, in Hurricane Gustav. In support of its motion, Catlin submits: (1) a copy of the “Notice of Termination of Work” sworn to by Clifford F. Favrot for CDJ certifying the work contracted for on December 30, 2005, with Baseline “is now substantially completed” as of May 7, 2007; (2) the “Request to File Acceptance of Contract” filed by D. Blair Favrot with the Jefferson Parish Clerk of Court on May 8, 2007; and (3) copies of the 2007-2008 and 2008-2009 CGL policies at issue.

The policies, which appear to be identical in all relevant parts, provide defense and indemnity coverage for damages that the insured becomes legally obligated to pay as a result of “bodily injury” and “property damage” to which the policy is applicable. Pursuant to the “Continuing Damage-Contractors” Exclusion, the policies exclude coverage for “property damage” arising out of an “occurrence” that began (or is alleged to have begun) prior to the inception date of the policy or the first policy in a series of uninterrupted policies. In addition, the policies include the following endorsement:

Exclusion-Designated Work
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Description of your work:
“Your Work” which was completed at any location prior to the effective date of this policy.
| RThis insurance does not apply to “bodily injury” or “property damage” included in the “products-completed operations hazard” and arising out of “your work” shown in the Schedule. [Emphasis in original]
Finally, the policy provides the following relevant term definitions:
Section V-Definitions
16. “Products-completed operations hazard”:
a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times:
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete will be treated as completed. [Emphasis in original]

In opposition to Catlin’s motion for summary judgment, Baseline argues that Cat-lin is not entitled to summary judgment because there is a disputed issue as to whether its work on the CDJ apartment complex was “completed” within the meaning of Catlin’s policy. Specifically, Baseline argues that the “Products-completed operations hazard” is only a category of insured risk and, in any event, because Baseline performed additional work that CDJ alleged was part of its contractual obligation in January 2008, making the 2007-2008 policy applicable to all of the work performed at the apartment complex. Baseline also suggests that the policy is applicable because Baseline only discovered that CDJ would be |7making claims against it for faulty subcontract work in August 2007, during the applicable policy period.

In reply to Baseline’s opposition, Catlin submits the following in further support of its motion for summary judgment: (1) the deposition testimony of Robert Oliver, manager of the architect firm hired by CDJ to oversee the project, stating that the “punch list” was completed (signifying that the project was substantially complete) prior to the May 7, 2007, filing of the Notice of Termination of Work”; (2) a letter dated May 7, 2007, from Baseline to CDJ stating that Baseline “has completed all of its contracted requirements”; (3) the April 8, 2008, deposition testimony of D. Blair Favrot stating that Baseline had “been of the job a year” and that the “final turnover” of the property from Baseline to CDJ occurred in May 2007; and (4) a copy of the Motion for Partial Summary Judgment filed by CDJ stating that construction was completed when this litigation was initiated in July 2007.

Upon de novo review, we find no reasonable interpretation of the CGL policy at issue which could provide coverage for the claims asserted against Baseline by CDJ. The first effective date of the insurance policy was September 5, 2007, well after the contractual work completed (as defined by the policy) by Baseline in May 2007. There is no provision in the policies for coverage of property damage discovered during the policy period but based on work performed prior to the effective date of the policy. Moreover, although Baseline performed some corrective work on the complex during the policy period, by the clear terms of the definition section such work is treated as completed work and, thus, not covered under the policy.

| sBaseIine attempts to obfuscate the clear language of the policy by arguing that the “Products-eompleted operations hazard” provision in this policy is only a category of insured risk and, therefore, does not exclude coverage of the claims at issue here. However, words and phrases used in an insurance policy must be construed using their “generally prevailing meaning.” Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, 580; see also La.Rev.Stat. 22:654 (insurance policy must be construed according to the entirety of its terms and conditions). Thus, Baseline’s novel interpretation of a standard provision of a CGL policy is insufficient to defeat Catlin’s motion for summary judgment. Even liberally construed, there is no reasonable interpretation of the policy that provides retroactive coverage for the claims at issue here. Accordingly, Catlin is entitled to summary judgment as a matter of law.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . CDJ did not appeal the dismissal of its re-conventional demand against Catlin. On January 18, 2010, Catlin filed a motion to dismiss the appeal as untimely, but on January 28, 2011, the trial court signed the order of appeal. Catlin again moved to dismiss the appeal as untimely in this court, but the motion was denied. See Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981) (no appeal should be dismissed when motion for appeal is timely filed but court order not signed until after delay has run).


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Ronnie WALLS, Appellant.
    No. 47,006-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.

      Charles Rex Scott, II, District Attorney, Sarah Midboe, J. Aaron Crawford, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

I,The defendant, Ronnie Walls, was convicted of armed robbery, a violation of La. R.S. 14:64, and sentenced to 50 years at hard labor, without benefit of probation, parole, or suspension of sentence. The defendant now appeals his conviction and sentence. For the reasons that follow, we affirm.

FACTS

November 4, 2009, was Todd Asenato’s first day as a cab driver. He was dispatched to pick up a fare around 1:30 a.m. at a closed Texaco station on Hearne Avenue in west Shreveport. When Asenato arrived at the station, a black male got in the cab and directed Asenato to take him to an ATM location. The fare withdrew some cash at the ATM; then he directed Asenato down Martin Luther King Boulevard, stating that he was unsure of the address of his destination. After a prolonged drive into a rural area, the fare asked Asenato to pull over and let him out because the cost was nearing the amount of money he had on him. Mr. Asenato complied. The man handed him $40 for a $34 fare. When Asenato turned to give the fare his change, the man put a gun to Asenato’s face. He demanded Asenato’s money and told him to get out of the car. Once Asenato was out of the vehicle, the robber told Asenato to remove his pants. As Asenato tried to do so, the robber jumped into the driver’s seat of the cab and drove away with Asenato’s wallet and cell phone.

Mr. Asenato ran down the street for five or ten minutes afraid to knock at any houses in the early morning hours of the night. He eventually came upon a man and woman with a pickup truck searching for scrap metal in a garage. The couple did not have a cell phone, but they offered to drive |2Asenato to a phone. Seeing no pay phone in the area, they gave Asenato a ride to a Waffle House where he called his boss and reported the robbery. Then he called the police. When the police arrived, Asenato told them what happened. They contacted Asenato’s boss, who had already tracked the cab to its last location before the GPS unit had shut down.

At the Waffle House, Asenato described the robber to police as a black male wearing dark, baggy clothes and really scruffy in the face. He told them the robber had a gun “like something you’d see in the wild west.” Asenato testified that even though the robber had a hood on, he said he saw his face and eyes when Asenato handed him the $40. He also said that he clearly viewed the defendant when they went to the ATM machine because of the light in the car.

Officer Roy Nations responded to the call and went to the Waffle House where Asenato gave him a description of the suspect. He wrote in his report that Asenato described the suspect as a skinny black male, 5'8", 150 pounds, wearing a black shirt with some sweat pants and had a thin goatee. Asenato described the gun as a black revolver with possibly wooden hand grips. Shortly after Officer Nations transmitted this information to other officers, he received a report that the cab had been located by GPS.

Corporal Clint Cain, a Shreveport Police K-9 Officer, was driving in his police unit when he heard about the robbery. He testified that the suspect was described to him as a black male, approximately 5'7" or 5'8", approximately 180 lbs., and wearing dark pants. At 8:02 a.m. he was given the | .¡location of the cab at the 3700 block of Old Blanchard Road. As Corporal Cain approached the area, he saw a black male walking along the brush line in a wooded area on the right side of. the road. The officer believed the man matched the description of the suspect. He stopped the man, who dropped his head and put his hands behind his back. Corporal Cain secured the man beside his K9 unit until backup arrived. The suspect was searched. They discovered a rusty, black revolver, cell phone, and a wad of cash in his pants. The suspect, Ronnie Walls, was arrested and charged with the crime of armed robbery.

Walls filed a motion to suppress evidence and claimed that his arrest was unconstitutional and the evidence obtained incident to that stop should be suppressed because the arresting officer did not have reasonable cause to stop the defendant and question him. The trial judge denied this motion to suppress.

A jury trial in the case began on November 15, 2010, and continued through November 18, 2010. The jury convicted Walls as charged. He now appeals, alleging that the trial court erred in denying his motion to suppress and that the evidence was insufficient to convict him of armed robbery. He also complains that the sentence imposed is excessive.

DISCUSSION

The defendant alleges that the evidence adduced at trial was not sufficient to support a conviction of armed robbery in his second assignment of error. Specifically, he contends that he was misidentified as the robber when he was stopped by Corporal Cain and subsequently identified by Mr. |4Asenato at the scene. Furthermore, he argues that the identification was tainted by its suggestive nature and the evidence shows that there were discrepancies between the description of the robber’s clothes and physique given by Mr. Asenato and his actual appearance when he was arrested.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing the sufficiency of the evidence first is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. |5State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Adkins, 39,724 (La.App. 2 Cir. 6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Davis, 27,961 (La.App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Adkins, supra; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The crime of armed robbery is defined in La. R.S. 14:64, which reads as follows:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

The U.S. Supreme Court has approved several factors for evaluating whether the reliability of an identification may outweigh the suggestiveness |fiof the procedures employed. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Davis, supra. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the victim’s prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.

The defendant points to the discrepancies in the description (factor (3)) given by the victim that Officer Nations recorded in his police report compared to his actual appearance. There were variances in the description of the suspect’s facial hair and the suspect’s build. The victim described the defendant’s facial hair as scruffy, while Officer Nations said he had a goatee. As-enato said the robber was a skinny black male. Nations put out a description of a man about 150 pounds, while Corporal Cain claimed the description he received was of a man weighing 180-195 pounds. Asenato admitted at trial that the man he identified had on different clothes than those of the robber.

Defendant also contends that Asenato’s emotional state renders his identification untrustworthy under factors (4) and (5). Asenato was described as “sweating and shaking” at the Waffle House when police arrived at least 45 minutes after the crime. When he was taken to identify Walls at the scene, Asenato screamed, “That’s him, That’s him.” The defendant claims given his emotional state, it is not unreasonable to believe Mr. Asenato would have identified any black male with a goatee who was 17taken out of a police car in handcuffs as the man who had robbed him.

Finally, under factors (1) and (2), the defendant notes that, although Asenato testified he got a good look at the robber’s face at the ATM, he could not recall whether the robber had a gold tooth. Additionally, there was no reason for Asenato to have a heightened level of attention before the robbery occurred.

For the foregoing reasons, the defendant argues the state failed to negate any reasonable probability of misidentification which was required for the state to meet its burden of proof. Therefore, the defendant argues, the state failed to produce evidence sufficient to prove guilt beyond a reasonable doubt.

After review, we conclude that the defendant’s argument is without merit. Asenato testified that he had several chances to view his fare’s face and noted many factors about his appearance, his clothes, and the gun the defendant brandished when he robbed him. The victim clearly recognized the defendant although the defendant apparently discarded an outer layer of clothes or changed his clothes after the robbery, but before he was caught by the police. The identification of the defendant by the victim, coupled with the police finding the victim’s cell phone on the person of the defendant during the pat-down, indicate that the state sufficiently proved that the defendant was the perpetrator of the crime.

The trier of fact obviously believed the testimony of the witnesses and not the testimony of the defendant. The victim’s testimony that he was carjacked at gunpoint, and that the defendant stole his cab, wallet, and cell | ¿phone, viewed in a light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the defendant had committed the crime of armed robbery. Accordingly, this assignment is without merit.

In his first assignment of error, the defendant contends that the trial court erred in denying his pretrial motion to suppress any evidence obtained as a result of the stop by Corporal Cain. He argues that Corporal Cain did not have reasonable cause to stop him based on the description Cain received over the radio and as described by the victim. The defendant points out several discrepancies, which we have discussed earlier in this opinion, concerning the defendant’s physique and clothing. He argues that because of the differences between the victim’s description and what Corporal Cain was looking for when he stopped the defendant, Corporal Cain had no reasonable cause for stopping this particular black male. Therefore, the defendant argues the trial court erred in denying his motion to suppress the evidence.

A police officer may detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Boyer, 2007-0476 (La.10/16/07), 967 So.2d 458. Reasonable cause for an investigatory stop is something less than probable cause, but the officer must be able to articulate knowledge of particular facts, which in conjunction with reasonable inferences drawn therefrom provide reasonable grounds to suspect the detainee of criminal activity. State v. Flowers, 441 So.2d 707 (La.1983), | 9cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Nervousness may be one of the factors leading to a finding of reasonable cause to stop. State v. Willis, 31,561 (La.App. 2 Cir. 1/20/99), 728 So.2d 493. In the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

The standard for investigatory stops and pat-downs for officer safety as set forth in Terry has been codified by the Louisiana legislature in La. C. Cr. P. art. 215.1.

La. C. Cr. P. art. 215.1 states in pertinent part as follows:

A. A law enforcement officer may-stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

In reviewing the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Young, 39,546 (La.App. 2 Cir. 3/02/05), 895 So.2d 753, 757, citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116. Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App. 2 Cir. 5/08/96), 674 So.2d 1082, 1084, citing State v. Jackson, 26,138 (La.App.10 2 Cir. 8/17/94), 641 So.2d 1081. Accordingly, this court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App. 2 Cir. 11/17/06), 942 So.2d 1263, 1271, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.

Reviewing courts must look to the totality of the circumstances to determine whether the police officer possessed the requisite justification for such a stop. Officers must be allowed to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Temple, 2002-1895 (La.9/09/03), 854 So.2d 856.

In this case, we conclude that the record shows that Corporal Cain articulated his reasons for suspecting that the defendant roughly fit the description of the perpetrator of the armed robbery. The defendant was walking alone in a remote area less than a half mile from the carjacked cab at 3:00 a.m. Given the short length of time between the robbery, discovery of the stolen vehicle, and detention of the appellant, coupled with his close proximity to the stolen vehicle, the remoteness of the location and the lateness of the hour, Corporal Cain had reasonable cause to believe this was the person who had perpetrated the robbery. Further, when Corporal Cain ordered the defendant to stop and approach him, the man’s body language spoke of guilt to the officer who had made many felony arrests.

InThe trial judge specifically stated that based on the totality of the circumstances from the testimony adduced, the court found Corporal Cain had particular knowledge or facts in conjunction with reasonable inference drawn from those facts that provided him with reasonable grounds to suspect the defendant of criminal activity.

The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Such is not the circumstance of this case. This assignment is therefore without merit.

In his final assignment of error, the defendant alleges that the sentence of 50 years at hard labor without benefit of probation, parole or suspension of sentence was excessive under the facts and circumstances of this case.

The defendant argues that the sentence violates his constitutional right against excessive punishment, even though it falls within the statutory limits. Also, the defendant argues the record does not indicate which, if any, factors were considered in particularizing the sentence to Mr. Walls. The record in this matter, he contends, does not provide a sufficient factual basis for the sentence imposed. The defendant complains that the trial judge merely cited a reference to considering the sentencing guidelines found in La. C. Cr. P. art. 894.1, noted that the defendant had used a dangerous weapon during the commission of the offense, that the defendant had two prior felony convictions, and stated that a lesser sentence would deprecate the seriousness of the defendant’s crime. Those were the only reasons |12articulated by the trial court for imposing the 50-year sentence. No mitigating factors were mentioned.

Finally, the defendant claims a sentence of 50 years is excessive under the facts of the case. Mr. Walls was 48 years old at the time of sentencing, and a 50-year sentence is nothing short of a life sentence for him. The defendant argues the sentence is nothing more than a needless and purposeless imposition of pain and suffering, and, therefore, is constitutionally excessive.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal | ^history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. art. 1, § 20 if it-is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime; a sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. If adequate compliance with sentencing guidelines is found, the reviewing court must |14determine whether the sentence imposed is too severe in light of this particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Boudreaux, 07-0089 (La.App. 4 Cir. 8/15/07), 966 So.2d 79, writ denied, 07-1936 (La.2/1/08), 976 So.2d 717.

Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939.

The sentencing range for armed robbery is 10 to 99 years at hard labor, without benefit of probation, parole, or suspension of sentence. La. R.S. 14:64(B). The sentence actually imposed in this case was 50 years; therefore, this midrange sentence falls squarely within the parameters of the sentence provided by statute.

In this case, the trial judge noted that she had considered the sentencing guidelines in La. C. Cr. P. art. 894.1. The judge noted aggravating factors about the defendant, including that he had two prior felony convictions, noted that the robbery was committed with a dangerous weapon, and stated that a lesser sentence would deprecate the seriousness of the defendant’s crime. These findings were sufficient to show that the judge considered the sentence as it applied to this. particular defendant prior to imposing the 50 years at hard labor.

Based on these factors, the imposition of the midrange 50-year sentence is not grossly disproportionate to the severity of the crime and does [ lsnot shock the sense of justice. It is not a purposeless imposition of pain and suffering. This was an atypical armed robbery due to the defendant’s treatment of the victim that included leaving him with pants ripped to the point of indecency and leaving him stranded and helpless in a remote area. For the foregoing reasons, the trial judge did not abuse her discretion in imposing this sentence for armed robbery. Therefore, this assignment of error is without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: EDWIN A. LOMBARD, Judge. BONIN, J.,

text:
    DISCOVER BANK v. Andrea NELSON.
    No. 2011-CA-1284.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Christian M. Craddock, Eaton Group Attorneys, L.L.C., Baton Rouge, LA, for Plaintiff/Appellee.
    Ginger K DeForest, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

h The defendant, Andrea Nelson, appeals the trial court’s judgment granting a motion for summary judgment in favor of the plaintiff, Discover Bank. For the reasons set forth below, we affirm.

Relevant Facts and Procedural History

On April 9, 2010, Discover Bank filed suit in First City Court for the City of New Orleans against Ms. Nelson, seeking to recover funds allegedly due on Ms. Nelson’s credit card account. Discover Bank was attempting to recover the sum of “$6,333.61, together with additional interest of 18% from December 31, 2009, and attorney’s fees in the amount of 25% of the total of both principal and interest, and all costs of these proceedings.” Discover Bank alleged that, as a condition of opening the account, Ms. Nelson agreed to pay reasonable attorney’s fees and interest associated with collecting payments as a result of default. The petition also asserted that the balance had not been paid despite amicable demand on February 10, 2010. On December 21, 2010, Ms. Nelson filed an Answer and Request for Notice, consisting of a general denial and raising the issue of prescription as an affirmative defense.

|2On April 25, 2011, Discover Bank filed a motion for summary judgment and supporting documents asserting it was entitled to recover these same amounts. The trial court heard the matter on June 16, 2011, and granted summary judgment the same day in favor of Discover Bank. The defendant appeals this judgment.

Standard of Review

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 4 (La.1/19/11), 57 So.3d 1002, 1006; citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial.... 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 material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.

¡oDiscussion

In its motion for summary judgment, Discover Bank asserts that there is no genuine issue of material fact concerning Discover Bank’s entitlement to recover the balance due on Ms. Nelson’s account, and, therefore summary judgment should be granted in its favor. In support, Discover Bank submits the following evidence without opposition: (1) a demand letter dated February 10, 2010; (2) an unsigned credit card agreement; (3) a statement of account; (4) a “Supplemental Affidavit of Correctness of Account,” signed by an employee of the attorney representing Discover Bank; and (5) an affidavit by Discover Bank’s servicing agent’s account manager. These documents establish that Ms. Nelson incurred a debt which she never paid.

In opposition to the motion for summary judgment, Ms. Nelson does not contest that she incurred the debt, but contends that because Discover Bank sent her a notice that the account had been charged off, her obligation to repay her debt was extinguished. In support of her position, Ms. Nelson files an account statement entitled “Discover Open Road Card Account Summary.” Ms. Nelson alleges that this document indicates that Discover Bank credited her with $6,333.61 on January 26, 2010 and marked it as “Internal Charge-Off’ with a “New Balance of $0.00.” Ms. Nelson contends that this document creates a genuine issue of material fact which precludes summary judgment. We disagree.

Although Ms. Nelson argues that the document is sufficient to demonstrate that she would meet her burden at trial, the document, in fact, shows only that the amount of $6,333.61 was internally charged off. In researching the term “internal |4charge-off,” we find no directly related jurisprudence, but the term “internal,” is generally defined as “of, relating to, or occurring on the inside of an organized structure (as a club, company or state),” and the general definition for the term “charge-off’ is “[t]o treat (an account receivable) as a loss or expense because payment is unlikely; to treat as a bad debt (a debt that is uncollectable and may be deductible for tax purposes).” Thus, an internal charge-off is only a corporate accounting mechanism and does not extinguish a debt. Therefore, Ms. Nelson’s submission of this document does not create a genuine issue of material fact.

Conclusion

Upon de novo review, we find no genuine issue of material fact exists as to whether Ms. Nelson is indebted to Discover Bank in the amount of $6,333.61. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

1¶1 respectfully dissent. I would reverse the summary judgment and remand to the trial court for a trial on the merits.

By July 1, 2009, Discover Bank received no payments from Ms. Nelson on her credit-card account. The bank increased its finance charge to 28.99% APR, so that Ms. Nelson was being charged more than $125.00 per month on the account plus $39.00 in “purchases” which correlated to a late fee. Her “previous balance” on the July statement was $5,029.53; by December 31, 2009, it had swollen to $6,333.61. All of the increase was due to finance charges at 28.99%, late fees, and ultimately “overlimit” fees.

Then Discover Bank, as the majority notes, sent Ms. Nelson a credit-card statement in which it explained that it had taken an “internal charge-off’ of $6,333.61 which it credited to her previous balance, resulting in a new balance of “$0.00.”

In her opposition to summary judgment, Ms. Nelson timely raised and factually supported the affirmative defense of remission of the debt.

12“A remission of debt by an obligee extinguishes the obligation.” La. Civil Code art. 1888. “That remission may be express or tacit.” Id. Importantly, “[a] remission of a debt is effective when the obligor receives the communication from the obligee.” La. Civil Code art. 1890. And “[ajcceptance of a remission is always presumed unless the obligor rejects the remission within a reasonable time.” Id. (emphasis added)

Because under the substantive law applicable to this controversy Ms. Nelson is presumed to have accepted the remission of the debt, she has sufficiently factually supported her defense (on which she bears the burden of persuasion) and, in my view, raised a genuine issue of material fact whether the obligation claimed by Discover Bank was still owed by her, which would preclude summary judgment. There is, even under the Anderson v. Liberty Lobby, Inc. test, sufficient evidence that a fact-finder applying the evidentiary standard “could reasonably find” for Ms. Nelson. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Discover Bank has not pointed out that there is an absence of factual support for Ms. Nelson’s defense that her debt to it has been extinguished by remission. See La. C.C.P. art. 966 C(2). Because it failed in its burden on its motion, summary judgment is not authorized.

Accordingly, I dissent.

      . "internal.” Merriam-Webster Online Dictionary, 2011. http://www/merriam-webster.com (29 January 2011).

      . Black's Law Dictionary (9th ed.2009).

      . Ms. Nelson did not raise the affirmative defense of extinguishment of the debt through the creditor's remission in her answer. See La. C.C.P. art. 1005 (the answer shall set forth affirmatively "extinguishment of the obligation in any manner”). It is preferable to raise the defense in the answer, but it is not necessary to a party's opposing summary judgment that the defense have been affirmatively raised in the party’s answer. See, e.g., Dubois v. Fab-Con, Inc., 02-1731, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 679, 683; Walters v. Metropolitan Erection Co., 04-0162, pp. 6-7 (La.App. 4 Cir. 10/27/94), 644 So.2d 1143, 1147, and, most recently, Johnson v. Orleans Parish School Bd., 10-1388, p. 9 (La.App. 4 Cir. 12/20/11), 80 So.3d 1175, 1182, writs pending 2012-C190, 2012-C-195, and 2012-C-236 (La.01/23/12).

      . Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. I have considerable reservations, however, that Anderson is an appropriate authority for summary judgment review in this creditor-debtor dispute, and mean only to suggest that even under the Anderson standard, which treated of a libel case in which the substantive standard was "clear and convincing,” a fact-finder applying the presumption of acceptance of the remission of the debt could return a judgment favoring the nonmoving party, Ms. Nelson. In our case, the burden of persuasion is by a preponderance of the evidence; the burden on proving the debt is on the moving party, Discover Bank, and on proving the extin-guishment of the debt on the nonmoving party, Ms. Nelson.


author: JAMES F. McKAY III, Judge.

text:
    Crystal HAUN v. CUSIMANO INC.; Frank A. Cusimano, Jr.; Gary Cusimano and XYZ Insurance Company.
    No. 2011-CA-1288.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.
    Marie Riccio Wisner, New Orleans, LA, for Plaintiff/Appellant.
    John I. Goodwin, Colliau Elenius Murphy Carluccio Keener & Morrow, Dallas, TX, for Defendant/Appellee, Continental Casualty Company.
    Elton F. Duncan III, Kelley A. Sevin, Duncan & Sevin, L.L.C., New Orleans, LA, for Defendants/Appellants, Cusimano, Inc., Frank A. Cusimano, Jr., Carin Cusi-mano Evans, Dana Cusimano Farley, Marie Cusimano and Gary Cusimano.

      (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

_JjIn this insurance coverage case, the plaintiff, Crystal Haun, and the defendants, Gary Cusimano, Frank A. Cusima-no, Jr., Dana Cusimano Farley, Carin Cusimano Evans, Marie Cusimano, and Cusimano, Inc., appeal the trial court’s granting of summary judgment in favor of the defendant, Continental Casualty Company. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 16, 2006, Crystal Haun fell from the balcony outside of the entrance to her Burgundy Street apartment in New Orleans when the balcony’s railing gave way. As a result of the fall, Ms. Haun alleges that she sustained numerous injuries, including contusions of the brain, bilateral occipital fractures, and permanent brain injuries.

Ms. Haun’s apartment was located in a building owned by siblings, Gary Cusima-no, Frank A. Cusimano, Jr., Dana Cusima-no Farley, and Carin Cusimano Evans; their mother, Marie Cusimano, had a usu-fruct of the property. Navigators Insurance Company issued a liability policy with limits of $500,000.00 per |2occurrence to the Cusimanos. The building was managed on the owners’ behalf by Cusimano, Inc. and Gary Cusimano. Their management services consisted of maintenance of the property and leasing of the apartments. Gary Cusimano has been a licensed real estate agent in Louisiana since 1996 and a licensed real estate broker since 1998. Continental Casualty Company had issued an errors and omissions (E & O) policy in the amount of $100,000.00 per claim to Cusimano, Inc. and Gary Cu-simano.

On November 29, 2007, Ms. Haun filed a petition for damages against Frank Cusi-mano, Jr., Gary Cusimano, Cusimano, Inc., and XYZ Insurance Company. On September 29, 2010, Ms. Haun filed an amended petition, naming Marie Cusimano, Dana Cusimano Farley, Carin Cusimano Evans, Continental Casualty Company, and Navigators Insurance Company as additional defendants. On November 19, 2010, Continental filed a motion for summary judgment alleging that its policy excludes coverage based on bodily injury. Both the plaintiff and the Cusimano defendants opposed this motion. On April 15, 2011, the trial court granted Continental’s motion in open court. The trial court issued a written judgment on April 29, 2011, and designated it as a final appealable judgment pursuant to La. C.C.P. art. 1915(B). It is from this judgment that both the Cusima-no defendants and the plaintiff now appeal.

DISCUSSION

The issue before this Court is whether Continental’s motion for summary judgment was properly granted.

^Appellate courts review summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank of Commerce, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2).

A summary judgment shall be rendered forthwith 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden-of proof at trial.” La. C.C.P. art. 966(C).

Section VI. E of Continental’s policy states: “This Insurance does not apply to any Claim alleging, arising from or related to: ... E. bodily injury, sickness,_Jjdisease, mental anguish, pain or suffering, emotional distress ...” By its own words, Continental’s policy would not cover Ms. Haun’s claim for her injuries from the fall. This Court has found that the bodily injury exclusion bars coverage for lawsuits alleging bodily injury and emotional distress. See Burmaster v. Plaquemines Parish Govt., 2010-1543 (La.App. 4 Cir. 3/30/11), 64 So.3d 312; Bryant v. Motwani 96-1351 (La.App. 4 Cir. 10/30/96), 683 So.2d 880. Furthermore, policy provisions limiting the insurer’s liability or restricting policy obligations should be enforced unless they conflict with statutes or public policy. Pareti v. Sentry Indem. Co., 536 So.2d 417, 421 (La.1988).

In the instant case, Continental’s E & O policy contains an exclusion for bodily injuries. There is nothing about this exclusion that conflicts with any statute or that is contrary to public policy. Under the Louisiana Real Estate Law, licensed real estate brokers are required to carry E & O insurance to cover real estate activities set forth in the license law. See La. R.S. 37:1466(A). These activities include managing or leasing real estate on behalf of another. La. R.S. 37:1431(7)(a). There is nothing in the law that would require an E & O policy to cover bodily injuries; the policies are more geared toward covering a broker for a negligent act, error or omission in the performance of or the failure to perform professional services and not so much for the condition of a piece of immovable property. That being said, Continental’s policy clearly states that there is an exclusion for bodily injuries. There is no dispute as to that. There is also no question that Ms. Haun’s claim would fall into the category of bodily injuries. Accordingly, there are no | ^genuine issues of material fact. Therefore, the trial court correctly determined that Ms. Haun’s claim was not covered by Continental’s E & O policy and as such Continental was dismissed from the case.

CONCLUSION

As there are no genuine issues of material and Continental was entitled to judgment as a matter of law, we affirm the trial court’s granting of summary judgment.

AFFIRMED