author: PICKETT, Judge.

text:
    DEROUEN’S HEAVY EQUIPMENT, INC. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 08-1077.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      L. Katherine A. Theunissen, Mahtook <& Lafleur, Lafayette, LA for Defendant>-Ap-pellee, Lafayette City-Parish Consolidated Government.
    Timothy J. Poche, Margaret Grace Patton, Taylor, Porter, Brooks, & Phillips L.L.P., Baton Rouge, LA, for Plaintiff-Appellant, Derouen’s Heavy Equipment, Inc.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

_|jThe plaintiff-appellant, Derouen’s Heavy Equipment, Inc. (Derouen), appeals a judgment of the trial court denying its Rule for Preliminary Injunction against the Lafayette City-Parish Consolidated Government.

STATEMENT OF THE CASE

Derouen owns land in unincorporated Lafayette Parish. Originally used as a dirt pit, Derouen secured a permit from the Louisiana Department of Environmental Quality (DEQ) in 2003 to operate a Type III construction and demolition debris landfill, and began landfill operations in 2004.

In February 2008, the Lafayette City-Parish Planning, Zoning, and Code Department began a review to determine whether Lafayette City-Parish Ordinance No. 059-93 (the ordinance) is applicable to the Derouen facility. The ordinance establishes greenbelt and buffer requirements for certain types of business activities, including landfills, dumping pits, and disposal facilities, and provides for sanctions for failure to comply with these requirements. The city-parish determined that the Derouen facility must comply with the greenbelt and buffer requirements for a landfill and that they were not in compliance. Derouen ceased landfill operations at the facility and filed a Petition for Declaratory Judgment, Preliminary and Permanent Injunction.

In its petition, Derouen alleges that the ordinance is unconstitutionally vague and violates its right to equal protection under the law. Derouen argues that the ordinance is impermissibly vague because it establishes different greenbelt and buffer zone requirements for landfills and disposal facilities, and its facility can be classified as either according to the ordinance. Der-ouen also argues that the same language 12allows the city-parish to apply different requirements to similar facilities based on a whim. Finally, Derouen argues that the ordinance impermissibly imposes stricter greenbelt and buffer zone requirements on landfills than it does on dumping pits.

On May 19, 2008, the trial court held a hearing on Derouen’s request for a preliminary injunction. The trial court filed a minute entry on May 21, 2008, which stated, in pertinent part:

After consideration of the stipulation of facts, the evidence presented and the arguments of counsel, I do not find the ordinance to be unconstitutional. Regardless, there is no irreparable harm, and the request for a Preliminary Injunction is hereby denied at mover’s cost.

The trial court signed a judgment denying the preliminary injunction on June 16, 2008. Derouen now appeals that judgment.

ASSIGNMENTS OF ERROR

Derouen asserts three assignments of error:

1. The District Court erred in concluding that the Lafayette City-Parish Ordinance No. 059-93 is not unconstitutionally vague.

2. The District Court erred in concluding that Lafayette City-Parish Ordinance No. 059-93 does not violate Derouen’s right to equal protection under the law.

3. The District Court erred in concluding that Derouen’s failed to demonstrate irreparable harm.

DISCUSSION

In order to obtain a preliminary injunction, a petitioner must show that he will suffer irreparable harm, he is entitled to the relief sought, and he must making a prima facie showing that he will prevail on the merits of the case. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979). An irreparable loss is one that cannot be compensated by money or is not susceptible of measurement by pecuniary standards. Hairford v. Perkins, 520 So.2d 1053 (La.App. 8 Cir.1987). 1/‘Trial courts have ‘great discretion’ in determining whether to grant or deny a preliminary injunction.” Pumpelly Oil, Inc. v. Ribbeck Const. Corp., 02-868, p. 6 (La.App. 3 Cir. 2/5/03), 838 So.2d 88, 92. On appeal, the issuance or denial of a preliminary injunction will be reversed only if the trial court abused its discretion. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3 Cir.1981).

In its third assignment of error, Der-ouen argues that the trial court erred when it found that Derouen failed to show it would suffer irreparable harm if the preliminary injunction did not issue. Der-ouen voluntarily ceased landfill operations before this suit was filed because it knew it was in violation of the ordinances. Der-ouen alleges it will suffer irreparable injury if it resumes operations and the city-parish enforces the ordinance by imposing fines and/or jail time.

A court should not grant a preliminary injunction when criminal action is threatened “unless the plaintiff shows with reasonable cei'tainty that (1) the statute is manifestly unconstitutional, (2) irreparable injury is threatened, and (3) existing property rights will be destroyed by enforcement.” Knights of Columbus, Chapter No. 24,09 v. Louisiana Department of Public Safety & Corrections, Division of State Police, 548 So.2d 936, 938 (La.1989). In the instant case, Derouen has failed to prove that the city-parish threatened any irreparable injury. Because a showing of irreparable harm is necessary to prove entitlement to a preliminary injunction, and Derouen has failed to meet that burden, we find no abuse of discretion in the trial court’s denial of the preliminary injunction.

Further, we find that Derouen has failed to exhaust its administrative remedies. Derouen secured a permit from the state to operate a landfill in 2003. They are | ¿presumed to know that the ordinance, passed in 1993, applied to the landfill. In fact, the record shows that they received a letter indicating that their dirt pit operations were exempt from the ordinance soon after the ordinance was enacted. While completing the process to get a permit from DEQ, Derouen never took any steps to ensure compliance with the ordinance, or seek a waiver from those parts of the ordinance they found burdensome by petitioning the city-parish for a waiver or variance.

We pretermit discussion of the remaining assignments of error. We find the trial court did not abuse its great discretion in denying the preliminary injunction. The judgment of the trial court is affirmed, and the case is remanded for further proceedings. Costs of this appeal are assessed to Derouen’s Heavy Equipment, Inc.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

author: PAINTER, Judge. GREMILLION, Judge,

license: Public Domain

text:
    CAPITOL ANESTHESIA GROUP, P.A. v. Gus WATSON.
    No. 2008-1159.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Rehearing Denied April 15, 2009.

      Jon K Guice, Linda K. Ewbank, Monroe, LA, for Defendant-Appellee, Gus Watson.
    Marjorie G. O’Connor, Stanley K. Hurder, Angela P. McCulloch, Baton Rouge, LA, for Third Party Defendant-Appellant, Office of Group Benefits.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| tOffice of Group Benefits (OGB), Third Party Defendant-Appellant, appeals the trial court’s grant of summary judgment in favor of Gus Watson, Third Party Plaintiff-Appellee. For the following reasons, we affirm the trial court’s grant of summary judgment and amend the judgment to reflect that interest on penalties and attorney’s fees is due from the date of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has previously been before us on appeal of another issue. Capitol Anesthesia Group, P.A. v. Watson, 05-1020 (La.App. 3 Cir. 3/1/06), 923 So.2d 881. In that opinion, we stated the facts as follows:

The third-party plaintiff in this litigation, Gus Watson, underwent gastric bypass surgery in October of 1995. At that time, he was an employee of the Catahoula Parish School Board and was covered by a plan of health insurance administered by OGB. Prior to the surgery, he requested that OGB pre-ap-prove the procedure, but OGB declined to do so, taking the position that the procedure was to address an obesity problem not covered by the benefit plan. Despite OGB’s position with regard to the payment of benefits, Mr. Watson proceeded with the surgery.
Subsequent to the surgery, various medical providers filed claims with OGB, seeking payment of their claims. OGB refused to pay these claims, relying on its position that its group plan did not cover services, supplies, or treatment in connection with, or related to, obesity.
After having its claim rejected by OGB, one medical provider, Capitol Anesthesia Group, P.A. (Capitol Anesthesia), made demand on Mr. Watson for payment. When Mr. Watson failed to pay the claim, Capitol Anesthesia instituted suit against him, seeking to recover the amount due ($931.00), together with attorney fees, legal interest, and costs of court. Capitol Anesthesia brought this suit in Catahoula Parish, Mr. Watson’s domicile, on February 24, 1998.
Mr. Watson answered the suit in March of 1998 and incorporated in his answer a third-party demand against State Employees Group Benefits Program, the predecessor of OGB. Over five years later, on May 12, 2003, OGB filed its answer to the third-party demand.
| ¡At a May 17, 2004 pretrial conference, the trial court scheduled the trial on the merits for November 15, 2004. On June 28, 2004, Capitol Anesthesia mailed to the clerk’s office a motion and order to dismiss its suit with prejudice. In the cover letter accompanying the motion and order, Capitol Anesthesia’s counsel stated in part that it had settled with Mr. Watson “as per a compromise settlement paid by Office of Group Benefits.” Although the motion and order reflect a filing date of June 30, 2004, the trial court has yet to execute the order of dismissal contained in the motion to dismiss. Additionally, the trial court minutes fail to reflect any action by the trial court in open court dismissing Capitol Anesthesia’s suit.

Id. at 882 (footnotes omitted).

We note that Capitol Anesthesia has filed a brief in this appeal stating that it “has no further interest or claim in the litigation, nor does it take a position for the remaining litigants” and that it desired to be dismissed from this appeal “without prejudice to the remaining litigants.” There is still no signed judgment from the trial court dismissing Capitol Anesthesia, despite its having filed a motion and order for dismissal.

We ultimately affirmed the trial court’s denial of OGB’s exception of venue and motion to dismiss. Id. After that appeal was completed, Watson filed a motion to re-fix the hearing on his previously filed motion for summary judgment on the issues of coverage, the medical bills owed, and penalties and attorney’s fees. The trial court granted summary judgment as to coverage and awarded $26,179.18 for the medical bills. The trial court also awarded penalties in the amount of $26,179.18 and “reasonable attorney fees” pursuant to La. R.S. 22:657(A). For the following reasons, we amend and affirm the trial court’s judgment.

DISCUSSION

Our review of this matter is de novo, using the same criteria as the trial court. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. We must determine whether |3any genuine issues of material fact exist and whether the mov-ant, Watson, is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). In the case sub judice, the inquiry involves two questions: (1) whether the exclusion is clear and unambiguous; and (2) whether the exclusion applies to the facts of this case.

Ambiguous terms in an insurance contract are construed liberally in favor of the person claiming coverage. Westerfield v. LaFleur, 493 So.2d 600 (La.1986). An ambiguity in an insurance policy is said to exist when the pertinent provision can be reasonably construed in two different ways. McCarthy v. Berman, 95-1456 (La.02/28/96), 668 So.2d 721....
The interpretation of an insurance policy is usually a legal question that can be properly resolved by a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 08/20/03), 859 So.2d 159, 162, writ denied, 03-2643 (La.12/12/03), 860 So.2d 1159.

Proshee v. Shree, Inc., 04-1145, pp. 3-4 (La.App. 3 Cir. 2/2/05), 893 So.2d 939, 942.

OGB contends that the following exclusion contained in the policy applies such that the charges for Watson’s gastric bypass procedure were not covered:

VIII. EXCEPTIONS AND EXCLUSIONS FOR ALL MEDICAL BENEFITS

No benefits are provided under this contract for:

AA. Services, supplies, or Treatment in connection with or related to obesity; surgery for excess fat in any area of the body; resection of excess skin or fat following weight loss or pregnancy.

Watson, on the other hand, contends that the gastric bypass procedure was performed for the treatment of several life-threatening conditions, all of which OGB admits to have been medically necessary. Specifically, Watson suffered from a stroke, high blood pressure, high cholesterol, sleep apnea, a severely inflamed gallbladder (which was removed during the surgery), and a congenital urethra defect |4(which was repaired during the surgery). At the time of the surgery in 1995, Watson weighed 467 pounds. Watson contended, and the trial court agreed, that the term “in connection with or related to obesity” as found in the exclusion is ambiguous and that OGB’s interpretation of said term was ambiguous in that some claims were paid while others were denied.

Nancy Baker, the assistant manager of the claims processing department of OGB, was deposed, and her deposition was submitted into evidence by Watson in support of his motion for summary judgment. She testified as follows:

Q: Okay. Let’s say various members have high blood pressure. Would the benefit plan, as it existed in October of '95, have provided coverage for the treatment of high blood pressure?
A: Yes.
Q: Gallbladder, inflamed gallbladder conditions, which ultimately may require removal of the gallbladder, would the plan have provided coverage for that type treatment?
A: Yes.
Q: For the actual removal of the gallbladder if indicated?
A: Yes.
Q: What about congenital problems with the urethra or the kidneys; would the plan, as it existed in October of '95, have covered those types of conditions?
A: Yes.
Q: High cholesterol and triglycerides, would the plan as it existed in October of '95 have covered the condition or those conditions?
A: Yes.
Q: Stroke and other cardiovascular-type accidents?
A: Yes.
| bQ: The treatment of heart conditions, erratic heartbeat and other ailments of the heart, would the plan have covered that?
A: Yes.
Q: Now, in October of '95, if a patient submitted a claim for high blood pressure medication or some other method of treatment for high blood pressure, what steps would the group have taken to determine whether or not the person’s weight caused or contributed to that condition?
A: It would have to be a secondary diagnosis. It would have to be one of the listed diagnoses on the claim that was submitted for payment.
Q: So, for instance, if a member of the group submitted a pharmacy bill for blood pressure medication, would the group pay that, or would they ask questions?
A: A drug bill they would pay. A doctor bill that came in, if it were just a diagnosis of high blood pressure, we would, of course, pay it. If it had obesity as a secondary diagnosis or any other diagnosis on the plan, we would request medical records to determine what the primary treatment was for, what he actually treated.
Q: Okay. If a member of the group back in '95 was diagnosed with high blood pressure, seriously high blood pressure, and the doctor was of the opinion that his obesity was causing that high blood pressure, would the group pay for the treatment of the high blood pressure?
A: If he were treating the high blood pressure, yes, we would pay for it.
Q: Now, the next questions are going to be the same question, but let’s assume that the person had high cholesterol or triglycerides that the healthcare provider said this is related to the person’s obesity, and I recommend a particular treatment for that. Would the group pay for that?
A: If they were treating that, those two diagnoses.
Q: Would the same apply to any other condition that was related to obesity; if the doctor was treating that, then the plan would cover it?
A: Yes.

| (iThe sworn statement of the physician who performed the gastric bypass, Dr. Kerry L. Ozment, was also submitted into evidence, over OGB’s objection. He testified that prior to the surgery, Watson required dilation and the placement of a catheter to relieve obstructive uropathy caused by a congenital hypospadias (a condition where the opening of the urethra, instead of being at the end of the penis, is beneath it). He further testified that during the surgery, he removed Watson’s gallbladder which was chronically inflamed. He further testified that the gastric bypass procedure was medically necessary.

The trial court, in its written reasons for judgment, stated: “[I]t is difficult to understand the distinctions being drawn by the Group in order to, on one hand, claim that the treatment of some conditions cause[d] by and related to obesity are covered under the Group’s plan while on the hand denying others.” Based on this, the trial court found that the policy exclusion was ambiguous and that there was a reasonable interpretation of the policy that afforded coverage to Watson.

It is well-settled that if the language of the exclusion at issue is subject to two or more reasonable interpretations, then the interpretation which favors coverage must be applied. Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975 (La.1991). We agree with the trial court that the language of the exclusion is ambiguous and, therefore, affirm the trial court’s grant of summary judgment in favor of Watson.

OGB next contends that the trial court erred in awarding medical expenses in the amount of $26,179.18 on the basis that Watson is only entitled to recover the amount of benefits due rather than the total amount of medical bills and that there appears no evidence of the amount of the benefits due in the record. Louisiana Revised Statutes 22:1821(A) provides, in pertinent part, as follows:

|7A11 claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court.

Watson’s affidavit attesting to the amount of medical bills he paid does appear in the record, and OGB submitted no evidence to the contrary to show that the amount of benefits due was less than the amount paid. We find no error in the trial court’s grant of $26,179.18 in medical bills to Watson.

OGB also contends that its reasonable interpretation of the plan document precludes an award for penalties and attorney’s fees. We have already found that the exclusion was ambiguous. Furthermore, we note that:

An insurer takes the risk of misinterpreting its own policy provisions. Such error will not be considered reasonable grounds for delaying the payment of benefits. Even when the issues involved are res nova, an insurer may be cast for penalties. Coker v. American Health and Life Insurance Company, 525 So.2d 130 (La.App. 3 Cir.1988). The issue of whether just and reasonable grounds exist is a question of fact. The trial court’s factual determination will not be disturbed on appeal unless clearly wrong. Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 3 Cir.1980).

Holland v. Golden Rule Ins. Co., 96-264, p. 6 (La.App. 3 Cir. 10/9/96), 688 So.2d 1186, 1189-90. We find that the trial court was not clearly wrong in its finding that there was no just and reasonable grounds for delay in this case and affirm the award of penalties in the amount of $26,179.18. As the trial court awarded only a “reasonable amount” for attorney’s fees, which was to be agreed upon by the parties | Rand set by the trial court in the event that no agreement could be reached, we note that the appeal of the amount of attorney’s fees, if set by the trial court, is reserved to OGB.

With respect to OGB’s complaint that interest on penalties and attorney’s fees is due only from the date of judgment, rather than the date of judicial demand, we agree and amend the judgment to reflect that interest on penalties and attorney’s fees is due only from the date of judgment.

DECREE

The trial court’s grant of summary judgment in favor of Defendant and Third Party Plaintiff-Appellee, Gus Watson, is affirmed as amended. Costs of this appeal are assessed against Third Party Defendant-Appellant, Office of Group Benefits.

AFFIRMED AS AMENDED.

GREMILLION, Judge, concurs in the result and assigns written reasons.

GREMILLION, Judge,

concurs with written reasons.

| |I concur with my colleagues in their conclusions. The trial court was right. The “obesity” exclusion in the subject policy is simply too problematic to enforce. Furthermore, the plaintiff was entitled to the penalties and attorney’s fees awarded by the trial court. However, I do wish to provide my specific reasons for so ruling.

Summary Judgment

The pertinent policy language purports to disallow “treatment” that is provided “in connection with or related to obesity.” However, the policy undisputedly provides coverage for such maladies as stroke, high blood pressure, high triglycerides, and high cholesterol.

Thus, there is no problem interpreting this exclusion when the medical evidence clearly indicates that the treatment is being provided for only “obesity.” Such treatment would not be covered. The policy is also clear in a case where the medical evidence shows the treatment is strictly for high blood pressure, for example. In such a case, the treatment would clearly be covered.

A problem arises, however, when the medical records indicate that the treatment is being given not only to treat obesity but also to treat a condition or disease covered by the policy. That, of course, is exactly what occurred in this case.

If this exclusion or some other part of the policy would have clearly advised |2the plaintiff how OGB would deal with such a circumstance, I would have no trouble enforcing the provision. Unfortunately, there is no such rule or procedure provided for in the policy.

As a result of this deficit in the policy, OGB was left to develop its own procedures for dealing with such cases. Ms. Nancy Baker, an Assistant Manager with the Claims Processing Department of OGB, testified that she would review the medical records and make her own determination as to what the proposed treatment was “primarily treating.” However, she also advised that she would not allow payment for a gastric bypass, even if the medical records indicated that this surgery was for a covered condition other than obesity. Ms. Baker would reject such a claim based on her own notion that gastric bypass would only treat or affect those covered conditions by first causing weight loss.

There is nothing in the policy that allows OGB to withhold coverage for the treatment of otherwise covered ailments merely because its employees determined that the treatment of those ailments were not the “primary” focus of the treatment.

Additionally, nothing in the record suggests that Ms. Nancy Baker is anything other than a fair and competent person. However, the record is equally devoid of any evidence to suggest that she has either the authority or the expertise to determine what a physician or surgeon is “primarily treating.”

Ultimately, I would be in favor of enforcing this exclusion if the policy explained to insureds with clarity, how OGB would respond in the very frequent case of a multiple diagnosis that includes both clearly excluded diseases such as obesity and clearly covered diseases such as those suffered by the plaintiff. The policy is not merely unclear or ambiguous as to that point. It is silent. As the majority properly | .¡points out, that ambiguity and silence must be interpreted in favor of coverage. Accordingly, summary judgment was proper.

Penalties and Attorney’s Fees

The McKenzie and Johnson treatise on insurance law and practice states that there are two common reasons for the award of penalties and attorney’s fees in the realm of health and accident insurance. One is “the failure of an insurer to investigate a claim timely or thoroughly.” 15 La.Civ. L. Treatise: Insurance Law and Practice. The other is “an unreasonable policy interpretation by the insurer.” [Section 293] Id.

In this case, penalties and attorney’s fees should not be awarded based on an unreasonable policy interpretation. As the majority points out, the interpretation of this obesity exclusion is res nova. Furthermore, OGB had a right to test whether the courts would enforce an obesity exclusion, particularly when the plaintiff weighed in excess of 400 pounds and the treatment involved was gastric bypass: a procedure designed to restrict food intake and reduce caloric absorption in the case of severe obesity.

On the other hand, OGB clearly failed in its duty to investigate this claim timely and thoroughly. The trial court explained the defendant’s completely unacceptable feet dragging as follows:

In December 1995, Mr. Watson asked to appeal the Group’s denial of coverage, as was permitted by the Plan Document (Third Party Plaintiffs Exhibit 2). Pursuant to the Group’s own rules and regulations, the appeal was to be set for a full evidentiary hearing “as soon as reasonably possible” (page 48 of Plan Document). Mr. Watson began making requests that his hearing be set, but the Group did not set the hearing until May of 1997. This delay occurred despite the fact that Mr. Watson had submitted approximately 13 written requests that the hearing be set. Even then, two of the Group’s witnesses were not available at the hearing, thus requiring the evidence to be held open. (Neither a transcript nor a copy of the tapes from the above-described hearing have been produced by Defendant prompting Mr. Watson’s 14concern that such items may have been lost.)
Even though the record was held open, over the next four years the Group refused to make its witnesses available for depositions to complete the appeal despite over 15 separate written requests and pleas to do so. In fact, during that prolonged delay, defendant’s medical review officer changed. The witnesses, including the new review officer, were ultimately made available on May 15, 2001 — almost five years after the hearing began. In addition to the witness problems, during the delay caused by the Group, its own hearing process was changed without any notice of those changes being provided to Mr. Watson. The change in the Group’s procedures eliminated any evidentiary hearings as part of the appeal process.
In addition, as late as 2003, Mr. Watson was advised of the fact that the hearing procedures had changed, that his claim was being reviewed, and that a decision would follow shortly. The Court has been provided with no information to suggest that such a review ever occurred. Despite promises by the Group to hear his appeal (even after litigation commenced), Mr. Watson has waited almost 13 years to have his claim reviewed. In the meantime, he has been sued by at least one health care provider and has managed to pay his medical debts, while at the same time incurring damage to his credit history.

In short, penalties and attorney’s fees are not due here because the OGB lost its right to enforce a policy provision. Those penalties and fees are due because it took the OGB thirteen years to resolve this matter.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. John L. JONES.
    No. 2008-KA-0658.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2009.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Graham L. Bos-worth, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellant Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

^STATEMENT OF CASE

On July 25, 2006, the State filed a bill of information charging John L. Jones and Herman Richardson with looting a residence at 1718 Laharpe Street belonging to Eleanor Cunningham, in violation of La. R.S. 14162.5(A). Mr. Jones pled not guilty at arraignment on September 28, 2006. Hearings on defense motions were held on October 20, 2006; December 1, 2006; February 14, 2007; and March 30, 2007. The trial court found probable cause and denied the motion to suppress the evidence.

On July 3, 2007, the defendant, John L. Jones, was tried by a jury and found guilty as charged. The State filed a multiple bill on July 10, 2007, alleging that he was a second felony offender having previously been convicted of aggravated assault with a firearm. On August 22, 2007, the court heard evidence on the multiple bill and found Mr. Jones to be a second felony offender. He declined the offer to have a pre-sentence investigation conducted. Mr. Jones prayed that the court take notice that the victim in his prior conviction was actually his wife, which was the basis for reducing the initial charges of rape and kidnapping.

|2On October 23, 2007, the defendant was sentenced a second felony offender under La. R.S. 15:529.1 to twelve years at hard labor without benefit of probation parole or suspension of sentence and imposed a fine of five thousand dollars ($5,000.00). The defendant offered an oral motion to reconsider the sentence which the trial denied. His motion for appeal was granted.

STATEMENT OF FACT

Mark Cunningham testified that he and his family evacuated from New Orleans to Houston prior to Hurricane Katrina. He stated that he returned to the City approximately one month later. He found that his house suffered roof damage and other incidental wind damage. His back door was damaged, likely from being pushed in by the Coast Guard, he believed. He secured the entry by nailing a piece of plywood over the doorway. Mr. Cunningham returned to Houston where his family was residing. Approximately one month later, Mr. Cunningham returned to New Orleans and found that his back door was open but nothing inside had been disturbed. He replaced the plywood over the entry.

In April 2006, Mr. Cunningham received a call from a neighbor informing him that he had seen some men coming out of his house. The next morning, at approximately 3:00 a.m., Mr. Cunningham and wife drove to New Orleans to investigate the situation. Once they arrived in the City, they telephoned the police department and waited under the Claiborne Bridge until the police were in the area. When a police car arrived, the Cunninghams followed it to his residence.

Mr. Cunningham stated that as soon as they pulled up, he observed the defendant holding the iron gate at his front door. The defendant then ran down the front steps of the Cunningham’s home and onto the porch of the house next door where he sat down. Two other subjects were standing on the porch. Eleanor ^Cunningham recalled that the defendant ran from the driveway of the residence out the gate and onto the porch next door.

Both Eleanore and Mark Cunningham noticed that the defendant was wearing clothes that belonged to Mark Cunningham. They approached the defendant and confronted him concerning the clothes he was wearing. The defendant denied that the clothes belonged to Mr. Cunningham. This confrontation resulted in the defendant and Eleanor Cunningham arguing, which required police intervention. Subsequently, the defendant and the two other subjects were handcuffed. It was revealed that the third subject was released by the police after it was determined that he was at the residence after being approached about buying a wall unit from the residence by the other two subjects.

Mark Cunningham identified a series of photographs depicting the interior of his residence, which had been ransacked. He stated that his house had not been in that condition on his previous visits. Mr. Cunningham also identified his shirt and shoes that were recovered from the defendant. He also stated that the defendant was wearing his pants. The responding officers related only that Mr. Cunningham identified the shirt and the shoes as being his property.

Officer Juan Lopez testified that on April 3, 2006, he was dispatched to a residence at 1718 Laharpe Street to respond to a report of a residence burglary. He stated that upon arrival, he observed the defendant and another subject, later identified as Herman Richardson, exiting the front door of the residence. Officer Lopez detained the subjects for investigation by placing them in handcuffs. Subsequently, the Cunninghams and Officer Tiwana Conway arrived on the scene.

Officer Conway testified that she was advised by Officer Lopez that he had observed the two subjects exiting the house. She spoke with the Cunninghams Lwho advised her that the two subjects were not authorized to be in their house and that the defendant was wearing Mark Cunningham’s clothes. Officer Conway investigated the condition of the house and found it to be ransacked.

The defendant testified on his own behalf. He stated that on the day in question, he was in the area visiting his cousin when he was approached by Herman Richardson who inquired whether he was interested in purchasing any items that were being removed from the house prior to be being gutted. The defendant stated the he needed some work clothes so he went with Herman Richardson to see what was available. Once at the residence, Herman Richardson went inside and retrieved some things and set them on the side. At the same time, the third subject, David Welch, pulled up in a truck and he and Herman Richardson went inside the house to look at some furniture. The defendant stated that he put the shirt on and tried on the boots, but the pants he was wearing were his own pants. He stated that Herman Richardson had told him that the house belonged to his family or some friends and that he believed him.

The defendant stated that just as Herman Richardson and David Welsh were coming out of the house, the police and the Cunninghams pulled up. He stated that the police immediately detained Herman Richardson and David Welch on the front porch. He stated that he was sitting on the porch next door when the Cunning-hams approached him, and that he was subsequently detained while the police sorted things out.

ERRORS PATENT

A review of the record for errors patent reflects that the trial court erred in imposing that the defendant’s sentence be served without benefit of probation, parole, or suspension of sentence. La. R.S. 14:62.5(B) contains no such ^prohibitions. It appears that the court incorrectly sentenced the defendant pursuant to La. 14:62.5(C), relative to looting during a state of emergency. Accordingly the defendant’s sentence is illegal and subject to amendment on review, as it relates to the requirement that the sentence be served without benefit of parole, probation or suspension of sentence. La.C.Cr.P. art. 882; State v. Green, 93-1432 (La.App. 4 Cir. 4/17/96), 673 So.2d 262 (reviewing and amending defendant’s sentence for attempted manslaughter to delete the requirement that sentence be served without benefit of parole, probation, or suspension of sentence as an error patent).

ASSIGNMENT OF ERROR

By this assignment, the defendant contends he received an excessive sentence. In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Supreme Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o late shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973; State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Landry, 2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

Generally, the reviewing court must determine whether the trial judge adequately complied with the guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case. State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223. Where the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even when there has not been full compliance with Article 894.1. Id.

This Court has not yet had occasion to review a defendant’s claim of excessive sentence following a conviction for looting. However, in 2007, the Fifth Circuit Court of Appeal reviewed two cases where the defendants’ sentences where challenged on appeal following a conviction for looting.

In State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, three defendants were arrested for looting a large grocery store after being apprehended inside the store next to shopping cart filled with alcoholic beverages. Neither defendant had any prior convictions. The trial court sentenced each defendant to fifteen years at hard labor. Evidence adduced at trial reflected that the three perpetrators may have had entered the store in an attempt to obtain insulin for a |7relative. Evidence of the defendants’ good character was also submitted. The appeal court found that the defendants’ maximum sentences were excessive.

In State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196 the defendant was convicted of looting merchandise form a large apparel merchant and was sentenced to eighteen years at hard labor. The defendant had previously been convicted of armed robbery for which he was sentenced to seven years. The court found that the defendant’s expressed rationale for looting, the need for clean clothes, was unjustifiable when juxtaposed against the city’s need to maintain law and order. Noting that the defendant received a mi-drange sentence, the appeal court found no abuse of discretion in the trial court’s sentence.

The defendant contends that his sentence is disproportionate to the severity of his offense. He notes that the fact that Cunningham’s had yet to repair the house and had only been boarding it up should have indicated to the judge that the disarray of the house may well have had nothing to do with him. The defendant also notes that this was a case where his explanation of his presence at the house was not implausible. The defendant further states that his previous conviction arose from a misunderstanding with his wife and as such should not have been treated as a serious offense.

The record reflects that the trial court considered the defendant’s previous criminal history and the circumstances of the case in sentencing the defendant to twelve years. The trial court was especially concerned that the case involved the looting of a private residence and that through the defendant’s actions the victims were caused to be victimized twice. “Once at the hands of Hurricane Katrina and once at the hands of Mr. John Jones.” It should also be noted that any rationale relating to providing for his immediate needs was not present here as in State v. Carter or State v. Pearson, as the dire conditions exiting in New Orleans had long since passed.

Although the defendant’s explanation of his presence was not implausible, the jury nevertheless found him guilty of the offense. Although the Cunninghams’ house had only been secured by plywood for some time, it appears that it had only recently been ransacked. The Cunning-hams had been alerted to the presence of individuals at the house only the previous day before returning from Houston to investigate. Despite the alleged circumstances of the defendant’s previous conviction, the fact remains that he pled guilty to a serious offense involving the discharge of a firearm. Although the defendant was initially sentenced to three years probation in that case, his probation was revoked and his sentence was made executory.

As a second felony offender the defendant’s sentencing exposure for imprisonment was not less than seven and one-half years and not more than thirty years. La. R.S. 14:62.5(B); La. R.S. 15:529.1(A)(1)(a). The defendant received a habitual offender sentence of twelve years, which as the State notes, is in the lower quarter of the sentencing range for his crime.

The defendant received a sentence six years shorter than the sentence found not constitutionally excessive in State v. Carter, which reflects the less serious nature of his previous conviction. For the foregoing reasons, the trial court did not abuse its discretion in sentencing the defendant as it did. The defendant’s claim of excessive sentence is without merit.

CONCLUSION

| (Accordingly, we affirm the conviction, amend the defendant’s sentence to delete the requirement that he serve this sentence without benefit of parole, probation, or suspension of sentence, and affirm his sentence as amended.

AFFIRMED AS AMENDED.

      . On May 15, 2007, the State amended the bill of information to include Mark Cunningham as a victim.

      . La. R.S. 14:65.2(0 provides:
      Whoever commits the crime of looting during the existence of a state of emergency, which has been declared pursuant to law by the governor or the chief executive officer of any parish, may be fined not less than five thousand dollars nor more than ten thousand dollars and shall be imprisoned at hard labor for not less than three years nor more than fifteen years without benefit of probation, parole, or suspension of sentence.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Brandon J. TILLMAN.
    No. 2008-KA-0408.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, David S. Pipes, Jr., Assistant District Attorney, New Orleans, LA, for Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

| STATEMENT OF CASE

On October 28, 2004, Brandon Tillman (“Tillman”) was indicted by an Orleans Parish Grand Jury for having “COMMITTED SECOND DEGREE MURDER UPON ARIEL BROWN” on March 26, 2004. Tillman appeared for arraignment on November 5, 2004, and was appointed counsel.

On January 26, 2005, Tillman filed several motions. The trial court denied a motion to suppress statement after a hearing that day. The trial court denied motions to suppress statements and evidence on March 18, 2005. On June 16, 2005, the trial court granted the State’s Prieur motion to admit evidence of another crime.

On August 21, 2006, a jury was impaneled but trial was recessed until the next day. The following day, Tillman moved to reconsider the decision on the State’s Pri-eur motion. This motion was denied. On August 23, 2006, the trial court postponed trial pending Tillman’s writ to this Court from the August 21, 2006 denial of his motion to reconsider admission of the Pri-eur evidence. The trial court noted that the impaneled jury had not been sworn in and dismissed the jurors |2from service. On April 10, 2007, the trial court recorded this Court’s denial of Tillman’s writ in case no. 2004-K-1451.

A new jury was picked on July 16, 2007, and trial began the following day. On July 19, 2007, the jury returned a verdict of guilty.

Tillman filed motions for new trial and post judgment verdict of acquittal on November 29, 2007. These motions were heard and denied the following day. On December 3, 2007, Tillman received a life sentence without benefit of parole, probation or suspension of sentence. He now appeals his conviction.

STATEMENT OF FACT

Testimony of Dr. Paul McGarry

Dr. Paul McGarry is an expert forensic pathologist with the Orleans Parish Coroner’s office. On March 27, 2004, he performed an autopsy on the corpse of Ariel Brown (“Ariel”), the victim in this case.

Dr. McGarry’s autopsy revealed that Ariel died from a gunshot to the head. The bullet entered the forehead above the left eye and stopped in the brain, immediately underneath the cranium above the right ear. Small punctuated markings or black gunpowder marks and sparse stippling surrounded the entry wound, indicating the gun was fired at close range but did not contact the skin.

The examination also revealed that Ariel was healthy and would have expected a normal life. An abrasion on her elbow due to scraping against a rough surface would have occurred from falling on pavement. Ariel’s left hand thumbnail and right hand index fingernail were broken. Also, abrasions and a 13smail laceration of the opening of the vagina indicated sexual activity shortly before death.

During the autopsy, specimens of fluid were tested. These tested positive for marijuana. No other drugs or alcohol were present. Swabs from the body also tested positive for the presence of semen and sperm cells. Ariel’s fingernails were also preserved Dr. McGarry preserved the fingernails in case they were broken in a struggle and Ariel was able to scratch a person or thing, leaving part of whatever she scratched under her nails. Dr. McGarry requested or recommended testing the nails, but was not aware if a test had been performed because the decision to test was not his to make.

911 call

The State introduced a recording of two 911 calls from March 26, 2004, the night of the murder. This tape was played for the jury. The first call was made at 10:55 p.m.

Testimony of Shaun Ferguson

Shaun Ferguson was the first lead homicide detective assigned to this case. He investigated the crime scene at the corner of Horace and Patterson Streets on March 26, 2004. He arrived at approximately 11:34 p.m. Ariel’s body was still at the scene. Her shirt was torn.

As Ariel’s purse and jewelry were left at the scene, Det. Ferguson opined that robbery was not the motive for the murder. Nothing appeared to have been taken.

14A computer search of Ariel’s name revealed that she had been the victim of domestic abuse involving false imprisonment and battery by Tillman. An order had been issued to Tillman to stay away from Ariel. A computer search of Tillman’s name revealed that an outstanding warrant existed for him. This information led the investigation to Tillman’s home, which was located on East Homestead, some ten blocks from the crime scene. It was approximately 12:35 a.m. Tillman showed no reaction when Det. Ferguson informed him of Ariel’s death. Det. Ferguson inquired about Tillman’s whereabouts that night. The interview continued at the Fourth District station.

At approximately 12:40-12:45 a.m., Tillman gave a statement. He stated that he was home all night. He also denied seeing Ariel since January 2004. When Det. Ferguson confronted Tillman with conflicting information that he had received from his lieutenant, Tillman changed his story, stating that he had left the house to go to the corner grocery store and buy beer at approximately 11:30 p.m. Tillman also stated that he had spoken to a neighbor named Ray for a few minutes on the way home.

When the police confronted Tillman a third time, informing him that a witness had seen him with Ariel on the night of the murder, Tillman continued to deny seeing Ariel, but changed his story again, stating that he had gone to a friend’s house for an hour or two. Tillman identified the friend only as “B”, stating that he did not know B’s full name. Tillman could not tell the police where B lived.

The police did not test Tillman’s hands for gunshot residue during the interview at the Fourth District station. Det. Ferguson explained that Tillman was |Rnot then a suspect. Det. Ferguson gave the same explanation for not recording Tillman’s statements.

A search warrant for Tillman’s home, where he lived with his mother and brother, was subsequently obtained. The search produced four weapons — two hand guns, a rifle, and a shotgun, but no other evidence.

Det. Ferguson also took a “Buccal swab” — an oral slide of DNA saliva and four Q-tips of samples — from Tillman. Det. Ferguson requested a comparison of this evidence to the sexual activity kit taken from Ariel’s autopsy. A subpoena was also issued for phone records from the home of Renesha Brown (“Renesha”), Ariel’s cousin, as well as from Tillman’s house. These records revealed that a phone call had been made from the Tillman’s house to Renesha’s residence at approximately 6:07 p.m. that lasted some twenty-nine minutes.

Det. Ferguson located Renesha at a nightclub on the night of the murder. Renesha lived in the Fourth District, in the Woodland Apartments on Sandra Drive, within two miles of the murder scene.

On cross-examination, Det. Ferguson testified that he interviewed one of several 911 callers. One interviewee informed him that she heard a gunshot, looked in the direction from whence it came, and saw a car fleeing. The police searched the street in the vicinity of where the car fled, but the search produced no evidence. A car fitting the description of the fleeing car was discovered, but it turned out not to be the same car.

Upon being recalled to the stand by the State, Det. Ferguson testified that Tillman gave several statements to him but never informed him that he had been with Ariel the day she was killed.

|fiOn cross-examination, Det. Ferguson testified that he was aware of the stay away order, prohibiting Tillman from being with Ariel, prior to going to his house. Det. Ferguson also testified that he did not know whether he would have arrested Tillman for violating the stay away order had he admitted they had been together. He reasoned that arresting Tillman would not necessarily be his course of action until he knew what was going on.

Testimony of Crystal Ruffin

Crystal Ruffin is Ariel’s mother. She last saw her daughter on the day she died.

Though she did not recall the exact date, Ms. Ruffin recalled an incident identified to her as occurring on June 20, 2003. It began when Ms. Ruffin’s mother and she went to Tillman’s house at approximately 11:25 or 11:35 p.m. on that date and attempted to gain entry. Over a four hour period, they attempted to enlist the assistance of the police, who were reticent to enter the house at first because no one appeared to be inside. However, the event culminated in the police kicking in the door to the Tillman residence. Once inside, they discovered Ariel. Blood was on her shirt, her braids were pulled out of her hair, and her face was swollen. Ms. Ruffin saw only Tillman and her daughter exit the house. However, Tillman and two other men were arrested.

Testimony of Ed Derinyer

Ed Deringer is a former New Orleans Police Department detective. On September 1, 2004, Det. Deringer took over the investigation of this case from Det. Ferguson.

|7As part of the investigation, Det. Der-inger re-interviewed Tillman and re-arrested him. This time, Tillman admitted to being with Ariel on the night she died and stated that they had intimate relations that night. Tillman stated that he took Ariel to Renesha’s house before walking home to his house. This statement was not recorded because, “[t]his [was] during the initial preinterview.”

Det. Deringer also searched a vehicle belonging to Brian Steptore, a neighbor of Tillman. The search occurred in September, several months after Ariel Brown’s death. The search produced several substrate samples to compare with Ariel’s clothing. A sample of what appeared to be blood was determined not to be human after testing.

In his investigation, Det. Deringer drove the distance between Renesha’s house and the murder scene. The drive took eight minutes, going the speed limit and observing all signs. Det. Deringer noted at trial that there was a ten minute difference between the time Ariel was last seen with Tillman and “when the call regarding a gunshot wound and a woman down in the street had occurred.”

On cross-examination, Det. Deringer testified that a witness who had “seen a vehicle matching that description leaving the apartment complex” never identified Tillman in a photographic lineup.

Renesha told Det. Deringer that Tillman and Ariel left her apartment at approximately 10:45 p.m. She also informed him that she had immediately called a friend after the couple left her house. Review of Renesha’s telephone record showed a call was made from her house at 10:50 p.m.

When asked if he questioned Renesha about why Det. Ferguson’s report indicated that she had told that the couple left at 10:15, Det. Deringer did not | srecall. However, he explained that witnesses often “don’t understand time” because it is subjective.

Testimony of Latoya Brown

Latoya Brown is Ariel’s sister. She testified that Tillman and Ariel Brown dated for approximately two years.

Testimony of Officer Brandon McDonald

Officer Bi’andon McDonald responded to Tillman’s house in the June 20, 2008 incident. He responded between 11:00 p.m. and 1:00 a.m.

The door had to be kicked in. Upon entering, Officer McDonald saw hair— pieces of long braids — on the floor. A man came out from the back of the house with his hands up. A woman with a bloody nose also came out from the back. The woman was crying, and her face was swollen. The braids of hair on the floor matched the woman’s hair. Officer McDonald recalled the man’s name was “Brandon.”

On cross examination, Officer McDonald testified that the braids were fake and had been “pulled out.” No weapons were found in the house.

Testimony of Renesha Brown

Renesha Brown is Ariel’s cousin. She was on probation for a federal “bank larceny” conviction at the time of trial. On March 26, 2004 — the date of the murder— Ariel was at Renesha’s apartment all day until approximately eight o’clock. Ariel was in the living room on the sofa, using the phone, while Renesha was in her room, lying down. Ariel spoke to Tillman on the phone the whole time | Sshe was at Rene-sha’s apartment. Renesha lived with her son and her boyfriend, Cornelius.

Ariel returned to Renesha’s apartment at approximately 10:15, with Tillman. They were dropped off by a friend with a car. Tillman had just gotten out of jail some six or seven days earlier. Tillman and Cornelius had a history of fighting. Cornelius had been in jail “when all that happened.” Cornelius told Tillman that he had heard about his physical violence toward Ariel, and the two men began arguing. Renesha asked Ariel to leave with Tillman before anything happened. She also told Cornelius to leave. Cornelius left with a friend just before Ariel and Tillman left at approximately 10:30. Renesha did not see Ariel again. After everyone left, Renesha called a friend.

On cross examination, Renesha testified that she went after Ariel to tell her to let Tillman go on. However, the couple was gone. She also testified that she was certain Ariel and Tillman left her apartment sometime after 10:00.

Testimony of Officer Kenneth Leary

Officer Kenneth Leary is a firearms examiner assigned to the New Orleans Police Department’s crime laboratory. Officer Leary examined the bullet and several fragments recovered during Ariel’s autopsy and four weapons that were submitted to the crime laboratory for testing. Officer Leary concluded that the bullet recovered from Ariel did not match any of these weapons.

110Testimony of Darlene Winifield

Darlene Winifield was a case manager with the Orleans Parish Criminal District Court’s domestic violence program. In that job, Ms. Winifield acted as a probation officer and instituted stay away orders. Tillman was one of her cases.

Tillman first reported to Ms. Winifield on August 8, 2003, for a false imprisonment conviction. Ariel was the victim. In December, 2003, Ariel contacted Ms. Wini-field, alleging Tillman had violated a protective order. Tillman was arrested on December 2, 2003, for violating the protective order. He was released on December 12, 2003. However, due to an error involving fines and fees, Tillman was arrested a second time on January 6, 2004. He was not released again until March 18, 2004.

Testimony of Jennifer Schroeder

Jennifer Schroeder works for the New Orleans Police Department’s DNA laboratory. She performs DNA analysis and interpretation, and is an expert in the field of molecular biology and forensic DNA analysis.

Ms. Schroeder tested a vaginal swab, a blood stain from Ariel, and a buccal swab from Tillman. Skin cells from the vaginal swab tested consistent with the blood stain from Ariel. Sperm cells taken from the same vaginal swab tested consistent with the buccal swab from Tillman. These results prove Tillman and Ariel engaged in sexual relations.

Testimony of Marilyn Cahee

InMarilyn Joycelyn Cahee is Tillman’s mother. In 2004, she lived on East Homestead Drive with her husband, Anthony Lewis, and her two sons, Tillman and Chad. Ms. Cahee described Tillman as quiet and shy.

On Friday, March 26, 2004, Ms. Cahee worked from 6:30 a.m. to 4:00 p.m. Tillman was home when she returned at 4:00. She did not recall what time Tillman left that evening. However, she recalled that he returned at 9:58 p.m. She recalled the time he returned because she was in the kitchen cooking when he came home and because she looked at the clock as she had to get to work at 7:00 a.m. the next day. Ms. Cahee also recalled Tillman leaving with two women in a white car. She did not recall telling the police that Tillman returned at 10:00 p.m. or 11:30 p.m.

Testimony of Brandon Tillman (the defendant)

Tillman dated Ariel for approximately two years. The couple argued “at times.” Tillman loved her but admitted that they argued “[a]t times.”

The couple continued dating after the August 2003 stay away order was issued. Tillman denied that he was ever arrested for violating the stay away order. Rather, he testified that he was arrested in December 2003 for not paying fines and fees.

Tillman saw Ariel some two days after getting out of jail on March 18, 2004. He opined that he saw Ariel some three times prior to her death.

Tillman was with Ariel on the day she was killed. Neither of them had a car. They went to the house of Ariel’s friend Courtney by getting a ride with Courtney’s sister. Tillman did not know what time they went to Courtney’s house, except that it was evening. They were at Courtney’s house for approximately an |12hour to an hour and a half. While visiting Courtney, they went to the corner store. They then went to Renesha’s house, arriving sometime after 9:00 p.m.

Tillman denied knowing they were going to Renesha’s apartment. When they got there, Renesha intimated that she did not want Tillman there. Therefore, Tillman told Ariel that he wanted to leave, and Ariel walked him to the gate. From the gate, Tillman walked home alone. Tillman thought Ariel was going back to Renesha’s apartment to play cards. Tillman was in Renesha’s apartment for no more than five minutes.

It took Tillman approximately twenty minutes to walk home. When he got home, it was approximately 10:00 p.m., and he remained outside. He went inside briefly, but returned outside where the neighbors were socializing. He stayed outside socializing for some two hours before going inside between 11:30 and midnight.

Some two and a half to three hours later, the police appeared. The police initially asked where Tillman had been that night. Eventually, they told him that Ariel had been killed. When the police came to his house that night, Tillman denied seeing Ariel that day. Not knowing what the police wanted, Tillman agreed to go to the police station for questioning. At the station, the police tested his hands for gunpowder residue but did not inform him of the results.

Upon being asked about his reaction to being informed of Ariel’s death, Tillman responded:

It was kind of hard to believe because I had been with her that day, you know, and then asking for them to come asking me this, like, your accusing me. I was very angry at the time.

In court, Tillman denied killing Ariel Brown.

| iaOn cross examination, Tillman testified that he was occasionally angry for being in jail between January 6 and March 18, 2004. He also admitted that during the June 2003 incident he pulled Ariel’s braids out and hit her nose with an open hand. He denied that Ariel wanted to leave his house during the incident. He had a neighbor come to the house to try to convince her to leave, but she did not want to go.

When Tillman got out of jail on March 18, 2004, Ariel called him, and they met three times on three different days. No physical altercations occurred during this time.

On the date of the killing, Ariel and Tillman spoke on the phone more than once. He could not remember if they spoke for long.

The police arrived at the Tillman home sometime after 1:00 a.m. on the night of the killing. When asked where he had been during the day, Tillman told the police he had been in the neighborhood — he took a ride and returned home. Tillman explained that he denied being with Ariel because he knew he was violating the stay away order. However, he also testified that he told the police that he had left Ariel at her cousin’s apartment complex that night. He did not recall telling the police that had been home all night.

Testimony of Diane Watkins

On the night of Ariel’s death, Diane Watkins lived at 837 Odeon St., close to the corner of Horace and Patterson, where Ariel’s body was found. That night, Ms. Watkins was watching television with the lights off when she heard a loud noise that sounded like a truck. She was with her daughter, Tracy. They looked out and saw “people fussing.” Mrs. Watkins snuck out onto her porch, lying down, | H“because they was using a lot of profanity and they was cursing and fussing.” The “fussing” was “about money and drugs.”

Ms. Watkins described an altercation between two men and a young woman. One man was demanding money, and the woman was promising to get him the money. The second man was encouraging the first to kill the woman. On cross, she testified that the woman was sitting in a car. As for the men, “one was standing out on the side and the other one was standing like towards her a little part.”

Finally, Ms. Watkins returned inside her house and turned her lights on. When she turned her yard or porch light on, “they flew.” Before leaving, the men shot the woman. Ms. Watkins was afraid and called 911. She heard the truck stopping as it escaped around the corner. Ms. Watkins would not be able to recognize the men.

Ms. Watkins did not speak to the police that night. Several days later, she went to the police station to give a description of the truck. She was informed that someone would contact her but no one ever did.

On cross examination, she stated she did not remember whom she spoke to at the station. Ms. Watkins guessed that the incident occurred after 10:00 p.m., because they had “just recently looked at the news.” She also testified that many “incident[s]” occurred in that area and that she remembered all of them. She called 911 for most of them.

Ms. Watkins has known' Tillman for a long time. He went to school with her children and she knew Tillman’s mother from work. However, she described herself as “a distant friend of the family.” Ms. Watkins became involved with this case when she was contacted by a former attorney of Tillman. She guessed that | iaTilIman’s mother had given the attorney her name. The ladies had discussed the case “when this first happened.”

Testimony of Tracy Salvant

Tracy Salvant is Ms. Watkins’ daughter. The two women live together.

On the evening of March 26, 2004, Ms. Salvant did not hear anything. Her mother came to get her because she heard something happening outside. Ms. Sal-vant got to the front porch of their house and turned the light on. She saw a white truck driving away.

Ms. Salvant and her mother reentered the house. Ms. Watkins called the police. Some twenty minutes later, Ms. Salvant saw police lights at the corner of Patterson and Horace and she walked down to the corner. Horace is a block from her house. A dead female body was lying in the middle of the street. She did not speak to any police at the scene because she did not want to get involved. Ms. Salvant saw her mother talk to some police at the crime scene.

Ms. Salvant knew Tillman “[tjhrough family members.” She became involved with this case when Tillman’s previous attorney contacted her.

Testimony of Captain Jerome Laviolette

Captain Jerome Laviolette was a lieutenant in 2004 and responded to the crime scene at Horace and Patterson on March 26, 2004. When he arrived, Ariel’s body was still on the ground but no witnesses were present.

The-on-the-scene investigation took approximately an hour and a half. At sometime after 12:30, the investigation team went to Tillman’s house because the lead investigator wanted to speak to him. Tillman’s house was within walking distance of the crime scene, some eight to ten blocks away.

|1(iAt Tillman’s house, Ms. Cahee informed Lieutenant Laviolette that she was not certain but estimated that Tillman had left the house at approximately 7:00 or a little earlier that evening. Moreover, Ms. Cahee stated that Tillman returned home at approximately 11:30.

Lieutenant Laviolette interviewed another son while he was at Tillman’s house. The other son advised that he had returned home around 10:00 and confirmed that Tillman returned home at approximately 11:00. Captain Jerome testified based on notes he took that evening.

ERRORS PATENT

The record shows no errors patent

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

Tillman argues that the evidence presented at trial was insufficient to convict him. He points to the lack of physical evidence connecting him to the crime. Further, he asserts that the evidence does not support the State’s theory that this was a revenge killing in retaliation for Ariel’s inducing his arrest for violating a stay away order. He argues that it cannot be inferred that he was with Ariel at the time of her death because he has presented a reasonable hypothesis that she was killed over a drug debt. In support, he points to Ms. Watkins’ testimony. Finally, Tillman asserts that his inconsistent statements to the police are not sufficient to support his conviction, citing State v. Savoy, 418 So.2d 547 (La.1982).

In analyzing sufficiency of the evidence arguments this Court has stated:

In assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, | ]7viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979); State v. Rose, 607 So.2d 974, 978-979 (La.App. 4th Cir.1992), writ denied, 612 So.2d 97 (La.1993). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution; it must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, id.

State v. Everett, 99-1963, pp. 5-6 (La.App. 4 Cir. 9/27/00), 770 So.2d 466, 470.

In Everett this Court also addressed the jury’s role in making credibility determinations:

It is not the function of the appellate court to reassess the credibility of witnesses or to reweigh the evidence; the reviewing court’s function is to determine the constitutional sufficiency of the evidence presented. State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4 Cir. 5/13/93), writ denied, 625 So.2d 173 (La.10/1/93). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404 (La.App. 4th Cir.1994), 639 So.2d 312; State v. Garner, 621 So.2d 1203 (La.App. 4th Cir.1993), writ denied 627 So.2d 661 (La.1993). Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989); Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly | ^contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Id., 99-1963, pp. 8-9, 770 So.2d at 471.

Circumstantial evidence has been defined as “collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Williams, 99-223, p. 8 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 608, quoted in State v. Francois, 2002-2056, p. 6 (La.App. 4 Cir. 4/9/03), 844 So.2d 1042, 1047. This Court has stated the following on circumstantial evidence:

When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. R.S. 15:438; State v. Camp, 446 So.2d 1207 (La.1984). This is not a stricter standard of review, but it is an evidentiary guide for the trier of fact when it considers circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis fails; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984).

State v. Fountain, 93-2561, p. 4 (La.App. 4 Cir. 12/15/94), 647 So.2d 1254, 1256.

In this case, the direct evidence clearly establishes that Ariel Brown was murdered. Dr. McGarry testified that she died from a bullet shot through her brain. Moreover, Dr. McGarry testified that sparse stippling surrounding the entry wound indicated that the shot was fired at close range. Dr. McGarry also noted that two fingernails were broken, offering the possibility of a struggle. Thus the physical evidence shows that Ariel was killed by a gunshot at close range and that there may have been a struggle. No evidence was introduced at trial that Ariel initiated any struggle, eliminating the possibility of self-defense. Accordingly, the close | grange shot supports the jury’s finding of the killer’s specific intent to kill Ariel Brown.

The evidence of the murderer’s identity, however, is clearly circumstantial. Officer Leary testified that the bullet and bullet fragments recovered from Ariel did not match any of the weapons provided to him in the investigation. None of the evidence indicates that the murder weapon was ever found. Further, no witnesses testified that they saw who shot Ariel.

However, the evidence clearly indicates that Tillman was the last person seen with Ariel. The direct evidence shows part of the timeline the date of the murder. Phone records recovered from Renesha Brown’s residence show that a phone call was made from Tillman’s home to her home at 6:07 p.m. and lasted some twenty-nine minutes. The first 911 call reporting the shooting was made at 10:55 p.m.

At trial, Renesha testified that Ariel was at her apartment all day until approximately 8:00 p.m. She testified that Ariel spoke to Tillman the whole time. However, Renesha was in her bedroom, lying down, and Ariel was in the living room. Whether Ariel was on the phone entire day with Tillman may have been presumed by Renesha because when she saw Ariel, she was talking to Tillman. Nevertheless, a jury could reasonably conclude that Ariel and Tillman spoke for the twenty-nine minutes reflected in Renesha’s phone records. Renesha also testified that Ariel left her apartment around 8:00 p.m. and returned at approximately 10:15, with Tillman. At trial, Renesha testified that Ariel and Tillman left some fifteen minutes later, at 10:30.

IgpBoth Tillman and his mother attempted to challenge this timeline by testifying that he returned home at ten, long before the 10:55 p.m. 911 call was made. However, Captain Javiolette testified that he had interviewed Ms. Cahee on March 26, 2004, and she told him at that time that Tillman returned home at 11:30 p.m., over half an hour after the first 911 call.

In addition to the timeline, Renesha testified that Tillman and her boyfriend, Cornelius, engaged in an altercation over Tillman’s treatment of Ariel. Tillman testified that Renesha did not want him in her apartment. It was within the jury’s purview to weigh this evidence and conclude that an altercation had taken place and that the altercation was over Tillman’s treatment of Ariel.

In addition to the timeline, it is important to note that the evidence shows the murder scene, Renesha’s apartment, and Tillman’s home are all within walking distance. Ariel’s body was found at the corner of Horace and Patterson Streets, in the Fourth District. Detective Ferguson’s testimony reflected that Renesha lived only two miles from the murder scene. Tillman lived on East Homestead Drive. His testimony reflected an admission that he lived only twenty minutes from Rene-sha’s apartment. Thus, the geographic locations involved provided Tillman with the ability to murder Ariel within the timeline provided to the jury.

Finally, the State also introduced evidence showing motive and modus operands Darlene Winifield was a case manager for the Orleans Parish Criminal District Court’s domestic violence program and testified that she supervised Tillman as of August 8, 2003, for a false imprisonment conviction involving Ariel. Ms. Winifield also testified that Ariel reported Tillman for violating a protective 12i order related to the conviction. Accordingly, Tillman was arrested on December 12, 2003. Tillman was released shortly thereafter, but was rearrested on January 6, 2004. Although the trial testimony reflected that the second arrest was related to non-payment of fines and fees, it was still connected to Ariel’s reporting the protective order violation. He was released on March 18, 2004, a little over a week before Ariel was killed. At trial, Tillman admitted on cross examination to occasional feelings of anger over being in jail from January 6 to March 18, 2004. This evidence shows Tillman had motive to seek revenge against Ariel.

At trial, Crystal Ruffin, Ariel’s mother, and Police Officer Brandon McDonald testified regarding the false imprisonment crime. Ms. Ruffin managed to convince the police to kick in the door to Tillman’s house. Once inside, Ariel was found with injuries reflecting she had been beaten. Ms. Ruffin testified that Ariel’s fake hair braids had been pulled out of her hair, her shirt was bloody and her face was swollen. Officer McDonald responded to the scene and testified that Ariel had a bloody nose, and he observed braids on the floor of the house. This evidence of Tillman’s prior violence against Ariel combined with his three month stay in jail provided evidence of both motive and modus operandi to the jury. See State v. Rose, 2006-402 (La.2/22/07), 949 So.2d 1236 (evidence of prior violence against a victim goes to motive and is extremely probative in a circumstantial case).

Given the collateral facts of Ariel’s intentional murder, Tillman’s prior violence against Ariel, his release from jail shortly before her death resulting from her reporting a violation of a protective order, and trial testimony showing Tillman was with Ariel following an argument with her relatives over the way he treated her less than half an hour prior to her death, the jury was well within its discretion | agto use its reason and common experience to conclude he was the murderer. Further, evidence presented at trial about Tillman’s inconsistent statements to police undermined his credibility before the jury.

However, Tillman argues that he has a reasonable hypothesis of his innocence. He argues that the testimony of Diane Watkins and Tracy Salvant shows that he was not the murderer. Ms. Watkins testified that she saw an argument between two men and a woman over drugs and money in the vicinity of where Ariel’s body was found. Ms. Salvant is her daughter and testified that she was there, but did not see the altercation — just a vehicle driving away. The jury apparently dismissed this testimony.

Ms. Watkins testified that she would not be able to identify the two men involved in the altercation in front of her house. She also testified that she went to the police station at some point, but did not remember who she spoke to. Finally, she admitted to having known Tillman for a long time, though she referred to him as “a distant friend of the family.” However, she knew his mother through work, and Tillman went to school with her children. Credibility of witnesses is in the jury’s purview. Given that Ms. Watkins knew Tillman and could not even identify the perpetrators of the crime in front of her house, we cannot say the jury acted unreasonably in rejecting this hypothesis of innocence.

The evidence, albeit circumstantial, when viewed in a light most favorable to the state, supports the jury’s guilty verdict. There is no merit to this assignment of error.

| .^ASSIGNMENT OF ERROR NUMBER 2

Tillman argues alternatively that if there is sufficient evidence to show that he killed Ariel, then his conviction should be reduced to manslaughter pursuant to La. C.Cr.P. art. 821(E), because he acted in the heat of blood. He reasons that the state’s theories of the case — 1) the murder happened during an incident of domestic abuse, and 2) the killing was in revenge for causing him to go to jail — show that he acted in the heat of blood.

Pursuant to La.C.Cr.P. art. 821(E), this Court may reduce a conviction to that of a lesser and included offense if it finds that insufficient evidence exists to support the jury’s verdict. Tillman raises the affirmative defense that he acted in the heat of passion.

The Louisiana Supreme Court has stated the following regarding sudden passion or heat of blood manslaughter:

Manslaughter is a homicide which would be either first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. La.R.S. 14:31(1). Thus, the presence of “sudden passion” or “heat of blood” distinguishes manslaughter from murder. The court has stated on several occasions, however, that “sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Tompkins, 403 So.2d 644 (La.1981); State v. Temple, 394 So.2d 259 (La.1981); State v. Peterson, 290 So.2d 307 (La.1974). Since they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in a “sudden passion” or “heat of blood” is entitled to a manslaughter verdict. Where such proof has been introduced, a second degree murder verdict is inappropriate.

State v. Lombard, 486 So.2d 106, 110 (La.1986).

| ¿4This Court has noted that “sudden passion” or “heat of blood” are defined by Louisiana jurisprudence as provocation sufficient to deprive an average person of his self control and cool reflection. State v. Cheavious, 2003-0706, p. 7 (La.App. 4 Cir. 11/19/03), 862 So.2d 135, 139. Such a provocation shall not reduce a homicide to manslaughter if the jury finds the offender’s blood actually cooled or that an average person’s blood would have cooled at the time the offense was committed. Id.

Tillman bases his argument on the State’s two theories. As to the first— domestic abuse — Tillman does not point to anything Ariel did to provoke being killed or to invoke domestic abuse. As to the second theory — revenge for having him arrested — Tillman had plenty of time both in jail and within the week or so after he got out to have cooled down. Further, the jury apparently rejected any other argument — the fight with Cornelius or the rejection of Renesha — he may submit. Such a determination goes to the weight of the evidence and not to its sufficiency. See Everett, 99-1963, p. 3, 770 So.2d at 471. Accordingly, we likewise find that this argument has no merit.

ASSIGNMENT OF ERROR NUMBER 3

Tillman argues that La.C.Cr.P. art. 782(A), allowing for a conviction by a ten to two (i.e. non-unanimous) jury vote in a non-capital felony case, is unconstitutional in violation of the Sixth Amendment of the U.S. Constitution.

As Tillman points out, the First Circuit addressed this issue in 2007 in the case of Derrick Todd Lee by stating the following:

| a/fhe punishment for second degree murder is confinement for life at hard labor. See LSA-R.S. 14:30.1(B). Louisiana Constitution Article I, § 17(A) and LSA-C.Cr.P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than [ — ] unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 164-165. The defendants reliance on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict but rather, address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the sentencing judge. These decisions stand for the position that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and approved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that a jury’s verdict must be unanimous. Accordingly, LSA-Const. Art. I § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and do not violate the defendant’s Sixth Amendment right to a trial by jury.

State v. Lee, 2005-0456, p. 3 (La.App. 1 Cir. 5/1607), 964 So.2d 967, 973, writ denied State v. Lee, 2007-1288 (La.3/7/08) 977 So.2d 896, cert. denied Lee v. Louisiana, - U.S. -, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008).

la/The U.S. Supreme Court denied a writ in Lee on October 6, 2008. Id. Accordingly, La.C.Cr.P. art. 782(A)’s presumption of constitutionality remains in tact. Thus we find this argument has no merit.

CONCLUSION

The case against Tillman is circumstantial. However, we conclude that the record provides sufficient evidence for a rational jury to find guilt beyond a reasonable doubt based upon inferences made according to reason and common experience from the facts established at trial. Further, Tillman failed to show that he acted in sudden passion or the heat of blood, thus he has not shown that his conviction should be reduced to manslaughter. Finally, Tillman’s challenge to the constitutionality of La. C.Cr.P. art. 782(A) is erroneous and has been rejected by both the Louisiana and the U.S. Supreme Courts. Therefore, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Sparse stippling is: "Punctuated markings of black powdery material around the entry hole on the skin.” Dr. McGarry explained, "[tjiny litde pieces of gunpowder embedded in the skin indicate that the wound was close range.”

      . The warrant was invalid.

      . During Det. Deringer's testimony, he testified that Renesha told him Ariel and Tillman left her apartment at 10:45. The defense questioned why Det. Ferguson's report indicated that she had previously stated they left at 10:15. Det. Deringer explained that witnesses sometimes "don’t understand time” because it is subjective. Renesha testified on cross examination the she was sure the couple left sometime after 10:00 p.m. The jury heard these minor discrepancies. They are not large enough to undermine the evidentiary value of the timeline or overcome the jury's discretion to weigh it.

      . Tillman points out in his third assignment of error that one juror voted for a responsive verdict of manslaughter. Accordingly, it is clear that the jury did consider manslaughter as a responsive verdict.

      . Westlaw failed to include the First Circuit's page numbers.