author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Kenneth G. BILLINGSLEY.
    No. 11-790.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2012.

      John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Fourteenth Judicial District Court, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Kenneth G. Billingsley.
    Kenneth G. Billingsley, Angola, LA, Pro se.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

hThe State alleges that in the evening of April 9, 2008, Defendant, Kenneth G. Bill-ingsley, and Brian Paul approached two women, Robin Decote and Stephanie Foreman, as they sat in a truck parked at the Goosport Recreation Center. Defendant put a gun to Ms. Foreman’s head and demanded money. Ms. Foreman gave Defendant her purse, which contained approximately ninety dollars. At the same time, Brian Paul attempted to rob Ms. Decote with a gun. The two men then ran away.

Defendant was charged with armed robbery with the use of a firearm, violations of La.R.S. 14:64 and 14:64.3, and illegal possession of stolen firearm, a violation of La.R.S. 14:69.1. A jury found Defendant guilty as charged, and he was sentenced to serve seventy-five years imprisonment without the benefit of probation, parole, or suspension of sentence, to be served consecutively to a seven-year sentence on a probation violation.

On appeal, Defendant raises three assignments of error and one pro se assignment of error. He alleges that the evidence was insufficient to support the verdict, that the trial court erred when it permitted the introduction of irrelevant and prejudicial evidence, and that defense counsel rendered ineffective assistance.

We affirm.

INSUFFICIENT EVIDENCE

Defendant argues he was never adequately linked to the crime because he was not positively identified by the victim as the robber and there was no physical evidence which established him as the perpetrator of the offense.

Louisiana Revised Statute 14:64 provides, in pertinent part:

A. Armed robbery is the taking of anything of value belonging to another from the person of another that is in the immediate control |2of another, by use of force or intimidation, while armed with a dangerous weapon.

Louisiana Revised Statute 14:64.3, in pertinent part, provides:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provision of R.S. 14:64.

In State v. Freeman, 01-997, p. 2 (La.App. 8 Cir. 12/12/01), 801 So.2d 578, 580, this court discussed sufficiency of the evidence, as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

At trial, the following evidence was adduced:

On the evening of April 9, 2008, the victims were sitting in Ms. Decote’s truck at the Goosport Recreation Center. They had just left work and Ms. Foreman wanted to smoke a cigarette before she was dropped off at home. As they were talking, they noticed a group in the playground of the recreation center, three men and a woman. Two of the men approached the truck and attempted to engage the two victims in small talk. Ms. Decote politely informed the men they were not interested in talking with them. The men, together with the other two people, left the playground.

| oH owe ver, within a few minutes the two men returned to the truck. Defendant approached the passenger side where Ms. Foreman sat, put a gun to her head, and demanded money. At the same time, the other robber, Mr. Paul, put a gun to Ms. Decote’s head and demanded money. Ms. Foreman gave Defendant her purse, which contained about ninety dollars, and he ran off. Ms. Decote was able to convince Mr. Paul she did not have any money, and he ran off. Although Ms. Decote did not get a good look at the second robber, she saw a very distinctive tattoo across the back of his hand: “Eddie.”

After the two men ran away, Ms. Decote and Ms. Foreman attempted to follow the second robber. While they did not find Mr. Paul, they came upon the two other persons who were in the park with Defendant and Mr. Paul. Ms. Decote got out of the truck and talked to the young man, got his name, and convinced him to let her take him home. During this time, Ms. Foreman called the police, and after they dropped the boy off, they returned to Goosport Recreation Center and met the police. They then went to the police station and gave statements.

Gregory Single, an investigator in the violent crimes division with the Lake Charles Police Department, was on duty the night of the robbery. He met with the victims and got the name of the young man Ms. Decote had taken home after the robbery. He went to the young man’s house and spoke with him and his mother. The young man said he was in the playground with a man he only knew as “K.J.” The boy and his mother provided the information which led to Defendant. Officer Single obtained Defendant’s address and went to his house, which was just a few blocks from the recreation center. There, the officer was told by Defendant’s mother that he was in bed, sleeping. However, she gave the officer permission to search the house. A search of Defendant’s room located two old guns tucked behind a dresser and a gun under the mattress. The officer also found eighty-three [¿dollars tucked into a shoe in Defendant’s bedroom. The next day, Ms. Foreman was shown a photographic lineup, and she positively identified Defendant as the man who held a gun to her head and took her purse the previous night.

Mr. Paul confessed to the police that he was the man who attempted to rob Ms. Decote, and he named Defendant as the one who robbed Ms. Foreman at gunpoint. However, at Defendant’s trial, Mr. Paul adamantly insisted that he could not remember the person who was with him the night Ms. Decote and Ms. Foreman were robbed. He did not remember ever telling the police that Defendant was other robber. Mr. Paul had pled guilty to robbing Ms. Decote and was sentenced prior to Defendant’s trial.

Finally, Sharonda Caldwell, Defendant’s mother, testified. She stated that Defendant’s nickname was “K.J.,” short for Kenneth, Junior. She further stated that he had been out with his girlfriend, Jasmine Williams, the night of the robbery. She said the girlfriend dropped him off at home around ten o’clock that night and he had gone straight to bed.

These facts were sufficient for the jury to find Defendant guilty of armed • robbery with the use of a firearm beyond a reasonable doubt. While Ms. Decote could not identify the man who robbed her friend, Ms. Foreman, she was able to identify the other robber via his distinctive tattoo. Mr. Paul confessed that he attempted to rob Ms. Decote and stated that Defendant was the man who robbed Mr. Foreman. Ms. Foreman testified she was certain of the identity of the man when she saw him in the photographic lineup. She stated she had no hesitation when she saw the picture. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01) 783 So.2d 520, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921.

Furthermore, despite Mr. Paul’s attempt to disassociate Defendant from the robbery by insisting he could not remember who the other robber was and Defendant’s mother’s attempt to give him an alibi, the jury rejected this testimony. The question of the credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. This court will not second-guess the credibility determinations beyond the sufficiency evaluations under the Jackson standard discussed above. See also State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352.

There is no merit to this assignment of error.

INTRODUCTION OF GUNS

Defendant argues that it was error for the trial court to permit the State to introduce the three guns located in his bedroom, since none of the guns were established to be the weapon used in the robbery. Defendant asserts that the admission of the guns was “other crimes evidence” and, as such, was prohibited by La.Code Evid. art. 404(B), which provides in pertinent part:

(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purpose, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

At trial, Ms. Foreman viewed the guns and stated that she did not recognize any of the guns as the gun used to rob her. Furthermore, Calela Peters, | (¡Defendant's cousin, testified that two of the guns belonged to her mother, and that after Hurricane Rita destroyed her mother’s house, she moved the guns to Defendant’s mother’s house. However, she did not remember where she put the guns. Defendant points to La. Code Evid. art. 403, which provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or waste of time.” He argues that the introduction of the guns was not probative to the State’s case in any respect but was highly prejudicial to his case. Finally, he argues that the trial court permitted Officer Single to testify to the fact that one of the guns was determined to have been stolen in 1997, even though the charge of possession of a stolen firearm had been severed from the charge at trial.

During cross-examination of the defense witness, Ms. Peters, the State asked if she knew if one of the guns her mother owned was purchased illegally. Defendant objected to this testimony. However, the trial court overruled the objection, noting that Defendant had put the witness on the stand to establish ownership of the guns and the question was within the realm of cross-examination.

Initially, we note that Defendant states in a footnote that “[ajlthough defense counsel did not object when the guns were admitted, she did object to the admission of other crimes evidence, thus preserving the issue for appeal.” State v. Thomas, 10-792 (La.App. 3 Cir. 2/2/11), 54 So.3d 1268 [writ denied, 11-473 (La.9/23/11), 69 So.3d 1157].” Defendant objected neither before nor during trial to the admission of the guns found in his room. Moreover, while Defendant filed a “Motion and Order to Suppress” Mr. Paul’s testimony, there was nothing filed in the record that indicates Defendant objected to the admission of the guns as “other |7crimes evidence.” Unless objected to, irregularities at trial cannot be raised on appeal. Louisiana Code of Criminal Procedure Article 841(A) provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made-or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

Further, on appeal, an improper reference to other crimes evidence is subject to the harmless error rule. The question to be answered is “whether the verdict actually rendered in the case was surely unattributable to the error.” State v. Hollier, 09-1084, p. 15 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 477, writ denied, 10-1037 (La.12/10/10), 51 So.3d 722. As discussed above, the State established all the elements of the crime of armed robbery with a firearm beyond a reasonable doubt. The victim positively identified the man who robbed her at gun point. The jury heard the testimony of a both victims and the testimony of Mr. Paul who robbed Ms. Decote at the same time Defendant robbed Ms. Foreman. Ms. Foreman testified that none of the guns found in Defendant’s room was the gun that he used to rob her. Furthermore, the jury heard the testimony of Ms. Peters, who claimed ownership of two of the guns. After hearing all this testimony, the jury convicted Defendant of the offense charged. Given the strength the state’s case, we have no reason to conclude that the verdict was “surely attributable" to the admission of the guns found in Defendant’s room.

This assignment fails.

EXCESSIVE SENTENCE

Defendant’s habitual offender sentence imposed for the conviction of armed robbery -with the use of a firearm has been vacated, and remanded to the trial court for resentencing in accordance with La. R.S. 15:529.1 and 14:64.3. See State v. Billingsley, 11-1425 (La.App. 3 Cir.3/14/12), 86 So.3d 872. Thus, this assignment is moot.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he received ineffective assistance of counsel during trial. First, he argues that defense counsel was ineffective for failing to object to the admission of the guns found in Defendant’s room the night of the robbery. Second, he argues that his counsel was ineffective for failing to call an alibi witness, who testified in the first trial that resulted in a hung jury.

Quoting State v. Griffin, 02-1703, pp. 8-9 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La.11/7/03), 857 So.2d 515, this court in State v. Collins, 04-1441, pp. 4-5 (La.App. 3 Cir. 3/2/05), 896 So.2d 1265, 1270, writ denied, 05-1334 (La.1/9/06), 918 So.2d 1040, noted:

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).
The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant |9if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

As for the assertion that defense counsel’s performance was ineffective because she did not object to the admission of the guns into evidence, the record before this court is sufficient to determine whether defense counsel rendered ineffective assistance of counsel such that deprived Defendant of a fair trial. As noted in assignment of error number one above, if the admission of the guns was error, the error was harmless in that the verdict actually rendered in the case was surely unattributable to the error. “ ‘Effective counsel’ has been defined to mean ‘not errorless counsel’, and not counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. State v. Ratcliff, 416 So.2d 528, 531 (La.1982)(quoting United States v. Fruge, 495 F.2d 557, 558 (5 Cir.1974)).” State v. Antoine, 00-564, p. 6 (La.App. 3 Cir. 12/6/00), 774 So.2d 353, 357.

In the current case, the State’s evidence was strong, the victim identified the robber with certainty, and there was a confession by Mr. Paul that he was with Defendant when Defendant robbed Ms. Foreman using a gun. The jury also heard testimony that the guns located in his bedroom did not belong to Defendant and undoubtedly took that testimony into consideration when deliberating the verdict. Therefore, Defendant' cannot show that there was a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different.

| inLikewise, we find the record is sufficient to resolve the issue of whether defense counsel’s failure to subpoena Ms. Williams constituted ineffective assistance. Defendant’s first trial, wherein Ms. Williams did testify, occurred in February 2010, and after the trial court declared a mistrial, a new trial was refixed for May 3, 2010. On March 1, 2010, Defendant sent a letter to the trial court which was entered into the record. In the letter, Defendant was asking for a bond reduction so he could get his GED while he was in jail awaiting the new trial. He stated, in pertinent part:

I was working 2 jobs faithfully, and I also got my ex[-]girlfriend[’s] cousin pregnant which would make my first child, and I really would like to be there at the hospital to see my first child come into the world, and I have faith that you could help me, my ex-girlfriend is the person saying I commited [sic] the crime, when really she’s mad at me cause she found out I got her first cousin pregnant and she is locked up for 5 years, so how could they believe her.

The current trial eventually took place in September 2010. While in his letter, Defendant does not name his “ex-girlfriend,” Ms. Williams was his girlfriend in February 2010, when she testified at his first trial. Defendant remained in jail after the mistrial so apparently he “got [his ex-girlfriend’s] cousin pregnant” prior to the first trial. Defendant’s statement about his ex-girlfriend, “so how could they believe her,” indicated that by March 2011, Defendant’s counsel clearly had reason to believe that Ms. Williams’ testimony would no longer be helpful to his client’s cause. Counsel’s choice not to subpoena Ms. Williams was warranted by what we find on this subject in the record.

We find no merit in this assignment of error.

DECREE

Defendant’s conviction for armed robbery with a firearm is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Kenneth G. BILLINGSLEY.
    No. 11-1425.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2012.
    John Foster DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Kenneth G. Billingsley.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

17A jury found that Defendant, Kenneth G. Billingsley, committed an armed robbery with the use of a firearm. Defendant challenged his conviction in this court, assigning multiple errors. We affirmed. See State v. Billingsley, 11-790 (La.App. 3 Cir. 3/14/12), 86 So.3d 872.

Thereafter, Defendant was adjudicated a second felony offender pursuant to La.R.S. 15:529.1, and he was sentenced to seventy-five years imprisonment without the benefit of probation, parole, or suspension of sentence, to be served consecutively to a seven-year sentence on a probation violation.

On appeal, Defendant raises one assignment of error regarding his sentence. He alleges that the sentence was excessive. However, we find that the sentence must be vacated and the matter remanded to the trial court for resentencing. Accordingly, the assignment of error in this case is moot.

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one error patent regarding the habitual offender sentence.

The trial court imposed an indeterminate sentence. Defendant was convicted of armed robbery with use of a firearm, violations of La.R.S. 14:64 and 14:64.3. Following a habitual offender hearing, the trial court found Defendant to be a second felony offender. The trial court sentenced him to seventy-five years at hard labor without the benefit of probation, parole, or suspension of sentence. Louisiana Revised Statute Article 14:64.3 provides in pertinent part:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

lain State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, the supreme court held that a defendant convicted of armed robbery and sentenced under the habitual offender law can be sentenced to an additional five years under La.R.S. 14:64.3 when the dangerous weapon used in commission of the armed robbery is a firearm.

In State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08), 981 So.2d 881, the defendant was charged with armed robbery with a firearm, violations of La.R.S. 14:64 and 14:64.3, and convicted as charged. The trial court adjudicated the defendant a second felony offender on the charge of armed robbery with a firearm and sentenced him to serve fifty years at hard labor. On error patent review, this court held in pertinent part:

This court finds that the absence of a specification that the Defendant’s habitual offender sentence included an enhanced term of imprisonment under La. R.S. 14:64.3 renders this sentence indeterminate. Therefore, this court hereby vacates the habitual offender sentence and remands for resentencing in accordance with La.R.S. 15:529.1 and 14:64.3. The trial court should clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.3.

Id. at 889.

In this case, Defendant was convicted of armed robbery with use of a firearm. The trial court failed to impose a separate five-year sentence to run consecutively to the habitual offender sentence, rendering Defendant’s sentence indeterminate.

DECREE

Defendant’s habitual offender sentence imposed for the conviction of armed robbery with the use of a firearm is vacated, and the matter is remanded to the trial court for resentencing in accordance with La.R.S. 15:529.1 and 14:64.3. The trial Iscourt must clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.8.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . At the sentencing proceeding, it appears the State incorrectly informed the trial court that the five years under La.R.S. 14:64.3 should not be added because the sentence was being enhanced under La.R.S. 15:529.1.


author: THIBODEAUX, Chief Judge.

text:
    Dwight JOHNSON v. Jonathan SMITH, et al.
    No. 11-853.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2012.

      Robert Lewis Bussey, Bussey, Lauve & Chadwick, L.L.C., Alexandria, LA, for Defendants/Appellants, Acadian Ambulance Service, Inc., Discovery Property & Casualty Insurance Company, and Jonathan Smith.
    Brian M. Caubarreaux, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiff/Appellee, Dwight Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R.. COOKS, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|,The defendants, Jonathan Smith, Aca-dian Ambulance, and Discovery Property and Casualty Insurance Company, appeal from a judgment finding them solely liable for a parking lot collision with the plaintiffs, Dwight Johnson and Mark Claverie. We affirm.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in excluding an exhibit of photographs from the evidence;
(2) whether the trial court abused its discretion in assessing all of the fault for the accident against the driver of the ambulance;
(3) whether the trial court abused its discretion in refusing to accord expert status to the investigating officer and in excluding a traffic citation from evidence; and,
(4) whether the trial court abused its discretion in awarding Mr. Johnson $6,500.00 in lost wages.

II.

FACTS AND PROCEDURAL HISTORY

On September 4, 2008, shortly after Hurricane Gustav struck Louisiana, Dwight Johnson was driving his Ford Expedition in the drive-through exit lane of the Marksville Taco Bell restaurant when Jonathan Smith, driving an Acadian Ambulance, pulled from his position at the ordering box and collided with Johnson. The front grill of the ambulance struck the rear quarter panel of the Expedition resulting in $4,200.00 in property damage to Mr. Johnson’s vehicle.

Mr. Johnson began experiencing pain in his neck and back and was seen five hours after the accident at Avoyelles Hospital in Marksville. The following day, he went to Rapides Regional Medical Center in Alexandria. Mr. Johnson was ^subsequently treated conservatively for neck, back, and leg pain and was taken off work for several months by his physician, Dr. Bryan McCann. Mr. Johnson’s passenger, Mark Claverie, was also injured, and each plaintiff filed a separate suit. The suits were consolidated for trial.

Following a bench trial on the merits, the trial court ruled in favor of Dwight Johnson and Mark Claverie, assessing 100 percent of the fault against the defendants. The court awarded Mr. Johnson $25,000.00 in general damages, plus medical expenses, costs, and lost wages of $6,500.00. The trial court awarded Mr. Claverie $15,000.00 in general damages, plus medical expenses and costs.

The defendants appeal the trial court’s allocation of fault, the award of lost wages to Mr. Johnson, and the trial court’s exclusion of an exhibit of photographs. For the following reasons, we affirm the trial court’s judgment on all issues appealed. The suits have been consolidated for appeal as well, with Dwight Johnson, No. 11-853 herein, consolidated with No. 11-854 of Mark Claverie.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse those findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate |3functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

Exhibit A-2

The defendants contend that the trial court erred in excluding Exhibit A-2 from the admissible evidence. Exhibit A-2 contains three photographs of the plaintiffs Expedition and the defendant’s ambulance, ostensibly in their post-impact positions in the Taco Bell drive-through lanes after the accident. While the defendants argue that the photographs were authenticated by Officer Carl Edward Harvey, of the Marks-ville Police Department, as photographs taken by him, Officer Harvey admitted on cross examination that he might be depicted in one of the pictures standing next to his police vehicle. He further admitted that he could not say for certain that he took the actual pictures proffered into evidence. The defendants cite Rutledge v. Brookshire Grocery Co., 523 So.2d 914 (La.App. 3 Cir.), writ denied, 531 So.2d 269 (La.1988), and similar cases for the proposition that a photograph need only be sufficiently correct to be admissible. The court in Rutledge stated as follows:

The trial court may use its discretion in determining if a photograph has been sufficiently authenticated. Usually authenticating evidence must show that the photograph is a substantially true and faithful representation of the place, person, or object it purports to portray. Even if the photograph is not substantially correct, it may be admissible if it is sufficiently correct to be helpful and any inaccuracies are explained. Malone v. Shelter Ins. Co., 503 So.2d 1100 (La.App. 3d Cir.), writ denied, 505 So.2d 1143 (La.1987).

Rutledge, 523 So.2d at 919.

Here, the trial court studied eight other photo-exhibits of the accident site, taken at a later date when the Taco Bell drive-through lanes were empty. The |4pictures show two unmarked lanes forming a horseshoe curve to the left around the Taco Bell. The ordering box had been removed, but its location was clearly demarked by a short post and small hedge inside the curb of the left lane. Various witnesses had marked the exhibits with the locations of the ambulance and the Expedition upon impact. After questioning Officer Harvey, the trial court determined that he could not have been standing where he testified he stood to photograph the order box, whose location was not seen or even indicated in Exhibit A-2. Officer Harvey further testified that A-2 did not show the actual point of impact, and he could not say for certain that the vehicles had not been moved prior to his arrival at the scene. No accident report was filed, to which the photographs could have been attached, and the true origin of the photographs is not known.

We further note that the photographs themselves do not appear helpful, except perhaps to the plaintiffs. They depict the Expedition clearly in front of the ambulance with the front end of the ambulance in close proximity to the back end of the Expedition; they were taken too close to the vehicles to show the curb or the order box area, but they suggest a fairly wide space between the ambulance and the curb. The pictures were taken at night with bright bursts of reflected light on and between the vehicles; and, they are fuzzy with very poor detail. As the plaintiff, Mr. Claverie, points out, the identity of the two vehicles involved, which is all that is fairly represented in the photos, was never in question. Under Rutledge, we find no abuse of discretion on the part of the trial court in excluding Exhibit A-2 from the admissible evidence.

Allocation of Fault

This accident occurred late at night after a hurricane had left most restaurants closed. Mr. Johnson testified that he was in the ordering lane, about six cars from the ordering box, when a Taco Bell employee walked from the store to his | ^vehicle first, as it was nearest the door, and announced that the restaurant was out of food and was turning out the lights. Mr. Johnson pulled into the exit lane on his right and passed the ordering vehicles as he had done many times before. Mr. Johnson and Mr. Claverie testified that the ambulance was the first vehicle in line; that it was stopped at the ordering box; and, that there was enough room to go around it. After Mr. Johnson pulled in front of the ambulance in order to exit the Taco Bell lot, Mr. Smith released his brake and moved forward, striking Mr. Johnson’s Expedition in the rear. Mr. Johnson testified that his vehicle was pushed twice, shifting its front end to the left and its rear end to the right. Mr. Claverie testified that the ambulance pulled forward at least two feet and that the Expedition had passed three fourths of the way in front of it at the time of impact.

The defendants contend that the trial court erred in allocating all of the fault to the ambulance driver, Jonathan Smith. They assert that the plaintiff, Mr. Johnson, had the greater burden of care because he was the one who was changing lanes. The defendants cite La.R.S. 32:74 from the Highway Regulatory Act, at La.R.S. 32:1, et seq., which they argue should be applied in allocating fault to the plaintiff, Mr. Johnson. We disagree.

Where a vehicular collision occurs in a private parking lot and not on a public thoroughfare, the general tort law of Louisiana is applicable, and the Highway Regulatory Act, though persuasive, is not controlling. Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428, (La.App. 3 Cir.1977). In Gatheright, we set a standard of due caution for all motorists proceeding in a parking lot. There, under the facts of that case, we found that the plaintiff was 100% at fault for traveling too fast and not [^applying her brakes, while the defendant had observed her duty of due caution in proceeding through the parking lot and was in no degree negligent for the accident.

In Chenevert v. Wal-Mart Stores, Inc., 02-1075 (La.App. 3 Cir. 2/5/03), 838 So.2d 922, a panel of this court found that both drivers caused a parking lot accident where one driver was traveling at an excessive speed, and a store employee drove a forklift from behind a storage box into the driver’s path. Citing Gatheright, we found that a motorist can breach his duty of due caution if he travels at a fast pace in a parking lot with other traffic present and with his vision obstructed by parked cars and other objects. Hence, in Chenevert, where both the fork lift operator and the motorist were in motion, and both had obstructed views because of the large storage boxes, both breached the duty of due caution.

Conversely, here, Mr. Johnson testified that he saw the ambulance and that it was stopped, with its brake lights still on, when he started past it to exit the Taco Bell lot. Mr. Johnson was driving a Ford Expedition, a large, red SUV with a high profile, allowing him to see both lanes of the drive-through, and allowing him to be seen by the ambulance driver. There is no testimony that Mr. Johnson’s view, or the ambulance driver’s view, was obstructed. Nor is there any testimony that Mr. Johnson was speeding. Here, the ambulance driver, Mr. Smith, testified that he was looking to his left, not to his right, or up ahead, when he took his foot off of his brake and moved forward. Smith testified that he felt, not saw, the impact when his front grill made contact with the back of Johnson’s Expedition.

The trial court noted that the impact to Mr. Johnson’s vehicle was to “the rear quarter panel area of the plaintiff vehicle. Not the front or middle but the rear. And so it gives the driver of the defendant vehicle so many opportunities to see the plaintiff vehicle to his right or entering ahead and he [does] not.” Mr. Johnson argues that, to the extent that the Highway Regulatory Act is persuasive, the facts of this case support the conclusion that the ambulance driver, Mr. Smith, violated La.R.S. 32:10317when he released his brakes and moved forward without seeing Mr. Johnson. More specifically, Section 103 provides; “No person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety.” Of the statutes cited, this one is the most persuasive, in that it does not involve intersections or multidirectional traffic, and it addresses the present facts and findings.

Next, the defendants contend that the trial court misapplied the theory of preemption and in so doing committed reversible error. We disagree. The record reveals that, while the term “preemption” was loosely used by the trial court, only after being suggested by the defendant, it was used by the trial court for explanatory reasons, not as the legal term of art it has come to represent. More specifically, the doctrine of preemption may allow a non-favored motorist to recover if he crossed an intersection or entered a favored street only after determining that he had a reasonable opportunity to do so safely without endangering or impeding the approaching vehicles on the favored street. See Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250. The doctrine is based upon various statutes of the Highway Regulatory Act governing intersections and is not applicable to the facts in this case.

The trial court found that seventy-five percent of Mr. Johnson’s vehicle was in front of the ambulance and had “protruded and assumed or taken that lane from the defendant vehicle” at the time of impact. The trial court appears to have referred to the positions of the vehicles in the unmarked lanes to emphasize that Mr. Johnson was hit from behind and that he was so far in front of Mr. Smith’s ambulance at the point of impact that Mr. Smith would have seen him if Mr. Smith had been vigilant.

|sEven applying the doctrine for persuasive purposes, the court’s reasoning is sound, where Mr. Johnson moved in front of the ambulance only after determining that it was stopped with its brake lights engaged. Mr. Johnson, therefore, undertook a proper lookout (see Semien v. State Farm Auto. Ins. Co., 398 So.2d 161 (La.App. 3 Cir.1981)), and had a bona fide belief that he could proceed safely (see O’Bannion, 278 So.2d 830). See also McMillan v. State Farm Mut. Auto. Ins. Co., 356 So.2d 1368 (La.1978) (preemption by vehicle was clear where the point of impact was to the rear of the left door in the left quarter panel).

The defendants also contend that the trial court should have used the lane changing doctrine. Again, the lane changing doctrine is based upon various statutes of the Highway Regulatory Act which is not controlling in this case. In general, it requires that a person moving from one lane to another must do so with safety. Here, the record supports a determination that Mr. Johnson proceeded with due caution and that Mr. Smith did not.

The defendants further argue that the trial court should have applied the presumption of negligence doctrine, which arises when a driver leaves his own lane of traffic and strikes another vehicle. See Shephard on Behalf of Shepard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308. We again disagree. Here, the record amply supports the determination that Mr. Smith struck Mr. Johnson, and that this doctrine is inapplicable.

1 gThe trial court found that the ambulance driver was solely at fault for the accident. The trier of fact is afforded great deference in its allocation of fault. Therefore, even if a reviewing court might apportion fault differently, the judgment of the trial court should be affirmed unless manifestly erroneous or clearly wrong. See Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. We find no manifest error in the trial court’s allocation of fault.

Expert Testimony and Citation

The defendants contend that the trial court abused its discretion in denying expert status to the investigating officer and in excluding his traffic citation from the admissible evidence. A trial court is accorded broad discretion in determining whether expert testimony should be admissible and who should or should not be permitted to testify as an expert. Cheairs v. State ex rel. Dept. of Transp. and Dev., 03-680, p. 6 (La.12/3/03), 861 So.2d 536, 541 (citing 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[02] (1981)). We find no abuse of discretion by the trial court.

Officer Carl Harvey testified that he had been with the Marksville Police Department for approximately .thirty years, beginning as a patrolman, and that he had achieved the rank of Captain about ten years prior to trial. He stated that he had given trial testimony in court but that he had never had formal training in reconstructing accidents; had never been tendered or certified as a crash reconstruc-tionist; had never performed an accident reconstruction; and had never tendered as an expert in accident investigation.

Officer Harvey specifically stated that he did not have the qualifications to reconstruct an accident. He testified that he had gone through an eight-week training period at Alexandria Police Academy thirty years ago, which included accident investigation. He further stated that he did not go to seminars or courses on a | mperiodic basis to stay current with accident investigation. Officer Harvey further testified that he had attended one course in the last five years when the Department of Public Safety and Corrections changed the accident reporting form and required officers to attend a course on the new form. The trial court questioned Officer Harvey and determined that he had not taken any measurements at the scene of the accident and had done nothing more than take the statements of the parties, assess the damage, and issue a citation to Mr. Johnson for careless operation of a vehicle. Thus, the court declined the defendant’s tender of Officer Harvey as an expert.

Additionally, the traffic citation was properly excluded by the trial court from the admissible evidence. It has long been held that the mere charge of a traffic violation is inadmissible in a civil proceeding to prove negligence because citations are often untrustworthy; they are merely the opinion of the officer; their payment is often the result of expediency or compromise; and they erode the rule against hearsay. See Ruthardt v. Tennant, 215 So.2d 805, 252 La. 1041 (La.1968). This is particularly true where there is no court appearance and no written plea of guilty. See Maricle v. Liberty Mut. Ins. Co., 04-1149 (La.App. 3 Cir. 3/2/05), 898 So.2d 565. Here, the record reveals that the citation itself was dismissed; the Marksville City Police Department did no formal investigation of the accident; nor did it file an accident report. Accordingly, the trial court is affirmed on this issue as well.

Economic Damages

The defendants further contend that the trial court erred in awarding past lost wages to Mr. Johnson in the amount of $6,500.00.

To recover for actual wage loss, a plaintiff must prove the length of time missed from work due to the tort and must prove past lost earnings. Craven v. Universal Life Ins. Co., 95-1168 (La.App. 3 Cir. 3/6/96); 670 So.2d 1358, writ denied, 96-1332 (La.9/27/96); 679 So.2d 1355. Past lost earnings are susceptible of mathematical calculation from evidence offered at trial. Id. An award for past lost earnings requires evidence as reasonably ^establishes the claim, which may consist of the plaintiffs own testimony. Id. An award for past lost earnings is not subject to the much-discretion rule when it is susceptible of mathematical calculation from documentary proof. Mormon v. Stine, Inc., 95-615 (La.App. 3 Cir. 11/2/95); 664 So.2d 600. The plaintiffs uncorroborated, self-serving testimony will not be sufficient to support an award if it is shown that corroborative evidence was available and was not produced. Id.

Mathews v. Dousay, 96-858, p. 15 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 513.

Mr. Johnson testified that, at the time of the accident, he was employed with Brudd Construction doing drainage work on the highways. Mr. Johnson’s medical records from Avoyelles Hospital in Marks-ville and Rapides Regional Medical Center in Alexandria both list “Broudd” Construction as the patient’s employer. Mr. Johnson testified that he made $8.00 per hour with the construction company and averaged forty hours a week in regular time and ten hours per week in overtime. Therefore, Mr. Johnson was earning approximately $320.00 per week, plus overtime, before the accident on September 4, 2008. He also stated that he was taken off work by Dr. Bryan McCann, and when he tried to return to Brudd Construction, he was told that he had been replaced.

Dr. McCann’s records and deposition testimony indicate that he took Mr. Johnson off work on his first visit on September 8, 2008, and that he continued his off work status through the first week of January 2009. Dr. McCann further testified that the accident with Acadian Ambulance on September 4, 2008, was the cause of Mr. Johnson’s neck and back injuries. The record, therefore, reveals that Mr. Johnson has shown an inability to work for approximately twenty-one weeks due to the tort. The trial court awarded Mr. Johnson $6,500.00 for past lost wages, which is consistent with twenty and one-third weeks at the weekly wage of $320.00 to which Mr. Johnson testified, without considering any overtime.

112While the defendant complains that no check stubs or tax returns were offered at trial, the defendant did not show that such documents were available but not produced, pursuant to Mathews quoted above. Nor does the record indicate that the defendant filed a motion to compel such documents. Accordingly, the trial court’s judgment is affirmed on the award of past lost wages.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed on all issues. Costs of this appeal are assessed to the defendants, Jonathan Smith, Acadian Ambulance, and Discovery Property and Casualty Insurance Company.

AFFIRMED.

      . The statute cited by the defendants provides that a vehicle may overtake and pass another on the right if the other vehicle is making or about to make a left turn; if the street or highway is one-way, free from obstructions, and wide enough for two or more moving vehicles; if the highway is multi-laned; if conditions permit such movement in safety, without leaving the pavement or main traveled portion of the highway. La.R.S. 32:74. To the extent that this law is persuasive, the record provides a factual basis for concluding that Mr. Johnson's movements were not in violation of this statute.

      . See La.R.S. 32:232, on traffic control signals and semaphores, which purports to protect motorists who preempt at intersections. Higgins v. Johnson, 349 So.2d 918 (La.App. 1 Cir.), writs denied, 351 So.2d 161 and 162 (La.1977); See Ernst v. O'Bannion, 278 So.2d 830 (La.App. 3 Cir.), writ denied, 281 So.2d 749 (La.1973), referencing La.R.S. 32:121 (at intersection, vehicle on left generally yields to vehicle on right).

      . The driver on a road laned for traffic must not move out of his lane until he has first ascertained that such movement can be made with safety. La.R.S. 32:79. A motorist changing lanes may not turn his vehicle from a direct course or move right or left unless and until such movement can be made with reasonable safety. La.R.S. 32:104(A). Signals must be used to indicate an intention to change lanes. La.R.S. 32:104(D).

      . The presumption of negligence doctrine is reserved for exceptional cases, and it arises "when a defendant motorist leaves his own traffic lane and strikes another vehicle. In such a case, the burden of proof on such a defendant motorist is to show that he was not guilty of any dereliction, however slight.” Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 6 (La.2/20/95), 650 So.2d 742, 746 (emphasis added) (citations omitted).


text:
    Mark CLAVERIE v. Jonathan SMITH, et al.
    No. 11-854.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2012.
    Robert Lewis Bussey, Bussey & Lauve, Alexandria, LA, for Defendants/Appellants, Acadian Ambulance Service, Inc., Discovery Property & Casualty Insurance Company, and Jonathan Smith.
    Brian M. Caubarreaux, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiff/Appellee, Dwight Johnson.
    Adras Paul LaBorde Endom, Baton Rouge, LA, for Defendant/Appellee, Phoenix Indemnity Insurance Company.
    Jonathan Terrel Gaspard, Marksville, LA, for Plaintiff/Appellee, Mark Claverie.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

hFor the reasons discussed in the consolidated case of Johnson v. Smith, 11-853 (La.App. 3 Cir. 3/14/12), 86 So.3d 874, the judgment of the trial court is affirmed.

AFFIRMED.


author: KEATY, Judge.

text:
    Barbara J. SHORTER v. Misty L. AKINS, et al.
    No. 11-1553.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied May 16, 2012.

      Howell D. Jones, IV, Thomas Wahlder, Attorneys at Law, Alexandria, LA, for Plaintiff/Appellant, Barbara J. Shorter.
    Laurel I. White, Assistant Attorney General, Alexandria, LA, for Defendants/Appellees, The Board of Supervisors of LSU and Agricultural and Mechanical College State of Louisiana, through the LSU Health Care Services Division d/b/a Huey P. Long Medical Center, Misty L. Akins.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiff appeals a judgment of the trial court granting an exception of no right of action filed by the defendant and dismissing her suit with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 28, 2009, Barbara Shorter was involved in an accident in the parking lot of Huey P. Long Medical Center (HPLMC) in Pineville, Louisiana. According to the petition for damages, Shorter backed out of a parking space and came to a complete stop when her car was struck by a van owned by HPLMC and operated by Misty Akins in the course and scope of her employment with HPLMC. Named as defendants in the action were Akins and The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College through the Louisiana State University Health Care Services Division d/b/a Huey P. Long Medical Center (HPLMC), whom Shorter claimed was vicariously liable for the negligence of its employee, Akins.

HPLMC filed an exception of no right of action claiming that, because Shorter was its employee and in the course and scope of her employment when the accident occurred, her remedy against it was limited to workers’ compensation. See La.R.S. 23:1032. HPLMC prayed that judgment be rendered in its favor, dismissing Shorter’s tort suit against it.

Shorter opposed the exception, contending that she had finished her shift, clocked out, and was on her way home when the accident occurred. She attached to her memorandum in opposition an affidavit wherein she stated that on July 28, 2009, her work hours were from 6:00 a.m. to 2:30 p.m., and that when the accident 12occurred in the hospital’s parking lot around 3:00 p.m., she had completed her work for the day, was not on the clock, and was not being compensated for her time.

Following a hearing on August 1, 2011, the trial court rendered judgment in favor of HPLMC, granting the exception of no right of action and dismissing Shorter’s suit with prejudice at her cost. Shorter now appeals, asserting that the trial court erred in granting the exception of no right of action because she belongs to the class of persons to whom the law grants the cause of action asserted in her suit. She further asserts that the trial court erred in finding that her injury occurred in the course and scope of her employment and that it arose out of her employment.

DISCUSSION

The peremptory exception of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. To prevail on an exception of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the lawsuit or the legal capacity to proceed.
Because it involves a question of law, the standard of review of the trial court’s granting of the exception of no right of action is de novo review.

Bennett v. Porter, 10-1088, pp. 7-8 (La.App. 3 Cir. 3/9/11), 58 So.3d 663, 670 (citations omitted).

The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense. Evidence supporting or controverting an objection of no right of action is admissible. The party raising a peremptory exception bears the burden of proof.

Falcon v. Town of Berwick, 03-1861, p. 3 (La.App. 1 Cir. 6/25/04), 885 So.2d 1222, 1224 (citations omitted).

As the exceptor, HPLMC had the burden of showing that Shorter did not have an “interest in judicially enforcing the right asserted” in her suit against it. See Bennett, 58 So.3d at 670. In other words, HPLMC had to prove that Shorter |shad no right to proceed against it in tort and was instead limited by the exclusivity provisions of “the Louisiana Workers c’1 Compensation Act, La.R.S. 23:1032, which provides immunity from civil liability in favor of an employer.” Broussard v. Smith, 08-473, p. 2 (La.App. 3 Cir. 12/3/08), 999 So.2d 1171, 1173. To satisfy its burden, HPLMC had to prove that Shorter was in the course and scope of her employment when the accident occurred, and it made such an assertion in its exception of no right of action. Shorter opposed that assertion by filing an affidavit challenging the assertion on the basis that she was no longer in the course and scope of her employment at the time of the accident. HPLMC offered no evidence to contradict the assertions attested to in Shorter’s affidavit.

Based on our de novo review of the record, we conclude that HPLMC did not meet its burden of proving that Shorter had no right to proceed against it in tort. Accordingly, we reverse the trial court’s judgment granting HPLMC’s exception of no right of action and dismissing Shorter’s petition against it, and we remand this matter to the trial court for further proceedings consistent with this opinion.

CONCLUSION

For the forgoing reasons, we reverse the trial court’s judgment granting the exception of no right of action filed by the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College through the Louisiana State University Health Care Services Division d/b/a Huey P. Long Medical Center, and we remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College through the 14Louisiana State University Health Care Services Division d/b/a Huey P. Long Medical Center.

REVERSED AND REMANDED.

      . Although Shorter originally filed her petition in Pineville City Court, by order dated February 26, 2010, the matter was transferred to the Ninth Judicial District Court in the Parish of Rapides at her request.

      . The intentional act exception to this exclusivity rule is not at issue in this matter as Shorter asserted that the accident was caused by Akins’ negligence. She did not allege that Akins was guilty of committing an intentional tort against her. See La.R.S. 23:1032(B).


author: PIERCE, Justice,

text:
    Dennis Jerome BEAL v. STATE of Mississippi.
    No. 2010-KA-01613-SCT.
    Supreme Court of Mississippi.
    March 1, 2012.
    Rehearing Denied May 10, 2012.

      Earnestine Alexander, Jackson, Steven Waldrup, Attorneys for Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss Scott Stuart, Attorneys for Appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Dennis Jerome Beal allegedly offered Lieutenant Tommy Jones, a Madison County Sheriffs Department deputy, $10,000 in hopes that Jones could make Beal’s pending drug charge disappear. On April 28, 2010, Beal was indicted by a Madison County grand jury for bribery as a habitual offender. On September 15, 2010, a Madison County jury unanimously found Beal guilty of bribing Jones, and the trial court sentenced Beal to ten years in prison as a nonviolent habitual offender. Beal appeals his conviction, and this Court reverses and remands.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts were gleaned from the testimony and evidence presented at trial. Beal sold a confidential informant, who was working for the Madison County Sheriffs Department (“MCSD”), cocaine on March 28, 2009, but Beal was not immediately arrested. The MCSD chose to arrest Beal later when he visited his probation officer. Jones took custody of Beal, and during transit, Jones gave Beal an opportunity to “help his self.” At this time, Beal did not offer any information to “help his self,” but Jones gave Beal his cell number in case Beal changed his mind.

¶ 3. On October 21, 2009, Beal contacted Jones by phone to “meet up” and talk. Later, they met at the Capitol Body Shop in Ridgeland, Mississippi, to discuss what Beal could do to “help his self.” At this meeting, Jones testified that he informed Beal about what needed to be done, but that Beal explained that he had nothing to offer because several people knew Beal had been charged and arrested in Madison County. As the conversation continued, Beal asked Jones if he could give Jones money to “secure his freedom.” Beal offered to pay Jones about $5,000, but no money ever changed hands at this meeting. When the conversation was coming to a close, Jones informed Beal that the proposition to secure his freedom was not “out of the question.” Once Beal left, Jones contacted his superiors to inform them about the state of the investigation.

¶ 4. As the investigation continued, Beal contacted Jones on November 23, 2009, to meet again and talk. Jones agreed to meet Beal at the Lowe’s in Madison, Mississippi, and during this recorded conversation, Beal upped the ante and offered Jones $10,000, which Beal would pay off as a part of a “program.” However, no money changed hands during this meeting either, and the investigation continued.

¶ 5. On February 5, 2010, Beal and Jones met again at the Lowe’s in Madison, Mississippi. But this time, Jones and his superiors had decided to arrest Beal after the meeting, because it seemed apparent from telephone communications between Jones and Beal that money would change hands at this meeting. The meeting took place at about nine o’clock at night, and when Beal arrived, he entered Jones’s vehicle. Once the conversation began, Beal handed Jones an envelope containing money. The envelope contained only $4,000, rather than $10,000, but Beal said he would pay another $6,000 later when he had acquired more money from his car-selling business. Once Beal left the scene, MCSD deputies arrested him.

¶ 6. On April 28, 2010, a Madison County grand jury indicted Beal for bribery as a habitual offender under Mississippi Code Section 99-19-83. Beal moved to dismiss the indictment, claiming that there was a problem with the charging language of the indictment as it related to Beal’s habitual-offender status. The Madison County District Attorney’s office (“MCDA”) admitted, pretrial, that the indictment language included a scrivener’s error. The trial court denied the motion to dismiss the indictment and permitted the MCDA to amend the indictment to reflect that Beal qualified as a nonviolent habitual offender under Mississippi Code Section 99-19-81, rather than a violent habitual offender under Section 99-19-83. Thus, the trial court denied the motion to dismiss the indictment. The trial court issued an order on September 14, 2010, before trial began, amending the indictment to reflect the appropriate habitual-offender status.

¶ 7. The trial began on September 14, 2010, and with its first witness, the State elicited testimony regarding a videotape that allegedly depicted Beal selling cocaine to a confidential informant. Beal’s counsel objected, stating that the videotape was “not relevant here.” However, the trial court overruled that objection, finding that the State was only describing “the process of the drug purchase.” The State continued with its line of questioning and elicited testimony gleaned from the contents of the videotape. Later, as the trial ensued, Beal’s counsel moved to view and publish the videotape to the jury upon the belief that the videotape did not show what the State’s witness claimed. However, the State objected, arguing that the videotape was not relevant. The trial court ruled that there was no reason why Beal’s counsel could not view the videotape, but found that the videotape would be “substantially prejudicial” to the defense if the jury saw the videotape and, thus, excluded it. At the conclusion of a two-day trial, the jury unanimously found Beal guilty of bribery.

¶ 8. As a result, the trial court sentenced Beal to ten years without early release, probation, or parole. During the sentencing hearing, Beal’s counsel moved ore ten-us for a judgment notwithstanding the verdict, but the trial court informed Beal’s counsel that it was inappropriate for the court to take up such motion until sentencing was concluded, suggesting that a written motion be filed. On October 1, 2010, Beal filed a motion for judgment notwithstanding the verdict or in the alternative, a new trial, and the trial court denied that motion on January 11, 2011. On the same day, Beal’s counsel filed a notice of appeal. On appeal, Beal alleges:

I. The trial court erred by not quashing the indictment because the charging language illustrates improper influence bearing upon the grand jury;
II. The trial court erred in allowing the State to amend the indictment;
III. It was prejudicial error for the trial court to deny the defendant’s request that the State deliver a copy of the videotape for the defendant’s viewing;
IV. It was prejudicial error for the trial court to allow the State to establish motive by eliciting testimony from its witness concerning a videotape the defendant had not viewed;
V. It was prejudicial error for the trial court to allow the State to make improper and inflammatory opening and closing statements to the jury that were misleading;
VI. The trial court erred in not finding the defendant entrapped as a matter of law.

STANDARD OF REVIEW

¶ 9. When reviewing the grant or denial of a motion to dismiss an indictment, this Court employs a substantial-evidence/manifest-error standard of review, but when a defendant challenges the legal sufficiency of an indictment, this Court employs a de novo standard of review. Additionally, this Court applies an abuse-of-discretion standard of review when considering whether a trial court erred in admitting or excluding evidence. Moreover, this Court refuses to overturn a jury verdict unless it is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

ANALYSIS

I. Whether the trial court erred by not quashing the indictment because the charging language illustrates improper influence bearing upon the grand jury.

II. Whether the trial court erred in allowing the State to amend the indictment.

¶ 10. Beal argues that the charging language of the indictment for the bribery charge was fatally defective because it unduly influenced the grand jury, and the trial court erred in allowing the State to correct the charging language before trial. The State proffers, however, that these issues are procedurally barred since those issues were not presented to the trial court initially. After having reviewed the record in its entirety, we find that the question of whether the court erred with regard to the charging language of the indictment and amendment of that language has been properly preserved for appeal. Beal clearly contested those issues before the trial court by moving to dismiss the indictment pretrial and by making objections regarding the indictment during trial.

¶ 11. Mississippi law is clear— “an indictment should be a plain, concise, and definite written statement of the essential facts constituting the offense charged and should fully notify the defendant of the nature and cause of the accusations against him.” “Formal and technical words” are unnecessary so long as the crime can be “substantially” “described” without such language. But, it is recommended that the code section under which the indictment is drawn be used. And amendments of indictments are permissible as to form but not as to the substance of the crime charged. Ultimately, indictments are subject to amendment so long as the amendment does not materially alter the facts that “are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood as to prejudice the defendant’s case.”

¶ 12. Recently, this Court decided Gowdy v. State, and in that case, the Court found that an amendment to an indictment prior to sentencing but after conviction was improper. This Court found that the State cannot amend an indictment to seek a greater sentence than one associated with the crime originally charged, as that would constitute an unfair surprise to the accused. Therefore, Gowdy is substantially distinguishable from the facts of this case before us today, because here, an amendment to the indictment was made before the trial began, and the amendment did not seek a greater sentence than the one originally charged. Consequently, this Court must determine whether the State can amend an indictment before trial to seek a lower sentence enhancement than one originally charged.

¶ 13. Nathan v. State is directly on point with the issues raised here. In Nathan, the State charged Nathan as a habitual offender in accordance with Mississippi Code Section 99-19-83. Section 99-19-83 states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

The State introduced evidence from the Mississippi Department of Corrections to prove that Nathan had been a habitual offender. However, Nathan’s attorney successfully argued that the proof failed to meet the requirements of Section 99-19-83. The trial court then permitted the State to amend the indictment to charge Nathan as a nonviolent habitual offender under Mississippi Code Section 99-19-81. Section 99-19-81 states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

The Nathan Court found that Nathan had been indicted under Section 99-19-83, which was sufficient to apprise Nathan that the State was seeking to impose the habitual-offender status, and thus, the amendment allowed for a lesser sentence. Moreover, the amendment affected only sentencing and not the underlying crime with which Nathan was accused. Consequently, the amendment made to Nathan’s indictment was permissible because it did not materially alter the facts underlying the indictment, and the amendment did not prejudice the defendant.

¶ 14. Here, as in Nathan, Beal originally was indicted as a habitual offender under Section 99-19-83, and Beal’s counsel made the trial court aware that the charging language of the indictment contained an error through a motion to dismiss. When Beal’s pretrial motion to dismiss was heard by the trial court, the State admitted that the indictment contained a scrivener’s error and that Beal met the habitual-offender status under Section 99-19-81 instead of the habitual-offender status under Section 99-19-83. The trial court correctly allowed — a decision made by both rule and law — the State to amend Beal’s indictment to properly reflect the appropriate habitual-offender status.

III. Whether it was prejudicial error by the trial court to deny the defendant’s request that the State deliver a copy of the videotape for the defendant’s viewing.

IV. Whether it was prejudicial error for the trial court to allow the State to establish motive by eliciting testimony from its witness concerning a videotape the defendant had not viewed.

¶ 15. Beal asserts that the trial court committed prejudicial error by denying his request to publish the videotape to the jury, since the State had elicited testimony regarding the videotape in its case in chief. In situations where admissibility and relevancy of evidence are questioned, the trial court possesses a vast amount of discretion, and unless the trial court abuses that discretion in a manner that injures the accused, this Court will not reverse that ruling. Here, this Court finds that the trial court abused its discretion regarding the videotape.

¶ 16. Although Beal couches the error made by the trial court on the issue of the videotape as a discovery violation, this Court cannot find one. An attorney must provide a written request for discovery. Moreover, if the prosecution attempts to introduce evidence not provided in discovery, the defense must object for that reason and be given an opportunity for a continuance to review the material in question. Beal’s attorney at trial, Earnestine Alexander, entered the case five days before trial. Admittedly, Alexander failed to submit a written request to the State for discovery, and instead, chose to rely upon piecemeal discovery gathered through the use of Beal’s family members, court clerks, and Beal’s former attorneys. Moreover, Alexander argued in Beal’s pretrial motion to dismiss that the videotape contained “absolutely nothing.” And at trial, Alexander informed the court that she chose not to view the videotape prior to trial because she did not see a reason to do so. On appeal, Alexander argues that the videotape was not provided to her in discovery by the State, yet the record is devoid of any instance in which Beal or Alexander was denied the right to view the videotape. In review of the record in this case, it appears that Beal and Alexander had access to the videotape and chose not to view it. Thus, it is seems incongruent to allow Beal to assert a discovery violation in this regard. Nevertheless, this Court still must address the relevancy of the videotape and whether Beal’s right to confrontation was violated.

¶ 17. Recently, this Court ruled:

As long as the trial court remains within the boundaries of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference. But error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.

The videotape was not relevant to the underlying charge of bribery, but the State opened the door for the videotape to become relevant when it decided to question Jones about the contents of the videotape. Essentially, the trial court permitted Jones to testify to facts not in evidence, since the State did not admit the videotape into evidence. And later, when Beal decided to show the videotape to the jury, his right to confront the testimony of Jones was violated.

¶ 18. As a result, the trial court committed prejudicial error by allowing the State’s witness to testify to the contents of the videotape and by prohibiting the defense from showing the jury the videotape. This Court respects the trial court’s caution on this issue in finding the videotape more prejudicial than probative, but suggests that if the defense wishes to err in this regard, then that is its unfortunate choice to do so. The videotape became relevant once the prosecution elicited testimony from the contents of the tape, and therefore, the defense should have been allowed to show the videotape to the jury even if it did show Beal selling drugs.

V. Whether it is prejudicial error for the trial court to allow the State to make improper and inflammatory opening and closing statements to the jury that were misleading.

¶ 19. Beal asserts that the trial court erred by allowing the State to make improper and inflammatory opening and closing statements that were misleading to the jury. Yet, the State contends that this argument is barred because Beal made no objections to these alleged improper and inflammatory statements at trial. And “failure to make a contemporaneous objection constitutes waiver of that issue on appeal.” We agree. Beal’s contentions are waived, and thus, without merit.

VI. Whether the trial court erred in not finding the defendant entrapped as a matter of law.

¶20. Beal argues that the trial court should have found that he was entrapped as a matter of law. However, the trial court gave an entrapment instruction and submitted the question to the jury. The State insists that entrapment is a question of fact for the jury to decide. And as this Court has held, entrapment is a jury question. Entrapment is an affirmative defense that must be proven by the defendant. Therefore, this Court finds that the trial court did not err in allowing entrapment to be decided by the jury.

¶ 21. Entrapment occurs when an individual acts to induce or lead another person to commit a crime not originally envisioned by that person for the purposes of trapping that person for the offense committed. “Before a defendant can raise the defense of entrapment, he or she is required to show evidence of government inducement to commit the criminal act and a lack of predisposition to engage in the criminal act prior to contact with government agents.” Government inducement and predisposition are questions of fact for the jury to decide, not the trial court. Mississippi places great weight on the jury’s determination in this regard:

Where the jury resolves the point against the defendant, he is generally out of luck on appeal. On the other hand, having in mind our limited scope of review of jury verdicts, where the offense has in fact been induced by an agent of the state and where the accused, prior to the inducement, was not predisposed to commit the type of offense charged, entrapment is shown and the defendant must be discharged.

Consequently, “this Court will only overturn a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

¶ 22. Clearly, Mississippi has well-defined standards on what constitutes entrapment. Yet, in Beal’s brief, he attempts to link entrapment to the indictment without discussing whether the State induced him to bribe Jones or whether he was predisposed to commit the offense of bribery. Because entrapment is a question of fact for the jury, Beal’s argument is without merit.

CONCLUSION

¶ 23. The trial court properly permitted the State to amend the indictment before trial. Nevertheless, the trial court committed prejudicial error regarding the videotape, as it became relevant to the case once the State opened the door by eliciting testimony about its contents. However, Beal’s arguments regarding opening and closing statements and entrapment are without merit. Therefore, Beal’s conviction and sentence are reversed, and this case is remanded to the trial court for a new trial consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, CHANDLER AND KING, JJ., CONCUR. DICKINSON, P.J., AND LAMAR, J„ CONCUR IN RESULT ONLY.

      . Foreman v. State, 51 So.3d 957, 959 (Miss.2011).

      . Quang Thanh Tran v. State, 962 So.2d 1237, 1240 (Miss.2007).

      . Gilbert v. State, 48 So.3d 516, 523 (Miss.2010).

      . Long v. State, 52 So.3d 1188, 1192 (Miss.2011).

      . Issues I and II address the same issue-the indictment-and will be discussed together.

      . Winters v. State, 52 So.3d 1172, 1174 (Miss.2010); see URCCC 7.06.

      . URCCC 7.06.

      . Winters, 52 So.3d at 1175.

      . URCCC 7.09; see Nathan v. State, 552 So.2d 99, 105 (Miss.1989); Gowdy v. State, 56 So.3d 540, 547-48 (Miss.2011) (Pierce J., dissenting).

      . Nathan, 552 So.2d at 107 (citing Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985)); see Shelby v. State, 246 So.2d 543, 545 (Miss.1971); see also Wilson v. State, 935 So.2d 945, 949 (Miss.2006).

      . Gowdy, 56 So.3d at 545.

      . Id.

      . Although Nathan v. State was decided in 1989, the habitual-offender statutes have remained the same.

      . Nathan, 552 So.2d at 105.

      . Miss.Code Ann. § 99-19-83 (Rev.2007).

      . Nathan, 552 So.2d at 105.

      . Id. at 106.

      . Id.

      . Miss.Code Ann. § 99-19-81 (Rev.2007).

      . Nathan, 552 So.2d at 107.

      . Id.

        .Id.

      . See Nathan, 552 So.2d at 107; Sanders, 219 So.2d at 916; see also URCCC 7.09.

      . Issues III and IV also will be discussed together, as these issues concern the question of whether or not the trial court abused its discretion in allowing and/or denying evidence.

      . Hargett v. State, 62 So.3d 950, 952-53 (Miss.2011); see Pitchford v. State, 45 So.3d 216, 246 (Miss.2010).

      . URCCC 9.04.

      . URCCC 9.04(I)(1)(2)(3).

      . Hickman v. State, 73 So.3d 1156, 1160 (Miss.2011) (internal citations omitted).

      . Redmond v. State, 66 So.3d 107, 110-11 (Miss.2011).

      . Moore v. State, 534 So.2d 557, 559 (Miss.1988).

      . Tate v. State, 912 So.2d 919, 925 (Miss.2005).

      . Morgan v. State, 703 So.2d 832, 835 (Miss.1997).

      . Hopson v. State, 625 So.2d 395, 400 (Miss.1993) (citing United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir.1989)).

      . Moore, 534 So.2d at 559.

      . Id. (emphasis added)

      . Long v. State, 52 So.3d 1188, 1192 (Miss.2011).