author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Broderick Jerome BROOKS, Jr., Appellant.
    No. 45,778-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Peggy J. Sullivan, William J. Franklin, Louisiana Appellate Project, for Appellant.

      Charles R. Scott, II, Catherine M. Esto-pinal, William J. Edwards, Sarah S. Mid-boe, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

|2This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Broderick Jerome Brooks, Jr., was convicted by a jury of second degree murder, a violation of La. R.S. 14:30.1. He was subsequently sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence, which conviction and sentence Brooks appeals. For the following reasons, we affirm the defendant’s conviction and sentence.

Facts

Broderick Brooks was a young man with a promising future in collegiate sports. However, as the facts of this case show, bad choices by Brooks led to unfortunate consequences — death for one individual and a life sentence in prison for another. Two lives, irreversibly marred by an act of senseless violence.

Brooks was arrested and charged by bill of information with the second degree murder of Donte Gilbert, who was killed during the commission of a drive-by shooting in Shreveport, Louisiana, during the early morning hours of August 9, 2008. Brooks was tried before a jury, and during the trial the following evidence was adduced.

At around 3:00 a.m. on August 9, 2008, members of the Shreveport Police Department responded to the call of a shooting on the 600 block of Springhill Street in Shreveport. The first officer on the scene, Corporal M. Jones, testified that when he arrived he saw a black male, subsequently identified as Kentrell Turner, standing on the side of the residence located at 643 Springhill Street. The house was located on the right of the street as Jones entered the block from Louisiana Avenue. The house was preceded by a wooded area and followed by a vacant lot. Turner was standing over the body of Donte Gilbert and yelling that he had been shot. Gilbert was not conscious and after members of the fire department arrived, he was transported to a hospital where he subsequently died. Gilbert’s autopsy indicated his cause of death to be a gunshot wound which entered his left flank, pierced the lower lobe of his left lung and exited through Gilbert’s back just to the right of his spine.

|sSubsequent interviews with Kentrell Turner and a neighbor, Shakeya Johnson, led officers to 11 different suspects, including the defendant. Among the other 10 suspects were Bobby Mosley, Norman Frazier, and Corey Roberson, all of whom testified at trial.

According to Bobby Mosley, the defendant, whom he had known since both attended Booker T. Washington High School, called him on August 8, 2008, and told Mosley to come to Shakeya Johnson’s home, whom Mosley identified as the defendant’s girlfriend. When Mosley arrived, there was a birthday party going on for Shakeya’s daughter. Mosley testified that at that party the defendant was upset because Keithric Marshall had pulled a gun on him earlier. Mosley explained that later that same day, he picked up the defendant and they went to a party at the Municipal Auditorium. Once there, they met up with Corey Roberson, Furlando Washington, Norman Frazier, Dardanius “Bam” Clark, Garret Watson, Brandon Howard, Devine Jones, Romedro Dem-ming, and Larry Norwood. Mosley described that Corey Roberson was driving a black Equinox.

Mosley testified that when the group left the Municipal Auditorium they went to a house on Looney Street where the defendant retrieved a .45-caliber Hi-Point firearm. From there they went to Mosley’s cousin’s house where Mosley dropped off his cousin’s vehicle. Mosley and the defendant joined Roberson and Washington in the black Equinox. They then traveled to the “Scene,” a nickname used for the area at the intersection of Jewella and Greenwood Road where people tended to congregate. Joining them at the “Scene” were Frazier, Clark, Watson, Howard, Jones, Demming, and Norwood.

Frazier and Clark were in a black Ford Explorer and Clark was carrying a .40-caliber firearm under his shirt. Watson and Howard followed in a tan Crown Victoria, and Norwood, Jones and Demming followed in a gray Crown Victoria. Mosley testified that while in a McDonald’s parking lot, the defendant told Mosely, Washington and Roberson about being “pissed off’ over the situation with Marshall. Mosley could not say whether the defendant spoke to anyone else about it because they were not together the entire time in the parking lot.

LFrazier testified that while in the McDonald’s parking lot, the defendant told them about having a gun pulled on him by a “short fat dude,” (presumably Marshall). Frazier stated that the defendant was mad about it and wanted to shoot up the “short fat dude’s” car to scare him. Roberson denied hearing the defendant talking about the Marshall incident, but claimed he had not stayed with the group in the parking lot, choosing instead to go speak to a female friend.

According to Frazier, from McDonald’s all four cars drove in a caravan to Shake-ya’s home so that the defendant could retrieve a cellphone charger. The defendant, Washington and Mosley were riding as passengers in Roberson’s vehicle, which was in the lead. Frazier’s vehicle followed immediately behind, and the two other cars were behind Frazier.

When they arrived, Mosley and the defendant got out of the black Equinox and went to Shakeya’s front door. As the defendant returned, Frazier testified that the defendant instructed everyone to turn off their headlights and he pointed out Marshall’s car. Mosley recalled the defendant telling them to “get the car,” and Roberson heard the defendant tell everyone to “lock and load.”

Roberson’s car pulled away from Shake-ya’s home with the defendant sitting in the rear passenger-side seat. As they approached 643 Springhill Street, Mosley indicated that the defendant, who was now sitting in the rear driver-side seat, leaned in front of him and fired several shots with his .45-caliber Hi-Point firearm out of the partially opened driver-side rear window. Frazier, following behind, corroborated that the first shots were fired from Roberson’s vehicle out of the driver-side window and the moon roof. Roberson’s vehicle slowed in front of 648 Springhill Street as the shots were fired and then drove off and turned onto Louisiana Avenue. Gunshots were also fired from Frazier’s vehicle and, according to Frazier’s perspective, from at least one of the vehicles behind him.

Their next stop was the defendant’s aunt’s home, where Frazier testified that the defendant provided Jones with additional bullets. While they were gathered there, Frazier saw the different weapons everyone had. He confirmed the defendant’s weapon as a .45-caliber firearm and Clark’s as a .40-caliber firearm. He claimed Mosley and Washington both had .380-|caliber5 firearms, Howard had a 9-mm firearm, Jones had a .45-caliber firearm and Demming had a 9-mm rifle.

Jerry Bryant also testified at the trial. Bryant was the victim’s cousin and was on the porch of 643 Springhill Street the night of the shooting. According to Bryant, several people, including Gilbert, were on the porch drinking in the early morning hours of April 9th. He was there when “the commotion started,” or as he further described, “a bunch of gunfire and stuff.” Bryant was sitting next to Gilbert in chairs near the edge of the porch. He described how he and Gilbert ran toward the back of the house when the shooting began. However, Bryant quickly noticed that he had been shot in his back and that his cousin, Gilbert, was on the ground bleeding.

Recordings of statements made by the defendant in post-arrest interviews were also admitted into evidence and played for the jury. During the first of the two interviews, the defendant admitted that on August 8, 2008, while attending a birthday party at Shakeya’s home, he had an altercation with someone he identified as “Keith.” He also admitted that later that evening he had returned to his girlfriend’s home to pick up a cellphone charger and was accompanied by his “boys” traveling in at least three separate vehicles. Defendant had asked them to go with him because the “dude” had threatened him. After getting his charger, the defendant claimed that he heard a gunshot. In response, the defendant’s party drove off and as they did so occupants of the vehicles behind the one defendant was traveling in returned fire. Later during the interview, defendant admitted that he too had been shooting a .45-caliber firearm, but stated unequivocally that he was only shooting at the car.

In a second interview conducted two days later, the defendant altered his version of the events and admitted that he had told the others about his altercation with “Keith” while in a parking lot of the “club” and told them to go “over there” with him. When asked specifically what he had said to them, defendant replied:

Nothing but dude had threatened my life over there by my girlfriend’s house, just pulled a gun on me and threatened me. So let’s go by there and see if they over there.

_[gAfter arriving on Springhill Street, Brooks described the following events:

Once we got over there, when we got over there, we stopped. B.J. ran in there to get the car, I mean the phone charger. I got out and said “it’s the blue Chevy,” you know what I’m saying. Like that’s the main thing I said “it’s the blue Chevy.” So because I wasn’t trying, I ain’t go over there with the intention of killing nothing, just go over there to scare them, you know what I’m saying. So knowing everybody in the Chevy, so I told you know, shoot at the Chevy so we start shooting at the Chevy and then they was still on the porch until the cars behind us passed on through and we saw them running and diving on the ground. Like “what, what /all shooting at? I told y’all shoot at the Chevy.” They was like “just shooting,” you know what I’m saying.

As the defendant’s recorded statement continued, when they arrived at Shakeya’s home, defendant saw Marshall on the porch, presumably of the 643 Springhill Street residence. Defendant pointed out Marshall’s Chevy Caprice in front of the residence and instructed the others in his party to “just shoot at the car.” Asked specifically who in the rear vehicles he had instructed to shoot, he said he had told “Bam” (i.e., Clark) to shoot at the car. The vehicles then all drove in front of 643 Springhill Street shooting their weapons in the general direction of the residence. Defendant insisted that he and the occupants of the vehicle he was in were shooting at the Chevrolet Caprice, but that he did not know where the occupants of the following vehicles were shooting. They pulled over down the street and the defendant asked the others where they had been shooting. When they said they were “just shooting,” the defendant told them, “Man that’s stupid, bro,” since he had specifically told them to shoot at the car. While defendant was vague as to the names of the occupants of the following vehicles, he admitted to knowing that Clark, Washington, Mosley, Roberson, Frazier and Howard were among them. While defendant became aware that Dem-ming was also in one of the cars, defendant stated he did not know Demming was there before the drive-by shooting took place.

During the initial investigation of the shooting, law enforcement located numerous spent shell casings in the roadway of Springhill Street. Officers did not locate any shell casings either on or in the immediate 17vicinity of the porch of 648 Spring-hill Street. They did discover numerous bullet holes in the facade of the residence.

Further investigation by crime scene investigators yielded nine .45-caliber shell casings, one live .45-caliber round and two .380-caliber shell casings located in or just next to the roadway and no shell casings on the front porch or around the residence. Various bullet holes were also located on the front of the residence and on the side facing away from Louisiana Street. Two fired projectiles were found on the front porch. Two spent projectiles and five potential damage sites where projectiles had struck were found inside the home. Additionally, one projectile was found embedded in the door frame and another was lying on the ground between the outer and interior panels of the wall. Keithric Marshall’s Chevrolet Caprice was recovered from Christus Schumpert Hospital. It had a bullet hole in the rear quarter panel and a .45-caliber spent projectile was found in the trunk.

Investigators impounded a black Equinox belonging to Corey Roberson’s mother and found two shell casings inside, one on the driver’s side floorboard and the other on the front passenger’s side floor board. Both shell casings were .380-caliber. Three other vehicles were also impounded: a black Ford Explorer, a tan Crown Victoria and a gray Crown Victoria. The black Ford Explorer, which had been driven by Norman Frazier on the night of the shooting, had two bullet holes in the hood of the vehicle. The radiator to the vehicle had been removed from the engine bay and was found in the rear hatch of the SUV. The radiator had a bullet hole through it. Corporal Armstrong found no other potential gunfire damage to the vehicle. Examination of both Crown Victoria vehicles yielded no evidence that either vehicle had suffered any gunfire damage.

Ballistics testing determined that the projectile found in the trunk of Keithric Marshall’s car had been fired from the .45-caliber Hi-Point firearm identified by Bobby Mosley as the gun the defendant was carrying on the night of Donte Gilbert’s murder. The various suspects also led investigators to a 9-mm rifle and a .45-caliber Ruger firearm. Reference bullets from both of these firearms were determined to have similar characteristics to spent projectiles recovered from the scene. In the case of the Ruger, the 18similarities were sufficient for positive identification of the weapon as a source of the shots. In the case of the 9-mm rifle, the similarities were sufficient enough to prohibit its exclusion as a source of some of the shots.

Brooks took the stand in his defense and admitted that he and Marshall had argued; however, he claimed that Marshall had refused to fight him and then brandished a gun. As to his inculpatory statements made to police, the defendant recanted them. He stated that at the time they were made he was overwhelmed and scared, because he was being charged with murder. In his trial version of the events of August 9, 2008, defendant again claimed that he heard a shot as he returned to Roberson’s vehicle from the porch of Shakeya’s house. Although he did not know where it had come from, defendant decided after getting in the vehicle to shoot at Keithric Marshall’s car as they drove away. He testified that he did not know who was in the vehicles behind him or whether any of them had a weapon before the shooting. He also stated that he did not instruct anyone else to shoot, and never had a conversation with anyone afterward about what they were shooting with or at. In an attempt to explain his knowing the names of the occupants of the other vehicles during his August 11, 2008, statement to police, he indicated that he had been in jail for several days and had been able to “find out the names exact.” He did not indicate how or from whom he obtained the information.

After considering the evidence and testimony, the jury returned a verdict of guilty as charged of second degree murder. Post-trial motions for new trial and post-verdict judgment of acquittal were both denied. After defendant waived the sentencing delays, the trial court imposed the mandatory sentence of life imprisonment without the benefit of parole, probation or suspension of sentence. The instant appeal followed.

DisCussion

Sufficiency of the Evidence

In his first assignment of error, Brooks argues that there was insufficient evidence against him to support a conviction for second degree murder. Specifically, Brooks claims that the state failed to prove that he was involved in a drive-by shooting because he simply fired his gun in reaction to hearing a shot and, therefore, did not have the necessary intent to either | nkill, harm or frighten another person as required for the perpetration of a drive-by shooting. Primarily, Brooks points to allegedly contradictory testimony of all the participants as to the series of events leading up to the shooting, and the state’s failure to prove which bullet killed Donte Gilbert.

As stated in La. R.S. 14:30.1, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... assault by drive-by shooting, ... even though he has no intent to kill or to inflict great bodily harm.

A “drive-by shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person. La. R.S. 14:37.1.

Regarding principals, La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

A defendant who is a principal in a drive-by shooting can be convicted of second degree felony murder even though the fatal shot was fired by a companion acting in concert with the defendant in the commission of the shooting. State v. Stewart, 48,149 (La.App.2d Cir.05/07/08), 982 So.2d 353, writ denied, 2008-1343 (La.03/06/09), 3 So.3d 480.

The standard of appellate review for a sufficiency of the evidence claim 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 v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. 11flart. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gamer, 45,474 (La.App.2d Cir.08/18/10), 47 So.3d 584.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

This includes the testimony of accomplices. An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; these inducements weigh on the witness’s credibility. State v. Jetton, 32,893 (La.App.2d Cir.04/05/00), 756 So.2d 1206, writ denied, 2000-1568 (La.03/16/01), 787 So.2d 299. The credibility of an accomplice’s testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that Indiscretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Here, the state presented ample evidence, some in the way of defendant’s own statements to police, that: he and Keithrie Marshall had an altercation on August 8, 2008; defendant was angry about the altercation; and, he had communicated this anger to some and perhaps all of the individuals that went with him to Springhill Street in the early morning hours of August 9, 2008. He also communicated his desire to scare Marshall by shooting up his car. After he stopped at Shakeya’s house to pick up defendant’s cellphone charger, multiple witnesses testified that the defendant pointed out the vehicle at which the participants were to shoot. The defendant and his acquaintances then drove by 643 Springhill Street where Donte Gilbert was sitting with Keithrie Marshall, Kentrell Turner and Jerry Bryant. As they passed, the occupants of the vehicles, including the defendant, fired a barrage of bullets, one of which struck Donte Gilbert and ultimately caused his death.

In claiming that there was a lack of evidence that he had recruited anyone to participate in the shooting, Brooks misrepresents the record. He characterizes Roberson’s testimony as affirmatively declaring that defendant made no mention of his altercation with Marshall before the shooting. Similarly, he states that Mosley testified that the “only people” the defendant talked to about the altercation were the four individuals riding with him in the black Equinox. A reading of the testimony, however, does not support defendant’s representation. Roberson testified that he did not hear defendant say anything, but noted that he had not remained with the group while they were at McDonald’s. Mosley testified that he did not recall defendant telling anyone other than the aforementioned group, but that he too had split from the group while in the McDonald’s parking lot. Finally, while Brooks testified at trial that he had no recollection of saying anything to anyone, the jury had already heard his taped statement with police in which he admitted telling his friends that Marshall had threatened his life and that he asked them to go with him so they could find Marshall.

112Likewise, Brooks points to various discrepancies in the different witnesses’ testimony as to what he said just prior to the shooting. Brooks maintains that his trial testimony reflected that he said nothing and merely fired his gun as a reaction to hearing a shot. Even if Brooks’ own admission to police that he told his friends and at least one individual (Clark) in a following vehicle to shoot is disregarded, the discrepancies in the other witnesses’ testimony were not irreconcilably inconsistent. As noted earlier, the fact that some witnesses did not hear the defendant say certain things is not the equivalent of proof that he did not say them. The discrepancies only indicate that 11 individuals spread throughout four different vehicles did not hear with accuracy what the defendant said to them as he walked back to the vehicle from Shakeya’s house.

The record contains more than sufficient evidence to support the conviction of second degree murder, particularly when viewed in the light most favorable to the state as required by the Jackson standard. This assignment is therefore without merit.

Evidence of Other Crimes

In his second assignment of error, Brooks argues that the trial court erred in permitting the introduction of “404(B)” evidence that was not relevant to the crime for which he was on trial, had little if any probative value and was prejudicial to him. Specifically, Brooks argues that the trial court erred in allowing the state to present evidence of his alleged involvement in the shooting(s) that took place elsewhere after the Springhill Street drive-by shooting. Defendant argues that the evidence had limited probative value which was greatly outweighed by its prejudicial effect. We disagree.

Louisiana C.E. art. 404(B)(1) regarding the introduction of evidence of a defendant’s other crimes, wrongs, or acts provides:

(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 |1sthat 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 purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, ie., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App.2d Cir.04/19/06), 929 So.2d 789. Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.05/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024 (La.1979.)

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 1993-2003 (La.05/22/95), 655 So.2d 1326, cert, denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State' v. Caston, 43,565 (La.App.2d Cir.09/24/08), 996 So.2d 480; State v. Cooks, 36,613 (La.App.2d Cir.12/04/02), 833 So.2d 1034.

For evidence of other crimes to be admissible, the state must: 1) prove with clear and convincing evidence that the other acts or crimes occurred |Mand were committed by the defendant; 2) demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404(B)(1), i.e., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident; and, 3) show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, 625 So.2d at 149.

The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Roberson, supra. Harmless error analysis begins with the premise that the evidence is otherwise suf-fícient to sustain the conviction if viewed from the perspective of a rational factfin-der and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Haddad, 1999-1272 (La.02/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

Here, the state showed by clear and convincing evidence that Brooks committed the proffered acts. Furthermore, part of Brooks’ trial strategy was to establish his minimal or nonexistent familiarity with the majority of the alleged participants in the shooting at Springhill Street. Brooks also testified at trial, as he had in his initial statement to police, that he thought he had been fired upon as he was returning to Roberson’s car. Accordingly, the evidence that the men were fired upon later in the evening and that those shots struck Norman Frazier’s vehicle, the only vehicle with any bullet damage, was relevant to rebutting the defense that the occupants of the porch at 643 Springhill Street had initiated the shooting. By explaining that the only gunfire damage to the subject vehicles had come from an incident unrelated to the shooting on Springhill Street, the state eliminated the only possible physical evidence which might have supported Brooks’ claim.

The relevance and probative value is not quite as clear regarding the evidence that Brooks and others in the various vehicles returned fire. The state argues that the evidence tends to show, contrary to the defendant’s claim, that he was acting in concert with the occupants of the other vehicles [1ñdespite their loose affiliation. While the evidence that he remained with the individuals after they had, without solicitation, spontaneously shot up a house while “following” him, showed a closer affiliation than Brooks admitted to on the stand, the evidence of his returning fire in the subsequent incident tended to show that the participants’ actions were not planned and were merely a reaction to being fired upon. The evidence did not tend to rebut Brooks’ theory of the case. If anything, it corroborated his allegation that when fired upon his impulse was to shoot back.

This error was, however, harmless. The evidence against Brooks has been discussed herein. Brooks admitted to all the necessary elements of second degree murder in his statement to police. The evidence was corroborated by the testimony of three of the co-conspirators and by physical evidence adduced by the police investigation. Considering the strength of this evidence against Brooks, it would be difficult to conclude that the jury verdict was attributable to the possible error of admitting Brooks’ involvement in the subsequent shootings into evidence. We conclude that this assignment is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Broderick Jerome Brooks Jr. are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Timothy Lee BJORNSON, Plaintiff-Appellee v. Dinah Gail COWAN, et al., Defendant-Appellant.
    No. 45,927-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Gary D. Nunn, for Appellant.
    Bobby L. Culpepper, Jonesboro, LA, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   WILLIAMS, J.

|2The defendant, Dinah Cowan, appeals a judgment in favor of the plaintiff, Timothy Bjornson. The trial court found that defendant breached her contract to sell land with a dock and awarded $7,920 in damages to the plaintiff. For the following reasons, we amend and affirm as amended.

FACTS

In June 2007, Timothy Bjornson purchased a residential lot on Caney Lake in Jackson Parish from the seller, Dinah Co-wan. The property was advertised as having a dock extending into the lake. Cowan had bought the parcel from Travis Young, who had also sold the adjacent lot to Melba Murphy. Young had built the dock in 1996 and Cowan bought the property in 2006 with the belief that the dock was located on her parcel. The evidence showed that before Bjornson bought the land, the property line between the adjacent tracts had been marked by two “T-posts,” which had been removed by Co-wan’s boyfriend, George Wierzbicki.

In November 2007, the adjacent landowner, Murphy, hired a surveyor, Walter Kirkland, to mark the boundary line between the parcels. Kirkland’s survey crew located and marked the property line, which demonstrated that the dock was situated on Murphy’s tract. After learning that the dock was not located on his property, Bjornson tried to contact Cowan and spoke with Wierzbicki, who initially indicated that Cowan would correct the problem. However, Cowan did not take any action.

Subsequently, the plaintiff, Bjornson, filed a petition for damages against the defendants, Cowan and her real estate agents, Sharon Ouchley and Coldwell Banker Group One Realty (“Coldwell Banker”). The plaintiff alleged that the defendants had breached the parties’ contract by selling him property which did not contain a dock as represented by Cowan. The plaintiff later dismissed Ouchley and Coldwell Banker from the lawsuit in return for a $3,000 settlement payment. At trial, the plaintiff testified that the dock was L-shaped, with a walkway 46 feet long and six feet wide, attached to an area that measured ten feet by twelve feet on the left side. Regarding the cost of building a dock, the trial court excluded the testimony of Eric Ortego, the owner of a dock-building business, because he was not named in the original pretrial order. However, after trial the parties [ ^stipulated that the court should have admitted into evidence Ortego’s testimony that building a new dock would cost $15 per square foot.

After hearing the evidence, the trial court issued written reasons finding that Cowan was liable because the property sold did not include the dock as represented to the plaintiff. Because plaintiff had not sought to rescind the sale, the court found that a reasonable measure of damages would be reducing the purchase price by the cost of building a new dock. The trial court determined, based on its stated experience with the cost of home construction, that a price of $20 per square foot was a reasonable estimate for the cost of building a new dock that was the same size as the existing dock. The court rendered judgment awarding the plaintiff damages of $7,920, denying his claim for attorney fees and denying the defendant’s claim for a setoff. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in finding that she is liable to the plaintiff for the cost of building a dock on the tract of land sold to plaintiff. Defendant argues that the plaintiff failed to prove that the parties’ contract for the sale of land was breached because the property did not contain a dock.

When the thing delivered by the seller, though in itself free from redhibi-tory defects, is not of the kind or quality represented by the seller, the buyer’s rights are governed by other rules of sale and conventional obligations. LSA-C.C. art. 2529; Swoboda v. SMT Properties, L.L.C., 42,746 (La.App.2d Cir.1/30/08), 975 So.2d 691. A trial court’s factual findings will not be reversed unless clearly wrong. A reviewing court does not decide whether the factfinder was correct, but whether its findings were reasonable based upon the record as a whole. Stobart v. State DOTD, 617 So.2d 880 (La.1993).

In the present case, Walter Kirkland was accepted as an expert land surveyor. Kirkland testified that he had done surveying work in the area at issue in 1983, when the property lines were established. Kirkland stated that he was hired by Melba Murphy in November 2007 to mark the property line between her tract and that of the plaintiff. Kirkland testified that at his instruction, the survey crew located the existing monuments in the field and | ¿placed a 3/4-inch iron rod at the intersection of Murphy’s property line and the shoreline of the lake. Kirkland stated the survey demonstrated that the dock was not located on the plaintiffs property, but had been built on land now owned by Murphy. Referring to a plat prepared in 2002, Kirkland explained that the property line ran west from the shoreline and that the dock was located on Murphy’s tract north of the property line.

Melba Murphy testified that she owned the tract of land adjacent to plaintiffs property. Murphy stated that the tract she bought from Travis Young in 2002 did not include the land between her property line and the shoreline, so she bought that land from a bank. According to Murphy, Young had told her that the bank would not care if she used that land, but she wanted to own the waterfront property. Murphy testified that after Cowan bought the adjacent tract, some T-posts marking the property line were removed. Murphy stated that before the sale she had told Cowan’s real estate agent that part of the property being sold did not belong to Co-wan. Murphy testified that after the sale, she hired Kirkland to locate and mark the property line between the tracts.

Sharon Ouchley testified that she was the real estate agent who represented Co-wan in the sale of the property. Ouchley stated that she believed the dock was located on the Cowan tract as represented in the property listing and advertisements. Ouchley acknowledged that prior to the sale she went to the property, and met with Murphy, who said that the Cowan tract did not extend to the water and that the property did not include the dock. Ouchley testified that she had not told Cowan about Murphy’s statement concerning the dock because Murphy had not been able to find a marker showing that the property line extended past the dock.

The plaintiff, Tim Bjornson, testified that he bought the property from Cowan in June 2007. The plaintiff stated that the property was listed as including a dock and that Coldwell Banker’s website displayed photographs of the property with the dock in view. He testified that obtaining the dock was one of his reasons for buying the property. Plaintiff stated that he learned there was a problem regarding the dock when he saw two members of Kirkland’s survey crew on the property. They had placed a stake in the ground at the right hand (east) corner of the dock to mark the property line, [,vindicating that the dock was not located on plaintiffs tract. Plaintiff stated that he contacted Cowan and George to resolve the problem, but eventually Cowan said she was not going to do anything. Plaintiff testified that he took measurements of the L-shaped dock, which included a walkway 46 feet long and six feet wide, with a deck on the left side that was 12 feet long and 10 feet wide. Plaintiff acknowledged that he did not obtain a survey or inquire about the location of the property lines before buying the parcel.

The defendant, Dinah Cowan, acknowledged that the realtor’s listing and advertisements had represented that the property included a dock. The defendant stated that she had used the same information and photographs concerning the dock as were shown to her when she bought the property from Young in 2006. Defendant testified that at the time of the sale, she believed the property conveyed to plaintiff included the dock. Defendant stated that she had not obtained a survey while she owned the property, but had relied on Young’s description of the property line location and his statement that the dock was part of the property. Defendant testified that no one told her before the sale that the dock was not located on the property conveyed to plaintiff.

In her appellate brief, the defendant argues that the record does not support a finding that she is liable for damages because plaintiff obtained an apparent servitude over the dock and alternatively, because the survey was faulty and plaintiff has actual use of the dock. An apparent servitude may be acquired by uninterrupted possession of the right for ten years in good faith. LSA-C.C. art. 742. However, we note that any such claim would be properly asserted by plaintiff as the landowner, not by defendant. Further, the record does not show that Young possessed the property on which the dock was built in good faith, given the testimony indicating that Young was aware he had built the dock on land between his property and the shoreline that was owned by another person.

Regarding the survey, there was no showing that Kirkland’s survey crew had improperly marked the plaintiffs property line. To the contrary, the 2007 survey was consistent with a 2002 plat of the area prepared by Kirkland showing the property lines of the adjacent tracts.

|fiThe evidence presented demonstrates that the defendant represented to the plaintiff through the property listing and accompanying photos that the tract of land contained a physical dock, not merely the use of a dock. However, the 2007 survey showed that the dock was not actually located on the property bought by plaintiff. Thus, the record supports the trial court’s finding that the defendant was liable for damages because the property conveyed to the plaintiff was not of the kind or quality represented by the defendant. The assignment of error lacks merit.

Damages

The defendant contends the trial court erred in awarding the amount of $7,920 in damages. Defendant argues that the award is not supported by the record because the court based the value of the dock on the court’s own experience and not on the evidence produced at trial.

Damages are measured by the loss sustained by the obligee and any profit of which he was deprived. LSA-C.C. art.1995. A judicially noticed adjudicative fact must be one not subject to reasonable dispute in that it is generally known within the territorial jurisdiction of the trial court, or capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned. LSA-C.E. art. 201. Courts can only take judicial notice of a fact that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Neal v. Players Lake Charles, LLC, 01-0244 (La.App. 3rd Cir.6/6/01), 787 So.2d 1213; Walker v. Halliburton Services, Inc., 93-722 (La.App. 3rd Cir.3/1/95), 654 So.2d 365.

In his appellate brief, plaintiff contends the trial court was entitled to take judicial notice of the price per square foot of building a new dock. However, the plaintiff failed to show that the price for construction of a dock was not subject to reasonable dispute or was part of the common knowledge of every person of ordinary understanding. The court speculated that $20 per square foot was a reasonable price based on the court’s own information and there was no evidence such a fact was common knowledge. Thus, contrary to plaintiffs contention, the trial court could not properly take judicial notice of the square-foot price for dock construction.

17Regarding the evidence presented with respect to calculation of the damage award, the trial testimony showed that the dock, which plaintiff thought was included with the property he bought, was approximately eleven years old at the time of the sale. In addition, as a result of the parties’ stipulation, the record contains Orte-go’s testimony that building a dock on plaintiffs property would cost $4,140. After reviewing the record and considering the age of the dock, we conclude that the price quoted by Ortego is the amount of damages reasonably supported by the evidence that would compensate plaintiff for the value of the dock that he did not receive when he purchased the property. Consequently, we shall amend the judgment to reduce the damage award to the amount of $4,140.

The defendant also contends the trial court erred in failing to reduce the damage award by the amount received by the plaintiff in return for dismissing the other defendants from the lawsuit. LSA-C.E. art. 413 provides that an amount paid in settlement shall not be admitted into evidence unless the failure to make a settlement is an issue in the case.

In the present case, Cowan did not explain how the court’s exclusion from evidence of the amount paid to plaintiff in settlement of his claims against other defendants prevented a fair trial for Cowan. Additionally, whether or not a settlement payment was made was not an issue in this case. Thus, we cannot say the trial court erred in refusing to reduce the damage award by the amount of the settlement payment received by plaintiff. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to reduce the plaintiff’s damage award to the amount of $4,140. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to the appellant, Dinah Cowan.

AMENDED AND AFFIRMED AS AMENDED.


text:
    Ellen T. VAN and Ralph E. Van, Plaintiffs-Appellants v. Steven FERRELL and Safeway Insurance Company, Defendants-Appellees.
    No. 45,977-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.
    Rankin, Yeldell, Katz & Lowery by: Alex W. Rankin, Scotty W. Lowery, for Appellants.
    Borne & Wilkes by, Lafayette, LA : Keith M. Borne for Appellees, Ellen Van and Ralph Van.
    Tracy L. Oakley, Ruston, LA, for Appel-lee, Safeway Insurance Comp.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

12Ellen and Ralph Van appeal the judgment of the 4th Judicial District Court, Parish of Morehouse, State of Louisiana, granting the motion for summary judgment by Safeway Insurance Company of Louisiana. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

Facts

On April 26, 2002, Ellen Van was operating her vehicle on McReight Street in Bas-trop, Louisiana. April Canada, a minor, was driving a 1998 Ford Ranger truck owned by Steven Ferrell. As April approached the intersection of Ross and McReight Streets, the Vans allege that she failed to stop and/or yield at the intersection, which was controlled by a stop sign. April collided with Van’s vehicle as she was also going through the intersection. Ellen and her husband, Ralph, claim that the collision caused Ellen to suffer personal injuries, including injuries to her back and other parts of her body.

Ellen and Ralph filed suit against Ferrell and his insurer, Safeway Insurance Company of Louisiana (“Safeway”). Safeway answered the petition and asserted the affirmative defense of nonpermissive use by the driver, April. After a period of discovery in which the depositions of April, her mother Tracy Canada Ferrell, and Ferrell were taken, Safeway filed its motion for summary judgment, re-asserting its defense of nonpermissive use by April. After a hearing on the matter, a judgment was rendered in favor of Safeway. This appeal by the Vans ensued.

Discussion

On appeal, the Vans maintain that the trial court erred in granting Safeway’s motion for summary judgment by finding an absence of any genuine issue of material fact sufficient to overcome a motion for summary judgment. The Vans submit that there exists a genuine issue of material fact over the issue of April’s permission to drive Ferrell’s truck, and the trial court incorrectly made a credibility determination as to whether she had permission to drive the truck. We agree.

1SA motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880. Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hill v. Shelter Mut. Ins. Co., 2005-1783 (La.07/10/06), 935 So.2d 691. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The interpretation of an insurance contract is usually a legal question that can be properly resolved by motion for summary judgment. Henry v. South Louisiana Sugars Co-op. Inc., 2006-2764 (La.05/22/07), 957 So.2d 1275; Walker ex rel. Walker v. State Farm Mut. Auto. Ins. Co., 42,051 (La.App.2d Cir.04/04/07), 954 So.2d 847.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 2004-0806 (La.06/25/04), 876 So.2d 764; Khan v. Richey, 40,805 (La.App.2d Cir.04/19/06), 927 So.2d 1267, writ denied, 2006-1425 (La.11/03/06), 940 So.2d 662. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

All motor vehicle liability insurance policies are required to include an omnibus clause which extends coverage to the person named therein and to any other person using such motor vehicle with the express or implied permission of the named insured. La. R.S. 32:900(B). Permission can be express or implied. Manzella v. Doe, 1994-2854 (La.12/08/95), 664 So.2d 398. Once permission, either express or implied, is granted by the insured to use the vehicle, any subsequent changes in the character of the use do not require additional specific consent of the insured. Thereafter, coverage will be denied only if the deviation from permissive use amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the |4vehicle. Wells v. Kemper Cas. Ins. Co., 35,304 (La.App.2d Cir.12/28/01), 803 So.2d 450, writ denied, 2002-0271 (La.03/28/02), 812 So.2d 634.

Here, based on the consistent testimony of April, Tracy and Ferrell, it is apparent that April did not have express permission to drive his truck on the date in question. Thus, the question before us is whether there is a genuine issue of material fact that April had implied permission to drive the truck into Bastrop, where she was involved in the collision at issue. Implied permission arises when the named insured acquiesces in or does not object to the use of the vehicle. Manzella, supra.

In this particular case, summary judgment was inappropriate because of the inconsistent deposition testimony of the parties regarding the most material issue of fact in this litigation, i.e., whether April had permission to drive the insured vehicle. Resolution of an issue depending on credibility determinations and the weighing of evidence is within the province of the factfinder and are appropriate for a trial on the merits, but are inappropriate for deciding a motion for summary judgment. See Harris v. Dunn, 45,619 (La. App.2d Cir.09/22/10), 48 So.3d 367. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Property Ins. Ass’n of Louisiana v. TheHot, 2009-1152 (La.03/16/10), 31 So.3d 1012,1014.

As stated, all of the considered deposition testimony was consistent that April had not been given express permission to take Ferrell’s truck to work the day of the accident. However, considering the deposition testimony of Ferrell, Tracy and April, it is inconclusive whether April did or did not have implied permission to drive Ferrell’s truck. Ferrell related that April did not have his express permission to drive the truck to work that day. Although Ferrell stated that she had never taken the truck to work before, he admitted that the truck was at the house, as were the keys to the truck. Furthermore, Ferrell had never told April explicitly she could not drive the truck.

Tracy’s deposition testimony agreed with Ferrell’s in that April did not have explicit permission to drive to work that day. However, she did note that April had driven the truck unaccompanied on occasion. Seeming [5to contradict herself on this point, Tracy also claimed that April mostly drove only with Tracy or with a friend who was a licensed driver.

April’s testimony was perhaps the most telling. At the time of the accident, April did not have a driver’s license, but was driving with a learner’s permit, which required that she drive only in the presence of a licenced driver. Notably, April recounted a previous collision she had while driving alone with only her learner’s permit. She explained that at the time of that collision, her mother had sent her to the grocery store driving Tracy’s car alone. Regarding Ferrell’s truck, according to April, she had driven it “a hundred” times on the gravel roads around the house where she lived with Ferrell and Tracy, with their permission. Moreover, she indicated that Tracy and Ferrell had left the house, but knew she had to report to work as she regularly did. April confirmed Ferrell’s testimony, that she had never been told explicitly not to take the truck into town, and she believed that since the truck was available, and they knew she had to work, she had permission to take it into town.

Here, had the deposition testimony been unequivocal, summary judgment in favor of Safeway on the issue of permission would have been appropriate. But considering the discrepant testimony of the parties, a credibility call had to be made by the trial court in order to rule in favor of Safeway in its motion for summary judgment. Such a credibility call was improper on a motion for summary judgment and, on the particular facts of this case, we conclude that the granting of Safewa/s motion for summary judgment was in error.

Conclusion

Considering the foregoing, we reverse the judgment of the trial court granting the motion for summary judgment in favor of Safeway Insurance Company of Louisiana. All costs of these proceedings are assessed to Safeway and this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . April lived in Ferrell’s home with him and her mother, Tracy Canada. Ferrell and Tracy subsequently married.


author: DREW, J.

text:
    Bobby WILLIAMS, Plaintiff-Appellee v. Joe PIKE, Defendant-Appellant. Bobby Williams, Plaintiff-Appellee v. Sherman Henderson, Defendant-Appellant.
    Nos. 46,013-CA, 46,014-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Ronald P. Camp, West Monroe, LA, for Appellants.
    Michael G. Johnston, for Appellees.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

|2On March 4, 2010, Bobby Williams purchased a car owned by Joe Pike, owner of Justice Wrecker, for $3000. The car had been located at Sherman Henderson’s auto repair business. Henderson actually negotiated the sale, received the money, and gave Williams two receipts.

Williams drove the car to his daughter, a student in Memphis, Tennessee. Three days after the sale, the vehicle began to emit smoke and fire from under the hood. Williams extinguished the blaze and contacted Henderson via telephone and text messages to inform him of the events. The next day, March 8, 2010, Williams’ daughter had the vehicle towed at her expense to her apartment parking lot, from which it was stolen about a month later.

Williams sued Pike on March 11, 2010, one week after the sale. He sued Henderson by separate petition on March 19, 2010. The trial court consolidated the actions and trial was held May 25, 2010.

The trial court ruled that since Williams could not return the vehicle, his relief was limited to a reduction in the purchase price. The car clearly had vices and defects at the time of the sale and caught on fire within 72 hours of the sale. One of the defendants testified the salvage value of the vehicle was $500. The purchase price was $3,000. The trial court awarded the plaintiff a $2,000 reduction in the purchase price. The trial court stated that had Williams returned the vehicle to the seller, it would have awarded him the entire $3,000 purchase price. Costs in the first suit were assessed against Pike; costs in the other suit were assessed against Henderson. After denial of their motion for new trial, defendants filed a Motion and Order for Suspensive Appeal on June 14, 2010.

We affirm in all respects.

The defendants argue that:

They should have been afforded an opportunity to fix the car. Because Williams did not do so, he should not be entitled to recover.

Since neither defendant is a car dealer, the basic law of redhibition applies. Defendants rely upon La. C.C. art. 2522.

^Williams responds that formal notice is not required when a seller has actual knowledge of the existence of a redhibitory defect in the thing sold.

Defendants acknowledge that Williams gave immediate notice of the defect to Henderson, but argue that he failed to provide the location of the car, thus denying them the opportunity to make repairs.

Pike, the owner of Justice Wrecker Service, obtained a permit to sell the car issued by the state. That permit shows Justice Wrecker to be the owner, not Henderson. The car was displayed for sale at Henderson’s business and Henderson facilitated the sale, though he argues his lack of ownership and Williams’ failure to enter appropriate pleadings against him should protect him from a judgment grounded in redhibition.

Finally, the defendants state that Williams did not prove the amount to which he was entitled as to a reduced price. The allege that this “small fire” should not have entitled Williams to a $2,000 reduction in the price.

Williams responds that the judgment should be affirmed because the car purchased from Pike did not serve the purpose for which it was intended. Plaintiff provided notice to both defendants because Henderson was acting as agent for Pike. Assuming, arguendo, that there was lack of notice, this defect could only prevent Williams from rescinding the sale and recovering the full purchase price.

Henderson’s agency relationship properly puts him in court as a defendant. Henderson negotiated and completed the sale to Williams and did not make abundantly clear to Williams that Henderson was acting for Pike. Williams testified at the time of purchase he was unaware of Pike, while Henderson testified he mentioned Pike to Williams at the time of sale. In Williams’ view, he had a cause of action against Henderson for breach of the implied warranty of the vehicle, since Henderson held himself out as owner of the car and did not disclose to Williams this mandate relationship with Pike.

Factors in calculating the reduction in purchase price include loss of use of the car, inconvenience caused by the seller’s failure to correct the defect, and amount of payments made. Here, Williams paid $3,000 for a car | ¿which he used only three days. His daughter had to pay to have the car towed and had to travel to Louisiana for the trial. The $2,000 award was appropriate and within the trial court’s great discretion. We cannot improve upon the trial court’s decision here.

Accordingly, we affirm the ruling of the trial court, including its assessment of costs against the defendants.

DECREE

At the defendants’ cost, the judgment is AFFIRMED.

      . La. C.C. art. 2522. The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold. That notice must be sufficiently timely as to allow the seller the opportunity to make the required repairs. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that the repairs would have been less burdensome, had he received timely notice.


author: STEWART, J.

text:
    Wayne M. KAIRDOLF, Jr., Plaintiff-Appellant v. Krista KAIRDOLF, nee Guice, Defendant-Appellee.
    No. 46,035-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Loomis & Dement, Monroe by Albert E. Loomis, III, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

| gPlaintiff'-Appellant, Wayne M. Kair-dolf, Jr. (“Wayne”), is appealing a trial court judgment finding him to be voluntarily underemployed. The trial court also found him to be in contempt of court and determined that Defendant-Appellee, Krista Kairdolf (“Krista”), was not voluntarily underemployed. For the reasons stated herein, we affirm.

FACTS

Wayne and Krista were married on December 29, 2001. Two children were born of the marriage. Wayne and Krista physically separated on or about March 17, 2009, and received their judgment of divorce on July 26, 2010. The parties share joint custody of their two children, with Krista designated as the domiciliary parent.

On July 6, 2009, a hearing officer’s conference was held. The hearing officer’s conference report ordered Wayne to pay child support in the amount of $1,400.00 per month, effective April 9, 2009, and payable in two equal installments due on the 15th and 30th of each month. In lieu of paying Krista directly, she also recommended that Wayne continue to pay the mortgage note on the former matrimonial domicile until such time as it sells. The hearing officer also recommended that Wayne pay interim spousal support of $1,000.00 per month, retroactive to the date of the judicial demand, April 9, 2009, and payable in two equal installments due on the 15th and 30th of each month.

On July 27, 2009, the trial judge issued an interim order adopting and implementing the hearing officer’s recommendations.

|sOn August 25, 2009, Wayne lost his job with Fail Telecommunications Corporation (“Fail”), where he was earning $6,666.00 per month. A couple of weeks later, he became employed at Deep South Communications, earning $2,916.00 per month. On September 21, 2009, Wayne filed a motion and rule to suspend and/or terminate spousal support, asserting that he had lost his job at Fail due to no fault of his own. He also asserted that Krista was gainfully employed and requested that his previously fixed child and spousal support payments be suspended and/or reduced and/or terminated due to him losing his job.

On November 13, 2009, Krista filed a rule for contempt and motion for income assignment. In this pleading, she requested that Wayne be held in contempt of court for violating the interim order that provided for the payment of support. Krista also requested back due spousal support judgments with interest, attorney fees, and court cost.

On December 1, 2009, another hearing officer conference was held. The hearing officer found that Wayne was voluntarily underemployed. The hearing officer also found that the appropriate income to be considered for child support purposes would continue to be $6,666.67. Wayne was ordered to pay child support in the amount of $1,490.00 per month effective September 21, 2009, payable in two equal installments due on the 15th and 30th days of each calendar month. Krista’s spousal support was terminated effective September 21, 2009. Child support arrears were fixed at $3,110.00 and spousal support arrears were fixed at $1,667.00. Wayne was found in contempt of court and given 60 days to make his support payments current. The hearing officer also ordered an immediate income assignment.

Wayne and Krista filed objections to the hearing officer’s recommendations. On March 26, 2010, the matter came for hearing before the trial court. The trial court determined that the hearing officer did not err in determining that Wayne was voluntarily underemployed, and that his child support obligation should be based on an average monthly income of $6,666.67. The trial court also determined that the hearing officer correctly fixed arrearages for child support at $3,110.00 and for spousal support at $1,667.00, totaling $4,777.00.

|4Wayne now appeals, asserting five assignments of error.

LAW AND DISCUSSION

Wayne Kairdolfs Voluntary Underemployment/Termination from Fail

In his first assignment of error, Wayne asserts that the trial court erred in determining that he was voluntarily underemployed as a result of his fault or neglect. Wayne contends in his second assignment of error that the trial court erred in determining that there was direct and circumstantial evidence justifying a finding of voluntary underemployment. Due to the fact that these two assignments both relate to Wayne’s termination at Fail and his subsequent alleged voluntary underemployment, we will discuss them together.

Wayne lost his job with Fail on August 25, 2009, where he was earning $6,666.00 per month. Even though Wayne has the proper training and experience in computer engineering, he is currently earning $2,916.00 per month, which is less than one-half of his previous salary. Based on these facts, we can easily ascertain that Wayne is underemployed. We must now address the issue of whether he is voluntarily underemployed.

La. R.S. 9:315(C)(5)(b) provides:

(b.) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.

La. R.S. 9:315.11(A) provides:

A. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey.

Income includes potential income, if a party is voluntarily unemployed or underemployed. La. 9:R.S. 315(C)(5)(b); State v. James 45,955 (La.App. 2 Cir. 1/26/11), 57 So.3d 447.

Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in | ^circumstances results from fortuitous events or other circumstances beyond a person’s control, such as loss of one’s position or illness. A voluntary change in circumstances generally does not justify a reduction in the support obligation. Jones v. Jones, 44,201 (La.App. 2 Cir. 4/8/09), 6 So.3d 1275; Strange v. Strange, 42,318 (La.App. 2 Cir. 6/20/07), 960 So.2d 1223. Voluntary underemployment is a question of good faith of the obligor spouse. Fuqua v. Fuqua, 45,555 (La.App. 2 Cir. 9/22/10), 47 So.3d 1121; Durfee v. Durfee, 44,281 (La.App. 2 Cir. 5/13/09), 12 So.3d 984.

A determination by the trial court of whether the spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the wide discretion of the trial court. Durfee, supra.; Fuqua, supra. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taken as a whole, such proof shows that the fact sought to be proved is more probable than not. Wimberly v. Giglio, 46,000 (La.App. 2 Cir. 1/26/11), 57 So.3d 389.

Wayne believes that the record is absent of any evidence demonstrating that he was terminated from Fail because of pending criminal charges. Further, he believes that the evidence supports the conclusion that he was released from Fail because the corporation was transitioning from microwave transmission to fiber optic transmission, which was an area in which he had no expertise. In support of this assertion, Wayne argues that Floyd Richard Bennett, the “number two man” at Fail, testified that the company was transitioning from microwave transmission to fiber optic transmission. Even though Bennett testified that Wayne did not do anything to cause himself to be fired, he was not aware at the time Wayne’s firing that he had been arrested and was under indictment for embezzlement.

Bennett did testify that Fail was currently transitioning into fiber optic transmission. However, the microwave transmission program was not “scraped” as Wayne alleged. Fail was still using microwave technology more than six months after Wayne was fired from the company. In fact, Bennett testified that Fail is receiving the same services that Wayne | (¡provided during his employment with Fail from an outside vendor. These facts provide a strong indication that Wayne was relieved of his duties at Fail for reasons other than the fact that the company was transitioning from microwave transmission into fiber optic transmission.

Prior to his employment at Fail, Wayne was employed at SkyWriter Communications (“SkyWriter”). Brad Warden, the owner and operator of SkyWriter, testified that Wayne was employed at SkyWriter as the Vice President of Operations for approximately three years with a salary of approximately $65,000.00, plus benefits. Warden further testified that Wayne admitted to him, about 30 to 60 days prior to his termination, that “he had a drug problem and needed to go to rehab.”

After Wayne left SkyWriter to enter the rehabilitation program, Warden conducted an internal investigation at SkyWriter. He testified that he discovered that Wayne had been making fictitious purchases on behalf of SkyWriter from a company called “On the Spot,” when Wayne was actually receiving the proceeds. He also stated he discovered that some of Skywriter’s products were being sold and that Wayne was receiving the proceeds. Brad further testified that Wayne provided him with a list of personal items that he had used company funds to purchase. Brad turned the results of his investigation over to the Ouachita Parish Sheriffs Office. As a result of the sheriffs office investigation, the Ouachita Parish District Attorney’s office filed formal charges. Wayne is currently charged with felony theft of approximately $280,000.00. At the time' of trial, Brad testified that Wayne had not made any attempt to reimburse him for these unauthorized expenses.

Brad further testified that Fail was a customer of Skywriter at the .time that Wayne was employed with Skywriter. When Brad discovered that Wayne was working for Fail, he urged a Fail representative to conduct a background check on Wayne.

After reviewing the record before us, we can clearly determine that the trial court was presented with sufficient evidence to reasonably determine that Wayne was voluntarily underemployed as a result of his fault or neglect. As a result, the trial court correctly considered his potential income in determining his child support obligation. Further, the trial court 17had sufficient evidence to calculate Wayne’s potential income, since it had evidence of Wayne’s salary from Fail, the testimony regarding Wayne’s earnings and benefits with SkyWriter, and Wayne’s resume. For these reasons, assignments of error one and two are without merit.

Contempt of Court

In the third assignment of error, Wayne argues that the trial court erred in holding him in contempt of court and assessing attorney’s fees against him. The trial court ruled:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff, WAYNE MICHAEL KAIRDOLF, JR., having been found to be in contempt of court, is hereby sentenced to ninety (90) days in the Ouachita Parish jail, consecutive to any other offense, which contempt may be purged by plaintiff, WAYNE MICHAEL KAIRDOLF, JR., paying in full any and all child support and spousal support arrearages within sixty (60) days from the date of this Ruling.

Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, it is necessary to find the con-temnor violated the order of court intentionally, knowingly, and purposely, without justifiable excuse. Arrington v. Arrington, 41,012 (LaApp. 2 Cir. 4/26/06), 930 So.2d 1068.

The support obligation imposed on a mother and father of minor children by La. C.C. art. 227 is firmly entrenched in our law and is a matter of public policy. Brown v. Taylor, 31,352 (La-App. 2 Cir. 2/26/99), 728 So.2d 1058; State v. Reed, 26,896 (LaApp. 2 Cir. 6/21/95), 658 So.2d 774. Neither equity nor practical inability to pay overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Id

While the enforcement of the personal obligation to pay child support can be pursued through ordinary civil remedies by the parent to whom the obligation is owed, the law also expressly provides that “disobeying an order for the payment of child support is a specific ground for which a court may hold a delinquent party in contempt of court”. La. R.S. 13:4611(l)(d). In such delinquent child support settings, the court must determine that disobedience to the court’s order for support is willful or a deliberate refusal |Rby the parent to perform an act which was within the power of the parent to perform. See, La. C.C. art. 224(2) and La. R.S. 13:4611(l)(c).

The general rule regarding the failure to pay child support which results from an obligor’s financial inability to pay was addressed by this court in Fontana v. Fontana, 426 So.2d 351(La.App. 2 Cir. 1983):

As a general rule, failure to pay alimony and child support resulting from the ob-ligor’s financial inability to pay ... cannot support a contempt charge.

This court made clear in Fontana, supra, that by examination of certain financial and other factors, such as, (1) the capacity of the parent for gainful employment immediately prior to the start of the contempt proceedings, (2) the living conditions and financial circumstances of the parent despite his unemployment, (3) the efforts to pay the delinquent alimony, and (4) proceedings to reduce or terminate the award based upon a change in the circumstances, the trial court can hold the parent in contempt.

The trial court noted in its ruling: [Wayne] has failed to pay child support and spousal support in accordance with previous orders of this Court. He has, however, been successful in retaining the services of two of the most respected attorneys in the fields of family and criminal law. Although the Court recognized that [Wayne] is facing serious legal consequences in both criminal and civil court, the Court is of the opinion that child support should take priority over all other matters with the exception of basic needs. By failing to give the Court’s child support orders the appropriate priority, [Wayne] has deliberately and willfully disobeyed the authority of the Court. He is thus in contempt of court.

Wayne chose not to pay in full “any and all child support and spousal support ar-rearages” as ordered by the trial court. Instead, he chose to pay thousands of dollars in attorney fees to fight the payment of child support instead of just paying the amount that was due. Wayne was also paying $500.00 in utilities for his rent home, a clear indication that he was paying for more than basic necessities in his home.

The trial court is vested with great discretion in determining whether a person should be held in contempt for disobeying a court order, and the decision will be reversed only when the appellate court discerns an abuse of discretion. Arring-ton, supra. We find no such abuse of discretion by the |3trial court on the contempt issue in this case. In light of the factors discussed in Fontana, supra, the trial court correctly determined that Wayne’s failure to pay child support in violation of the court’s judgment was willful and without cause. Accordingly, we affirm the trial court’s judgment finding Wayne in contempt of court.

Reduction of Child Support

In the fourth assignment, Wayne alleges that the trial court was clearly wrong in failing to award a reduction of child support from September 21, 2009, the date the motion for relief was filed.

An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. La. C.C. art. 142. The party seeking a reduction in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. C.C. art. 142; La. R.S. 9:311.

As determined in assignments of error one and two, the trial court did not err in determining that Wayne was voluntarily underemployed due to his own fault. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. Voluntary underemployment is a fact-driven consideration. Hernandez v. Hernandez, 2005-1342 (La.App. 1 Cir. 6/9/06), 938 So.2d 1019.

Accordingly, the decision to calculate Wayne’s child support obligations based on his previous employment at Fail was not erroneous.

Since the trial court correctly determined that Wayne was voluntarily underemployed, it was required to calculate his child support payment based on his income earning potential. This assignment of error is meritless.

Krista’s Voluntary Underemployment

In the fifth and final assignment of error, Wayne urges that the trial court erred in failing to find that Krista was voluntarily underemployed.

Krista is employed as a real estate agent. She testified that she has earned approximately $4,800.00 from October 2009 to March 26, 2010, which was the date that the trial took place. Since Wayne arranged for ImKrista to receive additional training as a real estate agent during the marriage, he asserts that this level of earnings suggests that Krista has failed to “maintain employment in accordance with her capabilities.” He suggests that she be assigned a greater salary because her income of $700.00 per month is ample evidence of underemployment. He also asserts that she has chosen to rely on her parents for approximately $2,100.00 per month.

The trial court noted that Krista was just establishing herself in her career and that Wayne could later bring a rule for reduction of support if Krista’s earnings increase in the future. We agree. The record supports the fact that Krista was unemployed during the marriage and had just begun her career in real estate at the time of the hearing. She has not had sufficient time to build a client base and to start reaching her earning potential. For these reasons, we affirm the trial court’s determination that Krista was not voluntarily underemployed.

CONCLUSION

For the reasons stated about, we affirm the rulings of the trial court. Costs of this appeal are assessed against the defendant, Wayne Kairdolf.

AFFIRMED.