author: WILLIAMS, J.

text:
    Kathy Denise JOHNSTON, Plaintiff-Appellant v. NOE CORPORATION L.L.C., Defendant-Appellee.
    No. 46,647-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 23, 2011.

      Jack Wright, Jr., Monroe, LA, Richard L. Fewell, Jr., for Appellants, Kathy Denise Johnston, Kacie Samantha Johnston, Bobbie Jean Johnston Hamilton.
    Brady D. King, II, William T. McNew, Monroe, LA, Jennifer H. Johnson, for Ap-pellee, NOE Corporation L.L.C.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

| plaintiff, Kathy Denise Johnston, appeals a district court’s judgment denying her motion for partial summary judgment and granting summary judgment in favor of defendant, NOE Corporation, LLC. For the following reasons, we affirm.

FACTS

The decedent, Samuel Johnston, Jr., was a legally blind employee of the Louisiana Center for the Blind in Ruston, Louisiana. He served as an apartment manager and a mentor for the students living in the school’s apartments. Gina Koons was a legally blind student attending the Louisiana Center for the Blind, and she resided in the apartments managed by the decedent. On April 23, 2007, Gina called her mother, Jeanine Koons, and told her that she had been sexually assaulted. After this telephone conversation, Jeanine drove from Mobile, Alabama to Ruston, and reported the allegations to the Ruston Police Department. Gina identified the decedent as her assailant and told the responding police officers that the decedent had sexually assaulted her by touching her genitals and breast area. Gina was transported to a local hospital for an examination.

Police officers picked the decedent up and transported him to the police department. The decedent was advised of his Miranda rights and questioned for several hours. The decedent voluntarily provided DNA samples and submitted to being photographed. He was not arrested.

At some point, Jeanine called KNOE TV-8 news to report the allegations. After speaking with Jeanine, Mike McDaniel, a reporter with |2TV-8 news, contacted the Ruston Police Department, which confirmed that the allegations had been reported and that an investigation was ongoing. McDaniel drove to Ruston and interviewed Gina and Jeanine. During the interview, Jeanine and Gina identified the decedent as the assailant. McDaniel also spoke with police officers and requested a copy of the initial police report. Lt. Curtis Hawkins provided McDaniel with a redacted copy of the report which did not include the decedent’s name; the decedent was identified only as “an employee” of the Louisiana Center for the Blind. Further, Lt. Hawkins discouraged McDaniel from reporting the allegations because the investigation was ongoing, no charges had been filed and no arrest had been made. At some point, McDaniel also contacted the Louisiana Center for the Blind to confirm the decedent’s employment. McDaniel was told that the decedent was employed there, but he had been placed on leave pending an investigation.

Thereafter, TV-8 news aired a report of the allegations on the 10:00 p.m. news; the report was aired again the following morning. The news report included the decedent’s name, information that had been obtained from the police department, and recorded statements from Gina and Jeanine. The transcript of the broadcast reads as follows:

NEWS ANCHOR: New at Ten o’clock: A Ruston man is accused of sexually assaulting a student at the Louisiana Center [for] the Blind. And the student claims this is not the first time she’s had a problem with the accused attacker. TV8’s Mike McDaniel has the exclusive story. And be | ?,advised that it includes graphic language of a sexual nature. It is not suitable for children, and some adults may find the description disturbing.
MCDANIEL: Gina Koons is legally blind and holds tightly to a stuffed lion. At 4 feet 5 inches tall, this 20 year old is a new student at the Louisiana Center for the Blind in Ruston.
Coming from Mobile, Alabama, Gina wanted to learn a life of independence, but after only a month of living in her new apartment, Gina says her sense of independence was shattered early Monday Morning.
GINA: He started rubbing up and down my leg, in between my private area and jabbing his fingers in my private area.
MCDANIEL: The ‘he’ she speaks [of] is her apartment manager, Sammy Johnson Junior, who is also legally blind. Gina says this all started when she locked her keys inside her apartment. Her roommate wasn’t home so Gina called Johnson who had master keys to each apartment.
But before Johnson arrived, Gina’s roommate came to let her in.... A few minutes later, Johnson showed up.
GINA: He came in but he did not knock nor [sic] ring the doorbell and I knew it was him because I said ‘Sammy?’ And he responded.
MCDANIEL: Once Johnson entered the apartment, Gina asked for help with an ice pack because she sprained her ankle earlier in the day.
GINA: So he told me to lay [sic] down in my bed, so he could help put some ice on my ankle.
MCDANIEL: That’s when Gina says the touching began, first her legs, then between them. Gina says it didn’t stop there.
GINA: And rubbing on my breast area and he put his mouth on my breast area[.] I had teeth marks. What was going through your mind? ... I was confused, I was fighting to get away.
[4MCDANIEL: Gina says she was going to remain quiet, but about an hour later, she finally called her mother.
MCDANIEL: Police took Gina to the hospital to be examined.... Koons says she made several formal complaints against Johnson, here at the apartment complex in the past, claiming he would follow her around and would even enter her apartment without her permission.
NEWS ANCHOR: When we contacted Ruston Police, TV-8 news was told the alleged incident is still under investigation. The Louisiana Center for the Blind confirms Johnson worked at the Center for about a year and a half, and is now on leave, pending an investigation.
Johnson has not been arrested or charged with any crime.
⅜ * *

After the story aired, the decedent hanged himself. Plaintiff discovered the decedent’s body the following morning.

On March 14, 2008, plaintiff filed a lawsuit against NOE Corporation, LLC, the operator of TV-8 news, alleging defamation and false light invasion of privacy. Defendant answered the suit and admitted to airing the report of the allegations against the decedent; however, defendant denied any liability for the decedent’s suicide. Thereafter, plaintiff moved for partial summary judgment, arguing that she was entitled to a judgment, as a matter of law, on the issues of defamation and false light invasion of privacy. In response, defendant moved for summary judgment, seeking the dismissal of plaintiffs claims.

On January 20, 2011, the district court denied plaintiffs motion for partial summary judgment, and granted summary judgment in favor of | ¡¡defendant. The court stated:

Essentially, this court finds — and—concludes that (as a matter of law), the particulars of The Florida Star [v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) ] case supports Defendant’s position and — thus—Defendant should — and—does hereby prevail. Plaintiffs case is [djismissed.

Plaintiff appeals.

FACTS

Plaintiff contends the district court erred in denying her motion for partial summary judgment and granting summary judgment in favor of defendant. Plaintiff argues that the district court erroneously relied on The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) because the facts of that case are distinguishable from the instant case. Plaintiff does not dispute that KNOE TV-8 accurately reported the statements provided by Gina and Jeanine Koons. Rather, plaintiff argues that the reporter should have ascertained that the statements were true prior to broadcasting the story.

A 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 prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544; See also LSA-C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted |fionIy if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he or she will be able to satisfy his or her evi-dentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

In the instant case, in granting defendant’s motion for summary judgment, the district court cited The Florida Star, supra. In that case, the plaintiff reported to the sheriffs department that she had been sexually assaulted. The sheriffs department prepared a report of the incident, which mistakenly identified the plaintiff by her full name. A reporter-trainee employed by the defendant newspaper copied the sheriffs report verbatim, including the plaintiffs full name. An article was prepared and published in the newspaper; the plaintiffs full name was included in the article. The plaintiff filed a lawsuit against the sheriffs department and the newspaper, alleging that both defendants had violated a Florida state statute by publishing her name. The newspaper filed a motion to dismiss the claims, arguing that imposing civil liability upon the newspaper violated the First |7Amendment to the United States Constitution. The trial court ruled in favor of the plaintiff, finding that the newspaper was negligent per se because it had violated the Florida statute; damages were awarded. The court of appeal affirmed. The United States Supreme Court granted certiorari and reversed, holding that “imposing damages on [the newspaper] for publishing [the plaintiffs] name violates the First Amendment[.]” Id. at 491 U.S. at 532, 109 S.Ct. 2603. The court stated:

[W]here a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest orderf.]

Id., 491 U.S. at 541, 109 S.Ct. at 2613.

Our de novo review of the record in the instant case reveals that plaintiff did not allege that the news reporter misrepresented the facts. Rather, plaintiff alleged that Gina Koons made false allegations to the police and the reporter. Our review of the record reveals that the information reported by TV-8 contained an accurate account of the statements Gina and Jeanine made to the police officers and the TV-8 news reporter. The news reporter contacted the Ruston Police Department and confirmed that Gina and Jeanine had reported the allegations against a suspect, and that a criminal investigation was ongoing. The reporter also contacted the Louisiana Center for the Blind which confirmed the | «decedent’s employment at the Center and informed the reporter that the decedent had been placed on leave pending an investigation.

We note that the reporter did not state that the decedent had been arrested or that the allegations against the decedent were true. Rather, he reported, pursuant to a police report, that allegations had been made against the decedent. The broadcast was filled with statements such as “a Ruston man is accused ...“the student claims ...;” “Gina says ...;” and “Koons says....” Additionally, the news anchor concluded the broadcast by stating, “[T]he alleged incident is still under investigation” and “Johnson has not been arrested or charged with any crime.” Moreover, plaintiff has submitted no evidence to establish that the allegations made by Gina, and reported by TV-8 news, were not truthful. DNA testing showed that there was “no male DNA present” in the samples taken from Gina’s rape kit. However, Gina never alleged that the decedent had raped her. Rather, Gina reported that the decedent had touched her leg, “private area,” “breast area” and had “jabb[ed] his fingers in [her] private area.”

We also find that the information published by TV-8 news was not illegally obtained. The information was voluntarily provided by Gina and Jeanine Koons. Thereafter, the police department confirmed that the allegations had been reported, and a criminal investigation was ongoing. Although the redacted police report identified the alleged assailant as “an employee” of the Louisiana Center for the Blind, the news reporter lawfully obtained the decedent’s name from Gina, the alleged victim.

Furthermore, the news report concerned a matter of public Insignificance, and the imposition of civil liability on the news station is not necessary to “further a state interest of the highest order.” The news report involved the alleged commission and investigation of a serious crime— a sexual assault — which had been reported to the authorities. In The Florida Star, supra, the Supreme Court concluded that imposing damages on the newspaper for publishing the name of a victim constituted a violation of the First Amendment. Here, the decedent was not the victim of an alleged sexual assault; he was the alleged assailant. We have found no existing case law or statutory authority which prohibits the press from publishing the name of the alleged suspect or the facts surrounding an investigation of the commission of a crime. To the contrary, LSA-C.C.P. art. 971 provides for |ina special motion to strike when the subject matter is of public interest.

CONCLUSION

For the reasons set forth herein, we affirm the summary judgment in favor of defendant, NOE Corporation, LLC. Costs of the appeal are assessed to appellant, Kathy Denise Johnston.

AFFIRMED.

      . In some portions of the record, Gina Koons’ name is spelled, “Jina Koons.”

      . Throughout the report, the decedent is referred to as “Sammy Johnson, Jr.” or "Johnson.”

      . The petition was later amended to add the decedent’s two daughters as plaintiffs.

      . The First Amendment to the United States Constitution provides, in pertinent part:
      Congress shall make no law ... abridging the freedom of speech, or of the press[.]

      . LSA-C.C.P. art. 971 provides, in pertinent part:
      A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
      (2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
      B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

      F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
      (1)"Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
      (a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
      (b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
      (c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
      (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
      (2) "Petition” includes either a petition or a reconventional demand.
      (3) "Plaintiff” includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
      (4) "Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jerry H. CREDEUR, Jr.
    No. 11-234.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 23, 2011.

      Eugene P. Cicardo, Jr., Alexandria, LA, for Defendant/Appellant, Jerry H. Cred-eur, Jr.
    Walter E. Dorroh, Jr., Assistant District Attorney, Twenty-Eighth Judicial District Court, Parish of LaSalle, Jena, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

bln this criminal case, Defendant appeals his conviction and fifteen-year sentence for possession of methamphetamine with intent to distribute. We find that the evidence was insufficient to prove Defendant possessed the specific intent to distribute methamphetamine; however we do find Defendant guilty of possession of methamphetamine. Therefore, we find Defendant guilty of possession of methamphetamine, and remand the case to the trial court for sentencing on the possession conviction.

FACTS AND PROCEDURAL HISTORY

Defendant, Jerry H. Credeur, Jr., was arrested at a residence where police believed illegal drugs were being sold. At the time, he claimed ownership of a glass pipe, some baggies, and a lighter. These items were all located in a room of the residence. Also found in the room were scales, baggies, pipes, money, a cell phone, .05 grams of methamphetamine, and a surveillance video set-up displaying the driveway.

Defendant was eventually charged by bill of information with one count of possession of methamphetamine, Schedule II, with intent to distribute, in violation of La.R.S. 40:967(A)(1). A jury trial commenced, at the conclusion of which he was found guilty as charged. A presentence investigation report was ordered. Defendant was sentenced to fifteen years at hard labor, with credit for time served. He filed a “Motion and Order for Reconsideration of Sentence.” A hearing was held, following which Defendant’s motion was denied.

Defendant appeals his conviction and sentence, alleging three assignments of error: 1) the trial court erred when it did not allow Defendant to confront witnesses who violated the order of sequestration; 2) the evidence was not sufficient to sustain a verdict of possession with intent to distribute; and 3) the sentence was excessive in Defendant’s case.

I ¡.ASSIGNMENT OF ERROR NUMBER 2

We elect to address Defendant’s second assignment of error first. In this assignment of error, Defendant argues, although he possessed methamphetamine, the evidence presented by the State failed to prove beyond a reasonable doubt the requisite intent to distribute the drug; therefore, the evidence was insufficient to support the verdict.

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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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 credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Furthermore, in State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998), the Louisiana Supreme Court stated:

When circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142 (La.1985).

Defendant was convicted of possession with intent to distribute methamphetamine, a violation of La.R.S. 40:967(A)(1), which provides, in pertinent part, that it is “unlawful for any person knowingly or intentionally: (1) To | ¡¡produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II[.]” Intent to distribute is a specific intent crime, and it is well settled jurisprudence in Louisiana that intent to distribute may be inferred from the circumstances. State v. Smith, 03-917 (La.App. 1 Cir. 12/81/03), 868 So.2d 794.

At trial, Brian Ty Book, a parole officer with the Louisiana Department of Corrections, testified that on the afternoon of July 16, 2007, he was mowing his lawn when he saw a white truck pull up to the house diagonal from his house. He did not recognize the man who exited the truck, but he called in the license plate because he had been suspicious of drug activity at the house. He explained that over the past several weeks he had noticed several vehicles arrive and then leave within ten to fifteen minutes. Officer Book was told the truck was registered to Harold Steven Foster. He ran the name through his police computer and learned that Foster was on probation. He contacted Foster’s probation officer, Jean St. Pierre, who requested that Officer Book make contact with Foster because she suspected he was having problems with drugs. Officer Book first contacted Urania Police Chief, Wayne Corley, who advised him that there had been complaints about drug activity out of that residence.

Officer Book approached the house at the carport door. He knocked, and, through the glass door, he saw Defendant exit a room and enter the kitchen. The officer asked if “Stevie” was there. Defendant responded that he was there. The officer identified himself and asked to see Foster. He stated that Defendant then looked around nervously and acted a little disassociated. Because he acted suspicious and as if he might flee, the officer pulled his weapon and commanded him to open the door. For officer safety, he placed Defendant in handcuffs. The officer called loudly to see if there was anyone else in the house. At that time, Lisa |4Cotton, also known as Melissa Cline (hereafter Cotton/Cline), came out of the same room Defendant came from. After securing her, Officer Book checked to see that there was no one else in the house.

When he looked into the room from which both Cotton/Cline and Defendant had come out of, he saw on the couch a glass pipe, which he testified was “commonly used in ingestion of cocaine or methamphetamine.” He also saw a set of small, digital scales, several small, clear plastic baggies, and a butane lighter. After the officer Mircmdized the two persons, he asked who owned the paraphernalia. He testified that Defendant said “anything in there was mine.”

While Cotton/Cline lived at the house, Defendant did not. Officer Book testified that he had never seen Defendant at the house before. When he first saw him, Defendant was not carrying anything that he could see. At this point, the matter was turned over to Deputy Scott McClen-don, an officer with LaSalle Parish Sheriffs Office. The deputy testified that the owner of the residence, Lloyd Gough, was contacted at work and immediately came home. When Gough arrived, he was advised of the situation, and he gave consent to search the residence.

Deputy McClendon, with the help of Officer Michael Barber, searched the room in the residence and inventoried the items located within. At trial, Deputy McClen-don described the items. Besides the items already described by Officer Book, he found eight zippered plastic bags which contained smoking devices, baggies, sets of scales, measuring spoons, a Nokia cell phone, a small black phone book with the name “Jerry Credeur” written on the front cover, cash in the amount of two hundred and sixty dollars, consisting of two one hundred dollar bills and three twenty dollar bills, and a small clear baggie with a small amount of powder. Also in the room were a video surveillance camera and a TV showing the driveway of the house. Deputy McClendon testified that in his experience as an officer who has dealt with narcotics offenses, these items are consistent with drug distribution.

| fiAlex King, a forensic chemist with North Louisiana Crime Laboratory, determined that the substance found in the baggie was methamphetamine. He stated that there was approximately .05 grams of powder in the baggie.

Gough testified he was completely unaware that drugs were being dealt out of his house. He said that he was seldom home, and that Cotton/Cline was living in the house at the time. Gough described the room that contained the TV and couch. He stated that he had seen Defendant at the house on a few occasions but did not know him very well.

Upon being booked at the LaSalle Parish Sheriffs Office, Defendant tested positive for methamphetamine through a urine sample. Defendant does not refute that he was in possession of methamphetamine at the time he was arrested. He does argue, however, that the State failed to prove that he possessed methamphetamine with the intent to distribute.

Factors that may be considered when determining whether a defendant had the specific intent to distribute are:

(1) the defendant’s previous attempts to distribute; (2) whether the drugs are packaged in a form consistent with distribution; (3) the amount of the drugs seized; (4) expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute, i.e., scales and plastic bags. Drug paraphernalia such as a scale indicates that the defendant possessed with intent to distribute. The defendant’s possession of large sums of cash may also be considered circumstantial evidence of intent to distribute. In the absence of these circumstances from which an intent to distribute may be inferred, the mere possession of drugs does not evidence intent to distribute, unless the quantity is so large that no other inference is possible.

State v. Henry, 08-658, pp. 9-10 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 943, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269 (footnotes omitted).

In Henry, the defendant, who was convicted of possession of cocaine with intent to distribute, argued on appeal that the evidence was insufficient to establish intent to distribute. An informant had alerted the police that the defendant was | fiSelling cocaine out of his motel room. The police made contact with Henry, and he consented to a search of the room. There, along with Henry’s girlfriend, the police found a digital mail scale, sandwich bags with and without pre-cut corners of the kind used to package narcotics, razor blades, small measuring spoons, approximately 28 grams of cocaine, and over one thousand dollars in currency. Affirming the conviction for distribution, the fifth circuit noted:

In the present case, Detective Klein testified that a large amount of seized drugs, i.e., a gross weight of 30 grams and a net weight of approximately 28 grams, as well as the combination of drug paraphernalia recovered and seized, was consistent with possession with intent to distribute, not a simple possession. Detective Klein opined that the 28 grams of powdered cocaine package for resale would have a street value of approximately $1,960.
In addition, in the search incident to arrest, Henry was found to be in possession of $1,040 in currency. Detective Klein testified that the currency found on Henry was a secondary element that, along with the drug paraphernalia, was consistent with possession with intent to distribute, especially since Henry was unemployed and could not explain where he got the money. Based on the evidence provided by the State, the jury could have reasonably found that the paraphernalia and amount of drugs found, as well as the currency found on Henry, were consistent with possession with intent to distribute, not with personal use as suggested by Shipman.

Id. at 943.

Similar to Henry, there were numerous items consistent with distribution — money, baggies, measuring spoons, and scales. There was also a small phone book found in.the room which contained Defendant’s name on the outside of the book. There was testimony that the book was a drug dealer’s book. A review of the book shows names and phone numbers. There were also various lists in the book indicating monthly living expenses, car rental costs and phone numbers of car rental dealerships, doodles, and lists of monies seemingly owed by various people. There were also on a few pages in the book notations of first names coupled with a fraction — 1/8, 2/8, etc.

However, unlike in Henry, where a large amount of drugs were found, | ./Defendant was in possession of only a small amount of methamphetamine (.05 grams), an amount more consistent with personal use of the drug as opposed to selling the drug. Defendant also argues he was not in possession of an extremely large amount of currency (over $1,000.00) as in Henry.

Defendant further argues there was no evidence of previous attempts to distribute drugs. Although, the State claims in brief that Defendant had a prior conviction of possession of methamphetamine, a review of the trial record shows that evidence of a prior conviction was never offered at trial. Defendant points out that he did not live at the house where all the items were found. While he is credited with stating that “anything in there is mine,” he points out that Officer Book asked him whose stuff was in the room after seeing in plain view a glass pipe, some baggies, a scale, and a lighter. All of the remaining items were found later by Deputy McClendon, tucked away in zippered bags in the closet. Accordingly, Defendant argues that while he told the parole officer that at least the glass pipe which contained residue found on the couch, a few baggies, a scale, and a lighter were his, he did not confess to owning all the rest of the items including the baggie containing the small amount of methamphetamine found in zippered bags in the closet. In brief, Defendant notes that on cross-examination, Officer Book “admitted that in his report that he did not quote the defendant as saying ‘He stated anything in there is mine.’ Officer Book admitted he could have remembered inaccurately because it happened two years ago.

In a case where this court found the evidence of intent to distribute “woefully insufficient,” this court noted:

A reviewing court may not disregard its duty to consider the constitutional sufficiency of the evidence simply because the record contains some evidence that tends to support each fact necessary to support the crime. It cannot consider only the evidence most favorable to the prosecution. Rather, it must consider the record as a whole, just as a rational fact finder would. If there could be disagreement between rational fact finders on the interpretation of the evidence, its view of | yall the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988).

State v. Perkins, 97-1119, p. 19 (La.App. 3 Cir. 6/17/98), 716 So.2d 120, 130.

In Perkins, the defendant and two other men were sitting in an empty parking lot in front of a bar the police were about to raid on suspicion of not having a proper liquor license. The defendant and one other man fled the car upon seeing the police officers. In the vehicle were four zip-lock baggies full of marijuana. It appeared that before the men raced away, they were preparing joints. This court noted:

Louisiana jurisprudence is clear that in order to convict a person on the basis of constructive possession, something more than mere presence in the area where the drugs are found or mere association with the person in actual custody of drugs must be shown. State v. Williams, 546 So.2d 963 (La.App. 3 Cir.1989), citing State v. Alford, 323 So.2d 788 (La.1975). Several cases have listed certain factors which may be considered in determining whether a defendant is in constructive possession of narcotics. These factors include the defendant’s knowledge that' illegal drugs are in the area; the defendant’s relationship with the person who has physical possession of the drugs; the defendant’s access to the area where the drugs were found; evidence of recent drug use by the defendant; the defendant’s physical proximity to the drugs; and evidence that the residence was frequented by drug users. See State v. King, 554 So.2d 254 (La.App. 3 Cir.1989).
In this case, the evidence is woefully insufficient to prove that the defendant intended to distribute marijuana. Only one of the enumerated factors was present — the existence of five (5) zip-lock bags containing green vegetable material which was determined to be marijuana. However, there was no testimony that such packaging was inconsistent with personal use only, particularly considering the presence of three individuals in the car who could have shared the marijuana among themselves.
There was no evidence that the defendant distributed or attempted to distribute the marijuana he possessed the night of his arrest or that he had ever distributed or attempted to distribute any controlled dangerous substances in the past.

Id. at 129-30.

|nIn the current case, we find the evidence was insufficient to prove that Defendant was distributing drugs out of the house in question. The owner of the house testified that he did not know Defendant well and that he had only seen him on a few previous occasions when Defendant visited Cotton/Cline. It is difficult to contend that all the pipes, the scales, the measuring spoons, plastic baggies, surveillance camera covering the residence’s driveway, were present in the house without Gough having seen Defendant more often if he was dealing drugs out of the house on a regular basis. Officer Book testified that he had noticed unusual activity at the house, numerous vehicles arriving and leaving quickly over the past several weeks, but had not seen Defendant before. Chief Corley testified that he lived in the neighborhood and had been watching the house for several weeks because of suspected drug activity, yet he did not know who Defendant was prior to this incident.

While Defendant admitted some items were his, there was no testimony regarding fingerprints on the scales, pipes, baggies, surveillance equipment, or money found in the room. Nor was it established whose cell phone was found in one of the bags. There was no testimony establishing Defendant had a history of drug sales. While Deputy McClendon testified that the address book was a drug dealer’s book, he admitted he did not attempt to ascertain whether the names in the book were of drug purchasers. Lastly, the amount of methamphetamine found at the time of Defendant’s arrest was a miniscule amount, and described by all parties as “residue.” Thus, even when viewing the evidence in the light most favorable to the prosecution, it is a substantial leap to reach the conclusion that Defendant was distributing drugs on the date and at the time in question. The evidence was insufficient to prove Defendant had the intent to distribute beyond a reasonable doubt. As noted in Perkins, 716 So.2d at 130, “[a] reviewing court may not disregard its duty to consider the constitutional sufficiency of the evidence simply | inbecause the record contains some evidence that tends to support each fact necessary to support the crime.” Defendant’s conviction is based largely on circumstantial evidence and the State failed to exclude the reasonable hypotheses that Defendant was purchasing or had purchased and smoked the drug. His admission that “anything” belonged to him did not include “everything” in the closet. Thus, we find Defendant innocent of the charge of distribution.

Therefore, we vacate Defendant’s conviction and sentence for possession with intent to distribute a controlled dangerous drug, Schedule II. The record clearly establishes Defendant admitted to and does not refute that he was in possession of methamphetamine; accordingly, we find Defendant guilty of possession of a controlled dangerous drug, Schedule II, and remand the matter to the trial court for sentencing on the lesser included offense.

Defendant’s assignment of error alleging excessive sentence is rendered moot. Further, Defendant’s assignment of error complaining about alleged sequestration violations and his right to confront the witnesses against him was infringed upon has also been rendered moot, or at the very least is harmless based on our decision to reverse his conviction for distribution. The record overwhelmingly established Defendant was sufficient to guilty of the lessor included offense of possession of methamphetamine — a fact to which he confessed at the time of his arrest and did not seriously dispute at trial or on appeal.

DECREE

For the foregoing reasons, we reverse the conviction of possession with intent to distribute, vacate the sentence, find Defendant guilty of possession of methamphetamine, and remand the matter to the trial court for resentencing. Accordingly, the remaining assignments of error are rendered moot or lack merit in light of our ruling.

REVERSED, RENDERED, AND REMANDED.


text:
    Roger VESTAL, Emanuel Hammonds, and Johnnie O’Hara v. Cynthia D. KIRKLAND, Schneider National Carriers, Inc. and INS Insurance Compnay.
    No. 11-419.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.

      W. Jay Luneau, Alexandria, LA, for PlaintiffiAppellee, Cynthia D. Kirkland.
    D. Randolph Street, Street & Street, Monroe, LA, for PlaintiffiAppellee, Johnnie O’Hara.
    C. David Vasser, Jr., Vasser & Vasser, Baton Rouge, LA, for Plaintiffs/Appellees, Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.
    James D. “Buddy” Caldwell, Attorney General, Elizabeth B. Hollins, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, DOTD.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

liOn November 27, 2006, Cynthia Kirkland was driving a 2006 Freightliner eighteen-wheeler owned by her employer, Schneider National Carriers. She was returning from the Proctor & Gamble plant in Pineville, Louisiana, where she had picked up a trailer loaded with soap products. She was driving south on Louisiana Highway 165 in Allen Parish when she observed an accident ahead of her. At this point on Hwy. 165, the road was undergoing construction to change from two to four lanes. The north-bound construction was completed, but the south-bound construction was about to begin.

The accident in front of her involved another eighteen wheeler that had lost a load of lumber. Kirkland began slowing her vehicle. While doing so, her eighteen wheeler drifted onto the two-foot wide shoulder. There was a difference in elevation between the shoulder and roadway. When Kirkland’s truck left the roadway, she attempted to reenter the roadway by decelerating the vehicle and attempting to steer back onto the paved portion of road. According to Kirkland, due to the elevation difference between the shoulder and roadway, she encountered difficulty. When her steering axle tires finally got back up on the roadway, the vehicle yawed, jack knifed, and overturned onto the passenger side. Kirkland’s vehicle came to rest on top of a vehicle occupied by Johnnie O’Hara. Kirkland and O’Hara suffered injuries as a result of the accident.

Kirkland filed proceedings against the State of Louisiana, Department of Transportation and Development (hereafter DOTD), alleging failure to maintain a reasonably safe roadway, failure to properly maintain the shoulder, and failure to warn of an unreasonably dangerous condition. Specifically, Kirkland maintained the accident occurred because of a drop-off where the roadway meets the shoulder, which was composed of aggregate.

12Suit was also filed against DOTD by Kirkland’s employer, Schneider National Carriers, and its insurer, Liberty Mutual Fire Insurance Company, seeking reimbursement for workers’ compensation benefits, both indemnity and medical, paid to Kirkland.

O’Hara also sued Kirkland, her employer and insurer, and DOTD. O’Hara’s claims against all parties other than DOTD were settled prior to trial. O’Hara’s claims against DOTD included the failure to maintain a reasonably safe roadway, failure to properly design, construct or maintain the shoulder, constructing or maintaining the shoulder with an excessive drop-off, and the failure to warn of an unreasonably dangerous condition.

The three separate lawsuits were consolidated for trial. After a trial, the jury returned judgment finding DOTD 80% at fault in causing the accident and Kirkland was cast with the remaining 20% of fault. Kirkland was awarded $235,440.00 in general damages and $1,600.00 in future medicals (which reflected the reduction of 20% for her fault). O’Hara was awarded $480,000.00 in general and special damages (which reflected the reduction of 20% for Kirkland’s fault). O’Hara’s award included $18,418.00 in loss of future wages and loss of future earning capacity.

Both Kirkland and O’Hara filed for Judgments Notwithstanding the Verdict (JNOV) to increase the amounts awarded. O’Hara contended the jury erred in only awarding him $18,418.00 in loss of future wages and earning capacity. Kirkland argued the jury erred in refusing to award amounts proven for past wage loss and future wage loss and earning capacity. The trial court granted O’Hara’s JNOV and awarded an additional $300,000.00 for future wage loss and loss of earning capacity. Kirkland’s award was not changed.

|sThe judgment also provided the intervention filed by Kirkland’s employer, Schneider National Carriers, and its insurer, Liberty Mutual, was granted with the amount to be established pursuant to a Rule to be filed at a later date.

On appeal, DOTD asserts the following assignments of error:

1. The trial court erred in finding DOTD eighty percent liable in this accident, when the alleged defect was not the cause-in-fact of the motorists’ injuries.
2. The trial court erred in allowing the introduction of prejudicial evidence, maintenance records for the highway following the accident, which was not relevant or necessary to prove the plaintiffs’ case.
3. The trial court erred in disallowing the testimony and evidence of the State’s accident reconstruction expert without a valid or reasonable basis.
4. The trial court erred in granting O’Hara’s JNOV and increasing the future wage loss and loss of earning capacity award as the jury’s award was not manifest error considering the testimony.
5. The trial court properly awarded Kirkland damages for past lost wages when the testimony as a whole is considered.

Kirkland answered DOTD’s appeal, and alleged as error the jury’s failure to award the amounts proven for past and future wage loss, as well as loss of earning capacity-

I. Liability of DOTD.

The jury returned a verdict in which it found DOTD 80% at fault and Kirkland 20% at fault. DOTD argues it was Kirkland’s driving, and not the defect presented by the shoulder, that was the cause-in-fact of the motorists’ injuries. Conversely, the plaintiffs aver that the jury’s verdict is well-supported by the evidence.

DOTD has a legal duty to maintain the public highways in a reasonably safe condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). This duty extends to the shoulders of the highways as well. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986); Rue v. State, Dep’t. of Highways, 372 So.2d 1197 (La.1979). DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, “whether as a result of inattentiveness or negligence,” a motorist might find himself traveling on, or partially on, the shoulder. Petre v. State ex rel. Dep’t. of Transp. and Dev., 01-876, p. 8 (La.4/3/02), 817 So.2d 1107, 1112. DOTD’s duty to maintain the road and shoulder encompasses the risk that a motorist may travel onto or partially onto the shoulder. See Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566. However, in recognizing the existence of this duty, this court has held that DOTD is not a guarantor of the safety of those who travel highways of this state. See Ryland v. Liberty Lloyds Ins. Co., 93-1712 (La.1/14/94), 630 So.2d 1289. DOTD’s duty to the traveling public is breached only when the highway at the scene of the accident is found to create an unreasonably dangerous condition. Petre, 817 So.2d 1107. DOTD’s duty to maintain reasonably safe roadways encompasses persons who are foreseeably placed in danger by unreasonably dangerous conditions. Under our comparative negligence system, even motorists who are slightly exceeding the speed limit, momentarily inattentive, or otherwise negligent may recover from DOTD. Petre v. State ex rel. Dep’t of Transp. and Dev., 00-00545 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, 1259-60, citing Lamaire v. Motor Convoy, Inc., 625 So.2d 638 (La.App. 3 Cir.1993), writ denied, 93-2778 (La.1/7/94), 632 So.2d 754.

Whether a defect presents an unreasonable risk of harm must be decided on the particular facts and circumstances of each case. See Hunter v. Dep’t. of Transp. and Dev., 620 So.2d 1149 (La.1993). The jury’s determination in this regard is factual in nature. We evaluate findings of the trier of fact under the manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court is not to re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. See Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Stobart, 617 So.2d 880. Louisiana courts have consistently held that causation is a factual finding, which should not be reversed on appeal absent manifest error. Id. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992). Thus, even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimony conflicts. Id.

Initially, we note DOTD acknowledged it had custody of the highway where the accident occurred. Further, the record confirmed the highway was accepted by DOTD from the construction company pri- or to the accident, as evidenced by a formal acceptance document signed five days before the accident.

After a thorough review of the record, we find ample evidence was presented to the jury for it to conclude the drop-off between the roadway and shoulder was a eause-in-fact of the accident. The jury chose to place more credibility in the Plaintiffs’ expert rather than DOTD’s expert, which is well within its province as the trier of fact.

| fiDuane Evans, who was a qualified expert in highway design and reconstruction, testified for Plaintiffs. He found the shoulder and the aggregate next to it were not level, and exhibited a drop-off in the area of the accident anywhere from four to ten inches. Mr. Evans specifically testified “[i]f there’s a significant drop-off of four inches, for instance, it can affect your steering and cause you to either go toward the ditch or jump back onto the road and not be headed in the right direction.” He also stated a four inch or greater drop-off required immediate attention and should be handled on an emergency basis. Mr. Evans also told the jury that, as per DOTD plans, in the area where the accident occurred, there should have been a slope of four to one (meaning for every one foot of slope there should be four feet of road). However, he stated the slope was approximately two to one, which created a “serious slope,” one which he believed was “non-recoverable.” He further explained that “a vehicle that gets on [such a slope] generally -will be out of control.” He opined that once Kirkland “lost control on the slope, the drop-off prevented her [from] recovering that control,” and that led to her vehicle yawing when it reentered the roadway, and eventually spinning out of control and overturning.

DOTD attempts to lessen the impact of Mr. Evans testimony by noting he made no measurements at the scene and relied simply on photographs to determine the amount of drop-off and slope. However, Mr. Evans testified he relied on the photographs because, when he went to the accident scene, DOTD had already begun further construction on the south-bound lanes, and the construction had significantly changed the shoulder area. He also informed the jury that experts in similar cases often rely on scene photographs, because they rarely get to the scene until months or even years after the accident. The jury undoubtedly did not place much weight on this fact in judging the credibility of Mr. Evans’ testimony, particularly considering DOTD’s expert, Joseph Blash-ke, relied on the same 17photographs in making his conclusions, acknowledging when he visited the accident site, it looked “nothing” like it did on the date of the accident.

Mr. Blashke, who was also qualified as an expert in highway design and reconstruction, testified that Kirkland’s actions were the sole cause of the accident. He believed Kirkland overreacted to leaving the roadway and responded before she fully left the roadway, causing the tractor-trailer to lose control. Mr. Blashke did not believe Kirkland’s version of how she left the roadway and her actions thereafter. Unfortunately for DOTD, the jury chose to believe Kirkland and her expert, Mr. Evans. Mr. Blashke acknowledged on cross-examination that he gave his opinion as to what caused the accident before ever reading the testimony of the eye-witness accounts of the accident. Mr. Blashke also testified he was not sure what the actual slope of the road was, and even testified in his deposition that the slope “did not appear to be as flat as four to one” as is appropriate. Further, when asked “[w]ould you venture a guess that the slope might be closer to two to one than it is to four to one or would you disagree with that statement?,” Mr. Blashke responded “I can’t disagree.” He also acknowledged that a two to one slope is “considered to be non-recoverable.”

DOTD relies heavily on the measurement made by State Trooper Farris that Kirkland’s tractor-trailer was off the road for approximately 61 feet, to support Mr. Blashke’s opinion that the accident was primarily caused due to Kirkland’s “obvious over-correction” and “significant over-steering.” However, as Trooper Farris testified, he was not trained in accident reconstruction and acknowledged he did the best he could with the information available, but his measurement was not exact. The jury also heard the testimony of Mr. Evans that he believed Kirkland’s vehicle may have been more than 61 feet off the road. Mr. Evans also testified that even if Kirkland had gone off the road only 61 feet, she could have had enough |stime to input steering. Thus, the jury was provided with conflicting evidence from which to choose.

The testimony and photographs in the record confirmed the drop-off in the area of the accident was between four and six inches. The court in Everhardt v. Louisiana Department of Transportation & Development, 07-981, p. 19 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1050, noted the multitude of cases finding such a significant drop-off from the roadway to the shoulder constitutes a defect in the roadway and, as such, presents an unreasonable risk of harm:

Louisiana jurisprudence is replete with cases holding that a drop-off from the roadway to the shoulder in excess- of four inches constitutes a defect in the roadway and presents an unreasonable risk of harm to the traveling public. See LeBlanc v. State of Louisiana, 419 So.2d 853 (La.1982)(four to six-inch drop off of the shoulder created a dangerous hazard); Perez v. State of Louisiana, Through the Dept. of Transp. and Dev., 578 So.2d 1199 (La.App. 4 Cir.1991)(roadway was defective because it had an eight-inch drop from the road to the shoulder and state held to be 40% negligent); Roberts v. State, Through the Dept. of Transp. and Dev., 576 So.2d 85 (La.App. 2 Cir.1991)(three to five-inch drop off constituted an unreasonably dangerous condition); Brown v. State, Through the Dept. of Transp. and Dev., 04-912 (La.App. 5 Cir. 2/15/05), 896 So.2d 1136 (DOTD found liable for accident involving seven to ten-inch drop off); Aday v. State, Through the Dept. of Transp. and Dev., 06-1181 (La.App. 3 Cir. 2/7/07), 950 So.2d 928 (summary judgment granted on the issue of liability in favor of motorists on grounds that a shoulder with a four-and-one-half inch drop off constituted a defect in the shoulder); Bozeman v. State, Through the Dept. of Transp. and Dev., 34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357 (a three-inch drop off presents an unreasonable risk of harm); Guzman v. State, Through the Dept. of Transp. and Dev., 95-0957 (La.App. 1 Cir. 12/15/95), 664 So.2d 1343 (a three-inch drop off found to constitute a defect with the state being held 50% liable); Hood v. State, Through the Dept. of Transp. and Dev., 587 So.2d 755 (La.App. 2 Cir.1991)(a four-inch shoulder drop off deemed unreasonably dangerous to normal use); Caruthers v. State, Through the Dept, of Transp. and Dev., 97-1450 (La.App. 3 Cir. 4/15/98), 711 So.2d 420 (generally, a roadway is considered defective and unreasonably dangerous when the depth of its drop off exceeds two inches).

After a thorough review of the testimony and evidence presented to the jury, we find no error in its conclusion that the roadway was defective and presented an | treasonable risk of harm. Thus, we affirm the jury’s finding that DOTD was eighty percent at fault in causing this accident.

II. Admission of Maintenance Records.

In its second assignment of error, DOTD contends the trial court erred when it admitted certain maintenance records for the highway following the accident. Specifically, DOTD argues the introduction of this “prejudicial evidence” inflamed the jury and was not even necessary to prove plaintiffs’ case. However, the record established DOTD failed to make a contemporaneous objection when the documents were introduced. “To preserve an eviden-tiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3 Cir.1990); see also Ewing v. State ex rel. Dep’t. of Transp. and Dev., 99-1556 (La.App. 3 Cir. 3/15/00), 757 So.2d 843; Himel v. State ex rel. Dep’t. of Transp. and Dev., 04-274 (La.App. 5 Cir. 10/12/04), 887 So.2d 131, writ denied, 04-2802 (La.3/18/05), 896 So.2d 999. Failure to object to the introduction of evidence constitutes a waiver of right to object on appeal. LaHaye, 570 So.2d 460. Thus, we find no merit in this assignment.

III. Exclusion of Expert’s Testimony.

In its next assignment of error, DOTD contends the trial court erred in “disallowing the testimony and evidence of the State’s accident reconstruction expert without a valid or reasonable basis.” Presumably, DOTD refers to the testimony of Marshall Lyles, although no name is ever listed in DOTD’s brief. Plaintiffs filed a motion in limine seeking to have the trial court exclude the testimony of Lyles. Following a hearing, the trial court granted the motion finding that Lyles’ testimony would be speculative because he used several “default values” which may or may not have been accurate, and he failed to identify the | instudies, surveys, treatises or other documents used to support his opinions. Combining this with the fact that the trial court believed Lyles’ testimony would be cumulative, as the State presented other accident reconstruction experts, the trial court granted the motion in limine and excluded Lyles’ testimony.

The law is clear when a trial court excludes or limits the testimony of a witness, a proffer can be made. La.Code Civ.P. art. 1636. It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives its right to complain of the exclusion on appeal. Fontenot v. Fontenot, 621 So.2d 843 (La.App. 3 Cir.1993), rev’d on other grounds, 93-2479 (La.4/11/94), 635 So.2d 219; Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2 Cir.), writ denied, 623 So.2d 1340 (La.1993). Our review of the record confirms that the trial court specifically asked all parties if they required any proffers to be made. The purpose of a proffer is to preserve evidence excluded by the trial court so that the evidence is available for appellate review. McLean v. Hunter, 495 So.2d 1298 (La.1986). DOTD did not proffer Lyles’ testimony, therefore, we have no way of knowing what his testimony would have been. Accordingly, it is precluded from complaining that his testimony was excluded.

IV. Grant ofJNOV in Favor of O’Hara.

DOTD argues the trial court erred in granting O’Hara’s JNOV and increasing his future wage loss and loss of earning capacity award from $18,418.00 to $300,000.00.

The record established O’Hara was a passenger in the right passenger seat of the vehicle which was struck by Kirkland’s eighteen-wheeler. He suffered serious injuries as a result of the accident, including lower back injuries which required two-level lumbar fusion surgery. The record established O’Hara incurred $147,000.00 in medical expenses, all of which were stipulated to be related to the accident. He was unable to work for a lengthy period of time, and has been unable |nto return to his duties as a pipefitter due to the physical limitations brought about by the injuries suffered in the accident.

The testimonies of Dr. Bernie McHugh, the neurosurgeon who performed O’Hara’s fusion surgery, and Dr. John Ledbetter, O’Hara’s pain management physician, were steadfast that O’Hara would be unable to return to pipefitting or similarly physically demanding work. Dr. McHugh opined that O’Hara would be unable to engage in “heavy lifting, climbing, carrying heavy things ... excessive bending and stooping and squatting.” Any employment he engaged in would have to allow for frequent position changes. O’Hara testified his employment history included jobs as a pipefit-ter, welder, and truck driver. The medical testimony clearly established he would be unable to work in any of these positions in the future because of his injuries.

Dr. Charles Bettinger, an expert in the field of economics and statistics, conducted an economic analysis of O’Hara’s past and future earnings losses. In calculating the future economic loss, Dr. Bettinger based his figures on the assumption that O’Hara would be able to return to full-time work earning entry level wages. Subtracting those prospective wages from what O’Hara would have earned working as a pipefitter, Dr. Bettinger calculated the future loss of earning capacity to be slightly in excess of $600,000.00.

DOTD notes that while the case was pending, O’Hara pled guilty to Illegal Possession of a Firearm, a felony. Counsel for O’Hara filed a motion in limine in an attempt to keep evidence of this conviction from the jury. The trial court denied the motion in limine. In lieu of O’Hara’s plea, Dr. Bettinger was requested to revise his calculations to delete five years of future earnings to reflect the maximum term of imprisonment to which O’Hara was potentially subject. O’Hara argues there was no evidence presented at trial that indicated a felony conviction |l2would have prevented him from earning wages in the future, other than during any possible period of incarceration.

In its verdict, the jury determined O’Hara was entitled to an award for loss of future earning capacity, but rendered only $18,418.00, which was significantly below any amount testified as appropriate by Dr. Bettinger. O’Hara then filed for JNOV, contending the jury failed to make a reasonable award for his loss of future earnings and loss of earning capacity. The trial court agreed and granted the JNOV, finding the evidence pointed so overwhelmingly in favor of O’Hara that reasonable and fair-minded jurors in the exercise of impartial judgment should have concluded O’Hara suffered a greater loss of future earnings and loss of earning capacity than $18,418.00. The trial court raised the award to $800,000.00.

Louisiana Code of Civil Procedure Article 1811 provides for the trial court’s use of a JNOV as being “warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict.” Forbes v. Cockerham, 08-762, p. 30 (La.1/21/09), 5 So.3d 839, 857. A trial court should enter a JNOV “only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions.” Id. It is not sufficient that there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84. Rather, “[i]f there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied.” Id. at 89. In considering this point, the trial court should not evaluate the credibility of the witnesses. Id. Finally, the trial court must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id.

On review of a JNOV, an appellate court’s inquiry is two-fold. Davis, 774 So.2d 84. First, we must determine whether the trial court erred in granting the JNOV. Id. Therefore, the appellate court considers “whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Forbes, 5 So.3d at 858. If the appellate court concludes that reasonable persons might reach a different conclusion, the trial court’s granting of the motion was erroneous, and the jury verdict should be reinstated. Id. However, if the trial court applied the correct standard, the appellate court reviews the JNOV using the manifest error standard of review. Davis, 774 So.2d 84.

In reviewing the trial judge’s decision to grant plaintiffs motion for JNOV on the issue of damages for loss of future earnings and loss of earning capacity damages, we conclude that the motion was properly granted. We have already detailed the medical testimony that established O’Hara’s significant physical injuries, including a two-level lumbar fusion surgery. The medical testimony also established, although O’Hara could do some type of entry-level employment, his physical limitations would prevent him from returning to the type of employment he previously performed, thus impacting the amount of money he could earn. The trial court did find an award for loss of future earnings and loss of earning capacity was warranted, but the amount awarded was woefully inadequate considering the medical and expert testimony found in the record. The trial court, in his oral reasons to grant the JNOV in favor of O’Hara, specifically found to reach the amount it did, the “jury would have had to come to an assumption that he simply was not going to work again ...” The trial court did not err in granting the JNOV in this regard.

Having determined that the trial judge properly granted the JNOV as to the jury’s award of loss of future earning capacity and loss of earning capacity to 114Q’Hara, we now turn to a review of the award of the JNOV ($300,000.00) by the trial judge. The appellate court reviews the trial court’s award of damages pursuant to the JNOV using the manifest error standard regarding the factual matters pertaining to the damages. Davis, 774 So.2d 84. Dr. Bettinger’s calculations, including the one that factored in the felony arrest, were in excess of the trial court’s award of $300,000.00. Thus, we find no manifest error in the trial court’s award.

IV. Damages Awarded Kirkland.

Kirkland answered DOTD’s appeal and assigns as error the amount of damages the jury awarded for her past and future wage loss, as well as loss of earning capacity. Kirkland was awarded $74,000.00 in past lost wages and $25,000.00 in future wage loss and loss of earning capacity.

Dr. Todd Drury testified that Kirkland will be unable to return to her job as a truck driver. Dr. Pat Culbertson, an economist, testified Kirkland was entitled to $91,882.00 in past wages. He based this on her past twenty-six weeks of wages earned as a truck driver. However, the record indicated Kirkland exhibited a wide disparity of earning ability during her brief career as a truck driver. She was not a salaried employee, but was at the mercy of the work that was available at the time. Thus, the jury’s award of $74,000.00 in lost wages may well have reflected that testimony.

As to the loss of future earning capacity, Dr. Culbertson testified if Kirkland worked to age 62.3 earning the wages she had in the 26 weeks prior to the injury, she would have a loss of future earning capacity of approximately $64,000.00. If she worked to 66, the amount would be approximately $118,000.00. The jury was presented with evidence that Kirkland currently had a new job for which she earned wages. Although the wages she earned in her new employment were not as much as she earned as a truck driver, there was testimony that her wages could 11fiincrease with time. The jury was also informed of several extended periods of unemployment prior to Kirkland becoming a truck driver. This evidence may have influenced the jury’s decision to award less than that forecast by Dr. Culbertson.

In its oral reasons for denying the JNOV as to Kirkland, the trial court stated the following:

On the Kirkland motion [for JNOV], the economist made certain predictions, but those predictions were made — were based on assumptions which were explained to the jury. And a jury is not required to accept all of the assumptions and they’re not required to accept an economist’s speculations, which is pejorative term, but it is a speculative type figure. They’re not required to accept them in total. The range which the jury decided to accept, the Court feels was in a — in the area of reasonableness. So the Court will deny the Motion for JNOV in that claim.

We find no error in the trial court’s denial of the JNOV as to Kirkland. The evidence did not point so strongly in favor of her that reasonable persons could not reach different conclusions.

DECREE

For the foregoing reasons, the lower court’s judgment is affirmed. All costs of this appeal are assessed to defendant-appellant, the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED.


text:
    SCHNEIDER NATIONAL CARRIERS, INC. and Liberty Fire Mutual Insurance Company v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 11-420.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.
    W. Jay Luneau, Alexandria, LA, for PlaintiffiAppellee, Cynthia D. Kirkland.
    D. Randolph Street, Street & Street, Monroe, LA, for Plaintiff/Appellee, Johnnie O’Hara.
    C. David Vasser, Jr., Vasser & Vasser, Baton Rouge, LA, for Plaintiffs/Appellees, Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.
    James D. “Buddy” Caldwell, Attorney General, Elizabeth B. Hollins, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, DOTD.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

liFor the reasons assigned in the consolidated case entitled Vestal v. Kirkland, 11-419 (La.App. 3 Cir. 11/23/11), 81 So.3d 748, rendered this day, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED.


text:
    Cynthia KIRKLAND v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 11-421.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.
    W. Jay Luneau, Alexandria, LA, for Plaintiff/Appellee, Cynthia D. Kirkland.
    D. Randolph Street, Street & Street, Monroe, LA, for Plaintiff/Appellee, Johnnie O’Hara.
    C. David Vasser, Jr., Vasser & Vasser, Baton Rouge, LA, for Plaintiffs/Appellees, Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.
    James D. “Buddy” Caldwell, Attorney General, Elizabeth B. Hollins, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, DOTD.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

For the reasons assigned in the consolidated case entitled Vestal v. Kirkland, 11-419 (La.App. 3 Cir.11/23/11), 81 So.3d 748, rendered this day, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED.