author: CARAWAY, J.

text:
    Jack KOTTENBROOK and Angela Kottenbrook, Plaintiffs-Appellants v. SHELTER MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 46,312-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Richard L. Fewell, Jr., for Appellants.
    Davenport, Files & Kelly, L.L.P., Monroe, LA, by M. Shane Craighead, for Ap-pellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|, This appeal concerns a summary judgment in favor of defendant insurance company, holding that an injured passenger in a traffic accident was not an insured under the uninsured/underinsured (“UM”) policy. The policy in dispute lists a corporation as the named insured. Although the injured plaintiff was associated with the corporation, he was not occupying the corporation’s vehicle at the time of the accident. Agreeing with the trial court that UM coverage does not apply, we affirm.

Facts

On June 29, 2009, Jack Kottenbrook (“Kottenbrook”) was on duty as a Ouachita Parish Sheriffs Deputy when he was involved in a traffic accident. Kottenbrook was riding as a passenger in his Sheriffs Department cruiser and sustained serious injuries as result of the collision. The driver of the other auto was at fault for the accident due to his failure to yield to the cruiser’s emergency lights. After settling claims against the other driver and his insurer, Kottenbrook and his wife filed the instant suit against Shelter Mutual Insurance Company (“Shelter”), the auto insurer of a corporation with which Kotten-brook is associated.

At the time of the accident, a Shelter policy of liability insurance, covered a 1999 Ford Mustang owned by Jack Armstrong, Inc. (hereinafter “JA, Inc.”). Although JA, Inc. is the only “named insured” listed on the declarations page of the policy, the policy also lists as “Additional Listed Insured: MARY LYNN ARMSTRONG; JACK KOTTENBROOK; CINDY G WILKINSON.” This policy provides UM coverage.

|2In response to Kottenbrook’s action, Shelter filed a motion for summary judgement, arguing that Kottenbrook was not a “named insured” under its policy. Kot-tenbrook opposed Shelter’s motion for summary judgment, arguing that he was covered as an “additional listed insured” under the corporation’s policy. After a hearing, the trial court granted Shelter’s motion. The Kottenbrooks now appeal.

Discussion

The only issue before this court is whether Kottenbrook can recover damages under the UM section of the corporation’s insurance policy covering the corporation’s vehicle which was not involved in the accident.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, twits denied, 10-1952, 10-1953, 10-1955 (La.11/5/10), 50 So.3d 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer, supra.

[..¡Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Robinson v. Heard, 01-1697 (La.2/26/02), 809 So.2d 943. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art. 2045; Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06), 930 So.2d 906. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047; Bonin, supra. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Bonin, supra.

If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Cadwallader, supra; Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37. Under the rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Louisiana Ins. Guar. Ass’n v. 4Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759. That strict construction principle, however, is subject to exceptions. Cadwallader, supra; Carrier, stipra. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. Cadwal-lader, supra. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Id.

Most insurance policies expressly define words or phrases which may be understood in different senses. Where a policy of insurance contains a definition of any word or phrase, this definition is controlling. Washington v. McCauley, 45,916 (La.App.2d Cir.2/16/11), 62 So.3d 173, citing, Hendricks v. American Employers Ins. Co., 176 So.2d 827 (La.App. 2d Cir.1965), writ denied, 248 La. 415, 179 So.2d 15 (1965).

The pertinent provisions of the Shelter policy provided in its DEFINITIONS section are as follows:

In this policy, the words shown in bold type have the meanings stated below unless a different meaning is stated in a particular coverage or endorsement ... ⅜ ⅝ ⅜ ⅜ ⅜ ⅜
(7) Described auto means the vehicle described in the Declarations, but only if you own that vehicle. It includes a temporary substitute auto.
(12) Insured means the person defined as an insured in, or with reference to, the specific coverage or endorsement under which coverage is sought.
* * *
(18) Named Insured means all persons listed .in the Declarations as such.
* * *
|fi(26) Person means an individual, a corporation, or entity which has separate legal existence under the laws of the state in which this policy is issued.
(37) You means any person listed as a named insured in the Declarations and,
if that person is an individual, his or her spouse.

The UM provisions are contained in Part IV of Shelter’s policy and provide as follows:

ADDITIONAL DEFINITIONS USED IN PART IV
As used in this coverage,
(2) Insured means:
(a) You;
(b) any relative; and
(c) any other person occupying the described auto with expressed or implied permission ...

In contrast to the definition for an “Insured” under the policy’s UM coverage, the provisions regarding liability coverage read as follows:

ADDITIONAL DEFINITIONS USED IN PART I
As used in this Part, insured means:
(1) You, with respect to your ownership or use of the described auto and your use of a non-owned auto;
(2) any relative, with respect to his or her use of the described auto or a non-owned auto;
(3) any individual who is:
(a) related to you by blood, marriage, or adoption, who is primarily a resident of, and actually living in, your household including your unmarried and unemancipated child away at school; or
(b) a foster child in your legal custody for more than ninety consecutive days immediately prior to the accident; but only with respect to that individual’s use of the described auto
(4) any individual listed in the Declarations as an “additional listed insured,” but only with respect to that individual’s use of the described auto; and
(5) any individual who has expressed or implied permission or expressed or implied general consent to use the described auto ...

In Valentine v. Bonneville Ins. Co., 96-1382 (La.3/17/97), 691 So.2d 665, the Louisiana Supreme Court reviewed a business auto policy | ^containing a very similar definition of “Insured” within the UM coverage of the policy. The named insured of the policy was the Webster Parish Sheriffs Department. The plaintiff was a Webster Parish deputy who was struck by a car while directing traffic and thus not “occupying” one of the insured public vehicles. Like the present policy, the policy for the sheriffs department extended UM coverage to “You,” a defined term for the Named Insured, and also to persons occupying a covered vehicle described in the policy. The court determined that the plaintiff was not the named insured nor was he occupying a covered vehicle at the time of the accident. Had plaintiff been the named insured on a personal policy, the court acknowledged that “a named insured is provided UM coverage wherever he is, whatever he is doing, and regardless of whether he is on the job or merely tending to his private affairs.” Id. at 669. Nevertheless, the court cited numerous rulings holding that an entity’s auto policy with the entity as the named insured does not extend that same breadth of UM coverage to the employees, officers, shareholders or members of such entity. Id., note 3.

Additionally, the court in Valentine addressed the following argument by the plaintiff:

Deputy Valentine, however, argues that if he is not a named insured, then the Sheriff is the only named insured and thus the premiums collected for UM coverage extend coverage to only one person. We disagree. Valentine’s argument assumes that the Sheriff is covered under the UM policy as a named insured. As noted above, we decline to comment on whether the Sheriff individually is included as a named insured under the policy issued to the Webster Parish Sheriffs Department. However, even if the Sheriff were not included as a named insured, the failure to have someone designated for coverage as a “you” (a named insured) is of no moment. In most cases, as in the present case, UM coverage is provided to protect against bodily injury damages. Corporations and political entities, 17legal persons that are incapable of sustaining bodily injury damage, buy UM policies in which the corporation or political entity is the named insured. As in the instant case, coverage is provided under these policies for anyone “occupying” a covered auto. Valentine’s argument fails to recognize that coverage is provided to the Webster Parish Sheriffs Department for anyone “occupying” a covered auto or a temporary substitute for a covered auto. Thus, any person, whether that person is the Sheriff, a deputy, another employee of the Webster Parish Sheriffs Department or anyone else, is covered under the Commercial Union policy as long as that person is “occupying” a covered auto.

Id. at 669-670. See also, Adams v. Thomason, 32,728 (La.App.2d Cir.3/1/00), 753 So.2d 416, writ denied, 00-1221 (La.6/16/00), 764 So.2d 965.

First, from a review of the policy’s defined term, “You,” and the policy’s identification of “additional listed insured” for the extension of liability coverage, we find a clear distinction between the single “named insured” of this policy, which was the corporation, and the “additional listed insured,” which included Kottenbrook. Next, from Valentine and the cases cited therein, we find that the coverage extended to Kottenbrook is defined and limited under the policy. Such coverage, both for liability and UM coverage, was limited to Kottenbrook’s use of the described auto owned by JA, Inc. Kottenbrook’s auto accident did not involve his use of the JA, Inc. vehicle. The policy language listing JA, Inc. as the only named insured and making such limitations on coverage regarding Kottenbrook is clear. According to the interpretation of La. R.S. 22:1295 given by the jurisprudence, such limitations are permissible under Louisiana’s UM law. The trial court’s ruling denying coverage is therefore affirmed.

| s Conclusion

For the foregoing reasons, the judgment of the trial court granting summary judgment on the issue of uninsured/underin-sured motorist coverage in favor of defendant, Shelter, is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . The appellant cites Howell v. Balboa Ins. Co., 564 So.2d 298 (La.1990), which involved a policy listing an individual, as opposed to a corporation or other entity, as the named insured. For that reason, appellant’s argument is unpersuasive.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Charles Ray LINDSEY, Appellant.
    No. 46,313-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      James E. Lewis, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

1 jThis criminal appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. The defendant, Charles Ray Lindsey, was convicted of aggravated arson, a violation of La. R.S. 14:51, and unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3. For aggravated arson, the trial court sentenced Lindsey to serve 20 years’ imprisonment at hard labor, two years without parole; for unauthorized entry, the trial court sentenced Lindsey to serve a consecutive six years’ imprisonment at hard labor. Lindsey only appeals his conviction and sentence for the aggravated arson charge, which we affirm for the following reasons.

Facts

The following facts were adduced at Lindsey’s jury trial. In the summer of 2009, Debra Pesina and her two children lived in an apartment at the Westbrook Villa complex in Monroe, Louisiana. She was dating the defendant, Charles Lindsey, but she lived with a male roommate with whom she did not have a romantic relationship. Both Pesina and Lindsey are white; her former roommate is African-American.

At the beginning of August, Lindsey-moved into the apartment and Pesina’s roommate moved out at Lindsey’s request. Pesina was the only lessee; Lindsey never signed a lease. Once Lindsey moved in, the couple argued frequently, and the apartment manager received complaints of “yelling” and “screaming” between Pesina and Lindsey from the other tenants.

li>On August 21, 2009, Lindsey demanded that Pesina drive him to the liquor store. Pesina testified at trial that on the way to the liquor store, Lindsey asked her, “Are you f* * * * *g that n* * * *r?” They continued to argue during the drive and later, at home, while Pesina was cooking Lindsey’s meal. Pesina had to run a shopping errand, and while she was away from the apartment, she came to the conclusion that she did not want Lindsey living with her any longer. Thus, she contacted the apartment manager and the West Monroe Police Department (the “WMPD”), and officers met Pesina at the apartment at about 5:00 p.m. A police officer told Lindsey that he had to leave the premises, and Lindsey took only his bottle of Old Charter whiskey with him as he left. The responding officer saw that Lindsey was drunk, and he drove Lindsey to the nearby police station. There, the defendant called his aunt, Barbara Aswell, to come and pick him up.

After Lindsey was taken from the apartment, Pesina also left the apartment and drove to the workplace of her former roommate to talk with him. While she was there she got a cell phone call. Her phone’s caller ID indicated that the call came from her apartment. The caller initiating the call from her apartment was the defendant. She testified that Lindsey said, “I told you I’d get even with you and I told you I’d get you.” Pesina told the defendant, “Oh, really? Well, I got you,” and hung up the phone. Pesina then called the police again, and an officer met her at the apartment at about |¾7:15 p.m. Lindsey was not present, but one of the rear windows was open. Pesina gathered some personal items and left to stay with a friend in Tallulah.

Meanwhile, when Aswell arrived at the police station to pick up Lindsey, she could not find him, so she left to return home. The reason she could not find Lindsey was because he had left the police station and gone to Pesina’s apartment. Surveillance video from a convenience store across the street from Pesina’s apartment shows that Lindsey entered the store at about 8:35 p.m. The cashier, Heather Hampton, was acquainted with both Lindsey and Pesina, because they frequented the store to buy cigarettes. According to Hampton, on August 21, Lindsey bought only one item: a cigarette lighter. Hampton also testified that the defendant had been drinking and that he said that he was “going to burn the bitch’s apartment down,” referring to Pesi-na. She further said that as he left, he said “I’m going to kill the bitch!”

At approximately 9:00 p.m., the fire department was dispatched in response to a report of a fire at the apartment building. The fire was reported by another of the several different residents in the same apartment building where Pesina’s apartment was located. Numerous fire and police units responded to the scene.

While Aswell was driving back home, she received another call from Lindsey, who had returned to the police station, asking her to pick him up. After she did so and upon leaving the police station, she saw a number of fire trucks responding to a fire. She wondered aloud where the trucks were Lgoing, and Lindsey responded, “I set fire to the apartment.” When Aswell expressed doubt about the story, Lindsey said, “If you don’t believe me, Aunt Barbara, follow them.” She did so and saw that Pesina’s apartment was on fire. After being assured that Pesina and her children were not injured, Aswell told police that Lindsey was in her vehicle.

Lindsey was arrested and informed of his Miranda rights. In Aswell’s vehicle, police found a cigarette lighter, a soft drink, and a bottle of whiskey. Aswell informed the police that the items did not belong to her. Lindsey was placed in the back of a patrol car, which was equipped with a video and audio recording system that recorded all of his statements along with the public safety radio traffic during the time he was in the car. At the beginning of the recording, during questioning, Lindsey denied having left the police station earlier that evening. After a few brief questions, the officers left Lindsey alone in the car. From that point on, the video captured numerous spontaneous and profanity-laced outbursts from Lindsey, sometimes in response to radio traffic:

What the f* * * you got on me? You ain’t got s* * * on me.... F* * * yPall man. F* * * the snitches_ Five minutes my mother f* * * * * * ass! ... I love you Aunt Barbara! Stupid bitch! Why’d you tell on me? (Unintelligible) keep your mouth shut! ... Barbara ain’t nothing but a f⅜ * * * * * snitch! Barbara’s a snitch! ... F* ⅜ ⅜ * * * bitch.

When an officer returned to the car, Lindsey asked the officer, “Have you got an eyewitness? You ain’t got an eyewitness, motherf* * * * *, you ain’t got nothing.” At one point, without being prompted, Lindsey referred to phone records in reference to proof of his location.

| ¡An officer drove Lindsey to the police station for questioning. When Lindsey arrived at the police station, he was Miran-dized again and interviewed by WMPD Sergeant Christopher Thurmon. According to Sgt. Thurmon, Lindsey smelled strongly of smoke, which did not smell like cigarette smoke.

Lindsey agreed to speak about the incident, and one of the first things he said was, “I did not start the fire.” He also said that he had stayed at the police department the entire time from when he first arrived until the time his aunt came to pick him up. Later, Lindsey told the detective that he had “beaten this rap before in another state,” and that the police “didn’t have any witnesses.” Lindsey informed the detective that he was “going to beat it again.”

The fire investigator for the City of Monroe, Charlie Simmons, arrived at the apartment complex at about 9:00 p.m. that night. The fire fighters had extinguished the fire by the time he arrived. Officer Simmons examined Pesina’s apartment and concluded that the fire started on the couch because that was the only area that had any flame damage. He also observed that there was heat damage inside the kitchen, and he discovered that the front right burner on the electric stove had been left “all the way on.” However, Off. Simmons concluded that the stove was not an origin of the fire. He found no evidence that an accelerant was used.

Along with Sgt. Thurmon, Off. Simmons also participated in the interview of Lindsey at the police station, and reported that Lindsey told them that “he’d beat an arson rap before.” Like the detective, the | (¡investigator reported that Lindsey smelled strongly of smoke that was not cigarette smoke.

Later that night, the fire in Pesina’s apartment rekindled. This time, the fire was much larger than the first fire, and ultimately destroyed 16 apartments — essentially the entire building — leaving up to 60 residents without homes. Ultimately, Lindsey was charged by Bill of Information with aggravated arson and the unauthorized entry of an inhabited building.

Lindsey chose to testify at his trial. He said that, on the day of the fire, he probably did ask Pesina if she was having sex with her roommate, but explained that he had been drinking quite a bit that day, he loved Pesina, and “you say things in a jealous rage.” However, Lindsey flatly denied having set the fire, saying that he smoked about two packs per day and that he often smoked on the couch in the apartment, sometimes falling asleep with a cigarette in his mouth or hand. He admitted that he had been in the apartment “maybe ... an hour and a half’ before the fire. On cross-examination, Lindsey said that he lied to the officers about never leaving the police station because “me and the officers wasn’t on the right track and we was arguing all night long.” He said that he was only joking when he told the convenience store clerk and his aunt about his role in the fire.

Based on all of the evidence presented, the jury convicted Lindsey as charged. The trial court sentenced Lindsey to 20 years at hard labor for the arson and a consecutive six years at hard labor for unauthorized entry. The trial court justified the maximum consecutive sentences citing numerous | factors, including the risk of harm to more than one person and personal and economic harm done by the offenses. Lindsey was also ordered to make restitution to Pesina, Lisa Sims (the owner of the apartment complex), and Chubb Insurance Group (the property insurer). The trial court denied Lindsey’s motion to reconsider sentence, and Lindsey’s appeal of his conviction and sentence for aggravated arson ensued.

Discussion

Lindsey’s first two assignments of error are related and are addressed together. First, he argues that the state failed to prove a corpus delicti. He also submits that the evidence against him was insufficient to support the conviction. Specifically, he urges that the state did not prove that he intentionally set the fire or disprove his hypothesis that the fire was of accidental origin. Regarding the corpus delicti, he also argues that there was no proof that the fire was the result of any criminal act. We disagree on both points.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 8U.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. art. 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. Blow, 45,415 (La.App.2d Cir.08/11/10), 46 So.3d 735.

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.

| gLouisiana R.S. 14:51 provides, in part that, “Aggravated arson is the intentional ... setting fire to any structure ... whereby it is foreseeable that human life might be endangered.”

It is well settled that a person cannot be convicted on his or her confession alone. State v. Hopkins, 35,146 (La.App.2d Cir.11/02/01), 799 So.2d 1234. The corroboration rule requires that there be some evidence, besides the confession, that a criminal act was committed by someone. State v. Hopkins, supra; State v. Cutwright, 626 So.2d 780, 783 (La.App. 2d Cir.1993), writ denied, 632 So.2d 761 (La.1994). As the Louisiana Supreme Court explained:

Under the Louisiana corpus delicti rule, an accused cannot be convicted on his own uncorroborated confession without proof that a crime has been committed by someone. In a homicide case, the corpus delicti consists of proof that the victim died and that the death was caused by a criminal act. This independent proof need not go to every element of the offense; and, it may be either direct or circumstantial in nature. The prosecution must show “that the injury specified in the crime occurred and that the injury was caused by someone’s criminal activity.”

State v. Thibodeaux, 1998-1673 (La.09/08/99), 750 So.2d 916, 926, cert denied, Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

The gist of Lindsey’s corpus delicti argument is that the state failed to prove that the fire was the result of a criminal act, i.e., that the fire was deliberately set or was of other than accidental origin. The fire marshal found no evidence of the use of accelerants in the fire, and no witness saw Lindsey set the fire.

| min this case the evidence of Lindsey’s criminal act was both direct and circumstantial, and the absence of forensic proof of arson is not fatal to the case against him. Although earlier in the day of the fire, Lindsey had been driven to the nearby police station, he later placed a call to the victim from inside her apartment, saying, “I told you I’d get even with you and I told you I’d get you.” Just prior to the reporting of the fire, Lindsey visited a convenience store across the street from the victim’s apartment. At the store, he bought a single item — a lighter — and told the cashier that he was “going to burn the bitch’s apartment down.”

Because of the proximity of the police station, the convenience store and the apartment, Lindsey had the opportunity to enter the apartment and start a fire within a short time frame. Next, Lindsey returned to the police station and waited for his aunt to arrive; in the meantime, the fire was reported by a nearby tenant. When Lindsey and his aunt left together, he confessed to his aunt that “I set fire to the apartment” and invited her to verify his claim: “If you don’t believe me, Aunt Barbara, follow them.” After his arrest, he repeatedly referred to his aunt as a snitch and was upset with her for talking to the police. Moreover, Lindsey, who claimed to have been at the police station the entire time before the fire, smelled strongly of smoke, and, according to the police officer, the smell was distinct from the smell of cigarette smoke.

These facts are plainly sufficient to prove beyond a reasonable doubt that the fire was the result of a criminal act: Lindsey set the victim’s couch on fire during the time he was in the apartment after buying the lighter at the Inconvenience store. The facts exclude every reasonable hypothesis of innocence, such as an accidental fire caused by a smouldering cigarette; the single conclusion to be drawn from these facts is that Lindsey deliberately set the fire in order to, in his words, “get even with” Pesina, who had just evicted him from the apartment. Lindsey’s confession had ample corroboration and there was clearly sufficient evidence to convict him of the crimes charged. Accordingly, we determined that these assignments of error are without merit.

In his third assignment of error, Lindsey argues that the trial court erred when it denied his motion for a mistrial, which he submits was based on a highly prejudicial response by a witness. Specifically, Lindsey states that the trial court should have declared a mistrial upon the evocation from Pesina that Lindsey accused her — in a shocking and inflammatory way — of having sex with her African-American roommate. Pesina testified that Lindsey had asked her, “Are you f* * * * *g that n* * * *r?” Lindsey complains that this phrase “was carefully sought out by the State” and that the primarily African-American jury was irretrievably prejudiced against him after hearing Pesina relate what he said to her prior to the commission of his crimes. We disagree.

Louisiana C. Cr. P. art. 775 provides, in part, that, “Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

|12The effect of a defendant’s use of racial epithets in out-of-court statements has been addressed in the jurisprudence. In State v. Mayeaux, 570 So.2d 185 (La.App. 5th Cir.1990), writ denied, 575 So.2d 386 (La.1991), the prosecutor played for the jury a tape-recorded conversation where the defendant used the same racial epithet used here. The trial court denied the defendant’s motion for a mistrial, and the appellate court affirmed, stating in part:

The trial judge carefully evaluated the prejudicial effect and inflammatory nature of the challenged reference by considering the reference in context with the statement of which it is a part. He concluded that this reference was not racially motivated, but rather was characteristic of the defendant’s manner of expressing himself. This conclusion seems to be well supported as the defendant used numerous expletives in the portion of the recorded conversation submitted for review.

Id. at 189.

Likewise, in this case, the jury was entitled to hear what Lindsey had told Pesina on the morning of the day of this incident despite the danger of unfair prejudice. That remark was the one that precipitated Pesina’s decision to evict Lindsey from the apartment, and, as Lindsey himself explained at trial, it also showed the extent of his jealous rage toward Pesina. Thus, although the remark contained a highly offensive word, inclusion of Lindsey’s remark was necessary because the remark commenced the series of events that led to the fire and was probative of Lindsey’s motive and intent to commit the offenses. Although the remark was undoubtedly prejudicial, Lindsey’s words served several important evidentiary purposes whose relevance outweighed the unfair prejudice of 11Rthe statement. Thus, we do not believe the statement related by Pesina at the trial and attributed to Lindsey was unreasonably prejudicial, and conclude that this assignment of error is without merit.

In his final assignment of error, Lindsey submits that the trial court erred by allowing the photographs from the “rekindle” fire. He makes a brief argument that the trial court should not have allowed the prosecutor to introduce into evidence the photos of the burned apartment building that were taken after the second fire. The record shows that Lindsey objected to the “rekindle” photos prior to the taking of evidence and that the trial court overruled that objection.

As explained in State v. Williams, 42,914 (La.App.2d Cir.01/09/08), 974 So.2d 157, 163, writ denied, 2008-0465 (La.09/26/08), 992 So.2d 983:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 403 states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” The trial judge determines whether evidence is relevant by deciding whether it bears a rational connection to the fact which is at issue in the case. Likewise, the trial court’s determination that evidence is more probative than prejudicial is entitled to great weight, and that determination will not be overturned on appeal in the absence of a clear abuse of discretion. (Citations omitted.)

In this case, Lindsey was charged with aggravated arson. One of the elements of that offense is proof that the fire was set “whereby it is foreseeable that human life might be endangered.” There are many possible | uoutcomes when a fire is set in a crowded building, none of them good. One possibility is the outcome in this case: the fire was detected early and apparently extinguished, but the fire rekindled and caused severe damage. Because of the varied and uncertain outcomes for a fire set in an inhabited structure, and because the concept of foreseeability is very fact-dependent, the state was entitled to present the “rekindle” photo evidence to show that Lindsey’s actions posed a real and substantial danger to human life. This assignment of error is without merit.

Conclusion

Considering the foregoing, the conviction and sentence of Charles Ray Lindsey for aggravated arson are affirmed.

AFFIRMED.

      . Corpus delicti is defined as, "The fact of a transgression.... ‘The phrase “corpus de-licti " does not mean dead body, but body of the crime, and every offense has its corpus delicti.'" Black’s Law Dictionary, (9th ed.2009), quoting, Rollin M. Perkins & Ronald N. Boyce, Criminal Law 140 (3d ed.1982).


text:
    STATE of Louisiana, Appellee v. Sharon K. MUDD, Appellant.
    No. 46,324-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.
    Charles R, Scott, II, District Attorney, Tommy J. Johnson, Geya D. Williams, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| lAfter a grand jury indictment charged Sharon Mudd with second degree murder she was convicted of manslaughter in a bench trial. She received a sentence of 22 years at hard labor and was granted an out-of-time appeal which challenges her sentence and conviction. We affirm.

Facts

Claire Brouillette was stabbed 36 times by Sharon Mudd in the early morning hours of March 3, 2007. The victim died three days later and Mudd was later charged by grand jury indictment with her second degree murder. Mudd was a resident of By Grace Recovery House when she allegedly stabbed Brouillette. She had a long history of mental disease including bipolar disorder. A sanity commission was appointed on February 29, 2008, after Mudd claimed she “was taken off her prescribed medication shortly before the incident in question and may not [have] been able to distinguish between right and wrong at the time [the] alleged crime occurred.” Based on physicians’ recommendations, Mudd was found competent to stand trial. Mudd proceeded to trial without entry of a plea of not guilty and not guilty by reason of insanity.

On the morning of the bench trial, Mudd filed a motion in limine claiming that the clergyman privilege of La. C.E. art. 511 protected the contents of a conversation Mudd had with the state’s witness, Jeannie L. | gHerman. After hearing oral arguments, however, the court was unable to rule on Mudd’s motion before a determination of Herman’s role. The court deferred judgment on the motion. After hearing the testimony of Herman, the trial court later denied Mudd’s motion during the trial.

The state’s first witness at trial was Kathleen Brouillette Frazier, the mother of the victim, Claire Brouillette. Frazier testified that on March 3, 2007, she received information that Brouillette had been hospitalized after an attack and was in critical condition. Brouillette remained on a ventilator until March 5, 2007, when she was declared dead. Frazier admitted that Brouillette was receiving treatment at By Grace Recovery House. According to Frazier, Brouillette was “one month away from being discharged” when she was attacked.

Corporal J. Cisco was the first Shreveport police officer to encounter Mudd. He responded after the dispatcher received an emergency 911 call from Brouillette. A tape of that call was played for the court and on the tape, Brouillette identified Mudd as her attacker as she was being assaulted. Corporal Cisco arrived on the scene and saw “two females running west from the 2600 block of Bibb Street.” Corporal Cisco testified,

one of the females run [sic ] to my car and fell across the hood of the car, collapsing in front of my car, which was later identified as the victim. The suspect seen [sic] the police car and she immediately stopped, turned the knife on herself and started backing up.

Corporal Cisco identified Mudd as the suspect, and Brouillette as the victim. Corporal Cisco testified that Mudd was chasing Brouillette with “a foot | slong” filet knife. Brouillette was not fighting Mudd or provoking her in any way. Corporal Cisco described the scene as follows:

I drew my duty weapon and held [Ms. Mudd] away from the victim as the fire department attended to the victim. Once my back-up, Corporal Baurichter, got there, I advised him that I was going to taze [sic ] her. We continued to give her loud verbal commands to drop the knife, she continued to just scream “shoot me, shoot me.” We went around and around in a circle, a couple of circles. Officer Baurichter arrived. I advised him that I was going to taze [sic ] her if she didn’t drop the knife. He pulled his service weapon. I put my service weapon up, and pulled the tazer [sic ] and we shot her and took her into custody.

Corporal Cisco testified that Mudd was pointing the knife at her chest when she yelled “shoot me, shoot me.” She did not threaten the officers or conceal the knife.

Corporal Baurichter corroborated Corporal Cisco’s description of her arrest. He also testified that he and Sergeant J.J. Silva went to the By Grace Recovery House to make sure there were no other victims. While Sergeant Silva secured the weapon and took pictures of the crime scene, Corporal Baurichter transported Mudd to the police station. Corporal Bau-richter read Mudd her rights and questioned her regarding the incident. Mudd did not remember what happened, but she said she was on five different medications for depression. Later, Corporal Bauri-chter was asked to take Mudd to “LSU” because “she told people at the jail she was suicidal.” He testified that it was normal procedure to transfer suicidal inmates to LSU for evaluation.

Stephanie Williams-Betters, the owner of By Grace Recovery House, testified for the state. Williams-Betters described the house as “a | transitional home for women” who were either “transferring from jail” or “recovering from alcohol or drugs” or “from abuse.” Williams-Betters said there were no caretakers or nurses on staff. She explained, “it wasn’t a hospital or anything, it’s just a — it’s like a boarding home.” Williams-Betters testified that the residents had a curfew and had to work, but “were basically on their own.” She knew some of the women required medication, but she testified that they were responsible for taking it themselves. The women were permitted to keep the medicine in their rooms, but they could give it to the house manager if they were concerned about theft. If they did, the house manager was expected to return their medication upon request.

The By Grace Recovery House routinely admitted women with mental issues. Williams-Betters did not think the policy was abnormal, and that residents with mental issues were required to abide by the same rules as everyone else. Prior to their admission, Williams-Betters personally interviewed Brouillette and Mudd. According to Williams-Betters, Mudd did not cause problems before her arrest, she never received a complaint regarding Mudd’s hygiene and was unaware there were problems between Mudd and Brouil-lette. Williams-Betters testified she knew Mudd was bipolar, and recently released from a “behavioral home.” She also knew Mudd was heavily medicated.

After Williams-Betters was informed of Brouillette’s hospitalization, she called Herman. Although Williams-Betters and Herman are friends, Williams-Betters denied asking Herman to visit Ms. Mudd at the Shreveport city jail. Williams-Betters was aware that Herman frequented the By Grace ^Recovery House. She testified that Herman “came over often and she spoke with [the women].” Williams-Betters was unaware that Herman presented herself as a “spiritual leader.” She testified that Herman said “she loved God and thanked God all the time, but I didn’t know * * * but I don’t know anything about that.” Williams-Betters testified that Herman did not conduct individual counseling sessions with the women at the By Grace Recovery House. Yet, she would often just sit down and talk with the women.

Herman initially gave testimony concerning her relationship with Mudd and how she presented herself to Mudd at the jail. She denied that she held herself out as a minister or counselor. It was then that the trial court ruled that Mudd’s statements to Herman were admissible. Herman was asked to recall the content of her conversation with Mudd. According to Herman, Mudd said that she attacked Claire Brouillette because she was “mad at Claire.” Mudd told Herman, “[Brouillette] wouldn’t quit picking on her about her chores that she needed to do.” According to Herman, Mudd said she “waited for everybody to leave that night” and “thought about it and thought about it.” Mudd told Herman she “went and got a knife out of the kitchen,” and entered “the bedroom where Claire was sleeping ... and attacked her with the knife.” Mudd said that when the fighting stopped, “Claire started running.” Herman then asked Mudd if she planned the attack. According to Herman, Mudd said “she planned it, she thought about it and thought about it.”

|fiMudd’s mother, Mary Greenwald, was Mudd’s sole witness. Greenwald testified that Mudd had previously been admitted to hospitals in Louisiana and Indiana. Greenwald cared for Mudd’s daughter while she was away. She also cared for Mudd when she was released from the hospital. While in her care, Mudd was problematic, because she wouldn’t take her medicine and she would act irrationally. Greenwald testified that Mudd was incapable of taking her medicine on her own. After Mudd was arrested, her belongings were released to her mother. Mudd’s medication was among the effects her mother received. Greenwald testified that she was “amazed” after she counted the pills because Mudd’s medication had not been exhausted. According to Greenwald, Mudd received her medication on January 24, 2007, and it should have been used in one month.

During closing arguments, Mudd’s counsel admitted Mudd killed Brouillette but argued that she should be convicted of manslaughter because she was unmedicat-ed and unable to control her temper. The trial judge agreed and entered the responsive verdict of manslaughter.

After considering the aggravating and mitigating circumstances, the court sentenced Mudd to 22 years at hard labor with credit for time served. The trial court denied Mudd’s motion to reconsider sentence on June 23, 2010. Mudd was granted an out-of-time appeal challenging the denial of her motion in limine and sentence.

Discussion

Mudd urges error in the trial court’s ruling on her motion in limine which allowed Herman to testify regarding Mudd’s statement to her. 17Immediately prior to Herman’s testimony, Williams-Betters testified that she was unaware that Herman presented herself to the residents as a spiritual leader and that Herman was not considered as having a clergy relationship with the residents. Herman denied presenting herself to Mudd as a clergy person.

The clergyman privilege is embodied in La. C.E. art. 511 (Communications to clergymen). La. C.E. art. 511 provides:

A. Definitions. As used in this Article:
(1) A “clergyman” is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual advisor.
C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.

The supreme court interprets Article 511 as follows:

Whether the clergyman privilege of La. C.E. art. 511 applies is determined under a totality of the circumstances test: (1) it must be determined that the person to whom the communication was received is a “clergyman;” (2) it must be determined that the purpose of the communication was to seek spiritual advice or consolation; (3) it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication; and (4) even if those explicit requirements of the article are met, it must also |8be determined whether or not the communicant waived the application of the privilege.

State v. Gray, 04-1197 (La.1/19/05), 891 So.2d 1260, 1267.

A person upon whom the law confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. La. C.E. art. 502(A).

Whether the prerequisites to the recognition of the privilege are present is a determination to be made by the trial judge. State v. Gray, supra at 1264; La. C.E. art. 104(A). A trial court’s ruling on a motion to suppress is subject to an abuse of discretion standard. Id. In determining whether a defendant has established the legal prerequisites for the clergyman privilege to apply, the trial court considers whether the totality of the circumstances presented indicate that the statements made by the defendant are within the communication protected by the privilege. Id. Relevant to this issue, Herman testified that she is an esthetician with 35 years’ experience. She volunteers at numerous facilities and halfway houses around town and occasionally visited the By Grace Recovery House to bring clothes to women. She would also “encourage the girls; try to help them find jobs and so forth.” Herman denied counseling the women individually or in a group. She denied going to the home as a minister. Herman testified that she has never referred to herself as a minister although she agreed that she has engaged in ministering to people. Herman explained the phrase ministering to people means “helping them, encouraging them to have jobs, and just' encourage them.”

[ ^Herman encountered Mudd while volunteering at the By Grace Recovery House. She would “just say hello” and “how you doing.” She “never really had a conversation with her.” Herman did not counsel Mudd at the House. Similarly, the women did not discuss God.

Herman recalled her city jail conversation with Mudd. According to Herman, she did not hold herself out to be a minister to Mudd, or anyone else. She did not hold herself out to be a counselor, nor did she go to minister to Mudd. She simply “wanted to find out what happened at the halfway house.” It took Mudd a few minutes to recognize her from the house. When Mudd asked why she was there, Herman said “Vertrice [the house manager] and Stephanie wanted to know how she was doing.” Herman did not lead Mudd to believe the conversation would be private. After Herman spoke with Mudd, she asked Mudd if she wanted to pray. The women prayed before Herman left.

From the totality of the evidence before the court, the trial court properly concluded that Herman did not hold herself out as a minister at the By Grace Recovery House or in her meeting with Mudd at the jail. Likewise, there is no evidence that Mudd would have reasonably believed that Herman was performing as a clergy person on the day of her jail conversation with Herman. Further, in accepting that testimony, the court could have determined that on the day of the conversation the purpose of Herman’s visit with Mudd was for nothing more than fact-gathering. Accordingly, we find no error in the ruling of the trial court allowing Herman’s testimony.

|10In her other assignment of error, Mudd claims that the trial court’s sentence of 22 years is constitutionally excessive because she is in need of mental health treatment, not imprisonment.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. State v. Dorthey, 623 So.2d 1276 (La.1998). First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance, so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any | particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence must not violate Article 1, § 20 of the Louisiana Constitution. A sentence will violate the constitution if it is grossly out of proportion to the seriousness of the offense, or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, supra; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. The trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, a sentence should not be set aside as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, 25,583 (La.App.2d Cir.1/19/94), 631 So.2d 555.

We find adequate La. C. Cr. P. art. 894.1 compliance. Before pronouncing sentence, the trial court took particular notice “that there is an undue risk that during a period of a suspended sentence or probation that the defendant would commit another crime.” The court also determined that Mudd was in need of correctional treatment or a custodial environment that can be provided most effectively by her commitment to an institution. The | i2court continued by listing the following aggravating and mitigating circumstances:

The defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim.... The offender used a dangerous weapon in the commission of the offense_ The victim was particularly vulnerable or incapable of resisting due to her own disability.... The impact statements from the ■victim’s family.... The age of the defendant. ... [The lack of] significant ... prior criminal activity_ [The] defendant[’s] work history.... The [fact] that the defendant ... had not taken her medication.... [The defendant’s family] who tried to support her during her difficult times ... [and the fact that the] defendant is still in need of mental health intervention.

Nor do we find the imposed sentence to be constitutionally excessive. For her manslaughter conviction Mudd faced maximum sentencing exposure of 40 years at hard labor. Thus, she received a mi-drange sentence. In fashioning the imposed sentence to the circumstances of this case, the trial court clearly considered Mudd’s mental state and lack of criminal record as mitigating factors. Likewise the court considered that the brutal nature of the crime at hand was precipitated by Mudd’s “repeated failure to comply with treatment recommendations,” which ultimately renders her “dangerous to herself and others.”

While Mudd’s mental issues are evident on the record before us, nevertheless, two mental experts had no difficulty in finding her able to tell right from wrong at the time of the offense. Neither was her competency to stand trial seriously contested. Evidence that Mudd premeditated her attack of Brouillette is contained in the record. Thus, a second degree conviction was supported by the facts. The trial court’s manslaughter conviction greatly reduced Mudd’s potential sentencing exposure. While Mudd’s |1smental illness cannot be disregarded, it is equally impossible to ignore the brutal nature of this offense which resulted in the death of an innocent victim. In the absence of the establishment of the defense of not guilty by reason of insanity, the criminal justice system of this state requires that such violent criminal acts be punished through accountability by incarceration. Bearing all of these factors in mind, we cannot conclude that the 22-year sentence imposed for this brutal attack shocks the sense of justice or is grossly disproportionate to the harm done to society. Thus, the sentence is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Doctors George Seiden and Richard Williams were appointed by the court. The two doctors interviewed Mudd and diagnosed her with bipolar disorder. Although they considered Mudd’s condition severe, they determined she was fit to stand trial. They also indicated the belief that Mudd knew "right from wrong” when the alleged offense occurred. Dr. Seiden recommended that Mudd be maintained in a secure forensic psychiatric facility due to his fear that her condition would deteriorate.