text:
    STATE of Louisiana v. Larry LAWRENCE.
    No. 2009-KA-1637.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

_jjA less-than-unanimous jury convicted Larry Lawrence of the second degree murder of Lionel Freeman, Jr., a one-year-old child. The jury, over Mr. Lawrence’s objection, considered evidence of the facts underlying his earlier conviction for cruelty to a juvenile, which in that case was his seven-month-old daughter. The district judge denied Mr. Lawrence’s motions for new trial and for reconsideration of sentencing, and sentenced Mr. Lawrence to the mandatory sentence of life in prison, without benefit of probation, parole or suspension of sentence. See La. R.S. 14:30.1 B.

In this appeal, Mr. Lawrence assigns five errors. He argues that the trial court erred in admitting the evidence of his prior bad conduct involving his young daughter. As we explain in detail in Part II, we conclude that the trial judge did not abuse her discretion in admitting that evidence. Mr. Lawrence also argues that the prosecution failed to exclude every reasonable hypothesis of innocence. In Part III we explain our conclusion that there was sufficient evidence on every element of |2the offense upon which a rational juror could find Mr. Lawrence guilty beyond a reasonable doubt of second degree murder. Mr. Lawrence argues in another assignment of error that his conviction is defective because the twelve-person jury’s verdict was not unanimous. We reject this argument, which we explain in Part IV, because we are obliged to follow the controlling authority of the Louisiana Supreme Court on this issue. Thus, we affirm Mr. Lawrence’s conviction.

We do, however, agree with Mr. Lawrence that the district court erred in denying him an opportunity for an evidentiary hearing on his motion for reconsideration of his life sentence. We explain in Part V our reasons for remanding the matter to the district court for a hearing at which Mr. Lawrence may attempt to establish that the mandatory sentence imposed upon him violates the constitutional prohibition against excessive punishment and provide specific remand instructions to the trial judge.

We turn now, in Part I, to an introductory review of the background facts.

I

Little Lionel was pronounced dead at the hospital emergency room on February 5, 2004 after all attempts to provoke a cardiac response proved futile. During the initial intake and subsequent autopsy, several injuries to the child were | ^discovered. Lionel had extensive bruising on his face, head, chest, abdomen, and thighs. His internal organs, especially his liver, pancreas, and right adrenal gland, were severely lacerated; his liver had been nearly bisected by a seven-inch tear that had left only a 1.5 centimeter segment intact. When the child’s abdominal cavity was opened, a large amount of blood gushed out.

The entire length of the spermatic cord had been damaged by someone grabbing the young boy’s scrotum and pulling it, drawing the spermatic cord back down through the inguinal canal, causing traumatic injury.

Dr. Diane Kirby, the physician on duty when Lionel was brought to the hospital testified that his injuries were inconsistent with the suggestion that Lionel had been eating, sleeping, and playing as normal, as the resulting loss of blood into the abdomen would cause unconsciousness after only three to five minutes. According to Dr. James Traylor, who performed the autopsy, the only adequate explanation for Lionel’s injuries was the intentional infliction of bodily harm. His death was deemed the result of “blunt force injuries,” and even classified by the coroner as a homicide.

The course of events leading to Lionel’s autopsy, and later the murder trial, began with the eviction of Lionel’s mother, Kay Williams, from her apartment in December 2008; Ms. Williams and Lionel came to live with their neighbors in an apartment on North Robertson Street. Angela Gerdes shared an apartment with her son, her two daughters, and her fiancé, the defendant Larry Lawrence. Some nights Ms. Williams would stay out until morning, leaving her son in the care of Ms. Gerdes and Mr. Lawrence. Mr. Lawrence, in a taped statement made to the |4homicide investigators, stated that on the night of February 4, 2004, after Ms. Williams had gone out, he “played boxing” with little Lionel before putting him to bed. This might explain, according to Mr. Lawrence, some of the bruising and injuries, which would have been unintentional or accidental.

On the early morning on February 5, 2004, Ms. Gerdes was awoken by Lionel’s crying, but she went back to sleep until her alarm later went off about 6:00 that morning, at which point she asked Mr. Lawrence to wake her children for school. After waking the children, Mr. Lawrence remained in the bedroom for a few moments and then cried out.

According to Ms. Gerdes she entered the bedroom to see Lionel on the bed; Mr. Lawrence told her that Lionel was not breathing. Mr. Lawrence, though untrained in CPR, claims that he attempted to resuscitate the child, but the child vomited when picked up and then turned blue.

Then, at 7:10 a.m., Ms. Gerdes called 911. In the call she stated that she had a child who had vomited a large amount of red-colored liquid, possibly while sleeping, and who was now choking and suffocating. She also stated that her flaneé was trying CPR on the child. She reported in the call that the child had fallen three feet from his bed to the ground at some point in the morning, but that he had seemed “alright.” Mr. Lawrence also got on the line during the 911 call and confirmed that the child had fallen out of bed and screamed when he hit the ground, but that he soon went back to sleep. When they returned later to wake the child, he was lying in a pool of vomit. According to Mr. Lawrence, the child had a bump on his head and over his eye before the fall.

Both Ms. Gerdes and Mr. Lawrence said the child was blue, and that, while attempting mouth-to-mouth resuscitation, Mr. Lawrence had seen fluid coming out Rthe child’s nose. During the call, the operator instructed Mr. Lawrence to perform CPR on the child using the heel of his hand, which it turns out is an inappropriate method for resuscitating a small child.

New Orleans Fire Department Captain Kenneth Mahler was one of the first rescue workers to see the child. When Captain Mahler arrived, he found the child lying on the bed face-up. The child was unresponsive, had fixed pupils, was cold to the touch, and displayed every indication that he was already dead. Nonetheless, Captain Mahler and the other first responders worked to revive the child for twenty minutes until EMS arrived and placed the child in an ambulance to transport him to the emergency room.

The jury concluded that Mr. Lawrence killed Lionel.

II

In this Part we examine Mr. Lawrence’s claim that the trial court erred in admitting evidence of “other crimes, wrongs, or acts.” The “other crime” that the jury learned about was Mr. Lawrence’s conviction in 1989 for cruelty to a juvenile, a violation of La. R.S. 14:93 A, which provides in pertinent part:

Cruelty to juveniles is:
(1) The intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense;

Ultimately, when he pled guilty, Mr. Lawrence admitted to beating his 7-month-old daughter and burning her forehead with a cigarette. But the jury also | filearned that even while admitting guilt Mr. Lawrence explained his actions as accidental. At trial, former probation and parole agent Mack Summers testified that, as he reported in his presentence investigation report prepared for defendant’s sentencing, Mr. Lawrence claimed to have accidentally burned the infant in the forehead with a cigarette. Denying fault for the child’s bruises and contusions to her arms and legs, Mr. Summers noted, Mr. Lawrence “explained” that his four-year-old step-daughter was climbing on an old stereo and it collapsed, causing both the child and the stereo to fall on the infant victim.

Here, Mr. Lawrence was charged with second-degree murder, a violation of La. R.S. 14:30.1, which is defined, in relevant part, as:

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

(emphasis supplied)

“Intent” is an issue whether the prosecution is proceeding under subpart (1) or subpart (2), as cruelty to juveniles can also involve intent. See, e.g., State v. Bradford, 259 La. 381, 393, 250 So.2d 375, 379 (1971). La. R.S. 14:10 describes criminal intent:

(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the 17ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

Mr. Lawrence indeed does not dispute that intent was a genuine and contested issue at his murder trial.

Of course, the antithesis of an intentional act is an accidental act. The distinction between the two can mean the difference between, for example, the inapposite crimes of murder and negligent homicide. See State v. Stanford, 204 La. 439, 446-47, 15 So.2d 817, 819 (1943).

We consider now La. C.E. art. 404 B(l), which regulates the admissibility of the kind of evidence to which Mr. Lawrence objects and provides:

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

While, generally, evidence of other crimes, wrongs, or acts is not admissible to prove a person’s bad character to show that he acted in conformity therewith, such evidence may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident.” La. C.E. art. 404 B(l); State v. Miller, 98-0301, pp. 3-4 (La.9/9/98), 718 So.2d 960, 962.

| RThere are also several other statutory and jurisprudential rules at play when considering the admissibility of this “other bad act” evidence, summarized in State v. Miller, supra, pp. 3-4, 718 So.2d at 962:

First, one of the factors listed in 404 B “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the state is required to prove the defendant committed these other acts ... Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. j03. Finally, the requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973), must be met. Thereunder, the state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. The state must show that the evidence is neither repetitive nor cumulative, and is not being introduced to show the defendant is of bad character. Further, the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court must also charge the jury at the close of the trial that the other crimes evidence serves a limited purpose and that the defendant cannot be convicted for any crime other than the one charged or any offense responsive to it. (emphasis supplied.)

A trial court’s ruling on the admissibility of evidence pursuant to C.E. art. 404 B(l) will not be disturbed absent an abuse of discretion. State v. Gibson, 99-2827, p. 12 (La.App. 4 Cir. 4/11/01), 785 So.2d 213, 220.

[ciThe prosecution suggests that evidence of Mr. Lawrence’s prior conviction of cruelty to a juvenile was admitted to prove intent as well as lack of mistake or accident. Mr. Lawrence generally rebuts this assertion by arguing that admission of this prior bad act evidence was improper because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, violating the restrictions of La. C.E. art. 403. Mr. Lawrence does not argue that the other requirements for admission of prior act evidence, quoted from Miller, supra, were not met. Accordingly, we limit our discussion to whether or not the evidence was admissible to establish a statutorily-sanctioned purpose and whether or not its probative value was substantially outweighed by the danger of unfair prejudice.

We first address whether evidence of the prior conviction was admissible for the purpose of establishing intent. In order for other crimes to be admissible as evidence of intent, the prosecution must establish three prerequisites: “(1) the pri- or acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect.” State v. Blank, 04-0204, p. 41 (La.4/11/07), 955 So.2d 90, 124.

The prior act evidence at issue here is sufficiently similar to the act of cruelty for which Mr. Lawrence was convicted. The instant second-degree murder conviction may be established by proof that the victim was killed in the perpetration or attempted perpetration of cruelty to a juvenile, and Mr. Lawrence previously pleaded guilty to a charge of cruelty to a juvenile.

We now examine the similar issue of whether the bad prior act evidence was admissible for the purpose of proving absence of mistake or accident. In State v. Galliano, 02-2849 (La.1/10/03), 839 So.2d 932, evidence of an incident in which the defendant had previously harmed his two-year-old victim was admissible to | inshow a lack of accident and lack of intent at his trial for second-degree cruelty to a juvenile. The defendant’s charge arose out of an incident in which the child sustained serious head injuries consistent with shaken baby syndrome. Id., p. 2, 839 So.2d at 932. In the prior incident, the victim suffered a broken leg as a result of defendant applying excessive force to remove him from his car seat. Id. The defendant admitted to the act, but he claimed that the injury was an accident. Id., p. 2, 839 So.2d at 933. In its decision, the Louisiana Supreme Court held:

The evidence of the prior incident in which the victim sustained a broken femur when defendant pulled him forcefully from his car seat has probative value to show the improbability that the defendant acted without the requisite intent, or accidentally, when he, according to his own admission, shook the victim in the instant situation “to get his attention.” See, State v. Monroe, 364 So.2d 570 (La.1980[1978]) (under the doctrine of chances, likelihood that defendant was required to kill twice in self-defense on successive nights at the same location was so remote that evidence of the other killing was admissible to negate self defense and lack of intent).

Galliano, supra, p. 4, 839 So.2d at 934. Finding no abuse of discretion in the trial court’s ruling admitting the prior act evidence, the Court agreed that evidence of the prior incident had “independent relevance to the issues of intent, system, and absence of mistake.” Id., p. 4, 839 So.2d at 934. Similarly, Mr. Lawrence has twice offered up his lack of intent to explain away the harm done to both his daughter and to Lionel. In his prior conviction, Mr. Lawrence pleaded guilty to the charge of cruelty to a juvenile because he “felt responsible,” but insisted that his daughter’s injuries were accidental and “could not be helped.” With respect to his murder charge, Mr. Lawrence admits to “play-boxing” with Lionel, yet he persists in his explanation that any injuries sustained by the child were purely accidental. Because Mr. Lawrence committed multiple acts of cruelty to children, because the |nacts are so similar, and because both are accompanied by excuses that the harm was accidental, evidence of his prior crime was admissible for the purpose of demonstrating intent and the absence of accident. This prior evidence has probative value to show the improbability that Mr. Lawrence, like the defendant in Galliano, acted either on accident or without the requisite intent.

We now turn to Mr. Lawrence’s complaint that the prior bad act (or “propensity”) evidence introduced against him at his trial was unfairly prejudicial. In doing so, we are guided by the provisions of La. C.E. art. 403, which provides: “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.”

We do not overlook the fact that this prior bad act evidence is highly prejudicial. The risks of such evidence are aptly described by the United States Supreme Court in Old Chief: “Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (quoting then-Judge Breyer in United States v. Moccia, 681 F.2d 61, 63 (C.A.1 1982)). Mr. Lawrence, like the defendant in Old Chief, relies on the risk of unfair prejudice. The question then becomes whether the probative value of the evidence (herein to show intent and absence of mistake) is substantially outweighed by this risk of prejudice. See Old Chief, supra, 519 U.S. at 182, 117 S.Ct. 644; La. C.E. art. 403. Because we, like the trial judge, find that the probative value of the prior act evidence prevails, the admission of this evidence does not result in error. Under the circumstances of this case, although evidence of the prior 112incident is prejudicial, we cannot say it is “so inflammatory as to create an unacceptable risk of luring jurors ‘into declaring guilt on a ground different from proof specific to the offense charged.’” Galliano, supra, p. 4, 839 So.2d at 933 (quoting Old Chief v. United States, 519 U.S. at 180, 117 S.Ct. 644).

It often happens that evidence which is admissible for one purpose is not admissible for some other purpose, and in such cases the court will, upon request, restrict the evidence to its proper scope and instruct the jury accordingly. See La. C.E. art. 105. Although there was no such request by Mr. Lawrence at trial when this evidence was introduced, the trial court included a pertinent instruction before the jury deliberated on its verdict. Thus the final requirement for admission of prior bad act evidence, that the trial judge charge the jury with a limiting instruction, was met. As part of the jury instructions the trial judge explained:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show guilty knowledge, absence of mistake or accident, intent, system, motive or identity.

Accordingly, the jury was properly instructed as to the limited scope for which the evidence of Mr. Lawrence’s prior conviction for cruelty to a juvenile may have been considered. Because evidence of Mr. Lawrence’s prior conviction was admitted for a proper purpose, was not substantially outweighed by the risk of undue or unfair prejudice, and otherwise complies with the requirements of La. C.E. art 404 B(l), we find that the trial judge did not abuse her discretion in admitting the evidence of Mr. Lawrence’s prior act of cruelty to his own daughter.

_bni

Mr. Lawrence argues that the evidence submitted at his trial was insufficient to support a verdict of guilty for second degree murder. It is well-established that a criminal conviction must be supported by proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Review of the sufficiency of the evidence requires a determination of whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the United States Supreme Court defined the scope of this inquiry, stating that it “does not require a court to ask itself whether it believes that the evidence established at the trial established guilt beyond a reasonable doubt.” Id. at 318-19, 99 S.Ct. 2781 (quotations and citation omitted). Instead, the Court explained, “the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis in original). This is known as the Jackson standard of review. The Jackson standard applies to all evidence, both direct and circumstantial, to test whether it is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657; State v. Owens, 30,903, pp. 3-4 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, 614, writ denied 98-2723 (La.2/5/99), 737 So.2d 747.

Mr. Lawrence was convicted of second degree murder, a violation of La. R.S. 14:30.1, which in pertinent part states that, “[w]hen the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles, second degree cruelty to juveniles, ..., even though he has no intent to kill or to inflict great bodily harm.” La. R.S. 14:93 defines cruelty to juveniles, in pertinent part, as “[t]he intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby | Uunjustifiable pain or suffering is caused to said child.” Second degree cruelty to juveniles, defined by La. R.S. 14:93.2.3 A(l), is “the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.” Finally, La. R.S. 14:12 defines criminal negligence as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

Aside from the identity of the offender, all other elements of the crime of second-degree murder were established by direct evidence. The medical evidence introduced at trial, discussed infra, demonstrates that the injuries leading to Lionel’s death were the result of intentional acts of cruelty. Mr. Lawrence suggests that the element of his identity was based on only circumstantial evidence and that the prosecution did not establish his identity as the perpetrator beyond a reasonable doubt. In cases in which an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. R.S. 15:438 states the rule as to circumstantial evidence: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” By reading this evidentiary statute alongside the constitutional requirements of Jackson, the Louisiana Supreme Court recognized a test for evaluating the sufficiency of circumstantial evidence in State v. Shapiro, 431 So.2d 372, 385 (La.1982) (on rehearing). In that case, the court stated that the evidence “must not only be sufficient to convict the defendant, but, in testing its sufficiency, it must exclude 11Bthe [reasonable] hypothesis that somebody else committed the offense.” Id., 431 So.2d at 385 (quoting State v. Jenkins, 134 La. 185, 63 So. 869 (1914)). Stated another way, on review of sufficiency of the evidence, the evidence must be consistent with guilt as well as inconsistent with a reasonable hypothesis of innocence. Id., 431 So.2d at 385 (other citations omitted).

Mr. Lawrence appears to argue that he has proposed a reasonable hypothesis of innocence that has not been ruled out by the evidence. After examining Mr. Lawrence’s argument, we find that the evidence is inconsistent with his theory of innocence, and a reasonable factfinder could have found him guilty — on every element, including his identity as the perpetrator — of this crime beyond a reasonable doubt. Mr. Lawrence’s hypothesis of innocence suggests that Lionel’s injuries were either accidental or were inflicted by his mother, Kay Williams. The uncontro-verted medical evidence, discussed below, concluded that the manner of death was homicide, caused by blunt force injuries. Based on this evidence, we can not reasonably find that Lionel’s injuries were accidental.

After examining Lionel’s body when it was brought to the hospital, Dr. Kirby concluded that Lionel had been cold or without circulation for “a few minutes to maybe thirty minutes, tops.” Furthermore, after the autopsy, Dr. Traylor concluded that, after receiving the kinds of injuries sustained by Lionel, he would expect him to survive for only three to five minutes. Dr. Traylor also noted that the injuries to Lionel’s liver and pancreas were most likely caused by one forceful blow: “at some point in time either the child was squeezed forcefully or punched in the stomach or rapid heel to the stomach.” Due to the amount of blood and blood clotting that Dr. Traylor observed during the autopsy, he noted that this injury was fatal: “This is not something that occurred right after the baby died,” he concluded, 11fiThe child would, at the very least, have been rendered unconscious from blood loss to the abdomen. Furthermore, Dr. Traylor explicitly stated that these injuries would not have been the result of CPR efforts: “Even if they’re doing it [CPR] incorrectly,” Dr. Traylor explained, “you’re not going to inflict this type of injury!,] and the hemorrhage that is associated with that injury implies that this child was alive. This is inflicted trauma that was done purposefully and is not accidental.”

Moreover, Mr. Lawrence’s suggestion that the injuries were hot caused by him but rather by Ms. Williams is untenable and inconsistent with the evidence. Mr. Lawrence points to Yasmine Moseley’s testimony about Ms. Williams’ prior negligent treatment of Lionel as well as the fact that she had seen bruises on Lionel’s body “before Larry and them even moved to the house where they were living,” to implicate Ms. Williams in Lionel’s death. However, Ms. Moseley testified that Ms. Williams was not in the same house as Lionel at the time of his death. The night that Lionel died, Ms. Williams went to Ms. Moseley’s house around ten or eleven o’clock at night, where she remained until the next morning when she received a phone call that her child was in distress. Regardless of whether Lionel was ever abused by Ms. Williams (or anyone else), the evidence indicates that she could not have been the individual who gave Lionel the injuries that led to his death.

Accordingly, we find that a jury could reasonably have found Mr. Lawrence guilty of second degree murder beyond a reasonable doubt as to every element of the offense. Along with the medical testimony that Lionel’s death was caused by |, intentional acts of cruelty, Mr. Lawrence’s admission of “play-boxing” with the child, his past act of cruel treatment of his own daughter, and the fact that he was the last person to see Lionel alive, tends to discount any other reasonable hypothesis of innocence. We cannot agree that the jury’s guilty verdict was based on insufficient evidence.

IV

We turn now to briefly address Mr. Lawrence’s claim, first raised by motion in the trial court, that La.C.Cr.P. art. 782 A which authorizes less-than-unanimous jury verdicts in specified felonies triable by twelve-person juries violates the Sixth and Fourteenth Amendments and on that account is unconstitutional. Mr. Lawrence questions the continued viability of the plurality opinion in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), which decision approved of Oregon’s use of less-than-unanimous juries. But the Louisiana Supreme Court, in a case in which the district judge had found Article 782 A unconstitutional, reversed with the following observation:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

State v. Bertrand, 08-2215, 08-2311, p. 8 (La.3/17/09), 6 So.3d 738, 743. See also State v. Barbour, 09-1258 (LaApp. 4 Cir. 3/24/10), 35 So.3d 1142. Suffice it to say that intermediate appellate judges, just like a trial judge, are “not at liberty to ignore the controlling jurisprudence of superior courts.” Bertrand, supra; see also State v. Barbour, supra (Belsome, J., concurring).

V

The mandatory sentence for a defendant convicted of second degree murder is life imprisonment at hard labor without the possibility of parole, probation, or suspension of sentence. La. R.S. 14:30.1. After trial, Mr. Lawrence filed a Motion for Reconsideration of Sentence pursuant to La.C.Cr.P. art. 881.1 A(l). At sentencing, Mr. Lawrence argued that this mandatory life sentence was excessive under the facts of the case, and that a lesser sentence should be imposed pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993). The district court disallowed argument regarding the alleged unconstitutionality of the sentence, stating, “State v. Dorthey is not applicable in this case. There’s no minimum.” However, even when a sentence is mandated by statute, it may still be constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the crime. State v. Johnson, 97-1907, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677. The district court erred in failing to consider Mr. Lawrence’s claim that his mandatory life sentence is unconstitutionally excessive. See State v. Rice, 01-0215, p. 7 (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354-55. Accordingly, we remand this matter to the district court for an evidentiary hearing 119on Mr. Lawrence’s claim that his mandatory life sentence is excessive. See La.C.Cr.P. art. 881.4 C.

REMAND INSTRUCTIONS

We instruct the trial court to schedule an evidentiary hearing, which shall be contradictory with the prosecution, at which hearing Mr. Lawrence shall be permitted to introduce relevant evidence and argument that the imposition upon him of the mandatory sentence provided by La. R.S. 14:30.1 B violates his constitutional protection against excessive punishment. The prosecution shall be permitted to offer countervailing evidence and argument. Mr. Lawrence shall bear the burden of proof at the hearing. See La.C.Cr.P. art. 930.2.

At the conclusion of the hearing, the trial court shall either deny or grant the motion for reconsideration. If the motion is denied, the defendant shall be allowed an appeal to this court. See La.C.Cr.P. arts. 881.2 A(l) and 912 C(l). If the motion is granted, the trial judge shall impose the most severe sentence which is not excessive and the prosecution as well as the defendant shall be allowed an appeal to this court. See La.C.Cr.P. arts. 881.2 B(l)(a) and (2), and 912 B(l)(a).

DECREE

The conviction of Larry Lawrence for the second degree murder of Lionel Freeman, Jr., is affirmed. This matter is remanded to the trial court in order for it to comply with our instructions to reconsider the sentence imposed.

CONVICTION AFFIRMED; REMANDED FOR RECONSIDERATION OF SENTENCE.

      . One of the five assigned errors is the trial court's denial of the motion for new trial. The motion for new trial was based upon the assigned errors which we will fully discuss in Parts II and III. Because we disagree with Mr. Lawrence that there was error, we need not tarry on this assignment. We pretermit consideration, as argued by the prosecution, that no appeal even lies from the denial of a motion for new trial. See La.C.Cr.P. art. 851(1) and State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832 (be cautioned, though, as Snyder has an extensive case history that does not merit inclusion in this footnote). But see State v. Caminita, 411 So.2d 13, 17 (La.1982); and State v. Turner, 365 So.2d 1352, 1355 (La.1978) ("This Court’s review of a trial court’s denial of a new trial motion based on [the ground that the verdict is contrary to the law and the evidence under La.C.Cr.P. art. 851(1)] is limited to the question of whether the trial judge has properly exercised his wide discretion.”)

      . Also, as we always do, we have independently reviewed the record for errors patent. See La.C.Cr.P. art. 920(2). We discern no error patent.

      . In the quote from Miller we have excised the following portion and replaced it with an ellipsis: "by clear and convincing evidence. Id.; State v. Davis, 449 So.2d 466 (La.1984).” See La. C.E. art. 1104 which was adopted after Davis but before Miller. Article 1104 provides: "The burden of proof in a pretrial hearing held in accordance with State v. Prieur, 277 So.2d 126 (La.1973), shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.” Because in this case we are considering an "other crime” to which Mr. Lawrence judicially admitted, we need not delay discussing the burden of proof.

      . Curiously, Mr. Lawrence seems to suggest that this prior act evidence is relevant and not substantially outweighed by the risk of unfair prejudice. See La. C.E. art. 404 A; see also our discussion in Part II, supra.

      . Article 782 A provides, in pertinent part: "Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” It is virtually identical to the relevant provision of La. Const, art. I, § 17(A), which reads in pertinent part: “A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.”

      . In Apodaca four justices concluded that the Sixth Amendment did not require unanimous juries and four justices concluded that the Sixth Amendment did require unanimity and that the Fourteenth Amendment applied the requirement to the states. The result in Apo-daca turned on the conclusion of a single justice that, while the Sixth Amendment had a unanimity requirement, the Fourteenth Amendment did not apply that requirement to the states.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. ARMSTRONG, C.J., BONIN, J.,

license: Public Domain

text:
    Peterson M. YOKUM, et al. v. NICHOLAS S. KARNO, INC. d/b/a Old Opera House, et al.
    No. 2010-C-0357.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 26, 2010.

      Stuart H. Smith, Alan D. Alario, II, Smith, Stag, L.L.C., and Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Relators.
    Peter J. Butler, Jr., Richard G. Passler, Barrett R. Stephens, Breazeale, Sachse & Wilson, L.L.P., New Orleans, Louisiana, for Defendants/Respondents.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs/relators, Peter M. Yo-kum, Polly Elizabeth Anderson, Vieux Carre Property Owners, Residents & Associates, Inc., and French Quarter Citizens Preservation of Residential Quality, seek review of the trial court’s denial of their request for a writ of preliminary injunction. For the reasons that follow, we find that we cannot consider the merits of the relators’ request to review the trial court’s judgment denying a writ of preliminary injunction because of the procedural posture of this case.

The trial court’s judgment denying the preliminary injunction was rendered on 10 February 2010 and notice of judgment was issued on 11 February 2010 based upon a 29 January 2010 oral ruling denying the preliminary injunction.

La. C.C.P. art. 3612 grants only a fifteen-day period to appeal an order granting or denying a preliminary writ of injunction. See Metro Riverboat Associates, Inc. v. Hilton Hotels Corp., 99-2271 (La.App. 4 Cir. 11/10/99), 746 So.2d 809; Marlbrough v. Zar, 98-38 (La.App. 5 Cir. 5/27/98), 713 So.2d 1163; see also Box v. French Market Corp., 593 So.2d 836 (La.App. 4th Cir.1992); cf. conflicting jurisprudence, Bayou Hunting Club of Hunter v. DeSoto Parish Police Jury, 569 So.2d 252 (La.App. 2d Cir.1990).

1 ¡.The plaintiffs/relators’ notice of intent to seek a supervisory writ bears a hand-stamped date of filing of 23 February 2010 giving the plaintiffs/relators until 1 March 2010 to file their writ application; the trial court signed the order associated with this filing on 8 March 2010 (after 1 March 2010 deadline had expired). A second notice of intent to seek a supervisory writ was filed with a hand-stamped “filed” date of 23 February 2010 and a machine stamped date of 1 March 2010 when fees were paid to the clerk of the trial court, wherein the plaintiffs/relators sought an extension of the deadline for seeking a supervisory writ until 9 March 2010; the trial court signed this order on 8 March 2010.

The judgment for which review is sought is an appealable judgment that became definitive on 26 February 2010. La. C.C.P. art. 3612. The judgment is not properly reviewed only on an application for supervisory writ. Since the writ application was not filed in this court until more than fifteen days from the notice of judgment, it cannot be converted to an appeal.

In City of New Orleans v. Benson, 95-2436, pp. 5-6 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202, 1205, we stated:

[A]n appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order of judgment. The respondent correctly notes that the relator’s application was not filed within that delay. A writ on a final appealable judgment should be converted to an appeal, if timely, otherwise it should be denied. Armstrong v. Stein, 94-0097 (La.3/18/94), 634 So.2d 845. While a ruling on a ^preliminary injunction might be considered under supervisory jurisdiction to expedite its consideration, it should not be done where the applicant was dilatory in filing the application after the appeal time had run.

We adhere to our prior jurisprudence.

Under the Louisiana Uniform Rules of the Courts of Appeal, a person has thirty days to seek an order from a decision of a trial court to set a time delay to apply for supervisory writs from this court. The thirty-day period can be extended multiple times by the trial court. But the request to appeal a preliminary injunction must be taken within fifteen days. This is logical because a person cannot obtain an order from a trial court extending the period of time within which he can appeal; those delays, thirty days or sixty days, are specific and provided by statute.

Except in those statutorily specific cases where a bond is dispensed with, both a preliminary injunction and temporary restraining order granting the injunctive order may only issue after a bond is posted.

Also, a preliminary injunction can be tried “upon the verified pleadings and supporting affidavits, or [... by] proof as in ordinary cases”, unlike a permanent injunction that requires live testimony. La. C.C.P. art. 3609. A logical reason exists to require that a writ be taken within fifteen days from the granting of a preliminary injunction — it allows the expedited consideration of the issue of the injunction based solely on the verified pleadings and affidavits and whether it was properly issued.

^Injunction is an extraordinary proceeding and the granting of a preliminary injunction, by virtue of La. C.C.P. art. 3612, is intended to be reviewed by an appeal taken within fifteen-days.

For the foregoing reasons, we dismiss the plaintiffs/relator’s application without reaching the merits of the appeal.

WRIT APPLICATION NOT CONSIDERED.

ARMSTRONG, C.J., Dissents.

BONIN, J., Dissents With Reasons.

ARMSTRONG, C.J.,

Dissenting.

_jjl would grant the writ.

BONIN, J.,

Dissenting.

1,1 respectfully dissent.

A judgment denying a preliminary injunction is an appealable judgment. This Circuit has held that seeking review of such a judgment by application for supervisory writs is also permitted. City of New Orleans v. Benson, 95-2436, pp. 4-6 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202, 1204-1205; Mik-Lee, Inc. v. City of New Orleans, 581 So.2d 261, 263 (La.App. 4 Cir.1990).

However, if a party elects to seek review by applying for supervisory writs, it must be done within the same time limits allowed for an appeal of the judgment complained of, which is 15 days under La. C.C.P. art. 3612. Benson, supra, 95-2436, pp. 5-6, 665 So.2d at 1205. In other words, a party may not extend the time in which to seek review of a preliminary injunction judgment by applying for supervisory writs instead of taking an appeal.

In this case it is uncontested that the relators filed their notice of intent in a timely manner. The judgment was rendered and signed on February 10, 2010. The notice of intent was filed on February 23, 2010, within the 15-day period provided by La. C.C.P. art. 3612 for appeals related to preliminary injunctions. The notice of intent was accompanied by an Order form, also filed on February 23, 2010, fixing |Ra return date of March 1, 2010. However, the trial judge did not sign the order until March 8, 2010, after the March 1, 2010 return date called for in the order. Therefore, the plaintiffs-rela-tors filed a motion to extend the return date to March 9, 2010, which the trial judge signed on March 8, 2010.

The relators should not be penalized because the trial court did not sign the order until after the expiration of original proposed return date.

In calculating the 15-day delay allowed by La. C.C.P. art. 3612, the notice of intent is analogous to the order of appeal referred to in La. C.C:P. art. 2121. By way of further analogy, the Louisiana Supreme Court held that an appeal should not be dismissed where the notice of appeal was timely filed but the court order is not signed until after the appeal delay has run. Traigle v. Gulf Coast Aluminum Corporation, 399 So.2d 183 (La.1981).

La. C.C.P. art. 2121, made applicable to injunction proceedings by La. C.C.P. art. 3612 D, requires that an order of appeal be obtained within the time allowed for initiating the appeal, and that the order of appeal show the return day of the appeal. This means that where a preliminary injunction is involved, the order of appeal must be filed within the 15-day period required by La. C.C.P. art. 3612, but there is no requirement that the appeal reach this court within the 15-day period. The notice of intent and order fixing the return date where a writ application is involved is analogous to the order of appeal and return date called for in La. C.C.P. art. 2121. Therefore, there is no logical basis for concluding that the writ application need reach this Court any sooner than a comparable appeal in order to be considered timely.

In Traigle v. Gulf Coast Aluminum Corporation, 399 So.2d 183 (La.1981), the Louisiana Supreme Court held that an appeal will not be dismissed when a timely motion for appeal is made but the order is not signed within the allowable delays. Based on this reasoning, it is sufficient in the instant case that the | splaintiffs-rela-tors filed the notice of intent in a timely manner, and that the failure of the trial judge to sign the Order fixing the return date within the 15-day period is not fatal to the filing.

The Traigle court also observed that:

Since [La. C.C.P.] Article 2124 has been amended to eliminate security for devol-utive appeals, the trial court is no longer required to fix an appeal bond. The signing of a devolutive appeal order has been reduced to a formality.

Because the instant writ application is like the devolutive appeal referred to in Traigle, there is no need for a bond. La. C.C.P. art. 8612 states that “any bond required must be furnished within fifteen days from the date of the order or judgment,” but as already noted, no bond would be required in the instant case even had the relators sought relief by way of appeal instead of by way of supervisory writs. [Emphasis added.]

My reading of Benson, supra, taking the opinion as a whole is that this Court was really concerned with the fact that the judgment was rendered on October 5, 1995, but the notice of intent was not filed until October 30,1995, well beyond the 15-day period. Therefore, the facts in Benson do not apply to this writ.

Accordingly, it is my belief that this writ is timely.

Considering the evidence presented, particularly the affidavits and reports of Michael F. Seidemann, Ph.D., and Mr. Clyde McCoy, I find that the relators have made a prima facie showing that they are likely to prevail on the merits of their claim.

Therefore, consistent with the previous writ opinion of this Court in Yokum v. 615 Bourbon St, L.L.C., 2009-0248, unpub. (La.App. 4 Cir. 4/14/09), I would grant the writ, vacate the judgment of the trial court, and remand the matter to the trial court for the posting of security by the relators.

For the foregoing reasons, I must respectfully dissent.

      . The present issue is different from that presented in an earlier case between the same parties, Yokum v. 615 Bourbon Street, LLC, 09-0248, unpub. (La.App. 4 Cir. 4/19/09), because the delay for appealing the granting of an exception of no right of action is governed by La. C.C.P. art. 2087 for a devolutive appeal (60 days) and La. C.C.P. art. 2123 for a suspensive appeal (30 days).

      . We are aware of the practice to both appeal and seek supervisory writ review of a trial court's denial of a preliminary injunction, thereby obtaining a speedy determination of whether the trial court erred as a matter of law in denying the injunction and protecting the right to appeal the merits of the preliminary injunction in due course when a full record is presented to the court. We are unaware of any appeal being taken from the trial court's 10 February 2010 judgment in the case at bar.


author: GRAVOIS, Judge.

text:
    STATE of Louisiana v. Mike ALVAREZ.
    No. 08-KA-558.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   GRAVOIS, Judge.

LThe defendant, Mike Alvarez, was charged with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A), and possession of a firearm while in possession of cocaine in violation of LSA-R.S. 14:95(E). After pleading not guilty, he filed a motion to suppress evidence, which was denied by the trial court. The defendant proceeded to trial by jury and was found guilty of the lesser charge of possession of cocaine and not guilty as to the firearm charge. After being adjudicated a second felony offender, the defendant was sentenced to ten years imprisonment at hard labor. On appeal, this Court found that the trial court erred in denying the defendant’s motion to suppress and vacated his conviction and sentence. State v. Alvarez, 08-0558 (La.App. 5 Cir. 1/13/09), 8 So.3d 50. The Louisiana Supreme Court granted the State’s writ of certiorari, found that the trial court properly denied the defendant’s motion to suppress, reversed this Court’s opinion, and remanded the case to this Court for consideration of the defendant’s remaining assignments of error. State v. Alvarez, 09-0328 (La.3/16/10), 31 So.3d 1022. On remand, for the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

The following facts are taken from this Court’s prior opinion, State v. Alvarez, 8 So.3d at 52, 53:

On the evening of February 1, 2007, two Jefferson Parish Sheriffs Office (JPSO) Reserve Officers, Sergeant Tim Mistretta, Captain Claude Wood, Jr., and JPSO Deputy Eric Lentz were patrolling the Woodmere Subdivision of Jefferson Parish in separate marked police cars. During their patrol, Sergeant Mistretta and Captain Wood stopped an individual for a traffic violation. Deputy Lentz arrived shortly after to offer assistance.
Sergeant Mistretta testified that he noticed defendant standing at the entry of an alleyway between two apartment complexes watching him conduct a traffic stop. Sergeant Mistretta explained that every time he made eye contact with the defendant, the defendant would ‘back off. Captain Wood testified that the defendant was going in and out between the two buildings and was fidgety.
Deputy Lentz testified that he noticed the defendant loitering between two apartment buildings. Deputy Lentz explained that he wanted to conduct an interview with the defendant out of concern for the other officers’ safety to find out what the defendant was doing and why he was walking around in a nervous manner. Deputy Lentz testified that he asked the defendant to come over to talk to him and defendant responded ‘Me’; when he repeated the request, defendant responded ‘Huh.’ Deputy Lentz and Captain Wood testified that when they approached the defendant from different directions, the defendant turned and fled. The officers chased him.
The officers testified that as they pursued the defendant, they saw the defendant remove a gun from his waistband and throw it into bushes in an alleyway between apartment buildings. The defendant then ran into an apartment and slammed the door shut. Officers Wood and Lentz then kicked the door down and entered the apartment. Sergeant Mistretta followed the other officers into the apartment. After a struggle, the defendant was handcuffed. The defendant was informed that he was under arrest and he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When Deputy Lentz searched the defendant, he recovered a small bag containing a white rock substance from the defendant’s pants pocket. This substance tested positive for cocaine.
The defendant told the officers that he lived at the apartment with his girlfriend. He then signed a form consenting to a search of the residence.
14During the search, Deputy Lentz discovered several bags of rock-like objects inside the freezer in the kitchen. These items tested positive for cocaine. Also found were a razor with some white powdery substance on the end consistent with cocaine, and clear sandwich bags consistent with those used to wrap the drug. No drug paraphernalia was found, although the officers found magazines with 9 mm bullets, and two empty ammunition boxes.
The defendant testified. He stated that on the evening of the incident, Willie Hodges and Levita Jackson arrived at his apartment to watch a basketball game. At that time, he saw a black male dressed in black standing in the alleyway outside the apartment. Shortly after they arrived, Hodges and Jackson left to pick up something to eat. About five minutes later, the police kicked his door in and entered his apartment. He said he did not struggle, that he cooperated and got on the floor when they entered with guns drawn. After the officers handcuffed him, he complied with the officers’ request to sign a form consenting to the search of his apartment. Although they searched the apartment, he denied that they searched him.
The defendant denied knowing where the crack came from, and asserted he was not aware of any drugs in his home. The defendant said Ariana Paul lived with him at the time, and claimed that the freezer in which the drugs were found belonged to Ariana’s mother. He said that both her parents had a drug problem.
The defendant denied that he was chased down an alleyway, or that he discarded a gun. He testified that there were no bushes near his apartment and there was no ammunition in his house.
Ms. Jackson testified that she and Hodges saw a man standing in the alleyway when they arrived at the defendant’s apartment. According to Ms. Jackson, when she and Hodges left to get something to eat, their car was blocked by two police cars. At that time, she again saw someone standing in the alleyway next to the apartment building. Ms. Jackson testified that she watched as the unknown man ran through the alley when the police went to question him. She claimed that the person chased by the police was the same individual she and Hodges had seen earlier when they drove into the driveway.

ASSIGNMENTS OF ERROR

On appeal, the defendant argued that the trial court erred in failing to suppress the physical evidence gathered as a result of an illegal seizure. The Supreme Court has found that the trial court properly denied the defendant’s motion to suppress. On remand this Court was instructed by the Supreme Court to address the defendant’s remaining assignment of error, which is excessive sentence. In this assignment of error, the defendant contends that he received the ^maximum sentence of ten years at hard labor for a second felony offender, which was excessive and violated his constitutional rights. He argues that the trial court gave inadequate reasons for imposing a maximum sentence, stating that his prior offense occurred ten years earlier and that at the time of this incident he was gainfully employed, working two jobs.

The record reflects that after the trial court found the defendant to be a second felony offender and imposed an enhanced ten-year sentence at hard labor, the defendant objected to the finding and objected to the maximum sentence as being excessive. The trial judge stated:

All right. Well, although the jury came back with a lesser charge, I heard the evidence that was presented, and I had a different idea of what I thought. So I believe based on what I heard from the jury, based upon what evidence was presented, I believe that this sentence suits the offense, okay, and that’s why I sentenced him to ten (10.)

After the defendant’s enhanced sentence was imposed, defense counsel orally objected to the sentence as excessive, without stating grounds upon which the objection was based. The defendant did not file a written motion to reconsider sentence. Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Bolden, 04-1000, p. 3 La.App. 5 Cir. 3/1/05), 901 So.2d 445, 447-48, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279; see also LSA-C.Cr.P. art. 881.1(E).

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lagarde, 07-123, p. 13 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1115, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

| Jn reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, while recognizing the trial court’s wide discretion. Id. The trial judge is afforded wide discretion in determining a sentence, and the appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Lagarde, 07-123 at 16, 960 So.2d at 1117. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Lagarde, 07-123 at 13, 960 So.2d at 1115.

The sentencing range for the underlying offense, possession of cocaine, is imprisonment with or without hard labor for not more than five years and, in addition, a possible fine of not more than five thousand dollars. LSA-R.S. 40:967(0(2). Pursuant to LSA-R.S. 15:529.1(A)(l)(a), as a second felony habitual offender, the defendant’s enhanced sentencing range for his conviction for possession of cocaine was for a term of not less than two and one-half years and not more than ten years.

The maximum sentence for a second felony offender with an underlying conviction for possession of cocaine has previously been upheld. In State v. Smith, 05-2617 (La.App. 1 Cir. 12/28/06), 2006 WL 3813673, at 2-3 (unpublished opinion), the First Circuit upheld the maximum ten-year sentence for a defendant convicted of possession of cocaine and previously convicted of forcible rape.

Our review of the record indicates the trial court did not abuse its discretion in imposing the ten-year enhanced sentence in this case. The defendant had a prior 17conviction of carnal knowledge of a juvenile. The circumstances surrounding the incident which resulted in the underlying conviction also offer support for the defendant’s sentence. The matter involved the recovery of cocaine on the defendant’s person as well as the recovery of additional cocaine found in the defendant’s freezer. After fleeing from the officers, the defendant struggled with officers and two officers were injured in the struggle. Given these circumstances, we find the sentence imposed is not excessive.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review revealed discrepancies in the minute entries and commitments.

The February 27, 2008 jury trial minute entry reflects that the defendant was charged with “SCHEDULE II DIST/ WITD OF A CDS (40:967.A).” The defendant was actually charged with possession with intent to distribute cocaine. Further, the charge does not include the specific controlled dangerous substance involved.

In State v. Woolridge, 08-340 (La.App. 5 Cir. 10/14/08), 996 So.2d 618, the commitment reflected that the defendant pled guilty to “DIST/WITD” heroin and “DIST/WITD” marijuana. The defendant had actually pled guilty to possession with intent to distribute heroin and marijuana. This Court cited State v. Lynch, 441 So.2d 732, 734 (La.1983) and recognized that when there is a discrepancy between the minutes and the transcript, the transcript prevails. Because the commitment appeared to indicate distribution as the charge, this Court remanded the matter to allow the trial judge to correct the commitment to conform to the | ^transcript and other parts of the record. Following Woolridge, we remand this matter for correction of the commitment.

We also find that the description of the firearm charge is incorrect. The trial minute entry reflects the defendant was charged with “USE OF FIREARM/CDS (14:95.E).” Also, the commitment describes count two as “USE OF FIRE-ARWCDS-COCAINE.” The defendant was not charged with the use of firearms, but was charged with possession of a firearm while in possession of cocaine. Both the minute entry and commitment must be amended to correct the error from use of firearms to possession of a firearm while in possession of cocaine.

Additionally, we find an error in the original commitment. The commitment reflects the defendant was found guilty of count one, possession of cocaine, but improperly cites the statute as LSA-R.S. 40:966(C), which relates to Schedule I drugs and incorrectly states that cocaine is a controlled dangerous substance classified in Schedule I. Possession of cocaine is a violation of LSA-R.S. 40:967(0 and is a Schedule II controlled dangerous substance. This error must also be corrected by the trial court on remand.

Finally, we note that the multiple bill commitment reflects that the court found the defendant to be a multiple offender and sentenced him under the multiple bill statute, however, this commitment fails to reflect the defendant’s specific status as a second felony offender. Since the transcript correctly states that the defendant was found to be a second felony offender, pursuant to State v. Defrene, 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34, on remand the trial court is instructed to correct the commitment to state that the defendant was sentenced as a second felony offender.

\,CONCLUSION

For the foregoing reasons, defendant’s sentence and conviction are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the foregoing errors patent.

CONVICTION AND SENTENCE AFFIRMED; REMANDED.


author: PETTIGREW, J.

text:
    ALL CRANE RENTAL OF GEORGIA, INC. v. Ricky VINCENT d/b/a Tree Surgery by Ricky Vincent.
    No. 2010 CA 0116.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      L. Phillip Canova, Jr., Plaquemine, LA, for Plaintiff-Appellee, All Crane Rental of Georgia, Inc.
    Larry N. Guy, Baton Rouge, LA, for Defendant-Appellant, Ricky Vincent d/b/a Tree Surgery by Ricky Vincent.
    Karl H. Schmid, Jay Russell Sever, New Orleans, LA, for Defendant-Appellee, Scottsdale Insurance Co.
    Kevin P. Landreneau, Baton Rouge, LA, for Defendant-Appellee, Williams Insurance Agency.
    Before KUHN, PETTIGREW, and McClendon, jj.
   PETTIGREW, J.

|2In this case, Ricky Vincent d/b/a Tree Surgery by Ricky Vincent (“Vincent”) challenges the trial court’s judgment granting summary judgment in favor of Scottsdale Insurance Company (“Scottsdale”) and dismissing his claims for damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises in connection with a lawsuit filed by plaintiff, All Crane Rental of Georgia, Inc. (“All Crane”), against defendant, Vincent. All Crane alleged that on September 30, 2005, Vincent entered into a rental contract with All Crane for the use of a Manitex 22101 C 21-Ton/Mack CL713 (“the crane”) in his tree-trimming business. All Crane asserted that Vincent “contractually agreed that any damage occurring while [the crane] was in his care, custody and control was his responsibility.” All Grane further alleged that the crane was “damaged and repaired” while Vincent had “care, custody and control” of it and that Vincent had failed to pay several months of rental fees.

Vincent answered All Crane’s petition, generally denying the allegations, and filed a cross-claim, naming Williams Insurance Agency, Inc. (“Williams”), Burns & Wilcox, Ltd. (“Burns & Wilcox”), Certain Underwriters at Lloyd’s, London (“Underwriters”), and Scottsdale as defendants. In said cross-claim, Vincent alleged that because of the way Williams “wrote up the insurance certificates, it is quite possible that [Scottsdale] has an interest in this litigation and out of an abundance [of caution] is hereby named as a defendant.” In response to the cross-claim, Scottsdale filed a peremptory exception raising the objection of no cause of action and a dilatory exception raising the objection of vagueness and ambiguity. After a hearing on the peremptory exception raising the objection of no cause of action, the court sustained the exception and ordered Vincent to amend his petition within fifteen days.

|3On September 25, 2007, Vincent filed an amended petition for damages alleging as follows:

[Scottsdale] is liable unto third party-plaintiff, [Vincent] for coverage as an insurer. On the Certificate of Liability issued by [Williams,] defendant [Scottsdale] is listed as the insurer on the inland marine policy. This policy covered, according to the Acord 25, physical damage on equipment (Manitex 22101C21 Ton Crane) that included boom, jib and overload. The time period of the effective date of policy was October 3, 2005 to January 3, 2006.

Scottsdale filed a motion for summary judgment on June 3, 2008, alleging that there were no genuine issues of material fact as to Vincent’s claims against Scottsdale and that it was entitled to summary judgment as a matter of law. Scottsdale argued that the policy it issued to Vincent, Policy No. CLS1176939, provided commercial general liability (“CGL”) coverage for the period from October 5, 2005 through October 5, 2006. Scottsdale maintained that the claims made by Vincent were not covered by this policy as it specifically excluded coverage for property that Vincent owns or leases, or property that is in his care, custody or control.

The matter was heard by the trial court on September 22, 2008, at which time the trial court granted summary judgment in favor of Scottsdale. On September 14, 2009, the trial court rendered judgment granting Scottsdale’s motion for summary judgment and dismissing, with prejudice, Vincent’s claims against Scottsdale. The trial court found that the insurance policy in question provided no coverage for the loss sustained by Vincent and, therefore, Scottsdale had no obligation to defend Vincent. It is from this judgment that Vincent has appealed, assigning the following specifications of error:

1. The trial court was clearly wrong, when it determined that the insurance binder issued to [Vincent], on 10-6-05, which describes [Scottsdale] as the principal to an “inland marine policy” designated as policy no 6051M10/03, and specifically covering “Boom Jib and overload,” was somehow meant to describe “a policy issued by [Underwriters]”^]
|42. The trial court erred when it granted [Scottsdale’s] motion for summary judgment, finding that no genuine issue of material fact existed on the issue of insurance coverage on behalf of [Vincent];
3. The trial court erred, when it failed to apply the law of [principal] and agent, and hold Scottsdale liable as insurer to [Vincent], based on the insurance binder ALONE[;]
4. The trial court erred by not finding that in addition to the insurance binder, [Scottsdale] was liable to indemnify [Vincent] under the terms and provisions of a [CGL] policy, which issued long after the damages which form as a basis for this lawsuit occurred;
5. The trial court erred when it failed to order [Scottsdale] to provide a defense to [Vincent], to pay for past attorney expenses paid by their client [Vincent].

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, 20082154, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. Art. 966(B), Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Aucoin v. Rochel, 2008-1180, p. 5 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009-0122 (La.3/27/09), 5 So.3d 143.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of 15material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 3 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734, p. 10 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 232. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Dixon v. Direct General Ins. Co. of Louisiana, 2008-0907, p. 4 (La.App. 1 Cir. 3/27/09), 12 So.3d 357, 360. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no treasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Halphen v. Borja, 2006-1465, p. 3 (La.App. 1 Cir. 5/4/07), 961 So.2d 1201, 1204, writ denied, 2007-1198 (La.9/21/07), 964 So.2d 338. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Henly v. Phillips Abita Lumber Co., Inc., 2006-1856, p. 4 (La.App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108.

INSURANCE POLICY INTERPRETATION

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Lewis v. Jabbar, 2008-1051 p. 5 (La.App. 1 Cir. 1/12/09), 5 So.3d 250, 255. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. See La. Civ.Code art. 2045. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ.Code art. 2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See La. Civ.Code art. 2046. The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Cos., 607 So.2d 769, 772 (La.App. 1 Cir.1992). Whether a contract is ambiguous is a question of law. Id.

DISCUSSION

The crux of Vincent’s appeal is that not only does the CGL policy issued by Scottsdale provide coverage for the damages at issue, but the “Certificate Of Liability Insurance,” issued on October 6, 2005, by Williams as an agent for Scottsdale, is the equivalent of a binder and operates to provide coverage. Thus, Vincent maintains, the trial court erred in failing to order Scottsdale to provide Vincent with a defense. We find no merit to Vincent’s arguments on appeal.

|7In support of its motion for summary judgment below, Scottsdale submitted into evidence a copy of the “Certificate Of Liability Insurance,” arguing that the certificate did not create coverage under its policy. According to the certificate, there were allegedly two policies of insurance issued by Scottsdale, a CGL policy effective from 10/5/05 to 10/5/06, and an inland marine policy effective from 10/3/05 to 1/3/06. The following description is given as to the coverage provided: “GENERAL LIABILITY INCLUDES ALL CRANE RENTAL OF GEORGIA, INC. AS AN ADDITIONAL INSURED. INLAND MARINE INCLUDES LOSS PAYEE IN FAVOR OF ALL CRANE RENTAL OF GEORGIA, INC. INLAND MARINE COVERS PHYSICAL DAMAGE ON EQUIPMENT THAT INCLUDES BOOM, JIB AND OVERLOAD.” The only insurer listed on the certificate is Scottsdale. Citing La. R.S. 22:881 and Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, writs denied, 97-1223, 97-1245 (La.9/19/97), 701 So.2d 169, 170, Scottsdale maintained that the certificate failed to meet the requirements of La. R.S. 22:881 and thus could not be considered in determining whether it modified the terms of coverage afforded by its CGL policy.

At the outset, we note that a certificate of insurance is not the same as a binder. A binder is used to bind insurance temporarily pending the issuance of the policy. No binder shall be valid beyond the issuance of the policy as to which it was given. La. R.S. 22:870. Thus, binders are authorized by law. Although a binder is sufficient to evidence a contract, it does not stand independent from the policy. Donaldson v. United Community Ins. Co., 98-1187, p. 11 (La.App. 3 Cir. 2/10/99), 741 So.2d 676, 683, writ denied, 99-0727 (La.5/7/99), 740 So.2d 1285. A binder is subject to the conditions of the policy contemplated. Pigron v. Allstate Ins. Co., 2007-641, p. 6 (La.App. 3 Cir. 12/19/07), 972 So.2d 1269, 1273.

A binder is not an insurance policy, but is generally taken to be a contract providing for interim insurance effective as of the date of the application and terminating at either completion or rejection of the principal policy.
| ^Although a binder may be sketchy and informal in comparison with the policy contemplated for issuance and delivery in the future, it is a contract of insurance in praesenti, subject only to the conditions which it itself imposes. Generally, a binder contemplates a subsequent and more formal agreement, and by its nature incorporates the terms of the prospective policy whether those terms are prescribed by law or are part of the customary policy issued by the insurer. Thus, a binder is a written contract by a duly authorized agent of an insurance company recognizing liability on a forthcoming contract during negotiations for such contract, and assuming that a valid or legally operative binder has been executed, it is immaterial that a loss covered by the binder occurs before the formal policy of insurance is issued. A contract of temporary insurance is binding upon the insurer even though, after an accident, the insured refuses to take the policy and pay the premium as agreed. [Footnotes omitted.]

Lee R. Russ and Thomas F. Segalla, 1A Couch on Insurance 3d, § 13:1 (1997) (“Couch on Insurance 3d”). To the contrary, the jurisprudence has consistently held that a certificate of insurance is typically issued for informational purposes alone and cannot modify the terms of coverage provided in an insurance policy.

In Citgo, the court was asked to determine whether a certificate of insurance issued by a policyholder to an additional insured, which purported to extend, modify or limit coverage, was binding on the original insurer. Citgo, 95-1574 at 10-13, 690 So.2d at 162-163. The certificate contained a disclaimer that it was issued solely for informational purposes and that it did “not amend, extend or alter” the policy’s coverage. Citgo, 95-1574 at 11, 690 So.2d at 162.

The court looked to the provisions of La. R.S. 22:881 for the scope of its inquiry: “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.” Citgo, 95-1574 at 13, 690 So.2d at 163. The court concluded:

[La. R.S. 22:881,] by its clear wording, limits our inquiry in this case solely to the meaning of the terms and conditions of the [original] policy and “any rider, endorsement or application.” A certificate of insurance is not a “rider, endorsement, or application.” We cannot examine the certificate for purposes of determining if it modifies the terms of coverage because, by operation of this statute, the certificate cannot amplify, extend or modify coverage.

Citgo, 95-1574 at 13, 690 So.2d at 164. The court noted further that even if applicable law allowed it to consider the language of the certificate, the certificate’s disclaimer was |9clear and unambiguous that it did not “amend, extend or alter” the coverage afforded under the policy and that it was issued for informational purposes only. Id. Cf. Ferguson v. Plummer’s Towing & Recovery Inc., 98-2894, pp. 5-6 (La.App. 1 Cir. 2/18/00), 753 So.2d 398, 401 (citing La. R.S. 10:1-307 and holding that a certificate of insurance is prima facie evidence of the genuineness of the facts stated therein if the certificate was issued between the parties to legal action but that a third party may not rely on the certificate to “change the coverage provided” by an insurance policy).

Similarly, the “Certificate Of Liability Insurance” issued in this case contains the exact disclaimer as the one in the Citgo case: “THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.” While in an action by Vincent against Williams in connection with the certificate of insurance, the certificate would be prima facie evidence of its authenticity, with respect to Scottsdale, the language in the certificate does not operate to change the coverage provided in the CGL policy issued by Scottsdale. See Ferguson, 98-2894 at 5-6, 753 So.2d at 401. Accordingly, we must look only to the policy in question to determine whether Vincent’s claims were covered by the CGL policy, thus requiring Scottsdale to provide Vincent with a defense.

The “Insuring Agreement” of the CGL policy provides as follows:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.

| l0Fur therm ore, the CGL policy contains the following exclusions:

2. Exclusions
This insurance does not apply to:
j. Damage To Property
“Property damage” to:
(1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property;
(4) Personal property in the care, custody or control of the insured!.]

In moving for summary judgment, Scottsdale argued that its policy was a CGL policy that did not provide commercial inland marine coverage. Scottsdale further asserted that according to Exclusions (j)(l) and (j)(4), the policy specifically excluded coverage for property that Vincent owns or leases, or property that is in his care, custody or control. Thus, Scottsdale maintained, because there was no dispute that the crane was leased to Vincent at the time that it sustained damages, these exclusions clearly barred coverage for Vincent’s claims.

Scottsdale’s policy is a CGL policy. Such policies are designed to protect the insured against losses to third parties arising out of the operation of the insured’s business. 9A Couch on Insurance 3d, § 129:2. The damages sought by All Crane do not fit within the coverage of a CGL policy. Furthermore, based on the clear and unambiguous language of the exclusions in the Scottsdale CGL policy, we agree with Scottsdale that this policy afforded no coverage to Vincent for the damages at issue herein.

As alleged by All Crane in its petition for damages, the crane that was damaged was leased to Vincent at all pertinent times hereto. There is no claim that Vincent’s use of the crane caused any damages to third party property. Thus, it follows that the |n exclusion for damage to property rented by Vincent clearly and unambiguously bars coverage for the claims asserted. Moreover, it is asserted in the petition for damages that the crane was damaged while in the care, custody and control of Vincent. Therefore, the “care, custody and control” exclusion clearly and unambiguously operates to bar coverage as well. Further, we note that in opposition to Scottsdale’s motion for summary judgment, Vincent failed to produce factual support sufficient to satisfy his evi-dentiary burden at trial; i.e., that the CGL policy issued by Scottsdale afforded him coverage for the damage to the crane such that Scottsdale was required to' provide Vincent with a defense. Accordingly, there was no genuine issue of material fact. Summary judgment in favor of Scottsdale was warranted.

CONCLUSION

For the above and foregoing reasons, we find no error in the trial court’s ruling granting summary judgment in favor of Scottsdale and dismissing, with prejudice, Vincent’s claims against Scottsdale. Thus, we affirm the judgment of the trial court. All costs associated with this appeal are assessed against defendant-appellant, Ricky Vincent d/b/a Tree Surgery by Ricky Vincent.

AFFIRMED.

      . By order of the court dated September 10, 2007, Vincent’s claims against Burns & Wilcox were dismissed, with prejudice. Subsequently, Underwriters appeared before the court, unopposed, on November 26, 2007, on a motion for summary judgment regarding Vincent's claims. The court granted summary judgment in favor of Underwriters, thereby dismissing Vincent’s claims against Underwriters, with prejudice.

      . The original judgment in this case, which was rendered on October 16, 2008, formed the basis of a prior appeal by Vincent. However, because the October 16, 2008 judgment did not include appropriate decretal language, this court dismissed Vincent’s previous appeal and remanded the matter to the trial court for further proceedings. All Crane Rental of Georgia, Inc. v. Ricky Vincent, 2009-0118, 17 So.3d 518, 2009 WL 3241843 (La.App. 1 Cir. 9/11/09) (unpublished). Subsequently, on September 14, 2009, the trial court rendered a valid final judgment, which forms the basis of the appeal currently before us.

      . This statute was renumbered from La. R.S. 22:654 by Acts 2008, No. 415, § 1, eff. Jan. l, 2009.

      . This statute was renumbered from La. R.S. 22:631 by Acts 2008, No. 415, § 1, eff. Jan. l, 2009.

      . This statute was renumbered from La. R.S. 10:1-202 by Acts 2006, No. 533, § 1.


author: KUHN, J.

text:
    David J. MEINERS v. ST. TAMMANY FIRE PROTECTION DISTRICT # 4 BOARD OF COMMISSIONERS.
    No. 2009 CW 0435R.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      William G. Meiners, Mandeville, LA, for Relator David J. Meiners.
    Hector R. Lopez, Covington, LA, for Respondents St. Tammany Parish Fire Protection District # 4, Board of Commissioners of St. Tammany Parish Fire Protection District # 4, and the Civil Service Board for St. Tammany Parish Fire Protection District # 4.
    Before PARRO, KUHN, and McDonald, jj.
   KUHN, J.

|2This matter is on remand from the Louisiana Supreme Court, which ordered this court to convert David J. Meiners’ appeal of the district court’s judgment to an application for supervisory writs. See Meiners v. St. Tammany Fire Protection District # 4 Bd. of Commissioners, 10-0912 (La.6/25/10), 38 So.3d 359, citing Miazza v. City of Mandeville, 10-0304 (La.5/21/10), 34 So.3d 849, wherein the supreme court found the district court had exercised appellate jurisdiction in reviewing a decision of the City of Mandeville’s Municipal Police Employees Civil Service Board pursuant to La. R.S. 33:2561(E) and concluded that this court lacked appellate jurisdiction.

Thus, in this matter, the district court exercised appellate jurisdiction when it affirmed a ruling of the Civil Service Board of the St. Tammany Parish Fire Protection District No. 4 (“the Civil Service Board”) that upheld Meiners’ termination by the Board of Commissioners of the St. Tammany Parish Fire Protection District No. 4 (“the District’s Board of Commissioners”). As set forth in La. R.S. 33:2561(E), that appellate review was “confined to the determination of whether the decision made by the [Civil Service Board] was made in good faith for cause under the provisions of [the ‘Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts’].” In making that determination, the district court found that the Civil Service Board acted “in good faith” in upholding Meiners’ termination. The district court further reasoned, in pertinent part, as follows:

“[T]here was a specific condition in [Meiners’] re-employment contract [with the District’s Board of Commissioners,] which provided that if [Meiners] did not obtain his [Emergency Medical Technician (‘EMT’) ] certification within six months of his re-hire, he was to be automatically terminated_ It is undisputed that ... Meiners failed to obtain his EMT | ..¡certification during the time allowed [under the contract terms]. Accordingly, ... Meiners’ termination was for cause.”

Meiners’ failure to comply with the EMT certification requirement established his unsuitability for continued employment as a probational fire equipment operator. See La. R.S. 33:2560(15). Thus, the record supports the district court’s finding that the Civil Service Board’s decision was made in good faith for cause; the district court’s findings are not clearly wrong or manifestly erroneous. See Voltolina v. St. Tammany Fire Dist. 12, 06-1498, p. 4 (La.App. 1st Cir.9/19/07), 970 So.2d 1015, 1017. Accordingly, we find no basis for modifying the district court’s judgment, and we deny Meiners’ application for supervisory writs.

WRIT DENIED.

McDONALD, J., concurs and will assign reasons.