author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Delvin Jerome LAW, Appellant.
    No. 45,435-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason Brown, Damon Daniel Kervin, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

_JjThe defendant, Delvin Jerome Law, was convicted of possession of a firearm by a convicted felon and subsequently adjudicated a third felony offender. He was sentenced to 30 years at hard labor, with credit for time served, to run concurrent to any other sentence. The defendant now appeals his convictions and sentence. The defendant’s conviction for possession of a firearm by a convicted felon is affirmed. The defendant’s habitual offender adjudication and sentence are vacated and the matter is remanded for resentencing.

FACTS

On the evening of March 26, 2008, Officer Frankie Miles of the Shreveport Police Department was on patrol in the Cedar Grove neighborhood of Shreveport, Louisiana. He was on directed patrol, which is the patrolling of a specific area in response to citizen complaints of illegal activity. In the present case, there had been complaints of open-air drug sales, gang activity, weapon discharges and shootings. The area contains multiple boarded-up dwellings which Officer Miles characterized as crack houses.

While traveling in the area between 2:00 and 3:00 a.m., Officer Miles noticed the defendant’s car parked in front of a house where the officer had previously made a drug-related arrest. Concerned that someone inside might be hurt or in need of assistance, Officer Miles turned his patrol car around and pulled up behind the parked car. The defendant was alone sitting in the driver’s seat of the vehicle. When Officer Miles asked whether |2he needed any assistance, the defendant said no and indicated that he was just parked while talking on his cell phone.

Because the defendant had not been speaking on a phone when approached, Officer Miles’ suspicions were aroused. The defendant also avoided eye contact, spoke in short sentences and claimed not to have any identification. Officer Miles asked him to step out of the vehicle. As he exited the vehicle, the officer looked at the defendant’s hands and waistline for the presence of a weapon; he noticed , a big bulge in the defendant’s pocket. Upon performing a pat-down of the defendant, Officer Miles could not determine the nature of the bulge, so he reached into the defendant’s pockets and pulled out a large amount of cash. Cash was also found in the defendant’s other three pockets. The defendant began to look around as if he might run, so Officer Miles handcuffed him and placed him in the back seat of his patrol car.

When the defendant refused to consent to a search of the vehicle, Officer Miles called a K-9 unit which arrived within 10 to 15 minutes. Officer Jerry Curtis, the canine handler who responded, testified that he arrived on the scene at approximately 2:20 a.m. He observed the defendant in the back of Officer Miles’ patrol car and advised the defendant that he was about to perform an open-air narcotics search around the exterior of the defendant’s vehicle. As the dog walked around the vehicle, it alerted on the passenger side front door. Officer Curtis opened the passenger door to allow the dog to enter the car. Inside the vehicle, the dog alerted on the center arm console and on the floorboard under the driver’s seat. Officer laCurtis searched these two areas. In the console, he found narcotics. He also found a Glock .357 caliber pistol under the driver’s seat. He testified that the gun’s magazine was loaded, but was unsure about whether there was a round in the chamber. He described the gun’s location as very accessible to someone sitting in the driver’s seat of the vehicle.

After Officer Curtis retrieved the narcotics and handgun from the vehicle, Officer Miles ran the defendant’s criminal history and discovered that he had a prior “felony burglary charge.” He arrested the defendant on a charge of possession of a firearm by a convicted felon. Officer Miles also indicated that he had looked in the glove box and found a rental receipt showing that the vehicle the defendant was driving was rented to a female. Officer Miles did not remember the name of the female and his testimony was not specific as to when his search of the glove box occurred.

The defendant was charged by bill of information with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The matter was tried on May 21, 2009, before a jury.

At trial, in addition to the testimony of Officers Miles and Curtis, the state offered the testimony of Lt. Owen McDonnell, an expert in fingerprint analysis and identification. Lt. McDonnell testified as to the difficulty in obtaining prints from a Glock pistol due to its design. Because he had not personally processed the state’s evidence, he could not say whether prints were present on the weapon and, if so, to whom they belonged.

Lt. McDonnell also testified that, based on a comparison of the defendant’s fingerprints and the fingerprints appearing on a First Judicial ^District Court amended bill of information in docket number 212,809 (charging two counts of simple burglary of an inhabited dwelling and one count of illegal possession of stolen things), the defendant in the instant case is the same person convicted under that docket number. The minutes from docket number 212,809 reflect that on July 12, 2001, the defendant pled guilty as charged to all three counts. On the first two counts, simple burglary of an inhabited dwelling, the defendant was sentenced to five years at hard labor, the first year to be served without the benefit of parole, probation or suspension of sentence, and the remainder of the sentence suspended subject to three years of supervised probation. On the third count, illegal possession of stolen things, the defendant was sentenced to five years at hard labor, with all five years suspended, subject to three years of supervised probation, with all sentences to run concurrent with any other sentence the defendant was obligated to serve.

During the presentation of the state’s case, the defendant moved for a mistrial on the basis that the state’s witnesses made reference to inadmissible evidence of other crimes in violation of La. C.E. art. 404(B)(1) when they mentioned the discovery of narcotics in the defendant’s vehicle at the time of the arrest. During the cross-examination of Officer Miles, he was asked by defense counsel whether he had tried to contact the female listed on the rental agreement found in the glove box. Officer Miles responded:

No, sir, I don’t think I did because once he-once we found the narcotics and the weapon, it was all about getting him secured.

At the conclusion of the state’s examination of Officer Curtis, the following colloquy took place:

| gjOfficer Curtis: ... In the center console there was a plastic baggy that had eight individually packaged -
A.D.A.: You had narcotics located there?
Officer Curtis: Yes.

The trial court refused to grant a mistrial.

The defense called Debreyia Gray, an acquaintance of the defendant who had rented the car that the defendant was occupying at the time of his arrest. Ms. Gray testified that she had known the defendant a couple of months and had accompanied him to the general vicinity of his arrest where a woman known to Ms. Gray only as “Sheila” hosted games of “Tonk,” a form of gambling. On the Monday or Tuesday before the defendant’s arrest, Ms. Gray rented the vehicle. She testified that her younger brother, Lance, had driven the vehicle just prior to its use by the defendant. She stated that her brother was currently incarcerated in De-Soto Parish on a drug charge. On cross-examination, she admitted that she had never seen her brother with drugs or a gun and had no idea to whom the gun belonged.

The jury returned a unanimous verdict of guilty as charged. The defendant was initially sentenced on June 25, 2009, to 12 years at hard labor without the benefit of probation, parole or suspension of sentence, and was ordered to pay a $5,000.00 fine.

The state filed a habitual offender bill charging the defendant as a fourth-felony offender. Pursuant to the habitual offender proceedings, the defendant was adjudicated a third-felony offender and on September 10, 2009, was resentenced to 30 years’ imprisonment at hard labor. In imposing | ^sentence, the trial court noted that the defendant had an extensive criminal record which included numerous weapons, drug, and burglary charges from 2001 through the present. A subsequent motion to reconsider sentence was denied.

The defendant appealed, arguing that there was insufficient evidence to support his conviction of possession of a firearm by a convicted felon and that the trial court erred in denying his motion for mistrial based upon the improper introduction of other crimes evidence. He also argued that his habitual offender sentence is excessive.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence to convict him on the charge of possession of a firearm by a convicted felon was insufficient because there was no evidence that he had knowledge of the weapon’s presence in the vehicle and because the state failed to prove that the cleansing period between the predicate conviction and the present one had not elapsed. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard 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.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (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. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, 'writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. La. R.S. 15:438 provides that the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. See also, State v. Gipson, 45,121 (La.App.2d Cir.4/14/10), 34 So.3d 1090.

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 |sviewing 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 estab-líshed by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Ray, 42,096 (La. App.2d Cir.6/27/07), 961 So.2d 607. The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the firearm or through the constructive possession of the firearm. See State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995; State v. Chatman, 43,184 (La.App.2d Cir.4/30/08), 981 So.2d 260. For purposes of the offense of possession of a firearm by a convicted felon, whether the proof is sufficient to establish possession turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. State v. Chatman, supra.

| nConstructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature. State v. Webber, 99-23 (La.App. 5th Cir.7/27/99), 742 So.2d 952; State v. Bailey, 511 So.2d 1248 (La.App. 2d Cir.1987), writ denied, 519 So.2d 132 (La.1988). Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. State v. Chatman, supra; State v. Kennedy, 42,258 (La.App.2d Cir.8/15/07), 963 So.2d 521.

Discussion

After a thorough review of the record, and viewing the evidence presented in this case in the light most favorable to the state, a rational trier of fact could find that the state proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of possession of a firearm by a convicted felon.

The evidence established that the defendant was the only person occupying the vehicle when the gun was found. The gun was under the seat he was sitting in, was loaded and was easily accessible. The defendant was in a high crime area, carrying large amounts of cash. He acted nervous when approached by law enforcement, refused to make eye contact, and glanced around as though looking for an escape route. The defendant claimed not to have identification despite the fact that he had apparently been operating a motor vehicle. When booked into the jail, the defendant did, in fact, have his driver’s license. Lt. McDonnell testified that it was |innormal for a Glock handgun to yield no usable fingerprints, an explanation that the jury could rationally accept. Given the circumstantial evidence, this court will not disturb the rational conclusion that the defendant acted nervous and evasive because he knew he had a gun in the car.

Courts have generally found evidence of constructive possession when a gun is found in an area occupied by the defendant. In State v. Webber, supra, the court held the evidence was sufficient to prove the defendant knowingly possessed the gun found on the passenger side floorboard during a traffic stop in which there was contradictory testimony as to whether he was the sole occupant of the vehicle. In State v. Jackson, 97-1246 (La.App. 5th Cir.4/13/98), 712 So.2d 934, writ denied, 1998-1454 (La.10/16/98), 726 So.2d 37, the fifth circuit held the evidence was sufficient to prove the defendant knowingly possessed a gun found in his bedroom under the mattress where he regularly slept, despite the argument that other friends and relatives had stayed in the defendant’s bedroom during a recent visit and that the gun could have belonged to them. See also State v. Brantley, 43,067 (La.App.2d Cir.2/13/08), 975 So.2d 849, writ denied, 2008-0604 (La.10/03/08), 992 So.2d 1010.

With regard to the prior felony, the evidence showed that the defendant pled guilty to two counts of simple burglary of an inhabited dwelling and one count of illegal possession of stolen things on July 12, 2001, and was sentenced to hard labor terms on all three counts. The present offense occurred on March 26, 2008, less than seven years later. It is clear that less than 10 years elapsed between the dates of the convictions; |n therefore, the date the defendant completed the sentence is irrelevant. State v. Patterson, 588 So.2d 392 (La.App. 4th Cir.1991). Thus, the state met its burden of proving that the defendant had been convicted of a prior felony, and had not remained conviction-free for 10 years following his prior conviction.

OTHER CRIMES EVIDENCE

The defendant argues that the trial court erred in denying his motions for a mistrial made after the state and its witnesses repeatedly made reference to the narcotics found in the vehicle at the time of the defendant’s arrest. He claims that this constituted other crimes evidence inadmissible under La. C.E. art. 404(B). This argument is without merit.

Legal Principles

La. C.E. art. 404(B)(1) provides:

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. [Emphasis supplied.]

Evidence of integral acts, or res gestae, is admissible under La. C.E. 404(B)(1) without requiring the state to give Prieur notice or the trial court conducting a Prieur hearing. State v. Mandosia, 36,827 (La.App.2d Cir.4/9/03), 842 So.2d 1252. Evidence of integral acts, or res gestae, is admissible so that evidence may be presented in context of the 112circumstances. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629. The Louisiana Supreme Court has approved the admission of other crimes evidence in this context:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. [Citations omitted.]

State v. Brewington, 601 So.2d 656 (La.1992).

The test of integral act evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inference, whatever they may be, necessary to reach an honest verdict. State v. Gaddis, 36,661 (La. App.2d Cir.3/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.5/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005).

Discussion

The defendant objects to references made by Officer Miles and Officer Curtis during their testimony to the discovery of narcotics in the center console of the vehicle occupied by the defendant at the time of his arrest. In his brief, he also complains about the prosecutor’s question during the cross-examination of Ms. Gray as to whether “the crack cocaine | ,aand the gun” belonged to her. Officer Miles testified that once the defendant refused to consent to a search of his vehicle, he called for the K-9 unit and Officer Curtis responded. The dog was used to conduct an open-air search of the vehicle. The evidence of the narcotics seized from the vehicle was presented in the context of proving that narcotics had been found pursuant to a K-9 unit alerting on it. Therefore, it was discovered in the continuous chain of events surrounding the discovery of the defendant being in possession of the handgun. The evidence of the presence of the narcotics provided narrative completeness to the state’s case and presented the full context of facts necessary for the jurors’ ultimate determination of the defendant’s guilt. The evidence allowed the jury to draw proper inferences regarding the defendant’s intentions as the sole occupant of a vehicle parked in front of an abandoned house in the middle of a high-crime area during the early morning hours.

The evidence of the presence of narcotics contemporaneous with the police discovery of a firearm in the vehicle provided not only narrative completeness to a case which began as a traffic stop, but also formed an integral part of the context facts in which jurors evaluated the state’s case for a convicted felon’s exercise of dominion and control over the weapon found under the driver’s seat of the vehicle the defendant was driving. Accordingly, the trial court did not err in denying the defendant’s motions for mistrial on the basis of other crimes evidence being admitted at trial.

J^ERROR PATENT REVIEW

In our error patent review, we note that the trial court erred in adjudicating the defendant to be a third-felony offender based upon this record. Accordingly, we reverse the habitual offender adjudication and remand for resentencing.

La. R.S. 14:95.1 states in pertinent part: It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

A sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. State v. Baker, 2006-2175 (La.10/16/07), 970 So.2d 948, cert. denied, — U.S. -, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008).

In the present case, the state used at least one of the defendant’s July 12, 2001, convictions for simple burglary of an inhabited dwelling in docket number 212,809 to obtain the conviction for illegal possession of a |, ¿firearm by a convicted felon. This conviction was listed as the predicate offense on the bill of information, although it is impossible to tell which of the two counts of simple burglary of an inhabited dwelling was used. The state then used a conviction for simple burglary of an inhabited dwelling, entered on the same date, in obtaining the defendant’s habitual offender adjudication.

La. R.S. 15:529.1(B) provides in pertinent part that:

Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.

Because La. R.S. 15:529.1 dictates that the three convictions obtained on July 12, 2001, are to be considered as one conviction for purposes of the multiple offender adjudication, and the state used at least one of the convictions for simple burglary of an inhabited dwelling as the predicate offense for the charge of possession of a firearm by a convicted felon, the July 12, 2001, convictions cannot be used for enhancement purposes in the multiple offender adjudication. The trial court erred in adjudicating the defendant as a third-felony offender based on the defendant’s convictions in the present case and in docket number 212,809.

Accordingly, the habitual offender adjudication and sentence are vacated and the matter is remanded for resentencing.

^CONCLUSION

For the foregoing reasons, the defendant’s conviction for possession of a firearm by a convicted felon is affirmed. The defendant’s habitual offender adjudication and sentence are vacated and the matter is remanded for resentencing.

CONVICTION FOR POSSESSION OF A FIREARM BY A CONVICTED FELON AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . On October 19, 2004, the Louisiana State Supreme Court reversed its prior jurisprudence and determined that under the habitual offender statute, multiple convictions obtained on the same date based on unrelated conduct could be counted separately for sentence enhancement. See State v. Johnson, 2003-2993 (La. 10/19/04), 884 So.2d 568. The legislature then amended La. R.S. 15:529.1(B). The effect of the amendment was to provide that State v. Johnson, supra, did not have retroactive effect.

      . Because we vacate the multiple offender adjudication and remand for resentencing, the defendant's assignment of error alleging that his habitual offender sentence is excessive is moot.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kerry MORRIS, Appellant.
    No. 45,436-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Lavalle B. Salomon, Monroe, LA, for Appellant.

      Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and PEATROSS, JJ.
   WILLIAMS, J.

11A Ouachita Parish Grand Jury returned an indictment charging the defendant, Kerry Morris, with felony theft of over $1 million dollars, in violation of LSA-R.S. 14:67(B)(1). As part of a plea agreement with the state, the defendant pled guilty to one count of theft of over $500. He was sentenced to serve 8½ years in prison at hard labor, with three-years of the sentence suspended. He was placed on supervised probation for a period of five years, to begin upon his release from prison. The defendant was also ordered to pay restitution in the amount of $1,249,780, with a credit of $200,000 which previously had been paid. For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

FACTS

The defendant was a 49% owner of Southwest Express, Inc., a trucking company operating out of West Monroe, Louisiana. The other shareholders in the company were Gerald Beene, who financed the start-up of the corporation, and Denise Laurenson, Beene’s daughter. Laurenson also owned 49% of the stock, while Beene owned the remaining 2%. The defendant was a director and the day-to-day operator of the business; Beene was a director and the registered agent for the corporation; and Laurenson was also a director. The defendant was paid an annual salary of $52,000, given a car allowance in the amount of $500 per month and had use of the corporation’s credit card.

In 2004, Laurenson’s daughter was killed in a car accident. Thereafter, Lau-renson and Beene went through a period of mourning, followed by litigation related to the accident. During this period of time, the |2defendant was entrusted with operating the business. In 2006, Beene and Laurenson were notified by their certified public accountant that the business was experiencing a significant decline in profits. They also discovered that the defendant had been diverting customers’ payments into an account that he had opened in the name of “Southwest Express” at Community Trust Bank, rather than depositing the payments in the corporation’s bank account at Capital One Bank.

On November 21, 2006, Laurenson filed a complaint against the defendant with the Ouachita Parish Sheriffs Office, and an investigation commenced. The investigation revealed that the defendant had misappropriated corporate funds from October 10, 2002, through January 1, 2007. Investigators also learned that the defendant had diverted approximately $80,000 per month into his account at Community Trust Bank. The investigation ultimately revealed that the defendant had stolen $1,249,780 from the corporation over a period of approximately four years.

On July 17, 2007, a Ouachita Parish grand jury indicted the defendant with “felony theft between 10 Oct 2002 and 01 Jan 2007 ... totaling over $1,000,000.00 ... contrary to the provisions of R.S. 14:67.” On January 30, 2008, the defendant entered a plea agreement with the state whereby he pled ] 3guilty to one count of theft of over $500. The state agreed that there would be no new charges filed arising out of the defendant’s criminal conduct in this case.

On October 9, 2008, the defendant was sentenced to serve 8⅜ years in prison at hard labor, with the first 5½ years to be served without suspension of sentence; the remaining three years at hard labor were suspended. He was placed on five years’ supervised probation to begin upon his release from incarceration, and was ordered to make restitution in the amount of $1,249,780. The defendant received a credit of $200,000 toward that amount; the five years of probation were ordered to commence upon the defendant’s release from incarceration and to be extended if restitution was not paid during the period of probation. The defendant appeals his sentence and the amount of restitution ordered.

DISCUSSION

Excessive Sentence

The defendant contends the sentenced imposed is excessive and disproportionate to this offense and this offender. He argues that the trial court failed to consider the factors set forth in LSA-C.Cr.P. 894.1, such as |4his age, family obligations and lack of significant criminal history. The defendant also argues that the court failed to consider the “undue hardship” the sentence would create on himself and his family. He further argues that probation would have been the appropriate sentence in this case, and the trial court failed to articulate the reasons why he was not sentenced to probation only.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-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, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of LSA-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 LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hamp ton, 38,017 to 38,022 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense Land the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const. Art. 1, § 20, 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, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); 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, 2001-0467 (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.

A trial court has broad discretion to sentence a defendant within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for | fithe pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 2007-1394 (La.4/4/08), 978 So.2d 321; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

LSA-R.S. 14:67 provides, in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

In the instant case, the transcript of the sentencing hearing shows that the trial court specifically noted that it had considered the sentencing criteria set forth in LSA-C.Cr.P. art. 894.1. The court stated:

The Court notes as mitigating factors for the sentence, loss of income to you and your family as a result of your incarceration. It will be hard on your son or step-son, your wife, your fellow employees and co-owners of Transport USA. You have accepted responsibility for your actions. You have exhibited remorse and contrition.... You have no previous felony or criminal record.

|7The court also noted that it considered the corporation as the victim in this case, rather than either the defendant, Beene or Laurenson. The court described the defendant as a capable and likeable person, and stated that he was probably not the “worst offender.” Nevertheless, the court noted the magnitude of the loss to the corporation and categorized the defendant’s conduct as “reckless.” The court also noted that the instant case was not the typical theft case, stating:

[T]here is one count of Felony Theft from zero to ten. It did not adequately describe Mr. Morris’s conduct. [T]he case involve[s] numerous thefts on numerous dates in an extended period of time. Theft of monies to the tune of 1.2 million plus from a corporation without the consent or permission of the shareholders. Mr. Morris utilized his position of trust with the other owners as president of Southwest Express to divert money into a separate bank account unbeknownst to the other two majority combined fifty-one percent shareholders of the corporation.... The Court specifically finds that you are in need of correctional treatment and a lesser sentence would deprecate the seriousness of the offense as the theft is 1.2 million.
The magnitude of the crime, the large loss, the ongoing nature, the timing of the loss ... was devastating ... as it came on the [heels] of [Laurenson’s] situation involving the death of her daughter.

Further, the court stated that the defendant had received a “tremendous benefit” from being charged with only one count of felony theft over $500, when he could have been charged with “hundreds of counts of theft.” The court also noted that the maximum to which he could sentence the defendant was the 10 years provided for in the statute for one count of felony theft over $500.

Considering the trial court’s reasons for sentencing, we find that the | ¡¡trial court adequately considered the factors of LSA-Cr.C.P. art. 894.1 and addressed the applicable mitigating and aggravating factors of the defendant’s case. The trial court clearly noted that the defendant had no criminal history and also observed the defendant’s age at the time of the offense, as well as his obligations to his family and his business. However, the court was particularly influenced by the amount of money the defendant had stolen and the effect it had on Southwest Express, Inc., Beene and Laurenson. The sentence imposed, 8½ years, with 3 years suspended, was within the statutory limits. Furthermore, as noted by the trial court, the defendant received a substantial advantage by the state’s agreement to charge him with only one count of felony theft, when the state could have elected to charge him with multiple counts of theft for various incidents that took place over a prolonged period of time. These facts, in addition to the benefit the defendant received from his plea agreement, unequivocally support the sentence imposed in this matter. Accordingly, we find that the sentence imposed was tailored to fit this defendant and is neither grossly disproportionate to the severity of the offense committed nor an abuse of the trial court’s discretion. This assignment lacks merit.

Restitution

The defendant also contends the amount of restitution ordered by the trial court was “illegal and excessive.” The defendant asserts that the amount of restitution should have been $624,890, with a credit for $200,000, because he owned 49% of the corporation. According to the defendant, the trial court has imposed “excessive compensation and a |9windfall to the remaining corporate shareholder.” The defendant argues that this matter should be remanded to the lower court and the restitution order should be modified.

When the court places a defendant on probation, it may require the defendant to make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court. LSA-C.Cr.P. art. 895(A)(7). LSA-C.Cr.P. art. 895.1 provides, in pertinent part:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subpar-agraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
(5) The amount of any judgment by the court hereunder, shall be credited against the amount of any subsequent civil judgment against the defendant and in favor of the victim or victims, which arises out of the same act or acts which are the subject of the criminal offense contemplated hereunder.
* * *

In the instant case, the defendant admittedly stole $1,249,780 from Southwest Express, Inc. Thus, the actual pecuniary loss to the victim — Southwest Express, Inc.— was $1,249,780. Consequently, we find no legal error or abuse of discretion in the trial court’s order that the defendant pay | ^restitution in the amount of $1,249,780 to Southwest Express, Inc. Any amount that the defendant' may be entitled to as a shareholder of Southwest Express, Inc. should be addressed in the civil litigation between these parties. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

      . The Community Trust Bank account only required the defendant’s signature for withdrawals.

      . For example, the spreadsheets submitted to the detectives had the customers’ names, amounts of receipts, amounts and dates of deposits at Capital One and variances. The spreadsheet for February 2006 showed that a deposit of $275,255 was made, and there was a variance of $29,215.07. The spreadsheet for March 2006 showed a deposit of $318,390.73, and a variance of $28,089.28. The spreadsheet for April 2006, showed a deposit of $255,529.21 and a variance of $23,967.99.

      . Following his indictment and arrest, the defendant opened his own trucking company, USA Trucking, and attempted to lure away clients from Southwest Express, Inc. Many of the former drivers for Southwest Express, Inc. began working for the defendant at his new company. Beene died, and Laurenson continued to operate Southwest Express, Inc. Laurenson claimed that her business at Southwest Express, Inc. has been damaged as a result of the defendant’s actions. Southwest Express, Inc. has filed a civil lawsuit against the defendant and Community Trust Bank. That lawsuit is pending and is not the subject of this appeal.

      . The credit was for a dividend the defendant had received from the corporation and had already surrendered to the corporation. Implementation of Morris’ sentence was delayed for 30 days so that he could prepare his business for his absence and make arrangements for the care of his 14-year-old stepson.


author: CARAWAY, J.

text:
    Tiffany M. PRUITT, Connie Pruitt and Bobby Pruitt, Plaintiffs-Appellees v. Glenn C. NALE, Sidney Stokes d/b/a Sidney Stokes Timber, Sidney Stokes & Son, L.L.C., Empire Indemnity Insurance Company, and State Farm Automobile Insurance Company, Defendants-Appellants.
    No. 45,483-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by David F. Butterfield, for Appellants.
    Dennis W. Hennen, Christian C. Creed, Monroe, LA, for Appellees.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|¶The appellants appeal a partial summary judgment rendered in favor of the plaintiffs that found the defendant truck driver solely at fault for an accident that occurred when his logging truck attempted to make a left hand turn. The accident occurred on a crowded city street when logs extending from the truck struck plaintiffs’ vehicle. Appellants additionally request a new trial in order for consideration of a late-filed expert witness report. For the following reasons, we affirm the judgment of the trial court.

Facts

This suit arises out of an automobile accident which occurred in Bastrop, Louisiana. On March 9, 2007, 19-year-old Tiffany Pruitt was driving her father’s pickup truck eastbound in the center lane of travel on East Jefferson Avenue. The street is a one-way thoroughfare. Defendant, Glenn C. Nale, was also driving in an easterly direction on Jefferson Avenue in a specially designated left-turn lane. Nale, who was driving an 18-wheel Mack tractor trailer, was hauling a load of logs to the Bastrop paper mill for his employer, the defendant Sidney Stokes Timber d/b/a Sidney Stokes and Son, L.L.C. (“Sidney Stokes Timber”).

The accident occurred when Nale attempted to make a left hand turn onto South Franklin Street. As Nale began to turn from the left turning |2lane, the logs protruding from the rear of his trailer entered Tiffany’s center lane of travel and impacted the truck that she was driving. At least one of the logs entered the driver’s side window, leaving Tiffany with severe injuries.

On February 8, 2008, Tiffany Pruitt along with her parents (collectively “the Pruitts”) filed a petition for damages, naming as defendants Nale, as the driver of the log truck; Sidney Stokes Timber, Nale’s employer; Empire Indemnity Insurance Company, who had issued a policy of automobile liability insurance covering Sidney Stokes Timber and Nale, which was in effect at the time of the accident; and State Farm Automobile Insurance Company, plaintiffs’ uninsured/ under-insured insurance company. The defendants filed answers asserting, among other things, the affirmative defense of comparative negligence or fault of the plaintiff.

Thereafter, on November 12, 2008, the Pruitts filed a motion for summary judgment, seeking a judgment in their favor as to the issue of defendants’ liability. A hearing on the motion was held March 31, 2009 and a ruling was subsequently rendered in favor of plaintiffs on July 1, 2009. In ruling that Nale was 100% at fault, the court noted: It is from this judgment establishing liability that defendants have appealed.

The turning maneuver violated state law which required that Defendant Nale make sure before turning that he could safely turn. La. R.S. 32:104. Defendant Nale breached his duty to make the left turn safely and is liable to Plaintiffs. |sThe evidence showed that plaintiff Tiffany Pruitt could not fairly be said to have followed the truck too closely. After the light turned green she drove off at a normal speed, the truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs.

On appeal, the defendants contend that the trial court erred in granting the motion for summary judgment on the issue of liability because there were material factual disputes as to whether defendants were negligent and whether Tiffany Pruitt was comparatively at fault. Additionally, defendants urge the granting of a new trial to consider an expert report submitted after the hearing on the motion for partial summary judgment. For the following reasons, we affirm the actions of the trial court.

Discussion

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. USAA Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544; Morris v. Union Parish Police Jury, 39,709 (La. App.2d Cir.5/11/05), 902 So.2d 1276. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the proceeding is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); 14 Duncan v. USAA Ins. Co., supra. The motion should 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 of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

The initial burden of proof remains •with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material fact issue remains. The failure of the nonmov-ing party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

Appellate review of the grant or denial of a summary judgment is de novo. Thus, the court uses the same criteria as the trial court in determining whether summary judgment is appropriate-whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. A fact is “material” when its existence or nonexistence may be essential to a plaintiffs cause of action under the applicable theory of recovery. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

| ¿Ordinarily, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment. Freeman v. Teague, 37, 932 (La. App.2d Cir.12/10/03), 862 So.2d 371; Powers v. Tony’s Auto Repair, Inc. 98-1626 (La.App. 4th Cir.4/28/99), 733 So.2d 1215, writ denied, 99-1552 (La.7/2/99), 747 So.2d 28. This principle extends to a question of comparative fault as well. However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment. See Rance v. Harrison Co., 31,503 (La.App.2d Cir.1/20/99), 737 So.2d 806, writ denied, 99-0778 (La.4/30/99), 743 So.2d 206.

For the affirmative defense of comparative fault, the defendants have the burden of proof. A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party’s fault was a cause in fact of the damage complained of. Watson v. Brazeel, 36,499 (La.App.2d Cir.12/18/02), 833 So.2d 1276, writ denied, 03-0217 (La.4/4/03), 840 So.2d 1215; Begnaud v. Camel Contractors, Inc., 98-207 (La.App. 3d Cir.10/28/98), 721 So.2d 550, writ denied, 98-2948 (La.2/5/99), 738 So.2d 1. Therefore, the Pruitts’ burden in this summary judgment setting did not require them to negate all essential elements of defendants’ affirmative defense of comparative fault, “but rather to point out to the court that there is an absence of factual support” for that defense. La. C.C.P. art. 966(C)(2).

In the instant case, filings in support of plaintiffs’ motion for partial summary judgment on the issue of liability included the depositions of | (¡plaintiffs’ witnesses Dessa McMillian and Barbara Montgomery, along with the deposition of Bastrop Police Officer Della Wallis. Photographs of the accident, along with an accident diagram and accident report were also submitted. Additionally, affidavits of Des-sa McMillian and Plaintiff Tiffany Pruitt were presented.

Both McMillian and Montgomery were eyewitnesses to the accident. McMillian was a guest passenger in a vehicle driven by her mother in a northerly direction on Franklin Street. They were stopped at the red light for the intersection just before the accident occurred, and the collision occurred right in front of her. Montgomery was headed east on Jefferson Avenue, the same direction as Tiffany. Her car was in the lane next to Tiffany’s lane of travel and slightly behind Tiffany.

Both eyewitnesses testified that Tiffany was stopped behind Nale’s log truck, in the middle lane, until the light turned green. At that point everyone proceeded forward at a normal rate of speed. McMillian further testified that Nale’s truck was straddling the left turn lane. When he began to execute the turn, the logs swung out into Tiffany’s middle lane of travel and went through her window. McMillian believed that the logs penetrated the driver’s side window because she noticed that the left side of Tiffany’s face had been struck. Montgomery’s deposition testimony revealed “that there was maybe one or two [cars] in front of her [Tiffany].” As the light turned green, all of the cars heading east on Jefferson Avenue began to |7proceed through the intersection. She then heard a “big pow” at which point glass flew into her truck and all of a sudden Tiffany’s truck swerved toward her.

Officer Wallis, the investigating officer of the accident, inspected Tiffany’s truck and believed that “the logs hit the side of the door itself. Instead of like crashing right through the front.” Her belief was formed after noticing the steering wheel was pushed through the windshield from the inside of the truck. Additionally, one of the timber poles was broken and was left protruding out the right side of the truck’s trailer. As Nale completed the turn onto Franklin Street before stopping, the protruding pole struck the rear window of a third vehicle parked on the east side of Franklin street. Nale was ticketed for making an improper turn. Officer Wallis acknowledged that accidents of this nature were common at this particular intersection; however, she testified that she has witnessed trucks execute the turn correctly by utilizing the appropriate level of caution.

In Nale’s deposition, he admits that he did not check his mirror for traffic in Tiffany’s lane of travel. When asked whether his truck was ever located solely in the left turn lane, he stated that it was. Nevertheless, he acknowledged that the collision occurred completely in Tiffany’s lane, but asserted that there is no way to make that particular turn without the logs veering into the middle lane of travel:

Q: Okay. Thank you, sir. Okay. And it’s your contention that all this activity occurred in Tiffany’s lane of travel?
A: Right. Because the logs — when I make that turn that log’s going to extend over into her lane.
IsQ: Okay
A: It don’t matter how far over to the left you are.
Q: It don’t matter how far over to the left you are. They’re still going to go over as far — as long as they are A: Right
Q: There’s no way that you could turn at that turn without those logs going into the other lane of travel.
A: There’s no way.

Nale further testified that the logs would not have been in Tiffany’s lane for very long, “wouldn’t be over a couple of seconds.” His testimony also revealed that he never came to a complete stop before making the turn. Moreover, Nale acknowledged that alternative routes were available such that the downtown intersection could have been avoided altogether.

La. R.S. 32:104(A) provides:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

Under this statute, Nale was under a duty to refrain from making the left turn until such movement could “be made with reasonable safety.” Judicial interpretations of La. R.S. 32:104(A) have made it clear that a left-turning motorist has a strong duty of care. Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir.10/29/03), 859 So.2d 296. The duty includes properly signaling an intention to turn left and keeping a proper lookout for both | incoming and overtaking traffic in order to ascertain that the left turn can be made with reasonable safety. Id,.; Agency Rent-A-Car, Inc. v. Hamm, 401 So.2d 1259 (La.App. 1st Cir.1981).

The jurisprudence has recognized that commercial truck drivers are required to undergo testing and licensure which involve attending a special school designed to teach the mechanics and attendant hazards of operating large rigs. Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119. Based upon that premise, our courts have recognized that a professional truck driver is a superior actor in the eyes of the law. Id.

Conceding Nale’s negligence, the defendants’ main point of contention in this appeal is that genuine issues of material fact exist with regard to Tiffany’s contributing fault in causing the accident. Significantly, defendants do not deny that Tiffany’s vehicle remained in her lane which was in the center of the three lanes which intersected South Franklin Street. However, they argue that Nale’s truck was positioned throughout the turn maneuver so that it straddled both the center lane and the left turning lane. They assert that Tiffany’s negligence therefore resulted from her ramming the end of the extended logs since Nale’s truck had always remained partially in her lane. Defendants contend that there were multiple points of impact and that the original log went through Tiffany’s windshield, signaling a front-to-rear collision. This view of the accident according to the defendants raises issues of material fact.

Initially, from the description of the intersection and Nale’s account of the requirements for this turn of his large truck, we agree with the | Tndefense that Nale was required to position the truck largely within the middle lane (Tiffany’s lane) in addition to the left turn lane in order to complete the turn. Nevertheless, from the evidence brought forth in support of plaintiffs’ motion for summary judgment, plaintiffs have shown that Nale’s truck was not positioned in Tiffany’s lane throughout the entire turning maneuver so as to constantly block her traffic lane.

Plaintiffs demonstrated without dispute that both vehicles were moving at the time of the accident. Defendant did not show that the truck had suddenly stopped or was moving at a considerably slower speed than Tiffany’s vehicle at the time of the collision. Tiffany’s vehicle did not ram the logs and stop. McMillian and Nale describe a swinging of the logs from the left turn lane into Tiffany’s lane, and Nale admits that the swing of the logs would happen very briefly. This means that the furthest ends of the moving logs did not remain constantly in the center lane so as to block that lane and prevent Tiffany from proceeding forward in her lane alongside the back of the truck and then receiving a blow from the swinging logs. Finally, plaintiffs presented undisputed evidence of the eyewitness report of a side impact by the logs against Tiffany’s vehicle and of Tiffany’s vehicle swerving to the right and continuing out of control for 331 feet. Officer Wallis’s investigation confirmed such impact which would tend to push the vehicle to the right.

ln From review of the evidence presented in this summary judgment setting, we do not find that the defendants presented evidence regarding Tiffany’s contributory fault in the accident sufficient to establish that they will be able to satisfy their burden of proof at trial. We disagree that Tiffany violated the duty of not following another vehicle more closely than is reasonable. La. R.S. 32:81. The vehicles were in close proximity stopped on the courthouse square in Bastrop when they began to move slowly through the intersection. Tiffany stayed in her lane and moved close to the rear of the 18-wheeler when that end of the truck had moved into a separate lane, the left turn lane. The evidence does not present a material issue of fact indicating that Tiffany rear-ended the protruding logs on the truck. Nor does the evidence show that Nale positioned his truck within Tiffany’s lane continuously through the turn maneuver so as to prevent her from moving into the position where the accident occurred. Accordingly, the trial court’s granting of the motion for summary judgment on the issue of liability is affirmed.

As a secondary issue, defendants claim the trial court erred in refusing to consider a report of an expert in accident reconstruction which they attempted to be presented by their motion for new trial/rehearing. The trial court found the motion untimely. The Pruitts’ motion for summary judgment had been filed in November 2008 and the hearing on the motion did not occur until March 2009, over a year after filing of the suit.

La. C.C.P. art. 966(B) provides:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. 112For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight dags prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary (emphasis added).

In the recent case, Newsome v. Homer Memorial Medical Center, 10-0564 (La.4/9/10), 32 So.3d 800, the Louisiana Supreme Court reversed a trial court’s grant of a continuance in order to allow the submission of plaintiffs expert affidavit in opposition to a motion for summary judgment. The court found that the continuance, filed just seven days prior to the date of a scheduled hearing, violated the “eighLday limit contained in Article 966(B).”

In light of the Newsome ruling and the procedural circumstances of this case, we find no error in the trial court’s ruling.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court granting plaintiffs’ motion for partial summary judgment on the issue of liability and further denying defendants’ motion for rehearing/new trial. All costs of this appeal are hereby assessed to the defendants/appellants.

AFFIRMED.

      . Both East Jefferson Avenue and South Franklin Street are one-way streets. East Jefferson Avenue runs eastbound; as it intersects with South Franklin Street there are three lanes of travel: a specially designated left turn lane and two eastbound travel lanes. Franklin Street runs north with two lanes of travel. These two streets intersect at the corner of the Morehouse Parish Courthouse. There are parking spaces west of the intersection in front of the Courthouse, so that the left turn lane does not extend for the entire block.

      . The logs extended 19 feet from the rear of Nale’s trailer and a red flag was placed on the end of the load to signal the overhang. It is undisputed that this 19 foot extension was within the 20 foot extension allowed by law. See La. R.S. 32:382(B)(1).

      . State farm was dismissed by joint motion, without prejudice, November 6, 2008.

      . Writs were initially denied by this court on July 21, 2009, on the ground that the July 1, 2009 ruling was in the form of reasons for judgment and thus not subject to immediate appeal until a partial final judgment had been executed. The Louisiana Supreme Court thereafter denied writs on September 23, 2009. The initial lack of final judgment designation pursuant to La. C.C.P. art. 1915(B) was cured by a judgment rendered by the trial court on October 6, 2009, which designated the partial summary judgment as final. On December 3, 2009, the trial court denied defendant’s motion for rehearing/new trial and thereby refused the filing of any late evidence, including an expert report.

      . Tiffany Pruitt was struck in the head during the accident and rendered unconscious. She has no memory of the collision. Her affidavit simply reveals that at all times her vehicle remained entirely within its lane of travel and further that she obeyed all traffic laws and ordinances.

      . While this conflicts with the testimony of plaintiffs' witnesses, the conflict is not essential to the determination of liability for all testimony consistently revealed that both the log truck and Tiffany's truck were moving when the impact occurred.

      . Copies of certain photos of the damage to Tiffany’s vehicle are in the record, but are unclear. These unclear photos do not place into conflict Officer Wallis’s conclusion regarding the side impact.


author: PEATROSS, J.

text:
    Ericka Lynn CARTER, as Curatrix for Michael Lee Carter, and Ericka Lynn Carter, individually and on behalf of Baylee Carter, Audrey Carter, Wesley Carter and Kevin M. Carter, Plaintiffs-Appellants v. STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellee.
    No. 45,506-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Gregorio, Gregory & Payne, Shreveport, LA, by Sam N. Gregorio, Roy Steven Payne, Joseph A. Gregorio, for Appellants.
    The Malone Law Firm, Shreveport, LA, by Dannye Wayne Malone, Joseph W. Greenwald, Jr., for State of Louisiana, Dept, of Transportation and Development.
    Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Steven E. Soileau, for Appellee, Billy Dwayne Brumley.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Donald Armand, Jr., for Appellee, Praetorian Specialty Insurance Co.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by Richard B. King, Jr., for Appellee, Ancul D. Bland.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

kin this tort action for damages, Plaintiffs, Ericka Lynn Carter, et al. (collectively referred to as “Ms. Carter”), brought suit against B & B Wholesale, Inc., Praetorian Specialty Insurance Company, Billy Dwayne Brumley, Ancul D. Bland and the State of Louisiana, Department of Transportation and Development (“DOTD”), alleging that Defendants were liable for an automobile accident occurring on January 5, 2008. Defendant Brumley filed a motion for summary judgment contending that he could not be held personally liable for damages in the collision because all of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc. The trial judge agreed with Brumley and, after taking the matter under advisement, granted the motion for summary judgment and dismissed Brumley as a defendant in the proceedings, leaving the other defendants remaining. Ms. Carter now appeals. For the reasons stated herein, we affirm the trial court’s summary judgment.

FACTS

The accident in question occurred during the early evening of January 5, 2008, on U.S. Hwy. 84 in DeSoto Parish, Louisiana. Michael Carter (“Michael”), an employee of SWEPCO, was driving his work truck northbound on La. Hwy. 482, approaching its intersection with U.S. Hwy. 84. Brumley, who is the owner, operator and president of B & B Wholesale, Inc., was approaching the same intersection from the west on U.S. Hwy. 84, following behind his employee, Ancul Bland. Bland was driving a 1981 International tractor-trailer that had been purchased by 12Brumley at an auction in Texas and was en route back to Mansfield with Brumley following in his own vehicle.

On approaching the intersection, Michael had the stop sign and Bland and Brumley had the right of way. Michael claims that he stopped, but did not see the tractor-trailer that Bland was driving because the headlights were too dim. Consequently, Michael pulled out into the intersection in an attempt to make a right turn and collided with the tractor-trailer being driven by Bland. Brumley witnessed the accident, but neither he nor the vehicle he was driving was physically involved in the collision.

The Louisiana State Police investigated the accident and issued a report indicating that the tractor-trailer (purchased by Brumley and being driven by Bland) was not roadworthy because it had defective brakes, defective steering and defective headlights. The officers also found that Bland did not have a valid Class A Commercial Driver’s License (“CDL”). Citations were issued for the tractor-trailer’s condition and for Bland’s operation, of the vehicle without a valid Class A CDL.

As previously stated, Ms. Carter brought suit against Brumley on the grounds that he was personally liable for the accident because he conducted a negligent inspection of the tractor-trailer and determined that the vehicle was roadworthy when it was not, made the negligent decision to instruct his employee to drive the vehicle from the auction yard to his wrecker yard at night and negligently entrusted the vehicle to an unqualified driver.

Brumley then filed a motion for summary judgment wherein he asserted that he could not be held personally liable for the accident because |sall of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc. The trial judge agreed with Brumley, granted his motion for summary judgment and dismissed Brumley as a defendant from the proceedings. This appeal ensued.

DISCUSSION

In her sole assignment of error, Ms. Carter contends that the trial judge erred as a matter of law by holding that Brumley could not be held personally liable as a defendant in this case because he was acting in the course and scope of his employment when he committed the alleged acts of negligence. Ms. Carter argues that Brumley should not be shielded from liability for his own personal fault just because he is a corporate officer, ie., the president, of B & B Wholesale, Inc. It is Ms. Carter’s position that Brumley is also considered an employee of B & B Wholesale, Inc., and therefore, can be held personally liable for his alleged negligent actions, even when acting in the course and scope of his employment.

Ms. Carter further complains that Brumley failed to set forth any argument as to the sufficiency of the evidence until the eve of oral argument, in a reply brief. Ms. Carter contends that, consequently, any argument advanced by Brumley on appeal pertaining to the sufficiency of the evidence should be considered untimely.

Ms. Carter concludes that a genuine issue of material fact clearly exists in this case as to Brumley’s personal liability for the collision; and, consequently, the judgment of the trial court granting summary judgment inj/avor of Brumley and dismissing him from the proceedings should be reversed.

In response, Brumley argues that Michael simply ran a stop sign, collided into the tractor-trailer being driven by Bland and, now, Ms. Carter is wrongfully attempting to claim that Brumley is liable for Michael’s negligent actions. Brumley further contends that, even if he could have theoretically been negligent in this case, he cannot be held personally liable because all of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc.

La. C.C.P. art. 966(B) provides that summary judgment “shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(C)(2) sets forth the burden of proof applicable to a motion for summary judgment:

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

On appeal, a trial court’s ruling on a motion for summary judgment is subject to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

|hLa. C.C. Art. 2315. Liability for acts causing damages
A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.
La. C.C. Art. 2⅛. Kinds of persons
There are two kinds of persons: natural persons and juridical persons. A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members.
La. R.S. 12:93. Liability of subscribers and shareholders
A. Except as provided in the following subsections of this section, a subscriber to, or holder of, shares of a corporation organized after January 1,1929, shall be under no liability to the corporation or its creditors with respect to such shares, other than the obligation of complying with the terms of the subscription therefor. This obligation shall continue whether or not his rights or shares have been assigned or transferred, but the assignee or transferee of shares in good faith and without knowledge or notice that the shares have not been fully paid for, shall not be liable to the corporation or its creditors with respect to payment for such shares.
B. A shareholder of a corporation organized after January 1, 1929, shall not be liable personally for any debt or liability of the corporation.
C. If property or services taken in payment for shares are grossly overvalued contrary to the provisions of this Chapter, the shareholders who knowingly, or without the exercise of reasonable care and inquiry, consented thereto or voted in favor thereof shall be liable jointly and severally to the corporation for the benefit of creditors or shareholders, as their respective and relative interests may appear, for any loss or damage arising therefrom.
|,;D. Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.
E. When the directors are held liable solely because of having negligently consented to or participated in any unlawful dividend, distribution, payment or return of assets, the directors shall have, to the extent of the payments made by them, a cause and right of action for indemnity against each of the shareholders for the proportionate amount of the unlawful distribution received by such shareholder. This action must be brought within two years from the date of payment by the directors on account of the liability imposed by R.S. 12:92(D), and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.

It is well settled that a corporation is a distinct legal entity, separate from the individuals who comprise it. La. C.C. art. 24; First Downtown Development v. Cimochowski, 613 So.2d 671 (La.App. 2d Cir. 1993), writ denied, 615 So.2d 340 (La.1993); Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164 (La.App.2d Cir.1992); Cahn Electric Appliance Co., Inc. v. Harper, 430 So.2d 143 (La.App. 2d Cir.1983); George A. Hormel & Co. v. Ford, 486 So.2d 927 (La.App. 1st Cir.1986); American Bank of Welch v. Smith Aviation, Inc., 433 So.2d 750 (La.App. 3d Cir.1983). The primary economic purpose underlying this framework of limited liability is the encouragement and promotion of business and industry. Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App.2d Cir.7/29/99), 746 So.2d 11, writs denied, 99-2954, 99-2955 (La.1/7/00), 752 So.2d 861; Riggins, supra.

| -Additionally, minimizing shareholder liability encourages business investments in high-risk areas by enabling investors who utilize the corporate form to make capital contributions to corporations while insulating their personal wealth from the risks inherent in business. Kemper, supra; Riggins, supra; Smith v. Cotton’s Fleet Service, Inc., 500 So.2d 759 (La.1987); Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983). No matter the size of the business, incorporation is an optional form for conducting business in Louisiana and even a single individual may incorporate. La. R.S. 12:21.

Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. Kemper, supra; First Downtown Development, supra. Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations. Kemper, supra; First Downtown Development, supra; Riggins, supra.

In a few limited situations, however, a litigant can reach an individual shareholder by “piercing the corporate veil,” thereby rendering the individual liable for the debts incurred by the corporation. Kemper, supra; First Downtown Development, supra; Riggins, supra; Calm Electric Appliance Co., Inc., supra. If an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. La. C.C. |sart. 2815; Canter v. Koehring Co., 288 So.2d 716 (La.1973); Petch v. Humble, 41,301 (La.App.2d Cir.8/23/06), 939 So.2d 499, writ denied, 06-2482 (La.12/15/06), 945 So.2d 692. If directors and officers of a corporation do not purport to bind themselves individually, however, they do not incur personal liability for debts of the corporation except for acts of fraud, malfeasance or criminal wrongdoing. Kemper, supra; First Downtown Development, supra; Riggins, supra.

Regardless of the basis for piercing the corporate veil, the situation must be viewed with regard to the totality of circumstances in each case. Kemper, supra; First Downtown Development, supra; Riggins, supra; American Bank of Welch, supra; George A. Hormel & Co., supra. Whether imposition of individual liability is justified under particular circumstances is primarily a factual finding to be made by the trial court. Id.

With these legal principles in mind, we now address the question of whether the motion for summary judgment was properly granted in the case sub judice. Billy Dwayne Brumley is a separate and distinct legal entity from B & B Wholesale, Inc. That being the case, the burden shifted to Ms. Carter to bring forth some evidence to show a genuine issue of fact as to some conduct which could give rise to personal liability on the part of the Brumley. There is no evidence in the record, however, to support Ms. Carter’s contention that any of Brumley’s acts or omissions were done in his individual capacity as opposed to his corporate capacity as the president of B & B Wholesale, Inc., or that Brumley purported to bind himself individually for the debts or liability of the corporation. There is no |nevidence of a violation of a personal duty owed by Brumley to the plaintiffs. Additionally, there is no evidence that any of Brumley’s alleged actions in this case rose to the level of fraud, malfeasance or criminal wrongdoing such that the imposition of individual liability on Brumley would be warranted. Accordingly, we find the trial court did not err in rendering summary judgment in favor of Brumley, thereby dismissing him as a defendant in these proceedings.

Given our finding that Brumley was properly dismissed as a defendant in these proceedings, we pretermit any discussion pertaining to the sufficiency of the evidence as advanced by either party in this case.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court granting summary judgment and dismissing Defendant Billy Dwayne Brumley from the proceedings in this case. Costs of this appeal are assessed to Plaintiffs, Ericka Lynn Carter, et al.

AFFIRMED.