author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Joel T. WILLIS.
    No. 2010-KA-1613.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

JjSTATEMENT OF CASE

The State charged Joel T. Willis with the armed robbery of Warrick Scott, in violation of La. R.S. 14:64. Prior to trial, the State filed a Pñeur notice that it intended to introduce evidence that Willis committed the armed robbery of Viorica Ciunta ten days earlier. After a hearing the trial court allowed the State to introduce this evidence. Immediately prior to trial, the court heard and denied a defense Motion in Limine to Exclude Irrelevant and Prejudicial Information and to Exclude Unadjudicated Prior Bad Acts. Subsequent to trial, the jury found Willis guilty as charged.

Initially, the trial court sentenced Willis to thirty years. However, after finding him to be a triple offender, the court vacated this sentence, and imposed a sixty-six year sentence, with credit for time served. This appeal follows.

STATEMENT OF FACT

On August 24, 2009, Warrick Scott, a teenager, took the school bus to his school on Esplanade Avenue. Before going into the school building he went to get breakfast at a nearby gas station/convenience store, a block away. While in the store, he saw Willis talking to the cashier. As Scott paid, he “was watching L[Willis]” and saw Willis’s face at that time. Scott left the store and crossed the street. He saw Willis exit the store, but continued walking, thinking Willis was going home. At some point, Scott realized Willis was following him. Eventually Willis approached Scott and asked for his wallet. Scott saw Willis had a gun that he was holding so that others could not see. The barrel was pointed toward Scott and Willis threatened to “pop” Scott if he did not hand the wallet over, so Scott handed over his wallet.

The robbery occurred at approximately 8:00 a.m. on the Esplanade Avenue neutral ground and took about five to seven minutes. Scott borrowed a cell phone from a passerby to call the police. A copy of the 911 tape was introduced at trial. Officers Dominique Silvestri and Eugene Smuthers responded to the school where they interviewed Scott. Detective Krister Vilen arrived later. Scott described the gun as a silver semi-automatic handgun. However, Scott admitted that he was not familiar with the differences in types of guns.

Scott estimated his own height to be approximately six feet. He described Willis as an inch shorter, or approximately five feet, eleven inches. He also noted Willis had a “real chipped” front tooth and was wearing “grayish” “army plaid” shorts. Scott had difficulty estimating Willis’s weight due to the clothes the perpetrator was wearing. Scott weighed 155 to 160 pounds at the time, and he thought Willis was of similar size or weight. However, Scott did not dispute telling an investigating officer that Willis weighed 180 to 190 pounds. Officer Silves-tri testified that Scott described his assailant as a black male with a fade haircut, wearing camouflage green and tan shorts, a gray shirt with unknown lettering, and “a gap on his upper jaw.” Officer Silvestri also received information |sthat the assailant was 5'10" tall and weighed 180 to 190 pounds. His age was estimated at between twenty-five and thirty years old.

Two or three days after the armed robbery, Scott identified Willis in a photographic lineup presented by Det. Vilen. He also identified Willis in court as the person who robbed him. On cross-examination, Scott could not explain why his signature on the photographic lineup was dated August 24, 2008 — the date of the armed robbery, but he affirmed he had no doubt that Willis was the armed robber.

The officers retrieved a surveillance video from the convenience store. The video was played for the jury at trial as Det. Vilen pointed out the victim and then identified Willis as being “behind Scott wearing like a gray shirt with some writing on it and ... camouflage long pants — short pants.” The video also showed the intersection of Claiborne and Esplanade Avenues, and Det. Vilen pointed out Scott crossing the street prior to Willis.

Det. Vilen used a still photo taken from this video for a press release. Someone responded after seeing it on television, and Det. Vilen used that information to verify information in the New Orleans Police Department’s database. He developed the photographic lineup shown to Scott, and it took Scott only two seconds to identify his robber.

According to Det. Vilen, Willis is 5'8" and weighs 135 pounds. Scott described him as 5'10" and 180 to 190 pounds.

The evidence of the other armed robbery introduced at trial, began with a tape from an August 14, 2009 911 call of an incident at a Shell gas station on Canal Street, which was played for the jury.

| ¿Santee Cook was working at the station on that day. She had gone outside to take a telephone call and was walking back and forth by the door. While she was on the phone, she saw a man with a T-shirt on his head walk in the store. He was wearing a white T-shirt, blue jeans, and tennis shoes. Ms. Cook never made eye contact with the man, but saw him as he walked onto the property, by the gas pumps, and into the store. He was not in the store long — a couple of minutes — before Ms. Cook saw the same man running or jogging out of the store. She had just finished her conversation and was walking back towards the store when through the window she saw the other cashier with her hands up and mouthing that they had just been robbed. Ms. Cook got in her car and attempted to follow the robber, but he went down an alley about a block from the gas station.

Detective Michael Sam presented Ms. Cook a photographic lineup. She identified the defendant.

The cashier described the armed robber to Det. Sam as a dark complexioned black male, but did not provide a height, weight or age. Detective Sam retrieved video camera footage from the gas station which contained images of the robber. This footage was shown to the jury.

A press release was issued with the wrong name, but Det. Sam developed Willis as a suspect in the August 14, 2009 robbery after learning of the Scott robbery. He subsequently presented a photographic lineup containing Willis’ picture to both of the witnesses involved in the Canal Street robbery, and they both identified Willis.

\ .ERRORS PATENT

The record reveals one error patent. The trial court failed to impose the sentence as a multiple offender at hard labor without benefit or probation or suspension of sentence as mandated by La. R.S. 15:529.1(G). However, La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence, whether or not imposed by the sentencing court. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Accordingly, we need take no action to correct the trial court’s failure to specify that the defendant’s sentence is to be served without benefit probation or suspension of sentence as the correction is statutorily effected. See State v. Thomas, 2010-0651, p. 3 (La.App. 4 Cir. 6/8/11), 70 So.3d 96, 100-01.

DISCUSSION

In his sole assignment of error, Willis argues that the trial court erred in allowing the State to introduce the evidence of the August 14, 2009 armed robbery at the Canal Street Shell station.

Pursuant to the pertinent part of La. C.E. art. 404(B),

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.

|Jn State v. Lee, 2005-2098, p. 44 (La.1/16/08), 976 So.2d 109, 139, the Court stated the requirements for admission of other crimes evidence:

Generally, courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. However, the State may introduce evidence of other crimes if the State establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, or preparation, or when the evidence relates to conduct which constitutes an integral part of the act or transaction that is the subject of the present proceeding. LA.CODE EVID. ANN. art. 404(B)(1). Nonetheless, the State must provide the defendant with notice and a hearing before trial that it intends to offer prior crimes evidence. State v. Prieur, 277 So.2d 126, 130 (La.1973). Additionally, the State must prove the defendant committed the other acts. LA.CODE EVID. ANN. art. 1104; Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501-1502, 99 L.Ed.2d 771 (1988); State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, 207-208, writ denied, 96-1126 (La.10/4/96), 679 So.2d 1379. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Hatcher, 372 So.2d 1024, 1033 (La.1979); State v. Sutfield, 354 So.2d 1334, 1337 (La.1978); State v. Jackson, 352 So.2d 195, 196 (La.1977); State v. Ledet, 345 So.2d 474 (La.1977).

In Prieur, 277 So.2d at 130, the court had set forth the prerequisites to the admission of other crimes evidence, in pertinent part, as follows:

(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
|7(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.

The State’s Prieur Notice stated that it wanted to introduce the disputed evidence because “the issues of identity, motive, intent, preparation, plan and mistake or accident will be a genuine issue of material fact at trial.” At the hearing, defense counsel noted that in a similar hearing in Case No. 491-666, “we had discussed, of course, the idea of closeness in time and the proximity, the two events.” . Defense counsel also argued that if Willis chose to waive his Fifth Amendment right to remain silent in this case, it would infringe on his right to remain silent in the other case. The trial court rejected this argument as “not the issue.” Moreover, trial counsel admitted that “this whole situation could have been circumvented by the D.A.’s office nolle prossing one of the cases and combining them together.” Noting that in such a situation the jury would have learned “all of the information,” the trial court stated it had granted a Primr motion in the other case; that the defense had been placed on notice that a jury would hear the facts of both cases; and therefore it allowed evidence of the August 14, 2009 armed robbery in this case.

Immediately prior to trial, Willis filed a Motion in Limine, requesting a review of the trial court’s decision to allow the evidence. Defense counsel did not dispute any ground upon which the State was attempting to introduce the evidence. 1 sRather, counsel argued that the prejudice from the evidence outweighed the probative value. Counsel argued that the only similarity between the two crimes was “some of the evidence begins to take place within a convenience store.” The trial court denied the motion.

Willis now argues: 1) the two crimes were not distinctive; 2) the evidence of the other crime was relevant only to show his criminal disposition; and 3) prejudice outweighs any probative value. The record presented does not specify the State’s reasoning for introducing the evidence of the other crime beyond the various reasons asserted in its Prieur notice. Since the defense argument at the motion in limine hearing focused on prejudice and probative value, it is unclear whether any objection relating to the State’s purpose in introducing the evidence has been preserved for review. See La.C.Cr.P. art. 841 (irregularity or error cannot be availed of after verdict unless objected to with grounds at the time of error/irregularity), see also State v. Welch, 615 So.2d 300, 303 (La.1993) (defendant waived complaint that state failed to provide Prieur notice, 1.e. failed to preserve irregularity involving evidence of other crimes or bad acts). However, any error resulting therefrom is harmless. The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Bell, 99-3278, p. 5 (La.12/8/00), 776 So.2d 418, 421.

When performing a harmless error analysis, the reviewing court must determine “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Bell, 99-3278, p. 5, 776 So.2d at 421. The inquiry “is not whether, in a trial that occurred without the error, a guilty | verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely attributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Bell, 99-3278, p. 6, 776 So.2d at 421-422.

In Bell, the Court could not conclude that the verdict “was surely unattributable” to improperly admitted evidence of another crime 99-3278, p. 8, 776 So.2d at 423, because it found that the only evidence connecting Bell to the crime for which he was convicted was testimony of co-perpetrators. Id,., 99-3278, p. 7, 776 So.2d at 422. The Court noted that a co-perpetrator’s testimony is not disinterested and must be viewed with caution. Id., citing State v. Gunter, 208 La. 694, 23 So.2d 305 (1945). This case is distinguishable from Bell in that the independent evidence used to convict Willis comes from disinterested parties — the victim, the investigating officer, and video tape.

Here, the victim testified that he first saw Willis at the convenience store/gas station where he “was watching” Willis. Scott testified that Willis was wearing “grayish” “army plaid” shorts. Scott also testified that Willis had a chipped front tooth. Officer Silvestri confirmed that he received this description from Scott. Moreover, the jury heard the 911 tape, wherein, the Assistant District Attorney pointed out in closing, Scott described “the gray shirt and the cargo shorts.”

The record indicates minor inconsistencies between Willis’s height and weight and the description Scott provided to the police. Officer Silvestri received a description of a man who was 5'10" tall and weighing between 180 and 190 pounds. Det. Vilen wrote in his report that Willis is only 5'8" and weighs 135 pounds. However, Scott also testified at trial that he was 6' tall and weighed 155 to 160 pound. Scott further testified that Willis was of a similar weight to his, but | inthat he could not tell for sure due to Willis’ clothes. These inconsistencies demonstrate only that Scott — a teenager — had difficulty estimating weight and height. However, Scott was certain of his identification of Willis in a lineup and in court. Any inconsistency is resolved by the fact that the jury saw Willis in a video that placed him at the gas station with Scott immediately before the armed robbery. The video confirms Scott’s identification by placing Willis at the gas station with Scott immediately prior to the commission of the crime. The jury also saw the video portray Willis crossing the street away from the gas station only seconds after it showed Scott leaving the gas station. The combined evidence of the video and Scott’s testimony prove beyond a reasonable doubt that any error in admitting evidence of the August 14, 2009 conviction was harmless. Surely, the conviction is not attributable to the evidence of the August 14, 2009 armed robbery on Canal Street. Accordingly, we find that Willis’s assignment of error has no merit and affirm his conviction.

CONCLUSION

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

AFFIRMED.

      . This record does not contain a copy of the transcript from this hearing

      . The record does not contain a copy of the Motion in Limine.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cleveland MOORE.
    No. 2011-KA-0025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

I,The grand jury indicted Cleveland Moore for the second-degree murder of Joyce Rader and the attempted second-degree murder of John Newlin. The petit jury returned the responsive verdicts of manslaughter and of aggravated battery, respectively. Mr. Moore appeals the convictions. While he concedes the sufficiency of the evidence with respect to the aggravated battery conviction, he argues on appeal that the evidence is insufficient to convict him of the killing of Ms. Rader. He also argues that the trial judge committed prejudicial error by admitting testimony of Mr. Newlin’s — as Mr. Moore characterizes it — “dying declaration.” This error, he argues, would result in a new trial.

After a review of all of the evidence under the Jackson v. Virginia standard, we find that there is sufficient evidence for any rational trier of fact to conclude beyond a reasonable doubt that Mr. Moore is guilty of the intentional killing of Ms. Rad-er. We also find that the testimony admitted over Mr. Moore’s objection did not affect a substantial right and, even if erroneously admitted, was a harmless | ¡error. Consequently, we affirm the convictions and sentences. We explain our decision in greater detail below.

I

In this Part we summarize the procedural developments in this case and set forth the facts necessary to an understanding of the issues.

A

On February 12, 2009, the defendant, Cleveland Moore, was indicted for the second-degree murder of Joyce Rader and the attempted second degree murder of John Newlin. The defendant pled not guilty to both counts. After a jury trial Mr. Moore was found guilty of manslaughter on count one and aggravated battery on count two. Mr. Moore filed motions for new trial and post-verdict judgment of acquittal. The trial court denied both motions. Mr. Moore waived delays, and the trial court sentenced the defendant to forty years at hard labor with credit for time served on count one and ten years at hard labor with credit for time served on count two. The two sentences are to be served concurrently. Mr. Moore filed a motion to reconsider sentence, which was denied by the trial court. Mr. Moore then filed a motion for appeal.

B

On November 15, 2005, Mark Baringer knocked on the front door of John New-lin’s home in the Faubourg Marigny. When Mr. Newlin failed to answer the door, Mr. Baringer peered into the house and observed that some interior doors 13were open, indicating to him that Mr. Newlin was in the house. Mr. Baringer then went around to the back door. At the back door, he could hear from the inside of the house Mr. Newlin’s cries for help. Using a large piece of wood, he pried the locked iron gate from its position and kicked in the locked back door.

Inside he discovered on the floor Mr. Newlin and the body of Joyce Rader within feet of each other. Both were bloody and covered in glass. Mr. Baringer asked Mr. Newlin what had happened and who did this to him to which Mr. Newlin replied “Cleveland.” Mr. Baringer then ran out of the house and asked a neighbor to call the emergency operator.

Mr. Newlin at the trial recalled that on the preceding evening his sometime lover, Cleveland Moore, had come to his home in the company of Ms. Rader. Mr. Moore had keys to Mr. Newlin’s home. After an at-first uneventful visit, Mr. Moore and Ms. Rader separated from Mr. Newlin and went to the front room, leaving Mr. Newlin in the back of the house at his computer. Upon Mr. Moore and Ms. Rader’s return from the front room, Mr. Newlin felt threatened and became frightened by them; he retreated from them toward the kitchen. Mr. Moore grabbed Mr. Newlin by the arm and raised a bottle to hit him. Mr. Newlin began to plead with Mr. Moore not to do anything. The last thing he remembers before waking up in a hospital is Ms. Rader smiling as Mr. Moore raised the bottle to attack him.

Ms. Rader’s body had numerous wounds, which the medical examiner considered to most likely have been caused by a knife. Many were shallow or | /‘hesitation” wounds, suggesting that her attacker was working up the courage to kill. One large cut penetrated her liver and lung and could have been fatal given enough time. But the fatal blow was one of the two stab wounds entering the back of Ms. Rader’s neck and exiting out the front of her neck, cutting her jugular vein. She bled to death within minutes.

When the police arrived, the house had been thoroughly ransacked. This disarray contrasted to an earlier visit the previous evening by Louie Vallon. He described the condition of the house as neat and orderly when he left, which was before Mr. Moore and Ms. Rader arrived.

After the discovery of Ms. Rader’s body, Mr. Newlin’s cell phone and Mr. Moore were both missing and unaccounted for. When the police search for Mr. Moore’s whereabouts became dormant, Judith Wenger, a friend of Mr. Newlin, conducted her own search for him. She located him in the Florida Panhandle, where finally the police arrested him. Mr. Newlin’s cell phone records showed that the phone was physically in the Panhandle after the attack on Mr. Newlin and that it was used to communicate with a Sandra Enid Diaz, who had the same social security number as the Sandra E. Moore who visited Mr. Moore when he was incarcerated awaiting trial.

There was little other physical evidence to tie Mr. Moore to the attacks on Mr. Newlin and Ms. Rader. The police explained that their forensic capabilities were impaired on account of the aftermath of Hurricane Katrina, which had 1 ¿occurred a little over two months earlier. Thus, neither the wine bottle nor a washed knife was fingerprinted.

II

In this Part we first address the constitutional standard of review for claims of insufficiency of evidence, and then turn to consider the evidence presented to the jury as the fact-finder. Finally, we explain why we find from the record that there was sufficient evidence to prove beyond a reasonable doubt every element of the offense of manslaughter.

A

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “After Win-ship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id. quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). (emphasis added by Jackson). “Instead, the relevant question 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 beyond a reasonable doubt.” Id. (bold emphasis in original); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), (stating: “Jury | fiverdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt.”).

In discharging our review function, we consider “all of the evidence ” before the actual fact-finder. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the fact-finder because it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The criterion thus impinges upon ‘jury1 discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Id.

Similarly, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 2006^81, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. “It is not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const. art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 24 (La.App. 4 Cir. 2/24/10), 32 So.3d 999, 1015.

Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider reasonable inferences drawn from basic facts to ultimate facts. We must confine ourselves to questions of law except to the extent, 17and only to the extent, that Jackson mandates otherwise. State v. Gilmore, 10-0059, p. 5 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 212.

The crime of manslaughter includes “a homicide which would be murder ... under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l). Second-degree murder is defined as “the killing of a human being ... when the offender has the specific intent to kill or to inflict great bodily harm”. La. R.S. 14:30.1 A(l). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; they are only mitigating factors lessening the culpability of a defendant. State v. Lombard, 486 So.2d 106, 110 (La.1986). Therefore, because provocation is not an element of manslaughter, in our review function in this case, we need not consider whether there is any evidence of the killer’s provocation and need only focus on whether there was an intentional killing.

B

We turn now to a consideration of the record facts. We explain why we find from our review that the evidence is sufficient to convict Mr. Moore in Ms. Rader’s killing.

Mr. Moore correctly argues that there is no direct evidence that he is the person who attacked Ms. Rader. Thus, we must evaluate whether her killing at the hand of Mr. Moore is an ultimate fact which can reasonably be inferred from the |sbasic facts. The basic facts in this case are all established for the purpose of our constitutional review by the uncontradicted testimony of the witnesses. “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369; see also State v. Robinson, 10-0885, pp. 7-8 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208, 1213.

As noted, manslaughter is a homicide that would be considered murder,. but for the existence of mitigating circumstances that render the defendant less culpable for his crime. Here, the specific intent to kill may be inferred from the manner in which Ms. Rader was attacked. Because Ms. Rader received two stab wounds to her neck and a large cut into her liver and lung, it is clear that someone had the specific intent to kill her or to inflict great bodily harm. Her killing was surely not accidental; it was an intentional killing.

Because the remaining factors to convict of murder or manslaughter are present, the sole question then is who intentionally killed Ms. Rader. Mr. Moore did not urge any justification for Ms. Rader’s killing, such as self-defense or defense of others. See La. R.S. 14:20 and 22. Thus, the state did not have the burden of putting forward evidence negating a justification defense. See State v. Batiste, 96-1010, p. 12 (La.App. 5 Cir. 1/27/98), 708 So.2d 764, 771.

Here, at the time of the attack on Mr. Newlin, only two other persons were in his home: Mr. Moore and Ms. Rader. At the moment Mr. Newlin was attacked, Ms. Rader was unharmed and smiling. Mr. Moore left the house sometime after the attack on Mr. Newlin and before Mr. Bar-inger discovered Ms. Rader’s body. There is no doubt that Mr. Moore attacked Mr. Newlin. And there is no doubt that | nMr. Moore left the New Orleans area for the Florida Panhandle area, where he used Mr. Newlin’s cell phone. Even though the Newlin home had been ransacked, there was no sign whatsoever that there had been a break-in; the home was secure when Mr. Baringer arrived in the morning.

Based upon the uncontradicted testimony of Mr. Newlin and of Mr. Baringer, a rational fact-finder could reasonably exclude either of them as Ms. Rader’s killer. And Mr. Moore does not suggest anyone else who may have killed Ms. Rader. A reasonable inference from the basic facts is that Mr. Newlin’s attacker, Mr. Moore, is the killer of Ms. Rader.

Mr. Moore suggests that the modus op-erandi of Mr. Newlin’s attacker, whose weapon was likely a wine bottle, and of Ms. Rader’s killer, whose weapon was likely a knife, gives rise to a hypothesis that the attacker and killer are different persons. But the prosecution is not “under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326, 99 S.Ct. 2781. Even if we accepted that the historical facts supported such a hypothesis, we would still be required to defer to the fact-finder’s resolution of the issue in favor of the prosecution. Id. When a conviction is based on circumstantial evidence, such evidence must exclude only every reasonable hypothesis of innocence. See La. R.S. 15:438; see also State v. Camp, 446 So.2d 1207 (La.1984). Thus, if a rational fact-finder reasonably rejects the defendant’s hypothesis of innocence, that hypothesis fails; and, unless another one creates reasonable doubt, the defendant is guilty. See State v. Captville, 448 So.2d 676 (La.1984).

Having reviewed all of the evidence in the light most favorable to the prosecution, we conclude that there is sufficient evidence for a rational trier of fact to find that all the essential elements of manslaughter have been established by | inproof beyond a reasonable doubt. Thus, Mr. Moore’s conviction of manslaughter is affirmed.

Ill

In this Part we address the testimony admitted over Mr. Moore’s objection, which he has characterized as a “dying declaration,” and explain why the trial court’s admission of this testimony does not require reversal and a new trial.

A

The issue first arose during the prosecution’s direct examination of Mr. Baringer, who was testifying before Mr. Newlin was called as a witness. The pertinent verbatim portion of the examination is set out below:

MR. BARINGER: I asked him, “who did this to you?” I said, “What happened? Who did this to you?
PROSECUTOR: Was he able to respond?
MR. BARINGER: Yes, sir.
PROSECUTOR: What did he say?
DEFENSE: Objection to hearsay.
COURT: Sustained.
PROSECUTOR: Your Honor, his dying declaration. Can we approach?
(OFF-RECORD DISCUSSION AT THE BENCH)
COURT: Repeat the question. PROSECUTOR: Mr. Baringer, was John Newlin able to tell you who did this to him?
MR. BARINGER: Yes, sir.
PROSECUTOR: What did he say?
|nDEFENSE: Again, objection to hearsay, Your Honor.
COURT: Overruled. I’ll note your objection.
PROSECUTOR: What did he say, Mr. Baringer?
MR. BARINGER: He said, “Cleveland.”
PROSECUTOR: What did you do at that point?
MR. BARINGER: I asked him again, “Did you say, Cleveland?” He said, ‘Yes, Cleveland.” And then I ran. I told him to hold a minute. I was going to get help.

At the conclusion of another witness’ testimony, and out of the presence of the jury, Mr. Moore’s counsel moved for a mistrial. During the argument Mr. Moore’s counsel asserted that the trial judge had admitted the objectionable testimony as a dying declaration. The trial judge promptly contradicted the defense counsel and stated that her justification for admitting the testimony was that the prosecutor had represented to her at the bench conference that Mr. Newlin did not remember telling Mr. Baringer that Mr. Moore was his attacker. Based upon the representation, she concluded that Mr. Newlin was “unavailable as a witness” because of his lack of memory of the subject matter of his statement. See La. C.E. art. 804 A(3). She denied the motion for mistrial.

When the prosecution did call Mr. New-lin as a witness, he testified that he did not remember being on the kitchen floor, or even seeing or speaking to Mr. Baringer about what caused him to be on the kitchen floor. But Mr. Newlin further testified on direct examination:

PROSECUTOR: Mr. Newlin, do you see the man who attacked you with that bottle in the courtroom today?
MR. NEWLIN: Yes.
JjjPROSE CUTOR: Where is he?
MR. NEWLIN: Right there (pointing).
PROSECUTOR: Mr. Newlin, is there any doubt in your mind—
MR. NEWLIN: No.
PROSECUTOR: —that that’s Cleveland Moore?
MR. NEWLIN: No.

Mr. Moore’s counsel did not cross-examine Mr. Newlin on his identification of Mr. Moore as his attacker.

B

Mr. Moore timely objected to the trial court’s ruling admitting the testimony of Mr. Baringer and stated the specific ground for his objection. See La. C.E. art. 103 A(l). Despite the trial judge’s statement explaining her ruling, see La. C.E. ART. 103 B, Mr. Moore persists on appeal in arguing that she improperly admitted the statement of Mr. Newlin to Mr. Bar-inger, believing it to come within the “dying declaration” exception to the hearsay rule. See La. C.E. art. 804 B(2) (“A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.”)

Mr. Moore correctly argues that in order to admit a hearsay statement as a dying declaration, the court must be satisfied of two factors: the timing requirement and the content requirement; it must be shown that the declarant believed his death was imminent/impending and that the statement concerned the cause or circumstances of the impending death. See Garza v. Delta Tau Delta Fraternity Nat’l, 05-1508, 05-1527, p. 11 (La.7/10/06), 948 So.2d 84, 92. Mr. Moore, comparing Mr. Newlin to the declarant who also did not die from his wounds in State v. Moye, further correctly argues that “there is no testimony indicating or implying that [the declarant] believed that his death was imminent” despite his wounding and the loss of a great deal of blood. State v. Moye, 99-2413, p. 6 (La.App. 4 Cir. 6/14/00), 765 So.2d 1103, 1106-1107. In the absence of such evidence, the statement is not admissible as a dying declaration exception to the hearsay rule. Id. at 1007. But just because Mr. Newlin’s statement does not qualify as a dying declaration does not necessarily result in its exclusion from evidence if it qualifies under another exception. Id.

The trial judge was correct in not admitting the statement as a dying declaration. Her stated reason for her ruling, as we indicated at Part III-A ante, was the unavailability of Mr. Newlin. Generally, a declarant is “unavailable as a witness” when he cannot testify to the substance of the statement, which includes when the declarant “[testifies to a lack of memory of the subject matter of his statement”. La. C.E. art. 804 A(3). This pro-vision contemplates that a physically available person will first “testify” as to lack of memory before the court will admit the person’s hearsay statement. But a stipulation as to the declarant’s lack of memory has been found to satisfy this requirement. See State v. Davis, 44,656, pp. 11-12 (La.App. 2 Cir. 11/18/09), 26 So.3d 802, 810. See also Hukill v. State ex rel. Dept. of Transp. & Development, 04-1009, p. 10 (La.App. 3 Cir. 12/18/04), 896 So.2d 82, 89. Here, the trial judge did not ascertain beforehand either from the declarant or by stipulation that Mr. Newlin lacked memory about the contents of the statement reported by Mr. Baringer. But, as the trial unfolded and Mr. Newlin testified to his lack of memory, any error in the premature finding of his ^unavailability was cured, and it did not affect any “substantial right” of Mr. Moore. La. C.E. art. 103 A.

Notably and understandably, Mr. Moore does not argue that the admission of the hearsay statement, even under the available statutory exception, violated his Sixth Amendment right to confront the witnesses against him. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Mr. Moore, as stated earlier, did in fact have an opportunity to cross-examine Mr. Newlin during the trial.

Mr. Moore now argues that admission of the statement prejudicially “buttressed” Mr. Newlin’s testimony. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”. See La. C.E. art. 403. Mr. Moore contends that evidence of Mr. Newlin’s statements to Mr. Baringer soon after the attack allows the jury to infer that Mr. Newlin remembers Mr. Moore as being his attacker. But there is no prejudice to Mr. Moore in this. If Mr. Moore had challenged Mr. Newlin’s trial recollection of Mr. Moore as his attacker through “an express or implied charge against him of recent fabrication or improper influence or motive,” then Mr. Newlin’s statement to Mr. Baringer would not be hearsay and would have been admissible as a prior consistent statement. La. C.E. art. 801 D(l)(b). Thus, simply because Mr. Moore chose not to confront Mr. Newlin about his in-court identification of Mr. Moore as his attacker and made no charge of recent fabrication against him, he cannot now speculate about prejudice resulting from the court’s admitting evidence which would have buttressed Mr. Newlin’s testimony. On the point of his identification as Mr. Newlin’s attacker, Mr. Moore did not challenge Mr. Newlin’s testimony. Thus, the admission would be harmless as it is cumulative. State v. Broadway, 96-2659, p. 25 (La.10/19/99), 753 So.2d 801, 818. Therefore, Mr. Moore is not entitled to a new trial.

DECREE

The convictions of the defendant, Cleveland Moore, for manslaughter in the death of Joyce Rader and for aggravated battery of John Newlin are affirmed.

AFFIRMED

      . We have conducted an independent review of the record for any errors patent and have found none. See La. C. Cr. P. art. 920.

        . Manslaughter is a responsive verdict to a charge of second-degree murder, and the relevant portion of the manslaughter statute constitutes a lesser-and-included offense of the relevant portion of the second-degree statute. In this case, the conviction under review is the jury’s selection of an unchallenged responsive verdict. Even if manslaughter was not a lesser-and-included offense of second-degree, we would still find sufficiency of evidence to prove the elements of second-degree murder, the offense charged. See La. C. CR. P. art. 814 A(3) and C; State v. Porter, 93-1106, pp. 5-6 (La.7/5/94), 639 So.2d 1137, 1141; State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982); State v. Pleasant, 10-1533, p. 7 (La.App. 4 Cir. 5/18/11), 66 So.3d 51, 56.


author: MARC E. JOHNSON, Judge.

text:
    Joseph Andrew McFALL v. Shannon Mishell ARMSTRONG, Wife of Joseph Andrew McFall.
    No. 10-CA-1041.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 2011.

      Laura J. Todaro, Neil D.W. Montgomery, Attorneys at Law, Kenner, LA, for PlaintiffiAppellant.
    Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 gPlaintiff/Appellant, Joseph Andrew McFall (“Joseph”), appeals the denial of a Judgment of Divorce based upon adultery and the custody and visitation determination in favor of Defendant/Appellee, Shannon Mishell Armstrong (“Shannon”), from the 29th Judicial District Court, Division “C.” For the following reasons, we affirm, in part, and reverse and remand, in part, for further proceedings.

FACTS AND PROCEDURAL HISTORY

Joseph and Shannon were married on April 16, 1994, and three children were born of the marriage: Rachel, Joseph “Drew”, and Jack. Joseph and Shannon separated on September 3, 2009. On October 15, 2009, Joseph filed a Petition for Divorce against Shannon seeking ancillary relief, including custody of the parties’ three children. Shannon also filed a re-conventional demand seeking a divorce and custody on November 2, 2009. Joseph’s petition alleged that Shannon had a substantial drug addiction problem and was engaged in doctor shopping.

| ¡¡Through an interim order signed on November 13, 2009, the trial court granted Shannon temporary sole custody of the minor children pending a custody evaluation and granted Joseph visitation on alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. With the consent of the parties, the trial court appointed Julie C. Ruel, who has experience in substance abuse assessment and treatment, to provide the custody evaluation. The trial court also reinstated a previously dismissed Petition for Domestic Abuse Protection and issued a Uniform Abuse Prevention Order against Joseph. The trial court’s judgment reinstating the Petition for Domestic Abuse was later reversed by this Court in McFall v. Armstrong, 10-181 (La.App. 5 Cir. 10/12/10); 50 So.Sd 904. As part of Ms. Ruel’s custody evaluation, she requested and obtained a report from Jo Ballanco, a clinical social worker with a specialty in domestic violence intervention prevention. Ms. Ballanco’s report was attached to Ms. Ruel’s custody evaluation, which was introduced into evidence by both parties on February 1, 2010.

On May 7, 2010, Joseph filed a Supplemental and Amended Petition for Divorce under Civil Code Art. 103(2) alleging that he was entitled to a Judgment of Divorce on the basis of Shannon’s alleged adulterous affair with Daniel Webber beginning in January of 2009 and continuing through late August of 2009. Shannon filed an Answer to the Amended Petition denying the adultery allegations. Subsequently on June 4, 2010, Joseph filed a Motion for Contempt of Court against Shannon for alleged denial of his visitation rights with his daughter, Rachel, on multiple weekends. Joseph’s motion and order to show cause sought relief, which included additional visitation time with Rachel and attorney’s fees and costs for the proceedings. Also on June 4, 2010, Joseph filed a Motion to Set Custody for Trial.

The petition for divorce and the motions filed by Joseph were heard by the |4trial court on August 11 and 12, 2010. Ms. Ruel and Ms. Ballanco testified as experts during the trial. On September 7, 2010, the trial court issued its Judgment and Reasons for Judgment. Joseph’s request for divorce was denied and dismissed. The trial court awarded Joseph and Shannon joint custody of the children, designated Shannon as the primary domiciliary parent of the children, awarded Joseph visitation on alternating weekends with one additional week visitation in the months of June, July and August, and required the parties to alternate holidays.

The trial court also found Shannon in contempt of court for denial of visitation with Rachel. The trial court, however, denied Joseph’s demand for attorney’s fees and make-up visitation. Further, the trial court imposed no sentence upon Shannon for the contempt and permitted Shannon to purge herself of the contempt by strictly adhering to and obeying all future orders and judgments of the court. The trial court further ordered Shannon to obtain an independent assessment of her need for substance abuse treatment at St. Charles Community Health Center. The trial court ordered this assessment to be completed no later than September 30, 2010 with a copy to be provided to the court. Additionally, Joseph was taxed with all of the costs of the proceedings. The instant appeal follows from the trial court’s judgment.

ASSIGNMENTS OF ERROR

On appeal, Joseph alleges the trial court erred in: 1) failing to grant him a Judgment of Divorce based upon adultery in light of testimony of Daniel Weber and corroborating evidence; 2) failing to grant him attorney’s fees and costs and make-up visitation time in connection with Shannon’s contempt for denial of his visitation rights pursuant to LSA-R.S. 9:346; 3) ignoring the custody evaluator’s recommendation that Shannon be engaged in an intensive outpatient drug ^treatment program, in failing to condition her custodial rights upon participation in an intensive outpatient drug treatment program, and in ordering a new drug assessment and delegating 100% discretion for that assessment to an undesignated and potentially unqualified person; 4) accepting Jo Ballanco as an expert witness in this matter and allowing her to testify as an expert in connection with her report to the trial court purporting to assess the “level of recurring domestic violence risk”; 5) failing to consider all relevant factors in determining the best interest of the children; and, 6) only granting him visitation with his minor children on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., three weeks in the summer, and three and one-half holidays each year.

LAW AND ANALYSIS

Assignment of Error Number 1

Joseph alleges the trial court was clearly wrong in its determination that Shannon did not commit adultery. Thus, Joseph alleges the trial court erred in failing to grant Joseph a Judgment of Divorce based on Shannon’s adultery. Joseph contends that the testimony of Daniel Webber that he had sexual intercourse with Shannon on several occasions and the fact that he shared a bank account with Shannon lead to the necessary conclusion that Shannon had committed adultery.

LSA-C.C. art. 103(2) provides that a divorce shall be granted on the petition of a spouse upon proof that the other spouse has committed adultery. Although adultery may be established by indirect or circumstantial evidence as well as by direct evidence, the rule is that “the circumstantial proof in these cases must be so convincing as to exclude any other reasonable hypothesis but that of guilt.” Marcotte v. Marcotte, 04-293 (La.App. 3 Cir. 11/10/04); 886 So.2d 671, 678 (citation omitted). The trial court’s factual determination regarding adultery is | (¡entitled to great weight on appeal and will not be disturbed unless manifest error is shown. Arnoult v. Arnoult, 96-730 (La.App. 5 Cir. 2/12/97); 690 So.2d 101, 102, writ denied, 97-0656 (La.4/25/97), 692 So.2d 1089. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Cenacle Retreat House v. Dubose, 04-571 (La.App. 5 Cir. 11/30/04); 888 So.2d 409, 411, writ denied, 05-157 (La.3/24/05); 896 So.2d 1040. Thus, if there are two permissible views of the evidence, a fact finder’s choice of them can never be manifestly erroneous or clearly wrong. Id.

In the instant case, Daniel Webber testified that he and Shannon had sexual intercourse during the time she and Joseph were married and living together. Mr. Webber also testified that he and Shannon shared a checking account together. However, Shannon denied she had an affair with Mr. Webber, and at one point, alleged Mr. Webber was having an affair with Joseph. Ultimately, the trial court denied and dismissed Joseph’s Petition for Divorce. The trial court gave more weight to Shannon’s testimony and reasoned that there was no evidence adduced to corroborate Mr. Weber’s testimony. The trial court found that Joseph had not met his burden of proof.

After reviewing the evidence in the record, we do not find that the trial court was manifestly erroneous in its determination that Shannon had not committed adultery.

Assignment of Error Number 2

Joseph alleges the trial court erred in failing to grant his attorney’s fees and costs and make-up visitation in connection with Shannon’s contempt for denial of his visitation rights pursuant to LSA-R.S. 9:346. Joseph contends that the testimony presented at trial clearly showed that Shannon was in contempt of the |7court’s orders regarding visitation with Rachel.

LSA-R.S. 9:346(A) provides that an action for failure to exercise or to allow child visitation may be instituted against a parent. LSA-R.S. 9:346 further provides,

C. If the action is for the failure to allow child custody, visitation, or time rights pursuant to a court-ordered schedule, and the petitioner is the prevailing party, the defendant shall be held in contempt of court and the court shall award to the petitioner:
(1) A reasonable sum for any actual expenses incurred by the petitioner by the loss of his visitation, custody or time rights.
(2) Additional visitation, custody or time rights with the child equal to the time lost.
(3) All attorney fees and costs of the proceeding.
(4) All costs for counseling for the child which may be necessitated by the defendant’s failure to allow visitation, custody, or time rights with the child.

Here, the trial court found Shannon to be in contempt of the court’s orders regarding visitation with the minor children. The sentence was deferred pending Shannon’s strict adherence to all court orders and judgments in the future. However, the trial court did not follow the mandates of LSA-R.S. 9:346 after finding Shannon was in contempt of the court’s orders. The trial court should have awarded Joseph with the requested additional visitation equal to the time lost and attorney’s fees and costs of the proceeding.

Accordingly, we find the trial court committed legal error in failing to award Joseph with additional visitation and attorney’s fees and costs of the proceeding in conjunction with Shannon’s contempt for not complying with the visitation order. As a result, we reverse the trial court’s ruling deferring Shannon’s sentence and remand this matter to the trial court for compliance with LSA-R.S. 9:346.

| aAssignment of Error Number 3

Joseph alleges the trial court erred in ignoring the custody evaluator’s recommendations that Shannon be engaged in an intensive outpatient drug treatment program, in failing to condition her continued custodial rights upon participation in an intensive outpatient drug treatment program, and in ordering a new drug assessment with a copy provided to the court and delegating 100% discretion for that assessment to an unspecified and potentially unqualified person. Joseph contends the trial court erred in ordering Shannon to obtain a new, post-trial “independent” drug assessment of the need for substance abuse treatment at St. Charles Community Health Center because the evidence clearly provides that Shannon has a substance abuse problem and needs to be in an intensive outpatient drug treatment program.

A trial court has vast discretion in a child custody and visitation proceeding to order a parent to submit to drug treatment. Richardson v. Richardson, 07-430 (La.App. 4 Cir. 12/28/07); 974 So.2d 761, 773. In addition, the trial court is not bound by the testimony of an expert; rather, expert testimony is to be weighed the same as any other evidence. Kuebel v. Chanel’s Garden Center, Inc., 09-635 (La.App. 5 Cir. 12/29/09); 30 So.3d 885, 895. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Id. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Id.

In this matter, the trial court ordered Shannon to obtain an independent assessment of the need for substance abuse treatment at St. Charles Community Health Center and required that the assessment be performed no later than September 80, 2010. A copy of the assessment was ordered to be furnished to the trial court by the same date. The trial court also ordered Shannon to strictly adhere to whichever counseling services that were deemed necessary by the assessment |9and made Shannon responsible for forwarding the monthly reports from the treatment provider to the court.

Because the trial court has broad discretion to accept or reject expert testimony and has broad discretion in ordering drug abuse treatment in a child custody and visitation proceeding, we do not find the trial court was manifestly erroneous in requiring that Shannon obtain an independent assessment of the need for substance abuse treatment and not requiring her to receive intensive outpatient drug treatment.

Assignment of Error Number k

Joseph alleges the trial court erred in accepting Jo Ballanco as an expert witness and in allowing her to testify as an expert in clinical social work with a specialty in domestic violence intervention prevention in connection with her report to the court purporting to assess the “level of recurring domestic violence risk,” as her report, opinion and methodology are not appropriate or reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Joseph contends that there is no standardized method for estimating the level of recurring domestic violence risk as Ms. Ballanco has purported in her report, and Ms. Ballanco was unable to cite any authority to show that her methodology is subject to peer review or publications. Consequently, Joseph further alleges the trial court erred in ordering him to pay an expert witness fee to Ms. Ballanco.

A trial judge is vested with wide discretion in determining the competence of an expert witness. Jefferson v. Jefferson, 06-301 (La.App. 5 Cir. 10/31/06); 946 So.2d 191, 195. The competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. Id. Rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. Id.

|inIn Daubert, supra, the United State Supreme Court established the following non-exclusive factors to be considered by district courts to determine the admissibility of expert testimony: 1) the “testability” of the scientific theory or technique; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and, 4) whether the methodology is generally accepted in the scientific community.

The Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1121 (La.1993) characterized the Daubert factors as “observations,” which provide a “helpful guide for our lower courts in considering this difficult issue.” The Daubert factors are designed to “assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue.” Id.

Admissibility of expert testimony in Louisiana is governed by LSA-C.E. art. 702, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In the case at bar, the trial court heard evidence that Ms. Ballanco has received a masters in social work and has years of experience as a clinical social worker in the field of domestic violence. Additionally, the trial court that Ms. Ballanco was trained in domestic violence intervention and prevention through Duluth, a domestic violence program. Ms. Ballanco testified that, although there is no standardized method to assess domestic violence, there are publications and assessment tools that aide in the assessment of domestic violence. At the conclusion of the lengthy questioning regarding her experience and methodology, the trial judge accepted Ms. Ballanco as a clinical social worker with a specialty in |n domestic violence intervention and prevention.

Additionally, although Joseph raised a Daubert challenge during the voir dire as to Ms. Ballanco’s qualifications, the objected-to testimony had already been admitted without objection through Ms. Ruel’s testimony. Thus, the trier of fact had already heard Ms. Ballanco’s opinion through Ms. Ruel. Ms. Ruel testified that she relied on Ms. Ballanco’s domestic violence assessment in forming her opinions. In particular, she testified that Ms. Ballan-co determined that the children portrayed symptoms of domestic violence including depression, anger, blame and school problems. She also testified that those symptoms could be the symptoms of a family that has substance abuse in the home as well as domestic violence. Even assuming this testimony was improperly admitted, we find such error to be harmless because the objected-to testimony was cumulative.

In the light of the foregoing, we do not find the trial court erred in accepting Ms. Ballanco as an expert witness. Ms. Bal-lanco’s training and experience was sufficient to qualify her as an expert clinical social worker with a specialty in domestic violence intervention and prevention. Additionally, we do not find the trial court erred in taxing Joseph with the expert witness fees. (See, Lewis v. State Farm Mut. Auto. Ins. Co., 05-807 (La.App. 5 Cir. 5/28/06); 927 So.2d 546, 553, where this Court found the fixing of expert fees is within the discretion of the trial court, and that award will not be disturbed on appeal unless there is an abuse of discretion). Assignment of Error Number 5

With regard to the trial court’s award of custody and visitation, Joseph alleges the trial court failed to indicate that it considered all relevant factors in determining the best interest of the children, or that it had performed any sort of analysis under the LSA-C.C. art. 134. Joseph contends the trial court failed to give | ^consideration to: Ms. Ruel’s testimony that Shannon had a substance abuse problem which caused her difficulty in getting out of bed, getting the children to school, and providing a disciplinary structure; Shannon’s ongoing substance abuse counseling as it relates to the custody determination; and, the fact that Ms. Ruel’s evaluation recommended that custody of the two minor sons remain with him. Joseph further maintains that, had the trial court reviewed all of the relevant factors, it would have been concluded that he should be the primary custodian of the minor children.

It is well-established that each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child. McCormic v. Rider, 09-2584 (La.2/12/10); 27 So.3d 277, 279, citing, Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3d Cir.1990). The trial court has great discretion in this area, and its determination will not be disturbed in the absence of a clear abuse of discretion. Id., citing, Bagents v. Bagents, 419 So.2d 460 (La.1982).

However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 708 So.2d 731, 735 (La.2/6/98) (citations omitted). A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential 11smaterial facts de novo. Id.

In its judgment, the trial court awarded joint care, custody and control of the minor children to Joseph and Shannon, designated Shannon as the primary domiciliary parent, and awarded custody and visitation time periods for Joseph. However, the award of custody and visitation was premature. As the record reflects, Joseph filed a Petition for Domestic Abuse Protection on October 9, 2009 prior to filing his Petition for Divorce and Custody. On November 30, 2009, the trial court deferred a ruling on Joseph’s Petition for Domestic Abuse Protection until the custody evaluations were completed. However, the record is devoid of any ruling by the trial court on Joseph’s petition subsequent to the completion of the evaluation. Consequently, we find the trial court committed a legal error by awarding joint custody to Joseph and Shannon without rendering a determination on Joseph’s petition.

According to the LSA-R.S. 9:364 under the “Post-Separation Family Violence Relief Act,”

A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent’s participation as a custodial parent because of the other parent’s absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
B. If the court finds that both parents have a history of 114perpetrating family violence, custody shall be awarded solely to the parent who is less likely to continue to perpetrate family violence. In such a case, the court shall mandate completion of a treatment program by the custodial parent. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court.

After considering LSA-R.S. 9:364, we find that it is imperative for the trial court to render a judgment regarding the Petition for Domestic Abuse Protection before a custody determination can be made. In the event a parent is found to perpetuate domestic violence, the trial court is mandated to abide by LSA-R.S. 9:364. Accordingly, we vacate the trial court’s judgment awarding joint custody and visitation and remand the case for the rendering of a judgment on those issues after the outstanding proceedings concerning domestic ■violence have been resolved.

Assignment of Error Number 6

Joseph alleges the trial court erred in allowing the children to only have visitation with him for 48 hours on alternating weekends during the school year, three weeks in the summer time, and an average of three and one-half holidays per year. Joseph contends that, although the judgment is for joint custody, he is only granted 18% of the time with the children when compared to Shannon having 82% of the time with the children. Joseph further contends that the trial court did not grant the children frequent and continuing contact with him.

Because we have vacated the trial court’s determinations on custody and visitation, this issue is pretermitted.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment deferring Shannon’s sentence for contempt and awarding joint custody and visitation and remand the matter for further proceedings. In all other respects, we affirm the trial 11scourt’s judgment.

AFFIRMED, IN PART, AND REVERSED AND REMANDED, IN PART, FOR FURTHER PROCEEDINGS

      . See Evans v. Lungrin, infra, for discussion.

      . It is noted that, after the trial court rendered its joint custody determination at issue in this appeal, the trial court granted a temporary restraining order in favor of Shannon against Joseph and set a rule to show cause hearing as to why the temporary restraining order and other relief requested should not be made Protective Orders.


author: PIERCE, Justice, KITCHENS, Justice,

text:
    The SHERWIN-WILLIAMS COMPANY v. Trellvion GAINES, a Minor by and through his Natural Mother, Legal Guardian and Next Friend, Sherneker POLLARD.
    No. 2009-CA-01866-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.
    Rehearing Denied Dec. 8, 2011.

      Margaret Oertling Cupples, W. Wayne Drinkwater, Jr., Luther T. Munford, Fred L. Banks, Jr., Jackson, John G. Corlew, Kathy A. Smith, Richard H. Deane, Jr., Rebecca A. Womeldorf, Eric G. Lasker, attorneys for appellant.
    John Timothy Givens, Jackson, Timothy W. Porter, Ridgeland, Patrick C. Malouf, Michael J. Casano, Dennis C. Sweet, Jackson, attorneys for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. In this personal-injury, products-liability ease, the jury awarded the plaintiff $7 million, finding that Trellvion Gaines had been brain-damaged from exposure to lead. In an effort to convince this Court to reverse the trial judgment and to render judgment in its favor, the defendant, Sherwin-Williams Company, challenges the reliability of plaintiffs causation experts and fact witnesses. In the alternative, Sherwin-Williams alleges that unreliable, unfairly prejudicial, and untimely disclosed expert testimony and a biased jury pool require a new trial.

STATEMENT OF THE CASE

¶ 2. Trellvion Gaines (“Trellvion”), the plaintiff, was born in 1991 and lived at all relevant times in a wooden house on Highway 553 in Fayette, Mississippi, with his mother Sherneker Pollard (“Pollard”), grandmother Doris Gaines (“Gaines”), and step-grandfather Johnny “Cracker” Crawford (“Crawford”), who bought the house in late 1978 or 1979. The house was built in the early 1900s and was burned in 1994. Expert testimony conclusively established that samples of remains at the house site contained lead-based paint. Two blood tests in September 1993 showed that Trell-vion had elevated blood lead levels of 30 micrograms per deciliter (30 p,g/dL) and 19 p-g/dL five days later. Trellvion now has significant cognitive deficiencies that he claims are a result of lead poisoning.

¶ 3. Fact witnesses for Trellvion testified that they had bought and applied lead-based paint manufactured by the Sherwin-Williams Company (“Sherwin-Williams”) to the interior and exterior of the house at various times. Sherwin-Williams responded with testimony and corporate documents to support its contention that it began to eliminate lead in its products in the 1930s and stopped manufacturing any interior lead-based paint in 1954 and all residential lead-based paint in 1972. This lawsuit was filed in 2000. Summary judgment was granted for Sherwin-Williams by the Circuit Court of Jefferson County, affirmed by the Court of Appeals, then reversed by this Court on writ of certiorari in 2007. The trial was held in April 2009 in the Circuit Court of Jefferson County before the Honorable Lamar Pickard, and a unanimous jury found for the plaintiff and awarded $7 million in compensatory damages. Because this case has multiple, complex issues, relevant facts are included in the discussion below.

DISCUSSION

I. Did the trial court err in denying Sherwin-Williams’ motion for judgment notwithstanding the verdict?

¶ 4. Whether a party is entitled to a judgment as a matter of law is an issue that we review de novo. Evidence should be considered in the light most favorable to the appellee, giving that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. We will affirm the denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict if there is substantial evidence to support the verdict, but we will reverse if the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated. Sherwin-Williams offers three arguments on this issue, however the first argument is dispositive.

Did the plaintiff offer sufficient proof that his injuries were caused by Sherwin-Williams lead-based paint?

¶ 5. The plaintiff concedes that no scientific study has causally connected permanent brain damage to a single, asymptomatic elevation of blood lead to 30 |xg/dL, followed by a rapid decline to baseline. However, he argues, “It was not the opinion of [our] expert witnesses that this case was a ‘single’ exposure. No matter how many times the Defendant says it was a single exposure, does not make it true. Trellvion was exposed to toxic Sherwin-Williams’ lead paint dust for four (4) years.” We must determine whether the trial court erred in determining that the core opinion — lead poisoning caused cognitive impairments — was reliably based on science and the facts presented.

¶ 6. Dr. John Rosen, one of two causation experts, testified by video deposition. He opined that Trellvion was poisoned by lead from infancy through late 1993. He achieved this opinion through “differential diagnosis.” He based his differential diagnosis on “the apparent fact that [Trellvion] was excessively exposed to lead as a young infant.” He noted that Trellvion’s only documented elevated blood levels were 30 |xg/dL on September 15, 1993, and 19 Ixg/dL on September 20,1993.

¶ 7. “Exposure” to lead — or just being around it — is not dangerous. It must be ingested to poison a person. Dr. Paul Mushak, accepted as an expert in the field of toxicology, testified that blood lead levels of 10 |xg/dL or higher are toxic. He further testified that ingestion of fine lead dust is a major pathway for ingestion of lead. His opinion was that Trellvion had been “exposed” to a “lead environment” from birth until the house burned, and that lead paint was the source of Trellvion’s elevated blood levels in September 1993.

¶ 8. Dr. Theodore Lidsky, entered as an expert in the field of neuropsychology, performed a differential diagnosis on Trellvion to determine that his brain had been injured by lead poisoning, finding that, without the lead poisoning, Trellvion’s IQ would have been in the “in the bottom of the low average range.” Lidsky explained that, while “lead is eliminated relatively rapidly from the blood ... even when it’s gone from the blood, it’s still in the brain.” To determine whether Trellvion had a brain injury, Lidsky used a method called “deficit measurement ... which is where you look at a person’s baseline level of functioning and look to see if there are scores that deviate ... from that baseline.” The baseline is the level at which one would expect that person to function, but for brain injury. Lidsky testified that “as a matter of course” professionals add points to the patient’s known IQ score to determine the baseline in “lead poisoning” cases because “we know his IQ goes down. It’s one of the most established points in science.... So you have to add a number of points.” Lidsky added ten points to Trellvion’s full-scale IQ (or six to his higher score, a 74 verbal IQ).

¶ 9. Lidsky explained this “baseline” method further:

When I tested [Trellvion] in 2001, his IQ was about almost 69.... You look at that as his baseline and then you look at his testing. If there’s an impairment at that point, without adjusting his baseline, then you adjust the baseline. If there’s no impairment at that point, then you say, this is what he is, and you can’t adjust it.... Before [I] even looked at his baseline [I] know he’s injured. At that point, he starts at the baseline. Before, like you said, you are assuming the child is injured just by looking at his lead level. You can’t do that.

Lidsky agreed that the neuropsychological tests that he uses are not designed to detect the cause of any particular deficit. He testified, nevertheless, that he still could conclude that Trellvion’s injury was caused by lead. Lidsky testified that no studies had been done linking “acute exposures” to lead with IQ reduction because “based on what the CDC has stated, there are no acute exposures.”

¶ 10. Lead poisoning was, in the opinion of Dr. Rosen, the cause of permanent intellectual impairments uncovered by Dr. Lid-sky. When asked if he would have diagnosed Trellvion with lead poisoning in the absence of the two elevated blood lead results, Dr. Rosen responded,

I would have recognized — I would have diagnosed him as having the disease of — of excessive lead exposure, and that disease is a pervasive disease that involves every organ of a child’s body including their brain, and that is one aspect or one compartment so to speak of ultimately the fact that he was exposed to enough lead in the initial phase of child — of excessive exposure to lead to elevated blood leads.

Finally, when asked how he was able to rule out an idiopathic cause for Trellvion’s mental retardation, Dr. Rosen replied, “I ruled it out because there is nothing in the medical records to indicate that there is any — any so called etiopathic [sic] or unknown cause. What is unknown is unknown. ...”

¶ 11. The plaintiffs experts seemingly contradict each other and themselves. For example, Dr. Lidsky testified that adding points to determine a baseline IQ is a “matter of course” in “lead poisoning” cases because “we know his IQ goes down ... [ijt’s one of the most established points in science.” However, Dr. Mushak, plaintiffs expert toxicologist, testified that “no one has done the data, gathered the data to show” whether “any time a child has an elevated blood lead level, it’s going to result in the loss of IQ points.” And Dr. Lidsky at one point testified that finding the injury depends on calculating the baseline (including adding points assumed by lead poisoning), but later asserted that it is improper to assume that a child is injured based solely on an increased blood lead level. Further, it is difficult to determine whether Lidsky’s opinion in the case is, proverbially, a chicken or an egg. Dr. Rosen assumed, in reliance upon Dr. Lid-sky’s findings, that Trellvion was, in fact, injured (and not just “slow”) to differentially diagnose exposure to lead as the cause of the injury. However, Lidsky’s admitted method, “deficit measurement,” depended upon the calculation of a baseline, which depended upon assuming that Trellvion had been poisoned by lead. Dr. Lidsky was, essentially, leaning on Dr. Ro-sen’s theory of causation, who was leaning on Dr. Lidsky’s theory of injury, who was leaning on Dr. Rosen’s theory of causation ... ad infinitum. Finally, while Dr. Ro-sen testified that he could have diagnosed Trellvion with the disease of “excessive lead exposure” even without a documented elevated blood level, he subsequently testified that lead poisoning cannot be diagnosed without a blood lead test.

¶ 12. The plaintiff characterizes Drs. Rosen and Lidsky as “some of the world’s leading experts in their respective fields[.]” Sherwin-Williams responds that the trial court failed to exercise its “gatekeeping duty” because it allegedly did not “undertake any meaningful evaluation [of the reliability of the opinions] beyond expert credentials.”

¶ 13. Mississippi Rule of Evidence 702 and our familiar Daubert standard require trial courts to act as “gatekeepers” with regard to expert opinion testimony, because juries tend to place great weight on the testimony of experts and can be misled by unreliable opinions. But we are mindful that the exclusion or admission of expert testimony is within the discretion of the trial court, and, furthermore, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

¶ 14. The opinions expressed by Drs. Rosen and Lidsky, however, were not reliable. A dose-response ratio is critical to determining the causal connection between a poison and an injury. In this case, the only known dose — or ingestion of lead — is represented by Trellvion’s elevated blood lead levels from September 1993. The experts extrapolated both dose and duration with only circumstantial supporting evidence, engaging in a classic logical fallacy: post hoc ergo propter hoc. Dr. Lidsky explained: “[H]e was raised in the house, the same house from the day of birth. What’s the likelihood that [Dr. Timm] just happened to [test Trellvion’s blood] on the day that his blood level was 30?” This opinion was not based on some epidemiological study calculating the likelihood of elevated blood levels based on the levels of paint in the home. Neither was it based on Trellvion’s medical records. The basis for Lidsky’s and Rosen’s causation testimony — that Trellvion was ingesting and being poisoned by lead the entire time he lived in the house — was mere speculation and inadmissible.

15. We are urged by amici to instruct trial court judges that consideration of the “relevance and reliability” of an expert’s opinion (and not simply the expert’s qualifications) is a necessary part of the trial court’s duty as a gatekeeper. The trial judge in this case did not consider many of Sherwin-Williams’s arguments concerning the reliability of plaintiffs experts, regarding them as challenges to the weight and not the admissibility of the experts’ testimony. Amici urge that we instruct trial courts to make particularized findings as to the admissibility of expert opinions, when those challenges are raised before trial. In this case, a Daubert challenge was filed before trial, and the court chose to delay ruling until trial, by which point the court did not have time to read the briefs and fully consider the arguments. Our trial judges work exceedingly hard and have discretion in how they discharge their gatekeeping duty, but we take this opportunity to reiterate that such duty includes making sure that the opinions themselves are based on sufficient facts or data and are the product of reliable principles and methods.

¶ 16. Because Drs. Lidsky’s and Ro-sen’s speculation that Trellvion had been ingesting lead throughout his entire residence at the home was unreliable and, therefore, inadmissible, and because the plaintiffs experts did not present any scientific authority that an acute, asymptomatic ingestion of lead could lead to the alleged injuries, the plaintiff did not offer sufficient proof of causation. That admission of the speculation of Drs. Lidsky and Rosen would, alone, trigger a new trial. However, because of the lack of sufficient proof of causation, we find that the court should have granted Sherwin-Williams’ motion for judgment notwithstanding the verdict.

¶ 17. The separate opinion opines that the fact-witness testimony presented by the plaintiffs is insufficient to create an issue for the jury. While the testimony of these fact witnesses is, in various ways and to varying degrees, incredible, self-contradictory, and circumstantial, this Court has held that even contradictory evidence and evidence that has been impeached creates an issue for the jury.

¶ 18. In Rucker v. Hopkins, we said that incredible testimony and the testimony of a plaintiff which is so clearly and manifestly improbable should be disregarded; this also applies to testimony that has been clearly impeached. In Elsworth v. Glindmeyer, we reversed and remanded a jury verdict for a defendant in a wrongful death suit because “[n]o court is required to believe, or should be bound by improbable, incredulous, or unreasonable evidence ... which is violative of physical laws, human experience and common sense, and which intrudes into the realm of the supernatural.” However, subsequently, in Doe v. Stegall, we found error where a trial judge, relying on Rucker, excluded the testimony of a fact witness who had been “clearly impeached.” The logical extension of Stegall is that fact testimony, no matter how thoroughly contradicted or impeached, may create an issue for the jury, so long as it is not supernatural. Indeed, in Rucker, we said, “[ejven where the evidence is such that a judgment for the adverse party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not necessarily follow that a party is entitled to a directed verdict.” The trial court did not err in denying the motions for directed verdict and judgment notwithstanding the verdict based on this argument, because the fact-witness testimony created an issue for the jury.

CONCLUSION

¶ 19. Because Drs. Lidsky’s and Ro-sen’s speculation was inadmissible, and because the plaintiffs experts did not present any scientific authority that an acute, asymptomatic ingestion of lead could lead to the alleged injuries, the plaintiff did not offer sufficient proof of causation. Accordingly, we reverse and render on this issue, and not on whether the fact-witness testimony sufficiently established product identity.

¶ 20. REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.; RANDOLPH, J., JOINS IN PART. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. LAMAR, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in result only:

¶ 21. To prevail on a product liability claim, the plaintiff must provide sufficient evidence of product identification, exposure, and proximate cause. Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005) (citing Miss.Code Ann. § 11-1-63 (Rev. 2002)). The plurality opinion reverses the verdict for the plaintiff and renders judgment in favor of the defendant, finding the evidence of exposure and proximate cause to have been speculative and unreliable. Respectfully, I cannot join that analysis. While I agree that a judgment in favor of the defendant is warranted, it is because of the failure of the plaintiffs proof of product identification.

¶ 22. Sherwin-Williams presented substantial evidence that it had stopped manufacturing residential lead-based paint in 1972, but the plaintiff produced three witnesses who testified that lead-based Sher-win-Williams paint was used in the house between 1978 and 1994.

¶ 28. Doris Gaines, the plaintiffs grandmother, testified that she had painted the home several times between 1979 and 1994, and that she always had asked the store for Sherwin-Williams “lead” paint. The grandmother acknowledged that she never had read the paint labels, but merely assumed that the paint contained lead because she had asked for lead paint.

¶24. Vernon Collier was a long-time friend of the grandmother’s who would help her with various construction and painting projects in her house. Collier testified that he had helped Ms. Gaines paint the outside of the house in 1979 with Sherwin-Williams paint. Collier stated that he believed the paint contained lead because it covered the painted surface in one coat, but he did not read the labels. Moreover, in an earlier deposition, Collier stated that he and Doris did not use Sher-win-Williams paint in the latter part of the 1970s because “[Doris] wasn’t into Sher-win-Williams at that time.”

¶ 25. Johnny Crawford, the plaintiffs step-grandfather, purchased the house in 1978. Crawford testified that he had bought and used Sherwin-Williams lead paint in the late 1970s and recalled seeing the words “lead paint” on the labels. This testimony was directly contradicted by a prior affidavit wherein he swore that he had no knowledge whether the paint used on the house contained lead or what brand of paint was used.

¶ 26. The plaintiffs produced one witness who testified about the paint used on the house before 1978. Reverend Martin Lias’s deposition was read to the jury, and he testified that he had witnessed the painting of the back porch with white Sherwin-Williams lead paint in the 1930s. However, the grandmother, Ms. Gaines, testified that the back porch had been removed before the plaintiff was born, rendering Reverend Lias’s testimony irrelevant in the present case.

¶ 27. Thus, the testimony by the plaintiffs witnesses was insufficient to support a verdict against the Sherwin-Williams Company. Collier’s and Crawford’s testimony was directly and materially contradicted by their prior sworn statements; thus, that testimony was substantially impeached. Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597, 599 (Miss.1941). Ms. Gaines merely assumed that the paint contained lead because she had requested lead paint, but “[i]t is well settled in this jurisdiction that a verdict may not be based upon surmise or conjecture and that to prove a possibility only is insufficient to make a jury issue.” John Morrell & Co. v. Shultz, 208 So.2d 906, 907 (Miss.1968). Therefore, the verdict cannot stand, and I respectfully concur in result only.

CHANDLER AND KING, JJ„ JOIN THIS OPINION. RANDOLPH, J., JOINS THIS OPINION IN PART.

      . See Pollard v. Sherwin-Williams Company, 955 So.2d 764 (Miss.2007).

      . Solanki v. Ervin, 21 So.3d 552, 565 (Miss.2009).

      . Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008).

      . U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 964 (Miss.2008).

      . Lidsky explained that "full scale” IQ is calculated by averaging scores on "verbal” and "performance” tests. Trellvion’s verbal IQ score was 74, and his score on the performance test was in the "high 60s.”

      . The cause of as many as one half of cases of mental retardation is unknown or "idiopathic.” D.K. Daily, H.H. Ardinger, G.E. Holmes, Identification and Evaluation of Mental Retardation, 61(4) Am. Family Physician 1059-67, 1070 (Feb. 2000).

      . Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 40 (Miss.2003).

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . McLemore, 863 So.2d at 40.

      . E.g. Edmonds v. State, 955 So.2d 787, 792 (Miss.2007).

      . McLemore, 863 So.2d at 34.

      . Hyundai Motor America v. Applewhite, 53 So.3d 749, 754 (Miss.2011) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786).

      . Watts v. Radiator Specialty Co., 990 So.2d 143, 147 n. 9 (Miss.2008).

      . "After this, therefore, because of this.”

      . Hill v. Mills, 26 So.3d 322, 329 (Miss.2010) (Expert testimony must proceed from "what is known, and the expert must have knowledge that is more than subjective or unsupported speculation.”).

      . See Smith ex rel. Smith v. Clement, 983 So.2d 285, 289 (Miss.2008).

      . Miss. R. Evid. 702; McLemore, 863 So.2d at 38.

      . Rucker v. Hopkins, 499 So.2d 766, 770 (Miss.1986).

      . Rucker v. Hopkins, 499 So.2d at 769.

      . Elsworth v. Glindmeyer, 234 So.2d 312, 321 (Miss.1970).

      . Stegall, 757 So.2d 201, 205 (Miss.2000).

      . Rucker, 499 So.2d at 770.

      . The plurality holds that fact testimony, no matter how thoroughly contradicted or impeached, creates an issue for the jury, so long as it is not supernatural,” relying on Doe v. Stegall, 757 So.2d 201, 205 (Miss.2000). Plur. Op. ¶ 18. However, Stegall involved excluding fact witnesses at the summary judgment stage. Id. ( While it is true that this Court has held that there are instances in which judges are allowed to disregard or instruct against incredible and unreliable testimony at trial, this Court has never held similarly at the summary judgment stage in a proceeding.”)