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    STATE of Louisiana v. Kendrick K. HENRY.
    No. 12-KA-545.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

      Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

| gDefendant, Kendrick K. Henry, appeals his conviction for conspiracy to commit second degree murder from the 24th Judicial District Court, Division “I”. For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

In July 2009, Tremika Lang gave Marvin Hudson approximately $7,200.00 to purchase a car for her at an auction. Marvin Hudson did not deliver a car to Ms. Lang. Thereafter, Ms. Lang’s attempts to contact Marvin Hudson were unsuccessful. Mr. Hudson’s live-in girlfriend, Rose Grace, received calls and text messages from Ms. Lang looking for him and seeking her car or the return of her money.

Ms. Lang and Defendant, her boyfriend at the time, began text messaging each other regarding Mr. Hudson. These text messages revealed Defendant’s desire to seek revenge on Mr. Hudson for his failure to deliver the vehicle to Ms. Lang or return her money. On July 29, 2009, a shooting occurred at 3601 Tulane |3Prive in Kenner, Louisiana, the residence of Mr. Hudson and Ms. Grace. Mr. Hudson was not injured; however, his brother, Jonathan Hudson, was killed, and Michael Cau-ley was injured. Athough witnesses described seeing two male gunmen, no one was ever identified as the shooters.

On November 24, 2009, the Jefferson Parish District Attorney filed a bill of information charging Defendant along with his co-defendant, Tremika D. Lang, with conspiracy to commit second degree murder, a violation of La. R.S. 14:26:30.1. Defendant was arraigned on November 25, 2009 and pleaded not guilty. Defendant filed an omnibus motion and an order for pre-trial motions. The trial court heard and denied Defendant’s motion to suppress evidence on May 13, 2010. The trial court heard and denied Defendant’s motion to suppress statements on August 19, 2010. On August 23, 2011, the State orally moved to sever the defendants, and the trial court granted the motion.

Defendant proceeded to a jury trial on August 23-26, 2011. A 12-person jury found Defendant guilty as charged on August 26, 2011. On September 6, 2011, Defendant filed a motion for new trial, which was denied on that same date. Defendant was sentenced on September 6, 2011 to 13 years imprisonment at hard labor with credit for time served. On September 15, 2011, the trial court granted Defendant’s timely motion for appeal. Defendant now appeals his conviction.

Based on the text messages and communications between Defendant and Ms. Lang, he was convicted of conspiracy to commit second degree murder of Mr. Hudson. The following testimony was presented at trial.

Sergeant Brian McGregor with the Ken-ner Police Department participated in the investigation of the shooting death of Jonathan Hudson on July 29, 2009, at 3601 Tulane Drive in Kenner, Louisiana. Witnesses at the scene reported several vehicles leaving the location following the shooting. Sergeant McGregor testified |4that when he arrived on the scene, there was a white SUV parked in the street and a U-Haul parked in the driveway of the house. Twenty-five bullet casings were recovered, indicating that at least 25 rounds had been fired across an entire residential lot, and projectiles were recovered from the neighboring home. Detectives went to Kenner Regional Medical Center and reported that two individuals had been shot. Jonathan Hudson died at the hospital of his gunshot injuries. Michael Cauley was also shot, but he survived. Marvin Hudson and Claude Samu-els were also at 3610 Tulane Drive in Kenner at the time of the shooting, but they were not injured.

Witnesses described seeing two male gunmen. Four individuals were developed as suspects during the investigation based on interviews conducted: Brian Harris, Arzia Harris, Eric Anderson, and Defendant. Mr. Cauley, Marvin Hudson and Mr. Samuels were shown photographic lineups but were unable to identify either of the shooters. Sergeant McGregor testified that the vehicle used in the shooting was described as a dark colored vehicle and was identified as having a temporary tag in the back window.

At the scene of the shooting, Sergeant McGregor interviewed Rose Grace, Marvin Hudson’s live-in girlfriend. She told him there were two ladies who had been to her door complaining about things on two different occasions. Ms. Grace described one female that appeared at her door as slim build, 5'5", with dark skin. Ms. Grace told Sergeant McGregor that she recognized the voice of that female as the same woman who had been calling and texting her in reference to a failed vehicle purchase involving Marvin Hudson. Sergeant McGre-gor identified the female as Tremika Lang.

Based on the calls and text messages Ms. Grace had been receiving, Sergeant McGregor sought and obtained subscriber information and telephone | ¡^information from a number of different cellular telephones. Sergeant McGregor ultimately obtained subpoenas for the cellular telephone records of Ms. Grace, Ms. Lang, Defendant, Arzia Harris, and someone named “Reginald.

In response to the subpoenas, the police department received the cellular telephone information of those individuals, including call logs, voicemails, and text messages. Sergeant McGregor sorted through the material produced and prepared a summary of the calls and text messages between Defendant, Ms. Lang, and Ms. Grace, as well as between Defendant, Ar-zia Harris and someone named “Reginald.” Between July 23, 2009, and shortly after the crime occurred on July 29, 2009, there were 117 texts and 144 calls from Defendant to Ms. Lang, and 233 texts and 246 calls from Ms. Lang to Defendant. There were nine texts, one call, and four voice-mails from Defendant to Ms. Grace, and ten texts from Ms. Grace to Ms. Lang. There were two texts and 21 calls from Defendant to Arzia Harris, and 12 calls from Mr. Harris to Defendant. Finally, there were 28 texts and 63 calls from Defendant to “Reginald,” and 66 texts and 88 calls from “Reginald” to Defendant.

Sergeant McGregor testified that he considered the texts between Ms. Lang and Defendant to be noteworthy communication. He testified Ms. Lang tells Defendant in the text messages how she met a man who was selling auction vehicles, and that she had paid him “7 stacks,” which was determined to be over $7,000.00, but was then unable to get in contact with the individual. She conveyed to Defendant that she wanted to get either the car or her money back. Sergeant McGregor determined from the series of texts that Defendant was upset with the deal and asked Ms. Lang if she had a receipt showing that she paid the individual for the vehicle. Ms. Lang asked Defendant not to worry about it and not to bring it | nup because it was a surprise for a birthday, so she did not want to tell him; however, she was getting worried.

Sergeant McGregor testified that these text messages indicated that “somebody’s going to die if they’re playing games.” At trial, Sergeant McGregor read the pertinent text messages aloud, and the State presented the printed text messages to the jury. Sergeant McGregor testified that he considered each of these text messages to be significant in his investigation of this case.

On July 29, 2009, Defendant, Ms. Lang, and “Reginald” placed telephone calls to each other. Sergeant McGregor testified that it was significant that they moved from text messaging to telephone calls on July 29, 2009, the date of the homicide. On that date, Ms. Lang placed 14 calls to Defendant throughout the day. Defendant placed 17 calls to Ms. Lang and two calls to “Reginald” at various times throughout the day. “Reginald” placed nine calls to Defendant on July 29, 2009. There were also calls made amongst these parties on July 30, 2009. On that day, Ms. Lang placed nine calls to Defendant. Defendant placed seven calls to Ms. Lang. “Reginald” placed three calls to Defendant, and Eric Anderson placed two calls to Defendant on July 30, 2009. Additional text messages were sent amongst the parties on July 30, 2009.

Sergeant McGregor testified that he learned that Defendant and Ms. Lang left town in the days after the July 29, 2009 shooting. He learned that Ms. Lang and Defendant had gone to Atlanta because they had been threatened. Sergeant McGregor testified that Ms. Lang was found on August 19, 2009 working at Loomis Armor Car in Baton Rouge. Ms. Lang was interviewed at that time. A 17warrant for her arrest was then obtained and Ms. Lang was arrested in September 2009.

Sergeant Michael Cunningham of the Kenner Police Department also participated in this investigation. Sergeant Cunningham went to the scene, met with detectives and spoke with witnesses. Sergeant Cunningham testified the witnesses reported that the shooters actually parked in the middle of the street and got out of the car with two black AK-47’s. The shooters fired 26 times, shooting the cars the victims were in, the house where Ms. Grace was located, a vehicle in the neighbor’s driveway, and the neighbor’s house. The shooters then got back into the car and left.

Sergeant Cunningham testified at trial that he was unable to identify who actually killed Jonathan Hudson. The text messages and incoming phone calls placed to Ms. Grace’s phone led to the conclusion that Defendant and Ms. Lang were suspects. Sergeant Cunningham testified that during the investigation, nothing came up to indicate drug involvement or to indicate that anyone else was looking to kill Jonathan Hudson, Marvin Hudson, or Mr. Cauley. Defendant and Ms. Lang were ultimately arrested for criminal conspiracy to commit second degree murder.

The information from the text messages also led the investigation to 5413 Urquhart Street in New Orleans, Louisiana. A search warrant was obtained by Sergeant McGregor and Detective Kevin Burns of the New Orleans Homicide Division for 5413 Urquhart Street in New Orleans, Louisiana, where Defendant was believed to reside. An AK-47 was found at that address with the serial number filed off, and the ammunition found in the weapon was of the same class as what was used in the shooting. However, testing ultimately showed the gun|sfound was not involved in the shooting on Tulane Drive.

A photographic lineup was compiled with Defendant’s picture, as well as the pictures of other men who lived at the Urquhart address. No one identified any of these individuals as the shooters. Sergeant Cunningham testified that the vehicle used in the shooting, with the temporary tag in the back windshield, was never located. Defendant had a 1997 white Pontiac Grand Prix that had been stolen and stripped in Atlanta following the shooting. Since they were looking for a dark vehicle allegedly used in the shooting, Sergeant McGregor did not think the stolen vehicle in Atlanta was relevant.

Sergeant Cunningham testified that he called Ms. Lang at the number he received from Ms. Grace and told her that her name had come up in a homicide investigation in Kenner based on text messages pertaining to Marvin Hudson. Ms. Lang told Sergeant Cunningham she only knew of “Marvin” and did not know his last name. She said he lived in Kenner but stated she had never been to his house. She explained she was texting Marvin about $7,200.00 she had given him for a car he was supposed to deliver but never did. Ms. Lang told Sergeant Cunningham she was at her mother’s house, would be late, and could not meet with him. Sergeant Cunningham then asked her to call him back as soon as possible; however, Ms. Lang did not call him back.

Defendant then called Sergeant Cunningham and asked why he needed to speak with Ms. Lang. Sergeant Cunningham explained the situation to Defendant and explained that he needed to speak with him as well because his name had also come up with the phone records and text messages obtained. Defendant told Sergeant Cunningham that he never met Marvin Hudson, and he only knew of him from what Ms. Lang had told him about the agreement regarding the car. 1 ^Defendant also told Sergeant Cunningham he had never been to Kenner. Sergeant Cunningham asked Defendant about the 5413 Urquhart Street residence, and Defendant said he knew people that lived there, but he did not live there. Sergeant Cunningham told Defendant the murder was committed with an AK-47 and that an AK-47 had been found at 5413 Urquhart, as well as other items in the house with Defendant’s name on them. Defendant then told Sergeant Cunningham that he and Ms. Lang were on their way to Atlanta and were leaving town because somebody was asking about a “girl that drove a white Oldsmobile with a butterfly sticker on the back.” Ms. Lang drove such a car, so Defendant said he felt their lives were in danger.

Defendant explained that Ms. Lang was traveling in a car behind him. Sergeant Cunningham indicated how important it was that he speak with Defendant. Defendant stated he would call back, but he never did. Sergeant Cunningham then called Ms. Lang and asked if she was at her mother’s house or going to Atlanta. Ms. Lang admitted she was going to Atlanta. She again explained how she knew Marvin Hudson and explained the deal with the money she had given him. However, this time, she admitted to Sergeant Cunningham that she had gone to Marvin Hudson’s house one time. Ms. Lang told Sergeant Cunningham she and Defendant would call him back, but they never did.

Arrest warrants for Defendant and Ms. Lang were ultimately obtained on September 18, 2009. Ms. Lang was arrested in Baton Rouge on September 25, 2009. Defendant was arrested in Atlanta and transported to Louisiana on October 9, 2009. Sergeant Cunningham met with Defendant following his return. Defendant told Sergeant Cunningham that he did not know Marvin Hudson and only knew that Ms. Lang had given him money. Defendant stated he was trying to |1ftget the money back. He admitted he sent the text messages but said he did not mean anything by them, did not go to Kenner, and did not kill anyone.

Ms. Grace testified at trial that she and Marvin Hudson lived together at 3601 Tulane Drive in Kenner, Louisiana with their six children. On July 29, 2009, at the time of the shooting, Ms. Grace was inside the house with five of her children. She testified that she and Marvin Hudson were moving, and Jonathan Hudson, Michael Cauley and Marvin Hudson were leaving after they packed the U-haul truck. She then heard one of the men say, “Y’all watch out,” and she heard gunshots. Ms. Grace did not see who was responsible for the shooting. Ms. Grace testified that she called the police once she located her cell phone. Ms. Grace then went outside and told the kids to get into the truck because she was concerned for their safety. She put the children in the truck with the intention of meeting everyone at the hospital. She pulled away from the house and got approximately two houses away when the police stopped her. She returned to the house at that time and spoke with the police.

Ms. Grace testified that prior to the shooting, a woman had come to her door wanting to get in touch with Marvin Hudson. Ms. Grace testified that the woman also called and texted her looking for Mr. Hudson. A man had also sent her text messages and left voicemails looking for Mr. Hudson. Ms. Grace thought the woman was just a bitter female, so she told the woman not to call that phone anymore. Ms. Grace testified that at first the woman just asked if she knew where Mr. Hudson was located; so, she told the woman she would try and get in touch with him. The woman then began text messaging her. Before the shooting, Ms. Grace testified that she received a phone call from the woman saying she was sitting outside with her boyfriend, and she said “I’m waiting on you.” Ms. Grace | ^testified that a man got on the phone and said, “he just wanted to talk.” Ms. Grace testified that she was not in town or at the house when she received the call.

Ms. Grace then testified that a woman came to her door around 7:30 a.m. one morning. Ms. Grace said she was angry at the woman because she was sleeping at the time. The woman asked for Mr. Hudson. Ms. Grace told her Mr. Hudson was not home, and the woman inquired as to what time he would return. Ms. Grace responded that she did not know and told the woman, “whatever your issue is, it’s with him. He sells cars. I do accounting.” She told the woman to “take it up with” Mr. Hudson because she did not have anything to do with it. Ms. Grace testified that she does not ask about her husband’s business.

Ms. Grace testified that she received multiple text messages asking for either the car or $7,200.00 from Marvin Hudson, but she did not recall them in detail. She stated that she received a lot of text messages that started out with, “Do I know where he at?”, “Answer the phone. You know I’m calling.”, “I just want my money, or I’m calling my people from Atlanta”, or “It’s going down.” Ms. Grace was asked at trial if anyone other than this woman had come to her house complaining of a bad business deal, and she responded “not to my knowledge.”

At trial, Ms. Grace testified she felt harassed by the person contacting her indicating she was trying to contact Marvin Hudson. She testified that she was not involved in any transactions between Mr. Hudson and the people sending the text messages. She stated it was bothersome, but she did not consider it her business. At trial, the defense stipulated that Ms. Lang was the person who appeared at Ms. Grace’s door looking for Mr. Hudson regarding the car and $7,200.00.

Ms. Lang testified at trial that Defendant was her boyfriend in July 2009. In [ 1⅞2009, Ms. Lang decided she wanted to buy a new car and Aaron, a friend from high school, told her that his car came from an auction. Aaron called Marvin Hudson and told him he knew of someone who wanted to get a car from him. Ms. Lang spoke with Mr. Hudson on the phone and planned to meet him. Ms. Lang testified that Marvin Hudson sent her a picture of the car by phone. She liked the car and asked if he could get it for her. Marvin Hudson said “ok,” told her how much the car cost, and told her he needed $1,000.00 to put down on the starting bid. Ms. Lang gave Mr. Hudson $1,000.00. Mr. Hudson did not give Ms. Lang a receipt, but Ms. Lang said she trusted him. Ms. Lang testified that Mr. Hudson then told her he needed an additional $6,200.00 to get the car and have it fixed. Ms. Lang said she trusted Mr. Hudson, so she gave him the money. After she gave Mr. Hudson the $6,200.00, Ms. Lang testified she never saw him again.

Ms. Lang testified that she expected to receive the car about a week after she gave Marvin Hudson the $6,200.00. When the car was overdue, she started calling the telephone number she had for Mr. Hudson, and she learned the number actually belonged to Ms. Grace. Ms. Grace never told Ms. Lang that Mr. Hudson lived with her. Aaron attempted to find Marvin Hudson for Ms. Lang but was unsuccessful, although he did tell Ms. Lang where Marvin Hudson’s house was located. Ms. Lang went to his house at 7:30 a.m., and the lady at the house told her Marvin Hudson was out of town. Ms. Lang testified that she had no trouble getting in touch with Marvin Hudson until after she gave him the money.

Ms. Lang testified that she did not file a complaint with the police regarding Marvin Hudson taking her money and not delivering a car because people were telling her she had no proof to show that she had given Mr. Hudson any money. 11sMs. Lang stated that she and Defendant continued looking for Mr. Hudson to see if she could get her the money or the car.

Ms. Lang also wrote a letter to Ms. Grace letting her know that she was looking for Marvin Hudson and asked Ms. Grace to get in contact with him. Ms. Lang admitted that she sent a text message regarding the letter to Ms. Grace asking why no one had called her back. Ms. Lang testified that she went to Ms. Grace’s house two times, one time she spoke to Ms. Grace and the other time she left the letter. She testified that she did not go to Ms. Grace’s house with Defendant and did not call her from in front of the house. Ms. Lang testified that she started to feel like Ms. Grace was lying 'to her about never talking to Mr. Hudson. Ms. Lang admitted she went to Ms. Grace’s house at 7:30 a.m. on a weekend and sent text messages to her at 10:00 or 11:00 p.m. However, she does not remember texting Ms. Grace in the middle of the night or at 6:30 a.m., and she testified that she was not harassing Ms. Grace.

At trial, Ms. Lang admitted that she sent the text messages that were obtained by subpoena and presented as evidence by the State, although she denied that the text messages were threatening. Ms. Lang testified that she started getting overwhelmed and aggravated and she got to the point where she started giving up. Ms. Lang testified that she was trying to say something by text to Marvin Hudson to make him answer her because he and Ms. Grace were ignoring all of the phone calls from her. Ms. Lang testified that she only said she was going to call people in Atlanta to see if she could get them to call her back. She testified that she did not know anyone in Atlanta. Ms. Lang testified that she did not consider “call my people from Atlanta” as a threat. She also testified that her text messages did not mean anything pertaining to violence.

|14Ms. Lang testified that Defendant was upset with her when he found out she had given Marvin Hudson $7,200.00. But, Ms. Lang stated she does not remember Defendant sending her texts or her sending Defendant texts regarding killing Mr. Hudson. Ms. Lang stated that if she would have sent one of those texts, she would have been talking about something else, not killing Mr. Hudson. Ms. Lang said she was hurt and was expressing the way she felt at the time by sending text messages to Defendant, and the text messages Defendant sent her were intended to make her feel better.

Ms. Lang admits to sending a text back to Defendant saying, “I never thought I will be like dis, but I’m ready to my kill something....” However, Ms. Lang testified that she does not remember Defendant sending her a text message two days before the murder saying, “After 2day or tomorrow I’m going kill him.” Ms. Lang also stated she did not think she responded to this text. However, the State presented State’s Exhibit 67, which was a text message from her to Defendant stating, “Okay. Cool.” Ms. Lang then agreed that this text message could be a response to Defendant’s text regarding killing Mr. Hudson after “2day or tomorrow.” Ms. Lang testified that Defendant talked a lot of “bullcrap,” and she did not take him seriously. She testified that she did text Defendant about stopping to see a guy that knew Marvin Hudson because she was still trying to get the car or her money back. Ms. Lang admits Defendant sent a text back to her in response stating, “no, we not doing dat. If we kill him everybody gon say who dey knew cam lookn 4 him.” Ms. Lang did not agree that Defendant’s intentions were to kill Marvin Hudson. She again stated Defendant talks a lot of “bullcrap” at times. Ms. Lang testified she never responded to Defendant or sent a text message telling him that they should not talk like that, or to say that she wanted to get her 115money back the right way.

Ms. Lang also testified that she did not want Mr. Hudson killed. She testified that she was “venting out” and expressing the way she was feeling, but she said she did not take steps towards killing Marvin Hudson. In reference to the text message she sent to Defendant stating, “... if nothing don’t pop off by Thursday, then he get popped,” Ms. Lang explained that she meant that she “gives up.” Ms. Lang testified she was getting more upset and sad and was speaking out of anger. Ms. Lang testified that she sent a text to Defendant the day before the murder stating, “U <& aaron em going look for him today?” She clarified that “him” referred to Mr. Hudson. She had also discovered from Aaron that someone else was also looking for Mr. Hudson.

Ms. Lang maintained that she was only looking for Marvin Hudson because she wanted her money or her car, not because she wanted to harm him. Ms. Lang admitted she sent a text to Defendant stating, “I want my money & I wanna kill him ...,” but she stated she was still not talking about murdering anyone. Instead, Ms. Lang explained that she did not say she was going to kill him, only that she wanted to kill him because that was how she felt. Ms. Lang testified that Defendant understood she did not want to kill anyone, and she did not take Defendant’s text messages seriously. She believed Defendant was just trying to make her feel better and console her when he sent her a text message stating, “Chill if we find em we find em but we will kill him.” Ms. Lang further testified that she did not take Defendant seriously when he texted her saying “Dey gon get bullets,” and she responded, “Kool.” Ms. Lang explained that she was joking when she sent a text message to Defendant regarding giving “Anthony” and “Eric” something, maybe even her car. She claimed she was only referring to Anthony 11fiand Eric helping her search for Mr. Hudson. Ms. Lang explained that Anthony Hodge was someone she went to school with, and Eric was someone she knew from the neighborhood.

Ms. Lang also sent a text message to Defendant stating, “They gotta up they vehicles and they life, I’m sorry....” Ms. Lang admitted “they” referred to Marvin Hudson and Ms. Grace, but she explained that she did not necessarily want them killed. Ms. Lang remembered Defendant telling her to stop calling and texting Marvin Hudson, but she explained that Defendant just wanted her to express how she was feeling to him and nobody else. She claimed Defendant did not tell her to stop texting because it was about details of what was to happen to Marvin Hudson.

On July 29, 2009, the day of the shooting, at 4:55 p.m., Ms. Lang sent a text to Defendant saying, “Dats my last text to him.” Ms. Lang testified that it was her last text to Marvin Hudson because she was giving up, letting it go, and taking it as a loss. She testified that she changed her text message signature line to “Live and Learn” because the longer she lives, she learns she cannot trust anyone. Ms. Lang testified that the night Jonathan Hudson was killed, she had no idea in advance that anyone would be killed. Ms. Lang testified that Defendant did not do anything wrong and did not follow through on his statements regarding killing Marvin Hudson. Ms. Lang also testified that Defendant did not send anyone to shoot Marvin Hudson.

After the day of the shooting, Defendant sent Ms. Lang text messages referencing the removal of a butterfly sticker and special rims from her car that were distinctive because someone might remember if they saw the car. Ms. Lang removed the butterfly sticker after she heard the rumors. Ms. Lang also approached her landlord and said she wanted to move out immediately because she 117believed her life was in jeopardy, and someone was going around the neighborhood saying they knew where she worked and lived.

Ms. Lang testified that she was not engaged in criminal activity that would cause bad people to come looking for her, but she did not call the police after hearing the rumors because she did not know who was looking for her. She did not know the reason people might come looking for her and Defendant was the only one who said people were looking for her. She decided to go to Atlanta, Georgia because she was afraid someone might “just pop upon” her one day after work. Ms. Lang packed two to three outfits, and she and Defendant went to Atlanta in separate cars. Ms. Lang testified that she had no knowledge of Defendant transporting a gun from New Orleans to Atlanta.

John Randstadler, a retired Fulton County police officer in Georgia, testified at trial that he was working vehicle thefts in September 2009 when Defendant filed a complaint that his vehicle, a white Grand Prix, had been stolen. Mr. Randstadler spoke with Defendant, and the car was eventually recovered. When he first spoke with Defendant by phone before the car had been recovered, Defendant said nothing about a missing AK-47. After the car was recovered, but before Defendant saw the vehicle, Defendant told Mr. Randsta-dler that there previously was an AK-47 in the car but it was now missing. Mr. Randstandler met with Defendant at the storage unit where the vehicle was located, and Defendant said he had already looked through the car and the AK-47 was missing. Defendant told him there was a gun behind the seat when the vehicle was stolen; but after the vehicle was recovered, the gun was no longer behind the seat.

Michael Cauley testified at trial that he was shot five times on July 29, 2009. He was outside of his car, in front of Marvin Hudson’s house and did not |1sknow who shot him. Mr. Cauley, Jonathan Hudson and some other men were helping Marvin Hudson move when the shooting occurred. Mr. Cauley described himself as a “career criminal.” Mr. Cauley testified that he last went to jail for the sale of crack cocaine. Mr. Cauley stated he knew Marvin Hudson and had started hanging out with him about two years before. Mr. Cauley testified that he did not know about Marvin Hudson’s business and had met him on the “streets.”

Erika MeGraw testified that she was with Jonathan Hudson for seven years and is the mother of one of his children. Ms. MeGraw testified that Jonathan Hudson did not engage in drug dealing, crimes of violence, or any other criminal activity. Ms. MeGraw further testified that she knew Marvin Hudson sold cars, but she did not know anything about the day to day transactions. She also stated that she had known Mr. Cauley for about a year at the time of the shooting. Ms. MeGraw testified that Marvin Hudson and Ms. Grace were moving at the time of the shooting and Jonathan Hudson was there to help them pack. Ms. MeGraw was not there at the time of the shooting and she had no information about the shooting itself.

ASSIGNMENT OF ERROR

On appeal, Defendant alleges the trial court committed reversible error when it accepted the jury’s guilty verdict against him, even though the record established that no overt act was committed by him, and it was actually Ms. Lang who threatened Marvin Hudson and his family.

LAW AND ANALYSIS

Defendant requests that this Court vacate his conviction for conspiracy to commit second degree murder because the State failed to present sufficient facts to adequately show he committed an overt act geared towards the commission of a lacrime. He argues it was manifest error for the jury to conclude he conspired with Ms. Lang to hire or solicit people to kill or injure Marvin Hudson when the evidence at trial established that- Ms. Lang carried the grudge against Marvin Hudson, and there were other people who may have decided to violently confront him on that day. Defendant further argues that the bill of information does not indicate how the conspiracy was formed or how Defendant performed an act to assist Ms. Lang in carrying out the conspiracy. Defendant argues that without such an act, the State’s case against him must fail. Defendant contends that he did not engage in any action directed towards harming or killing Marvin Hudson. He argues the State had written statements or communications from Ms. Lang to Ms. Grace and from Ms. Lang to Defendant, but no overt acts by Defendant. Defendant suggests that the “overt act” contemplated by the statute involves an action in furtherance of the conspiracy and not just a statement in furtherance of a conspiracy. Defendant argues Ms. Lang was the only one that made an “overt expression” of intent to harm Marvin Hudson when she went to his house to confront him about her money or car. Defendant argues that even then, her intent was not to plot to do Marvin Hudson harm.

Conversely, the State argues an overt act, in the context of a conspiracy, may be any act such as a visit by one party to a co-conspirator for the purpose of discussing details. The State contends the text messages in which Defendant and Ms. Lang discussed and planned Marvin Hudson’s murder should be considered overt acts in furtherance of the conspiracy. According to the State, the text messages reveal the planning of the murder, searching for the victim, as well as surveillance of his residence, which are overt acts in furtherance of a conspiracy to commit murder.

In reviewing the sufficiency of the evidence, an appellate court must | zpdetermine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10); 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11); 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. at 240.

Defendant was charged with and convicted of conspiracy to commit second degree murder in violation of La. R.S. 14:26:30.1. Second degree murder is defined, in pertinent part, by La. R.S. 14:30.1 as:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

Criminal conspiracy is defined by La. R.S. 14:26(A) as:

[T]he agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

Thus, the elements of the crime of conspiracy are: (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, plus (2) an act done in furtherance of the object of the agreement or combination. State v. Tatum, 09-1004 (La.App. 5 Cir. 5/25/10); 40 So.3d 1082, 1089.

The first element of conspiracy requires specific intent, which is defined as the “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” State v. Zeno, 99-69 (La.App. 5 Cir. 8/31/99); 742 So.2d 699, 704, writ denied, 00-105 (La.6/30/00); 765 So.2d 1065 (citing La. R.S. 14:10(1)). The determination of specific criminal intent is a question of fact and may be inferred from circumstances and actions of the defendant. Id. (citation omitted). Proof of a conspiracy may be made by direct or circumstantial evidence. Id., 99-69 at 7; 742 So.2d at 705 (citation omitted).

The second element of a criminal conspiracy, the overt act, need not be unlawful. It may be any act, innocent or illegal, accompanying or following the agreement, which is done in furtherance of its object. State v. Jackson, 00-221 (La.App. 5 Cir. 3/15/01); 783 So.2d 482, 487, writs denied, 01-1071 (La.5/9/03); 843 So.2d 385, and 01-1258 (La.5/9/03); 843 So.2d 386. In prosecutions for criminal conspiracy, whether an overt act alleged served to support the object of the conspiracy is a question for the jury. State v. Ellis, 94-599 (La.App. 5 Cir. 5/30/95); 657 So.2d 341, writs denied, 95-2095 (La.12/8/95); 664 So.2d 421, and 95-1639 (La. 1/5/96); 666 So.2d 300; State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950). The Louisiana Supreme Court has held that:

Any act, such as a visit by one of the parties to his co-conspirator for the purpose of discussing details, might suffice as an overt act to complete a criminal conspiracy....
State v. D’Ingianni, 47 So.2d at 733.

In the instant case, the text messages exchanged between Ms. Lang and Defendant demonstrate that over a matter of days these individuals became increasingly angry over the inability to obtain either the car Ms. Lang purchased l22from Marvin Hudson or the money she paid him. When they were unable to get either the car or the money, Ms. Lang and Defendant began to discuss what actions to take in order to seek revenge. Specifically, the text messages demonstrate a plan between Ms. Lang and Defendant to shoot and kill Marvin Hudson. Ms. Lang and Defendant then discussed how to locate Marvin Hudson. Ms. Lang suggested they contact an individual who knew Marvin Hudson who might know his whereabouts. These text messages indicated a plan to shoot Marvin Hudson. On July 27, 2009, Defendant suggested killing Mr. Hudson within two days. Ms. Lang responded “ok,” suggesting her acceptance of the plan. Defendant later stated that “they” will get bullets, to which Ms. Lang responded, “kool.” This again suggests that Defendant and Ms. Lang were planning the shooting and killing of Marvin Hudson.

At trial, Ms. Lang admitted to sending and receiving the text messages. She asserted that she did not take Defendant seriously, although at no time did she respond to Defendant and indicate she did not agree with his plan to shoot Marvin Hudson. When read together however, the jury clearly found that this correspondence between Ms. Lang and Defendant demonstrated an agreement between them to carry out the plan of killing Marvin Hudson. Additionally, it was demonstrated at trial that Defendant and Ms. Lang completed acts in furtherance of this agreement. The text messages demonstrate that Ms. Lang and Defendant were actively searching, or having others search, for Marvin Hudson in order to carry out their plan to shoot him.

Based on the above, we find that the evidence presented at trial showed that Defendant and Ms. Lang planned to kill Marvin Hudson, or have someone else kill him, and then carried out acts in furtherance of that plan by text messaging and ^searching for Marvin Hudson; thus, Defendant conspired to commit second degree murder. Therefore, viewing this evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found Defendant guilty of conspiracy to commit second degree murder.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). We have not found any errors patent that require corrective action.

DECREE

For the foregoing reasons, we affirm Kendrick K. Henry’s conviction and sentence.

AFFIRMED

      . Sergeant McGregor was unable to obtain accurate subscriber information for "Reginald.”

      . The State also admitted into evidence the original phone records for the cellular telephones of Lang, Henry, Grace, and “Reginald.”

      . Sergeant McGregor sorted through all text messages contained in the cellular telephone records subpoenaed and prepared a summary of the text messages relevant to the investigation. Those text messages were contained in the police report. Sergeant McGregor then met with the Jefferson Parish District Attorney’s Office and assisted in going through the text messages.

      . The photo lineup contained photos of Defendant, Arzia Harris, Brian Harris, and Eric Anderson.

      . Aaron's last name is not contained in the transcript.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge. CHAISSON, J.,

license: Public Domain

text:
    Steven CAO v. LIBERTY MUTUAL INSURANCE COMPANY, David Singletary & Tara Singletary.
    No. 12-CA-954.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      John W. Norwood, III, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, ROBERT A. CHAISSON, ROBERT M. MURPHY and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

1 ^Defendant-appellant, Liberty Mutual Insurance Company, appeals the trial court’s judgment denying its motion for involuntary dismissal, as well as the trial court’s judgment rendered in favor of plaintiff-appellee, Steven Cao, and against defendant-appellant after a bench trial on the merits. For the reasons that follow, we reverse the judgment denying defendant-appellant’s motion for involuntary dismissal and vacate the judgment rendered in favor of plaintiff-appellee.

FACTS AND PROCEDURAL HISTORY

On March 25, 2010, plaintiff-appellee, Steven Cao, filed a petition for damages against defendant-appellant, Liberty Mutual Insurance Company, David Singletary and Tara Singletary. Mr. Cao alleged that on April 5, 2009, he sustained injuries in an automobile accident caused by the negligence of Tara Singletary. He alleged that at the time of the accident, Tara Singletary was driving a 1990 Buick LeSabre, which was owned by David Singletary and insured by Liberty Mutual. Liberty Mutual filed an answer, generally denying the allegations of Mr. Cao’s petition. Neither Tara Singletary nor David Singletary answered Mr. Cao’s petition or made any other appearance in the suit.

laThe case proceeded to trial on June 19, 2012, with Liberty Mutual appearing as the only defendant. At the start of trial, Mr. Cao and Liberty Mutual entered into the following stipulation: “[w]e would stipulate to the policy of insurance underwritten by Liberty Mutual.” However, the insurance policy referenced in the stipulation was not introduced into evidence at trial by either Mr. Cao or Liberty Mutual. Mr. Cao introduced his medical records into evidence and testified on his own behalf regarding his description of the accident and his resulting injuries. As Mr. Cao was proceeding down Wall Boulevard, a ear parked on the left side of the street suddenly pulled into his lane of traffic, causing him to lose control of his vehicle and crash into a building. As a result of the accident, Mr. Cao experienced pain in his neck, chest and upper back, for which he received two months of chiropractic treatment. At the conclusion of Mr. Cao’s cross-examination, he rested his case without calling any additional witnesses or producing any additional documentary evidence.

Liberty Mutual moved for directed verdict at the close of Mr. Cao’s case, based upon his failure to offer any evidence regarding the owner or the driver of the vehicle at fault in the accident. The judge denied Liberty Mutual’s motion, finding that Mr. Cao had identified Liberty Mutual as “the insurer of the vehicle that was insured.” At that point, Liberty Mutual rested its case without offering any testimony or documentary evidence and again moved the court for a directed verdict. Liberty Mutual argued that Mr. Cao failed to offer any evidence identifying the driver of the vehicle involved in the accident or the vehicle itself. The judge denied the motion, finding that the parties’ stipulation to the insurance policy identified Liberty Mutual as the insurer of the vehicle involved in the accident. Counsel for Liberty Mutual disagreed, arguing that the parties’ 14stipulation only determined that Liberty Mutual issued an insurance policy, not that the vehicle involved in the accident was covered by that policy.

The judge denied Liberty Mutual’s motion for directed verdict and rendered a judgment in favor of Mr. Cao and against Liberty Mutual, awarding $10,000 in damages. The judgment further dismissed Mr. Cao’s claims against Tara Singletary and David Singletary with prejudice. The court rendered a written judgment on June 29, 2012. Liberty Mutual now appeals.

DISCUSSION

On appeal, Liberty Mutual raises two assignments of error: (1) the trial court erred in denying Liberty Mutual’s motion for directed verdict; and (2) the trial court erred in ruling in favor of plaintiff where he failed to prove the necessary elements of his claim for negligence. Mr. Cao did not file a brief in opposition to Liberty Mutual’s appeal.

In its first assignment of error, Liberty Mutual contends that the trial court’s denial of its motion for directed verdict was improper because Mr. Cao failed to offer any evidence regarding the alleged tortfea-sor. Specifically, Liberty Mutual argues that Mr. Cao failed to identify the owner of the vehicle at fault, the driver of the vehicle at fault, the insurer of the vehicle at fault, or the vehicle itself. Liberty Mutual contends that the evidence presented by Mr. Cao at trial merely established that he sustained injuries in a car accident, for which he received medical treatment.

Because this case was tried in a bench trial, and not before a jury, a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672 is the proper procedural device in such cases. Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11); 65 So.3d 649, 660. In a motion for involuntary dismissal, the defendant may move for a dismissal of the action against him after the close of the plaintiffs case, where the Isplaintiff has shown no right to relief based upon the facts and law. Id. The appropriate standard in determining whether an involuntary dismissal should be granted is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless is it manifestly erroneous or clearly wrong. Id.

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. White v. Am. Int’l Group, Inc., 08-1238 (La.App. 5 Cir. 3/24/09), 11 So.3d 21, 23. Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be proved is more probable than not. Id. When seeking recovery under a policy of insurance, it is the plaintiffs burden to establish every essential fact and that his claim is within the policy coverage. Mercadel v. Tran, 92-0798 (La.App. 4 Cir. 3/29/94); 635 So.2d 438, 440. Specifically, where a plaintiff alleges liability of an insured or insurer for the negligence of a non-owner driver of a covered vehicle, the plaintiff has the burden of proving that the vehicle was being used with the express or implied permission of the named insured. Id.

In his petition for damages, Mr. Cao alleged that he was injured in a car accident caused by the negligence of defendant Tara Singletary, the driver of a 1990 Buick LeSabre. Mr. Cao alleged that because Tara Singletary was not the owner of the Buick she was driving at the time of the accident, her negligence was imputed to the owner of the Buick, defendant David Singletary, and the insurer of the Buick, Liberty Mutual, “under a theory of respon-deat superior, and/or permissive use.”

|(At the start of trial, the parties entered into the following stipulation regarding an insurance policy issued by Liberty Mutual:

THE COURT:
Okay, gentlemen, any stipulations or anything?
COUNSEL FOR STEVEN CAO:
Yes. We would stipulate to the policy of insurance underwritten by Liberty Mutual. Is that okay, John?
COUNSEL FOR LIBERTY MUTUAL:
Yes.

Importantly, however, the insurance policy referenced in the foregoing stipulation was not introduced into evidence at trial by Mr. Cao or by Liberty Mutual. “Evidence not properly and officially offered and introduced into evidence cannot be considered on appeal, even if it is physically placed in the record.” Jackson v. United Serv. Auto. Ass’n Cs. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08); 1 So.3d 512, 515; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99); 726 So.2d 474, 476. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Jackson, supra, citing La. C.C.P. art. 2164. In denying Liberty Mutual’s motion for involuntary dismissal, the trial court concluded that Mr. Cao had shown that the vehicle involved in the accident was covered by the Liberty Mutual policy. However, the record reveals that no such policy was ever introduced into evidence at trial. Therefore, the ruling of the trial court was erroneous, as it was not based upon a proper foundation.

In fact, the only evidence introduced at trial by Mr. Cao in support of his claims was: (1) his own testimony regarding his description of the accident and the injuries he sustained as a result; and (2) medical records related to his claimed |7inj uries. He did not testify, or call any other witnesses to testify, regarding the insurance policy referenced in the parties’ stipulation, the identity of the driver of the car at fault, the owner of the car at fault, the insurer of the car at fault, or the make or model of the car at fault. Citing Mr. Cao’s failure to offer any evidence establishing the foregoing elements, Liberty Mutual re-urged its motion for involuntary dismissal of plaintiffs claims at the close of its casein-chief.

In response, the trial court denied Liberty Mutual’s motion for involuntary dismissal, finding that Mr. Cao need only identify the vehicle at fault in order to meet his burden of proof, and that Mr. Cao sufficiently carried that burden by virtue of the parties’ stipulation to the insurance policy. As noted above, the insurance policy referenced by the parties’ stipulation was not introduced at trial, and therefore, was not properly before the court. However, even without consideration of the insurance policy itself, we find that the parties’ stipulation to “the policy of insurance underwritten by Liberty Mutual,” is insufficient to carry Mr. Cao’s burden of proof at trial.

Where a plaintiff, such as Mr. Cao, alleges liability of an insured or insurer for the negligence of a non-owner driver of a covered vehicle, the plaintiff has the additional burden of proving that the vehicle was being used with express or implied permission of the named insured. Mercadel, 635 So.2d at 440. The fact of initial use with permission must be established to make coverage effective and must be proven by a preponderance of the evidence. Id. For instance, in Mercadel v. Tran, supra, the Fourth Circuit affirmed the trial court’s grant of the insurer’s motion for directed verdict under similar circumstances involving a car accident caused by a non-owner driver of a covered vehicle. At trial, the insurer stipulated only that the owner of the vehicle was the named insured in the policy at issue and that the policy limits were 10/20. However, only the policy’s declaration page, and 18not the policy itself, was introduced into evidence. The plaintiff was the only liability witness to testify at trial, wherein he established the negligence of the non-owner driver, but failed to offer any evidence of a relationship or permissive use between the vehicle owner and the non-owner driver.

In affirming the trial court’s grant of the insurer’s motion for directed verdict, the appellate court noted that although the plaintiff established that the non-owner driver negligently operated the covered vehicle, he did not prove the driver’s permissive use of the vehicle, as required by Louisiana law. Id. at 441. Additionally, the court emphasized that the plaintiff did not subpoena the driver or the owner to appear at trial, nor did he introduce the insurance policy into evidence. Id. The court concluded that the parties’ stipulation that a policy was issued to the owner which covered the vehicle involved in the accident, was insufficient to establish permissive use. Id.

In this case, Mr. Cao and Liberty Mutual simply stipulated that Liberty Mutual issued a policy of insurance. Contrary to the trial court’s finding, they did not stipulate that the Liberty Mutual policy at issue provided coverage for the accident alleged by Mr. Cao. As a result, it was still Mr. Cao’s burden to prove that his claim is within the policy coverage at trial. Because Mr. Cao has alleged that Tara Singletary, a non-owner driver, was driving the vehicle allegedly at fault in the accident, it was his burden to prove that she did so with the express or implied permission of the vehicle’s alleged owner, David Singletary. Based on our review of the record, Mr. Cao failed to present any evidence at trial in this regard. Not only did Mr. Cao fail to identify Tara Singletary or David Singletary, he did not offer any evidence regarding the relationship, if any, between Tara and David, much less whether she obtained his permission prior to driving the vehicle on the day of the accident. He did not call Tara Singletary or David Singletary, or any | nother witnesses, to testify at trial. Because Mr. Cao did not file an appellate brief in this matter, he has not presented any argument for our consideration on appeal.

After reviewing the record in its entirety, we find that Mr. Cao did not present sufficient evidence to establish his claims by a preponderance of the evidence. The evidence admitted at trial consisted of Mr. Cao’s testimony regarding a vehicular accident and his resulting injuries, medical records and a stipulation to an unidentified insurance policy. Mr. Cao failed to present any evidence identifying the insurance policy at issue, the owner of the vehicle at fault, the driver of the vehicle at fault or her permissive use, the insurer of the vehicle at fault, or the vehicle at fault. Accordingly, we find that the trial court’s denial of Liberty Mutual’s motion for involuntary dismissal was manifestly erroneous and reverse that ruling, hereby dismissing Mr. Cao’s claims against Liberty Mutual with prejudice.

Because we have reversed the trial court’s denial of Liberty Mutual’s motion for involuntary dismissal, the issue raised in Liberty Mutual’s second assignment of error related to the judgment rendered in favor of Mr. Cao is now moot. Therefore, we vacate the judgment rendered in favor of Mr. Cao and against Liberty Mutual in the amount of $10,000.

CONCLUSION

For the reasons stated herein, we reverse the trial court’s judgment denying defendant-appellant Liberty Mutual Insurance Company’s motion for involuntary dismissal and dismiss plaintiff Steven Cao’s claims against Liberty Mutual Insurance Company with prejudice. Accordingly, we vacate the trial court’s judgment rendered in favor of Steven Cao and against Liberty Mutual Insurance Company in the amount of $10,000.

CHAISSON, J., dissents with reasons.

CHAISSON, J.,

dissents with reasons.

ItnIn my opinion, the crux of this case is the trial court’s interpretation of the meaning of the stipulation entered into between the parties at the outset of the trial. Plaintiffs counsel offered the following stipulation to defense counsel: “We would stipulate to the policy of insurance underwritten by Liberty Mutual. Is that okay, John?” Clearly, plaintiffs counsel used extremely vague language in the wording of the stipulation; however, rather than declining the stipulation, or asking for clarification of the stipulation, counsel for Liberty Mutual simply responded “Yes”, thereby accepting the stipulation.

At the conclusion of the plaintiffs case, defendant moved for a directed verdict (involuntary dismissal) on the basis that plaintiff had offered no evidence of “who the tortfeasor was in this case, who the driver was, who the owner of the vehicle was, only that Liberty Mutual Insurance Company insured the vehicle.” Later in his argument, counsel for Liberty Mutual further indicated that plaintiff “hasn’t offered a prima facie case of who was at fault in the accident” and “hasn’t even identified that vehicle as being involved in the accident.”

It appears therefore, that despite the parties’ stipulation, defendant contends that the plaintiff was still required to offer additional proof of the following matters:

1) Identification of the vehicle involved in the accident;
2) Identification of the owner of the vehicle involved in the accident;
8) Identification of the driver of the vehicle involved in the accident; and
4) “who was at fault in the accident.”

The parties stipulated to the Liberty Mutual policy of insurance on David A. Singletary’s 1990 Buick LeSabre. This stipulation, and Mr. Singletary’s policy of insurance, would be completely irrelevant to this case unless Mr. Singletary’s Buick LeSabre was the other vehicle involved in this accident. Therefore, the trial court, presumably not believing that the parties were offering an irrelevant stipulation and evidence into this trial, was not manifestly erroneous in determining that Mr. Singletary’s vehicle was the other vehicle involved in the Inaccident, and that no further proof of the identification of the vehicle or Mr. Singletary as the owner was necessary. The only remaining basis for defendant’s motion for directed verdict was plaintiffs failure to prove the identity of the driver of Mr. Singletary’s vehicle, and “who was at fault in the accident.”

Plaintiff testified that the driver of the other vehicle “swerved into [his] lane and caused [him] to lose control.” Therefore, plaintiff did establish that the driver of the other vehicle (established by stipulation to be Mr. Singletary’s Buick LeSabre), regardless of that driver’s actual identity, was the person “who was at fault in the accident.” The only remaining question is whether plaintiff was required to offer proof of the actual identity of the driver of Mr. Singletary’s vehicle, which goes to the question of whether the stipulated Liberty Mutual policy on Mr. Singletary’s Buick LeSabre provided coverage for the negligent acts of the driver of the LeSabre in this accident. The trial court obviously believed that the stipulation was sufficient to encompass a stipulation as to insurance coverage for this particular accident, while defendant denies that there was a stipulation as to coverage.

The record in this matter is devoid of any indication that Liberty Mutual at any point prior to its motion for directed verdict had raised any issue of denial of coverage under its policy issued to Mr. Sin-gletary. Additionally, counsel for Liberty Mutual did not decline the stipulation regarding insurance, nor did he request clarification of the stipulation. Although the stipulation (and thus its wording) was offered by plaintiffs counsel, a stipulation is entered on the record by agreement of the parties. Once it became clear that there was a dispute as to the meaning of the stipulation, the trial court was called upon to interpret the stipulation. Accepting Liberty Mutual’s position (that the stipulation was not intended to encompass coverage for this accident under Mr. Single-tary’s policy), would render the entire stipulation, and Mr. Singletary’s policy, irrelevant to this case. Therefore, on this point, I am of the opinion that the trial court was not manifestly erroneous in finding that the stipulation between the parties encompassed a stipulation as to coverage for this accident under Mr. Sin-gletary’s policy and that no further proof was required of plaintiff as to the actual identity of the driver of Mr. Singletary’s vehicle.

Lastly, once the trial court denied defendant’s motion for directed verdict, defendant failed to put forth any evidence to show that the person who was driving Mr. Singletary’s vehicle at the time of the accident, whoever it may have been, was not covered under Mr. Singletary’s policy. The trial court, having before it only the stipulation of the parties regarding Mr. Singletary’s policy, which the trial court interpreted as encompassing coverage, and no countervailing evidence from defendant to show that there was no coverage, was not manifestly erroneous in finding that Mr. Singletary’s insurance policy provided coverage for this accident.

For the above reasons, I would affirm the decision of the trial court, and therefore respectfully dissent from the majority opinion.

      . Although the transcript does not reflect at what point in the proceedings the policy of insurance was introduced, the record contains Exhibit "Def. A”, which is a copy of the policy of insurance issued by Liberty Mutual to defendant David A. Singletary on his 1990 Buick LeSabre. This exhibit is marked by the Clerk of Court as filed on June 19, 2012, the date of trial.


author: STEPHEN J. WINDHORST, Judge.

text:
    Connie LOVE v. Jeanne SIREY.
    No. 12-CA-823.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Jason P. Foote, Desmonde Bennett, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    John E. McAuliffe, Jr., Attorney at Law, Metairie, LA, for Intervenor/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12Jeanne Sirey appeals a summary judgment granted in favor of her homeowners insurer, State Farm Fire and Casualty Company (“State Farm”), finding that State Farm owed no duty to defend or indemnify Ms. Sirey against the claims asserted by Connie Love and denying Ms. Sire/s cross-motion for summary judgment. For the following reasons, we affirm in part, vacate in part and remand the matter back to the trial court.

PROCEDURAL HISTORY

On February 27, 2007, Ms. Love filed a Complaint for Personal Injuries against Ms. Sirey claiming that Ms. Sirey committed continuous assaults and batteries on Ms. Love through inappropriate comments and inappropriate bodily contact, which occurred at their place of employment, Moti-va. Subsequently, Ms. Sirey contacted State Farm and reported the pending lawsuit. State Farm proceeded to defend Ms. Sirey pursuant to a reservation of rights by appointing separate counsel to represent Ms. Sirey. State Farm filed an Intervention for Declaratory Judgment and then a motion for summary judgment asserting that coverage defenses precluded coverage to Ms. Sirey. Ms. Sirey filed a cross-motion for summary judgment contending she had coverage under the policy. The trial |acourt granted State Farm’s summary judgment and denied Ms. Sirey’s cross-motion for summary judgment. This appeal followed.

DISCUSSION

When reviewing a trial court’s grant of a motion for summary judgment, a de novo standard of review is applied. Flowers v. Wal-Mart Stores, Inc., 12-140 (La.App. 5 Cir. 7/31/12), 99 So.3d 696. In summary judgment there is no live testimony or determination of credibility of evidence by the trial court. La. C.C.P. art. 966 B(2); KMJ Services, Inc. v. Hood, 12-757, p. 4 (La.App. 5 Cir. 4/10/13), 115 So.3d 34, 2013 WL 1442631; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. Therefore, courts of appeal apply the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. KMJ Services, Inc., 12-757 at 4, 115 So.3d at 36.

Generally, in a motion for summary judgment, the mover retains the burden of proof. After adequate discovery, if the mover sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party’s claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentia-ry burden at trial. La. C.C.P. art. 966 C(l) & (2). Subsequently, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966 C(2). Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975, citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 776-77.

| insurance policies are contracts between the insured and insurer wherein the agreement governs the nature of their relationship. La. C.C. art.1983. An insurance policy is a contract that must be construed using the general rules of contract interpretation set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/4/94), 630 So.2d 759, 763; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1028. Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Brewster v. Hunter, 09-932 (La.App. 5 Cir. 3/9/10), 38 So.3d 912, 915, writ denied, 10-773 (La.6/4/10), 38 So.3d 305.

The purpose of liability insurance is to provide the insured protection from claims of damage. Peterson, 729 So.2d at 1028. Courts must determine the intent of the parties when interpreting an insurance policy. La. C.C. art. 2045. Insurance policies should be interpreted to effect coverage, not deny coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). An exclusion from coverage should be narrowly construed. Breland v. Schilling, 550 So.2d 609, 610 (La.1989). An insurance policy should not be interpreted unreasonably or in a strained manner in an attempt to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Bernard v. Ellis, 11-2377 (La.7/2/12), 111 So.3d 995; Graphia v. Schmitt, 08-613 (La.App. 5 Cir. 1/13/09), 7 So.3d 716, 718. Absent a conflict with public policy or statutory provisions, insurers, like other persons, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the obligations they contractually assume under the policy. Id. When the policy’s language is clearly expressed and unambiguous, the insurance policy must be enforced as written and no further interpretation may be made to determine the intent of the ^parties. Id; La. C.C. art.2046. However, when the policy provisions are ambiguous and susceptible to two or more reasonable interpretations, then those provisions are construed against the insurer and in favor of coverage. La. C.C. art.2056; Louisiana Ins. Guar. Ass’n, 630 So.2d at 764.

In general, an insurer’s obligation to defend a lawsuit against its insured is broader than its liability for damage claims. Yount, 627 So.2d at 153. A duty to defend an insured is determined by the allegations of the plaintiffs petition wherein the insurer is obligated to provide a defense unless the petition unambiguously and clearly excludes coverage. Id., citing American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987). Assuming all the allegations of the plaintiffs petition are true, if there would be coverage under the policy and liability to the plaintiff, the insurer must defend its insured irrespective of the final outcome of the lawsuit. Id.; Graphia, 7 So.3d at 718. The allegations of the petition are liberally construed to determine whether they set forth grounds which bring the claim within the insurer’s duty to defend. Id.

Assignment of Error One

In her first assignment of error, Ms. Sirey contends that the trial court erred by finding that the acts claimed in Ms. Love’s petition do not constitute an insurable “occurrence” under the policy issued to Ms. Sirey by State Farm.

State Farm contends that the policy defines an “occurrence” as an “accident.” State Farm argues that the acts of battery and assault are intentional by nature and thus, do not constitute an “occurrence” under the policy. State Farm further claims that when reviewing the acts from the point of view of Ms. Love, the actions by Ms. Sirey do not constitute an “accident.” Ms. Love testified in her deposition that she did not believe that the actions by Ms. Sirey were an accident.

1 fiSection II of the policy entitled “Liability Coverage,” provides:

Coverage L — Personal Liability:
If a claim is made or a suit is brought against an Insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. Pay up to our limit of liability for the damages for which the Insured is legally liable; and
2. Provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability.

Thus, for the policy to afford coverage to Ms. Sirey there must have been a suit brought against the insured, Ms. Sirey, for “bodily injury” or “property damage” caused by an “occurrence” as defined in the policy.

In Ms. Love’s petition and first amended petition, she claimed that Ms. Sirey repeatedly committed several assaults and batteries on Ms. Love over a period of time and the “touchings were offensive” to Ms. Love. Ms. Love additionally claimed that as a result of “continuous unchecked threats” she suffered severe emotional distress that resulted in her transfer to another position wherein she was sent home as disabled.

The trial court found that there was no coverage for the claims in Ms. Love’s petitions because they did not constitute an “occurrence” as defined in the policy. The policy definition states that an “occurrence,” when used in Section II of the policy, is “an accident, including exposure to conditions, which results in bodily injury or property damage during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.”

The policy does not define “accident,” “exposure to conditions” and/or “repeated or continuous exposure.” It does not exclude intentional acts from | coverage (discussed infra, assignment of error three), and the definition of occurrence does not specifically exclude assault and battery. Considering the precise language of the policy, and the allegations set forth in the petitions, the policy does not unambiguously or clearly exclude Ms. Love’s claims from coverage as an insurable occurrence. We find that the trial court erred in concluding that the petitions fail to state a covered occurrence.

Assignment of Error Two

In her second assignment of error, Ms. Sirey contends that the trial court erred by finding that Ms. Love’s claims did not result in “bodily injury.”

State Farm argues that Ms. Love in her deposition affirmatively testified that she did not sustain any bodily injury or property damage as a result of the actions of Ms. Sirey. State Farm further claims that the policy excludes damages for emotional distress under the definition of “bodily injury.”

Ms. Sirey contends that Ms. Love’s petition and first amended petition claimed bodily injury.. Specifically, Ms. Love claimed that she suffered emotional distress and was “disabled” as result of the acts perpetrated by Ms. Sirey. Additionally, Ms. Sirey argues that Ms. Love testified in her deposition that as a result of the . emotional distress, she suffered from a physical bodily injury, ie., loss of bodily functions. Furthermore, Ms. Sirey claims that Ms. Love’s petitions assert various assaults and batteries which include the threat of physical contact and physical contact which could reasonably be interpreted as “bodily injury.”

In the State Farm policy, “bodily injury” is defined as physical injury, sickness, or disease to a person. The policy further provides that:

Bodily Injury does not include:
c. emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person.

lsOn the face of the petition and first amended petition, Ms. Love clearly claimed “bodily injury” sufficient to trigger coverage under the State Farm policy. Ms. Love claimed unwanted bodily contact and “threatened” bodily contact by Ms. Sirey. Ms. Love contended that the acts by Ms. Sirey caused her to be disabled. A review of Ms. Love’s deposition testimony provides additional evidence that Ms. Love sustained bodily injury. Ms. Love testified that due to fear and anxiety she developed a physical injury, namely, loss of her bodily functions. Furthermore, Ms. Love claimed bodily injury by contending Ms. Sirey committed several batteries which by its nature encompasses bodily contact. Thus, the policy does not unambiguously exclude coverage for Ms. Love’s claimed bodily injury. The trial court erred in finding Ms. Sirey did not have coverage under the policy.

Assignment of Error Three

In her third assignment error, Ms. Sirey claims that the trial court erred by finding that this was an intentional act that was excluded by the intentional act provision when in fact the policy contains an intentional injury exclusion.

State Farm argues that the acts of assault and battery are intentional torts and are excluded under the policy’s intentional act/malicious acts exclusion provision. Ms. Sirey contends that the policy does not contain an intentional act exclusion, rather it contains an intentional injury exclusion which has been held not to exclude all intentional acts.

The State Farm policy “Section II — Exclusions” provides:

1. Coverage L and Coverage M do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by the insured; or
(2) which is the result of willful and malicious acts of the insured;

lain interpreting insurance policies, policies should be construed to effect coverage, not deny it. Yount, 627 So.2d at 151, citing Breland, 550 So.2d at 610. Thus, any exclusion from coverage should be narrowly construed and where an ambiguity exists, the provision should be construed in favor of coverage and against the insurer. Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1188 (La.1994), citing Great American Ins. Co. v. Gaspard, 608 So.2d 981, 984 (La.1992); La. C.C. art. 2056.

In Breland, 550 So.2d at 610, the Supreme Court discussed the difference between an intentional act and an intentional injury exclusion. The Court held that

[t]he purpose of the intentional injury exclusion is to restrict liability insurance coverage by denying coverage to an insured in circumstances where the insured acts deliberately and intends or expects bodily injury to another. The exclusion is “designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will ‘pay the piper’ for the damages.”

The language used in an intentional injury exclusion provision has been held to be ambiguous. Pique v. Saia, 450 So.2d 654, 655 (La.1984). An intentional injury clause, by its language does not exclude coverage for bodily injury caused by an insured’s intentional act. Breland, 550 So.2d at 611. The exclusion precludes coverage for bodily injury “expected or intended” by the insured. Id. Thus, the excluded injury would be the injury the insured intended, not the injury which the insured unintentionally caused, however intentional the act which produced the injury. Id. The subjective intention and expectation of the insured will determine which injuries fall within and which fall outside the scope of coverage under an insurance policy with this language. Id.

| mThis interpretation is in direct contrast to the traditional intentional tort inquiry into an individual’s intent. The intentional tort inquiry focuses on the consequences an objective reasonable person might expect or intend as a result of a deliberate act. Id. Thus, the intentional tort standard exposes an individual to liability for injuries he did not foresee or intend to produce, whereas an intentional injury exclusion excludes coverage only for those injuries which the defendant subjectively intended to inflict. Id. at 612.

For the intentional injury exclusion, whether the act and the resulting injury were intended by the insured is a question of fact to be determined by the trier of fact. Id. at 614. The trier of fact must examine “not only the words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation.” Yount, 627 So.2d at 152, citing Great American Insurance Co., 608 So.2d at 986, quoting Breland, 550 So.2d at 615 (Lemmon, J. concurring). Because this inquiry is fact intensive, much discretion will be given to the trier of fact. Yount, 627 So.2d at 152.

The State Farm policy does not contain an intentional act exclusion. Instead it contains an intentional injury exclusion. Thus, the court must determine Ms. Sirey’s subjective intent to determine whether the she intended the injuries, which is an issue of fact. Accordingly, a genuine issue of material fact exists as to Ms. Sirey’s subjective intent which precludes summary judgment under the intentional injury exclusion. We find that the trial court erred in finding that the intentional injury exclusion precluded coverage to Ms. Sirey under the policy.

State Farm also asserts that the insurance policy contains a separate exclusion for the “willful and malicious | nacts of an insured.” Under the malicious acts section of the exclusion, State Farm contends that coverage to Ms. Sirey is excluded. State Farm argues that assuming the court finds that the exclusion is an intentional injury exclusion, any intended or unintended injury is not relevant in a determination of malicious acts. Rather, the mere act itself fits within the exclusion and thus, the policy does not provide coverage to Ms. Sirey

In Keathley v. State Farm Fire & Casualty Insurance Co., 594 So.2d 963 (La.App. 3 Cir.1992), the Third Circuit, interpreted an exclusionary clause in a liability policy similar to the clause in the present case. The court held that under the second part of the exclusionary clause (willful and malicious acts), it was immaterial whether the defendant intended the actual resulting injuries. Keathley, 594 So.2d at 966. Although conceding that not many cases have interpreted the “willful and malicious” exclusionary clause, the court noted:

The term willful has been defined, and this term has been held to apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended.
The usual meaning assigned to this term is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Pros-ser, Law of Torts, Section 34, at pages 187-189 (3d Ed.1964); Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3d Cir.1975); Prosser v. Crawford, 383 So.2d 1363 (La.App. 3d Cir.1980).
The term malicious, also used in the second part of the exclusionary clause, has not been defined or used in any case like the term “willful.” In order to determine if defendant’s conduct fall under this second prong, we must use the common meaning of the word “malicious.” The general meaning of this term as found in Black’s Law Dictionary 5th ed. is as follows: “Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse. See also Malice; Willful.”

Keathley, 594 So.2d at 965-966.

| ^Despite State Farm’s assertion to the contrary, genuine issues of material fact remain as to whether the acts claimed by Ms. Love are excluded under this provision.

Assignment of Error Four

In her fourth assignment of error, Ms. Sirey contends that trial court erred in granting summary judgment to State Farm because the acts alleged in the plaintiffs petition do not relate to either party’s business pursuits exclusion.

State Farm argues that the acts claimed by Ms. Love occurred almost entirely at Motiva where Ms. Love and Ms. Sirey are co-workers and are excluded under the business pursuits exclusion. However, we note that the exclusion does not apply “to activities which are ordinarily incident to non-business pursuits. We find that a genuine issue of material fact exists regarding whether the business pursuits exclusion unambiguously excludes coverage.

Assignment of Error Five

In her final assignment of error, Ms. Sirey contends that the trial court erred by denying her cross-motion for summary judgment since coverage was clearly provided under the State Farm policy.

While we find that the acts set forth in Ms. Love’s petition are not unambiguously excluded from coverage, we likewise find genuine issues of material fact remain which bear on whether or not coverage is excluded under the exclusion provisions of the policy. Considering the reasons above, the trial court was correct in denying Ms. Sire/s cross-motion for summary judgment.

We decline to address Ms. Sirey’s request that State Farm should be ordered to reimburse Ms. Sirey for all out of pocket fees and costs for defending herself on this issue. Such a determination would be premature.

| ^CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment denying Ms. Sir-ey’s cross-motion for summary judgment. We vacate the trial court’s judgment granting State Farm’s motion for summary judgment. This case is remanded to the trial court for further proceedings.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

      . Ms. Love filed a First Amended Complaint for Personal Injuries on October 25, 2010.

      . In Breland, the Supreme Court held that "... when a minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when a minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred.” Id. at 614.