text:
    Zina BURROWS and Lahura Burrows v. EXECUTIVE PROPERTY MANAGEMENT COMPANY and Lake Forest, LLC.
    No. 2013-CA-0914.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2014.

      William R. Mustian, III, Stanga & Mus-tian, APLC, Metairie, LA, for Plaintiff/Appellant.
    Seth A. Schmeeckle, Ralph Shelton Hubbard, III, Rachel A. Clark, Lugenbuhl Wheaton Peck Rankin & Hubbard, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   DANIEL L. DYSART, Judge.

^Plaintiffs, Zina Burrows and Lahura Burrows, appeal a summary judgment dismissing American Equity Insurance Company (“AEIC”) and Lake Forest, L.L.C. (“Lake Forest”), from this suit. For the reasons that follow, we affirm the trial court’s judgment in favor of AEIC, but reverse the summary judgment dismissal of Lake Forest.

FACTUAL AND PROCEDURAL BACKGROUND

On February 4, 2002, plaintiffs filed a Petition for Damages against Lake Forest, the owner of the Plaza in Lake Forest mall (the “Plaza”), and its management company, Executive Property Management Company (“Executive Property”). Plaintiffs allege that their father, William E. Burrows, III (sometimes hereinafter referred to as “decedent”), a security guard employed by Executive Property, died as a result of the defendants’ negligence in failing to timely transport Mr. Burrows to the hospital. More particularly, plaintiffs allege that on August 24, 2001, Mr. Burrows was working at the Plaza and while helping a 12customer carry items to the customer’s car, he fell and briefly lost consciousness. They then allege that a co-employee assisted Mr. Burrows back to Executive Property’s office located in the Plaza, where he asked to be taken to a nearby hospital, Pendleton Memorial Methodist Hospital (“Memorial”); however, “[ojfficers and employees of [Executive Property] and [Lake Forest], knowing that the decedent was gravely ill, failed and refused to transport [him] to the hospital.” His family was contacted to transport him to the hospital, delaying his medical treatment by “over one hour.” When Mr. Burrows was brought to Memorial, he suffered a seizure or cardiac arrest and became comatose. Mr. Burrows passed away on September 1, 2001. The Petition alleges that Mr. Burrows’ death was “directly and proximately” caused by the defendants’ failure to transport him to the hospital and the resulting delay in his obtaining medical treatment.

After Lake Forest and Executive Property filed Exceptions of No Cause or Right of Action (based partly on the exclusivity of workers’ compensation laws), the trial court granted plaintiffs leave to amend their petition. On May 30, 2002, plaintiffs filed a supplemental petition alleging that Executive Property and Lake Forest denied that the August 24, 2001 incident was a compensable event or accident under the Louisiana Workers’ Compensation law and “[accordingly, the exclusive remedy provisions of the Louisiana Workers Compensation Law ... do not apply to the cause of action stated in the original Petition.” The supplemental [¡¡petition also added the allegation that the defendants’ “employees were substantially certain that the failure to transport [the decedent] to nearby Pen-dleton Methodist Hospital ... would result in a diminished or lost chance of survival....”

Plaintiffs again amended their petition on March 9, 2005 to add AEIC as a defendant in its capacity as the alleged comprehensive general liability insurer for Executive Property and Lake Forest.

On April 29, 2010, plaintiffs filed a Motion for Summary Judgment seeking a determination that AEIC is Lake Forest’s “comprehensive general liability” insurer and that its policy provides coverage for the claims asserted in this lawsuit. The Motion further sought a declaration that no exclusions of the AEIC policy bar coverage.

AEIC then filed its own Motion for Summary Judgment on December 22, 2011 seeking a dismissal on several bases: (1) its policy only covers Lake Forest and not Executive Property; (2) even assuming its policy covered Executive Property, an “Employer’s Liability” exclusion bars coverage; (3) its policy bars coverage for “Intentional Acts;” and (4) Lake Forest, as the mall owner, has no liability for the claims alleged (either because, as merely the landowner, it owed no duty and even if it did, a breach of the duty was not the legal cause of the injuries).

AEIC’s Motion for Summary Judgment was heard on June 15, 2012, and by judgment dated June 21, 2012, the motion was granted in part and denied in part. [ 4The summary judgment was denied as to the issue of whether Executive Property is an “additional insured” under AEIC’s policy. It was granted as to AEIC on the basis that (1) Mr. Burrows was in the course and scope of his employment at the time of the incident and the policy excluded coverage for injuries arising out of Mr. Burrows’s employment and (2) intentional acts are excluded from the policy, as the parties agreed on the record. The judgment also granted summary judgment and a dismissal with prejudice in favor of Lake Forest on the basis that (1) as a landowner, it owed no duty to an employee of its lessor, and (2) plaintiffs’ claims did not arise from any “defect or negligence of the landowner.” The trial court designated the grant of summary judgment as a final judgment pursuant to La. C.C. P. art. 1915.

AEIC filed a Motion for Reconsideration, Motion for New Trial, and/or Motion to Amend Judgment on June 27, 2012, seeking an amendment to the judgment insofar as it expressly dismissed Lake Forest with prejudice but did not dismiss AEIC from the suit. Plaintiffs also filed a Motion for New Trial on June 28, 2012, arguing that the trial court’s June 21, 2012 judgment improperly granted summary judgment to Lake Forest, given that Lake Forest had not filed a Motion for Summary Judgment and was not a party to AEIC’s Motion for Summary Judgment.

IrAEIC’s and plaintiffs’ motions were both heard on September 26, 2012. By judgment dated October 9, 2012, the trial court denied plaintiffs’ Motion for New Trial and granted AEIC’s Motion for Reconsideration in part and denied it in part, ruling as follows. After first vacating the June 21, 2012 judgment, it denied AEIC’s motion insofar as it sought a determination that Executive Property is an “additional insured” under the AEIC policy on the basis that the policy language pertaining to additional insureds is ambiguous. It then granted summary judgment to AEIC on the basis that the policy excluded coverage for injuries arising out of the course and scope of employment and for intentional acts, concluding that there were no issues of material fact as to either finding. Finally, it found no duty on Lake Forest’s part, as merely the landowner where there were no allegations of “defect or negligence” against it. Both Lake Forest and AEIC were dismissed from the suit, with prejudice. The trial court designated the judgment as a final judgment.

Plaintiffs timely filed this appeal.

DISCUSSION

Standard of Review

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137, citing Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La.11/28/01), 800 So.2d 783, 788. Thus, we review whether “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2).

We note that the “[interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment.” Bernard v. Ellis, 11-2377, p. 9 (La.7/2/12), 111 So.3d 995, 1002. As the Bernard court explained, “[a]n insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code.” Id. (citation omitted). In that regard, the policy “should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.” Id. Thus, “[i]f the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written.” Id., 11-2377, p. 10, 111 So.3d at 1002. Summary judgment should therefore be granted “when the facts are taken into account and it is clear that the provisions of the insurance policy do not afford coverage.” Id.

17Plaintiffs raise two issues in this appeal; namely, that the claims do not arise out of Mr. Burrows’s employment and as such, the “course and scope of employment” exclusion is inapplicable; and that the trial court erred in dismissing Lake Forest as it was not a party to AEIC’s Motion for Summary Judgment. We address each issue in turn.

Employer’s Liability Exclusion

The record reflects that the decedent was an employee of Executive Property at the time of the August 24, 2001 incident and that he was “on the clock and being paid” at the time of the incident, as reflected in plaintiffs’ responses to requests for admission. Those responses further admit that, at that time, the decedent was helping a customer carry items to the customer’s car ... for the benefit of [his] employer and that the decedent “was performing duties related to the conduct of his employer’s business.” AEIC maintains that, based on these admissions and our jurisprudence interpreting Employer’s Liability exclusions, there is no coverage for plaintiffs’ claims in this matter.

We agree with AEIC that its policy’s Employers’ Liability exclusion bars coverage in this matter, but only insofar as the decedent is “an ‘employee’ of the insured” (emphasis added). The insured under AEIC’s policy is Lake Forest, alone; Executive Property is not a named insured. While AEIC’s Motion for Summary Judgment generally denied that its policy covers Executive Property, it did not specifically raise the “additional insured” issue in its Motion (other than in reply to plaintiffs’ opposition). Nor did plaintiffs file a Motion for Summary Judgment on the issue of Executive Property’s status as an additional insured. Nonetheless, the trial court made a specific finding that AEIC’s policy language |8“which pertains to additional insured [sic] is ambiguous” and its October 9, 2012 judgment expressly denied AEIC’s Motion for Summary Judgment as to “whether Executive Property ... is an ‘additional insured.’ ”

In this appeal, neither party addressed whether the trial court erred in finding the policy language to be ambiguous or whether Executive Property is an additional insured and therefore, the issues are considered abandoned. See Broyard v. Rainer, 03-0128, p. 18 (La.App. 4 Cir. 6/18/03), 850 So.2d 793, 804 (where plaintiff “has not briefed this issue ... in accordance with Rule 2-12.4, we may consider it abandoned”).

For purposes of this appeal, however, assuming that Executive Property is covered under AEIC’s policy as an additional insured, the Employer’s Liability exclusion bars coverage for the claims against it in this lawsuit. The insuring agreement of the policy provides that AEIC will pay those sums which the insured becomes legally obligated to pay as damages because of ‘bodily injury5 or property damage’ to which [the] insurance applies. However, it excludes coverage under the “Employer’s Liability” exclusion, which provides, in pertinent part, that the insurance does not apply to “bodily injury” to:

(1) An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s business.
⅝ ⅝ ⅜: ⅜ ⅜ ⅜
| flThis exclusion applies:
(1) Whether the “insured” may be liable as an employer or in any other capacity!;.]

Cases which have considered the exclusion at issue have consistently found it to be clear and unambiguous. See, e.g., Jones v. Thomas, 557 So.2d 1015 (La.App. 4 Cir.1990); Franklin v. J.A. Jones Const. Co., 391 So.2d 1321 (La.App. 4 Cir.1980); Butterfield v. C & M Const. Co., 96-225 (La.App. 3 Cir. 6/5/96), 676 So.2d 659; Vargas v. Daniell Battery Mfg. Co., Inc., 93-2282 (La.App. 1 Cir. 12/29/94), 648 So.2d 1103. We agree that the exclusion is clear and unambiguous. As the decedent was admittedly performing work in the course and scope of his employment, we find that the exclusion bars coverage under AEIC’s policy for the claims asserted against Executive Property.

Plaintiffs contend that the exclusion requires two findings-that the event occurred in the course of the employment or performance of duties related to the employment, and that the event arise out of the employment or employment-related duties. They then maintain that “the refusal to take [the decedent] to the hospital was not an employment-related decision” and as such, the Employer’s Liability exclusion does not apply. Plaintiffs’ contentions are misplaced.

As we noted in Jones, which considered an identical exclusion and also an exclusion for any “obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation” law:

An understanding of the policy in the common ordinary sense supports a finding that the language “to bodily injury to any employee of the insured arising out\mof and in the course of his employment by the insured ...” means any bodily injury whether as a result of negligence or an intentional tort by a third party or a co-employee.
The purpose of a comprehensive general liability policy is to provide coverage for injuries to third persons only-this being the very reason for the exclusions.

Id., 557 So.2d at 1019 (emphasis supplied). Thus, the Jones Court found that the exclusions barred coverage for an altercation between two employees which resulted in injury to one of the employees.

Likewise, in Bryant v. Motwani, 96-1351 (La.App. 4 Cir. 10/30/96), 683 So.2d 880, this Court considered whether an employer’s liability exclusion barred coverage for claims of an employee who alleged that the defendant accused her of theft and verbally abused her, causing her to suffer physical and emotional distress (the opinion does not specify the defendant’s employment position). The defendant was a named insured of a commercial general liability policy which provided coverage for employees except for “bodily injury or personal injury to another employee of the named insured arising out of or in the course of his employment.” Id. at 882. In affirming the trial court’s summary judgment in favor of the insured, this Court found that “[u]nder the plain language of the policy, no coverage is provided for injuries received during the course of employment. The exclusionary clauses contained in the ... policy are not unusual, and summary judgments in favor of insurers have been granted in cases involving similar exclusions.”

Similarly, in Vargas, plaintiff field suit against his employer and its executive officers for injuries related to allegedly intentional lead exposure. The employer’s insurance policy had an employer’s liability exclusion virtually identical to AEIC’s exclusion. The First Circuit, finding that the trial court Incorrectly granted summary judgment to the insurer, noted no ambiguity in the language of the exclusion and found that it barred “any bodily injury whether as a result of negligence or an intentional tort by a third party or a co-employee.” Vargas, 648 So.2d at 1107. See also Davis v. Oilfield Scrap and Equipment Co., Inc., 503 So.2d 674, 676 (La.App. 3 Cir.1987), (the employer’s liability exclusion “denies the employer coverage for bodily injury to an employee arising out of and in the course of his employment with the employer. The intent of this provision is to extend the exclusion from coverage under the policy to all employees who suffer work related injuries, including those not covered under the worker’s compensation statutes. This provision is not ambiguous.”).

Here, there is no issue that the decedent’s alleged injury arose out of and in the course of his employment with Executive Property. As we found in Jones, whether the alleged injury resulted from “negligence or an intentional tort by a third party or a co-employee,” the Employer’s Liability exclusion bars coverage for the claims against Executive Property under AEIC’s policy. We find no merit to plaintiffs’ assertion that the Employer’s Liability exclusion does not apply because the act of refusing to timely bring the decedent to the hospital falls outside the scope of the employees’ employment-related duties.

We also find no merit in plaintiffs’ contention that the Employer’s Liability exclusion is inapplicable because of the parties’ consent to a dismissal of the worker’s compensation proceeding on the grounds that the decedent’s injury is not covered by the Louisiana Worker’s Compensation laws. Plaintiffs maintain that where there is no remedy in Workers’ [sic] Compensation, the employer can be sued under ordinary negligence theory. See, e.g. Hunt v. Milton J. Womack, Inc. |12 616 So.2d 759, 761 (La.App. 1 Cir.1993). (when an injury alleged by a plaintiff “is not ‘one for which he is entitled to compensation under this Chapter,’ the exclusive remedy provisions of the worker’s compensation act do not apply, and the plaintiff may have a cause of action in tort”)(emphasis added).

The issue of whether plaintiffs have a remedy under an “ordinary negligence” theory is not before this Court; no motion for summary judgment was filed as to plaintiffs’ claims against Executive Property. The only motion at issue pertains strictly to the claims against AEIC, as the alleged insurer of Executive Property (and Lake Forest). Whether plaintiffs have a viable tort claim against Executive Property has no bearing on the coverage issues raised by AEIC in its Motion, including the issue of the Employer’s Liability exclusion. We therefore express no opinion as to plaintiffs’ claims against Executive Property or whether it can be sued under an “ordinary negligence theory.” We simply conclude that the Employer’s Liability exclusion operates to bar plaintiffs’ claims against AEIC, as Executive Property’s alleged insurer.

Claims against AEIC as the insurer of Lake Forest

In granting summary judgment to AEIC as the insurer of Lake Forest, the trial court made two findings: (1) that Lake Forest owed no duty to an employee of its lessor, and (2) that “the injuries alleged in the petition did not arise out of any defect or negligence of the landowner.” We agree that summary judgment was properly granted in AEIC’s favor as Lake Forest’s insurer, but for reasons other than those set forth by the trial court.

11sThe only allegations against Lake Forest arise out of its employees’ alleged negligence in failing to timely bring the decedent to the hospital for medical treatment. There are no allegations that Lake Forest’s property was otherwise defective or caused injury to the decedent. Thus, the trial court need not have addressed whether the “decedent’s injuries were caused by a defect ... of the landowner.”

As to the trial court’s finding that the decedent’s injuries “did not arise out of any ... negligence” on Lake Forest’s part, we agree that the record does not substantiate a claim of negligence against Lake Forest and, as such, AEIC, as Lake Forest’s insurer, is entitled to summary judgment. The Petition for Damages generally alleges that the decedent was brought “to the office of Executive Property” where officers and employees of both Executive Property and Lake Forest failed to bring the decedent to the hospital. In their discovery responses (provided on May 16, 2011, nine years after suit was filed), however, when asked to identify “each employee of Lake Forest who had any involvement whatsoever in the August 24, 2001 incident,” plaintiffs responded:

Plaintiffs believe the employees involved in this incident were employees of Executive Property Management Co.

Because plaintiffs’ discovery responses clearly establish no involvement by any Lake Forest employee in the incident, it follows that there can be no liability on Lake Forest’s part, nor coverage under AEIC’s policy. Based on the record before us, plaintiffs have failed to establish facts which would trigger coverage under AEIC’s policy. As previously noted, the insuring agreement of the policy states that AEIC will pay those sums which the insured becomes legally obligated to pay as damages because of ‘bodily injury' or property damage’ to which [the] 1 Uinsurance applies (emphasis added). The insuring agreement further provides that the insurance applies to “ ‘bodily injury’ or ‘property damage’ caused by an occurrence’ that takes place in the coverage territory’ ” and “occurs during the policy period.”

Pretermitting whether plaintiffs have sufficiently alleged facts which fall within the policy’s definition of an “occurrence,” it is clear that AEIC’s policy only provides coverage to those identified by the policy as an “insured.” For Lake Forest, a limited liability company, the policy defines an insured to include the limited liability company, its members “with respect to the conduct of [its] business,” its managers “with respect to their duties as [its] managers,” its “employees ... for acts within the scope of their employment ... or while performing duties related to the conduct of [its] business.”

Again, the only allegations in this matter pertain to the alleged failure to transport the decedent to the hospital or otherwise timely obtain medical treatment for him. Plaintiffs’ discovery responses clearly reflect that no Lake Forest member, manager or employee was involved in any decision concerning the decedent’s care. Necessarily, therefore, no “insured” has been identified for which coverage under the AEIC policy would potentially be triggered. Accordingly, we find that there is no coverage for plaintiffs’ claims against AEIC, as Lake Forest’s insurer, and AEIC is entitled to summary judgment.

Summary Judgment Dismissal of Lake Forest

Lastly, we address whether the trial court erred in dismissing Lake Forest from this action. The trial court’s judgment expressly states that “AEIC’s Motion 11sfor Summary Judgment is GRANTED in favor of Lake Forest ... as the landowner.” While we recognize that Lake Forest may ultimately prevail in a summary judgment motion, the record reflects that the only party to the Motion for Summary Judgment before this Court is AEIC. Lake Forest was not a party to that Motion and did not file a motion on its own behalf.

We agree with AEIC that its liability is dependent on the liability of its insured, and we recognize plaintiffs’ right to sue AEIC directly under the Direct Action Statute. However, neither of these points circumvents the rule that a trial court may grant summary judgment only in favor of the party who moved for summary judgment.

First, La. C.C.Pr. art. 966(B)(2) provides that summary judgment “shall be rendered forthwith” when “there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law” (emphasis added).

Second, our jurisprudence indicates that a trial court “does not have the discretion to grant a motion for summary judgment for a nonmoving party.” Bravo v. Borden, 08-323, p. 8 (La.App. 5 Cir. 11/25/08), 3 So.3d 505, 510, citing Stell v. Louisiana Department of Public Safety, 499 So.2d 1211, 1212 (La.App. 5 Cir.1986). In Bravo, even where the nonmoving party verbally joined in a codefendant’s motion for summary judgment at the hearing, the court found the dismissal of that party to be improper. Similarly, in Cornelius v. Housing Authority of New Orleans, 539 So.2d 1250 (La.App. 4 Cir.1989), this Court found error in a trial court’s granting summary judgment in favor of parties who had not moved for summary judgment.

| 1fi Accordingly, in this matter, because Lake Forest did not move for summary judgment, the trial court was without authority to dismiss it from this case.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment dismissing AEIC is affirmed. We reverse, however, the trial court’s dismissal of Lake Forest and remand this matter to the trial court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART.

      . The correct name of Lake Forest is Lake Forest Plaza, LLC, as reflected in plaintiffs’? third amending petition.

      . The record reflects that, in connection with a workers’ compensation claim, plaintiffs, Executive Property, Lake Forest and Casualty Reciprocal Exchange (not a party in this lawsuit) entered into a Consent Judgment dated February 3, 2004, by which the parties agrees that the "perivascular injury” sustained by plaintiffs’ father was not a personal injury by accident arising out of and in the course and scope of employment ... and is not compen-sable under the Louisiana Workers’ Compensation Law.

      . The record does not reflect that plaintiffs’? Motion for Summary Judgment was has heard or ruled on.

      . The record reflects that AEIC filed a Notice of Intent to File Application for Supervisory Writs concerning the trial court’s June 21, 2012 judgment; however, it does not appear that a writ was filed with this Court.

      . The trial court’s judgment reflects that the parties consented to a finding that "Intentional Acts” are excluded by the policy. Neither party has raised this finding in this appeal.

      . We note that plaintiffs appealed both the June 21, 2012 and the October 9, 2012 judgments in a Motion to Appeal filed on November 26, 2012. Because AEIC and plaintiffs timely filed motions for new trial after the June 21, 2012 judgment was rendered and it was vacated by the October 9, 2012 judgment, only the latter judgment is at issue in this appeal.

      . We note that "a memorandum, opposition or brief is not a pleading, and therefore, raising the issue in a memorandum is not the equivalent of raising the issue in an actual pleading or motion.” Perez v. Evenstar, Inc., 12-0941, p. 13 (La.App. 4 Cir. 1/30/13), 108 So.3d 898, 906, quoting Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1552, p. 12 (La.App. 1 Cir. 10/4/11), 77 So.3d 339, 348, writ denied, 11-2468 (La. 1/13/12), 77 So.3d 972.

      . The AEIC policy in this case, too, contains a similar "Workers’ Compensation And Similar Laws” exclusion which excludes coverage for "[a]ny obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.”

      . In this regard, the trial court’s judgment extends to AEIC as its insurance policy would be triggered only if there is liability of its insured.

      . The policy defines an "occurrence” as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    Danilo SABILLON v. MAX SPECIALTY INSURANCE COMPANY d/b/a Alterra Insurance Company, Dupuy Storage and Forwarding Corporation, and Dupuy Storage and Forwarding, L.L.C.
    No. 2013-CA-0513.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2014.

      Jeffrey A. Mitchell, Monica C. Sanchez, Hugo L. Chanez, Mitchell Sanchez, LLC, Metairie, LA, Thomas M. Flanagan, Andy Dupre, Anders F. Holmgren, Flanagan Partners, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Louis C. LaCour, Jr., Adams and Reese, LLP, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| defendants, Dupuy Storage and Forwarding Corporation and Dupuy Storage and Forwarding L.L.C., appeal two trial court judgments: (1) the October 29, 2012 judgment in favor of plaintiff, Danilo Sabil-lon, in the amount of $4,661,333.00, plus judicial interest and costs to be taxed by the trial court from the date of judicial demand until paid, and (2) the January 2, 2013 judgment denying defendants’ motion for new trial, motion for judgment notwithstanding the verdict and, alternatively, motion for remittitur of the damages award. For reasons that follow, we affirm.

On February 3, 2010, the plaintiff, an independent commercial truck driver who was in the business of transporting loads of cargo, arrived with a delivery of cargo at a warehouse owned by Dupuy Storage and Forwarding L.L.C. (hereinafter preferred to as “Dupuy.”) An employee of Dupuy used a forklift to. unload the cargo transported by plaintiff. During the unloading process, the load fell off the forklift and struck a piece of lumber, which became airborne and struck plaintiff in the head, causing severe injuries. Plaintiff was 46 years old at the time of the accident. Plaintiff filed suit against Dupuy and its insurer, Max Specialty Insurance Company, alleging that plaintiffs injuries were caused solely by the negligence of Dupuy and its employee(s).

Following trial, a jury found Dupuy solely at fault for plaintiffs injuries, and awarded plaintiff the following damages, totaling $4,661,333.00:

(1) Physical injury, pain and suffering (past and future) — $1,303,333.00
(2) Mental anguish, pain and suffering (past and future) — $996,667.00
(3) Permanent disability, if any— $670,833.00
(4) Loss of enjoyment of life (past and future) — $862,500.00
(5) Medical expenses (past and future) — $128,000.00
(6) Past lost wages and future loss of earnings/loss of earning capacity— $700,000.00

The trial court adopted the jury verdict, and rendered judgment in favor of plaintiff and against Dupuy and Max Specialty Insurance Company, in the amount of $4,661,333.00, plus judicial interest and costs to be taxed by the court from the date of judicial demand until paid. Dupuy and Max Specialty Insurance Company subsequently filed motions for new trial and for judgment notwithstanding the l3verdict to reduce the damages award, and alternatively, for remittitur of the damages award. The trial court denied those motions, and this appeal followed.

On appeal, Dupuy raises two assignments of error:

(1)The jury manifestly erred in its award of $700,000.00 in past lost wages and future loss of earnings/loss of earning capacity; and
(2)The jury manifestly erred in its award of $3,833,333.00 in general damages.

Dupuy did not appeal the finding that it was 100% at fault for this accident. With regard to the award of $700,000.00 for past lost wages and future loss of earnings/loss of earning capacity, Dupuy argues that the plaintiff is not now, nor is he likely to be in the future, permanently and totally disabled. According to Dupuy, the evidence at trial established that plaintiff returned to work driving a truck a few weeks after the accident, and is able to work in gainful employment at wages equal to or above those he was earning at the time of the accident. Plaintiff responds that the jury did not manifestly err in awarding $700,000.00 in economic damages in light of the medical evidence of plaintiffs ongoing decline and the testimony of experts whom Dupuy stipulated were qualified.

Elizabeth Bauer, who was accepted as an expert in vocational rehabilitation, testified on behalf of plaintiff. She testified that she interviewed plaintiff and did a comprehensive review of the medical records relating to plaintiff, including the reports of two neuropsychologists. After reviewing this information and evaluating plaintiff, Ms. Bauer concluded that plaintiffs skills are specific to driving 18-wheel trucks, and are not transferrable to other types of work. Given |4her additional opinion that plaintiff has no transferrable skills, Ms. Bauer’s opinion is that plaintiff is unemployable. Ms. Bauer noted that plaintiffs 2011 income of $56,123.00 closely coincides with the annual earning rate of $57,100.00 that her research showed could be earned by Louisiana truck drivers. According to Ms. Bauer, plaintiff would have continued to earn that amount but for his injuries sustained in the accident.

Dr. Shael Wolfson, an expert forensic economist who testified on behalf of plaintiff, stated that plaintiff sustained $4,690.00 in lost wages. Dr. Wolfson further testified that assuming the earnings figures stated by Elizabeth Bauer, plaintiffs loss of earning capacity would be $520,967.00 if he worked to the age of 60, or $1,012,028.00 if calculated from the time of trial until the age of 67 when plaintiff would be eligible to receive Social Security benefits.

Dr. Larry Stokes, who was accepted as an expert in the field of vocational rehabilitation, testified on behalf of Dupuy. He stated that he interviewed plaintiff, and reviewed accident and medical records and depositions relating to plaintiff. His opinion is that plaintiff has some transferrable skills, most of which involve driving. Dr. Stokes testified that plaintiff could drive a pickup truck, car or van, and perform sedentary to light duty work, such as being an escort driver, a delivery driver or courier. He also stated that plaintiff could probably perform some jobs that do not involve driving, such as assembly work and janitorial work. Dr. Stokes’ opinion is that plaintiff did not sustain a loss of earning capacity as a result |sof the accident, and can continue to earn wages similar to those earned prior to. the accident.

Kenneth Boudreaux, the expert economist testifying on behalf of Dupuy, testified that given Dr. Stokes’ opinion regarding plaintiff’s employability, plaintiff does not have any loss of earning capacity. However, when asked to use Ms. Bauer’s calculation that plaintiff could earn $57,100.00 per year, Mr. Boudreaux testified that if plaintiff cannot work at all, his present value future lost earnings would total $672,600.00 if plaintiff worked until the age of 60.

Dupuy also points to the testimony of plaintiffs neurologist, Dr. Morteza Shams-nia, who stated that plaintiff can no longer drive an 18-wheel truck, but could drive a car or a pickup truck. But Dr. Shamsnia also said that he is not a vocational rehabilitation expert, and would not make any assessment as to whether or not plaintiffs skills as a driver of an 18-wheel truck were transferrable to other types of employment.

“The jury’s determination of the amount, if any, of an award of damages, including lost earning capacity, is a finding of fact.” Ryan v. Zurich American Ins. Go., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219. “Credibility determinations, including evaluating expert witness testimony, are for the trier of fact.” Jones v. Harris, 04-0965, p. 15 (La.App. 4 Cir. 2/2/05), 896 So.2d 237, 246 (citing Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421). “Such credibility ^determinations are factual findings governed by the well-settled manifest error standard of review.” Id.

Although the jury was presented with conflicting testimony on the issue of plaintiffs loss of future earning capacity, there was a reasonable basis for the jury’s award of $700,000.00 for past lost wages and future loss of earnings/loss of earning capacity. This award was not manifestly erroneous.

Dupuy next argues that the jury erred in its award of $3,833,333.00 in general damages. Plaintiff was awarded this amount for damages including physical and mental pain and suffering (past and future), permanent disability and loss of enjoyment of life (past and future).

In Williams v. Stewart, 10-0457 (La. App. 4 Cir. 9/22/10), 46 So.3d 266, this Court summarized the law regarding an appellate court’s review of an award of general damages as follows:

A trial court has great discretion when assessing damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In reviewing a general damage award, the first inquiry is “whether the particular effects of the particular injuries to the particular plaintiff are such that there has been an abuse of the ‘much discretion’ vested in the judge or jury.” Joseph v. City of New Orleans, 02-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420 (quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 14.14 (1999)). The standard of review for abuse of discretion in awarding general damages is “difficult to express and is necessarily non-specific.” Cone v. National Emergency Services, Inc., 99-0934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089. Only when the award, in either direction, is beyond that which a reasonable trier of fact could assess for effects of a particular injury to a particular plaintiff under particular circumstances, should an appellate court increase or reduce award. Coco v. Winston Industries, Inc., 34 |7 So.2d 332 (La.1977). In the Youn case, which is the seminal case on this standard, the Louisiana Supreme Court articulated the standard as follows: “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Youn, 623 So.2d at 1261.

Id., pp. 22-23, 46 So.3d at 280.

The record reflects that plaintiff worked as an independent contractor truck driver. The owner of a trucking company for whom plaintiff frequently worked described plaintiff as very dependable before the accident. Following the accident, plaintiff continued to drive 18-wheelers for this same trucking company for a brief period of time, but the owner of the company stated that plaintiff got lost on several trips, failed to properly secure his loads, and failed to complete his logbooks, things that plaintiff had never done prior to the accident. Based on these incidents, the owner of the trucking company decided to no longer employ plaintiff.

Plaintiff testified that since the accident, he has had a buzzing sound in his head that he hears at all times when he is awake. His neck feels like it is broken, which causes him to have difficulty sleeping. He has pain from the base of his neck all the way down the entire length of his back, and this pain is getting worse over time. He developed vision problems since the accident. He has suffered from memory loss. His injuries have adversely affected his relationships with his partner and children. Plaintiffs partner corroborated plaintiffs testimony.

Dr. William Alden, an expert in internal medicine, occupational medicine, sports medicine, physical medicine and rehabilitation, testified that he began treating plaintiff shortly after the accident. On plaintiffs first visit, less than a week after the accident, Dr. Alden’s clinical impression was that plaintiff suffered Ra head injury with loss of consciousness, post traumatic headaches, cervical, thoracic and lumbar pain, facial laceration and left-sided shoulder pain. An MRI performed on plaintiffs lumbar and cervical spine revealed a bulging disc at C5-C6 and a bulging disc at C4-C5 with a tear in the bulge. The MRI also revealed some facet arthrosis, which Dr. Alden described as inflammation in the small joints next to the herniation. The MRI of the lumbar spine revealed a bulging at L3-L4 and a herniation at L4-L5. Dr. Alden related all of these conditions to the February 3, 2010 accident. Based on the results of the MRI, Dr. Alden advised plaintiff to consult an orthopedist or a neurologist because of Dr. Alden’s opinion that plaintiff was a surgical candidate.

Dr. Lawrence Glorioso, an expert in neuroradiology, diagnostic radiology, radi-ologic pathology, and vascular and inter-ventional radiology, testified that he interpreted cervical, lumbar and brain MRIs performed on plaintiff. He stated that because the plaintiff still had significant neck pain at trial — over two years after the accident — the pain will not resolve without surgery. Dr. Glorioso also stated that plaintiff is a surgical candidate for the herniation at L4-L5, and such surgery could alleviate his pain in that area. Dr. Glorioso compared a CT scan taken of plaintiffs brain on the date of the accident with an MRI taken of the brain almost two years later in December 2011. That MRI was the first one taken of the plaintiffs brain after the accident, and was ordered by Dr. Frank Johnston, whose testimony is summarized below. Dr. Glorioso testified that while the CT scan was essentially normal with regard to the brain (the scan did show that plaintiff suffered an acute nasal fracture,) the MRI of the brain taken almost two years later showed a significant level of brain atrophy and scarring consistent with what is known as coup con-trecoup injury. He testified that this condition is associated with a closed-jhead9 injury, and that brain atrophy is a gradual process. A second MRI of plaintiff’s brain that was taken four months after the first MRI showed that plaintiff’s clinical symptoms had gotten progressively worse. Dr. Glorioso described plaintiffs traumatic brain injury as a permanent problem, which usually gets worse for most people with this type of condition. He said the brain atrophy being experienced by plaintiff explains his memory problems. He further stated that there is currently no surgical procedure available to correct this type of traumatic brain injury.

Dr. Frank Johnston, an expert in orthopedics, testified that he first treated plaintiff in December 2010. After examining plaintiff and reviewing the lumbar and cervical spine MRI results, Dr. Johnston concluded that plaintiff had post-traumatic carpal tunnel syndrome, neck discomfort as a result of an annular tear and bulging disc in his neck and a disc herniation in his low back. He related all of these problems to the accident. Dr. Johnston recommended the MRI of the brain that plaintiff had in December 2011 based on plaintiffs complaints of dizziness, blurred vision, light-headedness and a persistent humming/buzzing noise in his head. Dr. Johnston agreed with Dr. Glorioso’s interpretation of the MRIs. Dr. Johnston testified that he does not perform spinal surgery. He recommended that plaintiff have epidural steroid injections, and if those did not provide pain relief, he could then consult a surgeon to discuss his surgical options.

Dr. Susan Andrews, an expert in the field of neuropsychology, testified that she evaluated plaintiff in May 2012, and reviewed the report of the neuropsychologist retained by Dupuy to evaluate plaintiff. Based on her testing and evaluation, Dr. Andrews determined that plaintiffs IQ has dropped 25 points since the accident. Testing also showed that plaintiffs sense of smell has been |inimpaired. Dr. Andrews’ impressions of plaintiff are that he has cognitive deficits that are consistent with damage to the brain, and an adjustment disorder with some depression because of the chronic pain and the fact that he was having difficulty doing his job. She gave him a diagnosis of borderline intellectual functioning. Her opinion is that these impairments are related to his coup con-trecoup injury that has caused permanent brain damage. She said plaintiffs condition will probably get worse over time, likely resulting in early dementia, which could require 24 hour a day care if it progresses to a certain point.

Dr. Morteza Shamsnia, an expert in neurology and psychiatry, electro diagnostic medicine, clinical neuropsychology and sleep medicine, first treated plaintiff in April 2012 for neurological complaints. Those complaints included vision changes, neck pain, low back pain, unusual noises in his head and memory loss. After viewing the brain MRI taken in 2011, Dr. Shams-nia noted abnormalities and ordered another brain MRI. At Dr. Shamsnia’s recommendation, plaintiff underwent EMG and nerve conduction studies. The results of those studies indicated carpal tunnel syndrome and a pinched/damaged nerve in his neck. Dr. Shamsnia reviewed the MRI of the lumbar spine and stated that it showed L4-L5 disc herniation. He also suspected bulging in the L5-S1 area and there was clear evidence that the left L5 nerve root has been pinched and is under pressure. Dr. Shamsnia related plaintiffs pinched nerve in his neck and herniation in his back to the February 2010 accident. His opinion is that plaintiff will need neck surgery. Dr. Shamsnia stated that the CT scan taken of plaintiffs brain on the day of the accident showed no atrophy, which indicates he had no preexisting condition that would account for the atrophy that appeared on subsequent MRIs. He testified that the 2011 MRI showed atrophy that was not |npresent in the 2010 CT scan, and the 2012 MRI showed that the atrophy had worsened since the 2011 MRI. The brain MRIs also showed gliosis, or scarring. Both MRIs showed coup contre-coup brain injury as well. Dr. Shamsnia testified that plaintiffs brain atrophy will probably get worse, but will not get better. Stated another way, he said that plaintiff has permanent, lifelong brain damage from his coup contrecoup injury.

Dupuy presented the testimony of Dr. John Allen Davis, Jr., an expert in orthopedic medicine and surgery. Dr. Davis performed an independent medical evaluation of plaintiff. He reviewed the medical records, test results and depositions, and examined plaintiff. His opinion is that plaintiffs disc problems that appeared on diagnostic tests are the result of degenerative changes that are not uncommon for a man his age. He disagreed with Dr. Glori-oso’s opinion that plaintiff has a herniation at L4-L5. Dr. Davis does not believe that the neck and back pain being experienced by plaintiff is related to the accident. He further stated that the carpal tunnel syndrome seen in plaintiff was probably related to his occupation, but was not related to the accident. Dr. Davis would not recommend surgery for plaintiff, but would recommend injections for his disc problems. In his opinion, the MRI and imaging studies performed on plaintiff did not show significant trauma.

Dr. Kevin Greve, an expert in the field of clinical neuropsychology, also testified on behalf of Dupuy. He performed a neu-ropsychological evaluation of plaintiff, and reviewed his medical records, including the report from neuropsychologist, Dr. Susan Andrews. He said he could not ascertain from the records if plaintiff actually lost consciousness after the accident, but the records do indicate that he sustained a concussion. Dr. Greve concluded that while plaintiff |12was not malingering, the physical and mental issues he continued to have at the time of trial, demonstrated problems with concentration, depression and slowed mental speed. He stated that he does not believe that these mild, nonspecific symptoms are still related to the accident at this point.

On cross-examination, Dr. Greve conceded that plaintiffs psychological state, his physical symptom presentation, and attention/concentration problems probably are related to the accident. He also agreed that plaintiff sustained a mild traumatic brain injury from this accident. He also agreed that physical signs like dizziness, vision disturbance, and buzzing sounds in the head can be physical manifestations of a traumatic brain injury. Dr. Greve admitted that brain atrophy takes time to develop following an injury. He estimated plaintiffs pre-accident IQ could have been as high as 82, and was currently around 65.

Given the evidence presented, and applying the standard set forth in Youn v. Maritime Overseas Corp., supra, we cannot conclude that the trier of fact abused its vast discretion in its general damages award to plaintiff. Dupuy’s argument that the amount awarded to plaintiff for general damages was excessive is based on evidence supporting its contention that the injuries suffered by plaintiff in the accident were much less serious than those alleged by plaintiff. However, the record also contains ample evidence in support of plaintiffs claim that the injuries he suffered in the February 2010 accident have significantly damaged his life, causing him ongoing physical and mental pain and suffering, loss of enjoyment of life and permanent disability. Even though Dupuy offered evidence that conflicted with the evidence presented by plaintiff, there was a reasonable basis in the record to support the general damages award in this case. Therefore, we find it unnecessary to resort to a review of damage awards made in other cases. See |13 Williams, 10-0457, p. 23, 46 So.3d at 281 (citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993) (where the court held that after an appellate court determines that the fact-finder abused its discretion, it can then review prior awards to determine the appropriate modification of the award)).

For the reasons stated above, the trial court judgments of October 29, 2012 and January 2, 2013 are affirmed.

AFFIRMED.

      . Defendant Max Specialty Insurance Company was also cast in judgment with Dupuy Storage and Forwarding Corporation and Du-puy Storage and Forwarding L.L.C., and joined in the motion for appeal. However, following the order granting a suspensive appeal to all three defendants, Max Specialty reached a settlement with plaintiff, and plaintiff entered into a joint motion with Max Specialty to dismiss Max Specialty from the litigation with prejudice. The order dismissing Max Specialty Insurance Company with prejudice was signed on January 31, 2013.

      . Dupuy Storage and Forwarding L.L.C. is the successor entity to Dupuy Storage and Forwarding Corporation. Both entities were named as defendants in this lawsuit.


text:
    STATE of Louisiana v. Ronald WARNER.
    Nos. 2013-KA-0168, 2013-K-1316.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

Lin this consolidated matter, the defendant, Ronald Warner, appeals his convictions and sentences for possession with the intent to distribute heroin and possession with the intent to distribute cocaine. For the reasons that follow, we affirm Warner’s convictions and sentences.

The State of Louisiana charged Warner with one count each of aggravated battery (La. R.S. 14:34); being a convicted felon in possession of a firearm (La. R.S. 14:95.1); possession with the intent to distribute heroin (La. R.S. 40:966A); and possession with the intent to distribute cocaine (La. R.S. 40:967a). He pled not guilty. Prior to the trial, Warner moved to sever the battery and firearm counts from the drug counts. The trial court denied the motion as to the battery count but granted it as to the firearm count. Trial was held as to the battery and drug counts, at the conclusion of which a twelve-person jury found him guilty of second degree 12batter,y (La. R.S. 14:34.1) and guilty as charged as to the drug counts. Warner filed a motion for new trial, which the trial court denied. The State also filed a multiple bill as to the drug counts, alleging that Warner was a fourth felony offender. After a hearing on the bill, the trial court found him to be a fourth offender. The trial court sentenced Warner as a first offender on the battery count to serve five years at hard labor. It sentenced him to serve fifty years at hard labor as a fourth offender for the heroin conviction and to serve thirty years at hard labor as a fourth offender for the cocaine conviction, the sentences to be served concurrently. Warner appealed.

This court subsequently remanded the case to the trial court for consideration of Warner’s second motion for new trial. On August 15, 2013, the trial court granted the motion for new trial as to the battery count but denied it as to the drug counts. Counsel objected and noted his intent to seek writs, which he filed in State v. War ner, 2013-K-1316. By order of this Court, Warner’s writ and appeal were consolidated. In the meantime, the State nolle pro-sequied, the battery and firearm counts.

Although the trial court granted the motion for new trial as to the battery count, and the State subsequently nolle prose-quied this count, evidence concerning this count was adduced at trial. Warner’s argument with respect to his motion to sever alleges prejudice with respect to the drug counts because they were tried at the same time before the same jury as the battery count. Thus, the following fact | ^summary includes evidence adduced as to the battery count as well as the drug counts.

With respect to the battery count, Detective Tariisha Sykes testified that she investigated the battery by shooting of Ronald Burton that occurred late on the morning of July 11, 2011 at the corner of France Road and N. Villere Street. , Although Det. Sykes did not respond to the scene, she testified that officers responding to the call of the shooting found Burton, who had been shot in the leg. The responding officers indicated that Burton identified the shooter as “Rilo,” whom he had known for several years. Det. Sykes interviewed Burton that evening, after he had been released from the hospital, and based upon what he told her, she compiled a photographic lineup that contained Warner’s photo. She showed the lineup to Burton, who identified Warner as the person who shot him. Det. Sykes insisted that the identification was not the product of any force, coercion, threats, or promises, nor did she indicate what photograph' he should choose. She stated that Burton told her that he knew the shooter because he had purchased heroin from him in the past, and he owed the shooter $15.00 for heroin at the time of the shooting. The State played an audio cassette of the identification. Based upon the identification, Det. Sykes obtained an arrest warrant for Warner.

On cross-examination, Det. Sykes testified that the investigating officers found neither blood at the scene nor any witnesses who saw a green vehicle in which the shooter allegedly fled. She described Burton as calm, and he did not appear to be under the influence of any drugs. She testified that the police learned |4that the shooter fled in a green vehicle driven by a heavyset, light skin African-American woman, but they had no leads as to her identity.

Burton appeared at trial in a prison uniform and denied that Warner was the man who shot him. He admitted that he was awaiting trial on a charge of burglarizing his mother’s home, that he had prior convictions for possession of cocaine in 1988 and for being a convicted felon in possession of a firearm in 1992, and that he used heroin in July 2011. He stated that he knew Warner for more than fifteen years, but he never purchased heroin from Warner, nor did he owe him any money. He admitted that he may have told people these facts, but he stated that he did so in anger.

Burton testified that he got shot on July 11, 2011, while standing outside a small grocery store at the corner of France Road and N. Villere Street. He testified that as he left the store, someone fired multiple shots at him, hitting his leg. Burton claimed that he did not recall telling anyone that Warner shot him, and if he did so, he was wrong. He stated that he knew many men named “Rilo,” and he did not remember a green vehicle at the scene. He insisted that the gunman walked up to him from around the corner and shot him from a distance of thirty to forty yards. He stated that he ran after being shot, and when police officers arrived, they thought he had shot himself and asked where he had put the gun. Burton testified that he remained at the hospital for five or six hours, and he stated that he had used heroin on that day. He insisted that he was woozy when he was at the police station, and he did not remember what he told the police. He acknowledged that he [schose someone from the lineup, but he reiterated that he made the identification in anger. He admitted that when he gets out of jail, he will return to the same neighborhood where Warner lives. He averred that he wanted to testify at trial so that he could say that Warner did not shoot him.

With respect to the drug counts, Detective Willard Pearson testified that on August 9, 2011, he executed a search warrant at 1932 Gallier Street. The officers had obtained the warrant pursuant to an investigation, the target of which was Warner. Det. Pearson testified that on that date, he set up a pre-execution surveillance and saw Warner sitting on the porch of the double at that address. After about ten minutes, he saw Warner receive a call on his cell phone, leave the porch, and meet a pickup truck that had pulled up to the residence. Det. Pearson saw Warner reach into the pickup truck with his clenched fist and hand the passenger an unknown object. The pickup truck drove off, and Warner then went inside the residence. Although Det. Pearson asked other officers to stop the truck, they were unable to do so.

Det. Pearson called for other officers to come to the residence to execute the warrant, but before they could do so, Warner exited the residence and left the scene. Det. Pearson testified that he radioed other officers to stop Warner, and then he saw an African-American female leave the residence through a long window that was next to the front door, which was closed and barred. The officers stopped her, and by that time Warner was returned to the residence by the officers who stopped him. Warner indicated that his girlfriend and his daughter were Rinside the residence. While officers detained Warner outside, Det. Pearson and other officers entered the residence through the side window. Det. Pearson testified that there was no furniture in the first two rooms, but he looked up and saw something sticking out of one of the light fixtures. He retrieved the item, which was a clear plastic bag containing rice, plus individual pieces of plastic bags containing brown powder or off-white rock-like substances. The remaining rooms included a bedroom with both men’s and woman’s clothing, a child’s bedroom, and a kitchen. The officers found a box of sandwich bags and a scale in the kitchen, as well as a box of razor blades. The officers also found an Enter-gy bill in the name of Maria Lewis and a hospital bill in Ms. Lewis’ name. They obtained a lease in Ms. Lewis’ name from the owner of the double, who lived next door. In the child’s room, they found a five-year-old girl.

On cross-examination, Det. Pearson testified that he did not see an exchange of money for the object that Warner gave the person in the pickup truck, nor could he see the people inside the truck or the license plate number of the truck. He also testified that the officers found no money, guns, or drugs on Warner’s person, nor were there guns or money inside the house. He stated that he knew of no statements that Warner made concerning the drugs found inside the residence. On redirect, Det. Pearson testified that Ms. Lewis was not the target of the investigation. He stated that when the officers ran Warner’s name in the NCIC computer, they pulled up his arrest warrant for aggravated battery by shooting.

17Petective Benja Johnson testified that he and his partner stopped Warner near the corner of Desire and N. Galvez Streets, approximately a block from the Gallier Street residence. His partner advised Warner of his rights and that they had a search warrant for his residence. Det. Johnson stated that a relative who was in the car with Warner when he was stopped called his girlfriend. Once they returned Warner to the residence, Warner indicated that his girlfriend and his daughter were locked inside. Det. Johnson testified that he remained outside with Warner while other officers executed the search warrant.

Criminalist Corey Hall, qualified as an expert in testing and analysis of controlled dangerous substances, tested four of the ten small bags containing brown powder and four of the eleven small bags containing the off-white rock objects. He testified that the brown powder tested positive for heroin, and the rocks tested positive for cocaine.

Louis Russo, an assistant district attorney, interviewed Burton as a part of his duties in screening the case. He testified that Burton told him that Warner, whom he had known for a long time and who was his heroin dealer, was the person who shot him. Russo stated that Burton told him that Warner shot him over a $15.00 drug debt. Burton told him that Warner drove up in a green truck, got out, spoke with him, and then re-entered the truck. Burton said that the truck went around the corner, and when it reappeared, Warner exited once again, shot Burton, and then sped off. Russo described Burton as very cooperative during the interview. On cross-examination, Russo stated that he interviewed Burton while |8Burton was at work because he was unable to contact Burton by phone and insisted that Burton was very clear that Warner shot him.

The State recalled Det. Sykes, who reiterated that Burton told her that he had purchased drugs from Warner the week before and owed Warner $15. She also reiterated that Burton positively identified Warner in the lineup, and he never told her that the shooter was anyone other than Warner. On cross-examination, Det. Sykes stated that Burton told her that Warner walked up and shot him; he did not mention any conversation between him and Warner. She also stated that Burton was not under the influence of any drugs when she interviewed him.

A review of the record reveals two patent errors as to the sentences that the trial court imposed on the two drug charges. La. R.S. 40:966B(1), the applicable sentencing statute for possession with the intent to distribute heroin, provides that at least five years of the sentence shall be served without benefit of probation, or suspension of sentence. Similarly, La. R.S. 40:967B(3)(b), the sentencing statute for possession with the intent to distribute cocaine when the State proves a minor child was present in the home at the time of the offense, mandates that a minimum of fifteen years shall be served without the benefit of parole, probation or suspension of sentence. The court here failed to include these restrictions on either sentence. However, as per La. R.S. 15:301.1A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the trial court’s failure to delineate them. Thus, there is no need for this court to correct the sentences. See |9 State v. Barnes, 2011-1421, p. 9 (La.App. 4 Cir. 9/19/12), 100 So.3d 926, 933; State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675. Thus, this court need not take any action to correct this error.

There are no other patent errors.

In his sole assignment of error raised in his appeal, Warner contends that the trial court erred by denying his motion to sever the battery count from the drug counts. He asserts that the court failed to consider whether the jury may have been confused by the State trying the drug counts with the battery count; whether the jury would be able to segregate the evidence concerning the battery count from that concerning the drug counts; whether he would be confounded in presenting defenses to the various counts; whether the jury would infer a criminal disposition on his part from the inclusion of the facts of the battery count; and whether the facts of the battery count made the jury hostile with respect to the drug counts.

In its response, the State initially avers that Warner has failed to preserve this claim because he did not object to the court’s refusal to sever the battery count from the drug counts. The State points out that only the prosecutor objected to the court’s ruling and only to that part that severed the convicted felon in possession of a firearm count from the other three counts, even though the prosecutor offered to sever that count from the other three. However, Warner’s motion sought to sever the battery count from the drug counts, and his counsel argued that both of the counts involving a gun should be severed from the drug counts; thus, although he | indid not formally note his objection to the court’s failure to sever the battery count, we will consider the issue in this appeal.

The joinder of offenses is governed by La.C.Cr.P. art. 493, which provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offense charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

As per La.C.Cr. P. art. 495.1, the court may order a severance of offenses “or provide whatever relief justice requires” if the defendant or the State shows prejudice to the defendant or the State by the join-der of offenses at trial. The Court discussed the standard for reviewing a trial court’s ruling on a motion to sever counts in State v. Deruise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1232:

A motion to sever is addressed to the sound discretion of the trial court, and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. [State v.] Brooks, 541 So.2d [801] at 804 [ (La.1989) ] (citing State v. Williams, 418 So.2d 562, 564 (La.1982)). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Id. (quoting State v. Washington, 386 So.2d 1368, 1371 (La.1980)). However, the fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So.2d |11 26 (La.1973), in a separate trial on the joined offense, does not per se prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So.2d 1012, 1019 (citing State v. Celestine, 452 So.2d 676 (1984)). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Brooks, 541 So.2d at 805.

See also State v. Adams, 2010-1140 (La.App. 4 Cir.6/1/11), 68 So.3d 1165.

Moreover, “[a] defendant bears a heavy burden of proving prejudicial join-der of offenses and he must make a clear showing of prejudice.” State v. Galle, 2011-0930, p. 18 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 928. As this court noted in State v. Carter, 99-2234, pp. 34-35 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145: “Generally, ‘there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime,’ ” Id. (quoting State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990)).

In Galle, the defendants were charged with one count each of possession of a firearm by a convicted felon and attempted second degree murder, and the trial court denied their motion to sever the counts for trial. On appeal, this court rejected their claim that this ruling violated their right to a fair trial by unduly prejudicing them. This court noted that evidence adduced as to each count was clearly distinct, thereby allowing the jury to segregate the offenses and the evidence as to them, and this court rejected the claim that the jury was confused by |12the joinder of the claim. This court also found that the defendants did not show that they were confounded in presenting a defense by the joinder of the charges.

Likewise, this court rejected a claim of prejudicial joinder of offenses in State v. Grimes, 2011-0984 (La.App. 4 Cir. 2/20/13), 109 So.3d 1007, where the defendant sought to sever counts as to one victim from counts as to another victim. This court noted that while the offenses were essentially the same as to each victim (various counts of kidnapping, rape, and other sexual crimes), the evidence of each count was presented in a relatively simple and distinct manner that the jury could keep separate during deliberations. In State v. Cooper, 2012-0174 (La.App. 4 Cir. 7/10/13), 120 So.3d 844, the defendant argued that the trial court erred by denying his motion to sever the counts against him, three armed robbery counts and a count of possession of a stolen vehicle. This court rejected this claim, noting that the armed robbery offenses were similar in nature and occurred within a few days of each other in the same general location of the city at roughly the same time. The stolen vehicle charge was connected to one of the armed robberies. This court also pointed out that the evidence as to each count was presented in an orderly fashion, allowing the jury to segregate the charges and evidence. There was no indication that the defendant was confounded in presenting a defense, and the fact that the jury acquitted the defendant of one of the armed robbery counts showed that the joinder did not render the jury hostile toward him.

This court also rejected the defendant’s severance claim in State v. Lomax, 2009-1129 (La.App. 4 Cir. 3/24/10), 35 So.3d 396, where the defendant was [ ^charged with possession of heroin and being a convicted felon in possession of a firearm. This court noted the orderly and separate presentation of evidence as to the two offenses, and there was no indication of any confusion on the jury’s part. This court rejected his claim that the joinder of the two offenses caused the jury to infer a criminal disposition on his part, given the fact that the jury did not convict him on the firearms count.

In the ease sub judice, Warner contended in his motion to sever that trying the battery and firearm counts with the drug counts would cause the jury to infer a criminal disposition on his part, as well as confuse the jury. At trial, he additionally argued that the offenses should not be tried together because over a month elapsed between the shooting and the drug arrests. He now argues that while the court did not specifically accept the State’s argument that the offenses were res gestae of each other, it failed to determine if joinder of the shooting to the drug offenses would be prejudicial to him. He asserts that the court failed to consider the factors set forth in State v. Washington, 386 So.2d 1368, 1371 (La.1980): would the jury be confused with the joinder; would it be able to segregate the evidence as to each charge; would joinder confound his ability to present defenses; was the join-der being used to infer a criminal disposition on his part; and would the joinder make the jury hostile.

The State presented evidence in an orderly manner and separately as to the shooting and the drug offenses, easily allowing the jury to segregate the offenses and the evidence as to each offense. There was no indication that the jury was confused by the joinder of these counts, nor was there any evidence, nor does Warner argue, that his ability to present a defense was confounded by the joinder of the counts. As in Lomax and Cooper, there also was no showing that the jury 1 uwas hostile to Warner or found that the joinder proved a criminal disposition on his part because although it convicted him as charged in the drug counts, it found him guilty of a lesser included offense with respect to the battery count. Warner did not meet his “heavy burden” of showing prejudice from the joinder; thus, he failed to show that the court abused its great discretion in denying his motion to sever the battery count from the drug counts. This assignment of error has no merit.

In response to the Warner’s motion, this court remanded the case for a determination of his motion for new trial based upon newly-discovered evidence. On remand, the trial court granted the motion as to the battery count, but it denied it as to the drug counts. Warner objected to the denial as to the drug counts and noted his intent to seek writs, which he subsequently filed and which this court consolidated with his appeal. In his consolidated writ, Warner argues that the trial court erred in denying the motion with respect to the drug counts because the withheld evidence was material to the drug counts as well as to the battery count. He further urges this court to adopt the “spillover test” set forth in a few federal cases to find that the trial court erred in its ruling. This claim has no merit.

Prior to sentencing, Warner filed a motion for new trial wherein he alleged that the verdict was contrary to the law and evidence and that the ends of justice would be served by the granting of the motion. La.C.Cr.P. art. 851(1) and (5). The court denied the motion. After sentencing, Warner learned of the existence of an initial incident report wherein Burton indicated that he did not know the identity of the shooter, and he obtained the 911 tape wherein Burton stated that he did not know who shot him. Warner then filed his motion for new trial based upon this | ^newly-discovered evidence, asserting that the State withheld this Brady evidence that was material to his convictions. On remand, the State conceded the issue as to the battery count, but argued it was not material to the drug counts. Defense counsel argued that this evidence also had an impact on the drug counts because if the jury believed that Warner shot Burton over a drug debt, this belief would have affected the jury’s deliberation on the drug counts. The court agreed that this evidence was material to the shooting, and it granted the new trial on that count. However, it found that the shooting and the drug counts were two separate incidents, about which the jury was instructed separately, and this withheld evidence had no impact as to the drug counts. The court then denied a new trial as to the drug counts. Warner argues that this ruling was in error.

Warner’s second motion was filed pursuant to La.C.Cr.P. art. 851(3), which mandates the granting of a new trial whenever “[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during trial, is available, and if the evidence had been introduced at the trial, it would probably have changed the verdict or judgment of guilty.” This court discussed the review of the denial of a motion for new trial based on a claim of newly-discovered evidence in State v. Smith, 2011-0091, pp. 32-33 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 696-697:

In order to obtain a new trial based on newly discovered evidence, a defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. La.C.Cr.P. art. 851(3); State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931; State v. |16 Bright, 98-0398, pp. 25-26 (La.4/11/00), 776 So.2d 1134, 1149. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the impact of newly discovered evidence on the verdict. State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 821. The trial court has much discretion in ruling on a motion for new trial. State v. Bureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321. Review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907.
In State v. Johnson, 2007-2034 (La.10/9/09), 23 So.3d 878, 881, the Louisiana Supreme Court explained that the test to be employed in evaluating whether newly discovered evidence warrants a new trial is not simply whether another trier of fact might render a different verdict, but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial, [footnote omitted] The Johnson court also held that when presented with a motion for a new trial based on newly discovered evidence, the trial judge’s duty is not to weigh the new evidence as though he were a jury determining guilt or innocence, but rather is the narrow duty of ascertaining whether there is new material fit for a new jury’s judgment.

In the case sub judice, the 911 tape and the initial incident report were not produced by the State until after trial. There is no argument that this evidence was exculpatory as to the shooting and should have been produced to Warner pri- or to trial on that count. The issue then is whether this evidence was material to the drug counts as well, mandating that the new trial be granted as to these two counts as well. The Due Process clause of the Fourteenth Amendment requires that the State disclose to the defense evidence that is favorable to the defense and is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Crawford, 2002-2048 (La.App. 4 Cir. 2/12/03), 848 So.2d 615. This requirement includes evidence that impeaches a witness whose credibility or reliability may determine guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. |17 763, 31 L.Ed.2d 104 (1972); State v. Bright, 2002-2793 (La.5/25/04), 875 So.2d 37. Although the State need not disclose its entire file to the defense, it must disclose “evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial, that is, evidence favorable to the defendant which is material to guilt or punishment.” State v. Rosiere, 488 So.2d 965, 970 (La.1986).

The Court in U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985), defined materiality: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability5 is a probability sufficient to undermine confidence in the outcome.” The Court further discussed “materiality” in Kyles v. Whitley, 514 U.S. 419, 434-435, 115 S.Ct. 1555, 1565-1566,131 L.Ed.2d 490 (1995):

Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). ... Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the Government’s evidentiary suppression “undermines confidence in the outcome of the trial.” Bagley, 473 U.S., at 678, 105 S.Ct. at 3381.
The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal | ischarge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpa-tory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

See also State v. Haywood, 2004-2097 (La.App. 4 Cir. 6/15/05), 907 So.2d 168.

Nonetheless, the mere fact that exculpatory evidence is withheld does not automatically entitle a defendant to a new trial. As the Court noted in Bright:

Nevertheless, it is important to note that Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the “omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). For purposes of Brady’s due process rule, a reviewing court determining materiality must ascertain:
not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair tnal, understood as a trial resulting in a verdict woHhy of confidence. [Emphasis supplied.]
Kyles v. Whitley 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). See also, State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So.2d 218, 234. Thus, the reviewing court does not put the withheld evidence to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the “evi-dentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley 473 U.S. at 678, 105 S.Ct. at 3381).

Bright, 2002-2793, p. 6, 875 So.2d at 42.

|1flIn the case sub judice, the evidence that was withheld concerned Burton’s assertion, both to the 911 operator and to the responding officers, that he did not know the man who shot him. All parties agreed that this evidence was material to his conviction for the shooting. Warner now argues that it was also material to his drug convictions because the State’s theory was that he was a drug dealer who shot Burton over a drug debt. He asserts that evidence of the sale of heroin to Burton led the jury to conclude that the heroin and cocaine that were found in the Gallier Street residence belonged to him, although there were no documents that tied him to the residence. He asserts that had the jury heard the 911 tape and read the police report wherein Burton denied knowing who shot him, it probably would not have found that he possessed the heroin and cocaine found in the residence, which was not the same place where the shooting occurred.

However, as noted by the State, at trial Burton denied that Warner shot him or that he owed Warner any money for drugs or had purchased any drugs from him, and Burton insisted that he identified Warner only out of anger for an unspecified reason. Thus, evidence that Burton said that he did not know who shot him would only have been cumulative to Burton’s own testimony. As also noted by the State, the fact that Warner may not have been the person who shot Burton would not preclude him from possessing the drugs found inside the residence almost a month later. Moreover, the evidence adduced as to the drug counts showed that the officer who conducted the pre-execution surveillance of the residence observed Warner engage in what appeared to be a drug transaction from the residence just prior to the execution of the warrant. In addition, Warner had a key to the residence on his person; men’s clothing was found in one of the bedrooms in the residence; and Warner told the officers that his daughter and his 12ogirlfriend were locked inside the residence. Given these factors, we do not find that the introduction of the 911 tape and the incident report, both of which indicated that Burton could not identify his assailant, would have likely changed the jury’s verdict as to the drug counts.

Finally, Warner’s argument that the trial court should have applied the “spillover test” to grant a new trial as to the drug counts also has no merit. This doctrine as set forth in cases such as United States v. Arledge, 553 F.3d 881 (5th Cir.2008), concerns whether evidence that is properly admitted as to some counts at trial but improperly admitted as to others would have prejudiced the defendant as to those counts. He points out that a key factor in applying a “spillover test” is that the counts are closely related and have some degree of overlap with each other. He cites People v. Baghai-Kermani, 84 N.Y.2d 525, 620 N.Y.S.2d 313, 644 N.E.2d 1004 (1994), where the court employed the “spillover test” to determine if the withholding of Brady evidence mandated a new trial as to all counts, or only as to the counts affected by the evidence. However, as noted by the State, the Baghai-Kerma-ni court found that although the defendant was tried and convicted of ten counts of drug sales, he was only entitled to a new trial on the two counts to which the Brady evidence applied, not on all ten counts.

In the case sub judice, the newly-discovered evidence was material only to the battery count; the fact that Warner may not have been the person who shot Burton did not preclude him from possessing the heroin and cocaine inside the residence almost a month later. The other evidence noted above showed his possession of the drugs inside the residence. Thus, the newly-discovered evidence likely would not have changed the jury’s verdicts as to the drug counts, and the trial court did not err by denying the motion for new trial as to those counts.

fyln summary, we find that the trial court did not err by denying Warner’s motion to sever the battery count from the drug counts, nor did it err by denying his motion for new trial as to the drug counts. Accordingly, we affirm Warner’s convictions and sentences.

AFFIRMED.

BELSOME, J., concurs in the result.

      . The bill of information also charged Maria Lewis with possession with the intent to distribute heroin and cocaine. She subsequently pled guilty to the amended charges of possession of heroin and cocaine and received suspended sentences. She is not a party to this appeal.

        . Writ denied, 2012-2251 (La.4/1/13), 110 So.3d 575.

      . Writ denied, 2011-1425 (La.12/16/11), 76 So.3d 1200.

      . Writ denied, 2013-0561 (La.l 1/1/13), 124 So.3d 1107 and 2013-0752 (La.l0/30/13),124 So.3d 1102.

        .Writ denied, 2013-0625 (La. 10/11/13), 123 So.3d 1216.

      . The defendant’s writ from this court's ruling is pending in the Louisiana Supreme Court, 2013-1931.

      . As noted above the State subsequently nolle prosequied the battery count and the severed firearm count.

      . Writ denied, 2012-2069 (La.3/15/13), 109 So.3d 375.


text:
    STATE of Louisiana in the Interest of A.W.
    No. 2013-CA-1198.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2014.
    Tenee Felix, Louisiana Center For Children’s Rights, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr. District Attorney, Donna Andrieu, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|TOn July 24, 2013, the Orleans Parish Juvenile Court adjudicated A.W. delinquent as a result of having committed the crime of simple battery, a violation of La. R.S. 14:35. The Juvenile Court judge committed A.W. to the Department of Safety and Corrections for a period of six (6) months, but suspended the commitment and placed A.W. on six (6) months of inactive probation with certain special conditions. A.W. now appeals the adjudication and disposition.

At trial of this matter, Wallace Foster testified that on April 19, 2013, he was employed as a teacher at Benjamin Banneker Elementary School in New Orleans. A.W. was a seventh grade student in Foster’s physical education class. Foster was on cafeteria duty when A.W. caused a disturbance. Foster asked A.W. to leave the cafeteria, and he refused. Foster called for a security guard, who responded and escorted A.W. to the office. Foster followed A.W. to the office. Words were exchanged between the two, and as Foster moved closer to A.W., A.W. pushed |2him away. Foster said he did not touch A.W. prior to A.W. pushing him in the chest, or at any other time.

Craig Wells testified that he is a public safety officer at Benjamin Banneker Elementary School, and was acting in that capacity on April 19, 2013. He stated that he was a witness to an incident that occurred that day between A.W. and Foster. The incident began in the cafeteria. Wells was summoned to the cafeteria to escort A.W. out of the cafeteria and to the office. This action was requested by Foster because he had told A.W. several times to sit down and stop speaking disrespectfully to him, but A.W. did not follow Foster’s instructions. Foster also went to the office to report A.W. for cursing at him. As Foster was writing his report, A.W. said to him, “I know you didn’t call my momma stupid.” Foster responded to A.W., “No, I didn’t call your momma stupid. I was calling you stupid.” Wells said Foster then jumped up and approached A.W., putting his face close to AW.’s face, and said, “No, I was talking to you.” Wells said that Foster approached A.W. quickly, but never touched A.W. at any time either in the cafeteria or outside of the office. A.W. then pushed Foster away from him. Wells said he then grabbed A.W. and the incident ended.

A.W. testified about the April 19, 2013 incident. He said Foster asked him to sit down in the cafeteria, and he mumbled under his breath as he looked for a seat. He admitted to using profanity. Foster told A.W. to go to the office, and A.W. did not. Foster then called for security. Wells, the security officer, arrived to escort A.W. to the office. Foster followed them to the office, and A.W. asked him |4f he said his mother was stupid. He said Foster then “got into my face,” so close that A.W.’s nose was on Foster’s chest. A.W. said he thought Foster was going to hit him, so he pushed Foster away from him. A.W. admitted that Foster never put his hands on him during this incident or at any other time since he has been a student at that school.

Following trial, the Juvenile Court judge adjudicated A.W. delinquent as a result of having committed the crime of simple battery. A.W. now appeals.

In his sole assignment of error, A.W. argues that the Juvenile Court erred in adjudicating him delinquent after he established by a preponderance of evidence that he acted in self-defense and the State failed to disprove it. La. R.S. 14:35 defines simple battery as “a battery committed without the consent of the victim.”

In State ex rel K.M., 2010-0649, pp. 4-5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463-464, this Court set forth the standard of review in a juvenile delinquency case as follows:

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La.1984). This standard of review is applicable to juvenile delinquency cases. State in the |4 Interest of T.E., 2000-1810 (La.App. 4 Cir. 4/11/01), 787 So.2d 414.

A reviewing court grants great deference to the Juvenile Court’s factual findings, credibility determinations, and assessment of witness testimony. State in Interest of S.J., 2013-1025, p. 3 (La.App. 4 Cir. 11/6/13), 129 So.3d 676, 678, citing State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

With regard to the issue of self-defense, this Court in State v. Boudreaux, 2008-1504 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, stated as follows:

In a non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary. State v. Freeman, 427 So.2d 1161, 1163 (La.1983); State v. Jefferson, 2004-1960, pp. 9-10 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, 587. Under La. R.S. 14:19(A), the force or violence used must be both reasonable “and” apparently necessary to prevent the threatened offense. Therefore, if the force or violence used was unreasonable, the issue of whether that force or violence was apparently necessary to prevent the offense is moot.
In Freeman, the Louisiana Supreme Court noted that there apparently was no Louisiana jurisprudence distinguishing the burdens of persuasion applicable to self-defense in homicide and non-homicide situations. The Court further noted that the burden of persuasion in proving self-defense in a non-homicide situation pursuant to La. R.S. 14:19, which entailed a subjective as well as an objective inquiry, “could arguably be upon the defendant,” since a subjective inquiry was involved. However, the Court in Freeman did not resolve that issue because it found that even assuming the State had the burden of proving beyond a reasonable doubt that the defendant in the non-homicide case had not acted in self-defense when she shot her ex-husband, it had carried its burden of proof.

Id., p. 30, 48 So.3d at 1161 (footnote omitted).

|fiIn State v. Byrd, 2012-0556, p. 3 (La.App. 4 Cir. 6/5/13), 119 So.3d 801, 804, this Court noted that the State’s burden of proof on the issue of self-defense in a non-homicide case is unclear, and may only require proof by a preponderance of the evidence.

In this case, even assuming that the State had the burden of proving beyond a reasonable doubt that A.W. had not acted in self-defense when he committed the battery on Foster, we conclude that the State carried its burden of proof. The testimony at trial revealed a seventh grade student, A.W., cursing and refusing to follow the instructions of a teacher while on school grounds. A.W.’s actions caused Foster to have a security officer escort A.W. from the cafeteria to the office, where a verbal exchange between Foster and A.W. occurred. Both Foster and Wells testified that Foster never touched A.W. at any point during the incident of April 19, 2013, and that the only physical contact that occurred during the incident was when A.W. pushed Foster. Furthermore, the evidence was undisputed that Foster did not threaten A.W. with physical contact at any time during the incident at issue, or at any other time since A.W. has been a student at the school. The Juvenile Court judge evaluated the credibility of the witnesses, and obviously determined that A.W. was not justified in his battery of Foster.

Viewing the evidence in the light most favorable to the prosecution, we conclude that the Juvenile Court could have found that the essential elements of the charged offense were proven beyond a reasonable doubt. For the reasons stated above, we affirm the adjudication of delinquency and disposition against A.W.

AFFIRMED.

BELSOME, J., Dissents with Reasons.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juvenile involved in this matter will be used instead of his name.