author: DREW, J. /s/ [illegible signature] JENIFER WARD CLASON, JUDGE SECOND JUDICIAL DISTRICT COURT

text:
    James A. ROUNTREE, Plaintiff-Appellant v. FORSYTHE HOLDINGS, INC., Defendant-Appellee.
    No. 48,983-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Rountree Law Offices, Monroe, by James A. Rountree, for Appellant.
    Newell & Newell, APLC, by Daniel W. Newell, Homer, for Intervenors-Appellees, G <& Y Still Limited Partnership, John Michael Merritt, and Susan K Merritt.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

| T James A. Rountree seeks relief from a preliminary injunction enjoining the sheriff’s sale of a piece of property owned by G & Y Limited Partnership and John and Susan Merritt and purportedly encumbered by a mortgage in Rountree’s name. We affirm.

FACTS

James Rountree extended credit to Fred Bayles and Joanne Caldwell-Bayles that was secured by property located in Claiborne Parish and owned by Forsythe Holdings, Inc. Joanne Caldwell-Bayles is Forsythe’s president. The mortgage was executed by Fred Bayles and Joanne Caldwell-Bayles on November 7, 2006, and recorded in Claiborne Parish on November 15, 2006, with the property described as:

The NW 1/4 of the SE 1/4 of Section 31, Township 19, Range 7 West, Claiborne Parish, Louisiana.

The mortgage was amended on February 13, 2008, to exclude a tract located in Ouachita Parish. The amendment was signed by Rountree, Fred Bayles, and Joanne Caldwell-Bayles, individually and as agent for Forsythe. The amendment was filed in Claiborne Parish on March 7, 2008.

The mortgage arose out of an earlier case in which Rountree represented Fred Bayles, the owner of ScenicLand Construction Corporation. ScenicLand brought suit against St. Francis Medical Center in Ruston alleging that the medical center defaulted on a contract to renovate patient rooms. ScenicLand Const Co., LLC v. St Francis Med. Ctr., Inc., 41,147 (La.App.2d Cir.7/26/06), 936 So.2d 247. The court found in favor of ScenicLand, awarding damages of $218,000.00. Rountree offered to purchase the judgment from Scenic-Land for $200,000.00, advising Fred |2Bayles to seek independent counsel before accepting the offer. Fred Bayles accepted the offer, and Rountree purchased the judgment for $200,000.00, less $50,000.00 he was owed legal services rendered. It is out of this settlement that indebtedness to Rountree arises.

On May 7, 2009, Fred Bayles and Joanne Caldwell Bayles presented an affidavit of lost promissory note to the clerk of court and had the above mortgage canceled. The property was then sold to G & Y Limited Partnership and John and Susan Merritt approximately a week later by a cash deed for $50,000.00. The deed was signed by Joanne M. Caldwell, president of Forsythe Holdings. A title examination done in the course of this sale detected the existence of the 2006 mortgage, though it was in the name of Fred Bayles and Joanne Caldwell-Bayles, who had not owned the property for close to two decades.

On November 17, 2011, Rountree filed a petition against Forsythe Holdings in which he prayed for a money judgment of $200,000.00, interest, attorney fees of 25% of the principal, and court costs. The petition made no prayer for the recognition, validation, or enforcement of the mortgage. Forsythe Holdings did not respond to the petition. A preliminary default judgment was entered on September 6, 2012. On September 18, 2012, Rountree filed a motion to confirm the default judgment. Among the documents attached to Rountree’s motion were the collateral mortgage note 13and the hand note. Roun-tree’s motion makes reference to the mortgage, but not to the 2008 amended mortgage.

An order confirming the default judgment was granted. The order granted relief not prayed for in the petition, namely that of recognizing and maintaining the mortgage from Fred Bayles and Joanne Caldwell-Bayles. A notice of judgment was sent by Claiborne Parish Clerk of Court to Forsythe through Joanne Bayles, its agent for service of process.

On November 15, 2012, Rountree filed a motion for sale without appraisal for the affected tract of land, specifically requesting that the property be sold under a writ of fieri facias. On January 4, 2013, a notice of seizure pursuant to a writ of fieri facias was entered and signed by a deputy sheriff.

G & Y Limited Partnership and John and Susan Merritt became aware of the judgment and impending sheriffs sale and hired Daniel W. Newell to protect their interests. On April 17, 2013, Newell emailed Rountree, asking him to voluntarily cancel the sheriffs sale, or otherwise Newell would be forced to seek an injunction. Rountree’s response was to let the courts decide the issue. Newell then sent a certified letter, which was received by Rountree on April 19, 2013, outlining the deficiencies in Rountree’s case and again attempting to persuade Rountree to voluntarily cancel the sale of the property.

On May 10, 2013, G & Y Limited Partnership and John and Susan Merritt (“in-terveners”) filed a petition for intervention claiming that the sheriffs sale of the property at issue should be enjoined because they are 14the record owners of the property. The trial court issued a temporary restraining order to halt the sheriffs sale scheduled for May 15, 2013.

On May 30, 2013, the trial court heard the interveners’ rule to show cause why a preliminary injunction should not be issued.

We have attached as an appendix and adopted the trial court’s excellent and thorough reasons for judgment, in which the trial court concluded that the default judgment was legally defective for two reasons:

(1) A default judgment can grant only the relief prayed for in the petition. The judgment included relief not prayed for in the petition, namely that of recognizing and maintaining the Bayleses’ mortgage.

(2) The original petition named neither the Bayleses nor the interveners.

The court concluded that since the default judgment was defective, the sheriffs sale could not be allowed to proceed. Accordingly, the court enjoined the sale. Rountree has appealed from that ruling.

DISCUSSION

Rountree asserts the validity of the default because:

• his original petition clearly sought enforcement of the mortgage;

• neither Mr. or Mrs. Bayles nor the inter-veners were necessary parties;

• Forsythe Holdings, as owner and mortgagor, was the only necessary defendant; and

• it is very plain on the face of his petition that the object of the suit was the enforcement of the mortgage.

Rountree urges that the judgment of default is valid and the judgment granting the preliminary injunction should be reversed.

La. C.C.P. art. 1703 states that a judgment by default shall not be different in kind from that demanded in the petition. The main purpose of 15this article is to put the defendant on notice of the object of the suit because a defendant has a due process right to know what is at stake when a default is threatened. “A defendant may decide not to defend as to a particular prayer for relief, whereas he would defend if relief beyond the prayer were available.” Lake v. Lake, 460 So.2d 1130, 1131 (La. App. 2d Cir.1984).

It is undisputed that the prayer for relief in plaintiffs November 2011 petition requested only a money judgment against Forsythe for $200,000.00 in principal with other monetary awards. However, the ex parte order plaintiff submitted for confirmation of the default judgment expanded the relief to include the recognition and enforcement of the mortgage executed by the Bayleses. A default judgment can grant only the relief prayed for in the petition.

Moreover, neither Rountree’s November 2011 petition nor his motion for a sheriffs sale a year later named the interveners as parties to those pleadings, despite knowing that the interveners were the record owners of the property. The interveners purchased the land in question from Forsythe Holdings, the record owner, in 2009, two years before Rountree filed his lawsuit. It is also undisputed that Rountree’s mortgage was granted by Fred Bayles and Joanne Caldwell-Bayles, who did not own the property. Forsythe Holdings was not party to the 2006 mortgage.

A person is required to be joined as a party when he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may, as a practical matter, impair or impede his ability to protect that interest. La. C.C.P. art. 641.

|r,An annulment of a judgment for vice of form under La. C.C.P. art.2002 is proper when the judgment was “[ajgainst a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction[.]” This court has held that the record owner of property was an indispensable party when a note holder filed suit to enforce the promissory note and the property was allegedly the value given for the note. See West v. East Town & Country Drainage Dist., 26,538 (La. App.2d Cir.3/1/95), 651 So.2d 907.

Citing La. C.C.P. art. 2701, Rountree contends that he was not required to name anyone other than Forysthe Holdings as defendant. However, we note that La. C.C.P. art. 2298 provides, in part:

Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the judgment debtor or to a third person claiming ownership of the seized property:
(4) When the judgment sought to be executed is absolutely null.

La. C.C.P. art. 1092 provides that a third person claiming ownership of property seized may assert his claim by intervention, and the court may grant him injunc-tive relief to prevent judicial sale of the seized property before an adjudication of his claim of ownership.

Accordingly, not only was the default judgment defective as a matter of law for granting relief not prayed for in the petition, but it was also absolutely null because the interveners were not put on notice of the adverse claim to their property. Moreover, the mortgage had been granted by Fred Bayles and Joanne Caldwell-Bayles, not Forsythe Holdings. The 2008 17amendment to the mortgage did not state in the act why Forsythe appeared in the amendment. Because Forsythe Holdings’ appearance is not explained on the face of the instrument, it was not sufficient to put interveners on notice. In addition, the original petition also failed to name the Bayleses as defendants even though Roun-tree was asserting rights against their mortgage.

The trial court has discretion in determining whether or not to issue a preliminary injunction and its ruling will not be disturbed absent an abuse of discretion. Meredith v. Tram Investments, Inc., 48,-570 (La.App.2d Cir.12/30/13), 130 So.3d 469. Based on the foregoing, we find no abuse of the court’s discretion in granting injunctive relief to the interveners.

DECREE

At the cost of James A. Rountree, the judgment is AFFIRMED.

| «APPENDIX

J^THE SECOND JUDICIAL DISTRICT COURT IN AND FOR

THE PARISH OF CLAIBORNE, STATE OF LOUISIANA

JAMES A. ROUNTREE

VS.

FORSYTHE HOLDINGS, INC.

CIVIL DOCKET NO. 39,440

FILED: July 12, 2012

REASONS FOR JUDGMENT ON INTERVENORS’ RULE FOR INJUNCTIVE RELIEF

The initially named parties to this lawsuit are plaintiff JAMES A. ROUNTREE and defendant FORSYTHE HOLDINGS,

INC. Subsequently a petition for intervention was filed; the intervenors are G & Y STILL LIMITED PARTNERSHIP, JOHN MICHAEL MERRITT and SUSAN K MERRITT. Both plaintiff and the intervenors claim ownership of a 40-acre tract of land located in Claiborne Parish, Louisiana, described as:

The NW 1/4 of the SE 1/4 of Section 31, Township 19, Range 7 West, Claiborne Parish, Louisiana.

On May 30, 2013, the intervenors’ rule to show cause why a preliminary writ of injunction should not issue, enjoining the Claiborne Parish Sheriff and James A. Rountree from proceeding with the sheriffs sale of the property, was heard. Following the trial proceedings, the parties, plaintiff and intervenors, filed post-trial memoranda. Upon the July 2, 2013 receipt of the final memoranda, the case was submitted for decision.

PLEADINGS FILED

Because the initial petition involved a party not involved in the contradictory rule submitted for decision, but did involve issues submitted for decision, the court finds that a summary of the pleadings, shown by the date of their filing into the record (not the order in which they |10appear in the record as they are apparently out of sequence) is necessary to understand the parties’ positions in this rule for injunctive relief. *

1. November 17, 2011 — Petition filed by James A. Rountree against For-sythe Holdings, Inc., in which plaintiff prayed for a judgment against defendant for $200,000.00, interest, attorney’s fees of 25% of the principal, and court eosts.
2. January 25, 2012 — Service perfected on defendant
3. September 18, 2012 — Motion to confirm preliminary judgment on default entered on September 6, 2012 with various documents attached, including:
a. corporate resolution, dated as of January 11, 2006, adopted by For-sythe Holdings, Inc., signed by Richard Neely, Jr., Secretary, on February 13, 2008, which resolution indicates that the president of the corporation, Joanne M. Caldwell, has authority to secure any debts of the corporation by any appropriate legal security devices, including mortgages;
b. collateral mortgage, dated November 7, 2006, from Fred M. Bayles and Joanne M. Caldwell Bayles to any future holder for $200,000.00, which described various properties in Exhibit A, including the 40-acre tract at issue;
c. collateral mortgage note, dated November 7, 2006, for $200,000.00, payable on demand to any future holder, signed by Fred M. Bayles and Joanne M. Caldwell Bayles, paraphed ne varietur with the collateral mortgage;
d. hand note, dated November 7, 2006, payable on demand for $150,000.00 to James A. Rountree, signed by Fred M. Bayles and Joanne M. Caldwell Bayles;
NOTE: Each note has a notation on its back as follows: FORSYTHE HOLDINGS, INC.
BY: [signed by someone but clearly NOT Joanne M. Caldwell, president of Forsythe Holdings, Inc.]
4. September 18, 2012 — Order, signed on September 13, 2012, confirming preliminary judgment, by default, which grants the relief prayed for in plaintiffs petition, of a money judgment for $200,000.00 and other monetary relief, but also grants relief not |nprayed for in petition, that of recognizing and maintaining the mortgage from Fred M. Bayles and Joanne M. Caldwell Bayles
5. September 18, 2012 — Notice of judgment sent by Claiborne Parish Clerk of Court to Joanne Bayles
6. November 15, 2012 — Plaintiffs Motion for Sale without appraisal for 40-acre tract in Claiborne Parish
7. December 18, 2012 — Plaintiffs Motion to Correct Clerical Error in Judgment, signed by court on December 7, 2012
8. January ⅛, 2013 — Notice of Seizure pursuant to writ of fieri facias, signed by Deputy Sheriff Rebecca Lowery on January 2, 2013
9. March 12, 2013 — Plaintiffs Motion to Appoint Private Process Server on allegation that sheriffs office has been unable to serve defendant
NOTE: No citation issued to defendant Forsythe Holdings, Inc. appears in record and, therefore, there is no sheriffs return showing the sheriffs inability to serve defendant, although citation and sheriffs return for original petition filed on November 17, 2011 shows service was perfected on defendant.
10. April 1, 2013 — Affidavit of Private Process Server, David Anderson, notarized by Sharon Anderson, asserting that process was perfected on Joanne Caldwell on March 23, 2013
11. May 10, 2013 — Petition for Intervention filed by G & Y Still Limited Partnership, John Michael Merritt and Susan K. Merritt, claiming that the sheriffs sale of the 40-acre tract at issue, set for May 15, 2013, should be enjoined because they are the owners of the property, which they purchased on May 15, 2009 from Forsythe Holdings, Inc. by a cash deed for $50,000.00, which deed was signed by Joanne M. Caldwell, President of Forsythe Holdings, Inc.
12.May 17, 2013 — Plaintiffs Response to Intervention

FACTS

In his post-trial memorandum, plaintiff Rountree contends that the court erred in issuing the temporary restraining order on May 10, 2013, enjoining the sheriffs 112sale set for May 15, 2013 because the interve-nors’ petitions neither alleged immediate irreparable injury nor contained the attorney’s certificate of efforts made to give notice of the issue or reasons why notice was not required.

The court finds these contentions lack merit. It is well established that any action affecting immovable property is deemed to be capable of causing irreparable injury and, therefore, specific allegations of the irreparable harm the interve-nors would suffer from the sheriffs sale of the 40-acre tract they claim they own are not required. The intervenors’ petition, at paragraph 9, alleged that numerous attempts had been made to persuade plaintiff to cancel the sheriff’s sale voluntarily, including sending a certified letter to him on April 18, 2013, but, despite those attempts, plaintiff refused to cancel the sale.

Additionally, L.C.C.P. art. 1092, applicable to ordinary proceedings (as were filed by the intervenors), authorizes a court to grant an injunction prior to an adjudication of ownership. Also, L.C.C.P. art. 2298, applicable to writs of fieri facias, authorizes the stopping of a sheriffs sale of property seized under a writ of fieri facias, as was done here, when the judgment sought to be executed is absolutely null or the underlying obligation has been extinguished. Thus, the sale can be stopped prior to a determination of the interveners’ claim of ownership.

Because the court must determine whether the intervenors’ claim of ownership of the 40 acres has a substantial likelihood of success on the merits in order to determine whether the preliminary writ of injunction | isrequested by intervenors should be granted, evidence of the ownership of the 40 acres is relevant to the court’s determination. Although evidence of the 40 acres’ chain of title was not entered by either side, the court finds that unco'ntroverted evidence is significant to the issue of ownership.

First, it is undisputed that the mortgagors of the mortgage upon which plaintiff bases his claim, Fred M. Bayles and Joanne M. Caldwell Bayles, had not owned the 40 acres for about two decades prior to plaintiff’s filing his lawsuit in November 2011. Second, it is undisputed that For-sythe Holdings, Inc. was record owner of the 40 acres when interveners purchased the land from Forsythe in 2009, two years before plaintiff filed his lawsuit. Third, it is undisputed that the mortgagors, Fred M. Bayles and Joanne M. Caldwell Bayles, filed an Affidavit of Lost Promissory Note into the mortgage records of Claiborne Parish on May 7, 2009, in which they claim to be the holders of the collateral mortgage and note, which note they said they lost, and then requested the Claiborne Parish Clerk of Court to cancel the mortgage and mark it paid. Thus, the mortgage referenced by plaintiff in his 2011 petition was cancelled of record as having been paid 'two years before he filed his lawsuit.

It is undisputed that the prayer for relief in plaintiffs November 2011 petition only requested a money judgment rendered against Forsythe for $200,000.00 in principal with other monetary awards. However, the ex parte order plaintiff submitted for confirmation of the default judgment included an order that expanded the relief to include the recognition and enforcement of the mortgage executed by Fred M. Bayles and Joanne M. Caldwell Bayles.

114It is undisputed that neither plaintiffs petition filed in November 2011 nor his motion for a sheriffs sale of the 40 acres filed in November 2012 named the interve-nors as parties to those pleadings. As indicated above, it is undisputed that the intervenors purchased the 40 acres in 2009, two years before plaintiff filed his original petition.

Plaintiff contends that intervenors had notice of an adverse claim to the property because the Bayles’ mortgage was filed in the Claiborne Parish mortgage records in 2008, prior to their purchase of the property. While it is undisputed that the mortgage was filed in 2008 in Claiborne Parish, plaintiff points to nothing in the public records doctrine that would require the intervenors to check the mortgage records under the names of Mr. and Mr. Bayles when the record owner of the property they purchased was Forsythe Holdings, Inc. and the cash deed was signed by Joanne M. Caldwell as president of For-sythe Holdings.

The collateral mortgage executed by Mr. and Mrs. Bayles on November 6, 2006 was secured by the property described in Exhibit A which includes the 40 acres at issue. However, there is nothing in that document that refers to Forsythe Holdings, Inc.

The mortgage was amended by an act dated February 13, 2008, to exclude a 16.07-acre tract in Ouachita Parish from the original mortgage. That amendment was signed by Fred M. Bayles, Joanne M. Caldwell Bayles, individually and as agent for Forsythe Holdings, Inc. and James A. Rountree. Apparently, it is the appearance of Forsythe Holdings, Inc. in this mortgage amendment upon which plaintiff bases his contention that intervenors had record notice that Forsythe | ^Holdings was part of the mortgage issued by Mr. and Mrs. Bayles.

The court finds that the appearance of Forsythe Holdings, Inc. in the act to amend the Bayles’ mortgage is not sufficient to give the intervenors notice of a mortgage affecting the 40 acres they purchased from Forsythe. The act simply removes a 16.07-acre tract from the original mortgage. Forsythe could have been involved in the act for many reasons, including its having an ownership claim to that 16.07 acres. Why Forsythe appeared in the amendment is not stated in the act and, because its appearance is not explained on the face of the instrument, it is not sufficient to put intervenors on notice. CONCLUSIONS OF LAW

The court concludes that the default judgment rendered in plaintiff’s original petition is defective as a matter of law. A default judgment can only grant the relief prayed for in the petition. The judgment presented to the court ex parte by plaintiff includes relief not prayed for in the petition, that of recognizing and maintaining the Bayles’ mortgage.

It is also defective because the original petition filed in 2011 named neither the Bayles, upon whose mortgage plaintiff was asserting rights, nor the intervenors, who purchased the 40 acres from Forsythe Holdings, Inc. two years before plaintiff filed his lawsuit against Forsythe.

Because the court concludes the default judgment is defective, the court concludes that a sheriffs sale conducted on the basis of that judgment cannot proceed.

The parties assert competing claims of ownership to the 40 acres at issue. Based on the uncontroverted evidence presented at the hearing on the intervenors’ rule 11fifor a preliminary injunction, the court concludes that the intervenors have a substantial likelihood of success for the issuance of a permanent injunction. The court, therefore, concludes that the relief prayed for by the intervenors, the issuance of a preliminary writ of injunction, should be granted, at plaintiffs cost.

WRITTEN REASONS FOR JUDGMENT ASSIGNED this 11th day OF July, 2018, in Homer, Claiborne Parish, Louisiana.

/s/ [illegible signature] JENIFER WARD CLASON, JUDGE SECOND JUDICIAL DISTRICT COURT

      . Under cross-examination, Rountree was questioned as follows:
      "Q: (By Daniel Newell) And at some point during your career as an attorney, you acquired Fred Bayles and Joanne Caldwell Bayles as clients?
      A: I'm sorry to say, you’re right.
      Q: And at some point in that relationship, they allegedly became indebted, they being Fred Bayles and Joanne Bayles. Is that your testimony?
      A: They became indebted to a very substantial extent. Yes.”


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Robert Earl WALTER, Appellant.
    No. 49,051-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Louisiana Appellate Project, by Douglas L. Harville, for Appellant.
    Robert Earl Walter, pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ. STEWART, J.
   STEWART, J.

| iThe defendant, Robert Earl Walter, was convicted by a unanimous jury of second degree murder and sentenced to life imprisonment, without benefit of probation, parole, or suspension of sentence. He now appeals, arguing that the evidence was insufficient to convict him of second degree murder. For the reasons set forth in this opinion, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 10, 2012, the defendant shot and killed April Fulghum (“victim”) at the Lexington Place Apartments (“the Lexington”) in Bossier City, Louisiana. The defendant turned himself in to the authorities, and confessed to shooting the victim. On December 10, 2012, the defendant was charged via bill of indictment with second degree murder in violation of La. R.S. 14:30.1. Soon thereafter, the defendant requested that a sanity commission be appointed. After reviewing the doctor’s reports and recommendations, the trial court found that the defendant possessed a factual understanding of the proceedings. Further, the defendant was not suffering from a mental disease or defect that would prevent him from either participating in his defense or understanding right from wrong.

On June 18, 2013, a free and voluntary hearing was conducted to determine the admissibility of the defendant’s statement made to the police after he turned himself in. Detective Michael Hardesty of the Bossier City Police Department, Violent Crimes Unit, testified that he advised the defendant of his rights and had him sign a card to that effect prior to taking the defendant’s recorded statement. After listening to the recorded |2interview, the trial court determined that the defendant’s statement was freely and voluntarily given, and would therefore be admissible at trial.

The jury trial commenced on June 26, 2013. The following evidence was adduced at trial.

Detective Hardesty testified that on October 10, 2012, he responded to the 11:30 a.m. call that reported a shooting at.the Lexington. As mentioned above, Hardesty took the defendant’s statements a few hours after the shooting. Hardesty testified that the defendant appeared angry from the onset, and became angrier as the interview progressed.

During the interview, which was played for the jury, the defendant stated that he went home to retrieve his uniform, and that he also retrieved his gun, a .38 revolver, from his house. He then went back to the Lexington, walked into the victim’s office, and fired the gun at her until it was empty. He also .stated that had Kim Pel-, legrin been present, he would have shot her also. The defendant stated that he placed the gun under a wicker chair on the carport of his home, so that he wouldn’t be armed when he turned himself in.

Fairfield Property Management (“Fair-field”) manages the Lexington. Kimberly Pellegrin, director of human resources for Fairfield, testified that she is responsible-for employee hiring, discipline, termination, and the resolution of employee complaints. She stated that the victim had been the property manager at the Lexington for two years, and that her duties included supervising the staff. Pellegrin testified that she hired the defendant as a painter in July 2013 through a temporary agency. She noted |sthat the defendant, had previously worked at another Fairfield company, Fairfield Construction. Based on the defendant’s positive reviews from his work at Fairfield Construction, Pelleg-rin made the decision to offer him a permanent position at the Lexington. She gave him a written description of his job duties, which she reviewed with him before having him sign and date it. In addition to his job duties as a painter, the defendant was required to perform additional duties such as assisting in the maintenance and upkeep of the property and equipment, and assisting other employees.

Pellegrin recalled the defendant demanding, approximately one month before the shooting, that he receive a raise because he was being asked to repair drywall, a job that he asserted was not included in his job description. 'She-informed him that this repair was included in his job description. The defendant complained that two of his female coworkers, Sabrina Walker and Jimmie Richardson, were not doing their assigned work. He believed that he and James Lovelace, the maintenance man, were being forced to take on Walker and Richardson’s work, in addition to their own.

On October 9, 2012, Pellegrin received emails from the victim and the victim’s supervisor, Patsy Lester. The victim wrote that on October 5, 2012, she instructed the defendant to perform trim work in an apartment that a tenant was moving into that day. The defendant refused, saying “it was Sabrina’s job, not his,” again complaining that Sabrina did not do her job. Lester wrote that the defendant contacted her on October 5, 2012, after his disagreement with the victim, and yelled at Lester about Sabrina and |4Jimmie. Lester informed the defendant that she would speak with the victim about Sabrina. On October 9, 2012, Pellegrin met with the defendant, victim, and Lester at Fairfield’s office in downtown Shreveport. The victim complained that the defendant had yelled and even cursed at her in front of other employees and prospective tenants. The defendant was adamant that the tasks the victim assigned to him were not within his job duties. Pellegrin testified that the defendant was agitated, and focused on his complaints lodged against Sabrina instead of the complaints lodged against him. Pel-legrin felt that the defendant’s actions constituted a final warning. After the meeting ended at approximately 3:30 p.m., she instructed the defendant to return to work.

On the morning of October 10, 2012, the victim notified Pellegrin that the defendant not return to work the previous afternoon as instructed. Pellegrin made the decision to terminate the defendant’s employment, and arranged for a meeting to take place at 9:00 a.m. Pellegrin, the defendant, and the victim met at the victim’s office at the Lexington at the designated time. The defendant was notified of his termination, and Pellegrin and the victim explained that he was being terminated for failing to return to work after being issued the final warning. Walter stated that he was unaware of his instruction to return to work the previous day. Pellegrin testified that after the meeting ended at approximately 9:15 a.m., the defendant left the premises to retrieve his tools and uniforms from his home. She stated that the defendant did not appear to be upset, but did not say much.

lfiBoth Lesley Wálker, the assistant manager at the Lexington, and William Brandon Butler, the floating assistant manager, testified that on October 10, 2012, they were in the office at the Lexington when the defendant was fired. Walker and Butler were also in the office with the victim when the defendant returned several hours later with his uniforms draped across his arm.

Walker was standing in the doorway of the victim’s office, facing the victim and Butler, with her back to the door. Butler was sitting in a chair at the victim’s desk, the victim was standing next to him, and they were both facing Walker and the door.

Walker heard the defendant tell her to “step back” and then say, “hey April.” The defendant fired the gun at the victim, who had crouched down in a corner, facing the wall. After the defendant fired the first few shots, Walker left the office to call 911 and to locate the courtesy officer, Brent Tyson. She was met by James Lovelace in the hall, and they fearfully left the building. By the time Walker and Tyson returned, the fire department had arrived.

Butler testified that when the defendant entered the victim’s office holding in his right hand at waist level what he thought to be a .38 snub nose revolver, he backed himself into a córner of the victim’s office. Butler saw the victim holding up her hand as two bullets hit her, and then saw her fall face forward before two more bullets entered her back. He testified that the defendant fired the gun until it was empty, about four to six shots. The defendant then turned and ran out the door. Butler shook the victim, but she 16was unresponsive. He called 911, and continued to monitor the victim. When the fire department arrived, an officer escorted him outside.

Lovelace testified that he was present when the defendant walked in and shot the victim. The defendant had previously told him that he wanted to transfer to another apartment. Lovelace did see the defendant immediately after he was terminated, and the defendant informed him that he had been fired.

Robert Flournoy, a firefighter and paramedic with the Bossier City Fire Department, responded to the 911 call after the shooting, arriving at 11:49 a.m. Upon arrival, Flournoy noticed that the victim suffered from multiple gunshot wounds, that the members of the fire department were administering CPR, but that she was unresponsive with no pulse, and was not breathing. He accompanied the victim as she was being transported to the hospital, and testified that physicians unsuccessfully attempted to revive her.

During the defendant’s testimony, he apologized to the victim’s family, stating that he never meant for the shooting to happen. He expressed his unhappiness at the Lexington because Sabrina would “lay around” and not do her work. She would give her work orders to him and Lovelace to perform. He testified that he reported his complaints to the victim and Pellegrin, but nothing was done to rectify the situation.

Discussing the October 5, 2012, incident, the defendant admitted to cursing and yelling at the victim, but noted that she was doing the same to him. The victim then instructed him to give her his keys, and sent him |7home. He denied hearing anyone instructing him at the close of the October 9, 2012, meeting to return to work. Further, he was confused about returning to work for only 15 minutes of work.

After he was fired, the defendant testified that he was devastated. He said that Sabrina followed out of the office taunting him. The defendant testified that he shot the victim because she refused to do anything about the “Sabrina problem,” and because he was being disrespected and mistreated.

Dr. James Traylor, a forensic pathologist, was offered and accepted as an expert in the forensic pathology. Traylor testified that he performed the autopsy on the victim, and found eight wounds caused by the defendant’s shots. Two shots, one to the victim’s upper right arm and one to her upper right back, damaged the soft tissue and caused hemorrhaging. One shot to the victim’s back hit her ninth rib, perforated her left lung, and struck her eighth rib. Traylor testified that the shot that entered the victim’s right clavicle caused the most fatal wound, shattering the victim’s third rib. The resulting bone fragments cut three major blood vessels, her pulmonary artery, her aorta, and her superior vena cava, as well as her right lung. Ultimately, Traylor confirmed that the victim’s cause of death was multiple gunshot wounds.

At the crime scene, officers recovered four projectiles: one from the east wall of the victim’s office, one from the floor of the victim’s office, one from the windowsill, and one from the weight room on the other side of the north wall of the victim’s office. The fifth projectile was recovered from the victim’s body during the autopsy.

| ¡¿During a search of the defendant’s home, officers were able to recover a .38 Smith & Wesson revolver with five-chamber cylinder, holding five empty casings. Counsel for the defendant stipulated that the bullets recovered from the crime scene and the victim’s body all came from the gun found at the defendant’s home. A search of the defendant’s truck yielded a written warning that he received on the afternoon of October 9, 2012, a written notice of his termination on October 10, 2012, and a folder with information regarding his termination from a previous employer.

On June 27, 2013, the jury unanimously found the defendant guilty as charged of second degree murder. On July 9, 2013, the trial court sentenced the defendant to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. The defendant filed the instant appeal.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he alleges that there was insufficient evidence to prove that he was guilty beyond a reasonable doubt of second degree murder. More specifically, the defendant argues that based on the facts of this case, the jury should have found'him guilty of manslaughter, and not second degree murder.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); \ .State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert, denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La. App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct eyidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. |! pWhen the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, unit denied, 2009-0372 (La.11/6/09), 21 So.3d 299. This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert, denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any | nwitness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra; State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840,121 S.Ct. 104,148 L.Ed.2d 62 (2000). Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La. App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, unit denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

La. R.S. 14:30.1 provides:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juvenile, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Glover, 47,311 (La.App.2d Cir.10/10/12), 106 So.3d 129, unit denied, 2012-2667 (La.5/24/14), 116 So.3d 659; State v. Davies, 35,783 (La.App.2d Cir.4/05/02), 813 So.2d 1262, unit 'denied, 2002-1564 (La.5/9/03) 843 So.2d 389. Specific intent |12may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Glover, supra, The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and review of that determination is to be guided by the standard of Jackson v. Virginia, swpra. Glover, supra.

The Louisiana Supreme has held on more than one occasion that specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert, denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Williams, 383 So.2d 369 (La.1980). Further, the discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Dooley, 38,763 (La. App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Brooks, 36,855 (La.App.2d Cir.3/05/03), 839 So.2d 1075, unit denied, 2003-0974 (La.11/07/03), 857 So.2d 517.

La. R.S. 14:31, which defines manslaughter, states in pertinent part:

A. ' Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.

11a“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986); State v. Logan, 45,-136 (La.App.2d Cir.4/14/10), 34 So.3d 528, unit denied, 2010-1099 (La.11/5/10), 50 So.2d 812. In reviewing a defendant’s claim that he met this burden, the appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008. Provocation and the time for cooling are questions for the trier of fact to determine according to the standard of the average or ordinary person. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, cert, denied, 537 U.S. 828,123 S.Ct. 124,154 L.Ed.2d 42 (2002); State v. Horn, 45,706 (La.App.2d Cir.11/3/10), 55 So.3d 100, writ denied, 2010-2721 (La.5/6/11), 62 So.3d 124. The appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. Robinson, supra.

In the case sub judice, the defendant did not dispute that he shot the victim. Therefore, we must determine whether the state proved that the | 14 defendant had the requisite specific intent to kill the victim. The defendant’s expression of remorse after he had shot the victim does not mean that he did have the requisite specific intent to kill her. Further, the defendant’s alleged reasoning for shooting her, i.e. being frustrated with his job, feeling disrespected and mistreated, does not negate the presence of specific intent. We find that the specific intent to kill was demonstrated by the defendant’s act of deliberately pointing his .38 caliber pistol at the victim and firing it five times, until it was empty. As a result, the victim suffered for injuries so extensive that she did not survive.

The testimony and evidence presented at trial, when viewed pursuant to the Jackson standard in the light most favorable to the prosecution, was sufficient to support the conviction of second degree murder. As the trier of fact, the jury had the discretion to accept or reject all or part of any testimony, to decide how much weight to give to a witness’s testimony, and to determine what is credible and what is not credible while performing its duty and reaching its conclusions. State v. Adams, 49,053 (La.App.2d Cir.5/14/14), 139 So.3d 1106, 2014 WL 1911937. This evidence was sufficient for the jury to infer, as they did, beyond a reasonable doubt that the defendant possessed the specific intent to kill the victim. Further, the state has proven the essential elements of the crime of second degree murder beyond a reasonable doubt. A thorough review of the evidence does not support the defendant’s position that he met his burden of establishing that he acted in heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. The defendant’s overt acts of going |1fihome to retrieve his gun, driving back to work a couple of hours after being fired, and walking into the victim’s office to shoot her until his pistol was empty, when viewed in a light most favorable to the prosecution, manifest an intent to kill. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of the defendant, Robert Earl Walter, are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    William L. NORWOOD, M.D., and Jennifer B. Norwood, Husband and Wife, and Norwood Minerals, L.L.C. Plaintiff s-Appellants v. MOBLEY VALVE SERVICES, INC., D. Mark Mobley and Kimberly B. Mobley, Defendants-Appellees.
    No. 49,064-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.
    Rehearing Denied Aug. 7, 2014.

      Randall S. Davidson, Wm. Lake Hearne, Jr., Grant E. Summers, Shreveport, for Appellants.
    Philip E. Downer, III, Shreveport, Kevin W. Hammond, for Appellees.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

|,The plaintiffs, William Norwood, Jennifer Norwood and Norwood Minerals, L.L.C., appeal a judgment in favor of the defendants, Mobley Valve Services, Inc., Mark Mobley and Kimberly Mobley. The trial court found that the plaintiffs had not been over billed and that although the defendants had breached a fiduciary duty in one aspect of the transaction, the plaintiffs failed to prove they were damaged as a result. On appeal, the defendants filed a peremptory exception of prescription and plaintiffs filed a motion to remand, but only if this court was inclined to sustain the exception. For the following reasons, we deny the exception of prescription, reverse and render.

FACTS

In February 2005, William and Jennifer Norwood met with Mark Mobley to discuss a possible investment opportunity. Mark Mobley explained that the Norwoods could obtain a working interest in a mineral lease covering 878 acres in DeSoto Parish. The lessee, Mobley Valve Services, Inc. (“MVS”), was the operator of the lease. Mark Mobley was the sole shareholder of MVS and his wife, Kimberly Mobley, was an officer of the corporation. MVS provided the Norwoods with an estimate of the costs to drill wells under the lease based on the drilling of an initial well. The Norwoods paid $39,925 to purchase a 10% working interest in the lease. This interest excluded the completed Hunter-Man-nies No. 1 Well and was not recorded.

In April 2005, drilling commenced for seven additional wells under the lease. For each well, MVS provided to the Nor-woods an Authorization |2for Expenditure (“AFE”) listing the costs and expenses. In April 2005, the Norwoods received for Hunter-Mannies #2, the first well in which they participated, a Drilling AFE for $278,135 and a Completion AFE for $192,885. The Drilling AFE included a charge for the estimated costs of “overhead & mgnt.” The Norwoods were invoiced for 10% of these amounts, which they paid. In September 2005, MVS sent the Norwoods a check for $3,133.50 and a letter stating that the amount was “a refund of all excess funds from the AFE” for the Hunter-Mannies # 2 well. Over time, the Norwoods and their company, Nor-wood Minerals, L.L.C. (“NML”), paid $608,978 in estimated costs under the lease, but they did not receive any other refunds.

First Lanza Deal

In June 2006, the Norwoods and Mob-leys agreed to transfer their interests in the lease to J.A. Lanza, L.L.C. (the “First Lanza Deal”). The Norwoods assigned their interest in the lease to MVS, which negotiated with Lanza. On October 6, 2006, the First Lanza Deal transferred the lease interests of MVS and the Norwoods to Lanza in return for cash payments and an option to participate up to 25% in future drills from the surface to 4,100 feet and an option up to 9.375% in new- drills below 4,150 feet. On October 18, 2006, a document titled “Sale Arrangements and Terms for Hunter-Mannies No. 2 thru Hunter-Mannies No. 8” was signed by William Norwood for NML and by Mark Mobley for MVS. The document stated the price of $2,750,000 for the wells and that NML will have up to a 25% option on all new drills 0 to 4,100’ and up to a 9.375% option on all new |sdrills 4,150' to final depth.

At the time, MVS owned 50% of the shallow rights and 37.5% of the deep rights under the lease. Jones Energy, LLC, owned by Marshall Jones, and Denergy Exploration, LLC, owned by Dan Newman, collectively held a 25% working interest in the lease. In September 2006, Jones and Newman filed a lawsuit alleging misconduct by MVS in operating the lease (“Jones lawsuit”). The Sage Trust, which held a 25% interest in the lease, intervened to make the same allegations. Thereafter, the Jones lawsuit was concluded by a settlement in which Jones and Newman transferred their 25% lease interest to Lanza and MVS bought the 25% lease interest of the Sage Trust.

Second Lanza Deal

As a result of the Jones lawsuit, MVS suspended revenue payments to Lanza, who then ceased making payments under the First Lanza Deal. This situation led to litigation between Lanza and Mobley. In August 2007, this litigation was settled through a revised agreement (“Second Lanza Deal”). Under the agreement, MVS conveyed to Lanza a 75% working interest in the Hunter-Mannies lease from the surface through the Glen Rose formation and a 37.5% lease interest as to depths below the Glen Rose formation. The Second Lanza deal modified the well participation option rights, providing that Mobley shall have the right as to future wells to purchase a one-eighth (12.5%) working interest by payment of the proportionate cost of drilling and completion of the wells.

After this Second Lanza Deal was completed, the Mobleys presented [4the Nor-woods -with a document stating that they would be paid in monthly installments and that the Mobleys and' Norwoods would split a 12.5% option in all depths. The Norwoods did not sign this document and they received 10% of the payments by Lanza under this deal.

Some time later, Lanza sought to acquire the option rights of MVS and the Norwoods retained in the Second Lanza Deal. Although MVS initially sought the price of $500,000 for the option rights, MVS eventually sold the option rights to Lanza for $150,000, plus Lanza’s full and immediate payment of all remaining sums due under the Second Lanza Deal. The Norwoods received their 10% share of the price for the option rights and the Lanza payments, for a total of $76,065.

The sale, or waiver, of the 12.5% option enabled MVS and Lanza to sell the deep rights, defined as depths below 9,000 feet, in the Hunter-Mannies lease to Chesapeake Louisiana, L.P. (“Chesapeake”). In June 2008, Chesapeake paid MVS and Lanza a bonus of $17,500 per net mineral acre for the mineral lease rights. MVS received a total of $5,725,091.98 in proceeds. The Mobleys did not inform the Norwoods about the pending Chesapeake deal.

Subsequently, the plaintiffs, William Norwood, Jennifer Norwood and Norwood Minerals, L.L.C., filed a petition for damages against the defendants, Mobley Valve Services, Inc., Mark Mobley and Kimberly Mobley. Plaintiffs alleged that defendants were liable for fraud, breach of contract, failure to give an accounting, use of the corporation as an alter ego and intentional interference with contract. After a trial, the court issued a ^written opinion finding that plaintiffs failed to show that they were overcharged for operating expenses. The trial court also found that defendants breached their fiduciary duty to plaintiffs by failing to disclose,a pending transfer of Haynesville Shale interests under the lease to Chesapeake prior to the sale of plaintiffs’ share of the well participation option rights. However, the court concluded that the plaintiffs failed to establish they were damaged by the breach because there was “no evidence” of the actual fair value of the options sold. The court rendered judgment dismissing the plaintiffs’ claims. The plaintiffs appeal the judgment.

DISCUSSION

On appeal, the defendants filed a peremptory exception of prescription. At oral argument, this court referred consideration of the exception to the merits of the appeal and the parties then submitted supplemental briefs on the issue of prescription. Defendants argue that the plaintiffs’ claims have prescribed because a one-year prescriptive period is applicable in this case.

Delictual actions are subject to a liberative prescription of one year, running from the day injury or damage is sustained. LSA-C.C. art. 3492. An action on a contract is governed by the prescriptive period of ten years for personal actions. LSA-C.C. art. 3499. The nature of the duty breached determines whether an action is in tort or contract. Roger v. Du-frene, 613 So.2d 947 (La.1993); Kroger Co. v. L.G. Barcus & Sons, Inc., 44,200 (La. App.2d Cir.6/17/09), 13 So.3d 1232. The distinction between damages ex contractu and damages ex delicto is that the former flow from the breach of La special obligation contractually assumed by the obli-gor, whereas the latter flow from the violation of a general duty owed to all persons. Kroger, supra; Trinity Universal Insurance Co. v. Horton, 33,157 (La.App.2d Cir.4/5/00), 756 So.2d 637.

Here, the record shows that the plaintiffs agreed to pay 10% of the drilling expenses and to receive 10% of the revenue generated as a result of Mark Mob-ley’s management of their lease interest. Plaintiffs allege in their petition that defendants breached the parties’ agreement by improperly billing plaintiffs for charges in excess of the actual cost to MVS for drilling and by depriving plaintiffs of their opportunity to exercise their option rights without disclosure of the pending sale to Chesapeake. After trial, the district court found that defendants had breached their fiduciary duty arising from their agreement to manage the plaintiffs’ lease rights so as to serve their best interest.

Based upon this record, we conclude that the plaintiffs’ claims involve a breach of the fiduciary obligation contractually assumed by the defendants. Thus, the 10-year prescriptive period applies in this case and the plaintiffs’ petition was timely filed. Consequently, the exception of prescription is denied.

Damages

The plaintiffs contend the trial court erred in failing to award them damages for breach of the defendants’ fiduciary duty. Plaintiffs argue that the profit which defendants obtained by their breach of the fiduciary duty is evidence of plaintiffs’ damages.

|7A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. LSA-C.C. art. 2989. The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. LSA-C.C. art. 2993. The principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances. LSA-C.C. art. 2994. A mandatary is bound to fulfill with diligence the mandate he has accepted. He is liable for the principal’s loss sustained as a result of the mandatary’s failure to perform. LSA-C.C. art. 3001.

The trial court found that defendants breached their fiduciary duty by failing to disclose to plaintiffs the pending sale to Chesapeake before selling the option rights and that the sale of those options enabled defendants to realize a large financial gain. Although the court found there was no evidence presented of the economic value of those option rights, the record demonstrates that more likely than not Chesapeake would have paid a lower bonus if the lease interest remained subject to such option rights. Regarding the bonus amount, Kim Mobley testified that Chesapeake had reduced a prior offer from $25,000 per acre because of an existing servitude affecting the lease acreage.

Thus, the defendants’ sale of the option rights without prior disclosure not only deprived plaintiffs of an opportunity to possibly negotiate a better price, the removal of the option rights was a factor in Chesapeake’s payment of a lease bonus of $17,500 per net mineral acre, | ^resulting in defendants’ receipt of $5,725,092 for their lease interests. A fiduciary must account to his principal for any benefit received by him in violation of his duty. ODECO Oil & Gas Co. v. Nunez, 532 So.2d 453 (La. App. 1st Cir.1988). The duty imposed on a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests. Double-Eight Oil and Gas L.L.C. v. Caruthurs Producing Co., Inc., 41,451 (La.App.2d Cir.11/20/06), 942 So.2d 1279. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. LSA-C.C. art. 1999.

Here, the defendants’ fiduciary duty arises from an agreement by which plaintiffs were to receive 10% of the money obtained by defendants in managing the plaintiffs’ lease interest. As found by the trial court, defendants sold the option rights in breach of their fiduciary duty to disclose the pending sale with Chesapeake to plaintiffs, thereby receiving the benefit of the lease bonus payments. Thus, the measure of plaintiffs’ damages is their 10% share of the lease bonus proceeds derived from the defendants’ breach of their fiduciary duty to plaintiffs. Consequently, the defendants are liable to pay the plaintiffs the amount of $572,509 in damages. We shall render judgment accordingly.

Invoices

The plaintiffs contend the trial court erred in finding that they were not over billed by defendants. Plaintiffs argue they are entitled to a refund of charges that exceeded the actual costs of drilling.

IsAt the request of the principal, or when the circumstances so require, the manda-tary is bound to provide information and render an account of his performance of the mandate. LSA-C.C. art. 3003. A co-owner of a lessee’s interest in a mineral lease may not independently conduct operations without the consent of his co-owner. LSA-R.S. 31:177.

In the present case, Dr. Norwood testified that he understood from his initial meeting with Mark Mobley that plaintiffs would not be charged for management fees or surcharges, but would be charged only for 10% of the actual cost of drilling as shown by charges of third party contractors. Norwood stated that the amounts charged on the AFEs were consistent with Mobley’s initial estimates of the well costs.

Kim Mobley testified that the Norwoods were supposed to pay their 10% share of the AFE charges and that they paid those amounts without complaint. Mobley stated that the Norwoods once received a refund based on lower costs for road construction at one well site.

Thomas Youngblood, who was accepted as an expert in accounting, testified that he prepared a report concerning invoices issued from MVS to MVS for described work, but which did not have backup support from third party sources. Young-blood stated that he subtracted the amount of those invoices from the total costs billed to the Norwoods. Youngblood testified that the result of this calculation showed a balance of $164,409.26 owed to the Norwoods.

The record shows that the plaintiffs were provided with an AFE for each well and paid their pro rata share, indicating that they authorized the | ^expenditures and consented to the operations under the lease. However, the plaintiffs presented expert testimony demonstrating that the defendants were unable to provide supporting documentation for a number of invoices generated by MVS. Thus, defendants failed to perform their obligation under Article- 3003 to provide accurate information regarding the basis for a portion of the drilling costs assessed to plaintiffs. Consequently, plaintiffs are entitled to a refund of their payments for undocumented charges in the amount of $169,409. Fraud

The plaintiffs contend the trial court erred in failing to address the issue of fraud. Plaintiffs argue that defendants committed fraud by their misrepresentation of invoice costs and failure to disclose the Chesapeake transaction.

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss to the other. Fraud may also result from silence or inaction. LSA-C.C. art. 1953. Fraud must be proved by a preponderance of the evidence. LSA-C.C. art. 1957.

Here, Kim Mobley testified that the information for the AFE amounts was provided by Mark Mobley and Mr. Tipton, an engineer. Mobley stated that she also reviewed company records to determine the equipment used and the work performed at the well sites in generating the invoices. Mobley testified that she did not discuss the Chesapeake transaction with the Nor-woods and she did not think the Chesapeake sale involved the interests |nof the Norwoods. Mobley stated that she gave the Norwoods information about the Second Lanza Deal and that the parties obtained full payment of the amounts in that deal through release of their option rights.

The evidence presented supports a finding that even though there was a lack of documentation for some of the invoices issued by MVS, there was no showing that the drilling operations for the wells were not actually performed. Additionally, the plaintiffs did not prove by a preponderance of evidence that the defendants failed to disclose the Chesapeake sale with the intent to obtain an unjust advantage or to cause a loss to plaintiffs in the sale of the option rights. Thus, plaintiffs failed to satisfy their burden of proving fraud. This assignment of error lacks merit.

Piercing the Corporate Veil

The plaintiffs contend the trial court erred in not finding that defendants used the corporation as an alter ego. Piercing the corporate veil based on the alter ego theory requires consideration of factors including commingling of corporate and shareholder funds, failure to maintain separate bank accounts and failure to follow statutory formalities in transacting corporate affairs. Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.5/2/07), 956 So.2d 192.

In this case, George McGovern was accepted as an expert in accounting and testified that he has prepared the tax returns for the Mobleys and MVS for many years. McGovern stated that he periodically reviewed the records of MVS to properly account for the revenues of the company. He testified that the Mobleys at times had used business accounts to pay [^personal expenses, but that he was able to reconcile such discrepancies to maintain the accounts of MVS and the Mobleys separate from each other.

Based on the evidence presented, the plaintiffs failed to establish that the Mob-leys used MVS as their alter ego. Thus, plaintiffs have not proved sufficient grounds to pierce the corporate veil. This assignment lacks merit.

Intentional Interference with Contract

The plaintiffs contend the trial court erred in failing to find that the Mob-leys intentionally interfered with the contract of MVS. The necessary elements for a claim of intentional interference with a contract are the existence of a contract or a legally protected interest between plaintiff and the corporation, the officer’s knowledge of the contract, the officer must intentionally induce the corporation to breach the contract, absence of justification and damages caused by the breach. Mor-Tem Risk Management Services, Inc. v. Shore, 43,169 (La.App.2d Cir.3/19/08), 978 So.2d 588.

Based on this record, the plaintiffs have failed to identify the acts of the corporate officers that were intended to cause MVS to breach a contract with plaintiffs. As stated above, the Mobleys failed to disclose to plaintiffs a transaction with a third party. However, there is no showing that the lack of disclosure was intended to cause MVS to breach an agreement with plaintiffs. Thus, this assignment of error lacks merit.

Declaratory Relief

The plaintiffs contend the trial court should have rendered judgment declaring that plaintiffs continue to have option rights under the lease. 11¾After reviewing this record, we conclude that to the extent the waiver agreement of June 2008 did not affect the shared option rights of Mobley and Norwood under the Second Lanza Deal of August 31, 2007, then plaintiffs may have rights to participate in future wells. However, the plaintiffs would be required to act to exercise any such rights at the time a future well is proposed at the specified depths that were not affected by the sale to Lanza. Thus, the plaintiffs have not shown that declaratory relief is appropriate at this time. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendants’ exception of prescription is denied and the trial court’s judgment is reversed. Judgment is hereby rendered to award the amounts of $572,509 in damages and $169,409 in reimbursement of costs to the plaintiffs, William Norwood, Jennifer Nor-wood and Norwood Minerals, L.L.C. Costs of this appeal are assessed to the appel-lees, Mobley Valve Services, Inc., Mark Mobley and Kimberly Mobley.

EXCEPTION OF PRESCRIPTION DENIED; REVERSED AND. RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Michael D. ELLIS, Appellant.
    No. 49,078-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Louisiana Appellate Project, by Teresa Culpepper Carroll, Jonesboro, for Appellant.
    Charles Rex Scott, II, District Attorney, Karelia Stewart, Jessica D. Cassidy, Janet L. Silvie, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and PITMAN, JJ.
   DREW, J.

L Michael Ellis was found guilty as charged of possession of cocaine with intent to distribute. The jury’s verdict was 11-1. He later pled guilty to being a second-felony habitual offender, and was sentenced as such.

He appeals on four grounds:

1. Insufficiency of the evidence;

2. Failure to grant a mistrial relative to an opening statement comment by the prosecution;

8. Involuntariness of his confession; and

4. Excessive sentence.

We reviewed the record in the light most favorable to the prosecution. We find that no rational trier of fact could have found beyond a reasonable doubt that the defendant specifically intended to distribute the seized drugs.

FACTS

Law officers executed a search warrant at defendant’s Shreveport residence. Only the defendant and Seidah Elzie were present.

The officers seized:

• two small rocks of suspected crack cocaine and a razor blade, found on a plate in Elzie’s possession in the bathroom;

• two wads of cash, totaling $1,285;

k* several small Baggies in a kitchen cabinet;

• an empty box for digital scales on the kitchen counter; and

• a piece of mail, addressed to the defendant at that location.

The Jury Trial

Lieutenant Carl Townley, with the Caddo-Shreveport narcotics unit, was accepted as an expert and testified that:

• the box for digital scales found in the residence was for a type of scale commonly used to weigh illegal substances such as narcotics;

• the presence of the box for scales was inconsistent with personal use;

• he had never heard of a crack user weighing drugs bought for personal use;

• persons who purchase drugs wholesale for later distribution do weigh the drugs to verify the amount bought and amount to be resold;

• the small Baggies seized from the kitchen are called “dime Baggies” and are used to package small amounts of drugs for individual sale;

• the two rocks were worth about $5-$10 each;

• the plate with the drugs and a razor indicated that the rocks had been cut from a larger piece of cocaine and were not yet packaged for sale;

• the way that this crack was cut indicated that the drugs were for sale;

• the cash was in small denominations and “wadded up,” which is consistent with having been in someone’s pocket, which he said also suggested that the money represented proceeds from drug sales; and

• the evidence was consistent with possession with intent to distribute.

Keith Knox, the case agent, testified that:

• as soon as the house was secured; the suspects were handcuffed and separated for questioning, while other officers conducted their search;

h* he explained the Miranda rights to the defendant, who seemed to understand and who voluntarily waived the rights;

• only one other officer was present to hear the statement;

• the defendant admitted selling crack cocaine in small amounts;

• the defendant said he was unemployed but not for how long;

• the statement was not recorded and the officer made no notes;

• an empty box for digital scales was found on the kitchen counter;

• a box of small plastic Baggies was found in a kitchen cabinet;

• he had made thousands of arrests in 15 years as a law officer; and

• an envelope was found, addressed to the defendant at that house.

Officer John Witham testified that:

• Elzie was trying to flush two rocks and a razor blade in the toilet;

• she said the defendant told her to do it;

• chemists later identified the substance as 0.2 gram of crack cocaine;

• no digital scales were ever located; and

• no drugs were found that were already packaged for resale.

Seidah Elzie testified that:

• she was 22 and had a sexual relationship with Ellis, who was 47;

• she did not live with him but stayed at his house several days a week;

• she had been at the house since the night before;

• she was playing a video game when she saw the officers arrive;

• the defendant told her to dump the drugs into the toilet;

[[• only the razor blade fell in, just as the officers burst in the bathroom; and

• the crack cocaine belonged to the defendant.

The defendant asserted his Fifth Amendment right not to testify.

In closing, the state argued that the defendant:

• was found in his home with cocaine, which he told Elzie to destroy;

• admitted he sold cocaine to support himself; and

• the razor blade, box for scales, Baggies, and wads of cash indicated that the defendant was in the business of selling drugs.

The defense responded that:

• the evidence was insufficient to establish that he was in actual or constructive possession of the drugs;

• the evidence showed that it was Elzie who possessed the drugs, as she admitted when she pled guilty to possession of the cocaine;

• the defendant’s mere presence in the house did not establish possession; and

• there was no proof of the intent to distribute, as there were no scales, no drugs packaged for resale, and only a tiny amount of drugs seized.

After the jury found him guilty, the defendant filed a motion for post-judgment verdict of acquittal and/or new trial, which was denied.

The defendant pled guilty as a second felony offender, with an agreed sentencing cap of 25 years. He confirmed a prior conviction of possession of marijuana, third offense, and acknowledged that he could appeal his conviction but not his sentence. The court accepted the plea and sentenced the defendant to 22 years at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence, all to be | ^served concurrently with any other sentence.

DISCUSSION

I. Sufficiency

Our law on appellate assessment of sufficiency questions is clear. |fiOur jurisprudence provides guidance in assessing these .prosecutions.

17Even though the defendant admitted being a small-time drug dealer, and even though no crack pipe was found, we note that only two tiny rocks of crack cocaine were seized from his home, totaling 0.2 gram of cocaine. He never admitted intending to distribute these small, unpackaged rocks.

In State v. Butler, 1999-1794 (La.5/1/00), 760 So.2d 322, the defendant possessed only 0.07 gram of crack cocaine. The defendant admitted that two rocks of cocaine had spilled out of his pocket during his arrest. He also admitted selling drugs but claimed that the “leftover s* *t” was not intended for sale. The state also presented confirmed incriminating information from a confidential informant. These facts were held sufficient to support a verdict of guilty of possession with intent to distribute.

In State v. Gordon, 93-1928 (La.App. 1st Cir.11/10/94), 646 So.2d 1005, the court upheld a conviction for possession with intent to distribute, based on only one gram (worth $80-$100) found in a film canister, and 0.10 gram (worth $20) of cocaine being found in a Baggie. The court held that the fact finder could have inferred Gordon’s intent to distribute from direct and circumstantial evidence.

| sIn State v. Watson, 47,980 (La.App.2d Cir.5/15/13), 135 So.3d 693, units denied, 2013-1676 (La.2/7/14), 131 So.3d 856, and 2013-1788 (La.2/7/14), 131 So.3d 862, we found ample evidence of the intent to distribute cocaine, predicated upon somewhat stronger facts.

Here, only the defendant and Elzie were home when the warrant was served. El-zie — not this defendant — was found in physical possession of the rocks, as she was trying to flush this tiny amount of drugs, valued at a combined total of $10 to $20. The drugs were not packaged for distribution. The jury heard nothing about controlled buys or confidential informants. No scales were found, just a box that had contained scales.

There is no question that this defendant is an admitted drug dealer. We find, however, that this record does not contain enough evidence for a reasonable jury to conclude beyond a reasonable doubt that he possessed these rocks with the specific intent to distribute. It is quite possible that the drugs belonged to Elzie or were for personal usage.

This record does allow, however, a just verdict that the defendant constructively possessed the drugs, along with El-zie. We hereby vacate the l9verdict rendered by the jury, and replace it with a verdict of guilty of possession of cocaine, and remand for sentencing.

II. The Defendant’s Statement

The defendant argues in brief that:

• he was under duress when he incriminated himself while handcuffed;

• he had 16 to 20 armed law officers in his home at the time;

• the officer incorrectly explained his rights under Miranda;

• the officer did not obtain a signed waiver of rights and took no notes;

• the officer’s report was not made until the next day; and

• the statement was not freely and voluntarily made.

The state responds that the statement was free and voluntary.

Our law relative to assessing inculpatory statements is well settled.

| inThe trial court found the testimony of involved officers to be credible. The defendant presented no contrary evidence, only argument of counsel. Indeed, no motion to suppress the statement was even filed.

We do not detect any duress or threats and we find that the trial court was correct in ruling that the defendant made a free and voluntary statement after understanding and waiving his rights per Miranda.

III. Denial of Mistrial

The defendant argues that:

• the prosecution’s reference to the statement in opening arguments was prejudicial to the defendant under La. C. Cr. P. art. 767; and

• the prosecutor misquoted his statement by incorrectly adding that he not only admitted selling cocaine, but also admitted selling it at home.

The state responds that:

• the court thoroughly admonished the jury that arguments of counsel were not ■ evidence; and

• the defendant suffered no prejudice from the comment.

Our law on mistrial is clear. The jury was properly admonished by |nthe trial court. We find no error in the trial court’s denial of a mistrial.,

IV. Sentencing

The defendant would not be entitled to appeal this sentence, as he clearly waived that right at sentencing.

This is a moot point, however, as we vacate the current verdict and replace it with a verdict of guilty of possession of a Schedule II drug, namely cocaine, for which he must now be sentenced.

DECREE

CONVICTION VACATED; CONVICTION OF POSSESSION OF COCAINE

ENTERED; REMANDED FOR FURTHER PROCEEDINGS.

      . The motion for mistrial was cured by an appropriate admonishment to the jury.

      . Defendant filed no motion to suppress the confession, leaving him with the sole argument that his confession was not free and voluntary. The evidence elicited at the pretrial hearing on this issue overwhelming demonstrated that the two law officers appropriately handled questioning of the defendant.

      . Defendant’s sentencing complaints are improper, as he waived his right to appeal his sentence. More importantly, since we now vacate the guilty verdict for possession with intent to distribute cocaine, and enter a conviction for possession of cocaine, this matter must be remanded to the district court for sentencing.

      . $705 was taken off the defendant and $580 was found in a back bedroom.

      . Puzzlingly, Lt. Townley was tendered and accepted, without objection, as "an expert in possession with intent to distribute designating those cases as distribution cases, controlled dangerous substances.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Agent Witham.

      . She pled guilty to possession of cocaine and was placed on probation.

      . The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find 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 standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d • 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cross-ley, 48,149 (La.App.2d Cir.6/26/13), 117 So.3d 585, writ denied, 2013-1798 (La.2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Crossley, supra; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d'833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529.
      Direct evidence provides proof of the existence of a fact, for example, a witness’ testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from .which the existence of the main fact may be inferred according to reason and common experience. Id. The trier of fact is charged with weighing the credibility of this evidence and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder’s conclusions. State v. Hill, 47,568 (La.App.2d Cir.9/26/12), 106 So.3d 617.
      When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra; State v. Robinson, 47,437 (La.App.2d Cir. 11/14/12), 106 So.3d 1028, writ denied, 2012-2658 (La.5/17/13), 117 So.3d 918.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover, 47,311 (La.App.2d Cir.10/10/12), 106 So.3d 129, writ denied, 2012-2667 (La.5/24/13), 116 So.3d 659; State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, ' writ denied, 2009-0372 (La.l 1/6/09), 21 So.3d 299.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the ^reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Woodard, 47,286 (La.App.2d Cir.10/3/12), 107 So.3d 70, writ denied, 2012-2371 (La.4/26/13), 112 So.3d 837; State v. Hill, supra.

      . La. R.S. 40:967(A)(1) provides that it is unlawful for anyone to produce, manufacture, distribute, or dispense or possess with intent to producé, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.
      While it is possible to prove possession with intent to distribute even with small quantities, intent to distribute a controlled dangerous substance is a specific intent crime. State v. Credeur, 2011-234 (La.App. 3d Cir. 11/23/11), 81 So.3d 741.
      Specific intent is a state of mind that may be inferred from the circumstances, of the offense or the defendant's act or failure to act, that indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Thornton, 47,598 (La.App.2d Cir.3/13/13), 111 So.3d 1130. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Allen, 41,548 (La.App.2d Cir. 11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La. 12/7/07), 969 So.2d 619.
      To convict a defendant of possession of a controlled dangerous substance with intent to distribute, the state must prove beyond a reasonable doubt that he knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. La. R.S. 40:967; State v. Williams, 47,574 (La.App.2d Cir. 11/14/12), 107 So.3d 763, writ denied, 2013-0079 (La.6/14/13), 118 So.3d 1080. While specific intent to distribute may be inferred from circumstantial evidence, the state must prove the amount of drugs recovered was inconsistent with personal use. State v. Moore, 48,492 (La.App.2d Cir. 11/20/13), 128 So.3d 608; State v. Credeur, supra. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Holden, 45,038 (La.App.2d Cir.1/27/10), 30 So.3d 1053, writ denied, 2010-0491 (La.9/24/10), 45 So.3d 1072. The state need not prove the defendant actually possessed the drugs, as evidence of constructive possession is sufficient. State v. Holden, supra. Constructive possession is established by evidence that the drugs were within the defendant's dominion and control and that the defendant had knowledge of its presence. Id. Guilty knowledge is an essential element of possession and can be inferred from the circumstances. State v. Toups, 2001-1875 (La. 10/15/02), 833 So.2d 910; State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222.
      A determination of whether a defendant exercised dominion and control includes factors such as the defendant's knowledge that drugs were in the area; the defendant’s relationship with other persons found in actual possession; the defendant’s access to the area where the drugs were found; evidence of drug paraphernalia or of recent drug use; and the defendant’s physical proximity to the drugs. State v. Toüps, supra; State v. Anderson, supra; State v. Marshall, 02-1067 (La.App. 5th Cir.2/25/03), 841 So.2d 881, writ denied, 2003-0909 (La.9/26/03), 854 So.2d 345. A defendant who jointly possesses drugs with a companion and willfully and knowingly shares the right to control the drugs can have constructive possession. State v. Marshall, supra.

      A defendant's confession is direct evidence, for it is an acknowledgment of guilt for which no inference need be drawn. La. R.S. 15:449; State v. Allen, supra. It is well settled that a person cannot be convicted on his confession alone, but once evidence independent of the confession confirms the crime, the confession may provide proof Uniting the accused to the crime. Id.

      Five factors are used to determine whether circumstantial evidence is sufficient to prove intent to distribute a controlled dangerous substance:
      (1) did the defendant distribute or attempt to distribute the drug;
      (2) was the drug in a form usually associated with distribution;
      (3) does the amount of drug create an inference of intent to distribute;
      (4) did testimony establish that the amount of drugs found in the defendant's posses-
      sion was inconsistent with personal use; and
      (5)was there any other evidence of intent to distribute, such as scales or packaging materials.

        State v. Cummings, 46,038 (La.App.2d Cir. 1/26/11), 57 So.3d 499, writ denied, 2011-0341 (La.6/17/11), 63 So.3d 1037. Other relevant factors considered are street value and drug dosage. State v. Stephens, 47,978 (La. App.2d Cir.5/29/13), 114 So.3d 1265, writ denied, 2013-1551 (La. 1/17/14), 130 So.3d 342. Possession by itself does not constitute intent to distribute unless the quantity is so large as to preclude any other inference. State v. Lewis, 48,373 (La.App.2d Cir.9/25/13), 125 So.3d 482.

      . The jury here heard nothing about confidential informants.

      . Gordon, supra, involved:
      • over five times as much cocaine as in this case;
      • considerably more packaging material;
      • a mirror and razor blade with cocaine residue;
      • $2,190 cash, all taken from Gordon's person;
      • business cards with obvious drug distribution notations; and
      • baking soda for diluting cocaine for street sales.

      . Some of the factors in Watson, supra:

      • Over 10 grams of cocaine (50 times more than here);
      • Small "Apple” Baggies, containing cocaine, i.e., packaged for sale;
      • Dozens of other small Baggies;
      • Actual electronic scales (more than just a box); and
      • a razor blade with cocaine residue.

      . Elzie, a state witness, had this exchange with the prosecutor:
      Prosecutor: "They looked like two $10 rocks?”
      Elzie: "One $10 rock. They’re little bitty specs.”

      . At a "free and voluntary” hearing, the trial court found that the statements made by this defendant were voluntary and freely made.

      . Generally, for a confession to be admissible into evidence, the state must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; State v. Anderson, 2006-2987 (La.9/9/08), 996 So.2d 973, cert, denied, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009); State v. Parker, 48,339 (La.App.2d Cir. 10/9/13), 124 So.3d 516. The state must also establish that an accused was advised of his federal and state constitutional rights, and that he understood and knowingly waived those rights. Parker, supra. Volun-tariness is determined on a case-by-case basis, under a totality of the circumstances standard. Id.

      A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless the evidence fails to support the trial court's determination. State v. Holmes, 2006-2988 (La. 12/2/08), 5 So.3d 42, cert, denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009); State v. Fisher, 46,997 (La.App.2d Cir.2/29/12), 87 So.3d 189. A defendant’s prior experience with the criminal justice system is a factor to be considered in determining the voluntariness of a confession. State v.

        Green, 94-0887 (La.5/22/95), 655 So.2d 272; State v. Ashworth, 554 So.2d 271 (La.App. 3d Cir.1989), writ denied, 561 So.2d 113 (La. 1990).
      A waiver of rights need not be explicit but may be inferred from the actions and words of the accused. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Harvill, 403 So.2d 706 (La. 1981); State v. Taylor, 30,310 (La.App.2d Cir. 2/25/98), 709 So.2d 883; State ex reí. J.M., 99-1271, (La.App. 4th Cir.6/30/99), 743 So.2d 228. Although an express written or oral waiver of rights is strong proof of the validity of the waiver, it is not necessary to establish a waiver of rights. North Carolina, supra. The absence of a written waiver of rights would not be grounds to suppress a confession. State v. Samuels, 94-1408 (La.App. 4th Cir.6/7/95), 657 So.2d 562.

      . The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case. La. C. Cr. P. art. 767
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it, might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney", or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. La. C. Cr. P. art. 771.