author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana in the Interest of M.H.
    No. 13-KA-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Revettea D. Woods, Attorney at Law, Office of Juvenile Justice, for Plaintiff/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

|2M.H. was adjudicated Family in Need of Services (“FINS”), minor ungovernable pursuant to La. Ch.C. art. 730(2) on May 5, 2012 and subsequently adjudicated delinquent for resisting an officer with force or violence in violation of La. R.S. 14:108.2 on December 5, 2012. The Louisiana Department of Public Safety and Corrections, Youth Service, Office of Juvenile Justice (“the OJJ”) appeals the juvenile court’s March 7, 2013 orders, placing M.H. in the protective custody of the OJJ for a period of time that exceeds the suspended ninety day disposition previously ordered by the court. For the reasons that follow, we vacate the juvenile court’s March 7, 2013 orders granting custody of M.H. to the OJJ for out-of-home placement in a residential treatment facility or group home and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On April 4, 2012, the Jefferson Parish District Attorney filed a delinquency petition in juvenile court, Petition A, charging M.H. with theft of currency valued under $500.00 in violation of La. R.S. 14:67. The petition alleged that M.H. stole $45.00 from her mother’s wallet and $200.00 from her grandmother. The juvenile denied the allegations at her appearance to answer on April 5, 2012. On May 2, 2012, the State amended the theft charge to allege that M.H. was ungovernable, Family in Need of Services under La. Ch.C. art. 730(2). On that same day, M.H. |swas adjudicated “Family in Need of Services,” and the juvenile court placed M.H. on “trackers,” and ordered a predisposition investigation (“PDI”).

On May 7, 2012, a warrant was issued for the juvenile’s arrest after her mother reported that the juvenile absconded from her residence and her whereabouts were unknown. The arrest warrant was satisfied with M.H.’s arrest for contempt of court on May 15, 2012. The juvenile court released M.H. to her mother and set a disposition hearing for June 28, 2012. Pri- or to the disposition hearing, a “FINS Report to the Court” and a Placement Prevention Case Plan Addendum were filed with the court, recommending that M.H. be placed on active probation and that she was not a candidate for foster care at the time.

The disposition hearing was held on July 19, 2012. The juvenile court placed M.H. on active probation for one year, beginning on July 19, 2012, for the offense of La. Ch.C. art. 730(2), minor ungovernable. A Family in Need of Services contract was executed by M.H., her mother, her attorney, the probation officer, and the trial judge, Judge Andrea P. Janzen, and made the judgment of the court. The contract set forth general and special conditions of probation.

Thereafter, on September 11, 2012, the juvenile’s probation officer filed a Rule to Show Cause on Constructive Contempt. The probation officer requested that the juvenile be held in constructive contempt of court for failure to observe the stated conditions of her probation. Specifically, the officer alleged that on September 8, 2012, the juvenile left her mother’s home without permission, that she did not attend school on September 10, 2012, and that she failed to notify Probation of her whereabouts. On September 13, 2012, the juvenile court held M.H. in contempt of court for violating the conditions of her probation, and “sentenced” her to 15 days in detention with credit for time served. This |/‘sentence” was suspended based upon M.H. completing 15 days on electronic monitoring program (“EMP”).

Subsequently, on October 1, 2012, M.H.’s probation officer filed another Rule to Show Cause on Constructive Contempt, alleging that M.H. violated her probation. The probation officer complained that M.H. violated EMP on September 20, 2012, by not returning home until 8:42 p.m. M.H. told Probation that she had flag team and basketball practice, but Probation confirmed she did not play basketball and only attended five minutes of flag team practice. Instead, it was learned that the juvenile attended a volleyball game that she was not given permission to attend. Further, the officer provided that the juvenile left her mother’s house at 6:22 a.m. on September 28, 2012, to attend school and did not return home after early dismissal from school. On October 2, 2012, the juvenile court found M.H. to be in constructive contempt and sentenced her to 22 days of GPS (“global positioning system”) tracking device supervision and to two weekends in a detention facility.

Thereafter, M.H. was again brought before the juvenile court on a Rule to Show Cause on Constructive Contempt. Specifically, on November 5, 2012, M.H.’s probation officer alleged that she had left her mother’s vehicle on October 31, 2012, without her permission and that she did not attend school on November 2, 2012. The probation officer also indicated that the juvenile failed to notify Probation of her whereabouts. When M.H. was arrested on the constructive contempt warrant on November 5, 2012,. she kicked the arresting officer in the leg. As a result, the Jefferson Parish District Attorney filed a delinquency petition, | ^Petition C, charging M.H. with resisting an officer with force or violence in violation of La. R.S. MriOS^.

On November 8, 2012, the juvenile court held a review hearing and a contempt hearing regarding Petition A. The judge held M.H. in contempt of court and sentenced her to 15 days in detention, with credit for time served. The judge further instructed M.H. that if her behavior did not improve, she would be placed out of the home. Accordingly, the judge ordered a psychological evaluation of M.H. to determine whether out-of-home placement was appropriate.

On December 5, 2012, the juvenile court held a review hearing regarding Petition A, wherein no problems were reported at that time. Specifically, the report regarding M.H.’s psychological evaluation recommended continued in-home placement. The Division of Probation also filed a Review Summary, recommending that M.H. remain on active probation. On the same date, M.H. admitted to the resisting an officer with force or violence charge of Petition C.

Thereafter, on December 27, 2012, a review hearing was conducted regarding Petition A. It was determined that the minor was doing well at home and school, with no reported violations. On the same day, M.H. was adjudicated delinquent for resisting an officer with force or violence, as charged in Petition C. The court entered a judgment of disposition, ordering M.H. to serve 90 days with the Office of Juvenile Justice (“OJJ”). However, this disposition was suspended, and M.H. was placed on active probation for 18 months. A probation contract was executed and made the judgment of the court.

In the months following M.H.’s adjudication on Petition C, she was found to be in constructive contempt of court on three separate occasions for probation |^violations on January 24, 2013, February 26, 2013 and March 7, 2013. The probation violations consisted of (1) implicating herself in the theft of property on January 24, 2013; (2) failing to attend school and failing to return home on February 26, 2013; and (3) failing a drug test on March 7, 2013. On each of the three contempt hearings, the juvenile court sentenced M.H. to 15 days in detention at Rivarde Detention Center, with credit for time served.

During the February 26, 2013 contempt hearing, the judge admonished M.H. that she had already been warned during a previous contempt hearing on November 8, 2012, that she would be placed out of the home if her behavior did not improve. Accordingly, the judge ordered an updated psychological evaluation to determine whether out-of-home placement would now be appropriate, noting that M.H. was looking at either 90 days in secure custody or until her eighteenth birthday in non-secure custody. In addition, the judge ordered M.H.’s case to be re-staffed with the OJJ and instructed the parties to report back for a review hearing on March 7, 2013, “to decide what we’re going to do with her before she gets out of Rivarde.”

However, in the interim, M.H. tested positive for drugs while serving her 15-day sentence at Rivarde. As a result, the March 7, 2013 review hearing was also set for a constructive contempt hearing related to the positive drug test probation violation, for which, M.H. was found to be in contempt of court and sentenced to 15 days detention in Rivarde, with credit for time served. During the review hearing on March 7, 2013, M.H.’s probation officer testified that the updated psychological evaluation recommended that she be placed out of the home. The psychological evaluation specifically recommended that M.H. be considered for out-of-home placement in a structured group home. M.H.’s mother also testified at the hearing and requested that M.H. be temporarily placed out of the home.

|7The judge noted that reasonable efforts had been made to avoid removing M.H. from her mother’s custody and discussed the specific efforts made and the assistance provided in the matter. Accordingly, the court placed M.H. in the custody of the OJJ pursuant to the recommendation of the psychological evaluation. The court ordered that she be placed in a structured residential treatment facility or group home, preferably outside of the New Orleans area so she would not continue to run away, noting that she puts herself and possibly the community at risk by being on the streets. The court gave the OJJ two weeks to place the juvenile and ordered that reviews would be conducted every 30 days to determine M.H.’s progress in her placement. The judge instructed M.H. that “[a]s soon as your behavior gets back under control, and you can demonstrate to us that you are trustworthy again, I’ll let you go back home.”

The court issued two orders on March 7, 2013, placing M.H. in the non-secure custody of the OJJ — a Delinquency Continued Custody Hearing Order and an Order Granting Custody. The Order Granting Custody placed M.H. in the protective custody of the OJJ to be kept within the jurisdiction of the court pending further orders. The Delinquency Continued Custody Hearing Order provided that M.H.’s sentence for Petition A was “7/18/13” (reflecting the one year of probation M.H. received on Petition A) and her sentence for Petition C was “6/26/14” (reflecting the 18 months of probation M.H. received on Petition C). The Order further provided that pursuant to a continued custody hearing conducted in accordance with La. Ch.C. art. 819, M.H. was to be placed in the non-secure custody of the OJJ for placement in a residential treatment facility or group home outside of the New Orleans area. The Order also set a review hearing for March 21, 2013.

[sOn March 21, 2013, a review of placement hearing was conducted, as to Petitions A and C, and it was learned that M.H. had been placed in a Louisiana mentor home in Alexandria. Shawn Herbert of the OJJ testified that the length of M.H.’s stay was dependent upon her behavior, noting that the average length of stay was four to six months. The court ordered that M.H. be enrolled in school by Monday morning, and that ongoing probation fees be suspended while the minor was in the custody of the OJJ. The court explained that the probation fees would be suspended from March 7th until the juvenile returned to DJS supervision.

On March 25, 2013, the OJJ filed a motion and notice of appeal from the March 7, 2013 Order, placing M.H. in the protective custody of the OJJ. The appeal was granted on the following date, and the Order of March 7, 2013, which placed M.H. in the protective custody of the OJJ, was stayed. This appeal now follows.

ASSIGNMENTS OF ERROR

On appeal, the OJJ raises the following assignments of error:

1. It is error for a youth to be placed in the custody of the Office of Juvenile Justice for a period of time that exceeds the suspended ninety day commitment previously ordered by the Court.
2. It is error for a youth to be placed in the protective custody of the Office of Juvenile Justice.

DISCUSSION

In its first assignment of error, the OJJ argues that the juvenile court erred by placing M.H. in its custody for a period of time that exceeds the suspended 90-day commitment set forth in the court’s original disposition. Specifically, the OJJ contends that the juvenile court revoked M.H.’s probation on March 7, 2013, when it placed her in the non-secure custody of the OJJ pursuant to the Delinquency Continued Custody Hearing Order and the Order granting custody. The OJJ argues |9that under La. Ch.C. art. 915, the juvenile court was limited to reinstating M.H.’s original suspended 90-day commitment, with credit for time served. La. Ch.C. art. 915 provides as follows:

A.When revoking a previous order of probation, the court may reinstate the original suspended or deferred disposition order and commit the child to the Department of Public Safety and Corrections for the term of that order, with credit for any time served in secure detention prior to the revocation hearing and with or without credit for time served on probation, in the discretion of the court. In no event shall the term of commitment exceed the maximum term of imprisonment for the offense forming the basis for the original adjudication.
B. When finding a child in direct or constructive contempt of court, commitment for each contempt shall not exceed fifteen days, including time spent in detention for the contempt prior to adjudication for contempt.
C. When the conduct alleged as the basis for probation revocation also constitutes a delinquent act, a petition shall be filed and an adjudication hearing scheduled for resolution of the new offense. If the child is adjudicated delinquent on the new petition, the order of disposition may include any sanction authorized by this Title as well as the revocation of the child’s probation and imposition of any suspended disposition originally ordered.

Rather than reinstating M.H.’s original 90-day disposition in accordance with La. Ch.C. art. 915, the OJJ contends that the juvenile court erroneously committed M.H. to its custody for a period of time that exceeds her 90-day suspended sentence. In fact, the OJJ argues that the court committed M.H. to its custody without specifying the maximum duration of the disposition. Although the OJJ admits that the March 7, 2013 Delinquency Continued Custody Hearing Order “appears” to specify that the duration of M.H.’s disposition concludes on July 18, 2013 for Petition A and on June 26, 2014 for Petition C, it argues that these commitment periods nonetheless violate La. Ch.C. art. 915 because they exceed M.H.’s original 90-day disposition.

|inAs an initial matter, we note that the OJJ bases its arguments on the notion that the juvenile court placed M.H. in its protective custody on March 7, 2013, after revoking her probation, as provided in La. Ch.C. art. 915. However, there is no indication in the record that the court actually revoked M.H.’s probation in the orders at issue. Instead, the record shows that the court held a “constructive contempt hearing” on February 26, 2013, and a “review hearing” as well as a “constructive contempt hearing” on March 7, 2018. During the February 26, 2013 constructive contempt hearing for M.H.’s alleged probation violation, the court ordered M.H. to serve 15 days in Rivarde, as well as an updated psychological evaluation to assess the option of out-of-home placement for M.H. The transcript from the February 26, 2013 hearing reveals that the judge might have contemplated revoking M.H.’s probation. Specifically, the judge noted that “[M.H.] has a suspended sentence on the resisting an officer charge of 90 days. She could get 90 days in secure custody.” Furthermore, the judge warned M.H. that “my court reporter is going to tell me whether it’s 9 months — I mean 90 days or 6 months that you are looking at out-of-home placement for secure custody. And I can keep you until your 18th birthday in a non-secure facility.” Despite these statements, the judge set the matter for a review hearing — not a revocation hearing — on March 7, 2013 to decide what they were “going to do with [M.H.] before she gets out of Rivarde.” In the interim, the March 7, 2013 hearing was also set for a constructive contempt hearing due to M.H.’s recent positive drug test result.

During the March 7, 2013 review/constructive contempt hearing, the court made no mention of probation revocation. Rather, the court sentenced M.H. to 15 days detention in Rivarde in connection with the constructive contempt finding. As for the review hearing, the court concluded that M.H. put herself, and possibly the community, at risk by remaining on the street. Therefore, the court issued the | n Delinquency Continued Custody Hearing Order, placing M.H. in the non-secure custody of the OJJ pursuant to the recommendation of the psychological evaluation. The Order further held that M.H. be placed in a residential treatment facility or group home outside of the New Orleans area so she cannot continue to run away. On the same date, the court issued the Order granting custody, which placed M.H. in the protective custody of the OJJ pending further orders from the court. Neither of the two orders reference revoking M.H.’s probation.

Contrary to the OJJ’s argument on appeal, our review of the record shows that it is completely devoid of any indication of probation revocation. There is no evidence of a motion to revoke, a revocation hearing or any waiver of M.H.’s right to such a hearing, as provided in La. Ch.C. art. 913. Because nothing in the record specifically suggests that the juvenile court revoked M.H.’s probation through its issuance of the March 7, 2013 orders, we find no error in the juvenile court’s failure to adhere to the probation revocation requirements set forth in La. Ch.C. art. 915.

The question remains, however, as to whether the juvenile court erred in failing to specify a maximum duration of the March 7, 2013 disposition. Under La. Ch.C. art. 903(B)(6), a judgment of disposition is required to specify “[t]he maximum duration of the disposition, and, if committed to the custody of the Department of Public Safety and Corrections, the maximum term of commitment.” See State ex reí. S.D., 01-670 (La.App. 5 Cir. 1/29/02); 807 So.2d 1138, 1146; citing La. Ch.C. art. 903(B)(6). Further, under La. Ch.C. art. 900(A), “[n]o judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the offense which forms the basis of the adjudication.” 112/⅛; citing La. Ch.C. art. 900(A). In this case, M.H. was adjudicated delinquent under La. R.S. 14:108.2 for resisting an officer with force or violence, for which, the maximum term of imprisonment is three years.

Neither the Delinquency Continued Custody Hearing Order, nor the Order granting custody specify the duration of the disposition placing M.H. in the non-secure custody of the OJJ. Although the Delinquency Continued Custody Hearing Order provides that M.H.’s sentence on Petition A is “7/18/13” and her sentence on Petition C is “6/26/14,” we find that these dates relate to the conclusion of M.H.’s separate terms of probation of one year on Petition A, and 18 months on Petition C — not to the duration of M.H.’s out-of-home placement in OJJ’s custody. In fact, after the court ordered that M.H. be placed in the OJJ’s custody, the judge instructed M.H. that “[a]s soon as your behavior gets back under control, and you can demonstrate to us that you are trustworthy again, I’ll let you go back home.”

In State ex reí. S.D., we found the disposition to be deficient for placing a juvenile in the custody of the Department of Public Safety and Corrections/Office of Youth Development for placement in a residential treatment facility, without specifying the maximum term of commitment as required by La. Ch.C. art. 903(B)(6). State ex rel. S.D., 807 So.2d at 1146. In the instant case, the March 7, 2013 disposition is similarly deficient because it also places a juvenile, M.H., in the custody of the State, the OJJ, for placement in a residential treatment facility or group home, without specifying the maximum duration of M.H.’s commitment as required by La. Ch.C. art. 903(B)(6). Furthermore, the March 7, 2013 disposition also fails to comply with La. Ch.C. art. 900 because it potentially allows the commitment to remain in effect for longer than three years, which is the maximum term of imprisonment for resisting an officer with force or violence in violation of 113La. R.S. 14:108.2. Accordingly, we find that the juvenile court erred in failing to specify the maximum duration of the March 7, 2013 disposition.

Nevertheless, we are still left with the question regarding what authority the juvenile court relied upon in placing M.H. in the non-secure custody of the OJJ for placement in a residential treatment facility or group home on March 7, 2013. Notably, the Delinquency Continued Custody Hearing Order provides that “[tjhis matter came before the court for continued custody hearing pursuant to Louisiana Children’s Code article 819.” La. Ch.C. art. 819 provides as follows:

If a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s entry into the juvenile detention center or shelter care facility. If the hearing is not held, the child shall be released unless the hearing is continued at the request of the child.

Although the court called the March 7, 2013 hearing a continued custody hearing in its order, it was not such a hearing. La. Ch.C. art. 820 defines a continued custody hearing as one where “the state shall prove that there is probable cause that the child has committed a delinquent act or has violated a condition of his probation or release.” At the March 7, 2013 review/constructive contempt hearing, there was no probable cause determination regarding whether M.H. had committed a delinquent act or a probation violation. Although the Delinquency Continued Custody Hearing Order provides that continued custody is necessary because it is contrary to the welfare of - M.H. to remain at home, such a finding is not an acceptable basis for continued custody under La. Ch.C. art. 820. Rather, a probable cause determination is required. Moreover, as we have noted, the juvenile court clearly set the matter for a “review hearing” and a “constructive contempt hearing” on March 7, 2013 — not a “continued custody hearing.” The court did not employ the proper procedure for a continued custody hearing, as set forth in La. Ch.C. art. 819, et seq.

114Eecause the hearing of March 7, 2013 was not a “continued custody hearing” within the meaning of Chapter 5 of Title VIII of the Children’s Code, we find that the juvenile court was without authority to issue the Delinquency Continued Custody Order on March 7, 2013, and therefore, we must vacate that order. In addition, because we cannot determine from the record, and will not assume, what authority the juvenile court intended to rely upon in placing M.H. in the custody of the.OJJ, we must also vacate the March 7, 2013 Order granting custody, and remand the matter for further proceedings. Accordingly, the issue raised in the OJJ’s second assignment of error is rendered moot.

ERROR PATENT DISCUSSION

Although there is no statutory provision that affirmatively grants courts the authority to review juvenile delinquency proceedings for patent error, this Court has conducted limited reviews for error patent in the past. State ex reí. Z.S., 01-1099 (La.App. 5 Cir. 2/26/02); 811 So.2d 1003, 1008. However, because the OJJ has filed the appeal in this matter, and not the juvenile M.H., we decline to conduct an error patent review of this matter.

CONCLUSION

Therefore, for the reasons provided above, we find that the juvenile court mistakenly relied upon La. Ch.C. art. 819 in ordering that M.H. be placed in the non-secure custody of the OJJ for placement in a residential treatment facility or group home on March 7, 2013. Accordingly, the March 7, 2013 Delinquency Continued Custody Hearing Order and the March 7, 2013 Order granting custody are hereby vacated, and the matter is remanded for further proceedings.

VACATED AND REMANDED

      . On the same date, another delinquency petition was filed, Petition D, charging M.H. with battery of a police officer on or about November 5, 2012, in violation of La. R.S. 14:34.2. This petition was later dismissed after M.H. admitted to the charge specified in Petition C.

      . La. Ch.C. art. 913 provides that "[a] motion to revoke a child’s probation shall be accompanied by a supporting affidavit specifying the claimed violations which form the basis of the revocation,” and "the court shall conduct a contradictory hearing,” unless the child waives his right.


source: Caselaw Access Project

author: PICKETT, Judge. PETERS, J.

license: Public Domain

text:
    MAW ENTERPRISES L.L.C. et al. v. CITY OF MARKSVILLE, et al.
    No. 13-456.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.
    Rehearing Denied Dec. 11, 2013.

      Rodney M. Rabalais, Marksville, LA, for Plaintiff-Appellee, Couvillon Payless, Inc.
    Derrick M. Whittington, Whittington Law Firm, Marksville, LA, for DefendanL-Appellant, City of Marksville.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

hThe City of Marksville appeals the judgment awarding the plaintiff damages caused by the City’s wrongful denial of a license to sell alcohol to the plaintiffs lessee. As discussed below, we amend the judgment to increase the award of court costs and affirm as amended.

DISCUSSION

In November 2009, MAW Enterprises, L.L.C. (MAW) entered into a lease with Couvillon Payless Inc. (Couvillon), a family-owned business entity that owns property in Marksville. A convenience store on the property has been operated by various parties without interruption since 1978. A liquor license had been issued to the premises continuously from 1978 through December 2009. Pursuant to the terms of the lease: no rent was due the first three months; the next three months, the rent was $.05 per gallon of the gas sold; and thereafter, the rent increased to $4,000 per month.

MAW began operations in December 2009. The City granted MAW an occupational license, and it began operating the convenience store. In January 2010, MAW submitted an application to obtain a liquor license that the City denied. Cou-villon agreed not to demand rent from MAW until MAW obtained a liquor license.

MAW and Couvillon sued the City of Marksville in April 2010, seeking a mandamus ordering the City to grant MAW a liquor license or, alternatively, a declaratory judgment declaring the City’s ordinance to be without effect, together with damages and attorney fees. In June 2010, the City granted a liquor license to MAW. After its liquor license was issued, MAW dismissed with prejudice its claims against the City and began paying Couvillon rent in July 2010. The City |2filed peremptory exceptions of no cause of action and no right of action as to Couvillon’s claims.

A hearing on the exceptions was held, and the trial court denied both exceptions. The trial court immediately proceeded to trial on the merits of Couvillon’s claims. At the conclusion of the trial, the trial court took the matter under advisement and allowed the parties to submit post-trial memoranda. Thereafter, the trial court issued Reasons for Ruling in which it concluded that the City’s denial of a liquor license to MAW was unjustified. The trial court determined that MAW terminated its lease with Couvillon due to the City’s unjustified denial of a liquor license and that Couvillon proved it suffered damages as a result of the City’s wrongful action in the amount of $72,000 for lost rentals, less $15,000 in rent paid by MAW. It also awarded Couvillon $7,500 in attorney fees. A judgment against the City awarding damages and attorney fees in these amounts was signed.

The City appealed and assigned the following three errors with respect to the trial court’s judgment:

1. The trial court erred in holding the City of Marksville liable to Couvillon for damages because Couvillon’s claims arise from a contract to which the City was not a party.
2. The trial court’s calculation of damages was erroneous.
3. The trial court erred in failing to consider the comparative fault of Couvillon and MAW.

DISCUSSION

Couvillon’s Right to Recover Damages

The City urges that Couvillon has no cause of action against it for the relief awarded by the trial court.

RThe function of an Exception of No Cause of Action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleading. Any doubts must be resolved in favor of the sufficiency of the petition.
No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be denied. A “cause of action” is an act by a Defendant which gives a Plaintiff a right to invoke a judicial interference on his behalf.

La. Crawfish Producers Ass’n-West v. Amerada Hess Corp., 05-1156, p. 2 (La. App. 3 Cir. 7/12/06), 935 So.2d 380, 382, writ denied, 06-2301 (La.12/8/06), 943 So.2d 1094 (quoting Harp v. Pine Bluff Sand & Gravel Co., 98-1634, p. 4 (La.App. 3 Cir. 11/24/99), 750 So.2d 226, 229 (citations omitted)).

The City asserts that because Couvillon was not a party to the contract between it and MAW, Couvillon has no cause of action for the damages it seeks. It argues that MAW, not Couvillon, has the right to collect the damages Couvillon seeks and that Couvillon’s cause of action is against MAW not it. Pointing to Louisiana Crawfish, 935 So.2d 380, PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984), and Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) as support, the City urges that a contractual relationship such as the lease agreement between Couvillon and MAW does not support the recovery of damages by a party who was not directly injured by the tortfeasor.

In PPG, 447 So.2d 1058, the supreme court denied recovery to the customer of a natural gas pipeline owner whose gas supply was interrupted when the pipeline was damaged by the defendant’s dredging operation. The court utilized the duty-risk analysis and concluded that the ease of association between the rule of law not to negligently damage the property of another was not present with |4regard to the pipeline’s customer whose only interest in the damaged pipeline arose from its contract with the owner.

Couvillon contends, however, that the City’s refusal to issue MAW a liquor license constituted “a wrongful taking of an existing right” it owned and that the wrongful taking deprived it of the benefits of an ongoing business. Specifically, Cou-villon argues that the City’s ordinance was preempted by state law because it conflicted with an applicable state statute.

Louisiana Revised Statutes 26:81 governs the issuance of permits to sell alcoholic beverages with regard to the location of businesses selling such beverages. Section 81 (emphasis added) provides, in pertinent part:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.

C. (1) When prohibited by municipal or parish ordinance, no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, school, full-time day care center as defined in R.S. 17:405(A)(4)....

E. The prohibitions in this Section do not apply ... to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.

Section 11-19.1 of the City’s Code of Ordinances, adopted on August 25, 1980, restricts the issuance of permits “to those persons licensed by the Town of Marks-ville to deal in beverages of low alcoholic content continuously and without interruption from August, 1978 or before, until the time of each successive renewal, and only for the particular premises which those persons have so licensed.” The state statute exempts the premises for which the liquor license is 1 ^sought, not the person as the City ordinance does; therefore, the ordinance conflicts with the state law. A municipal ordinance that conflicts with state law is preempted by the state law. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244.

The City does not dispute that its ordinance conflicts with La.R.S. 26:81 and that it wrongfully denied MAW a liquor license based on its ordinance. Couvillon owns the premises leased by MAW for which the City denied a liquor license and was damaged by the City’s wrongful action. Accordingly, Couvillon stands in the position of the property owners in Louisiana Crawfish, 935 So.2d 380, PPG Industries, 447 So.2d 1058, and Robins, 275 U.S. 303, 48 S.Ct. 134, not the parties to whom recovery was denied. Accordingly, the exception of no cause of action was properly denied.

Damages

The City complains that the trial court’s award of damages exceeds the loss proven by Couvillon. Specifically, it contends that the damages proven do not exceed a period of approximately six months.

Mr. Couvillon testified that rental for tenants prior to MAW, except the immediately preceding tenant, had been based on gas sales and averaged approximately $4,000 or more per month. He then explained that the tenant immediately preceding MAW had paid $4,000 per month in rent. Records of gas sales for the years 2007-09 corroborate this testimony.

Mr. Couvillon also testified that after the City denied MAW a liquor license, Couvillon orally amended its lease with MAW to waive rent on a month-by-month basis until MAW obtained a liquor license and that rentals were to increase to $4,000 per month thereafter. Mr. Couvillon further related that while MAWs Rsales increased after its liquor license was issued, those sales were not sufficient to sustain rent of $4,000 per month. Instead, MAW paid Couvillon rent totaling $15,000 for the months of July through December 2010. William Brittain, corporate representative of MAW, explained that MAW paid rentals of $2,000 for the month of July, $3,000 per month for August through November, and it left gas in the tank as rent for December 2010 when it left the premises.

Mr. Couvillon testified that a new tenant leased the premises a few weeks after its lease with MAW was terminated and that the convenience store was closed during that time. Mr. Couvillon also testified that Couvillon did not charge the new tenant rent for six months, indicating this was done to allow sales to return to a level that was profitable for the tenant. According to Mr. Couvillon, the convenience store’s gas sales “went [d]own the tube” when MAW was denied a liquor license and never improved to the level of sales before MAW’s lease. The City did not present any evidence contradicting either Mr. Cou-villon’s or Mr. Brittain’s testimony.

An appellate court’s award of damages is a finding of fact. Rando v. Anco Insu-lations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. An appellate court cannot reverse a trial court’s finding of fact unless review of the entire record shows that a reasonable factual basis does not exist for the finding and that the fact finder was clearly wrong or manifestly erroneous. Id. When credibility of a witness’s testimony is the basis of the factual finding, a fact finder’s decision to accept the unchallenged testimony of a witness can virtually never be manifestly erroneous. Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798.

|7As outlined above, the evidence establishes a reasonable factual basis exists in the record for the trial court’s damage awards. Accordingly, we find no error in the trial court’s damage award.

Comparative Fault

The City contends that Couvillon should be assessed with some percentage of fault because it did not apply for a liquor license after the City denied MAW a liquor license. Review of Darnell v. Taylor, 236 So.2d 57 (La.App. 3 Cir.), urrit denied, 239 So.2d 346, 256 La. 821 (1970), the case cited by the City as support for this proposition, shows the error of this argument. The plaintiff in Darnell could have, but failed, to minimize the damage he suffered after a leak developed in a gas tank due to a defect in the tank because he did not properly monitor the contents of the tank. Hence, the issue in Darnell was not comparative fault but mitigation of damages.

The obligation of a party like Couvillon to mitigate its damages is provided for in La.Civ.Code art.2002. Article 2002 requires “[a]n obligee [to] make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform.” If the obligee fails to take reasonable steps to mitigate its damages, the obligor may seek to have the obligee’s damages reduced.

Mitigation of damages is an affirmative defense. MB Indus., LLC v. CNA Ins. Co., 11-303, 11-304 (La.10/25/11), 74 So.3d 1173. Affirmative defenses are waived if not specifically plead. La.Code Civ.P. art. 1005. The City did not affirmatively plead mitigation of damages when it answered Couvillon’s petition; therefore, the defense was waived.

^DISPOSITION

Finding no error in the trial court’s denial of the exception of no cause of action and awards of damages and attorney fees, we amend the judgment to increase the award of court costs to $1,463.54 and affirm as amended.

AFFIRMED AS AMENDED.

PETERS, J., dissents and assigns reasons.

PETERS, J.

dissents.

hi respectfully disagree with the majority’s determination that La.R.S. 26:81 affords Couvillon Payless, Inc. (Couvillon) a cause of action against the City of Marks-ville (Marksville) for damages it sustained when MAW Enterprises, L.L.C. (MAW) did not perform according to their lease agreement after Marksville denied MAW a liquor license for the convenience store premises. The majority reaches this conclusion based on the word “premises” rather than “person” in La.R.S. 26:81. Because Couvillon owns the premises leased to MAW, the majority reasons, it has a cause of action for damages against Marksville despite the total lack of a contractual relationship. I find that the emphasis on the statute, without taking into consideration the other provisions concerning the grant of a liquor license, is error. I would reverse the trial court judgment finding that Couvillon does not have a cause of action against Marksville.

The Louisiana Alcohol Beverage Control Law, La.R.S. 26:1 et seq., clearly provides that the person wishing to sell alcoholic beverages on a particular premises is the party at interest in the granting or denying of a permit. Louisiana Revised Statutes 26:71 provides in pertinent part that “before engaging in the ^business of manufacturing, supplying, or dealing in alcoholic beverages, all persons shall obtain from the commissioner ... a permit to conduct each separate business ...” (Emphasis added.) A list of the fees to be collected for the issuance of a particular license follows this language in the statutes and this list makes it clear that the applicant must pay a separate fee for the operation of each separate business location. Id.

With regard to the issuance of local permits, La.R.S. 26:74 does not refer to the premises associated with the sale of alcoholic beverages, but instead provides that “[pjarishes and municipalities may require annual permits and fees from dealers holding state permits under this Chapter.” (Emphasis added.) Louisiana Revised Statutes 26:2(5) defines a “dealer” in part as “any person who, as a business ... sells [or] offers for sale ... any alcoholic beverage in the state or engages herein in any business transaction relating to any such beverage.” In keeping with the personal nature of the required permits, La.R.S. 26:75(A) provides in pertinent part that “[n]o person shall do any act for which a permit is required by this Chapter or by local authorities acting hereunder unless he holds the proper state and local permit.” (Emphasis added.)

Louisiana Revised Statutes 26:76 also carries forward the personal nature of the permit to sell alcoholic beverages. It provides that the permit is not assignable or heritable, and that it must be surrendered if the “ownership of the business is transferred or the business is terminated.” La. R.S. 26:76(A)(2). Of importance to the resolution of the issue in this case is La. R.S. 26:76(A)(4) which provides:

When the location of a place of business is proposed to be changed, the proposal shall be received and must be approved by the issuing authority before such action is taken. The change of location shall be noted on the permit by the issuing authority and the permit shall be invalid unless the notation is made.

| o,Furthermore, the statutory scheme provides that the applicant for a liquor license permit must be the party proposing to engage in the business or operation itself. La.R.S. 26:77-80.

I acknowledge that La.R.S. 26:81(B)(S), (C)(1), (C)(2), and (E) all refer to the “premises” as having been licensed. However, the title of this statute explains the change in nomenclature for use in this particular instance. The statute’s title, “Location of business limited,” does not refer to the licensing process, but addresses the location of the business itself. That is to say, it merely sets forth the limitations on where the liquor license may be exercised. I find nothing in the language of La.R.S. 26:81 that suggests this single statute changes the particulars of the remainder of the Chapter.

I would reverse the trial court’s judgment by granting Marksville’s peremptory exception of no cause of action and dismiss the claims of Couvillon Payless Inc. at its costs.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Walter V. WALKER, Appellant.
    No. 48,393-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project, By: Douglas Lee Harville, for Appellant.
    James Edward Paxton, District Attorney, Anita Tennant Mack, Edwin Mober-ley, Assistant District Attorneys, for Ap-pellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   DREW, J.

| T Walter V. Walker entered a Crosby plea, reserving his right to appeal the trial court’s denial of both his motion to suppress his confession and his motion to change venue of the trial. He was sentenced to two mandatory terms of life imprisonment, to be served concurrently. He appeals. We affirm.

FACTS

On June 15, 2011, Jasmine Smith was murdered. The next day Nakesha Washington was murdered. Each had her throat cut and was stabbed and beaten. The crimes occurred in Tallulah. On June 17, 2011, the defendant’s mother found his bloody clothing, which she gave to the police.

In short order, the defendant was interviewed at Riverbend Detention Center, where he was advised of his Miranda rights. The interrogation was roughly divided into three sessions over several hours. The defendant ultimately confessed to the killings and agreed to provide a videotaped statement. At 8:48 p.m., the final videotaped confession began, concluding 45 minutes later. The defendant was explained his rights on multiple occasions during the questioning. He clearly was aware of, understood, and waived his rights.

The defendant’s pretrial motions were heard and denied on October 26, 2012. Two Louisiana State Police Detectives testified.

^Detective Neal Harwell testified that:

• he has 20 years of law enforcement experience;

• the defendant was not under arrest and not handcuffed during questioning;

• Trooper Brown advised the defendant of his Miranda rights;

• the defendant signed the waiver of rights form as did the troopers;

• the defendant’s demeanor was normal, and he appeared to know his rights;

• the defendant was under no duress, and his speech was not slurred;

• the defendant did not seem to be under the influence of drugs or alcohol;

• the interrogation lasted five or six hours, with ample breaks;

• any time the defendant asked for a break, he was granted a respite;

• at no time during questioning did the defendant request to leave;

• during initial questioning, the defendant did not want to be recorded and denied any involvement in the murders;

• when the defendant was advised that his clothing had been seized, he admitted to being present at both murder scenes;

• the defendant admitted witnessing the killing of Nakesha from the bushes and, when her assailants left the scene, he lifted her face to see if she was breathing and got blood on his pants;

• the defendant said he “stumbled” on the fence line and fell on Jasmine’s body, which explains the presence of Jasmine’s blood on his pants;

*they then broke for dinner, with the troopers urging him to tell the truth; • the defendant then confessed to the killings;

|⅞* the defendant was never under duress

or threatened; and

• there were no inducements or intimidation.

Trooper Scott Brown testified that:

• he was involved in the investigation from the outset;

• he was the officer initially contacted by the defendant’s mother;

• she gave him her son’s bloody clothing;

• she said that when she confronted her son, he told her that he had been trying to hide a dead body;

• the defendant was alert and answered the questions appropriately;

• at no time did the defendant ask to stop, leave or request an attorney;

• the defendant was not threatened, coerced or intimated;

• the interrogation was actually one long session, with various breaks;

• for clarity, he referred to each story as statements one, two and three;

• the defendant was allowed a cigarette after dinner;

• the audio recorder was started at 6:05 p.m., after 80 minutes of questioning;

• the video statement began at 8:48 p.m. and ended at 9:33 p.m.;

• the defendant signed the rights waiver at 3:44 p.m.; and

• the defendant initialed the rights waiver at 6:33 p.m.

The defendant also testified, stating that:

• the officers began the questioning with, “We got you hah, murderer”;

• the officers told him he had no rights and was not entitled to a lawyer;

• he was told to cooperate or there was a “team of State Police standing outside the door, waiting on the green light”;

• his children were used as a tool to get him to talk; and

• he gave the confession to protect his children.

|,,On cross-examination, the defendant admitted to signing and then initialing the waiver of rights form. Following the testimony, the trial judge credited the testimony of the officers and, under the totality of the circumstances, found that the state had met its burden of proof that the statement was freely and voluntarily given. The defendant’s confession is chilling and brutally graphic.

The police were able to get cell phone records indicating that the defendant and the victims talked immediately prior to the murders.

1 ¡¿DISCUSSION

Motion to Suppress Confession

Defendant complains that he did not understand his Miranda rights or have the ability to comprehend his actions. He asserted that he did not knowingly, intelligently, and voluntarily waive his rights prior to giving the confession. On appeal, he argues that his confession was the product of fear, duress, intimidation, menaces, threats, inducements and/or promises.

The state counters that the defendant was fully aware of, understood, and voluntarily waived his rights. He was advised of his rights on at least three occasions during questioning and clearly stated that he understood them. The state urges that there was no duress, threats, or intimidation, and officers were amenable to the defendant’s needs and requests during the questioning, including bathroom breaks, food, beverages, and a cigarette.

Our law on appellate review of contested confessions is well settled.

|fiThe trial court was correct to conclude that defendant’s statements, including his confession, were freely and voluntary made. Twice on the video, the defendant is re-advised of his rights. He begins reciting the events as they occurred and appears relieved to be doing so. He is brought dinner during the confession, and he eats. He is allowed to smoke. There is no coercion.

The defendant emphasizes that:

• the officers worked in shifts on him;

• they played on his concern for his family;

• he has only a sixth grade education;

• he was hungry, tired, scared, wanted to smoke, and see his family;

• the officers used all of these emotions to coerce a confession from him.

None of these accusations are borne out by the testimony of the troopers or by a review of the DVD. The defendant told the officers that he had completed his GED and had no difficulty reading and writing. He was provided food, beverages, breaks when requested, and was assured he would see his family. Once dinner was finished, he was provided a cigarette |7to smoke. The totality of this record displays a free and voluntarily decision to confess. The trial court did not abuse its great discretion in finding that the state met its burden of proof.

Motion for Change of Venue

The defendant argues that the large amount of publicity surrounding the crimes made it impossible for him to receive a fair trial in Madison Parish. In an effort to gain information about the general public’s knowledge and perception of the ease and the defendant, the trial court ordered a mock jury venire consisting of 30 potential jurors to be summoned for the change of venue motion hearing. Of the 30 summoned, 11 potential jurors presented, one of whom was not questioned on the record.. The remaining 10 potential jurors were questioned in a mock voir dire setting. Four of the jurors either knew, or knew of, the defendant. Two of the jurors knew the victims, but not the defendant. Three did not know either the defendant or the victims. Only two of the jurors had no knowledge of the case or the defendant. However, each of the jurors, including a former teacher of the defendant, stated that while they had heard of the case in the news, they would be able to follow the law and be impartial. The 10th juror was the defendant’s uncle, who expressed his belief that the defendant was guilty and, thus, he was not questioned extensively.

Our law on appellate review of change of venue matters is well settled.

^Application of the Bell factors to the instant case reveals that the trial court was well within its discretion in denying the motion to change venue. State v. Bell, 315 So.2d 307 (La.1975). This record provides no proof of salacious headlines or a witch hunt mentality in the parish.

IsiThe only evidence of any public awareness is found in the answers of several of the 10 potential jurors questioned in the mock voir dire. Several jurors knew of the case through the media, but did not know details and had no opinion. Those who did know the defendant or the victims all indicated that they could follow the law and be impartial. Simply put, there was' insufficient evidence presented as to the nature and scope of the publicity of which the defendant complains. State v. Magee, 2011-0574 (La.9/28/12), 103 So.3d 285. Each member of the mock jury venire indicated he or she could follow the law and be impartial. Id. The defendant did not show that he had an inability to receive a fair trial in Madison Parish.

DECREE

The convictions and sentences of the defendant are AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

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

      .There was first an unrecorded statement of denial, and then one videotaped statement before the video confession which is sought to be suppressed.

      . Referenced as the "First statement.”

      . Referenced as the "Second statement.”

      . Referenced as the "Third statement.”

      . The following exchange took place:
      Q: Did they go through this form as indicated on the video, as you’ve seen?
      A: Yes, ma'am.
      Q: And one of the questions on this form says that you have a right to have an attorney present.
      A: Yes, ma’am.
      Q: And you initialed that you
      A: Right.
      Q: Understood that, right?
      A: Right.
      Q: Do you have any problems with reading or understanding what you are reading?
      A: No, ma’am. No, ma’am.

      . This factual scenario is taken from the defendant's confession:
      On June 15, 2011, the defendant, Jasmine and Nakesha were in the park smoking marijuana and were planning to have sex. The defendant and Jasmine engaged in sexual intercourse and he and Nakesha were to have sex next. However, an altercation occurred between Jasmine and Nakesha at which point Jasmine pulled a knife. Nakesha grabbed it and cut Jasmine. Nakesha then looked at him like she did not know what to do next as Jasmine was pleading with them to help her. The defendant took the knife, cut Jasmine’s throat, and stabbed her in the neck. He and Nakesha hid Jasmine’s body after stomping on her back, head and face. The two walked away and he went to his mother’s house and changed clothes.
      The next day, he and Nakesha were playing cards. She told him that she was nervous about Jasmine’s death and thought she might need to talk to someone about it. They walked to the fairgrounds and had sex. He used the same knife to cut Nakesha's throat and then stomped her until she was unresponsive. He hid the knife, walked to his mother's home, and removed his bloody shorts, which he placed with the pants stained with Jasmine’s blood.

      . Louisiana Code of Evidence Article 703 provides, in part:

      B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.

      D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
      At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La. 1977); State v. Collier, 39,650 (La.App.2d Cir.7/27/05), 909 So.2d 23, writ denied, 2006-0308 (La.9/1/06), 936 So.2d 196; State v. Collier, 34,774 (La.App.2d Cir.6/20/01), 792 So.2d 793, writ denied, 2001-2199 (La.6/7/02), 817 So.2d 1142.
      Before what purports to be a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his or her Miranda rights. State v. Callier, supra; State v. Collier, supra; State v. Walker, 28,577 (La.App.2d Cir. 10/4/96), 681 So.2d 1023.
      Interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra. Interrogation includes words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Callier, supra.

      The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Lee, 2005-2098 (La. 1/16/08), 976 So.2d 109, cert, denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Likewise, a trial judge’s ruling on whether or not a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Vigne, 2001-2940 (La.6/21/02), 820 So.2d 533. Great weight is placed upon the trial court’s ruling on a motion to suppress because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Williams, 46,842 (La.App.2d Cir.3/14/12), 87 So.3d 949; State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082.

      . Changes of venue are governed by La. C. Cr. P. art. 622, which provides:
      A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for, any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.
      The most recent discussion of the law on changes of venue in criminal matters is found in the supreme court opinion in State v. Ma-gee, 2011-0574 (La.9/28/12), 103 So.3d 285: In exceptional circumstances, prejudice against a defendant may be presumed. Otherwise, it is the defendant’s burden to demonstrate actual prejudice. To meet this burden, a defendant must prove more than mere public general knowledge or familiarity with the facts of the case: he must demonstrate the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case. A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime; rather, he must show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the district court's sound discretion which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion.
      In State v. Bell, 315 So.2d 307 (La. 1975), the court enumerated several factors relevant to the district court’s determination of whether to order a change of venue. These factors include: (1) the nature of pretrial publicity and the degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. In setting out these factors, this court emphasized that in deciding whether to change venue, the district court must extend its focus beyond the prejudices and attitudes of individual venire persons. The defendant must be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, prejudice or influences exist within the community at large that would affect the jurors’ answers during voir dire or the witnesses' testimony, or that for any other reason, a fair and impartial trial could not be obtained in that venue. The district court's ultimate determination must rest on the community's attitude toward the defendant.
      In reviewing a denial of change in venue, the primary task of the court is to inquire as to the nature and scope of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial in order to ascertain whether prejudice existed in the minds of the public which prevented the defendant from receiving a fair trial. In performing this review, courts must distinguish largely factual publicity from that which is invidious or inflammatory, as the two present real differences in the potential for prejudice. While, ultimately, there is no bright line test for ascertaining the degree of prejudice existing in the collective mind of the community, the seven Bell factors help facilitate the inquiry.


author: WILLIAMS, J.

text:
    Naomi CANDLER, R. Gean Bennett and Charles Gregory Shyne, Plaintiffs-Appellants v. Christopher D. HENDERSON, et al. Defendants-Appellants-Appellees.
    No. 48,441-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Scott J. Chafin, Jr., Shreveport, Joseph A. Gregorio, Bossier City, Sam N. Gregorio, Shreveport, Eric G. Johnson, Minden, for Appellants, Naomi Candler, R. Gean Bennett and Gregory Charles Shyne.
    Richard A. Chopin, Caroline S. Horstmann, Metairie, for Appellants, Christopher D. Henderson, Schlumber-ger Technology Corporation and Travelers Property Casualty Company of America.
    Franklin H. Spruiell, Jr., for Appellees, Teresa Lee Moseley and Progressive Security Insurance Company.
    James A. Mijalis, Shreveport, for Appel-lee, Brookshire Grocery Company.

      Before WILLIAMS, DREW and PITMAN, JJ.
   WILLIAMS, J.

|,The plaintiffs, Naomi Candler, R. Gean Bennett and Charles G. Shyne, and the defendants, Sehlumberger Technology Company, Christopher Henderson and Travelers Property Casualty Company of America, appeal a judgment granting summary judgment in favor of the defendant, Brookshire Grocery Company, and denying their motion for partial summary judgment. The district court found that Brookshire was not vicariously liable for the negligence of its employee in causing the automobile accident. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS

In October 2007, Naomi Candler, R. Gean Bennett and Charles G. Shyne were involved in an automobile accident while driving westbound on Interstate 20 in Bossier Parish. Candler, Bennett and Shyne were seriously injured when an eastbound vehicle driven by Teresa Moseley crossed the median into oncoming traffic and collided with their vehicle. Moseley later stated that she lost control of her vehicle after she turned sharply to avoid a Sehlumberger truck, driven by Christopher Henderson, that crossed in front of her on the Interstate. At the time of the accident, Moseley was driving to Monroe to attend a work-related meeting as part of her job duties for Brookshire Grocery Company (“Brookshire”). Moseley resided in Haughton and worked at the Brook-shire store in Homer, Louisiana. Both of these locations are to the east of the accident site. Moseley had spent the previous night staying with her ill father at his house in Shreveport, which is west of the accident site. On the morning of the collision, Moseley departed 1 ¡¡from her father’s house to drive to Monroe via the Interstate.

Subsequently, the plaintiffs, Naomi Candler, R. Gean Bennett and Charles G. Shyne, filed a petition for damages against the defendants, Sehlumberger Technology Company, Christopher Henderson and their insurer, Travelers Property Casualty Company of America (collectively “Schlum-berger”), Teresa Moseley and her insurer, Progressive Security Insurance Company. The plaintiffs amended their petition to add Brookshire as a party defendant, alleging vicarious liability for the negligence of its employee, Moseley. Sehlumberger then filed a motion for partial summary judgment declaring that Moseley was acting within the course and scope of her employment with Brookshire when the accident occurred. Brookshire opposed the motion and filed a cross-motion for summary judgment declaring that Moseley was not acting within the course and scope of her employment at the time of the accident because her departure from her father’s house was a deviation from her employer’s expectations.

After a hearing, the district court issued a written opinion finding that Brookshire was not vicariously liable for Moseley’s negligence because her act of leaving from her father’s house, rather .than from her own house or her workplace, took her miles away from the departure point expected by her employer and constituted a deviation from Brookshire’s reasonable expectation of its “zone of risk.” The district court rendered judgment granting Brook-shire’s motion for summary judgment, denying Schlumberger’s motion and dismissing plaintiffs’ claims against | ^Brookshire. The court certified the summary judgment in favor of Brookshire as a final appealable judgment under LSA-C.C.P. art. 1915(B). The plaintiffs and Sehlumberger appeal the judgment.

DISCUSSION

The plaintiffs and Schlumberger contend the district court erred in granting Brook-shire’s motion for summary judgment. They argue that Brookshire is liable for damages caused by Moseley’s negligence because she was acting within the course and scope of her employment and had not deviated at the time of the accident.

Employers are answerable for the damage caused by their employees in the exercise of the functions in which the worker is employed. LSA-C.C. art. 2320. An employer’s vicarious liability for conduct not his own extends only to the employee’s tortious conduct which occurs within the course and scope of the employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224; Alford v. State Farm Automobile Ins. Co., 31,763 (La. App.2d Cir.5/5/99), 734 So.2d 1253, writs denied, 99-1435, 1595 (La.9/3/99), 747 So.2d 544, 548. In general, an employee is acting within the course and scope of her employment when the conduct is the type she is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507.

An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place and causation to the employee’s job duties as to constitute a risk of harm attributable to the Lemployer’s business. Orgeron, supra; Alford, supra. Such a connection is established when the employer has reason to expect the employee to undertake the mission and the employee reasonably expected to be compensated for the task. Young v. Mooney, 01-1592 (La. App.3rd Cir.5/1/02), 815 So.2d 1107. A minor deviation from the mission will not remove the employee from the business errand if the deviation is humanly incidental to the employee’s service and does not unreasonably increase the risk of injury. Young, supra. In determining whether the employee’s conduct is employment-related, the court assesses several factors, including the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the act in question, the time, place and purpose of the act in relation to serving the employer, the relationship between the employee’s act and the employer’s business, the employee’s motivation for performing the act and the employer’s reasonable expectation that the employee would perform the act. Orgeron, supra; Alford, supra.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The burden of proof remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party’s claim, action or defense; rather, the mover must point out to the court the absence of factual support for one or more elements essential to |fithe adverse party’s claim or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C). Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

In the present case, the record contains the deposition testimony of Teresa Moseley, who testified that her job duties as a deli manager at the Brookshire store in Homer included attending out-of-town meetings. Moseley stated that she drove her personal automobile to the work meetings and was paid her hourly rate for the travel time to and from the meeting and paid for mileage based on the distance of that location from the store. Moseley testified that on the morning of the accident, she had left from her father’s house in Shreveport and was driving on the Interstate toward Monroe to attend the business meeting when she collided with plaintiffs. Although Moseley initially stated that she had expected to be paid for her actual travel time that day based on past trips, she later acknowledged she had not previously driven to a work meeting from Shreveport.

Brian Smith, the director of the Brook-shire store where Moseley worked and her supervisor, testified during his deposition that Brookshire did not have a policy requiring that Moseley leave from her home rather than from her father’s house to attend the meeting. Smith stated that 1 fiMoseIey knew she would be paid based upon the Brookshire spreadsheet listing the allowable round trip travel time and mileage from each local store to the Monroe distribution center. For meetings at other locations, Smith explained that he had discretion to pay Moseley additional mileage, such as when she became lost while driving to a meeting in Texarkana. Smith testified that there was no written document requiring him to follow the spreadsheet figures. Smith stated that he would consider Moseley’s presence in Bossier City at the time of the accident to be “outside of her normal travel” to the Monroe meeting.

Terrence Dixon, vice-president for human resources at Brookshire, testified during his deposition that Brookshire’s policy was to pay employees the time and mileage for work-related travel based upon the distance from their assigned store to the meeting place. Dixon stated there was no particular requirement that an employee depart from a specific location to travel to a business meeting. Dixon testified that for the purpose of paying workers for travel time and mileage, Brookshire was not concerned about the employee’s departure point. Dixon stated that Brookshire’s written policy for business travel provided that hourly workers (“partners”) like Moseley would be paid “their current rate of pay for approved travel time.” Dixon acknowledged that Brookshire did not have evidence that Moseley was traveling anywhere other than to Monroe for the business meeting at the time of the accident.

The written travel policy produced by Brookshire is a document titled “Travel Expense,” which provides in pertinent part:

17General Policy

It is our company’s policy to reimburse partners for approved time and expenses incurred while traveling on company-related business.

A. Definitions

1. “Principal Place of Business” — the loeation(s) where a partner regularly goes to fulfill their requisite job duties.
2. “Commuting Mileage” — the mileage accumulated in traveling between the partner’s home and a partner’s principal place(s) of business. A partner is NOT eligible for reimbursement on commuting mileage.
3. “Business Mileage” — all mileage accumulated in performance of a partner’s requisite job duties that would not be defined as commuting mileage. The following are several common examples of business mileage and are not designed to encompass all items that would qualify as business mileage:
c. Travel between a partner’s home and a location that is hosting a seminar, class, meeting, etc. that relates to and/or enhances that partner’s ability to perform his or her job duties is business mileage-so long as the location is NOT that partner’s principal place of business.

Brookshire argues that Moseley’s act of beginning her travel from her father’s house is similar to the worker’s conduct at issue in Timmons, supra. However, the factual situation in this case can be distinguished from that of Timmons, in which the employee had completed the business errand and then deviated for personal reasons before returning to the workplace. In contrast, Moseley was in the act of driving toward Monroe to attend the business meeting and there is no evidence she had deviated from that route |swhen the accident occurred.

Brookshire asserts that Moseley’s deviation was her departure from Shreveport instead of her own home and that she would not have resumed her business route until she entered a vague “zone of risk” based on Brookshire’s expectation that she would leave from her home in Haughton, as indicated by the written travel policy. Contrary to any such asserted expectation, both Dixon and Smith testified that Brookshire was not concerned with Moseley’s departure point as long as she attended the meeting. In addition, the written travel policy states that the listed examples do not include all types of business travel.

Brookshire showed that unlike previous occasions, Moseley began her work-related travel from her father’s house, which was located farther to the west than her own home. However, the deposition testimony demonstrates that when the accident occurred, Moseley was driving on the Interstate toward Monroe as part of her job duties, that she expected to be compensated for her time and mileage in traveling to the business meeting and that her trip was activated by a purpose to serve her employer.

Based upon our consideration of the evidence presented and the applicable law, we conclude that genuine issues of material fact exist as to whether Moseley’s act of departing from her father’s house rather than her own home constitutes a deviation from her employment mission and whether any such deviation unreasonably increased the risk of injury. Stated another way, the factual inquiry of whether Moseley’s conduct was so closely connected in time, place and causation to her employment duties |flas to constitute a risk of harm attributable to Brookshire’s business remains in dispute between these parties. Consequently, the district court erred in granting Brookshire’s motion for summary judgment and correctly denied Schlumber-ger’s motion for partial summary judgment. Accordingly, we shall reverse the court’s summary judgment in favor of Brookshire and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment granting Brookshire’s motion for summary judgment and dismissing plaintiffs’ claims at their costs is reversed; the judgment is otherwise affirmed and this matter is remanded for further proceedings. Costs of this appeal are assessed to the appellee, Brookshire Grocery Company.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Demarcus Cartez JONES, Appellant.
    No. 48,458-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Demarcus Cartez Jones, pro se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Brady D. O’Callaghan, Geya Williams Prudhomme, Kelvin M. Rogers, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

_J_¡This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, whereby a jury convicted the defendant, Demarcus Cartez Jones, of second degree murder, a violation of La. R.S. 14:30.1. After the trial court denied Jones’s post-verdict motions for acquittal and new trial, he was sentenced to serve the mandatory term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Jones now appeals his conviction and sentence. For the following reasons, we affirm.

Facts

On July 19, 2008, a group of men, including the defendant, Demarcus Jones, his codefendant, Demond Carey, and the victim, Lonzell Armstrong, were gathered at an area referred to as the tree, which is located on a vacant lot near the Quick Pack convenience store on David Raines Road in Shreveport, Louisiana (“the tree”). An argument ensued, which led to Armstrong leaving the group but returning a short time later with a gun. When Armstrong returned, Heston Smith, a friend to all parties involved, was able to talk Armstrong into returning to his truck. However, as Smith was encouraging Armstrong to leave, Jones and Carey approached from behind and shot Armstrong multiple times as he sat in his truck. Armstrong managed to drive a short distance away, but quickly succumbed to his injuries and died. Once in custody, Jones admitted that he shot Armstrong, but claimed that he did so in self-defense.

Jones was indicted by a Caddo Parish grand jury and charged with second degree murder. Pursuant to a plea agreement with the state, Jones 1 gpled guilty to manslaughter. Jones agreed to a 15-year sentence if he testified against his codefen-dant, or a 17-year sentence if he refused to testify. However, against his attorney’s advice, Jones voluntarily withdrew his guilty plea.

Jones’s jury trial included the admission of physical evidence as well as the testimony of 11 witnesses, many of whom were police officers or detectives involved in the investigation of the case. Two eyewitnesses also testified. The summary of the pertinent evidence is as follows.

On July 19, 2008, Corporal Kelley Mor-man of the Shreveport Police Department was dispatched to a shooting incident on Nena Street, not far from the Quick Pack convenience store on David Raines Road. Corporal Morman explained to the jury that there were two crime scenes — one at the Quick Pack and the other on Nena Street. Upon arrival at the Nena Street location, Corporal Morman testified that a gray pickup truck was positioned in the middle of the road with the engine running. The windows were shot out and a handgun was found on the floorboard. Blood was splattered throughout the truck, and a man who was later identified as Lonzell Armstrong was slumped over in the driver’s seat.

Contemporaneously, Sergeant Collette Kelly arrived at the Quick Pack location. Sergeant Kelly testified that she observed several spent shell casings on the ground and also noticed that one of the convenience store windows had been shot out. Sergeant Kelly informed the jury that she, |salong with other officers, secured the crime scene and attempted to locate potential witnesses. After an investigation, it became known that Heston Smith and Roy Riley were eyewitnesses to the shooting.

Riley and Smith testified at trial and provided almost identical recollections of the shooting. Both stated they were present for the shooting, but were not present for the earlier argument which led to Armstrong returning with a gun. Riley and Smith told the jury that when they arrived at the tree, everything seemed normal. However, shortly after they arrived, someone in the group said “there he is” or “there he go,” when both Riley and Smith turned around and identified that person to be Lonzell Armstrong. Riley and Smith testified that Armstrong was walking toward the group with a gun. Smith then said “I got this,” and took off toward Armstrong and began to speak with him. Riley explained that he was unable to hear Smith and Armstrong’s conversation, but did see them return to Armstrong’s truck. When asked what was said to Armstrong, Smith revealed that he urged Armstrong to return to his truck, and told him that he was out-gunned and needed to leave. Smith and Riley stated that Armstrong then entered his truck. However, Armstrong did not leave; he just sat in his truck, with his hand on the gun, which was lying across the seat of his truck.

Meanwhile, Riley, who remained under the tree, saw Jones pull out a gun and start to walk in the direction of Armstrong’s truck. Riley explained that he pleaded with Jones to “come on back” and let Smith handle the ^situation. Smith also saw Jones approaching Armstrong’s truck, and testified that he too pleaded with Jones to “go on.” However, Jones ignored both requests, approached the driver’s side of the truck, and began to shoot. Carey then approached the rear of the truck and started to shoot.

Following the shooting, Riley and Smith noted that Jones and Carey fled in opposite directions. They also saw Armstrong speed out of the parking lot in the direction of Nena Street. Riley and Smith further testified that Jones was the first to shoot. Both were also uncertain if Armstrong ever returned fire. Moreover, Riley and Smith informed the jury that Armstrong’s back was turned to the group as he sat in the truck.

Forensic pathologist Dr. James Traylor conducted an autopsy and confirmed that Armstrong died as a result of multiple gunshot wounds. Dr. Traylor found six gunshot wounds on Armstrong’s body-three penetrating and three perforating. Dr. Traylor was able to recover the three bullets which did not exit the body. He also noted that Armstrong’s body contained signs of “tattooing,” which is evidence that the victim was shot at an intermediate distance, i.e., 6 to 18 inches. Notably, Dr. Traylor explained that the track of the wounds suggests that the bullets were fired from the victim’s left side.

In describing the evidence that was collected from the two crime scenes, officers testified that they recovered a .22 caliber Smith and Wesson revolver from the floorboard of Armstrong's truck and six .40 caliber shell casings, two bullets, one bullet jacket, and two bullet cores from the Quick | BPack parking lot. The revolver contained four spent cartridges and two live cartridges. No other firearms were recovered from either location.

These items were submitted to the North Louisiana Crime Lab for analysis. Richard Beighley, an expert in firearms identification and analysis, studied the projectiles and testified at trial. His analysis revealed that there were at least two weapons fired during the shooting — a .40 caliber and a .38/.357 caliber firearm. Beighley also determined that the projectiles recovered from Armstrong’s body were consistent with a .40 caliber firearm. Additionally, Beighley testified that the four spent .22 caliber cartridges were fired from the revolver found in Armstrong’s truck. However, he was unable to determine if the cartridges were fired on the day of the shooting.

Jones was apprehended approximately ten days after the shooting. He initially declined to make a statement to the investigating detectives, but later requested to speak with Detective Rod Demery. Detective Demery testified that Jones asked to speak with him so that he could explain his role in Armstrong’s shooting. Detective Demery informed the jury that Jones claimed the shooting was in self-defense and not murder. Jones revealed to Detective Demery that on the day of the shooting, Armstrong made threats toward Jones. Specifically, Jones stated that Armstrong told him that he was the first and second killer, he ran Cooper Road, and it was him who was | figoing to do the killing. Thus, when Armstrong returned to the group with a pistol, Jones was acting in self-defense when he shot and killed Armstrong.

Jones declined to testify at trial. The case was submitted for deliberation, and by a vote of 11-1, Jones was found guilty as charged of second degree murder. Thereafter, Jones waived sentencing delays, and the trial court sentenced him to life imprisonment without benefits.

Discussion

On appeal, Jones’s appellate counsel brings one assignment of error, along with three assignments of error raised by Jones in his pro se capacity.

Sufficiency of the Evidence

Jones contends that the evidence adduced at trial was insufficient to support a conviction of second degree murder. Specifically, Jones argues that the state failed to prove that he was not acting in self-defense when he shot and killed Armstrong. We disagree.

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, 2001-1685 (La.05/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, unit denied, 2008-0499 (LajH/14/08),7 996 So.2d 1086. 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.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.01/14/09), 1 So.3d 833, unit denied, 2009-0310 (La.11/06/09), 21 So.3d 297. 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. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000). The reviewing coui’t may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

Further, 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.02/25/09), 3 So.3d 685, unit denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). However, a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and the killing is necessary to save himself from that danger. La. R.S. 14:20(A)(1). Factors considered |Rare the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Wright, 42,956 (La.App.2d Cir.03/05/08), 978 So.2d 1062, writ denied, 2008-0819 (La.10/31/08), 994 So.2d 532.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Cook, 46,-843 (La.App.2d Cir.01/25/12), 86 So.3d 672, writ denied, 2012-0640 (La.06/22/12), 91 So.3d 969. Thus, when the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. Id.

As noted, the state presented physical evidence recovered from both crime scenes, the testimony of police officers and detectives involved in the investigation of the case, and the testimony of two eyewitnesses to the shooting-Roy Riley and Heston Smith. All of the testimony was consistent and established that a group of individuals, including Armstrong, Jones, and Carey, were gathered at a spot known as the tree on David Raines Road. After a heated argument, Armstrong left the group but returned a short time later with a gun. Meanwhile, Smith and Riley arrived at the tree. Upon Armstrong’s arrival with a gun, Smith immediately approached Armstrong and convinced him to return to his truck. Armstrong then entered his truck, |nwith his back to the group and the tree. Jones then pulled out a gun, ignored requests from both Smith and Riley, approached the driver’s side of Armstrong’s truck, and shot Armstrong multiple times. Carey approached from the rear and also began to shoot. Armstrong then sped away in the direction of Nena street where he was later found dead.

The jury heard evidence that two weapons were used in the commission of the crime — a .40 caliber and a ,38/.357 caliber firearm. Additionally, .40 caliber and .38/ .357 caliber projectiles were found at the Quick Pack location. The jury then heard evidence from Dr. Traylor, who confirmed that Armstrong died of multiple gunshot wounds from a .40 caliber weapon. Dr. Traylor also testified that each gunshot wound came from Armstrong’s left side, or the driver’s side of the vehicle.

After an extensive review of the record, and considering all of the evidence presented at trial in the light most favorable to the prosecution, we conclude that the state presented sufficient evidence such that a rational trier of fact could have concluded beyond a reasonable doubt that Jones was not acting in self-defense when he shot Lonzell Armstrong. In particular, there was no evidence to support the defendant’s contention that he reasonably believed he was in imminent danger of losing his life or receiving great bodily harm, such that deadly force was necessary to save his life. The jury, as a fact finder, was in its province to accept or reject the testimony of both Roy Riley and Heston Smith, as well as the numerous officers and detectives that testified at trial. It is clear that the excitement and the confusion of the situation settled once Smith talked Armstrong into |inreturning to his truck. Further, there were a number of possible alternatives short of killing Armstrong that Jones could have undertaken to quell the situation. Accordingly, Jones’s argument that the shooting was committed in self-defense is without merit.

Pro Se Assignments of Error

In Jones’s supplemental pro se appellate brief, he brings three assignments of error, all related to various issues. First, Jones argues that the trial court breached its plea bargain of a 17-year sentence if he refused to testify against his codefendant. Jones contends that since he did not testify at Carey’s trial, he should be entitled to the 17-year sentence as promised by the state. However, Jones voluntarily withdrew his guilty plea, thereby for going the benefit of the reduced sentence and the plea agreement presented by the state. As a result, we find this assignment of error to lack merit.

Jones’s second assignment of error seems to suggest that Roy Riley’s eyewitness testimony contained statements not included in the transcript. However, this assignment of error is not supplemented with any argument. It is well established that assignments of error which are neither briefed nor argued are considered abandoned. U.R.C.A. Rule 2-12.4; State v. King, 41-084 (La.App.2d Cir.06/30/06), 935 So.2d 815, writ denied, 2006-1803 (La.02/16/07), 949 So.2d 411.

In his final assignment of error, Jones argues that Riley and Smith both gave perjured testimonies when they testified that it was Jones, rather than Carey, who shot first. Jones claims that when Smith and Riley testified at his codefendant’s trial, both stated they did not know who shot first. |n However, the detectives who interviewed Riley and Smith shortly after the shooting all testified that the two witnesses stated Jones was the first to shoot. It was after Jones started to shoot that Carey approached the rear of the vehicle and began to fire. Therefore, there is no support for this claim, and this assignment of error is also without merit.

Conclusion

Considering the foregoing, the conviction and sentence of Demarcus Cartez Jones is affirmed.

AFFIRMED.

      . A contradictory hearing was held to address Jones's withdrawal of his guilty plea. At the hearing, Jones claimed that he pled guilty only because he was not feeling well that day, he was misled by his attorney, the prosecution suggested that his codefendant would testify against him, and the prosecution failed to offer less than a 17-year sentence.

      . At trial, Riley testified that Armstrong was carrying a gun in his hand. However, Smith testified that the gun was in the waistband of Armstrong’s pants. Nevertheless, both men agreed that Armstrong arrived at the scene with a gun.

      . Beighley explained to the jury that a .357 caliber weapon is able to fire a .38 caliber cartridge.

      . A transcript of Jones’s interview with Detective Demery was introduced at trial as State’s Exhibit 61, with certain hearsay portions redacted. Jones's statement was later determined to be freely and voluntarily made at a pretrial hearing.