text:
    STATE of Louisiana v. Durrelle D. BOWENS.
    No. 2014-KA-0416.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Kyle Daly, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Martin E. Regan, Jr., Nisha Sandhu, Martin E. Regan & Associates, P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY III, Chief Judge.

|,The defendant, Durrelle Bowens, appeals his conviction for the charge of manslaughter, La. R.S. 14:31, and his sentence. Based on the record before this Court, we affirm.

STATEMENT OF CASE

On July 8, 2011, the defendant, Durrelle Bowens, was indicted on one count of second degree murder of Toriano Livas and one count of obstruction of justice. The defendant entered a plea of not guilty at his arraignment on July 12, 2011. After a hearing on October 24, 2011, the trial court denied the defendant’s motions to suppress evidence and identification. On January 23, 2012, the State amended the bill of indictment, as to the obstruction of justice charge, to reflect that the obstruction of justice charge was in regards to the second degree murder of Toriano Livas. The defendant was re-arraigned on the charge and pled not guilty. The defendant filed a motion to quash the obstruction of justice charge, which was granted by the trial court. On January 25, 2012, after a two day jury trial, the defendant was found guilty of manslaughter. On February 1, 2012, the trial court sentenced the defendant to serve forty years at hard labor, with credit for time served.

| .STATEMENT OF FACT

On March 24, 2011, at approximately 11:00 a.m., the victim, Toriano “Tito” Li-vas, visited Eddie St. Cyr’s Auto Shop located at 2135 South Derbigny Street, to collect a payment he was owed for the rental of auto shop machinery from his auto shop that he had recently closed due to medical issues. At around the same time, the defendant, Durrelle Bowens, his girlfriend, Lashanda Watson, his brother, Chad Bowens and his girlfriend Jonece Duncan, along with their one year old son, C.B., arrived at St. Cyr’s Auto Shop, to check on their mother’s truck, which was being painted.

As Livas was leaving the shop, a verbal dispute ensued between him, the defendant and the defendant’s brother Chad Bowens, which quickly escalated into a physical altercation. Ultimately, a gun battle erupted between Livas and the defendant. When both men ran out of ammunition, Livas attempted to run away, but the defendant reloaded his gun and shot Livas in the back of his leg. Livas attempted to get away but the defendant shot him again. As Livas was lying on the ground pleading for his life, the defendant again shot him several more times in the head and torso fatally wounding Livas. The defendant then fled in a black Acura MDX SUV with his girlfriend Lashanda Watson driving the vehicle. The vehicle was abandoned in the 2100 block of Clara Street. Before abandoning the vehicle, lathe registration documents and temporary license plate were removed from the vehicle. The defendant then fled to Texas where he was ultimately apprehended.

ERRORS PATENT

A review for patent errors reveals none.

DISCUSSION

COUNSEL’S ASSIGNMENT OF ERROR NUMBER 1

The defendant argues that the State failed to prove sufficient evidence to sustain his conviction for manslaughter as the State failed to carry its burden to prove that the defendant did not act in self-defense. In the present case, the defendant was charged with second degree murder, but convicted of manslaughter. However, the defendant argues that the State failed to produce sufficient evidence to show that he did not act in self-defense. The defendant contends that the trial testimony shows that he shot at the defendant only to protect himself.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674 (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

|4When circumstantial evidence is used to prove the commission of the offense, La. R.S., 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)). See also State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1.

Conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. When testimony is conflicting, the credibility of the witnesses is a determination which is within the sound discretion of the trial court. Like all questions of fact, this determination is entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984); State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. Even where the record contains evidence conflicting with the testimony accepted by the trier of fact, the evidence accepted by the trier of fact is not rendered insufficient. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Legrand, 02-1462, p. 5, 864 So.2d 89, 94-95 (La.12/3/03).

Manslaughter is a homicide which would be first or second degree murder, but the offense is committed in “sudden passion” or “heat of blood” imme-

diately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. “Sudden passion” and “heat of blood” are not | ^elements of the offense of manslaughter; rather, they are mitigatory factors, in the nature of a defense, which diminish the degree of culpability and reduce the grade of the offense from murder to manslaughter. State v. Lombard, 486 So.2d 106, 110-111 (La.1986). Since they are mitigating factors, the defendant has the burden of proving by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” before he is entitled to a manslaughter verdict. In reviewing a claim that the defendant acted in “sudden passion” or “heat of blood,” the court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that those mitigating factors were not established by a preponderance of the evidence by the defendant. Id.

A homicide is justifiable “[w]hen 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 that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(1). In a homicide case in which the defendant asserts he acted in self-defense, the State has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Taylor, 2003-1834, p. 7 (La.5/25/04), 875 So.2d 58, 63; State v. Kirk, 2011-1218, pp. 6-7, (La.App. 4 Cir. 8/8/12), 98 So.3d 934, 939-940.

The question presented is whether the defendant acted without justification. Accordingly, the relevant inquiry is whether a rational factfinder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant did not act in self-defense. State v. Rosiere, 488 So.2d 965 (La.1986).

Even if both necessary components are present, that is not sufficient for the justification of self-defense because not every person is entitled to claim the 1 fidefense. In particular, and importantly for the prosecution’s contention, “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw or discontinue the conflict.” La. R.S. 14:21. Thus, a person who has brought on the difficulty not only must withdraw from the conflict but the withdrawal must be in such a way that the other person “knows or should know” of the desire to withdraw. If the aggressor’s withdrawal is not made sufficiently known to his adversary, he is not eligible to claim the justification of self-defense for the homicide. This precedent obligation of the one who brings about the difficulty to “withdraw” may be contrasted with the absence of an obligation of “[a] person who is not engaged in unlawful activity and who is in a place where he or she has a right to be.” La. R.S. 14:20(C). Such a person “shall have no duty to retreat before using deadly force as provided for in this Section.” Id. Even more so; such a person “may stand his or her ground and meet force with force.” Id.

In State v. Ducksworth, 496 So.2d 624 (La.App. 4 Cir.1986), this Court found that the State met its burden of proving that the defendant did not act in self-defense. The Court noted that there was testimony that the victim was unarmed and attempted to flee when the defendant started shooting at him. The Court stated that “such conduct negated justification for the continued use of deadly force, if 17any ever did exist ... The law will not permit even a harassed individual to take the law into his own hands, track down his enemy, assault him with a pistol, and then claim justification for a homicide which follows because of prior threats.” Ducksworth, 496 So.2d at 630.

In State v. Wells, 2011-0744 (La.App. 4 Cir. 7/11/14), 156 So.3d 150, 2014 WL 3398136, this Court found that the defendant had not acted in self-defense when he shot and killed the victim. The defendant did not dispute that he shot the victim. He argued at trial and on appeal that he acted in self-defense. The State was able to produce sufficient evidence for the jury to conclude beyond a reasonable doubt that the defendant did not act in self-defense.

During the course of trial, Kisyhyne Li-vas, the victim’s wife, testified that she and the victim had been married for over ten years. They owned an auto body repair shop, but had to close it because the victim had taken ill. Mrs. Livas stated that the victim and St. Cyr had a business relationship, and that St. Cyr had rented some equipment from them. On the morning of March 24, 2011, she picked up her grandchild, went home and fixed breakfast for her husband and her grandchild. Her husband informed her that the baby had a fever and that he was going to purchase Tylenol for the child. He called St. Cyr to see about picking up the money owed to him while he was out. St. Cyr told him to come by and get the money. The victim then left the house to pick up the money from St. Cyr and get Tylenol for their grandchild. The victim called her before he got to St. Cyr’s body shop.

Mrs. Livas testified that a few months prior, her husband had surgery and had part of his colon removed. He was still recovering from the surgery when he was killed. Mrs. Livas stated that she worked with her husband in the auto body | Rrepair shop. She took care of the customers and handled ordering and paying for supplies. Because she handled a great deal of cash and several of the businesses in the area had been robbed, she purchased a nine millimeter gun for protection. Mrs. Livas stated that her husband did not approve of the purchase. She kept the gun in her purse or the car. On March 24, 2011, she had left the gun in the vehicle. Mrs. Livas identified the receipt for the weapon and the ammunition she purchased.

Mrs. Livas recognized the defendant in court as someone who had been to their auto repair shop. On one occasion, the defendant came to the shop when the guys were at lunch and her husband had run an errand. She was the only person at the shop. The defendant asked her in a nasty way about his vehicle. Mrs. Livas called her husband and told him to return to the shop because they had a customer. When Livas returned, he spoke with the defendant, who was upset that his vehicle was not ready. The defendant threatened to bust the parts in the shop and the windows in the other customers’ vehicles. Livas asked the defendant to leave. The defendant grabbed a stick and went to swing it. However, Livas grabbed the stick and the defendant left.

Eddie St. Cyr testified that he owned an auto repair business at the intersection of South Derbigny and Josephine Streets in March 2011. St. Cyr stated that he did business with the victim, Toriano Livas. He had purchased some machinery from Livas, who also had an auto repair business. Around noon on March 24, 2011, Livas came to his shop to pick up a payment for the machinery. At that time, Chad Baxter was also at the shop. Baxter had brought someone to look at a vehicle that he was working on. When Livas arrived, St. Cyr and Livas went into the office, and St. Cyr gave Livas the money for the machinery. Livas then left the shop. A few minutes later, St. Cyr heard Livas yelling for him. He |3went outside and saw two men fighting with Livas. Li-vas told St. Cyr to tell them to get off of him. St. Cyr saw that the two men had Livas on the ground. One of the men had Livas in a headlock, and the other man was hitting Livas. The man holding Livas down had a short bush haircut. The man hitting Livas had dreadlocks.

St. Cyr, who was holding a pipe, and Chad Baxter, who had a screwdriver, approached the men. The guy with the dreadlocks pulled a gun and told them, “I don’t have no problem with you, Unc.” St. Cyr responded by telling the guy that Livas had been sick and he was not going to let them jump Livas. The guy told St. Cyr that Livas had messed over his brother, and he was going to get even. The guy with the short bush backed off, and Livas was able to get free and run towards his vehicle. St. Cyr was still talking to the guy with the gun. All of sudden, the guy with the gun and Livas started shooting at each other. They both ran to the corner shooting at each other, from behind barrels. Both guns went empty. Livas attempted to run away. The guy with the dreadlocks reloaded his gun and continued shooting at Livas. Livas fell down in the street and dropped his gun. The guy walked up to Livas, who was pleading for his life, and shot Livas several more times. After the guy shot Livas, he walked back to the black SUV that was parked in the middle of the street, near the corner, and drove off. St. Cyr called 911 to report the shooting. St. Cyr stated that he dropped the pipe when the shooting began and ran for cover. The witness gave a statement to the police and indicated that he would be able to identify the two men. St. Cyr stated that he did not know the men personally, but knew that the guy with the weapon had purchased a vehicle from someone he knew. St. Cyr testified at trial that he | inidentified the defendant in a photographic lineup. He also identified the defendant at trial as the person who shot Livas.

Chad Baxter testified that he was an acquaintance of the victim, Toriano Livas. Baxter stated that on March 24, 2011, he was at St. Cyr’s Body Shop when Livas came by to pick up money from St. Cyr. Baxter testified that he spoke with Livas after Livas left St. Cyr’s office and began walking to his car. Baxter stated that he saw a vehicle approach the shop and stop at the corner. The driver rolled down his window and spoke to Livas. There were two men and one woman in the vehicle. The two men got out of the vehicle; one had short hair and the other had dreadlocks. The taller guy with the short haircut and Livas were talking. Moments later, he looked backed and saw the two men fighting with Livas. Livas yelled for help and asked the men why they were fighting with him. When Baxter and St. Cyr approached, the man with the short hair backed off and let Livas go. The man with the dreadlocks walked towards Livas. The man with the short hair then said “We are even — I’m good.” The man with the dreadlocks pulled out a gun and said “No, bitch. We are not even.” Livas walked to his car, where he sat with his hand on his head; he was bleeding from his head. The witness then heard gunshots and felt something hit his leg. Baxter ran towards his vehicle. He saw Livas run towards the corner of Josephine Street. Livas and the man with the dreadlocks were exchanging gunfire. Baxter saw Livas fall. The man with the dreadlocks approached Livas, stood over him and shot him. The other guy, with the short haircut, had run around the corner when the shooting started. The woman in the vehicle got out of the passenger side, got in the driver’s seat and drove off in the direction that the man with the short hair had run. The police arrived moments later. Baxter testified that he left the scene briefly and returned. He spoke with the In police and gave a recorded statement. Baxter identified both men in photographic lineups. He identified the defendant at trial as the person who shot Livas.

Mallory Gonzales testified that on March 24, 2011, she was working at the New Orleans College Prep Charter School. She stated that she was on the third floor and could see the intersection of Josephine and South Derbigny Streets from her classroom window. She heard noises that sounded like fire crackers. When she looked outside, she saw a man behind a blue barrel and another man shooting towards the barrel. The man who was shooting went to a car, got in the back seat and then came back out. The man behind the barrel started to flee. The man who got out the car repeatedly shot towards the other man. It appeared that the man who was behind the barrel had been shot in the leg because he was hopping on one foot. The other man continued shooting at the man from behind the barrel until he fell down. The man continued to shoot him, and then left. Ms. Gonzales stated that she called 911. She did not see the victim with a gun.

Ms. Shvonne Lewis is a complaint operator with the New Orleans Police Department Communications Division. She handles 911 calls and is the custodian of the incident recall documents and 911 recordings. Ms. Lewis identified the incident recall sheet and recording of the 911 call received in regards to the shooting. The 911 recording was played for the jury.

On March 24, 1011, Detective Kevin Marshall and his partner, Officer Raymond Lester, were on patrol in the Sixth District, when they responded to the dispatch call of a homicide by shooting. When they arrived on the scene, the officers observed a man lying in the middle of the street. His body had sustained | ^numerous gunshot wounds. There were shell casings all over the place. A gun was found next to the man, partially tucked underneath him. The officers secured the scene and notified the homicide division and the coroner’s office. Detective Anthony Pardo, of the Homicide Division, arrived at the scene later and took over the investigation.

Dr. Samantha Huber, a forensic pathologist with the Orleans Parish Coroner’s office, performed the autopsy on the victim, Toriano Livas. Dr. Huber testified that the victim sustained eight gunshot wounds. One wound was to the forearm. Another gunshot entered the side of the arm and hit the lung. There was a gunshot wound to the back of the knee. The bullet fractured the tibia. One bullet struck ■ the victim’s side, hitting the left kidney, liver, pancreas and diaphragm and resulting in blood in the lungs and abdomen. Another bullet struck the victim’s right hip and lodged in the back of the pelvis. There were three gunshot wounds to the head. One bullet struck the left check. Another bullet caused a graze wound on the underside of the chin. The third bullet wound was to the skull, which resulted in near immediate death. The victim also had a number of bruises and abrasions. Dr. Huber identified the bullets that she recovered from the victim’s body during the autopsy. She testified that the gunshot wound to the knee that fractured the tibia would prevent someone from running at full speed. Dr. Huber stated that the gunshot wound to the skull was the most serious but a combination of all the wounds would cause death.

Shandrell Privott, a technician with the NOPD’s crime lab, processed the crime scene at South Derbigny and Josephine Streets. Ms. Privott stated that she collected evidence and took photographs of the scene. She identified photographs of the scene and the evidence collected at the scene. A nine millimeter Taurus was 11sfound under the victim. Six nine-millimeter Lugar spent shell casings and seventeen forty-caliber spent casings were found on the scene. A black magazine for a nine millimeter weapon and a black magazine for a forty-caliber weapon were also found on the scene. Ms. Privott also identified photographs that she took at the scene on Claire Street, where the vehicle was found.

Detective Anthony Pardo, a member of the NOPD’s Homicide Division, was assigned as the lead investigator in the murder of Toriano Livas. When he arrived on the scene, he met with Lt. Jeffrey Wall of the Sixth District Investigative Unit. The officer was made aware of the witnesses, who he had transported to the homicide office at the police headquarters for statements. Detective Pardo observed numerous shell casings on the scene. He stated that the crime lab collected all the evidence. There were six spent nine millimeter shell casings and seventeen forty caliber spent shell casings on the scene. An empty forty caliber magazine was found on the scene, but no forty caliber weapon was recovered. Two eyewitnesses, Chad Baxter and Eddie St. Cyr, were cooperative. They provided statements and descriptions of the perpetrators.

On the same day of the shooting, Detective Pardo became aware of an abandoned vehicle, a black Acura MDX SUV, that may have been used in the homicide. The vehicle was located four blocks from the scene of the shooting. The vehicle was secured and impounded. A search warrant for the vehicle was obtained, and the vehicle was subsequently searched. There was no license plate on the vehicle. No ownership information was found in the vehicle. | ^Correspondence addressed to the defendant was found in between the console and the front passenger seat. A business card from Covington Conceal-ments and a piece of cardboard with the phone number and address for Covington Concealments was found in the vehicle. A dreadlock was also found in the vehicle. Fingerprints were lifted from the vehicle.

Detective Pardo became aware of a potential suspect through a telephone call received by an Eighth District police officer. At some point, the defendant and his brother, Chad Bowens, became suspects. Photographs of both men were placed in photographic lineups. Baxter and St. Cyr identified both men in the photographic lineups. An arrest warrant was issued for the defendant and Lashanda Watson. Watson was arrested, but the defendant could not be found. Eventually, the defendant was located in Texas and arrested. He was subsequently extradited to New Orleans. When the defendant was extradited, he no longer had dreadlocks.

Craig Famularo, an Assistant District Attorney with Orleans Parish District Attorney’s office, testified that he reviews homicide cases for charging. He makes recommendations as to what charges should be filed against a person. As part of the process, he interviews witnesses to the crimes. In the present matter, he interviewed St. Cyr. Part of the summary of the interview with St. Cyr indicated that the victim fired his weapon first. However, his recommendation was to charge the defendant with second degree murder because the defendant was the aggressor. The defendant had attacked the victim, beat him and pulled out a weapon first. He noted that the defendant never retreated.

Jonece Duncan, Chad Bowens’ girlfriend, testified that she was with Chad Bowens, the defendant, and the defendant’s girlfriend, Lashanda Watson, on | lsMarch 24, 2011. She also had her and Chad’s two-year old son with them. They were driving around in the defendant’s car. The defendant was going to check on a vehicle at a body shop. Everyone stayed in the car when the defendant got out and went to talk to the man at the body shop. All of a sudden, she saw a fight break out between the defendant and . a man. Chad got out' of the car and joined the fight. She got out of the vehicle to break up the fight. As they were walking back to the car, she saw the other man walk to his car. When he opened his door, she saw he had a gun and was pointing it at them. Chad ran across the street. She heard glass breaking and reached into the car to get her son. She then ran into a store on the side street and asked someone with the store to call 911. The defendant, who had a gun, started shooting at the other man. After a few minutes, the defendant, Chad and Lashanda drove around the block and picked up her and her son from the store. They then left the area. She did not see the license plate taken off the vehicle or the vehicle documentation taken out of the vehicle. She testified that the defendant did not tell her to come to court and say that she and her child were in the vehicle.

Durrelle Bowens acknowledged that he had taken his vehicles to the victim’s auto repair shop. On March 24, 2011, he went to St. Cyr’s body shop to check on his mother’s vehicle. Lashanda, Jonece, Chad and Chad’s son were.in the car with him. When he arrived at the shop, he got out the car and went to talk to James about the car. As he walked to the shop, he was stopped by the victim who told him something. They started arguing and then fighting. The defendant’s brother, Chad, joined in the fight. The victim attempted to run towards his car. He opened the door and appeared to be reaching for something. The defendant pulled the victim away from the car, and they continued fighting. During the fight, the victim pulled the defendant’s dreadlocks. The victim was yelling for someone to come 11fihelp him. The defendant looked up and saw two men with weapons — one with a pipe and another with a screwdriver — approaching him. He showed them his gun to let them know that it was just a fight. He told them, “It’s a fight, we don’t need weapons.” The defendant and his brother then let the victim go. They walked back to their vehicle. Chad got in the backseat, and the defendant in the driver’s seat. As he got in the car, he heard the back window shatter. Jonece screamed. He looked at the back of the car and saw the victim pointing a gun at them. He saw the gun discharge in the direction of the car. The defendant ran to the back of the car and started shooting at the victim. The victim got behind a barrel and continued shooting at him. The defendant returned to his car and changed the magazine in his gun. He turned around and saw the victim running towards him. He shot the victim, and the victim fell to the ground. As the defendant ran towards his car, he saw the victim reaching for his weapon. Thinking that the victim was going to shoot him, he shot the victim again. The defendant stated that he had a concealed carry permit for his weapon. He did not know he hit the victim until the victim fell and the shooting stopped. The defendant contended that the victim had his gun in his right hand while the victim was on the ground. The defendant stated that the victim was moving and trying to shoot him.

The defendant returned to his vehicle. Lashanda also got in the car, and they drove off. They picked up Chad on Martin Luther King Boulevard. They picked up Jonece and her son at a service station on the corner of Claiborne Avenue and Martin Luther King. The defendant then parked the vehicle in an alley. They got rid of the vehicle because they did not want to get hurt by the shattered glass from the back window. The license plate, which was a paper plate, fell when the window was shattered. The defendant stated that he went to Texas to have some |17fun before he went to jail. He intended to turn himself in when he returned to Louisiana. He does not recall a jail house phone call in which he told someone to tell Jonece to bring all her children to court with her and say that they were all in the car with them.

On rebuttal, Don Hancock, the telephone supervisor at the Orleans Parish Sheriffs Office, testified that he oversees the telecommunications system at Orleans Parish Prison. He stated that all inmate calls are recorded. He identified the call detail and recordings of the phone calls made by the defendant. The recordings were played for the jury.

Detective James O’Hearn, a NOPD officer assigned to the District Attorney’s office, testified that he performed a concealed carry permit check. There was nothing in the records to suggest that the defendant had a concealed carry permit.

In the present case, the testimony presented at trial was sufficient for the State to prove, beyond a reasonable doubt, that the defendant did not act in self-defense. The eyewitness testimony reveals that al- • though the victim and the defendant were engaged in a shoot-out initially, the victim was attempting to retreat to his vehicle when the defendant reloaded his weapon and continued to shoot at the victim. The defendant shot the victim in the leg, causing the victim to fall. While the victim was on the ground, unarmed and pleading for his life, the defendant walked up to the victim and continued to shoot him. The testimony also reveals that the defendant and his brother instigated the initial fight when they got out of their vehicle and started beating the victim. The testimony from St. Cyr and Baxter indicate that the defendant and his brother would have continued beating the victim had they not intervened.

| isThis assignment is without merit.

COUNSEL’S ASSIGNMENT OF ERROR NUMBER 2

The defendant also argues that the trial court imposed an unconstitutionally excessive sentence. The defendant contends that there was no basis to support a maximum sentence of forty years at hard labor.

In State v. Smith, 2001-2574, pp. 6-7 (La.1/14/03), 889 So.2d 1, 4, the Louisiana Supreme Court set forth the following standards for reviewing a claim of excessive sentence:

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion, (citations omitted)

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1 and whether the sentence is warranted under the facts established by the record. If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence the district court imposed is too severe in light of the particular defendant as well as the particular circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239; see also State v. Bonicard, 98-0665, 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

|inHowever, in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819, this Court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Howard, 414 So.2d 1210, 1217 (La.1982); State v. Ambeau, 2008-1191, p. 10 (La.App. 4 Cir. 2/11/09), 6 So.3d 215, 222.

This Court has upheld forty-year sentences for manslaughter in the past. See State v. Allen, 2006-1434 (La.App. 4 Cir. 3/7/07), 954 So.2d 779 (the defendant, who had prior convictions, stabbed someone whom he thought had stolen his wallet); State v. Bell, 2002-2349 (La.App. 4 Cir. 8/6/03), 854 So.2d 429 (the defendant, who had no prior convictions, stabbed her lover; she had been charged with second degree murder); State v. Jones, 2001-0630 (La.App. 4 Cir. 3/20/02), 814 So.2d 623 (the defendant, charged with second degree murder, was convicted of manslaughter in the shooting death of a man with whom he had fought earlier the same night); State v. Williams, 99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604 (the defendant, charged with first degree murder, was convicted of manslaughter when he opened fire in the apartment of a man with whom he had previously fought).

In State v. Colbert, 2007-0947 (La.App. 4 Cir. 7/23/08), 990 So.2d 76, the defendant had been charged with second degree murder, found guilty of | ^manslaughter and attempted second degree kidnapping. He was sentenced to serve forty years at hard labor, the statutory maximum. This Court affirmed the sentence imposed, noting that the victim was not armed and in no way provoked the defendant. The Court recognized that the defendant was initially charged with second degree murder. The trial testimony revealed that the defendant was lying in wait with a gun when his ex-girlfriend and the victim arrived on the scene.

In State v. Peters, 2012-1641 (La.App. 4 Cir. 8/21/13), 123 So.3d 307, the defendant was convicted of being involved in a drive-by shooting in which the shooters repeatedly fired semi-automatic weapons at a paraplegic man in a wheelchair, striking him fourteen times. The trial court imposed a forty year sentence, noting that the defendant had been charged with second degree murder but found guilty of manslaughter. This Court found that the trial court did not abuse its discretion when it imposed the maximum sentence.

In the case at bar, the defendant was initially charged with second degree murder, but the jury found him guilty of manslaughter. At the sentencing hearing, the trial court heard victim impact testimony from the victim’s wife. The defendant stated he was sorry it happened, but continued to argue that it was self-defense. The trial court, in imposing the maximum sentence, recognized that the defendant shot at the victim seventeen times and struck him eight times. The trial court noted that the defendant shot the victim while the victim was on the ground. The trial court found that the evidence showed that the defendant was the aggressor and did not stop. The court stated:

Your actions, not only on the day of that crime, but in this Court as you testified, show a lack of remorse. Your absence of feeling in taking another person’s life, and your failure to take responsibility. Even your comments today of you’re “sorry it happened” is not taken by this Court as |g1an acceptance of responsibility, more as a, you’re sorry for what’s a happening to you.
The jury found that your crime was not justified by self-defense. They didn’t find you guilty of the maximum charge. They did find you guilty of the lesser charge. And I think indeed you were shown mercy by the jury.
The fact that Mr. Livas did shoot a gun is probably what managed to give the jury the opportunity to find you guilty of Manslaughter. I find that Mr. Livas was protecting himself, in as much as you and your brother had physically attacked him, and that attack was not waning, it was continuing and proceeding. The fact that he got a gun to defend himself, and then you pulled your gun, and the fact that you represented to the Court that you had a gun license and it was not appropriately or further proven, I find that that was not the truth either.

The trial court more than sufficiently complied with the requirements of La. C.Cr.P. article 894.1 in setting forth the reasons for the sentence imposed. Further, the trial court’s reasons and analysis of the facts of the case presented at trial clearly support the sentence of forty years at hard labor. As the trial court noted, the defendant shot at the victim seventeen times and continued to shoot the victim while the victim was on the ground. The defendant showed no remorse for his actions and continued to argue that he acted in self-defense. The trial court did not abuse its discretion in sentencing the defendant to serve forty years at hard labor.

This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

In his first pro se assignment of error, the defendant complains Assistant District Attorney Craig Famularo should not have been allowed to testify because he could not testify as to what occurred during the grand jury proceedings. It should be noted that Mr. Famularo was called as a defense witness. A review of the trial transcript reveals that Mr. Famularo did not testify about the grand jury proceedings. He only testified as to his interview of Eddie St. Cyr. This assignment is without merit.

IttJPRO SE ASSIGNMENT OF ERROR NUMBER 2

In this assignment, the defendant complains that the trial court should not have admitted the testimony of Craig Fa-mularo because it was hearsay. As stated above, Mr. Famularo was called as a witness by defense counsel and questioned about a prior statement made by Eddie St. Cyr during St. Cyr’s interview with Famu-laro. As such, defendant made no objection to the testimony. Further, there were no hearsay objections made during the State’s cross-examination of Famularo. Thus, appellate review of any alleged hearsay error is precluded. La.C.Cr.P. article 841. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3

In his third pro se assignment, the defendant contends that the prosecutor made improper remarks that defendant’s witnesses, Chad Bowens, Lashanda Watson, and Jonece Duncan should have independent counsel prior to testifying at the trial. The defendant argues that these remarks intimidated the witnesses and caused them to decline to testify at trial. The defendant’s argument is completely without merit. All three witnesses were placed at the crime scene. Watson was named as a co-defendant in the original indictment. The testimony of Eddie St. Cyr and Chad Baxter reveals that Chad Bowens participated in the physical attack on the victim and could have been charged as a result of that attack. Additionally, both Bowens and Duncan could have been charged with either obstruction of justice or accessary after the fact. The trial transcript reveals that the trial judge extensively spoke with these witnesses about their need for counsel prior to determining whether they should testify at trial. After conferring with counsel, Watson and Duncan indicated that they would invoke their Fifth Amendment rights if called to testify. Jo-nece Duncan decided to testify, and did testify, at trial.

IgjjThis assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 4

In this assignment, the defendant argues that the trial court failed to properly instruct the jury on the aggressor doctrine. A review of the trial transcript reveals that the only objection made concerning the jury instructions was concerning the “majority verdict of the State of Louisiana that’s allowed under [the] law.” The defendant’s failure to object precludes appellate review. La.C.Cr.P. article 841. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 5

The defendant argues in this assignment of error that the appellate record is incomplete, which prejudices the defendant from having a guarantee of a complete appeal. The portions of the record which defendant claims should have been included in the appeal record are (1) examination of the prospective jurors; (2) the prosecutor’s statement on the aggressor doctrine; (3) orders for the prosecution to produce the statements of Eddie St. Cyr, Chad Baxter and Lashanda Watson; (4) transcribed jail calls; and (5) 911 recordings. The defendant also claims that names are misplaced and the wording is changed in some portions of the record.

A review of the appellate record reveals that the portion of the voir dire during which objections were made was transcribed and made a part of the appeal record. The prosecutor’s reference to the aggressor doctrine in his opening statement was not objected to by defense counsel and referred to statements that were apparently made during voir dire on January 23, 2012. Because there were no objections by defense counsel, review of any alleged errors is precluded under La. C.Cr.P. article 841.

^The defendant also asserts that the trial court ordered the prosecution to turn over to the defendant statements made by the witnesses to Detective Pardo, but the order is missing from the appellate record. A review of the appeal record reveals that the defendant requested the information as part of his discovery requests and that the State provided the defendant with the information. The defendant also contends that the appellate record should have included the 911 calls and transcriptions of the jail calls. However, defense counsel objected to the 911 call, noting that it had no testimonial value. In regards to the jail calls, there was no request made by defense counsel that the calls be transcribed. Defense counsel was provided with copies of the audiotapes of the phone calls, and the audiotapes are part of the appellate record.

The defendant also contends that names are misplaced and the wording is changed in some portions of the record. However, he does not assert any specific errors in the record.

The defendant’s argument that the appellate record is incomplete is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 6

The defendant also suggests that the State withheld exculpatory evidence. He alleges that the State failed to provide (1) information concerning St. Cyr’s statement that the victim shot first; (2) the CD containing the jail calls to the defendant prior to trial; and (3) witnesses’ rap sheets. A review of the record reveals that the defendant was provided with the witnesses’ rap sheets and the information about St. Cyr’s statement prior to trial. The appellate record indicates that the defendant was provided with the CD during the trial. However, it should be noted that the CD was not used by the State until rebuttal, after the defendant |2Btestified on his own behalf and denied making certain statements during the phone calls. Further, review of the CD reveals that it did not contain any exculpatory evidence.

This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 7

In his last pro se assignment, the defendant contends that the cumulative errors prevented him from receiving a fair trial. However, as noted above, the defendant’s pro se assignments of error have no merit. The State produced sufficient evidence to prove, beyond a reasonable doubt, that the defendant did not act in self-defense. In light of the circumstances in the present case, the trial court did not abuse its discretion in sentencing the defendant to serve forty years at hard labor.

CONCLUSION

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Mr. Livas was shot eight times; once in the arm, twice in the torso, once in the back of the knee, once in the hip, and three times in the head. Additionally, he sustained abrasions to his knees, left elbow and forearms, as well as a contusion to his forehead.

      . Lashanda Watson was also named as a defendant in the indictment as to count two, obstruction of justice. On February 6, 2012, the indictment was amended to charge her with accessory after the fact. She pled guilty to the amended indictment and was sentenced to five years at hard labor. The sentence was suspended and she was placed on five years active probation.

      . La. R.S. 14:21 sets forth the aggressor doctrine:
      A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

      . The recording of the 911 phone call was not included in the exhibits that were sent to this Court as part of the appeal record.

      . It was stipulated that if Meredith Acosta, of the NOPD Crime Lab, would testify, she would state that all seventeen rounds of forty caliber ammunition were fired from the same weapon and that all six nine millimeter casings came from the same weapon.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alvin HANDY.
    No. 2014-KA-1015.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge MAX N. TOBIAS, JR.).

      . At some point after his conviction. Handy filed a motion for production of documents and a motion for production of trial and sentencing transcripts, which the trial court denied. On 1 July 2014, Handy filed a writ application with this court seeking the review of the trial court’s decision. This court denied his application. State v. Handy, 14-0685, unpub. (La.App. 4 Cir. 7/23/14).

   MAX N. TOBIAS, JR., Judge.

|,On 23 December 2010, the defendant, Alvin Handy (“Handy”), and Michael Robinson (“Robinson”) were charged by bill of information with one count of simple burglary, a violation of La. R.S. 14:62. The bill of information alleges that on UNo-vember 2010, Handy and Robinson committed “simple burglary of a structure located at 301 North Carrollton, belonging to Joan Berenson.” In February of 2011, Handy and Robinson appeared for arraignment and entered into pleas of not guilty.

Subsequently, both Handy and Robinson filed pre-trial motions to suppress evidence, to suppress statement, to suppress identification, and for a preliminary hearing. On 17 June 2011, the trial court found probable cause to substantiate the charges and denied the motions to suppress.

On 24 January 2012, the trial court found Robinson incompetent to stand trial and continued the matter without date. Handy proceeded to trial (by jury) on 13 February 2012, after which the jury unanimously found him guilty as charged.

12Sentencing was scheduled for 21 May 2012. On the date of the sentencing hearing, Handy filed a motion for post-verdict judgment of acquittal, and the state filed a multiple offender bill charging Handy as a triple offender. After the trial court denied Handy’s motion for post-verdict judgment of acquittal, he pled guilty to the triple offender bill and was sentenced to fifteen years at hard labor, to run concurrently with any other sentence, with credit for time served. On 12 June 2014, Handy filed a motion for appeal and designation of record.

STATEMENT OF FACTS

The state called two witnesses to testify at trial: the investigating officer, Officer Christopher Johnson, and the victim, Joan Berenson (“Berenson”). The defense did not. call any witnesses.

Officer Christopher Johnson of the New Orleans Police Department Third District Task Force testified that on 11 November 2010, he was inside his parked vehicle when he observed a black male subject, identified in the record as Robinson, carry copper wiring from the back door of a former daiquiri shop on the corner of North Carrollton Avenue and Bienville Street. Officer Johnson then |ssaw Robinson walk to a truck, tie some of the wire to it, and then strip the wire with a box cutter. He stated that he decided to investigate because the building was secured and boarded up, and no one should have been inside the property. Officer Johnson then approached Robinson, asked him to sit down, and began to question him. While Officer Johnson was speaking with Robinson, he also observed a second man, identified in open court as Handy, walking out of the rear door of the building, carrying iron tubing from the back of the toilet in one hand and some copper tubing in his other hand. He then stopped Handy and instructed him to sit next to Robinson. Officer Johnson testified that he asked the subjects if they were doing work in the property, and they replied that they were not.

Officer Johnson stated that he learned that the owner of the building was Beren-son from a passerby and attempted to contact her, but was unsuccessful at the time. He then took photographs at the scene and completed field interview cards on each of the subjects. Officer Johnson identified the field interview cards and the photographs at trial, which were later offered into evidence. The photographs included: a picture of the truck parked outside the building; a picture of the rear of the truck with the copper wire tied to it; a picture of the copper wire in its entirety; a picture of the back door of the building that he observed Handy exit; a picture of the copper and iron tubing that was in Handy’s possession; a picture of the box cutter Robinson had used to strip the wire; and a photograph of Handy and his ID card.

Officer Johnson testified that he arrested Robinson on the scene because he was wanted in Jefferson Parish on a fugitive attachment. Handy, however, was allowed to leave the scene. Officer Johnson stated that because he was unable to | initially reach Berenson, he put the wiring and the tubing back inside the property and relocked the door.

Later, Berenson returned Officer Johnson’s call and informed him that nobody was supposed to be inside the building or had permission to take property from the building. Officer Johnson relocated to Berenson’s residence, and where she executed a theft affidavit, which was entered in evidence to complete the record. Thereafter, a warrant was issued for Handy’s arrest, and Robinson was re-booked for simple burglary. Officer Johnson testified that he was able to obtain the warrant due to the field interview cards and the photographs he had taken on the scene, which were introduced into evidence.

On cross-examination, Officer Johnson stated that when he returned the items taken by Handy and Robinson to the building, he observed a lot of debris therein, but no signs of construction work. He testified that on the day of the incident, the property was vacant and not open for business. Officer Johnson stated that he did not find any tools on Handy’s person, only the iron and copper pipes. He said that Berenson never accompanied him to the scene to view the items taken from the building nor identified the property allegedly taken from the building as hers; and he never showed Berenson any photographs he had taken on the scene. Officer Johnson stated the windows of the building were boarded up, but that the rear door was not. He admitted that he did not note any signs of forced entry into the building.

Berenson testified that she owns the property at 301 North Carrollton Avenue. The property consisted of an L-shaped shopping area and a separate building that used to be used as a daiquiri shop. She stated that following |sHurricane Katrina and on 11 November 2010, both the shopping area and the daiquiri shop had been boarded up to keep out vagrants.

Berenson did not recall the date, but stated that the police called her to inform her that two people had been caught taking items out of her property and inquired whether anyone had been authorized to enter the property. She stated that she advised the police that she did not give anyone permission to remove component parts of building materials from the property. She also testified that she never gave Handy or anyone else authority to work on her property.

On cross-examination, Berenson stated that the property was operational when it was leased. She said that prior to the robbery she went to the property every couple of weeks to meet with the maintenance man. The maintenance man mowed the grass and took away trash, but did not do anything inside the property. She testified that she never entered the daiquiri shop after Hurricane Katrina. She stated that she believed that the previous tenant brought in the equipment and fixtures, but was unsure if the lease said that in the event the tenant vacated whether the equipment and fixtures belonged to her or not.

Berenson said that subsequent to the robbery, the property was demolished. She admitted that prior to demolition she did not perform an inventory of the materials that were inside the building. She testified that when she spoke with the police, she never identified photographs of the items allegedly taken from the property. The defense then offered and introduced three photographs depicting the subject property on North Carrollton Avenue.

On redirect, Berenson stated that the photographs presented by the defense did not portray the state of the property as it existed on 11 November 2010.

\ ^ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, Handy contends that there is insufficient evidence to support his conviction for simple burglary.

This court in State v. Haynes, 13-0323, pp. 7-8 (La.App. 4 Cir. 5/7/14), 144 So.3d 1083, 1087-1088, set out the well-settled standard for reviewing convictions for sufficiency of the evidence:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the | ./fundamental protection of due process of law. Mussall, 523 So.2d at 1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 872 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis falls; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984).
“A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence.” State v. McMillian, 2010-0812, p. 6 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805 (citations omitted).

In the present case, Handy was charged with simple burglary. La. R.S. 14:62 defines simple burglary as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” Therefore, to convict a defendant of simple burglary, the state must prove beyond a reasonable doubt that the defendant entered the structure or vehicle without authorization and had the specific intent to commit a felony or theft therein. State v. Smith, 06-0318, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 218, 221 (citing State v. Ewens, 98-1096, p. 5 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 93). Theft is defined by La. R.S. 14:67(A) as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

The requisite intent required by La. R.S. 14:62 and La. R.S. 14:67 is specific intent. State v. Brown, 12-0853, p. 3 (La.App. 4 Cir. 2/6/13), 109 So.3d 966, 968 (citing State v. Smith, 02-1018, p. 7 (La. App. 5 Cir. 3/11/03), 844 So.2d 119, 125). Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent is a state of mind that need not be proven as fact but may be inferred from circumstances and the actions of the defendant. Smith, 06-0318, p. 5, 946 So.2d at 221 (citing State v. Bailey, 00-1398, p. 3 (La.App. 5 Cir. 2/14/01), 782 So.2d 22, 24). Whether a criminal defendant possesses the requisite intent is for the trier of fact, and a review of the correctness of that determination is guided by the Jackson standard. Brown, 12-0853, p. 3, 109 So.3d at 968-969 (citing State v. Naquin, 10-414, p. 9 (La.App. 5 Cir. 2/15/11), 61 So.3d 67, 71).

Entry, in relation to La. R.S. 14:62, is accomplished whenever any part of the defendant’s person passes the line of the threshold; it is sufficient that any part of the person intrudes, even momentarily, into the structure. Brown, 12-0853, p. 3, 109 So.8d at 969 (citing State v. Conner, 08-0473, pp. 5-6 (La.App. 4 Cir. 10/1/08), 996 So.2d 564, 568).

|flHandy does not appear to contest that he made unauthorized entry into the North Carrollton property. In fact, as noted later herein, he postures in his brief that numerous reasons exist to enter a vacant property without authority. Handy claims, however, that the state failed to prove that he committed or intended to commit a theft inside the building because (a) Berenson was unable to identify that the objects in his possession were taken from her property; (b) Berenson was not sure if the fixtures and equipment inside the building were owned by her or the previous tenant; and (c) Handy was not found to be in possession of any tools that would have enable him to remove the tubing/piping from the property.

However, to establish the crime of simple burglary, it is not required that an actual theft or a taking occur. State v. Jones, 97-2591, p. 8 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169 (stating that “[t]he essence of burglary ... is an unauthorized entry with criminal intent; a taking is not required”). Additionally, the use of tools is not necessary to establish a simple burglary. See State v. Nelson, 08-0584, p. 4 (La.App. 4 Cir. 12/17/08), 3 So.3d 57, 60 (noting that “the use of tools is not a requirement of the crime of attempted simple burglary” and finding that the evidence was sufficient to support the jury’s conviction of the defendant for attempted simple burglary even though no tools were found on the defendant and no crime lab was called to the scene, where two witnessed identified the defendant as the perpetrator of the crime minutes after it took place); see also, State v. Runnels, 2012-167, p. 8 (La.App. 3 Cir. 11/7/12), 101 So.3d 1046, 1053 (there is no requirement that the state produce physical evidence in support of a | insimple burglary conviction). Thus, the fact that no tools were found on Handy or in his possession when he was apprehended, and the fact that Berenson could not state whether the iron and copper tubing found in Handy’s possession was removed from the daiquiri shop or owned by her under the terms of the lease agreement, is not fatal to his conviction provided that Handy had the intent to commit a theft or felony. Handy’s argument in this regard therefore lacks merit.

Furthermore, the testimony shows that the jury reasonably could have found from the circumstances that Handy had the specific intent to permanently deprive Beren-son of the iron and copper tubing he removed from the building. Officer Johnson testified that he observed Handy and his acquaintance, Robinson, walk out of the rear door of a vacant and boarded-up building carrying copper and iron tubing and copper wiring. Robinson was also seen stripping the copper wiring he removed from the property. Both Handy and Robinson confessed that they were not performing work in the property. Officer Johnson confirmed the absence of evidence that construction work was occurring in the building on the day of the incident. Berenson testified that she did not know Handy and did not authorize anyone to perform work, enter, or remove component parts or building materials from her property. Moreover, as the state noted in its brief, it is well-established that copper wire and other building materials are valuable and frequently stolen. See State v. Brown, 08-0661, p. 4 (La.App. 4 Cir. 12/17/08), 3 So.3d 547, 550 (defendants were caught cutting copper pipe in a school damaged by Hurricane Katrina); State v. Nelson, 44,762, p. 9 (La.App. 2 Cir. 10/28/09), 25 So.3d 905, 912 (defendant removed copper items and plumbing pipes from the vacant home); State v. Wilson, 11-1166, unpub. (La.App. 4 Cir. 6/13/12), 2012 WL 4760654 (defendants found inside school cutting copper wire and pipe); State v. Dickerson, | , ¶ 13-0209, unpub. (La.App. 4 Cir. 4/2/14), 2014 WL 1329873 (defendant broke into residence to steal copper wiring). Based on the foregoing, a rational juror could infer from Handy’s actions and the surrounding circumstances that he entered the building without authority and had the specific intent to commit a theft inside the property.

Handy also contends that the state failed to present evidence that he intended to commit “any other felony” inside the building. He claims that by complying with Officer Johnson’s requests — placing the items down and sitting down when asked — and by not running away, his actions were inconsistent with someone who had the intent to commit a felony therein. Handy also lists various non-felonious purposes that one may enter a vacant building without consent of an owner, such as sleeping, or “needing a place to smoke marijuana” or “a place to urinate without exposing himself in public.”

However, the fact that a defendant may cooperate with an officer does not equate to innocence. Furthermore, the actions of Handy prior to being detained by Officer Johnson are consistent with criminal behavior. As noted above, Handy was observed exiting an unoccupied building that was boarded up for several years with copper/iron materials in his possession. Handy’s accomplice was likewise seen exiting the property with copper wire and subsequently observed stripping the wire. Further, no evidence is presented to reasonably show that Handy was in Beren-son’s property to do any of the alleged non-felonious acts ' that he enumerated. Moreover, absent from the record is anything that would explain why Handy would be carrying out building materials, like iron piping from a toilet or copper tubing, from a vacant property unless he was working in the property or committing a theft. However, Handy and Robinson admitted that they were not | ^.performing work in the building. Thus, no legitimate purpose for entering the property is shown to exist to support Handy’s hypothesis of innocence. It was therefore not irrational for the jury to conclude from the evidence that Handy had the intent to commit a theft or other felony at the time he entered Berenson’s property.

Considering that Handy did not have authority to enter the building; that he was observed removing iron and copper tubing from an unoccupied and boarded-up property; that such materials are valuable; and that he was not performing work in the building, we find sufficient evidence to support Handy’s conviction for simple burglary.

CONCLUSION

For the aforementioned reasons, we affirm the conviction and sentence of Alvin Handy.

AFFIRMED.

      . The bill of information originally incorrectly named Handy as Alvin Hardy. However, on 13 February 2012, the state amended the bill of information to charge Alvin Handy.

      . The parties appeared on two separate dates. Handy was arraigned on 15 February 2011, and Robinson was arraigned on 22 February 2011.

      . Robinson filed a writ application on the trial court’s decision to deny the motion to suppress on 11 July 2011. On 20 July 2011, this court denied his application. State v. Robinson, 11-0936, unpub. (La.App. 4 Cir. 7/20/11).

      .The state previously filed a multiple bill charging Handy as a quadruple offender on 13 April 2012. However, the state withdrew this bill and filed a new multiple offender bill charging him as only a third felony offender in exchange for Handy’s guilty plea in another matter, case number 507-187. The new multiple offender bill was based on the guilty verdict rendered for simple burglary in the present case, a guilty plea in September of 2006 for possession of stolen property in case number 462-246 and a guilty plea in January of 2005 for attempted possession of a firearm by a convicted felon in case number 449-805.

        , At the trial Officer Johnson did not refer to the subject by name; however, at the preliminary hearing Officer Johnson identified the subject as Robinson.

      . We note that the fifteen-year sentence imposed by the trial court pursuant to Handy's guilty plea to the multiple bill of information failed to specify that the sentence was "without benefit of probation or suspension of sentence” as required by La. R.S. 15:529.1(G). Nevertheless, when a criminal statute requires that all or portion of a sentence be served without the benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, La. R.S. 15:301.1 self-activates the correction and eliminates the need to remand for a ministerial correction. La. R.S. 15:301.1(A), (C); State v. Williams, 00-1725, pp. 1112, 14 (La. 11/28/01), 800 So.2d 790, 798-799, 801. Thus, no corrective action is necessary.

      . In State v. Sparkman, 08-0472, pp. 6-7 (La. App. 4 Cir. 1/28/09), 5 So.3d 891, 895, we stated that the Jackson standard is legislatively embodied in La.C.Cr.P. art. 821 B, which provides that a "post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.”

      . La. R.S. 14:60 provides for the crime of aggravated burglary.

      . Even if Handy alleged that the state did not show that he entered the building without authority, the trial transcript establishes that Handy was observed by Officer Johnson exiting the North Carrollton property; Berenson never gave Handy permission to enter or perform work on her property; and the property was boarded for several years.


author: ROLAND L. BELSOME, Judge.

text:
    Louis A. CHARLES, Jr. v. Jason GERVAIS, Board of Commissioners for the Port of New Orleans and Redland Insurance Company.
    No. 2014-CA-0447.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      James L. Donovan, Jr., Donovan & Lawler, APLC, Metairie, LA, for Defendant/Appellant, Board of Commissioners for the Port of New Orleans.
    Christopher E. Carey, William W. Sen-tell, III, Pugh, Accardo, Haas, Radecker & Carey L.L.C., New Orleans, LA, for Third Party DefendantyAppellee Universal Maritime Service Corporation.
    (Court composed of Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   ROLAND L. BELSOME, Judge.

|, This appeal is taken from the trial court’s granting of a motion for summary judgment in favor of Universal Maritime Service Corporation (UMS), and dismissing the third party claims of the Board of Commissioners for the Port of New Orleans (Board). For the following reasons, we affirm.

The Board owns the Nashville Avenue terminal and leases it to Ceres Gulf, Inc. (Ceres). UMS is allowed access to the terminal pursuant to a license agreement with Ceres. This lawsuit arises from an accident which occurred at the Nashville Avenue terminal. Louis Charles alleges that he was injured during a vehicular accident while working for UMS, and operating a vehicle owned by Ceres. The vehicle he was operating was struck by a vehicle operated by Jason Gervais. At the time of the accident, Mr. Gervais was acting in the course and scope of his employment with the Board.

Mr. Charles filed suit naming Mr. Ger-vais, the Board, and their insurer as defendants. Later, the Board filed several third-party demands against various parties. This appeal relates to the Board’s claims against UMS for defense, | indemnity and insurance coverage pursuant to a clause in the license agreement between UMS and Ceres. UMS sought and was granted summary judgment on the claims asserted by the Board and this appeal followed.

On appeal, the Board argues that the trial court erred in granting summary judgment and by failing to find that the Ceres/UMS license agreement created a stipulation pour autrui requiring UMS to defend and indemnify the Board.

Louisiana law is clear, third parties can benefit from contracts for which they were not privy. See, La. C.C. art. 1978, et seq. This is considered a stipulation pour autrui. However, there is no presumption in favor of a stipulation pour autrui. Smith v. State Farm Ins. Companies, 2003-1580, pp. 4-5 (La.App. 4 Cir. 3/3/04), 869 So.2d 909, 912-13. The intent of the party to create the stipulation in favor of a third party must be manifestly clear. Id. Further, establishing the existence of a stipulation pour autrui rests with the party demanding performance. See, La. C.C. art. 1831.

In Joseph v. Hasp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, pp. 8-9 (La.10/15/06), 939 So.2d 1206, 1212, the Supreme Court concisely set forth the requirements of a valid stipulation pour au-trui: (1) the stipulation for a third party is manifestly clear; (2) there is certainty as to the benefit provided the third party; and (3) the benefit is not a mere incident of the contract between the promisor and the promisee. Joseph also stated that “[e]ach contract must be evaluated on its own terms and conditions in order to determine if the contract stipulates a benefit for a third person.” Id.

|sThe Board contends that it is owed a defense and indemnification due to the stipulation pour autrui created by the following language within the license agreement:

UMS shall at all times relieve, indemnify, protect, defend and hold harmless Ceres and the Board ... from and against any and all claims ... caused, directly or indirectly, by (a) the use and operations of the Equipment by UMS, (b) the use or occupation of the Terminal by UMS, (c) the conduct of stevedore operations by UMS on or about the Terminal, (d) any act, omission or negligence of UMS or any UMS Related Person and/or (e) any failure by UMS or any UMS Related Person to comply with any application federal, state, regional, or municipal law, ordinance, rule or regulation, or any operating rules and restrictions ...

We agree with the Board that the language creates a contractual indemnity clause that stipulates a benefit to the Board, or a stipulation pour autrui. The clause clearly meets the criteria. First, the stipulation is clearly in favor of the Board in a contract for the Board is not privy. Secondly, the benefit provided is clear, the Board will be defended, indemnified, and held harmless for actions by UMS that result in damages. Lastly, the benefit is not incidental to the contract, but expressly created within the license agreement to protect the Board from actions by UMS in its performance under the contract.

The Board maintains that the obligation extends to acts of the Board’s own negligence. As the party demanding performance of this obligation, the Board bears the burden of proving the existence of this obligation. See, La. C.C. art. 1831. Here, the language of the agreement is clear and unambiguous and this Court should not seek to interpret that language in a broader manner than was intended. See, La. C.C. art. 2046. Furthermore, the Louisiana Supreme Court in Polozola v. Garlock, 343 So.2d 1000, 1003 (La.1977), specifically addressed this issue. In Polo-zola, the language in the indemnity clause was unequivocal and provided that LNational Union would indemnify Dow whether cause by Dow’s negligence or otherwise. As the Polozola Court stated:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own. negligent act, unless such an intention was expressed in unequivocal terms.

Id., 343 So.2d at 1003 (citations omitted).

In this case, the indemnity clause simply does not provide, in unequivocal terms, indemnity for damages caused by the Board’s own negligence. For this reason, the trial court’s judgment is affirmed.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Edward Anthony ALBERES, et al. v. ANCO INSULATIONS, INC., et al.
    No. 2013-CA-1549.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Benjamin P. Dinehart, Dylan A. Wade, Roussel & Clement, LaPlace, LA, for Plaintiffs/Appellants/Edward A. Al-beres, et al.
    Michael D. Roche, Richard K. Leefe, Wanda A. Davis, Michael R. Gelder, James K. Sticker, III, Leefe, Gibbs, Sullivan, Dupre, LLC, Metairie, LA, for Defendant/Appellee/Goodrich Corporation.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

1,Edward A. Alberes (“Mr. Alberes”) and his wife, Anna A. Alberes (collectively “appellants”) sought to recover damages as a result of Mr. Alberes’ contraction of asbestosis and other damaging effects to his health from his exposure to asbestos while working at B.F. Goodrich Corporation (“Goodrich”). Goodrich filed a motion for summary judgment based on the appellants’ failure to demonstrate that Mr. Al-beres’ exposure to asbestos at Goodrich’s facility was a substantial contributing factor to the onset of his asbestosis. The trial court granted Goodrich’s motion for summary judgment. On appellate review, we find that because there is a genuine issue of material fact as to whether Mr. Alberes’ exposure to asbestos at Goodrich was a substantial contributing factor to his development of asbestosis the trial court committed reversible error. Accordingly, we reverse the trial court’s granting of the motion for summary judgment.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In October 2008, the appellants filed suit for damages as a result of Mr. Alberes’ contraction of asbestosis. From approximately 1953 through 2006, Mr. |2AIberes was employed in various positions, including as a pipefitter and insulator, at the work sites of several employers. In the late 1970’s or early 1980’s, Mr. Alberes worked a turnaround job for five days as a pipefitter helper at Goodrich’s facility in Plaquemine, Louisiana. Mr. Alberes testified that he was responsible for installing and removing Garlock gaskets containing asbestos. He further testified that most of the gaskets were old and had been there for quite some time. He testified that when removing the gaskets it often required him to scrape the gasket material with a wire brush or blow the remnants out with an air hose. Mr. Alberes testified that he was aware the Garlock gaskets contained asbestos because when he passed his hand over it he could see the fibers. He stated that the fibers were “kind of brownish white looking, black ... [and] when you move them, they kind of sparkle.”

Additionally, Mr. Alberes testified that when he worked at Goodrich he worked in close proximity to insulators. He noted the insulators were present the entire time he was employed at Goodrich, removing old insulation and installing new insulation. Mr. Alberes testified that not only did he work in the area with insulators, but he was also responsible for cleaning up the insulation at the end of each day. Mr. Alberes stated that there was always a Goodrich supervisor or superintendent overseeing their work, but at no time was he advised to wear or provided respiratory protection.

|sThe appellants also submitted the deposition of Frank Parker, III (“Mr. Parker”), an expert industrial hygienist. Mr. Parker testified that Mr. Alberes’ handling, removing, and installing asbestos-contained gaskets would expose him to concentrations of asbestos above “contemporary occupational limits.” These exposures, Mr. Parker testified, would have been a significant contributing factor in his risk for development of asbestosis. Dr. Judd Shellito (“Dr. Shellito”) also testified that any and all exposures to asbestos would have been a significant contributing factor in Mr. Alberes’ contraction of asbestosis and asbestos-related pleural plaques. Further, Dr. Robert Jones (“Dr. Jones”), Goodrich’s expert, testified that all exposures are cumulative, and all exposures contribute to the ultimate disease.

The appellants filed suit seeking damages allegedly resulting from his exposure to asbestos and asbestos-containing products while Mr. Alberes was employed at various work sites. Specific to this matter, the appellants contend that during Mr. Alberes’ time at Goodrich’s facility, his exposure to asbestos was a significant contributing factor to the onset of his asbestosis.

Goodrich filed a motion for summary judgment asserting that the substantive law requires the appellants to provide evidence of frequent and regular exposure to asbestos fibers at Goodrich and that the exposure was a substantial factor in the development of his asbestos-related injuries. Goodrich contends that the appellants are unable to meet its burden of proving causation. Goodrich points to the fact that Mr. Alberes’ exposure at its Plaquemine facility was only for five days on a | ¿turnaround job and inconsequential in the scope of a life-long career employed as a laborer, pipefitter helper, and crane operator. Mr. Alberes’ exposure at its facility, Goodrich argues, does not meet the threshold substantial contributing factor test, particularly in light of his exposure at other work sites during his career. For those reasons, the trial court granted Goodrich’s motion for summary judgment. The appellants’ timely appeal follows.

STANDARD OF REVIEW

On appellate review this Court reviews summary judgments de novo using the same criteria that governs the trial court’s consideration. Thibodeaux v. Asbestos Corp., 07-0617, p. 4 (La.App. 4 Cir. 2/20/08), 976 So.2d 859, 862. Therefore, “a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Id. See La. C.C.P. art. 966(B). It is well-settled law that “[s]ummary judgments are favored and factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents favor.” Id. See also Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050. Further, this Court has previously stated:

The trial court cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.02/29/00), 755 So.2d 226, 286. It is not the function of the district court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no- place in summary judgment procedure. See also Knowles v. McCright’s Pharmacy, Inc., 34,559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

Thibodeaux, 07-0617, p. 4, 976 So.2d at 862.

Moreover, in Lucas v. Hopeman Bros., Inc., 10-1037, p. 6-7 (La.App. 4 Cir. 2/16/11), 60 So.3d 690, 696, this Court noted:

A fact is material if it is essential to the plaintiff’s cause of action under the applicable theory of recovery and, without the establishment of the fact by a preponderance of the evidence, the plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.

(citing Danos v. Avondale Indus., Inc., 07-1094, p. 3 (La.App. 4 Cir. 7/2/08), 989 So.2d 160, 162). Therefore, in order to determine whether the trial court committed reversible error, we must first determine whether a genuine issue of material fact remains as to Goodrich’s liability.

MOTION FOR SUMMARY JUDGEMENT

In this case, the appellants aver the trial court erred by granting Goodrich’s motion for summary judgment. The appellants contend that they have offered evidence proving that a genuine issue of material fact exists as to whether Mr. Alberes’ exposure to asbestos while working at Goodrich’s facility was a significant contributing factor to the onset of his asbestosis, and that such evidence should be evaluated by the trier of fact.

This Court acknowledges that “[i]t is scientifically proven and legislatively recognized, that a causal relationship exists between asbestos exposure and the occurrence of asbestosis.” Lucas, 10-1037, p. 8, 60 So.3d at 696. See also Rando v. Anco Insulations, Inc., 08-1163, p. 15-16 (La.5/22/09), 16 So.3d 1065, 1080.

In Quick v. Murphy Oil Co., this Court concluded:

IfiWhen evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example negligence and products liability) which require proof of causation. See Cole v. Celotex Corp., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. den., 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which “proceeds from the assumption that more than one defendant substantially contributed to the plaintiffs injury.” 210 E. 86th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125, 150 (S.D.N.Y.1993).

93-2267, p. 8, (La.App. 4 Cir. 9/20/94), 643 So.2d 1291, 1294. Further, in asbestos cáses, “the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” In re Asbestos v. Bordelon, Inc., 96-0525, p. 30 (La.App. 4 Cir. 10/21/08), 726 So.2d 926, 948.

Here, Mr. Alberes’ exposure to asbestos at Goodrich’s Plaquemine facility must be a substantial contributing factor to the development of his asbestosis in order for appellants to prevail. A finding that Mr. Alberes’ exposure at Goodrich is a contributing factor alone is insufficient to find Goodrich liable.

Goodrich contends that Mr. Alberes’ exposure cannot be deemed “substantial” because his exposure occurred during a five-day turnaround within the scope of a lifelong career as a laborer, pipefitter helper, and crane operator. To further support its argument, Goodrich makes great efforts to calculate what percentage of Mr. Alberes’ career was spent at its facility. Goodrich also avers that Mr. Parker’s testimony that any exposure is cumulative and therefore, significant, renders the substantial contributing factor test meaningless. Consequently, Goodrich argues that “the law allows for defendants with relatively minimal exposures in these cases to be dismissed,” and for that reason, the trial court did |7not err in granting its motion for summary judgment. Goodrich, however, does not point to any case law to support the above contention.

The Louisiana Supreme Court previously addressed this issue and made clear that “simply because a plaintiff suffered asbestos exposure while working only a short period of time for an employer and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor” in the contraction of his disease. Rando v. Anco Insulations, 08-1163, p. 35 (La.5/22/09), 16 So.3d 1065, 1091. Additionally, this Court in Hoerner v. Anco Insulations, Inc., et. al, 00-2333, p. 23 (La.App. 4 Cir. 1/23/02), 812 So.2d 45, 64, rejected the same argument Goodrich offers. The defendant in Hoemer alleged that Mr. Hoerner’s exposure to asbestos was not long enough to meet the substantial factor test. This Court stated:

... [W]e reject the assumption implicit in the Schubers’ argument that exposure to asbestos-containing products during an employee’s tenure with a given company cannot as a matter of law be considered a “substantial factor” in an employee’s contraction of asbestos-related disease if that employment is only for a very short period of time. The “frequent and regular” requirement refers to the quality of the exposure during the employment period, not to the length of that period.

Id. (emphasis added).

The trial court granted summary judgment merely because the length of Mr. Alberes’ employment period and the opportunity for exposure was minimal when compared to possible longer periods of exposure throughout his career working for others. Given that the substantial contributing factor test in asbestos-related cases focuses on the quality of exposure versus the duration of exposure, granting summary judgment on these grounds was in error.

|8We find the appellants have presented evidence that raises a genuine issue of material fact as to whether Mr. Alberes’ exposure to asbestos at the Goodrich facility was a substantial contributing factor to his contraction of asbestosis.

Mr. Alberes testified that he was aware he was working with asbestos-containing products. He noted that while removing and replacing old gaskets the asbestos fibers were released from the surface of the gaskets and he could see the fibers in the air. He also testified that no one at Goodrich ever advised him to wear or provided him with respiratory protection. Additionally, Mr. Parker, an expert industrial hygienist, opined that Mr. Alberes’ handling, removing, and applying asbestos gaskets would have exposed him to concentrations of asbestos above background; and therefore, the exposures would have been a significant contributing factor in his risk for the development of asbestosis. Dr. Shellito testified that asbestosis and asbestos-related pleural plaques are injuries and lung diseases that are caused by inhalation of asbestos fibers, noting that such exposure is additive. Similarly, Dr. Jones agreed that asbestos is a cumulative disease wherein all exposure contributes to and constitutes a cause of asbestosis.

Goodrich did not submit any evidence to rebut appellants’ claim but to offer Mr. Alberes’ deposition, and to note the length of Mr. Alberes’ employment at Goodrich. Moreover, Goodrich has not offered any evidence that demonstrates that the quality of Mr. Alberes’ exposure was not a substantial contributing factor to the onset of his contraction of asbestosis.

The standard applied for granting a motion for summary judgment is whether a genuine issue of material fact exists; and, any doubt must be decided in favor of the non-moving party. La. C.C.P. art. 966. In this case, whether Goodrich’s breach of duty was a substantial factor in bringing about Mr. Alberes’ |9injuries is a question of fact. Based on the depositions and other documentary evidence in the record, the question of whether Mr. Alberes’ exposure to asbestos-containing products at Goodrich was a substantial contributing factor to his contraction of asbestosis is one which reasonable minds may disagree. Therefore, we find the trial court erred by granting Goodrich’s motion for summary judgment.

DECREE

Accordingly, we reverse the trial court’s ruling and remand the matter for further proceedings in accord with this opinion.

REVERSED AND REMANDED

      . "Garlock” gaskets refer to the specific gasket manufacturer Mr. Alberes recalled working with while employed at Goodrich.