author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana in the Interest of K.D.
    No. 2013-CA-1274.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO.
   JOY COSSICH LOBRANO, Judge.

hOn August 22, 2013, the Orleans Parish Juvenile Court adjudicated K.D. delinquent as a result of having committed the crime of simple criminal damage to property, a violation of La. R.S. 14:56. The Juvenile Court judge entered a disposition of commitment to the Department of Public Safety and Corrections for a period of six (6) months, but suspended the commitment and placed K.D. on six (6) months of inactive probation, with certain special conditions. K.D. now appeals his adjudication and disposition.

At the trial of this matter, Nekita New testified that on May 15, 2013, she was in her vehicle with her fiancé and young child when a brick was thrown at the vehicle. She was in the passenger seat, and the brick was thrown at the passenger side of the vehicle. Prior to the brick being thrown, Ms. New saw three juveniles riding bikes, and one of them had a brick in his hand. As they drove by the juveniles, the one with the brick in his hand threw the brick at the vehicle. In court, she identified K.D. as the juvenile who threw the brick. Ms. New testified that she initially did not want to involve the police in this matter; she only wanted the damage to her car repaired. Upon learning where K.D. lived, Ms. New went to 1 ?his home that evening to attempt to speak with K.D.’s parent or guardian. When she knocked on the door, K.D. and his younger brother answered. She said she recognized K.D. and told him that he had thrown a brick at her car. K.D. gave her the name of another juvenile as the perpetrator. She asked to speak to KD.’s mother, but was unable to speak to her that night. Ms. New then left K.D.’s home, but returned the next evening to again attempt to speak to KD.’s mother. She did not meet with KD.’s mother but was able to contact KD.’s mother by telephone. Their conversation did not lead to a resolution of the matter. Ms. New ultimately used her own funds to repair her vehicle. The cost to repair the damage to the vehicle was $1,200.00. She reported the incident to the police, and a police officer met with her to discuss the incident. She told the officer that K.D. was the person who threw the brick at her vehicle. She testified that she is positive that K.D. was the person who threw a brick at her vehicle.

On cross-examination, Ms. New testified that she gave a written statement to an investigator for the defense. She denied telling the investigator that on the night of the incident, she was not sure it was K.D. who threw the brick. When shown the statement she gave to the investigator, she testified that the statement said she was “almost sure” on the night of the incident that it was K.D. who threw the brick. She then admitted that in her written statement, she did not say she was sure that K.D. was the perpetrator. Ms. New said that when she first spoke to the police officer about the incident, she gave them KD.’s name but told the officer that K.D. named another juvenile as the person who threw the brick. She acknowledged that IsK.D.’s name was not in the police report, a fact she said she learned from another police officer with whom she later met to discuss the incident. She said she gave the first police officer the name of another juvenile as the perpetrator, but did so only because K.D. told her the other juvenile was the one who threw the brick. She stated that the other juvenile had a thin build and an Afro hairstyle. She further stated that when KD.’s mother informed her that she would not pay to repair the vehicle, Ms. New then called the police to press charges. She testified that D.C., another juvenile in the group, told her K.D. threw the brick. Ms. New was unsure how dark it was outside at the time of the incident.

On redirect examination, Ms. New testified that in her written statement to police, she mentioned the juvenile’s name that K.D. had given to her as that of the perpetrator who had thrown the brick. But Ms. New said that when she had the opportunity to meet the other juvenile, she knew he was not the one who had thrown the brick based on differences in his and KD.’s builds.

The next witness was Angelo C. Jackson, Sr., Ms. New’s fiancé who was with him in the car on May 15, 2013 when a brick was thrown at the car. He testified that he did not see who threw the brick.

Officer Michael Guaseo, with the New Orleans Police Department, testified that he was involved in an investigation of the incident that occurred on May 15, 2013. He met with Ms. New on May 20, 2013, and went with her to KD.’s house. Office Guaseo testified that Ms. New positively identified K.D. as the person who threw the brick at her car. In his report, Officer Guaseo wrote that he was given the name of a juvenile other than K.D. as the perpetrator. However, K.D. was the Lperson who gave Officer Guaseo the name of the other juvenile. The other juvenile told Officer Guaseo that he was part of the group that Ms. New’s vehicle passed on the night in question, but he was not the one who threw the brick. Officer Guaseo testified that his only involvement in this ease was accompanying Ms. New and her flaneé to KD.’s house and making the arrest of K.D. Officer Guaseo also stated that Ms. New told him that K.D., and not the other juvenile, was the one who threw the brick.

The defense called to the stand D.C., another juvenile who was with K.D. on the night in question. D.C. testified that he was with four other juveniles, including K.D., that night. He said that the juvenile that K.D. identified to police as the perpetrator was the one who threw the brick at Ms. New’s vehicle. He later admitted he could not say who threw the brick. He said he did not actually see the other juvenile throw the brick, but saw the brick in his hand prior to hearing the brick hit Ms. New’s vehicle. He said he never saw a brick in K.D.’s hand. But he admitted he was not looking at K.D. at the moment the brick that hit Ms. New’s vehicle was thrown. D.C. said that his father knew the family of Ms. New’s fiancé. He said the incident occurred around 10:00 p.m. and the area where the incident occurred was very dark and had no street lights on the side of the street where the juveniles were riding their bikes. He said the closest lighting was an apartment building across the street. D.C. testified that KD.’s mother brought him to court for this trial.

The next witness was R.D., KD.’s brother. He said he was with the group riding bikes on the night in question. He testified that he saw the juvenile named by K.D. as the perpetrator pick up a brick and later throw the brick at the car. He said he sometimes lies for his brother, but was not lying in his court testimony. He I fisaid the juvenile who threw the brick does not look like his brother. He said the other juvenile is thinner and taller than K.D., and has darker skin and an Afro hairstyle.

The last witness at trial was K.D. He testified that he was riding bikes with a group on the night in question. He said he saw the juvenile he named to police as the perpetrator pick up a brick and jump up on the handlebars of KD.’s bike. K.D. said that when a car approached the area where they were riding, the other juvenile jumped off of the bike, and slammed the brick on the passing car. He said he was less than five feet from the other juvenile when he threw the brick at the car. K.D. said he told Ms. New he was not the one who threw the brick. K.D. testified that he did not throw the brick at Ms. New’s vehicle on May 15, 2013.

In his sole assignment of error, K.D. argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that K.D. was either: 1) the juvenile who threw the brick that caused the damage to the vehicle, and did so with the intent to damage the vehicle, or 2) a principal to the damage to the vehicle committed by another.

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

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

Id. at 4-5, 49 So.3d at 463-464.

A reviewing court grants great deference to the Juvenile Court’s factual findings, credibility determinations, and assessment of witness testimony. State in Interest of S.J., 2013-1025, p. 3 (La.App. 4 Cir. 11/6/13), 129 So.3d 676, 678 (citing State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61). In State in the Interest of S.L., 11-883 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, the applicable law regarding the burden of proving identification was summarized as follows:

In addition to proving the statutory elements of the charged offense, the State is required to prove the identity of the perpetrator. State v. Searls, 04-790 (La.App. 5 Cir. 1/25/05), 895 So.2d 40, 43. The State is required to negate any reasonable probability of misidentification in order to carry its burden of proof when the key issue is identification. Id. Positive identification by one witness is sufficient to support a conviction. State v. Benoit, 07-35 (La.App. 5 Cir. 5/29/07), 960 So.2d 279, 282.

Id. at 10, 94 So.3d at 831.

La. R.S. 14:56 defines simple criminal damage to property as “the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.” 17Section B(2) of La. R.S. 14:56 states: “Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than two years, or both.” In this case, conflicting testimony was presented as to whether the juvenile who threw the brick at Ms. New’s vehicle was K.D. or another juvenile named by K.D. K.D. and his brother, R.D., testified that the juvenile named by K.D. was the one who threw the brick, and not K.D. D.C. testified for the defense, but admitted that he did not actually see who threw the brick. Ms. New testified that she initially gave the police the name of the other juvenile as the perpetrator, but clarified that she did so only because K.D. told her the other juvenile was the one who threw the brick. Ms. New stated that when she later met the other juvenile, she knew he was not the perpetrator because his appearance differed from that of the juvenile who threw the brick. She said the other juvenile was thin and had an Afro hairstyle. K.D.’s brother, R.D., testi-fíed that K.D. does not look like the other juvenile named by K.D. and R.D. as the perpetrator. According to R.D., the other juvenile is thinner, taller and darker than K.D., and has an Afro hairstyle, which K.D. does not. Ms. New identified K.D. in court as the person who threw the brick at her car. She also identified K.D. as the perpetrator to NOPD Officer Guaseo when she accompanied him to KD.’s house.

The Juvenile Court judge evaluated the credibility of the witnesses, and obviously accepted the identification testimony of Ms. New and rejected the testimony of the juveniles who testified that K.D. was not the perpetrator. Viewing the evidence in the light most favorable to the prosecution, we conclude that the Juvenile Court could have found that the essential elements of the charged offense were proven beyond a reasonable doubt. The evidence was sufficient to convince [sa rational trier of fact that K.D. was the person who threw the brick at Ms. New’s vehicle without Ms. New’s consent, that the brick was thrown with the intention of damaging the vehicle and that the cost to repair the damage to the vehicle was $1,200.00.

For the reasons stated above, we affirm the adjudication of delinquency and disposition against K.D.

AFFIRMED.

BELSOME, J., Concurs in the result.

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

      . This other juvenile is only referred to by a one-word name throughout the record, so we are unable to determine his initials, or whether the name used in the record is a given name or a nickname. In order to protect this juvenile's identity, we are not using the one-word name in this opinion.

      . The police report is not in the appeal record.

      . La. R.S. 14:55 involves the crime of aggravated criminal damage to property. K.D. was charged in this case with the lesser offense of simple criminal damage to property.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of L.V.
    No. 2013-CA-1584.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|gOn appeal, counsel for the juvenile, L.V., asserts that the trial court erred in imposing an illegally excessive disposition and in imposing a fee payable to the Judicial Expense Fund in excess of the statutory maximum. The State agrees. Accordingly, after review of the record in light of the applicable law, we vacate the juvenile’s sentence, amend the fee assessment, and remand for resentencing.

Relevant Facts and Procedural History

On September 5, 2013, L.V. was adjudicated delinquent for the offense of aggravated assault, a violation of La.Rev.Stat. 14:37. At the disposition hearing on October 17, 2013, the trial court sentenced the juvenile to six months in the custody of the Department of Safety and Corrections and, upon completion of his commitment, to two years of active probation. In addition, the trial court assessed a $55.00 fine to be paid into the Judicial Expense Fund. Excessive Sentence

In accordance with Article 900(A) of the Louisiana Children’s Code, “No judgment of disposition shall remain in force for a period exceeding the maximum term for the offense which forms the basis for the adjudication.... ” The maximum sentence for aggravated assault is six months of imprisonment. La.Rev.Stat. 14:37(C). As the State points out “the fact that the maximum sentence was ^imposed negates the ability of the trial court to then impose an additional sentence, in this case, two additional years of active probation, after the appellant has served his maximum sentence.

Therefore, we vacate the juvenile’s sentence and remand the matter to the trial court for imposition of sentence in accordance with La. Ch.Code art. 900(A) and La.Rev.Stat. 14:37(C).

Excessive Fee

L.V. argues that the $55.00 fee exceeds the maximum amount allowed under La. Rev.Stat. 13:1595.2 and that the practice of depositing the fees assessed by the court into the Judicial Expense Fund is “constitutionally odious due to the pecuniary interest that the court has in assessing to the Judicial Expense Fund.

Pursuant to La.Rev.Stat. 13:1595.2(A), in all delinquency cases in juvenile court, a sum of fifty dollars is taxed as a cost to each juvenile adjudicated delinquent and, pursuant to La.Rev.Stat. 13:1592.2(B), the sums collected are then placed into a separate account designated as the judicial expense fund for the Orleans Parish Juvenile Court. As the State concedes, the fee assessed by the trial court in this matter exceeds the statutory maximum.

Therefore, we amend the fee assessment to the amount of fifty dollars ($50.00) as provided for in La.Rev.Stat. 13:1595.2(A). Because the constitutionality of La.Rev. Stat. 13:1592.2(B) is not properly before us, we pretermit any discussion of this issue.

Conclusion

|4We affirm the adjudication for the offense of aggravated assault but vacate the juvenile’s sentence, amend the fee assessment, and remand the matter to the trial court for resentencing.

ADJUDICATION AFFIRMED; SENTENCE VACATED; FEE AMENDED; REMANDED.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana in the Interest of R.W.
    No. 2013-CA-1197.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District, Attorney Parish of Orleans, New Orleans, LA, for Appellee.
    Katherine M. Franks Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU.
   MADELEINE M. LANDRIEU, Judge.

_JjR.W., a juvenile, appeals the judgment of the juvenile court adjudicating him a delinquent. He alleges that the evidence was insufficient to establish the offense of domestic abuse. For the reasons that follow, we affirm the adjudication and disposition.

FACTS AND PROCEEDINGS BELOW

On February 22, 2013, the State filed a petition charging R.W., then seventeen years old, with simple battery, a violation of La. R.S. 14:35, and domestic abuse battery, a violation of La. R.S. 14:35.3. R.W. entered a plea of not guilty and proceeded to trial on May 22, 2013.

The only witness to testify at trial was R.W.’s mother, M.N., who was the alleged victim in the domestic abuse battery matter. Trial was recessed after M.N.’s testimony on May 22, 2013 so that the State could obtain and introduce into evidence the 911 tape recording of the call made by M.N. on the date of the incident and so that the State could call a police officer upon whom service had not | ?been successful. When the trial resumed on July 18, 2013, the police officer was not called to testify, and M.N. was, again, the only witness to take the stand. During M.N.’s testimony on that date, the State introduced the 911 tape recording into evidence over the objection of defense counsel after M.N. positively identified her voice.

At the conclusion of M.N.’s testimony, the juvenile court adjudicated R.W. delinquent as to both counts. R.W. and the State agreed that the evidence did not support a finding of simple battery. The juvenile court modified its judgment, finding R.W. delinquent only on the domestic abuse battery charge. After the delays were waived, the juvenile court imposed a disposition consisting of placement with Department of Public Safety and Corrections for thirty days. This appeal followed.

DISCUSSION

In this appeal, R.W. maintains that the juvenile court erred in finding that the State established the elements for adjudicating him delinquent of domestic abuse battery. His argument focuses largely on M.N.’s testimony at trial that she had initiated the altercation and that R.W. had “shoved her back” only after she “punched him and shoved him.” R.W. argues that his actions were justified pursuant to La. R.S. 14:18, based on M.N.’s repeated testi-

This Court recently reiterated an appellate court’s standard of review in State in the Interest of J.J., 13-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250:

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then. the standard of proof required in a criminal proceedings against an adult.” State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.
In evaluating the sufficiency of evidence to support a conviction an appél-late 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. State in the interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.

We recognize while “delinquency proceedings may in many ways implicate criminal proceedings, sometimes even -mimicking them, they are nonetheless civil in nature,” and as such, “a factual finding made by a trial court in a juvenile ^adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong.” State in the Interest of J.J., 13-0548, p. 3, 125 So.3d 1248, 1250 (Emphasis in original) (Citations omitted).

In this matter, R.W. was adjudicated delinquent for a violation of La. R.S. 14:35.3, which defines “domestic abuse battery” as “the intentional use of force or violence committed by one household member upon the person of another household member.” In his brief, R.W. does not argue that the State failed to prove he intentionally used force or violence on his mother, but that his actions were justified.

According to M.N.’s testimony, on January 7, 2013, she and R.W. were arguing, and she asked him to leave the house. After he refused to leave the house, a physical altercation began. M.N. attempted to push R.W. out of the house. On the 911 recording, M.N. tells the operator she had to bite R.W. in order to “get him off of [her].” Two younger siblings intervened to prevent the altercation from escalating.

Based on the testimony of M.N., the 911 tape, and a review of the record in its entirety, the juvenile court adjudicated R.W. delinquent of domestic abuse battery. We cannot say this adjudication is clearly wrong. M.N.’s statement on the 911 call, in itself, is sufficient to provide a rational basis for the trial court’s finding that R.W. intentionally used force or violence upon his mother. The fact that M.N. had to bite her son to get him off of her permits a rational inference that R.W. was fusing force or violence. Moreover, it was the province of the trial court to assess the credibility of M.N. when she testified at trial.

Viewing the evidence in the light most favorable to the prosecution, we cannot say that no rational trier of fact could have found R.W. guilty of domestic abuse battery beyond a reasonable doubt. Therefore, we decline to disturb the judgment of the juvenile court.

CONCLUSION

For the reasons stated above, we affirm the juvenile court’s adjudication and disposition.

AFFIRMED.

DYSART, J., Dissents.

DYSART, J., Dissents.

|,I disagree with the majority’s conclusion that the State met its burden in proving the elements of domestic abuse battery. Despite the State’s repeated efforts to elicit testimony from M.N. that R.W. used “force or violence” against her, the record before us does not support such a finding. No police officer was called to testify as to what M.N. may have said on the date of the incident and the police report was not admitted into evidence. While the State questioned M.N. about certain statements she allegedly made to the police on that date, M.N. denied making all of those statements.

The record is devoid of any evidence substantiating the charge that R.W. used force or violence against M.N. pursuant to La. R.S. 14:35.3A. For these reasons, I would reverse the adjudication and disposition.

      . The simple battery charge related to an incident which allegedly took place on December 9, 2011, while the domestic abuse battery charge concerned an alleged incident on January 7, 2012.

      . The only testimony elicited at trial concerned the January 7, 2012 incident. No evidence was adduced as to the December 9, 2011 incident.

      . La. R.S. 14:18 provides in pertinent part:
      The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances ...
      (7) When the offender’s conduct is in defense of persons or of property under any of mony that R.W. was defending himself against her. the circumstances described in Article 19 through 22.
      Article 19A, referenced therein, provides that [t]he use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense ...


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Norman DEAN.
    No. 13-KA-885.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Vincent A. Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendant/Appellant.
    Norman Dean, Angola, Louisiana, In Proper Person.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

| ..Defendant, Norman Dean, appeals his conviction for simple burglary of an inhabited dwelling and his sentence, as a third felony offender, to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For the reasons set forth herein, we affirm defendant’s conviction and sentence; however, we remand the matter for correction of an error patent noted herein.

STATEMENT OF THE CASE

On September 6, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. At his arraignment, defendant pled not guilty. Defendant then filed a motion to appoint a sanity commission to determine his competency to stand trial. Following a hearing on April 25, 2012, the trial judge determined that defendant was competent to stand trial.

| ..¡Thereafter, on February 21, 2013, defendant withdrew his not guilty plea and pled not guilty and not guilty by reason of insanity. The matter proceeded to a bench trial on May 15 and 22, 2013. After considering the evidence presented, the trial judge found defendant guilty as charged. On May 30, 2013, the trial court sentenced defendant to imprisonment at hard labor for eight years, with the first year to be served without benefit of parole, probation, or suspension of sentence.

The State thereafter filed a multiple offender bill of information, pursuant to the provisions of LSA-R.S. 15:529.1, alleging defendant to be a third felony offender. On June 20, 2013, after a hearing, the trial judge found defendant to be a third felony offender, vacated the original sentence, and resentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On May 21, 2011, at approximately 3:45 a.m., Regina Molony, her husband, and her son were upstairs in their Metairie home when she and her husband heard unusual noises downstairs and then a very loud crash. The noises seemed to be coming from their “mud room,” which was where the back door was located. Mrs. Molony then called 911.

Detective Joseph Waguespack of the Jefferson Parish Sheriffs Office responded to the call. When he arrived, he observed that the glass pane on the rear door was shattered and that there were pry marks on the door near the locking mechanism and the window pane. Detective Wagues-pack also observed a red substance on the shattered glass and what appeared to be droplets of blood that led from the shattered glass door, down the driveway, and up the street. Additionally, a screwdriver was found at the scene.

14A crime scene technician from the Jefferson Parish Sheriffs Office went to the scene and collected the red blood-like substance from the driveway of the residence. Subsequent testing of this substance revealed that the DNA profile from the sample of blood from the driveway matched the DNA profile of defendant.

After receiving the results of the DNA analysis, Detective Stanley Brown, the officer assigned to the case, spoke to defendant. Defendant, following a verbal advi-sal of his rights, told Detective Brown that he had a drug problem and that on the night of this incident, he was riding his bicycle through the neighborhood when he observed a purse through the glass. He explained that he tried to pry the door open but was unsuccessful. He thereafter broke the glass, reached in, grabbed a purse, and fled. According to Detective Brown, defendant admitted that he took cash out of the purse and disposed of it. He stated that he cut himself in his eye area and was bleeding, which was where the blood on the scene came from.

At trial, defendant testified in his own behalf. According to defendant, at the time of the offense, he was hallucinating, having delusions, and abusing alcohol and drugs. With regard to the details of the offense, defendant claimed that he did not remember where he was during the morning hours of May 21, 2011, nor did he remember having a screwdriver or entering the home. However, he remembered punching the window with his fist, after which he came to his senses. He claimed that he never entered the home, that he did not take anything from the home, and that he did not punch the glass, but rather punched at a hallucination. Although defendant recalled leaving the scene, he did not remember going to the scene. Defendant recalled Detective Stanley Brown coming and talking to him after he was arrested; however, he did not remember giving a statement and claimed that he did not answer the questions Detective Brown posed to him.

[.■¿Defendant further testified that he had suffered from mental illness since he was a child and that when he was five or six years old, he tried to set his father on fire. Although defendant received medications for his mental illness in Orleans Parish Prison, he explained that he was last released from prison on April 10, 2010, and from that date until May of 2011, he only had five days of medication for his mental illness. Defendant also testified that at the time of the offense, he went from living in his family home to living in abandoned buildings. He explained that he could not trust himself around his family and did not want to hurt them, so he was living alone and was homeless on the streets.

In addition to this testimony at trial relating to the actual offense, there was also testimony presented by Dr. Rafael Salcedo, an expert in the field of forensic psychology, and by Dr. Richard Richoux, an expert in the field of forensic psychiatry, regarding defendant’s sanity at the time of the offense. Both doctors examined defendant and additionally reviewed the details of the case, defendant’s admission, and defendant’s medical records prior to reaching an opinion about his sanity.

Dr. Salcedo, who testified for the State, stated that the medical records indicated defendant had a history of being diagnosed with major psychiatric disorders, including schizoaffective disorder, paranoid schizophrenia, psychosis NOS, and cyclothymia, the less severe form of bipolar disorder. Dr. Salcedo stated that defendant also had a history of being “medication noncompli-ant” when he was not in institutional settings.

Dr. Salcedo asserted that defendant was like many people who had a functional mental illness and antisocial personality, which meant that defendant tended to have legal problems and substance abuse problems. Dr. Salcedo noted that defendant had abused marijuana and heroin. He testified that defendant | (¡suffered from a functional mental illness which had the potential for impacting his ability to distinguish right from wrong; however, he explained that impairment of that ability was a very high bar. Dr. Salcedo stated that a person could be psychotic and still be able to distinguish right from wrong.

Dr. Salcedo testified that defendant’s interview with detectives three weeks after the offense was the closest in time to the offense that he had to review. He noted that during the interview, defendant appeared to have been lucid, rational, and able to discuss with detectives what took place during the offense. Dr. Salcedo asserted that he was also provided with medical records from LSU from 2010, which was approximately six months before the offense, documenting a suicide attempt wherein defendant attempted to overdose with heroin. He stated that defendant had periods of psychosis and lucidity and that defendant was not psychotic when he and Dr. Richoux examined him in January of 2013. He further testified that when he and Dr. Richoux examined defendant the two prior times for competency, he did not have psychotic symptoms. Dr. Salcedo asserted that people who were grossly psychotic and delusional had difficulty recalling past events; however, defendant apparently recalled the incident based on his statement to the police.

Dr. Salcedo testified that he had no evidence linking defendant’s mental illness to the offense. He explained that the offense showed goal-directedness and efforts to avoid apprehension. Dr. Salcedo further explained that any effort to avoid apprehension implied an understanding or appreciation of the wrongfulness of one’s conduct, whereas in the classic “not guilty by reason of insanity” scenario, a person felt what he did was right and justified. He asserted that the logic of a person who wants to avoid apprehension runs counter to the logic of a person who is incapable of distinguishing right from wrong.

17Pr. Richard Richoux, who testified for the defense, said that he had spoken to defendant four times, and that when he was a psychiatrist at the jail, he had seen defendant on multiple occasions to prescribe his medications during his period of incarceration. Dr. Richoux further testified that he and Dr. Salcedo had failed to find evidence that defendant was unable to distinguish right from wrong at the time of the offense. He based this opinion on medical records, conversations with defendant, and defendant’s version of events given to police.

Dr. Richoux stated that medical records showed defendant had a diagnosis of chemical dependency and schizoaffective disorder. Additionally, defendant told him that he was not taking psychiatric medication at the time of the offense but that he was using cocaine mixed with Kool-Aid and injecting it and also smoking crack cocaine. Defendant further told him that he experienced hallucinations around the time of the offense and said he was seeing demons. Defendant recalled leaving the scene of the offense on a bicycle and going to another area of New Orleans.

Dr. Richoux and Dr. Salcedo' also reviewed the summary of the statement defendant gave to deputies shortly after the offense. Dr. Richoux testified that defendant’s behavior appeared to be goal-directed in that defendant saw what he wanted and attempted to get it by one means, and when that failed, he tried another means. Dr. Richoux further testified that this did not indicate psychotic disorganized behavior. He noted that defendant seemed to make efforts to avoid apprehension, which ordinarily implied knowledge of wrongfulness of one’s conduct. Dr. Richoux asserted that it took more than the presence of a mental illness to conclude that a person at a given point and time could not distinguish right from wrong. He further asserted that there was no compelling evidence to say defendant was unable to distinguish right from wrong, and that there was compelling evidence to suggest that defendant could do so.

\ SUFFICIENCY OF THE EVIDENCE

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him. He does not dispute that the State proved the elements of the offense, but rather contends that he met his burden of proving by a preponderance of the evidence that he did not know right from wrong at the time of the offense, and therefore, he should be exempt from criminal responsibility. Specifically, defendant asserts that the evidence showed that he was experiencing hallucinations and had little contact with reality at the time of the offense; that he suffered from a mental illness since he was a child and was eventually diagnosed with schizoaffective and bipolar disorders; that he had a substance abuse problem that worsened the symptoms of his mental illness; and that he had not taken prescribed medication for his mental illness since 2010, which also worsened his condition.

In reviewing a claim for insufficiency of evidence in an action where the affirmative defense of insanity is raised, the appellate court, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact-finder, viewing the evidence most favorably to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Williams, 07-1407 (La.10/20/09), 22 So.3d 867, 876, cert. denied, 560 U.S. 905, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010); State v. Williams, 10-1010 (La.App. 5 Cir. 9/27/11), 76 So.3d 90, 96.

If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. LSA-R.S. 14:14. However, in Louisiana there is a legal presumption that the defendant is sane and responsible for his actions. LSA-R.S. 15:432; State v. Williams, 22 So.3d at 875. Therefore, to overcome this presumption of sanity, the defendant has the burden of proving by a preponderance of the evidence that he suffered a mental disease or a mental defect which prevented him from distinguishing between right and wrong with reference to the conduct in question. LSA-C.Cr.P. art. 652; State v. Armstrong, 94-2950 (La.4/8/96), 671 So.2d 307, 309.

Sanity is a factual matter for the trier of fact, to be determined from all of the evidence, both lay and expert, along with circumstances surrounding the events and testimony relating to the defendant’s behavior before, during, and after the crime. A determination of the weight of the evidence is a question of fact that rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. State v. Williams, 22 So.3d at 875-876.

At trial, the judge was presented with expert testimony from a forensic psychologist and a forensic psychiatrist, both of whom examined defendant and reviewed the details of the case, defendant’s statement to the police, and defendant’s medical records. Dr. Salcedo testified for the State that defendant suffered from a mental illness which had the potential for impacting his ability to distinguish right from wrong; however, Dr. Salcedo further testified that he had no evidence linking defendant’s mental illness to the offense. He explained that the offense showed goal-directedness and efforts to avoid apprehension, which implied that defendant understood or appreciated the wrongfulness of his conduct.

|inThe defense presented the testimony of Dr. Riehoux, who reached the same conclusion as Dr. Salcedo, namely, that he and Dr. Salcedo failed to find evidence that defendant was unable to distinguish right from wrong at the time of the offense. Dr. Riehoux further testified that there was compelling evidence to suggest that defendant could distinguish right from wrong at the time of the offense. Dr. Riehoux explained that defendant’s behavior appeared to be goal-directed, which did not indicate psychotic disorganized behavior. Also, Dr. Riehoux thought, as did Dr. Salcedo, that defendant seemed to make efforts to avoid apprehension, which ordinarily implied knowledge of the wrongfulness of one’s conduct.

In contrast to these-two doctors, defendant testified that he was unable to distinguish right from wrong at the time of the offense because he was hallucinating, having delusions, and abusing drugs and alcohol at that time. Defendant claimed that he punched the window with his fist, after which he came to his senses. However, he explained that he did not actually punch the glass but a hallucination. Defendant further claimed that he did not remember entering the home, and he insisted he did not take anything from the home. He also said he did not remember going to the scene and that he blacked out after he left it.

After hearing the testimony of the witnesses, the trial judge obviously rejected defendant’s testimony and believed Dr. Salcedo and Dr. Riehoux that defendant was capable of distinguishing between right and wrong at the time of the offense, despite the presence of a mental illness. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

| n Considering the totality of the evidence, and viewing the evidence most favorably to the prosecution, we find that a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant failed to prove, by a preponderance of the evidence, his insanity at the time of the offense. Accordingly, the arguments raised in this assigned error lack merit.

EXCESSIVENESS OF SENTENCE

In his second assigned error, defendant challenges his sentence as excessive. As a result of his conviction for simple burglary of an inhabited dwelling, defendant was sentenced to imprisonment at hard labor for eight years, with the first year to be served without benefit of parole, probation, or suspension of sentence. However, after a hearing, the trial court found defendant to be a third felony offender, vacated the original sentence, and resentenced him to the mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence. In imposing this mandatory sentence pursuant to LSA-R.S. 15:529.1(A)(3)(b), the trial judge noted that the predicate offenses of armed robbery and purse snatching were crimes of violence as defined by LSA-R.S. 14:2, and that the underlying offense, simple burglary of an inhabited dwelling, was punishable by twelve years or more.

Defendant now contends that this sentence is excessive considering that he has been plagued by mental illness all of his life and that he had little chance to control his actions because of his mental condition. In challenging his sentence, defendant further asserts that the trial court gave scant reasons for its sentence and failed to tailor the sentence to him in light of the circumstances of the case. We find no merit to defendant’s argument.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. |12Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

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. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

A mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court specifically held that when a trial court determines the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27-28, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179.

|islt is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. The burden is on the defendant to rebut the presumption of constitutionality by showing:

[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, supra at 676; State v. Taylor, 956 So.2d at 28.

Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur' in rare situations. State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 132. The trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. State v. Ventress, 01-1165 (LaApp. 5 Cir. 4/30/02), 817 So.2d 377, 384.

In a case similar to the instant one, State v. Breaux, 00-236 (La.App. 5 Cir. 8/29/00), 767 So.2d 904, writ denied, 00-2874 (La.6/29/01), 794 So.2d 808, the defendant was convicted of simple burglary of an inhabited dwelling and later sentenced as a third felony offender to life imprisonment. On appeal, the defendant argued that his sentence was excessive considering that his prior armed robbery conviction occurred more than 25 years earlier and that he had mental problems that led him to drugs and a life of crime. However, this Court found that the sentence was not excessive, noting that although the defendant’s past history had some tragic events, it also depicted a life of continuous crime. In sentencing the defendant, this Court also noted that the predicate offense was violent and that the mandatory sentencing provision was presumed to be constitutional.

114Likewise, in the instant case, we find that the record supports the life sentence imposed by the trial court. Defendant is a habitual offender with an extensive criminal history, which includes previous convictions for armed robbery, attempted armed robbery, purse snatching, burglary of an inhabited dwelling, and simple burglary. Additionally, defendant does not show the special circumstances necessary to rebut the presumption of constitutionality of his life sentence. Accordingly, we find that the mandatory sentence imposed on defendant was not excessive.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant has filed a pro se supplemental brief alleging that he received ineffective assistance of counsel pre-trial, at trial, and post-trial. Specifically, he sets forth the following allegations of ineffectiveness:

1) Trial counsel was ineffective for failing' to demand independent experts to evaluate his client’s mental capacity to proceed and at the time of the offense.
2) Counsel was ineffective for failing to inform his client of his right to remain silent during the sanity evaluation, lest any portion of that interview could be deemed evidence against him and used as such.
3) Counsel was ineffective because he allowed waiver of the substantive right to trial by jury to occur while his client’s capacity to proceed remained in question.
4) Counsel was ineffective because he allowed multiple offender proceedings to proceed without any true conceivable challenge to the multiple offender status despite life long insanity issues of his client.

Generally, a claim of ineffective assistance of counsel is best addressed through an application for post-conviction relief filed in the district court where a full evidentiary hearing can be conducted. State v. Lewis, 09-783 (LaApp. 5 Cir. 5/28/10), 43 So.3d 973, 988. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an | ^assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346 (LaApp. 5 Cir. 10/26/04), 887 So.2d 589, 595.

While there is sufficient evidence in the record to consider some of the issues raised in defendant’s pro se supplemental brief, the appellate record is insufficient to address all of his claims of ineffective assistance of counsel. Therefore, we find it best that defendant’s claims be considered in their entirety by the trial court on post-conviction relief at an evidentiary hearing.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record in this case reveals an error in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order reflects that the date of offense was July 6, 2011; however, the date of offense was actually May 21, 2011. To ensure accuracy in the record, we remand this case for correction of the Uniform Commitment Order to reflect the correct date of the offense. We further direct the trial court to make the appropriate entry on the Uniform Commitment Order reflecting this change and direct the Clerk of Court to transmit the original of the Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and the Department of Correction’s Legal Department. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam); State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

For the reasons set forth herein, we affirm defendant’s conviction and sentence. The matter is remanded for correction of an error patent as noted herein.

J^CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.


author: TERRI F. LOVE, Judge.

text:
    Baraki TSEGAYE v. CITY OF NEW ORLEANS, et al.
    No. 2013-CA-1412.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2014.

      Thomas L. Smith, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Baraki Tsegaye.
    Virgil A. Lacy III, Michelle A. Beaty, Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellee, Utility Construction Services, L.L.C.
    Barbara Malik Weller, Waller & Associates, Metairie, LA, for Defendant/Appel-lee, All Star Electric, Inc.
    Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART.
   TERRI F. LOVE, Judge.

hThe plaintiff allegedly sustained injuries as a result of a falling streetlight. The plaintiff alleged that the City of New Orleans, its contractors, and subcontractors were liable for his injuries. The trial court granted motions for summary judgment, dismissed the contractor responsible for performing work on the streetlights after receiving work orders, and also dismissed the contractor’s subcontractor. The plaintiff appealed asserting that genuine issues of material fact exist as to whether both parties had knowledge of the streetlight’s alleged deleterious condition and whether both parties were obligated to inspect the streetlights and prevent them from falling. The plaintiff also contends that the doctrine of res ipsa loquitor prevented summary judgment.

For the following reasons, we find that no genuine issues of material fact exist as to the liability of UCS and All Star because they did not have garde over the streetlight and also did not have knowledge of the streetlight’s alleged dangerous condition. Therefore, the trial court did not err by granting UCS and All Star’s Motions for Summary Judgment. Res ipsa loquitor is not applicable to the facts and circumstances of the present matter because All Star and UCS lacked garde of the streetlight and evidence exists that another party(s) may be liable for l2the incident. Mr. Tsegaye failéd to brief the issue of spoliation. Thus, we deem the issue abandoned. The rulings of the trial court are affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 21, 2011, the City of New Orleans (“City”) and Royal Engineers and Consultants, LLC (“Royal”) entered into a contract titled “Street Light Management Services” for “Street Light Management Service for street light maintenance and rehabilitation services.” The same day, the City also entered into a contract with All Star Electric, Inc. (“All Star”) titled “Street Light Maintenance and Rehabilitation Services” for “Street Light Maintenance and Rehabilitation Services.” Subsequently, All Star entered into a contract with Utility Construction Services, L.L.C. (“UCS”) with UCS as a subcontractor “to provide Work on an as-needed basis for Contractor’s Client.”

On April 15, 2011, Baraki Tsegaye, a taxicab driver, was standing in front of the W Hotel on Poydras and South Peters Streets when a streetlight collapsed and allegedly struck and injured his arm. As a result, Mr. Tsegaye filed a Petition for Damages asserting that the City, All Star, and Royal were liable for his injuries. Mr. Tsegaye’s First Supplemental and Amended Petition named UCS as an additional defendant.

The City, All Star, and UCS subsequently filed separate Motions for Summary Judgment. Following a hearing, the trial court granted both UCS’ and All Star’s Motions for Summary Judgment. The trial court dismissed Mr. Tsegaye’s claims against UCS and All Star with prejudice. Mr. Tsegaye’s appeal followed.

| aMr. Tsegaye contends that the trial court erred in granting the motions for summary judgment because genuine of issues of material fact exist as to the liability of UCS and All Star and that the doctrine of res ipsa loquitor prevents summary judgment.

STANDARD OF REVIEW

Appellate courts review the trial court’s granting of motions for summary judgment with the de novo standard of review. Brunet v. Fullmer, 00-0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. We utilize “the same criteria applied by trial courts to determine whether summary judgment is appropriate.” Transworld Drilling Co. v. Texas Gen. Res., Inc., 604 So.2d 586, 589 (La.App. 4th Cir.1992). “All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion; all allegations of the party opposing the motion must be taken as true and all doubt must be resolved in his favor.” Id.

The trial court shall grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits ... show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). “The burden of proof remains with the movant.” La. C.C.P. art. 966(C)(2).

MOTION FOR SUMMARY JUDGMENT

Mr. Tsegaye asserts that the trial court erroneously granted UCS’ and All Star’s Motions for Summary Judgment because genuine issues of material fact exist as to their alleged liability. Specifically, Mr. Tsegaye contends that All Star and UCS had notice that the streetlight could collapse because another streetlight allegedly collapsed in the same vicinity approximately three months prior. Mr. |/Tsegaye also avers that All Star and UCS formed a partnership with control of the streetlights and a duty to inspect the streetlights.

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” La. C.C. art. 2317. However, “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect,” 1) “upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage,” 2) “that the damage could have been prevented by the exercise of reasonable care,” and 3) “that he failed to exercise such reasonable care.” La. C.C. art. 2317.1

“[CJourts have recognized the reality that custody or garde is a broader concept than ownership and custody or garde may be shared by multiple parties.” Graubarth v. French Mkt. Corp., 07-0416, p. 4 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664. “To determine whether custody or garde is shared, the courts look to the parties’ actions and relationships to the thing causing injury.” Id. “The test for determining custody or garde is two-fold: 1) whether the person bears such a relationship as to have the right of direction or control over the thing, and 2) what, if any, kind of benefit the person derives from the thing.” Graubarth, 07-0416, pp. 4-5, 970 So.2d at 664.

ALL STAR

Mr. Tsegaye contends that All Star’s contract with the City obligates All Star to “ ‘carefully examine the City street lights (i.e., the construction site) to obtain first-hand knowledge of the scope and conditions of the work and not merely to rely only on the receipt of work orders from defendant Royal Engineers.” Mr. Tse-gaye also avers that the “Bidder Information” required All | BStar “to take affirmative actions to examine the construction site (i.e., the street lights).”

However, the City entered into a contract with Royal “to perform street light management service” and the contract between the City and All Star stated that All Star would “provide Street Light Maintenance and Rehabilitation Services.” Thus, from the plain language of the contracts, Royal contracted with the City to manage All Star’s services. The documents provided in support of All Star’s Motion for Summary Judgment support this conclusion.

Arthur Westbrook, the Project Manager with All Star, testified in his deposition that Royal administered All Star’s contract with the City and issued “work directives” or “orders” to All Star. Mr. Westbrook also testified that All Star never received a work order for the fallen streetlight prior to Mr. Tsegaye’s injury.

Michael Pugh, one of the founders of Royal, testified in his deposition that Royal entered into a management contract with the City “to monitor and oversee the maintenance contractor [All Star] who was physically making repairs to the system.” Royal managed “the work order system ... to tell the contractor, All Star, ‘There’s a light out at First and Second Street. Here’s the light, the description of it. Go out and fix it.’ ”

The trial court granted All Star’s Motion for Summary Judgment stating, “I don’t think it’s within the scope of the contract.” We agree. The record does not indicate that All Star was the owner or custodian of the fallen streetlight. Further, no genuine issues of material fact exist regarding All Star’s lack of garde over the fallen streetlight. The streetlight was owned by the City and All Star worked on streetlights after receiving orders from Royal. Further, Mr. Tsegaye presented no | ^evidence in his opposition to the Motions for Summary Judgment to establish that genuine issues of material fact exist as to All Star’s alleged control over the streetlight, duty to inspect the streetlight, or notice that the streetlight might collapse. Accordingly, no genuine issues of material fact exist as to All Star’s liability. The trial court’s granting of All Star’s Motion for Summary Judgment is affirmed.

UCS

Mr. Tsegaye asserts that All Star entered into a “partnership” with UCS and that the “partnership” imputes All Star’s alleged liability to UCS.

All Star contracted with UCS, as a subcontractor, “to provide Work on an as-needed basis.” UCS performed work when All Star issued “a Work Order or Purchase Order.” The subcontractor agreement provides that: “Subcontractor, its employees, agents, and subcontractors are and shall act as, independent contractors, and are not and shall not be deemed agents, assigns, employees, joint ventures, partners, or principals of Contractor [All Star] or Contractor’s parent or affiliated companies.”

Elmo Soignet III started UCS and testified in his deposition that UCS contracted with All Star “to provide labor and some equipment to help them perform the New Orleans Street Lighting Maintenance Contract.” Mr. Soignet stated that UCS performed “a portion of the work” for All Star. He further testified that UCS did not receive instructions to inspect light poles for the City. UCS did not receive a work order regarding the streetlight in question prior to it falling.

The trial court found that UCS was a subcontractor, and as such was not liable to Mr. Tsegaye, and granted UCS’ Motion for Summary Judgment. We |7agree. It is uncontradicted that UCS served as a subcontractor to All Star. As such, UCS had no custody or garde over the fallen streetlight. Additionally, the record lacks evidence to show that UCS had knowledge that the streetlight could collapse. Further, Mr. Tsegaye presented no evidence in his opposition to the Motions for Summary Judgment to establish that genuine issues of material fact exist as to an alleged partnership between All Star and UCS, UCS’ lack of control over the streetlight, duty to inspect the streetlight, or knowledge that the streetlight might collapse. Therefore, we find that no genuine issues of material fact exist as to the liability of UCS and affirm the judgment of the trial court.

RES IPSA LOQUITOR

Mr. Tsegaye contends that the trial court erroneously granted All Star’s and UCS’ Motions for Summary Judgment because the doctrine of res ipsa loquitor applies.

“The principle of res ipsa loqui-tur is a rule of circumstantial evidence that infers negligence on the part of defendants because the facts of the case indicate that the negligence of the defendant is the probable cause of the accident, in the absence of other equally probable explanations offered by credible witnesses.” Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312, 319 (La.1989). “The doctrine allows an inference of negligence to arise from the common experience of the factfin-der that such accidents normally do not occur in the absence of negligence.” Id. The Louisiana Supreme Court held that res ipsa loquitor:

applies in cases involving circumstantial evidence, rather than direct evidence, provided the plaintiff establishes the following foundation of facts: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other possible causes of the injury, such as the plaintiffs own responsibility or the responsibility of others; and (3) the I ^alleged negligence of the defendant must fall within the scope of his duty to the plaintiff, which will often be the case if the defendant had exclusive control of the thing or situation that caused the injury to the plaintiff.

Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 12 (La.9/5/07), 966 So.2d 36, 45. See also Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992).

Both All Star and UCS assert that Mr. Tsegaye cannot argue res ispa loquitor on appeal because it was not before the trial court and is not part of the appellate record. While there is no evidence in the record that the trial court considered the application of the doctrine of res ipsa lo-quitor, Mr. Tsegaye pled the doctrine’s applicability in his Petition for Damages and his memorandum in opposition to the Motions for Summary Judgment states: “[i]n plaintiffs petition the doctrine of res ipsa loquitor was pled to all named defendants herein. Certainly an accident of his type would not have occurred but for the negligence of one or more of the named defendants herein.”

However, the doctrine of res ipsa loquitor does not apply to the facts and circumstances of the present matter. Mr. Tse-gaye presented no evidence to establish that a genuine issue of material fact exists as to whether the accident occurred due to “other possible causes.” Linnear, 06-3030, p. 12, 966 So.2d at 45. Also, as examined in the previous section, All Star’s and UCS’ lack of garde of the streetlight and lack of duty to Mr. Tsegaye further negates the applicability of res ipsa loquitor. Therefore, this assertion lacks merit.

SPOLIATION

All Star and UCA aver that Mr. Tsegaye abandoned the issue of spoliation because he failed to include the issue in his original appellate brief. Mr. Tsegaye [flcontends that he fully briefed all assignments of error, including spoliation. However, Mr. Tsegaye’s original appellate brief does not include a discussion of the concept, or the word “spoliation.” “The court may consider as abandoned any assignment of error or issue for review which has not been briefed.” Rule 2-12.4(B)(4). Accordingly, as spoliation was neither an assignment of error or briefed in Mr. Tse-gaye’s appellate brief, we deem the issue abandoned.

DECREE

For the above-mentioned reasons, we find that no genuine issues of material fact exist as to the lack of liability of UCS and All Star. Therefore, the trial court did not err by granting UCS and All Star’s Motions for Summary Judgment. Res ipsa loquitor is not applicable to the facts and circumstances of the present matter. Mr. Tsegaye failed to brief the issue of spoliation. Thus, we deem the issue abandoned. The rulings of the trial court are affirmed.

AFFIRMED.

      . The City's Motion for Summary Judgment was denied by the trial court at the hearing, but that ruling is not contained in the written judgment and is not at issue in the present appeal.