text:
    STATE of Louisiana v. Tiffany R. BYRD.
    No. 2012-KA-0556.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Joseph Yurgil, Law Clerk, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

| ,On appeal, in her sole assignment of error, the defendant, Tiffany R. Byrd, argues that the evidence underlying her conviction for attempted second degree murder is insufficient. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Procedural History

The defendant was charged by bill of information on December 6, 2010, with the attempted second degree murder of Carla Nelson, a violation of La.Rev.Stat. 14:(27)30.1. She pleaded not guilty. On April 11, 2011, the State filed a notice of intent to use in its opening statement the defendant’s inculpatory statement or confession to law enforcement officers. The trial court ruled that although the confession was inadmissible under La.Code Crim. Proc. art. 768, it was admissible as res gestae. The trial began on April 11, 2011, and the jury found the defendant guilty as charged the following day, April 12, 2012. On November 18, 2011, after denying the defendant’s motions for a new trial and for post-verdict judgment of acquittal, the trial court sentenced the defendant to seventeen years at hard labor, to run concurrently with any other sentence, with credit for time served.

_|aApplicable Law

La.Rev.Stat. 14:30.1 (A)(1) provides in pertinent part that second degree murder is the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm.” In turn, La. Rev.Stat. 14:27 provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended....

Accordingly, to obtain a conviction for attempted second degree murder, the State must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. State v. Bishop, 2001-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437; see also State v. Huizar, 414 So.2d 741 (La.1982) (under La.Rev.Stat. 14:30.1, attempted second degree murder requires specific intent to kill). Specific intent “exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act,” La.Rev.Stat. 14:10(1), and may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Butler, 322 So.2d 189 (La.1975). Moreover, specific intent can be formed in an instant. State v. Sartain, 2008-0266, p. 27 (La.App. 4 Cir. 12/30/08), 2 So.3d 1132,1148; see also State v. Noble, 425 So.2d 734 (La.1983) (it can be inferred from fact that a defendant shot the victim in the head |3from close range that he actively desired that death would follow); State v. Johnson, 2008-1488, p. 10 (La. App. 4 Cir. 2/10/10), 33 So.3d 328, 334 (deliberately pointing a gun at the victim as it was fired is evidence of specific intent to kill).

With regard to self-defense, La. Rev.Stat. 14:19(A) provides in pertinent part 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 ... provided that the force or violence used must be reasonable and apparently necessary to prevent such offense....” See also La.Rev.Stat. 14:20(A)(1) (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”). In homicide cases, when the defendant asserts that he acted in self-defense, the State has the burden of proving 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. The State’s burden of proof is unclear in a non-homicide case, however, and may only require proof by a preponderance of the evidence. State v. Cooks, 2011-0342, p. 11 (La.App. 4 Cir. 12/14/11), 81 So.3d 932, 939: see also State v. Boudreaux, 2008-1504, p. 32 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1161-1162 (concluding burden had been met under either standard).

Standard of Review

The standard of review to determine the sufficiency of the evidence underlying a conviction is 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). Most notably, the fact finder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996. Specifically, “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), and the testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306.

Relevant Facts

The following relevant evidence was adduced at trial. The State presented five witnesses: (1) Dr. Peter Meade, the trauma surgeon who treated the victim in the emergency room immediately after the shooting; (2) Mary Knight, the 911 operator who received the calls pertaining to the shooting; (3) Officer Raynell Johnson of the New Orleans Police Department (NOPD); (4) Ronikia Josey, the defendant’s domestic partner of four years; and (5) Carla Nelson, the victim. In response, the defense (1) recalled Ms. Josey; (2) presented the testimony of Cindy Lassai, the next door neighbor; and (3), the defendant testified on her own behalf.

Dr. Peter Meade, the general trauma surgeon at University Hospital and assistant clinical professor of surgery at LSU and Tulane Medical Schools on duty when the victim, Ms. Nelson, arrived at the emergency room November 6, 2010, testified that she had multiple gunshot wounds necessitating a three-hour exploratory surgery, as well as removal of portions of the victim’s intestinal tract and stopping the bleeding in her liver. Specifically, Ms. Nelson had thirteen potentially fatal wounds: one on the left chest; one in the abdomen or stomach area; two wounds in the left arm; two in the left leg; two in the right knee area; one pin the lower right leg; one in the left upper arm; one in the large intestine and another in the intestines; one in the liver. In addition, Ms. Nelson also had a laceration on the bridge of her nose. The medical records were admitted into evidence.

Officer Johnson testified that November 6, 2010, his unit was dispatched to a reported aggravated battery by shooting. When he arrived in the vicinity of the reported shooting, he first saw a Nissan Titan truck in the driveway of 1874 Industry Street blocked by a black vehicle parked on an angle and the victim, bleeding from several parts of her body, on the porch next door at 1872 Industry Street. Officer Johnson immediately went over to the victim who indicated that the defendant, standing on her own porch at 1874 Industry, was the shooter. Accordingly, Officer Johnson walked over and handcuffed the defendant. The EMS arrived approximately ten minutes later to transport the victim to the hospital.

Officer Johnson observed several bullet holes in the driver’s side of the truck and the back window and driver’s side window had been shattered. He also looked inside the defendant’s house (1874 Industry) and observed “the handgun with the slide rack to the back, on a TV stand which is right there within the doorway.” The officer explained that when the “slide is back” on a semi-automatic handgun, it indicates that the gun has just been fired or is empty. He identified the handgun which was submitted into evidence. Officer Johnson also saw bullet casings at the scene which were subsequently collected when the crime lab processed the scene. Officer Johnson identified the gun as a Taurus .40 caliber handgun, stating that the casings were also .40 caliber casings.

On cross-examination, Officer Johnson conceded that there were mistakes in his report; specifically, he confused the names of the victim and the defendant, | firesulting in a report that indicated Ms. Josey said the victim, Ms. Nelson, rather than the defendant had a gun.

Ms. Josey testified that after a “big disagreement” with the defendant on November 1, 2010, she rented a car without the defendant’s knowledge and drove to Dallas to visit Ms. Nelson. When the rental car developed mechanical problems, she called her father in New Orleans for help and he, in turn, gave the defendant money to pick her up in Dallas. Ms. Nelson was with her when the defendant picked her up at a gas station in Piano, Texas. Subsequently, on November 5, 2010, Ms. Nelson flew in from Texas and Ms. Josey met her at the airport. They spent the night at a hotel and the next morning, under the misconception the defendant was not home, she returned home to change clothes before going to lunch. She parked the truck in the driveway and left Ms. Nelson in the vehicle while she went inside. She heard shots, ran out the front door, and saw Ms. Nelson bleeding. Ms. Josey was with Ms. Nelson on the neighbor’s porch (1872 Industry) when the police arrived but once the police officer handcuffed the defendant, she went to calm the defendant’s youngest son who was crying. As Ms. Josey entered the house she shared with Ms. Nelson, she saw the defendant’s gun on the book stand. According to Ms. Josey, the defendant always carried a gun because she had been raped and the house had been burglarized.

Ms. Nelson testified that in October 2010 she reconnected with Ms. Josey (who she had known when she lived in New Orleans) online. Ms. Josey indicated that she was having problems because her mother was very sick and when she asked if she could visit Dallas, Ms. Nelson agreed. Accordingly, Ms. Josey rented a car and drove to Dallas. However, the rental car was towed and Ms. Josey’s mother’s condition worsened, so the defendant drove to Dallas to take her back to |7New Orleans. Ms. Nelson flew into New Orleans on November 5, 2012, and stayed with Ms. Josey that night in a hotel. The next morning, Ms. Nelson accompanied Ms. Josey to the home she shared with Ms. Nelson and waited in the truck, with the engine running, while Ms. Josey went inside to change.clothes. As she was talking to her daughter on the cell phone when “all of a sudden the passenger door opened” and before Ms. Nelson could turn, she was shot. According to Ms. Nelson, she had been sitting in the parked car for less than a minute when she was shot. Ms. Nelson identified the defendant as the shooter, who yelled: “ ‘B,’ get out the ‘f out the truck.” As she was wearing a seatbelt, Ms. Nelson could not immediately comply so the defendant kept shooting, telling her to “get the ‘f out the truck.” Ms. Nelson testified: “I said: give me a chance. If you don’t stop shooting me, you’re going to kill me. She said: “ ‘b’ that’s what I’m trying to do.” Ms. Nelson stated that during the first few shots, she “felt a burning sensation in my stomach.” She said that the second shot hit her knee, then her right ear; she said that she knew the appellant was not going to stop; she put her left arm up to “block my head.” Ms. Nelson showed the jury visible scars on her arm and under her armpit. She said that she used her right hand to try to unlock the seat belt, and she used her left arm to block the shots. She said: “[A]ll I can remember is I heard the clicking of the gun.” As she turned to try and get out of the vehicle, the defendant popped her in the face with the handle of the gun. Ms. Nelson said: “After she popped me, I grabbed for her. When I grabbed for her, she jecked [sic] back. My two fingernails popped off. And that’s how I was able to release myself from the seat belt.”

Ms. Nelson declared that she did not open the passenger’s door or threaten the defendant before the shooting and that she did not have a weapon with her. RThe defendant went inside her house and Ms. Nelson walked to the neighbor’s house to ask if she could stand on her porch and if she would call 911 for her. The lady said that she had already called. Ms. Nelson explained that the blood was running down her legs onto her wedge shoes and she was slipping, losing her balance. Ms. Josey ran out and “said; what the ‘f did you do. And she said; are you shot. I said, yes. She said how many times. I said; I don’t know.” The defendant told Ms. Josey “I did it for us.” Ms. Nelson said that the defendant was standing in the yard, but she had taken the gun inside. Ms. Nelson stated that the defendant said: “ ‘b’; that’s what you get for messing with a married man.” Ms. Nelson testified that she was shot nine times in one arm and has no feeling in that hand; she was shot twice in her left breast; four times in one leg; once in the ear; and she pointed to three other places on her body.

On cross-examination Ms. Nelson denied saying anything to the defendant except asking that she stop shooting her.

On redirect examination, Ms. Nelson stated that she saw the defendant once after the shooting and the defendant apologized. When Ms. Nelson asked her why she had shot her, the defendant replied that she did not want Ms. Josey to move on and that she was jealous.

Ms. Lassai testified that on November 6, 2010, she heard gunshots and called 911. Before the shots, however, she heard arguing and went to look. She saw the defendant and an unidentified person, who was sitting in the truck, arguing. The defendant was walking toward the truck door. Ms. Lassai testified: “The person in the— who was sitting in the truck told Tiffany [the defendant]; I got something for you. And she turned. And when she turned back is when Tiffany shot her.” The shots were fired within seconds.

|nMs. Lassai conceded on cross-examination that, although it was more than one, she did not know how many gunshots were fired. When she was asked if it could have been less than three shots, she replied: ‘Tes.” Ms. Lassai testified she did not see the shooting because she was walking over to the coffee table to retrieve her phone. She had already called 911 when the victim asked her to do so. The State played the 911 tape and she identified her voice.

Ms. Josey, when called by the defense, stated that she stayed the night before trial at the defendant’s house, had never moved out of the defendant’s house, and still had a relationship with the defendant but that she flew back and forth to Dallas. On cross-examination, Ms. Josey testified that she did not hear what the defendant said to Ms. Nelson because she was in her closet changing her shirt.

The defendant testified that she had been in a relationship with Ms. Josey for four years. On the day of the incident, she parked in the driveway behind her Titan truck parked and walked toward the steps of her house. Because the truck had tinted windows, she could not see inside. The passenger door opened and Ms. Nelson stood up there and said: “Me and ‘Chew’ [Ms. Josey] just friends. But, bitch, it is what it is.” The defendant said that she then walked back toward the truck. The defendant testified:

I said; bitch, get out [sic] my truck. At that moment, she didn’t move. She was like — she still was saying something. I can’t remember what she was saying. And I’m like; get out my mother fucking truck. At that moment she stood up there and tried to swing on me.
When she swung, her hand got caught. Instead of her hitting me, her hands got caught right here on my shirt. She tore my shirt, broke her nails into my shirt. And at that point she sit [sic] up there. Her body was just like this (indicating). She turned in. But [sic] before she turned in, she said; bitch, I got something for you. Turned |inin. When she came back out this way, that’s when I started shooting. I carry my gun with me all the time.

The defendant conceded that the gun used in the shooting is registered in her name, explaining that she carries a gun because she was raped at sixteen and, because her house had been burglarized, she carried the gun back and forth to the car. The defendant stated that she found out about Ms. Nelson when she went to Dallas to pick up Ms. Josey. According to the defendant, she and Ms. Josey argued on November 1, 2010, resulting in her taking the keys to the Titan and Ms. Josey’s cell phone and telling her to leave if she was not happy. Subsequently, however, she drove to Texas to pick up Ms. Josey and the couple reconciled on the way home. On November 4, 2010, however, Ms. Nelson texted Ms. Josey numerous times and Ms. Josey called the defendant derogatory names. On November 5, 2010, Ms. Josey left the house and did not return that night. The defendant went out with her sister that night until five o’clock in the morning of November 6, 2010. When she returned home, she saw that Ms. Josey was not there. Ms. Josey called her at about 8:30 a.m. and they talked. The defendant testified that when Ms. Josey came home to change her shirt, she told her she better get her friend who had been shot in the truck and then went back outside and stood on her porch until the police arrived.

On cross-examination, the ADA asked if her she shot Ms. Nelson out of a sudden fit of rage or passion. The defendant said that she did not know. “I was just blinded. I was surprised she was there. I don’t know.” When the ADA asked if she was “suddenly provoked,” the appellant replied: “Exactly.” She admitted that she shot Ms. Nelson, but she claimed that she was not sure if she shot Ms. Nelson twice. The defendant testified: “I had my finger on the trigger once. I |n don’t remember removing it.” She said that she was not familiar with the semi-automatic weapon because it was the first time she used it. She admitted that she carried it everywhere with her. The ADA said: “But you know nothing about it.” The defendant stated: • “Basically no.” The ADA said: “So you wouldn’t know that that’s a semiautomatic weapon and that you pulled that trigger 13 times.” The defendant said: “No, ma’am. I cannot tell you I know that.” The ADA stated: “And are you also telling the jury that you shot her because she said: I got something for you?” The defendant stated: “And I was afraid that she was about to shoot me.” When the ADA questioned whether she was scared when she confronted Ms. Nelson, the defendant testified:

I’m the one that was walking up to my door. She was the one that opened the door and tell me something. At that moment, yes; I was afraid. Because after telling me: bitch, I got something for you, my thought, my mind was [sic] my children. I didn’t know what she was gonna do. So my thing is it was either me or her. And for her to turn in and reach, I don’t know what she was going for. Honestly, tell you the truth, I don’t.

Discussion

The defendant asserts that there was insufficient evidence to support her conviction for attempted second degree murder because the shooting was in self-defense and, alternatively, the evidence supports only a verdict of attempted manslaughter. In essence, the defendant argues that her testimony was more credible than the victim’s uncorroborated testimony because Ms. Lassai’s testimony supports her (the defendant’s) version of events and, therefore, it was irrational for the jury to believe the victim. In addition, the defendant points out that she was justified in using force because she believed she was in imminent danger and it is unsettled whether the State had the burden to prove beyond a reasonable doubt that the appellant did not act in self-defense or whether the |12appellant had the burden of proving that she acted in self-defense by a preponderance of the evidence.

In response, the State argues that (1) it proved beyond a reasonable doubt that the defendant intended to kill the victim, Ms. Nelson, and took steps toward the accomplishment of that object; and (2) specific intent to kill can be inferred from the circumstances because the defendant shot the victim, Ms. Nelson, at least seven times (thirteen holes in her body) and continued to pull the trigger until she was out of ammunition. The State acknowledges that there is a conflict in testimony as to the facts surrounding the shooting, but points out that the jury made a credibility determination and there is sufficient evidence to find beyond a reasonable doubt that the appellant did not shoot in self-defense. Further, the State notes that the only testimony relating to self-defense was the defendant’s testimony which conflicted with the victim’s testimony and the number of shots fired by the defendant.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty of attempted second degree murder beyond a reasonable doubt. The defendant admitted shooting Ms. Nelson and, as Officer Johnson testified, the semi-automatic weapon she used required that she pull the trigger each time she shot in order to discharge another bullet. The victim testified that she told the defendant that she (the defendant) was going to kill her if she kept firing shots and the defendant responded that was what she was trying to do. The defendant shot Ms. Nelson multiple times at close range, resulting in substantial damage her liver, her intestinal tract, her chest, her ear, and her arms and legs; thus, based on the number of times the defendant fired the semi-automatic weapon, specific intent to kill can be inferred. Although Ms. Lassai’s ] lstestimony supported the defendant’s version of events, the jurors heard the conflicting testimony at trial and made their credibility determinations.

With regard to the defendant’s claim of self-defense, the evidence does not support a finding under either standard that the defendant was in imminent danger of losing her life or receiving great bodily harm and that killing Ms. Nelson was necessary to save her life. Moreover, the force used by the defendant, repeatedly shooting Ms. Nelson until the semi-automatic weapon was empty, was not reasonable and necessary to prevent the alleged offense against the defendant. Thus, under the facts of this case, the evidence was sufficient to negate the defendant’s claim of self-defense under either the proof beyond a reasonable doubt standard or the proof by a preponderance of the evidence standard. Based on the evidence presented at trial, it was not unreasonable for the jurors to decide that the State had proved that the defendant was guilty of attempted second-degree murder.

In the alternative, the defendant asserts that the verdict should be modified to attempted manslaughter. Although attempted manslaughter is a responsive verdict to attempted second degree murder, the defendant has not alleged the jury was improperly instructed. Moreover, the jurors heard the defendant’s testimony in response to the ADA’s question as to whether she shot Ms. Nelson in a sudden fit of rage: she first replied she did not know but then agreed with the ADA that she had been suddenly provoked by Ms. Nelson’s presence at her home. Accordingly, although the defendant’s testimony may have supported and attempted | ^manslaughter conviction if the jury found the testimony credible, we find no basis upon which to modify the jury verdict.

Error Patent Review

A review of the record for errors patent reveals a sentencing error. The trial court sentenced the appellant, who was found guilty of attempted second degree murder, to seventeen years at hard labor. However, under La.Rev.Stat. 14:30.1, the sentence for second degree murder is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Under La.Rev. Stat. 14:27, a defendant convicted of attempted second degree murder shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence. According to the November 18, 2011, sentencing transcript and the minute entry, however, the trial court did not include the restrictions that the seventeen-year sentence was to be served without benefit of parole, probation, or suspension of sentence as required and, therefore, the sentence is illegally lenient. However, pursuant to La.Rev.Stat. 15:301.1(A), which is self-activating, and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restriction of benefits. See State v. Decloues, 2010-1247, p. 9 (La.App. 4 Cir. 3/23/11), 62 So.3d 778, 782, writ denied, 2011-0867 (La.2/3/12), 79 So.3d 1022. Thus, we need not correct the sentence or remand it to be corrected.

[ 1SConclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED

      . La.Rev.Stat. 14:31(A) provides in pertinent par that manslaughter is a "homicide which would be murder ... but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.”


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana v. Brandon DAY.
    No. 2012 KA 1749.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Scott M. Perrilloux, District Attorney, Patricia Parker Amos, Assistant District Attorney, Amite, LA, for State of Louisiana.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant, Brandon Day.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

| ¿The defendant, Brandon Day, was charged by bill of information with attempted simple burglary, a violation of La. R.S. 14:62 and La. R.S. 14:27. The defendant entered a plea of not guilty. After a hearing, the trial court granted the State’s motion to use other crimes evidence pursuant to La.Code Evid. art, 404(B). After a trial by jury, the defendant was found guilty as charged and subsequently sentenced to four years imprisonment at hard labor. The defendant now appeals, assigning error to the admission of other crimes evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On June 4, 2011, near 2:30 a.m., Richard Poling, a resident of an apartment complex located at Windrush Drive, off of C.M. Fagan Drive, in Hammond, called 911 as he observed two African-American males jump over a wooden privacy fence and approach several vehicles in the complex parking lot. The individuals approached Poling’s vehicle and after unsuccessfully attempting to gain entry through the doors and windows, moved to another vehicle. Poling observed as the perpetrators forced a gapped car window further down on the vehicle that belonged to Aaron Sinclair, Poling’s roommate, who was asleep at the time. As Poling observed them reaching into Sinclair’s vehicle, he yelled out his front door to the individuals, and they jumped back over the fence. Poling reported his observations in real time to the 911 dispatcher. Officer Terry Sanchez and Detective George Bergeron of the Hammond Police Department were in the area and responded to the dispatch.

As the police neared the scene, Poling indicated that the perpetrators were fleeing toward Commerce Street. Poling described the perpetrators’ attire. As Officer Sanchez and Detective Ber-geron approached Commerce Street, they observed two individuals who fit the description provided by Poling. The individuals, the defendant and Fred Dunhams, were detained, and Poling positively identified them as the perpetrators.

|,.ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant argues that the trial court erred in finding admissible evidence of other crimes consisting of the defendant’s prior convictions of fifteen simple burglaries that took place two years before the instant offense. The defendant argues that the evidence inflamed the jury against him and further argues that the jury convicted him because of his bad character. The defendant specifically contends that evidence of a prior incident, to which he pled no contest, involving the simple burglaries of fifteen vehicles in apartment complexes in Tangipahoa Parish, prejudiced the jury’s perception as to whether he was the person seen in Poling’s apartment complex on the dark night in question. The defendant notes that, although he pled no contest to the fifteen prior offenses, he was not found in possession of any of the victims’ property and only became a suspect after being named as an accomplice in a statement by the perpetrator who was in possession of the stolen goods. The defendant further notes that there was no videotape, eyewitness, or physical evidence to show that he was involved in those burglaries. The defendant concludes that he was unduly prejudiced as a result of the admission of the other crimes evidence and requests that his conviction for the instant offense be reversed.

Prior to the trial herein, the State filed a motion of intent to use evidence of other crimes pursuant to La.Code Evid. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973), to show identity, motive, opportunity, intent, plan, system, knowledge, and absence of mistake at trial. Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Hills, 99-1750, p. 5 (La.5/16/00), 761 So.2d 516, 520. Under Article 404(B)(1), other crimes evidence “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. La. Code Evid. art. 404(B)(1). At least one of the enumerated purposes in Article 404(B) must be at issue, have some independent relevance, or be |4an element of the crime charged in order for the evidence to be admissible under Article 404. Thus, to be admissible under Article 404(B), evidence of the defendant’s prior bad acts must meet two criteria: (1) it must be relevant to some issue other than the defendant’s character, and (2) its probative value must be greater than its potential to unfairly prejudice the jury. See La.Code Evid arts. 403 & 404(B). A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849, p. 4 (La.1/10/03), 839 So.2d 932, 934 (per curiam).

The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by Prieur. Under Prieur, the State was required to prove by clear and convincing evidence that the defendant committed the other crimes. Prieur, 277 So.2d at 129. However, 1994 La. Acts 3d Ex.Sess. No. 51 added La.Code Evid. art. 1104 and amended Article 404(B). Article 1104 provides that the burden of proof in pretrial Prieur hearings, “shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.” The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La.Code Evid. art. 1103 and the addition of Article 1104. However, numerous Louisiana appellate courts, including this court, have held that burden of proof to now be less than “clear and convincing.” State v. Millien, 2002-1006, p. 11 (La.App. 1 Cir. 2/14/03), 845 So.2d 506, 514; See also State v. Williams, 99-2576, p. 7 n. 4 (La.App. 1 Cir. 9/22/00), 769 So.2d 730, 734 n. 4. We note that the initial requirement of establishing that defendant committed the other crimes was clearly met in this case as the defendant admitted to the police his participation in the offenses and later pled no contest to the offenses.

1 ^Deputy Kenneth Schleigelmeyer of the Tangipahoa Parish Sheriffs Office, the officer who investigated the 2009 multiple vehicle burglaries, testified at the pretrial Prieur hearing. On June 5, 2009, during the early morning hours before daylight, multiple vehicles were burglarized in three closely situated apartment complexes located at East Yellow Water Road, Lamino Lane, and Village Drive. Most of the vehicles were already unlocked, while the windows were busted for a few. Items such as money, DVD players, CDs, media players, and other electronic devices were removed from the vehicles. A complainant gave a description of one of the suspects who she saw running away from her vehicle, later identified as Jamarcus Watson. When the police located Watson, the defendant, who was using the name Brandon Hurst at the time, walked up and it was determined that he was also involved. Both subjects were Mirandized and questioned. They admitted their participation and implicated each other. According to Officer Terry Sanchez, the apartment complexes wherein the 2009 burglaries took place were within an approximate one mile distance from the apartment complex on Windrush Drive, where the instant offense took place.

In finding the evidence admissible, the trial court noted that the defendant was sentenced on the prior offenses on May 25, 2011, that he had been incarcerated since his 2009 arrest up to that sentencing date, and less than two weeks later the instant offense was committed. The trial court further noted that the prior offenses, as the instant offense, were committed in the middle of the night with one accomplice and involved unlocked vehicles or forced entry through a vehicle window. The trial court further noted that the apartment complexes where the prior offenses took place were located within a mile of the complex where the instant offense took place. The court found the evidence of other crimes admissible to prove motive, opportunity, intent, preparation, and plan. At the trial, Deputy Schleigelmeyer testified consistent with his Prieur hearing testimony.

In support of the trial court’s ruling, we note that it appears that the prerequisites as to the intent exception are satisfied in this case. Before other crimes evidence can be admitted as proof of intent three prerequisites must be satisfied: |fi(l) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect. See La.Code Evid. arts. 403 & 404(B); State v. Kahey, 436 So.2d 475, 488 (La.1983). The Louisiana Supreme Court has recognized the principle that where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed. State v. Cupit, 189 La. 509, 179 So. 837, 839 (1938). In State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007), the State sought to introduce evidence that the defendant killed or attempted to kill the occupants of other residences during the commission of aggravated burglaries. The Louisiana Supreme Court found that the evidence met the three requirements enunciated in Ka-hey. The Supreme Court reasoned that “the acts were similar, in that they each involved home invasions where defendant entered the home to steal money, was caught by the resident, each of whom were somewhat elderly, and then killed or attempted to kill the resident.” The Supreme Court further reasoned that “specific intent was a genuine issue at trial, in that it is an essential element of the crime, and was contested.” Blank, 2004-0204 at 42, 955 So.2d at 125. Similarly, in State v. Williams, 96-1023, p. 30 (La.1/21/98), 708 So.2d 703, 725-726, cert. denied, 525 U.S. 838, 119 S.Ct., 99, 142 L.Ed.2d 79 (1998), the Supreme Court found that evidence demonstrating that the defendant shot a man during a robbery just hours before the crime charged was admissible in a first degree murder prosecution. The Supreme Court noted that the evidence of the earlier shooting was relevant to show that the defendant intended to fire the gun at the victim even though he claimed that the gun accidently discharged.

As to the first requirement of Ka-hey, clearly in this case the prior acts were similar to the offense being tried. The offenses took place in generally the same area and all in apartment complex parking lots, were committed overnight or during the early morning hours before sunrise, were committed with the use of an accomplice, and 17involved the unauthorized entry of vehicles through an unlocked door or forced entry through a window.

Second, in this case specific intent was a genuine issue at trial, in that it is an essential element of the crime that was tried. In order to convict the defendant of attempted simple burglary, the State was required to prove beyond a reasonable doubt that the defendant had the specific intent to enter a dwelling, vehicle, watercraft, or other structure without authorization, with the specific intent to commit a felony or any theft therein. La. R.S. 14:27(A); La. R.S. 14:62(A); State v. Perkins, 517 So.2d 314, 316 (La.App. 1 Cir. 1987), writ denied, 519 So.2d 141 (La.1988). While the defense mainly contested the issue of identity in this case, the State still had the burden of proving specific intent, an essential element of the crime charged, and the jury was specifically instructed in this regard prior to deliberations.

As to the third element of Ka-hey, the defendant argues that he was unduly prejudiced by the introduction of the evidence at issue. The defendant also notes that the prior burglaries took place over two years before the instant offense. Nonetheless, the fact that the other acts or crimes happened some time before the offense for which the defendant is on trial is not sufficient, in and of itself, to require the exclusion of the evidence. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. State v. Jackson, 625 So.2d 146, 149 (La.1993). Further, in determining whether the probative value of the evidence outweighs its prejudicial effect, the underlying policy is not to prevent prejudice (since evidence of other crimes |sis always prejudicial), but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Humphrey, 412 So.2d 507, 520 (La.1982) (on rehearing).

We further note that based on the facts end circumstances herein, the other crimes evidence at issue is also relevant as to the defendant’s motive, plan, and system. For these reasons, the defendant’s sole assignment of error is without merit.

Nonetheless, even if we were to determine that the other crimes evidence was improperly admitted in this case, that would not end our inquiry since the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis. The standard applied in making this determination is whether the verdict rendered was surely unattributable to the error. See State v. Johnson, 94-1379, p. 18 (La.11/27/95), 664 So.2d 94, 102.

Based on Poling’s testimony, there was no doubt in his mind that the defendant was one of the perpetrators herein. As he routinely did, around 2:00 to 2:15 in the morning, Poling had just let his dog out to relieve itself and was standing on his porch when he initially spotted the perpetrators. He called his dog in, shut his apartment door, and stood on the stoop of his apartment when he heard mumbling and the kicking of rocks coming from Commerce Street. Poling observed the two African-American males as they initially approached, but could not get over the chain-link fence, and subsequently, removed a board from, and jumped over, the wooden privacy fence. Poling went back into his apartment and continued to observe the individuals through his windows. The view from the windows was well lit. As he observed the individuals approaching the vehicles, Poling was able to see their faces and attire. He noted that they were wearing jeans, and one had on a loose white t-shirt, while the other had on a white muscle shirt. He had his cell phone on his person at the time and used it to call 911. Poling noted that his apartment windows covered the length of the parking lot, and by moving from the living room window to the bedroom window, he was able to maintain a view of the suspects as they approached different vehicles. Poling continued to observe as Sinclair’s gapped car window was forced down another four or five inches, and the suspects 1 ^reached into the car just before Poling yelled out to them. The police were near the complex and simultaneously communicating with the dispatcher as Poling reported his observations in real time. As Poling indicated that the suspects fled toward Commerce Street, Officer Sanchez and Detective Bergeron approached that location and spotted the suspects.

As to the moments before the police detained the suspects, Poling testified, “I walked outside.... The two guys after they jumped the fence ... they got about halfway down Commerce Street.... I saw the cruisers pull in, and they got the two guys.” When asked if he ever lost sight of the perpetrators before the police detained them and obtained the on-the-scene identifications, Poling stated, “Just when they were running behind that pine tree. That’s when I had to go out into the grassy area of our property to actually get a complete view of Commerce Street.” He testified that he was certain that they were the two people attempting to break into vehicles in the complex parking lot.

Poling was essentially able to observe the perpetrators from the moments before they gained entry into the complex parking lot and attempted to enter several vehicles until the police detained them. He was absolutely certain of his on-the-scene identification and subsequent in-court identification of the defendant. Aaron Sinclair testified that he did not know the defendant and did not give him authorization to enter his vehicle. Considering the above, it is clear that the jury rested its verdict on evidence properly introduced by the State rather than on the evidence regarding the burglaries previously committed by the defendant. Based on our review of the record, we find that the guilty verdict returned in the instant case surely was unattributable to any error in the admission of the extraneous other crimes evidence. Thus, if the admission of the evidence was erroneous, the error was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921

DECREE

For the above and foregoing reasons, we find no merit to the defendant’s arguments on appeal and affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . We note that in Blank, the defendant argued that the State should not have, been permitted to introduce the other crimes evidence to prove the specific intent element of first degree murder because he did not present evidence or argue at trial that he lacked specific intent. Before noting that the defendant's claim that he did not contest the issue of intent lacked a factual basis in that case, the Supreme Court cited U.S. v. Brantley, 786 F.2d 1322, 1329 (7th Cir.1986), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986), wherein the 7th Circuit Court of Appeals held that when a defendant is charged with a crime and specific intent is an essential element of that crime, the government may introduce evidence of prior or subsequent acts to establish the element of intent even if the defendant has not placed his intent into question. Blank, 2004-0204 at 43, 955 So.2d at 125.


author: KUHN, J.

text:
    STATE of Louisiana v. Josie Y. MORGAN.
    No. 2012 KA 2060.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Samuel C. D’Aquilla, District Attorney, Clinton, LA, Stewart B. Hughes, Special Assistant District Attorney, St. Francis-ville, LA, for Appellee State of Louisiana.
    Benn Hamilton, Baton Rouge, LA, for Defendant-Appellant, Josie Y. Morgan.
    Before KUHN, PETTIGREW, and McDonald, jj.
   KUHN, J.

| ¡.The defendant, Josie Y. Morgan, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. The defendant entered a plea of not guilty. (R. 1). Following a trial by jury, the defendant was found guilty as charged. (R. 13,1063). The trial court denied the defendant’s motion for postverdict judgment of acquittal and motion for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, assigning error to the sufficiency of the evidence supporting her conviction, the admission of expert testimony, the violation of her right to present a defense, and prosecutorial misconduct. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On Saturday, December 1, 2007, Jonova Walker, Charles Plain, Lionel Allen, and Andre Turner (the victim) had dinner at the defendant’s residence in Sweetbriar Trailer Park in Zachary. According to trial testimony, sometime after dinner, the defendant, Walker, Allen, and the victim left the defendant’s house while Plain (the defendant’s boyfriend at the time) stayed at the defendant’s trailer for the night. Walker and the defendant were riding in a Honda Accord, and the victim and Allen were riding in a black Geo Storm. After the group made a brief stop at a motel, Walker followed the others as they trav-elled in the Geo Storm on |aScenic Highway. When they turned off Scenic Highway onto Carney Road, the Geo Storm swerved and came to an abrupt stop. Allen and the victim exited the vehicle and began fighting.

According to Walker’s testimony, she and the defendant stepped out of their vehicles, and the defendant grabbed a pipe wrench out of Walker’s vehicle and repeatedly hit the victim in the back of the head. Allen and the defendant continued to beat the victim as he attempted to get off the ground and begged for his life. The victim managed to get up and run from the defendant and Allen, who then got back into the Geo and pursued the victim, with the defendant driving. Walker got back in the Honda Accord and followed them a short distance as they approached the next corner. Walker testified that when she turned the corner behind the Geo, she saw the Geo stopped with its front tire resting on top of the victim’s back. The defendant then backed the vehicle off of the victim’s body, and she and Allen placed his body in the front passenger seat.

Walker followed in the other vehicle as they drove to a nearby wooded area. The defendant and Allen dragged the victim’s body into the woods and set it on fire. On December 3, 2007, the East Feliciana Parish Sheriffs Office received a call regarding the discovery of the victim’s body in a wooded area. According to the autopsy performed on December 5, 2007, the victim suffered multiple lethal blunt-force injuries to the head, fractured ribs, a broken sternum, lacerations on the back of his lungs and liver, internal bleeding, a fractured pelvis, and his entire body was badly burned, including charring from fourth-degree burns.

1 ¿ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

In assignments of error numbers one, two, and three, the defendant challenges the evidence presented in support of the verdict. Specifically, she contends that the verdict is contrary to the law and evidence (assignment of error number one), that the verdict is not supported by sufficient and competent evidence (assignment of error number two), and that the trial court erred in not granting her postverdict judgment of acquittal (assignment of error number three). The defendant argues that the jury was unable to properly assess Walker and Plain’s credibility since they avoided being confronted with recordings of their prior inconsistent statements by immediately admitting that they previously lied to the police. She further contends that the jury would have, in all likelihood, found that Walker and Plain’s testimony was not credible if it had heard their audiotaped statements. The defendant asserts that the State presented false and untrue testimony that was “cosmetically re-constructed ... to fit the intents and purposes of a lying witness.” The defendant contends that the evidence presented during the trial indicates that Walker was more involved in the events than she revealed. Finally, the defendant asserts that the witness testimony in this case should have been subject to heightened scrutiny due to the history of lies.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Ordodi, 06-0207 (La.11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, i.e., “assuming every fact to be proved that the | ¡¡evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 & 00-0895 (La.11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier-of-fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).

Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). 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). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the trier-of-fact. State v. Buchanon, 95-0625 (La.App. 1st Cir.5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La.12/6/96), 684 So.2d 923.

Dr. Karen Ross, a forensic pathologist with the Jefferson Parish Coroner’s Office at the time of the offense, performed an autopsy on the victim two days after his body was found. She testified that the victim’s cause of death was multiple blunt-force injuries alone or in association with smoke inhalation and thermal injury because the body had been burned after blunt-force injuries were |fisustained. She noted that although the injuries were lethal, the victim could have still been alive at the time he was set on fire because there was a small amount of soot located in his airway indicating that he took in a few breaths, and there was aspiration of some of the gastric materials. She stated that the victim’s entire body was on fire and was largely charred by fourth-degree burns. The victim sustained multiple blunt-force injuries to the head, with at least fifteen different areas of lacerations. Some of the head injuries were sharp or triangulated while others were longer. Blood located beneath the victim’s scalp indicated he was alive when he sustained the head trauma.

Dr. Ross stated that the lacerations and hemorrhage in the victim’s scalp and head area were consistent with being struck with an object like a bat or pipe. The victim also had fractured ribs, a broken sternum, lacerations on the back of both lungs and the liver, internal bleeding and a fractured pelvis. Dr. Ross stated that it would have taken a lot of force in fracturing the large bones and that the bodily injuries were consistent with the victim being hit or run over by a car. The victim was alive when he sustained the bodily injuries. The victim had defensive wounds on two fingers on his right hand consisting of lacerations (one of which went into the nail bed) and the palm of his right hand was relatively spared from some of the thermal injury. Based on his stomach contents, it was estimated that approximately two hours lapsed between the vie-tim’s last meal and the estimated time of his death.

State witness Joshua Jones (the victim’s cousin) saw the victim on the night in question when he was still alive. Jones testified that sometime between 11:00 p.m. and midnight he saw the victim, the defendant, and Walker leave a junkyard on East Flanacher Road in Port Hudson in a black car being driven by Walker.

17At approximately 4:30 p.m. on December 3, Detective Don McKey of the East Feliciana Parish Sheriffs Office, who was the lead detective in the instant case, responded to the wooded area where the victim’s body was located. Detective McKey testified that a piece of paper containing Walker’s name and telephone number was found near the body. His investigation, including statements from Walker, Allen, Jones, Samuel Territo, and Mary Jack (the defendant’s mother) ultimately led him to believe that the victim was with the defendant and Walker during the overnight hours between December 1 and December 2. On December 6, Detective McKey interviewed Walker, the defendant, and Plain. The defendant did not make a statement, and though Walker admitted to being with the defendant and the victim on the night in question, she initially did not provide details surrounding the victim’s murder and denied that the victim or Allen were at the defendant’s trailer that night. Plain indicated that the defendant stayed home with him on the night in question.

The East Feliciana Parish Sheriffs Office requested and received a certified copy of an insurance policy issued April 20, 2006 with the victim as the insured and the defendant as the primary beneficiary. After being arrested for obstruction of justice, Plain provided statements consistent with his trial testimony. Similarly, on November 19, 2008, Walker finally provided statements and information consistent with her trial testimony.

During his trial testimony, Plain admitted that he lied when he first spoke to the police in March 2008 in an effort to protect the defendant. He testified that Allen, the victim, Walker, the defendant, and he were present at the defendant’s trailer that night, and the defendant cooked dinner. Plain stayed at the trailer when the other four individuals left at about 8:00 p.m. He testified that the defendant |8and Walker returned at about 2:00 a.m. Plain further testified that the defendant and Walker were acting “strange” and “jumping” when they returned.

Walker indicated that she and the defendant were close friends and like sisters at the time of the offense. According to her trial testimony, she watched as the defendant and Allen severely beat the victim as he tried to get up off the ground. After the defendant hit the victim with the car and drove him to the wooded area, Walker witnessed the defendant and Allen drag the victim’s body into the woods. She also saw Allen remove a container of gas out of her car, but could not actually see the fire being set from where she was standing.

According to Walker, Allen was still with them when they went back to the defendant’s trailer after the murder. Walker further noted that the defendant had blood splattered all over her face. They entered through the back door and the defendant immediately removed her clothing and took a shower. After unsuccessful attempts to remove the blood from the car interior, the defendant and Walker took the vehicle to Sam Territo’s property where they stripped and discarded some of the interior, including door panels and seating. Days later they retrieved the partially stripped car and abandoned it in a Wal-Mart parking lot in Port Allen. After her arrest, Walker asked a sexual partner, Kenneth Sterling, to go to the Wal-Mart and “handle” the car.

Walker admitted that she lied to the police during interviews that took place soon after the victim’s body was discovered and her arrest, and again in March 2008. She indicated that she did not want to give the police any information because she did not want the defendant to go to jail, adding that she was also personally concerned about avoiding going to jail. When she finally came forward to provide details about the murder in November 2008, she also informed the police of the location where the victim was initially beaten and the nearby location | cohere he was hit with the car. She also escorted them to the property where the discarded portions of the vehicle’s interior were located.

Walker admitted that the State reduced the second degree murder charge against her to obstruction of justice in exchange for her testimony, as shown in the written plea agreement subsequently introduced by the defense. She nonetheless specifically stated that she came forward because she “just couldn’t hold it in anymore” and repeatedly asserted that her trial testimony was truthful. During cross-examination she again admitted to repeatedly providing statements in the past that were inconsistent with her trial testimony and sending the police on a “wild [goose] chase” as to the location of evidence, but denied beating the victim or hitting him with the car. She denied having any scratches or injuries from the night in question.

Consistent with Walker’s testimony, Sterling testified that when Walker called him after her arrest and asked him to burn her car, he did so. He stated that he poured gas on and under the vehicle and lit it with a match while it was in a Wal-Mart parking lot. Sterling noted that he initially lied to the police about setting the car on fire.

Sam Territo testified that he had known the defendant well since she was a little girl and talked to her relatively frequently. He further stated that he would more than likely recognize her voice over the telephone. The defendant’s brother worked for Territo and lived on his property in Pointe Coupee at the time of the murder. According to Territo, the defendant contacted him by phone once or twice and once in person in December 2007 regarding leaving a car on his property. The defendant told him that the car needed repairs and that someone would come and repair it. Territo agreed and the car was stored on his property |infor a period of time. Territo gave the police permission to search his property when Walker led them to that location in late November 2008.

The defendant’s mother, Mary Lee Jack, also testified as a State witness. According to her testimony, the day before she saw the news story about the victim’s death, the defendant told her that she was in trouble and that she hit someone in the head with a bat and that the person “fall out.” The defendant also mentioned a fire at Thompson Creek and that something happened to the victim. After Jack saw the news story about the victim’s death, she concluded that her conversation with her daughter was relevant and gave a statement to the police.

The victim’s first cousin, Nicole Turner, testified that when she saw the defendant while shopping in June 2007, the defendant showed her a life insurance policy in the victim’s name and stated that the victim was worth more to her dead than alive. The defendant further informed Turner that she made certain to keep up the payments on the policy.

Among the cell phone records introduced by the State, it was shown that the defendant’s cell phone was used on December 1 at 10:33 p.m. in Zachary. The defendant’s cell phone was used to call Walker’s cell phone between Port Hudson and Baton Rouge starting at about 6:25 a.m. on December 2. It was used to call Walker again later that morning in Gonzales at 7:57 and 7:58 a.m., and to call Territo between 10:36 and 10:39 a.m.

The defense called Officer Harold Eden-field and Louisiana State Police Trooper Troy Magallenes as witnesses in an attempt to illicit testimony regarding possible visible scars or scratches on Walker’s face, neck, or shoulders following the victim’s murder. Officer Edenfield, who was employed by the West Feliciana Parish Detention Center, was present on December 6, 2007, when Walker was arrested and booked. Trooper Magallenes stopped Walker’s vehicle at 7:40 a.m. Hon December 2 and issued her an illegal window tint ticket. Both witnesses testified that they did not recall any scars or scratches on Walker’s face and, further, that they would have noted such an observance. Trooper Magallenes observed blood in the front and back of the vehicle being driven by Walker. When he questioned her, Walker told him that she had a fight with her boyfriend and struck him with an object that was in the vehicle. She was allowed to leave after the ticket was issued.

Defense witness Detective Terrance Miller of the East Feliciana Parish Sheriffs Office was called to the scene where the victim’s body was discovered and took photographs. Detective Miller corroborated Detective McKey’s testimony that a slip of paper with Walker’s first name and phone number was located at the scene within a few inches of the victim’s head. Detective Miller also confirmed that Walker gave prior accounts of what occurred that were inconsistent with her trial testimony. For example, he specifically confirmed that Walker initially stated that she and the victim were hit by another car while they were travelling down U.S. Highway 61 and that someone struck her and the victim with an object after they got out of the car. The defendant did not testify.

The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La. R.S. 14:24. Thus, a general principle of acces-sorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other. State v. Smith, 07-2028 (La.10/20/09), 23 So.3d 291, 296 (per curiam).

l12In this case, Walker clearly implicated the defendant in the murder of the victim, specifically indicating that the defendant actively participated in the brutal beating and that the defendant ran over the victim with the vehicle she was driving, both resulting in lethal injuries. Walker further testified that the defendant assisted in the burning of the victim’s body. The testimony presented by the victim’s mother as to the statements the defendant made shortly after the offense was consistent with Walker’s testimony. The jury was fully aware of the fact that Walker provided several inconsistent prior statements. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier-of-fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Moreover, the trier-of-fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier-of-fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a trier-of-fact’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier-of-fact does not render the evidence accepted by the trier-of-fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985).

The evidence need not show that the defendant acted alone. See La. C.Cr.P. art. 14:24; Smith, 23 So.3d at 296. The jury’s verdict reflected its reasonable conclusion that the defendant actively participated in the murder of the victim herein. Accordingly, we cannot say that the jury’s determination was irrational | sunder the facts and circumstances presented to it. See Ordodi, 946 So.2d at 662. Furthermore, an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the trier-of-fact and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). We are convinced that any rational trier-of-fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant’s identity as the perpetrator. Due to the foregoing conclusions, assignments of error numbers one, two, and three lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In her fourth assignment of error, the defendant contends that the trial court erred in allowing the State to present expert testimony by Detective Spence Dil-worth regarding technical aspects of cell phone calls and usage. The defendant argues that Detective Dilworth did not possess specialized knowledge regarding the interpretation and explication of cell phone records and was not qualified to testify as an expert in that field. Thus, the defendant argues that the trial court abused its discretion in allowing him to testify as an expert.

In this case, the State did not attempt to qualify Detective Dilworth as an expert witness. Therefore, he testified as a lay witness. Louisiana Code of Evidence article 701 limits a lay witness’s testimony in the form of opinions or inferences to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. A law officer may testify as to matters within 114his personal knowledge acquired through experience without first being qualified as an expert. See State v. LeBlanc, 05-0885 (La.App. 1st Cir.2/10/06), 928 So.2d 599, 603. However, only experts are allowed to give opinion testimony in areas of specialized knowledge. Under La. C.E. art. 702, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. LeBlanc, 928 So.2d at 602-03. The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. State v. Friday, 10-2309 (La.App. 1st Cir.6/17/11), 73 So.3d 913, 922, writ denied, 11-1456 (La.4/20/12), 85 So.3d 1258.

Detective Dilworth testified that he obtained subpoenas for the defendant and Walker’s cell phone records. Defense counsel objected, arguing that the witness was not qualified to explain from a technical standpoint what the phone records meant. Before the trial court overruled the objection, Detective Dilworth explained that he easily determined how to interpret the phone records, noting that he may have called the telephone company as a precaution, but that the records were self-explanatory and included headings such as “called number” to indicate the telephone that received the call, and “dialed digits” to indicate a call that was made. As routinely done, the cell phone companies provided a spreadsheet that 11Blisted the corresponding numbers used to identify towers and the address and GPS coordinates of the tower that the cell phone used when a call was made.

We find that the trial court did not abuse its discretion in determining it is acceptable for a lay witness to testify as to the calls made and received and the tower locations for the telephone calls. A lay witness can infer and tell the jury what cell tower accepted the mobile phone signals at specific times based on that witness’s examination of cell phone records. Thus, the trial court did not err in overruling the defendant’s objection. Accordingly, assignment of error number four is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In her fifth assignment of error, the defendant argues that the trial court erred in not allowing her to present to the jury prior audiotaped statements by Walker and Plain. The defendant contends that Walker’s numerous recorded interviews displayed her personality and character, including a tendency to be evasive, manipulative, and to conceal her involvement. The defendant argues that she was prevented from presenting a compelling and crucial part of her defense when the trial court did not allow her to play Walker’s audiotaped statements demonstrating how her stories changed. The defendant specifically notes that initial statements by Walker and Plain indicated that the defendant was not involved in any of the criminal activities and that they changed their stories after interviews that took place on March 31, 2008. The defendant specifically contends that the change in Walker’s story was triggered by Detective McKey’s false indication that the defendant was using her and attempting to place all of the blame on her. The defendant further contends that Plain similarly changed his story after being coerced and threatened with arrest and prosecution. The ^defendant also notes that Walker negotiated a plea agreement in exchange for her testimony against the defendant.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. This right includes the right to cross-examine the prosecution’s witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Vaughn, 448 So.2d 1260, 1267 (La.1983) (on rehearing). Further, an accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Cross-examination is the primary means of testing the truthfulness of testimony. State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131, 1135.

During the trial, as on appeal, the defendant did not cite any statutory authority for the admissibility of the recorded interviews that include prior inconsistent statements. After Plain testified, defense counsel, outside of the presence of the jury, moved to play his entire police interview conducted on March 31, 2008. In ruling that the interview could not be played in its entirety, the trial court noted that Plain admitted in the presence of the jury that he lied on more than one occasion but stated that his trial testimony was truthful. The trial court ruled that it would allow two portions of the interview to be played, specifically to address Plain’s failure to recall the police telling him the defendant used him as an alibi and that he would be in prison with Derrick Todd Lee. Defense counsel noted that he could not find those particular portions of the interview. The trial court restated that the defendant would not be allowed to play the interview in its entirety and reiterated its ruling allowing the indicated portions to be played when located, noting that there would be breaks during the course of the trial that would 117allow defense counsel to search for those portions of the interview. Defense counsel argued that it would be appropriate to play the whole interview in order to present “a clear picture of this witness’s attempts to be evasive.” He further argued that the defendant was on trial for her life in a murder case, and that the entire interview was probative and important. The trial court again stated that the defendant would not be allowed to play the entire interview and noted that defense counsel would have ample time to search the interviews for the portions previously ruled admissible since the trial would not be concluded that day.

Subsequently, the trial court allowed the defendant to proffer Plain’s recorded interview. At that point, defense counsel indicated that he also wished to play all of Walker’s interviews in their entirety and the trial court delayed ruling on the request pending Walker’s testimony. After Walker testified, the trial court denied the defendant’s request to play the interviews before the jury, but allowed their proffer. The trial court noted that Walker admitted to repeatedly lying when confronted with prior inconsistent statements and further noted that law enforcement officers also testified that she lied and told them multiple stories. Additionally, the trial court also noted that nothing would be gained by playing the interviews, reiterating that the witness did not deny making any of the prior statements.

Generally, a witness’s prior inconsistent statement may be used to impeach his credibility. La. C.E. art. 607(D)(2). Such evidence “is admissible after the ^proponent has first fairly directed the witness’ attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.” La. C.E. art. 613. Once the foundation is sufficient for a prior inconsistent statement, the statement is subject to the balancing test of La. C.E. art. 607(D)(2), which requires the court to determine whether its probative value is “substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.” State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, 330, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Moreover, the admissibility of evidence under La. C.E. art. 607 is also subject to the balancing standard of La. C.E. art. 403, which states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. Friday, 73 So.3d at 925.

As noted by the trial court, Plain and Walker repeatedly admitted to lying to the police and/or making specific statements that were wholly inconsistent with their trial testimony when confronted with prior inconsistent statements. If a witness admits a prior inconsistent statement, he has impeached himself by his own testimony and, thus, the prior inconsistent statement is not admissible under Article 607. State v. Savoie, 448 So.2d 129, 134 (La.App. 1st Cir.), writ denied, 449 So.2d 1345 (La.1984); State v. McGee, 07-130 (La.App. 5th Cir.6/26/07), 963 So.2d 449, 453. As further noted by the trial court, the defendant achieved all she could accomplish by having the witnesses repeatedly admit to making prior inconsistent statements. The trial testimony regarding prior inconsistent | instatements by Plain and Walker was very extensive and the witnesses were subjected to intense cross-examination regarding those prior statements. Moreover, the police officers gave specific testimony regarding the content of the prior inconsistent statements made by the witnesses. As indicated by the trial court, playing the interviews in their entirety involved the risk of undue consumption of time. Considering the foregoing, we find no abuse of discretion in the trial court’s ruling regarding the admissibility of the extrinsic evidence at issue. The fifth assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

In her sixth assignment of error, the defendant argues that the prosecution knowingly presented false and perjured testimony and evidence to the jury. The defendant specifically contends that State witnesses Walker and Plain were coached and that their pretrial recorded audio statements should have given the prosecution serious concerns as to their veracity and/or reliability. The defendant argues that the presentation of their trial testimony to the jury as state evidence raised serious questions regarding intentional prosecutorial misconduct and professional ethical violations.

The record discloses no contemporaneous objection raising claims of prosecutorial misconduct. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. See La. C.E. art. 108(A)(1); La.C.Cr.P. art. 841(A). Accordingly, the defendant has waived any error based on this allegation by her failure to enter a contemporaneous objection. See State v. Sisk, 444 So.2d 315, 316 (La.App. 1st Cir.1983), writ denied, 446 So.2d 1215 (La.1984).

Moreover, the mere fact that Walker and Plain gave prior inconsistent statements does not prove that they testified falsely at trial. Walker and Plain |antestifíed that they previously lied to the police to protect the defendant and were coming forward with the truth at trial. Thus, these witnesses provided an explanation for inconsistencies between their trial testimony and their pretrial statements. At any rate, it cannot be presumed that a prosecutor has knowledge that a witness’s answers are false simply because the witness may have made conflicting statements on a prior occasion. Thus, the defendant has shown no error or entitlement to a new trial on this basis since she has failed to show that the statements at issue are actually false or that the prosecution knew they were false and acted in collusion with the witnesses to facilitate false testimony. See United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.1997), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). See also State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (La.2000); State v. Williams, 338 So.2d 672, 677-78 (La.1976). Thus, we find that assignment of error number six lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The trial court failed to wait twenty-four hours to sentence the defendant after ruling on the motion for postverdict judgment of acquittal and motion for new trial, and no waiver was given. See La.C.Cr.P. art. 873. However, since the defendant was sentenced to the mandatory sentence of life imprisonment, the failure to wait twenty-four hours after the denial of these post-trial motions was harmless error. See State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Price, 05-2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 123-125 (en banc), writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277.

      . Walker specifically testified that they went to Scenic Highway Motel to count money. The facts surrounding the money that was acquired and being counted at the motel that night were not fully introduced. However, Spence Dilworth, formerly the chief of detectives at the West Feliciana Parish Sheriff's Office, testified that his involvement in this case began with an initial call concerning $6,000.00 taken from the victim of an armed robbery at approximately 2:30 a.m. on Sunday, December 2. He ultimately concluded that the defendant, Walker, and the victim herein were involved in the robbery. According to Dilworth, police statements further indicated that the group also went to the motel to use drugs.

      . Under La. C.E. art. 801(D)(1)(a), prior inconsistent statements may be admissible for their substantive or assertive value, as well as for impeachment, if the proper foundation is laid Specifically, under Article 801(D), a prior statement by a witness is not hearsay in a criminal case if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is inconsistent with his testimony, provided that the proponent has first fairly directed the witness's attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement. In her appellate brief, the defendant did not cite any legal authority supporting the instant assignment of error. Furthermore, she did not seek to apply Article 801 or to lay the proper foundation for its applicability during the trial.


author: McClendon, j.

text:
    Ronnie McLIN v. HI HO, INC., HI HO Barbeque 5, LLC, and John T. Guzzardo, Jr.
    No. 2013 CA 0036.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.
    See also 118 So.3d 462, 2013 WL 2456197

      Rodney N. Erdey, Denham Springs, LA, for Plaintiff/Appellant Ronnie McLin.
    Christopher M. Moody, Albert D. Gi-raud, Hammond, LA, for Defendant/Appel-lee John T. Guzzardo, Jr.
    A. Bradley Berner, Hammond, LA, for Defendants/Appellees HI HO Barbeque 5, L.L.C., Sarah L. Davis and Donny Gene Davis.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

|2Appellant, Ronnie McLin, seeks review of the trial court’s granting of a motion for summary judgment in favor of a purported agent for a corporation. Appellant asserts that the granting of the motion was improper because he entered into an agreement with an agent granting him the exclusive rights to open a restaurant franchise and he detrimentally relied upon the agent’s acts and/or omissions such that the agent is bound for his acts. For the reasons that follow, we affirm the judgment to the extent that it dismissed appellant’s request for injunctive relief. However, we reverse the judgment to the extent that it dismissed appellant’s claims based on detrimental reliance.

FACTS AND PROCEDURAL HISTORY

The factual and procedural history of this matter is set forth in detail in our opinion in McLin v. HI HO, Inc., 2012-1702 (La.App. 1 Cir. 6/7/13), 118 So.3d 462, 2013 WL 2456197, also handed down on this date.

Pertinent hereto, John T. Guzzardo, Jr. purportedly granted McLin the exclusive “rights to open a Hi-Ho BBQ in the town of Livingston” for a period of two years. After another entity opened a HI HO restaurant in Livingston within the two year period, McLin instituted an action seeking injunctive relief against John T. Guzzardo, Jr. and J.T. and Stella Guzzardo, Inc.

After the corporate entity was dismissed on summary judgment, John T. Guzzardo, Jr. filed a motion for summary judgment. Guzzardo asserted that he did not have authority to contract on behalf of the corporate entity such that McLin never had an enforceable binding contract for anything. Guzzardo also asserted that McLin’s purported detrimental reliance on a gratuitous promise was neither justifiable nor reasonable.

In opposition, McLin asserted that based on the assurances and the agreement signed by Guzzardo, who held himself out to have all authority to make licensing decisions, McLin commenced the process of purchasing, setting up, and operating a business. McLin avers that based on Guzzardo’s promises, | ..¡assurances, acts, and conduct, McLin may enforce the agreement based upon a theory of estoppel and detrimental reliance, as recognized by LSA-C.C. art. 1967.

Following a hearing, the trial court, concluding that no consideration had been given and that McLin’s reliance was unreasonable, granted Guzzardo’s motion for summary judgment and dismissed McLin’s claims against him.

McLin has appealed, raising two assignments of error. First, he asserts that the trial court erroneously held that there are no genuine issues of material fact as to whether John T. Guzzardo, Jr. had authority to act on behalf of the Corporation. Second, McLin asserts that the trial court erred in concluding that no genuine issues of material fact remained regarding whether he detrimentally relied on John T. Guzzardo, Jr.’s acts and/or omissions and, as a result, sustained damages such that summary judgment should not have been granted in favor of Guzzardo.

DISCUSSION

In his first assignment of error, McLin asserts that genuine issues of material fact exist as to whether John T. Guzzardo, Jr. had actual and/or apparent authority to bind the Corporation. However, for the reasons set forth in McLin v. HI HO, Inc., 2012-1702 (La.App. 1 Cir. 6/7/13), 118 So.3d 462, 2013 WL 2456197, also handed down this date, we conclude that McLin cannot meet his burden of proof at trial to show that Guzzardo had either actual or apparent authority such that the corporate entity can be bound by his actions. Accordingly, McLin’s first assignment of error is without merit.

In his second assignment of error, McLin asserts that genuine issues of material fact remain regarding whether he detrimentally relied on Guzzardo’s acts and conduct.

|4The doctrine of detrimental reliance, sometimes also referred to in the jurisprudence as promissory or equitable estoppel, is codified in Louisiana Civil Code article 1967, which provides:

Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37, 59. To establish detrimental reliance, a party must prove the following by a preponderance of the evidence: (1) the defendant (promisor) made a promise to the plaintiff (promisee); (2) the defendant knew or should have known that the promise would induce the plaintiff to rely on it to his detriment; (3) the plaintiff relied on the promise to his detriment; (4) the plaintiff was reasonable in relying on the promise; and (5) the plaintiff suffered damages as a result of the reliance. Wooley v. Lucksinger, 06-1167 (La.App. 1 Cir. 5/4/07), 961 So.2d 1228, 1238.

McLin asserts that Guzzardo held himself out to have all authority to make decisions. Specifically, in opposition to Guzzardo’s motion for summary judgment, McLin introduced Guzzardo’s deposition testimony. Therein, Guzzardo acknowledged that, in addition to signing the April 28, 2010 agreement, he told McLin that he would ultimately be able to secure the franchise for the territory around the town of Livingston. Guzzardo also indicated that he and McLin discussed the terms, conditions, and costs of operating a HI HO franchise and that the two had considered several properties to determine whether the specific | locations would be appropriate for a franchise. Guzzardo also noted that McLin had prepared a business plan for the franchise and had brought it to show Guzzardo. McLin avers that these acts demonstrate that Guzzardo projected his ability and authority to sell McLin a HI HO franchise/license agreement.

Relying upon Guzzardo’s acts, McLin attested, in an affidavit, that he: 1) purchased an ongoing restaurant business and its equipment, furnishings and inventory; 2) negotiated a lease for a building; 3) prepared a business plan; 4) sought financial assistance for purchasing and operating a HI HO franchise; and 5) appeared in a news article regarding opening his newly-established restaurant and reported therein on the future of the HI HO acquisition. As such, McLin concludes that genuine issues of material fact remain as to whether he detrimentally relied upon Guzzardo’s acts and/or omissions and is entitled to damages for such reliance.

Guzzardo contends that the “promise,” as evidenced by the four corners of the document, was nothing more than gratuitous. Under LSA-C.C. art. 1967, however, a party can be bound by a gratuitous promise. “Cause” is not “consideration,” and the reason why a party binds himself need not be to obtain something in return or to secure an advantage for himself. An obligor may bind himself by a gratuitous contract, that is, he may obligate himself for the benefit of the other party without obtaining any advantage in return. LSA-C.C. art. 1967, Revision Comments — 1984 comment (c); see also Aaron & Turner, LLC v. Perret, 07-1701 (La.App. 1 Cir. 5/4/09), 22 So.3d 910, 915 (on rehearing), writ denied, 09-1148 (La.10/16/09), 19 So.3d 476. Under Article 1967, a promise becomes an enforceable obligation when it is made in a manner that induces the other party to rely on it to his detriment. LSA-C.C. art. 1967, Revision Comments — 1984 comment (d).

Nevertheless, Guzzardo notes that reliance on a gratuitous promise made without requisite formalities is not reasonable as a matter of law. See LSA-C.C. art. 1967. Guzzardo maintains that the agreement lacked a price such that McLin’s reliance on it was not reasonable. Even if the agreement is gratuitous, | ^Guzzardo has pointed to nothing that requires a price be included in the written contract at issue or that the contract lacked any other formality required by law.

Issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment, Granda v. State Farm Mut. Ins. Co., 04-1722 (La.App. 1 Cir. 2/10/06), 935 So.2d 703, 707, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326; see also Cenac v. Hart, 98-01679 (La.App. 3 Cir. 4/7/99), 741 So.2d 690, 696 (in reversing the grant of an exception of no cause of action under an action for detrimental reliance, the court indicated that the “reasonableness of [plaintiffs] reliance ... is a matter best addressed at trial.”) While McLin may have difficulty establishing the reasonableness of his reliance at trial of this matter, such a determination of fact is not appropriate on a motion for summary judgment. Therefore, genuine issues of material fact remain as to whether McLin detrimentally relied on Guzzardo’s actions. Assignment of error number two has merit.

CONCLUSION

In light of the foregoing, we affirm the judgment to the extent that it dismissed McLin’s request for injunctive relief, but reverse the judgment to the extent that it dismissed McLin’s claims for detrimental reliance. This matter is hereby remanded for further proceedings. Costs of this appeal are assessed to defendant/appellee, John T. Guzzardo, Jr.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Because McLin cannot get what he purportedly bargained for, i.e. the exclusive rights contract with the Corporation, it necessarily follows that he is not entitled to the injunctive relief he seeks,

      . We note that McLin, in his petition, did not specifically seek damages for detrimental reli-anee in any of his pleadings, but McLin did allege that he relied on Guzzardo’s acts in securing immovable property and a restaurant facility. Louisiana Code of Civil Procedure article 854 provides that no technical forms of pleading are required. Moreover, LSA-C.CP. article 865 commands us to construe all pleadings so as to do substantial justice. See McClelland v. State Nat. Life Ins., 94-2123 (La.11/18/94), 646 So.2d 309 (per curiam). Accordingly, McLin's claim for detrimental reliance was adequately plead. Additionally, defendants did not object to Guz-zardo addressing the detrimental reliance claim in opposition to his motion for summary judgment, nor to same having been addressed by the trial court.

      . We note that McLin attested that the parties agreed that die price of the franchise would be $15,000.00. The money was not to be exchanged until the parties entered the franchise agreement.