text:
    STATE of Louisiana v. Rico WEBB.
    No. 2013-KK-1681.
    Supreme Court of Louisiana.
    May 7, 2014.

      Public Defender’s Office, Orleans Parish, Colin Reingold, for Applicant.
    Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Jessica M.P. Thornhill, Colin Clark, Steven B. Jones, Assistant Attorneys General, District Attorney’s Office, Orleans Parish, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Kyle Daly, Assistant District Attorneys, for Respondent.
   WEIMER, Justice.

_JjWe granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const, art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.

[2Under longstanding constitutional authorities, on its face, the challenged statute does not restrict the legitimate exercise of the fundamental right to bear arms. Instead, the statute enhances the penalty for possessing illegal drugs while in carrying a firearm. When a defendant carries a firearm while possessing illegal drugs, La. R.S. 14:95(E) is facially constructed such that the possession of a firearm under those circumstances is illicit and is made illicit as a result of defendant’s own illegal activities. Further, the illicit possession of a firearm may be used to enhance the penalty for possessing illegal drugs. Our own jurisprudence, and that of the United States Supreme Court, demonstrates the existence in La. R.S. 14:95(E) of a compelling state interest, which is narrowly tailored to restrict firearm possession by those who possess illegal drugs.

The legislature’s criminalization of the possession of illegal drugs with the illicit possession of a firearm, therefore, passes strict judicial scrutiny. Thus, on its face, there is nothing in La. R.S. 14:95(E) that requires this court to declare that statute to be unconstitutional.

FACTUAL AND PROCEDURAL BACKGROUND

The facts alleged by the state in this case are contained in a New Orleans Police Department report. On September 10, 2012, at 4:40 p.m., the defendant, Rico Webb, was in a car driven by his girlfriend, Brianisha Robinson. Officers Berger and Abram conducted a traffic stop of the vehicle at South Claiborne Avenue and Cleveland Street for an allegedly broken taillight. The officers smelled the faint odor of marijuana when they approached the car, so they asked the occupants to exit the vehicle. After the officers issued Miranda warnings to both occupants, the defendant stated that he had a marijuana “blunt” in his backpack. The defendant removed the blunt from his backpack, which later tested positive for marijuana. The officers then |ssaw a handgun on the driver’s side floorboard. The defendant claimed ownership of the gun. It was determined that the defendant legally purchased the firearm and had the corresponding paperwork. Ms. Robinson was given a traffic citation for the broken taillight and driving without a license and was then released from the scene. However, the defendant was arrested for violating La. R.S. 14:95(E). He has no prior felony criminal convictions and was not arrested for, nor charged with, misdemeanor possession of marijuana.

The defendant filed a motion to quash the bill of information, which was denied, as the district court declined to find La. R.S. 14:95(E) unconstitutional. The court explained that strict scrutiny is essentially a two part test, under which legislation must “(1) ... serve[ ] a compelling state interest, and (2) ... [be] narrowly tailored to serve that compelling interest.” The district court noted the defendant had conceded, in his motion to quash, that La. R.S. 14:95(E) promotes a compelling state interest, namely, public safety.

On appeal, the defendant again urged that he was being charged with an unconstitutional crime. The court of appeal declined to exercise supervisory review over the case and remarked that State v. Draughter, 13-0914 (La.12/10/13), 180 So.3d. 855, was pending before this court. State v. Webb, 13-0759 (La.App. 4 |4Cir. 6/17/13) (unpublished writ action). In Draughter, the district court declared the state’s felon-in-possession of a firearm statute, La. R.S. 14:95.1, was unconstitutional. We reversed, finding the right to bear arms did not extend to Mr. Draughter, who remained under state supervision as a “probationer or. parolee.” Id., 13-0914 at 16, 130 So.3d. at 867. While Draughter remained pending, the defendant in the instant case applied for this court’s supervisory review. Because the newly enacted constitutional amendment has generated substantial litigation, to provide guidance, we granted the defendant’s application to determine the constitutionality of La. R.S. 14:95(E). State v. Webb, 13-1681 (La.11/22/13), 126 So.3d 474.

LAW AND ANALYSIS

The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo. See Draughter, 13-0914 at 4, 130 So.3d. at 859-60, citing City of Bossier City v. Vernon, 12-0078, p. 2 (La.10/16/12), 100 So.3d 301, 303.

Principles of Review for Constitutionality

“Mindful of our civilian mandate, ... we begin [our review of the defendant’s constitutional challenge], as we must, with the language of the [statute] itself.” Quinn v. Louisiana Citizens Property Ins. Corp., 12-0152, p. 11 (La.11/2/12), 118 So.3d 1011, 1018. The challenged statute, La. R.S. 14:95(E), provides as follows:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

15Although there are numerous factors that may bear upon interpreting a statute, as it concerns the defendant’s challenge to whether the statute conforms to the language and purposes of the constitution, the following summary is especially informative: “Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. “The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.” Sensebe v. Canal Indem. Co., 10-0703, pp. 8-9 (La.1/28/11), 58 So.3d 441, 447, quoting Hawkins v. Redmon, 09-2418, p. 9 (La.7/6/10), 42 So.3d 360, 365.

This court’s civilian mandate applies with equal force when interpreting constitutional provisions. Therefore, “|w]e begin, as we must, with the applicable constitutional language.” Louisiana Federation of Teachers v. State, 13-0120, p. 24 (La.5/7/13), 118 So.3d 1033, 1049. As amended effective December 10, 2012, La. Const, art. I, § 11 now provides: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.” See 2012 La. Acts 874, § 1. “When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. “When interpreting constitutional language, the same general rules used in interpreting laws and other written instruments are followed.” Louisiana Federation of Teachers, 13-0120 at 24, 118 So.3d at 1049 (citations omitted).

IfiWhen analyzing a statute under a provision of our constitution to determine whether the statute is constitutional, the following principles apply:

As a general rule, legislative instruments are presumed to be constitutional; therefore, the party challenging the validity of a legislative instrument has the burden of proving its unconstitutionality.
Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Consequently, a party challenging the constitutionality of a legislative instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question. A constitutional limitation on the legislative power may be either express or implied.
Finally, because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so. In other words, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality.

Louisiana Federation of Teachers, 13-0120 at 21-22, 118 So.3d at 1048 (citations omitted).

These principles are general guidelines to aid a court’s review. More specific guidelines may dictate the burden required of a person challenging the constitutionality of legislation, depending on the type of constitutional challenge. Such is the case here, where the defendant concedes that he is bringing a “facial challenge” to the constitutionality of La. R.S. 14:95(E). In Prejean v. Barousse, 12-1177, p. 4 (La.1/29/13), 107 So.3d 569, 571-72, we recently reiterated the following specific guidelines applicable to facial challenges: “To challenge a legislative act as unconstitutional on its face is the most difficult challenge to mount ^successfully, since the challenger must establish that no set of circumstances exist under which the statute would be valid.”

The Defendant’s Facial Constitutional Challenge

Because the right to bear arms is now undeniably a fundamental right as described in La. Const, art. I, § 11, the defendant argues that La. R.S. 14:95(E) must survive the test of “strict scrutiny,” a test which is mentioned, but not defined, in La. Const, art. I, § 11. For purposes of his argument, the defendant essentially concedes he possessed illegal drugs while also possessing a firearm, but contends La. R.S. 14:95(E) cannot survive strict scrutiny.

In his motion to quash, the defendant admitted “it is clear that La. R.S. § 14:95E was passed [by the legislature] in order to promote a compelling government interest, namely that of public safety.” The defendant noted that this court, in State v. Blanchard, 99-3439, p. 3 (La.1/18/01), 776 So.2d 1165,1169-70, had already examined the statute’s legislative intent and found that the statute was enacted to promote public safety interests.

However, in the court of appeal and now in this court, the defendant tries to retreat from his earlier admission that La. R.S. 14:95(E) promotes a compelling governmental interest in public safety — “The State cannot simply invoke talismanic ‘public safety’ language to avoid the scrutiny the voters mandated when approving the Constitutional amendment at issue in this case.” The defendant attempts to blame the state for a dearth of evidence in the record showing a compelling governmental interest: “In this case the state provided no evidentiary basis whatsoever to the trial |scourt. The state provided no studies or testimony to support their [sic] assertion that the state has a compelling interest in further sanctioning legitimate owners of firearms for possessing those weapons with controlled dangerous substances.”

In the district court, the defendant argued that La. R.S. 14:95(E) was not narrowly tailored to promote the admitted compelling governmental interest of public safety. The crux of his argument was that La. R.S. 14:95(E) “criminalizes innocent behavior. Under the statute, the legal possession of a registered firearm is transformed, without discretion, into a felony where that possession occurs in conjunction with any drug infraction, however slight.” In this court, the defendant elaborates upon his argument that La. R.S. 14:95(E) is not narrowly tailored. According to the defendant, because possessing a firearm is unlawful in conjunction with all controlled dangerous substances, a person with a validly prescribed drug could be found in violation of the statute. Finally, the defendant urges that the penalty under La. R.S. 14:95(E) (five years’ imprisonment for a first offense) is excessive.

Applying Strict Scrutiny to the Defendant’s Facial Challenge

Strict scrutiny is the most rigorous test for determining whether a law is constitutional. Laws restricting fundamental rights are subject to strict scrutiny because they are considered to be so essential to the structure of our society, in which citizens enjoy “ordered liberty.” See Sudwischer v. Estate of Hoffpauir, 589 So.2d 474, 478 (La.1991). Setting aside for a moment the technicalities of the strict scrutiny test, if the act of possessing a firearm along while in possession of illegal drugs is so |9essential to the liberties citizens ought to be able to enjoy in an orderly society, then legislation criminalizing the possession of firearms and illegal drugs is unconstitutional. Such is the practical question posed by the defendant’s challenge under La. Const, art. I, § 11.

Returning then to the technical structure of the strict scrutiny test, the district court correctly observed the test is twofold. For a law to survive strict scrutiny, “the government bears the burden of proving the constitutionality ... by showing (1) that the [law] serves a compelling governmental interest, and (2) that the [law] is narrowly tailored to serve that compelling interest.” Draughter, 13-0914 at 8, 130 So.3d at 862, quoting In re Warner, 05-1303, p. 37 (La.4/17/09), 21 So.3d 218, 246.

Although we are not bound to undertake a “compelling state interest” review, we agree with the defendant’s initial argument that La. R.S. 14:95(E) serves the compelling interest of public safety. Indeed, in Blanchard, we observed two compelling safety interests:

The aim of the legislature in enacting [La. R.S. 14:95(E) ] was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade. This 1 instatute was enacted not solely for the protection of police officers ... but also for the protection of the general public.

State v. Blanchard, 99-3439 at 3, 776 So.2d at 1169-70, citing State v. Blanchard, 99-599 (La.App.5 Cir.11/10/99), 749 So.2d 19, 25. This court is not alone in recognizing the connection between drug use/trafficking and gun violence. The United States Supreme Court noted that in two major cities, over half of all murders “were drug related.” Smith v. U.S., 508 U.S. 223, 240, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). Moreover, the Court observed: “no doubt ... drugs and guns are a dangerous combination.” Id.

Based on legislature’s intent “to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade,” and the connection between illegal drugs and violence, we find there is a compelling state interest in restricting the simultaneous possession of illegal drugs and firearms.

Not only does the Supreme Court’s observation about the connection between illegal drugs and firearms support the existence in La. R.S. 14:95(E) of a compelling public safety interest, but the Smith Court’s observations also refute some of the defendant’s specific arguments that there is no public safety concern.

According to the defendant, the simultaneous possession of an illegal drug and a firearm is an innocuous coincidence. The defendant also argues that in no way does possessing a firearm by an alleged consumer of illegal drugs, such as himself, promote drug trafficking. Apparently, the defendant would have this court overlook the obvious fact that because possessing marijuana is unlawful, the defendant must have employed some unlawful means to obtain the drug. The defendant would also have this court hold that the firearm must actually be used in some manner in order Infer La. R.S. 14:95(E) to promote a compelling governmental interest. These arguments are unavailing, as the Court in Smith directly spoke to how possession of a firearm may be employed in drug transactions.

In Smith, 508 U.S. at 240, 113 S.Ct. 2050, the defendant claimed he traded a firearm for illegal drugs and the mere trade of a firearm did not equate to the “use” of a firearm, as prohibited by 18 U.S.C. § 924(c)(1). Rejecting this argument, the Court ruled: “The fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capacity.” Id. The Court explained: “as experience demonstrates, [a firearm] can be converted instantaneously” inasmuch as a firearm can interchangeably serve as either “cannon” or “currency” for the illegal drug trade. Id. In other words, a firearm can be an instrumentality to promote drug trafficking by violence or threat of violence. Or, alternatively, because of the capabilities to misuse a firearm by aiding drug trafficking, a firearm is highly desirable by buyers and sellers of illegal drugs. In either case, mindful of the Court’s observations in Smith, we reject the defendant’s argument that we should treat the possession of a firearm and an illegal drug as some innocuous coincidence. Reflected in La. R.S. 14:95(E) is a compelling state interest in public safety by preventing drug trafficking.

Having found La. R.S. 14:95(E) promotes a compelling state interest, we turn to the second aspect of strict scrutiny. We examine whether La. R.S. 14:95(E) “is precisely drawn or narrowly tailored to serve that compelling interest.” In re Warner, 05-1303 at 47, 21 So.3d at 253. “As these terms imply, this is an examination of the tightness of fit between the regulation and the state interest.” Id. | ^The termed “narrowly tailored” inquiry is designed to insure the government “eause[s] the least interference possible with the right” at issue. Copeland v. Copeland, 07-0177, p. 10 (La.10/16/07), 966 So.2d 1040,1047.

The fit between the state’s public safety interests — associated with preventing drug trafficking — and citizens’ gun rights, is not an issue of first impression for this court. In Blanchard, 99-3439 at 1, 776 So.2d at 1167, the defendant challenged the constitutionality of La. R.S. 14:95(E) as applied to his conviction for possessing marijuana and a pistol in his home. The marijuana was located under a sofa cushion and in an ashtray, while the pistol was located in a kitchen cabinet. Id., 99-3439 at 1, 776 So.2d at 1167. The defendant argued La. R.S. 14:95(E) unconstitutionally abridged his right to bear arms because he did not “actual[lyj” possess the firearm at the time of his arrest in his home. Id., 99-3439 at 2, 4, 776 So.2d at 1168-69. Instead, according to the defendant, he merely “constructively” possessed the firearm. Id.

In Blanchard this court held that the right to bear arms was not unconstitutionally abridged when a defendant possessed illegal drugs and either actually or constructively possessed a firearm. This court indicated, however, that the right to bear arms would not be unconstitutionally infringed in situations of “constructive” possession, under the limited circumstances where the state could “show a nexus between the firearm and the drugs.” Id., 99-3439 at 1, 776 So.2d at 1167. In cases of “constructive” possession of a firearm, this court recognized that limiting the reach of La. R.S. 14:95(E) to circumstances where a nexus between the firearm and the drugs would “eliminate[ ] the risk that the statute will reach 113noncriminal or constitutionally protected activity.” Thus, the law is already well-settled that La. R.S. 14:95(E) does not apply to every situation of possessing controlled substance and a firearm. The limitations placed upon cases of “constructive” possession are evidence that La. R.S. 14:95(E) is narrowly tailored. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 628, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995), quoting Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (noting that the test for strict scrutiny can be satisfied “based solely on history, consensus, and ‘simple common sense’ ”).

There is also a somewhat unique feature of La. R.S. 14:95(E) that demonstrates the law’s narrow tailoring. As defendant accurately concedes in his brief, this unique feature is that the element of possessing a firearm is not a “restriction” upon a fundament right in the typical sense. Instead, La. R.S. 14:95(E) operates such that the element of “firearm possession is being used by the state as an enhancing factor ” for the defendant’s “possessing a misdemeanor quantity of marijuana.” (Emphasis added.) (Br. p. 8)

Significant to the issue of the narrow tailoring of a law, the United States Supreme Court has again provided guidance relative to the effect of the “enhancing factor” described by the defendant. See Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2484, 69 L.Ed.2d 118 (1981). The Court found that a law passes constitutional muster where the law is structured such 114that a person’s exercise of a fundamental right is a factor used to enhance the sentence for criminal activity. As we shall see, for purposes of constitutional analysis, an enhancing factor exists when an element of a law is in itself a fundamental right, but that right is exercised in connection with otherwise illegal conduct.

In Helms, the Court was faced with a similar constitutional challenge. The Helms Court observed Georgia generally criminalized parental abandonment of a child as a misdemeanor. However, if the parent, during the course of child abandonment, crossed state lines, Georgia criminalized the same abandonment as a felony. Helms, 452 U.S. at 414, 101 S.Ct. 2484. Crossing state lines, the Court pointed out, is undeniably a fundamental right and the restriction of that right traditionally failed strict scrutiny. See Id. at 420, 101 S.Ct. 2434. The Court did, however, rule that notwithstanding “the fundamental nature of this right [to travel], there nonetheless are situations in which a State may prevent a citizen from leaving.” Id. at 419, 101 S.Ct. 2434.

Instead of failing strict scrutiny (as a restriction of fundamental rights often does) and, importantly for the instant case, the Court found that “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.” Id. at 420, 101 S.Ct. 2434. The Court noted Georgia’s law did not separately criminalize the right to interstate travel or otherwise restrict that right. Id. at 422, 101 S.Ct. 2434. In terms of constitutional analysis, the Court explained: “[T]he question is whether the State may enhance the misdemeanor of child abandonment to a felony if a resident offender leaves the state after committing the offense.” Id. at 422, 101 S.Ct. 2434. (Emphasis added.) The Court answered that question affirmatively and ruled Georgia’s law was constitutional, as follows: “[Although a simple penalty for leaving a State is plainly impermissible, if departure aggravates the consequences of conduct that is otherwise punishable, the State may [ 1fitreat the entire sequence of events, from the initial offense to departure from the State, as more serious than its separate components.” Id. at 422-23, 101 S.Ct. 2434 (footnote omitted).

Addressing the fit between enhancing the penalty for child abandonment and the restriction upon the fundamental right to interstate travel, the Helms Court ruled the law’s purpose was “to cause parents to support their children,” and “this purpose [wa]s served by making abandonment within the State followed by departure a more serious offense than mere abandonment.” The Court concluded: “We therefore are unwilling to accept the suggestion that this enhancement is an impermissible infringement of appellee’s constitutional right to travel.” Id. at 423, 101 S.Ct. 2434.

In the instant case, the possession of a firearm is used as an enhancement to the crime of possessing marijuana. This is illustrated by the fact the penalty for simple possession of marijuana, first offense, is a fine of “not more than five hundred dollars, imprison[ment] ... for not more than six months, or both.” La. R.S. 40:966(E). Because the penalty does not call for hard labor, simple possession of marijuana is a misdemeanor offense. See La. R.S. 14:2(A)(4). In contrast, the penalty under the challenged statute, La. R.S. 14:95(E), for possessing marijuana and a firearm is a felony, with a penalty for a first time offense of a fine of “not more than ten thousand dollars and imprison[ment] at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.” Like the enhancement found constitutionally permissible in Helms, 452 U.S. at 422, 101 S.Ct. 2434, a crime that would otherwise be a misdemeanor (simple possession of marijuana) is enhanced to a felony under La. R.S. 14:95(E).

Similar to the Court in Helms, we find it is constitutionally permissible for the state to treat the entirety of possessing illegal drugs and a firearm as a more serious crime than possessing illegal drugs alone. See Helms, 452 U.S. at 422-23, 101 S.Ct. 2434.

11fiBecause the element of firearm possession in La. R.S. 14:95(E) is more in the nature of an “enhancement” than a restriction upon the legitimate possession of firearms and the act of possessing illegal drugs “qualiffies]” a person’s ability to enjoy a fundamental right, we hold the statute “is precisely drawn or narrowly tailored to serve” the compelling interest of protecting the public from the dangers inherent in the combination of illegal drugs and firearms. See In re Warner, 05-1303 at 47, 21 So.3d at 253. Additionally, because not every instance of firearm possession is an enhancement of criminal conduct, such is further reason for us to find La. R.S. 14:95(E) “causes the least interference possible” to the right to keep and bear arms. See Copeland, 07-0177 at 10, 966 So.2d at 1047.

Mindful that the defendant has brought a facial challenge, we reject his argument that La. 14:95(E) is not narrowly tailored because, according to the defendant, the statute criminalizes all controlled dangerous substances. Where, as here, a court finds a single set of facts by which a statute is constitutional, a facial challenge must fail. See Draughter, 13-0914 at 14, 130 So.3d at 866 (noting “[A] person may not challenge [a] statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court.”); see also State v. Brown, 94-1290 (La.01/17/95), 648 So.2d 872, 875 (a party bringing a facial challenge “must establish that no set of circumstances exists under which the Act would be valid”). Here, we have found the charges against the defendant pursuant to La. 14:95(E) for possessing a firearm and marijuana, are valid inasmuch as the charges are supported by purposes which survive strict scrutiny. Under the [^jurisprudence just cited, it is not this court’s role to adjudicate the constitutionality of hypothetical charges brought against anyone else under other hypothetical circumstances.

CONCLUSION

In Draughter, we recently concluded that the right to keep and bear arms was not unconstitutionally infringed when that right was entirely denied to state prisoners and parolees “still under the state’s supervision.” Draughter, 13-0914 at 16, 130 So.3d at 867. Here, we conclude there is no unconstitutional deprivation of that right when a person actively engages in unlawful conduct by possessing illegal drugs while in possession of a firearm.

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420, 101 S.Ct. 2434 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law | ^constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com’n v. Office of Motor Vehicles, Dept, of Public Safety and Corrections of State, 97-2233 (La.4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

AFFIRMED AND REMANDED.

      . The defendant’s motion to quash indicates: As an initial matter, it is clear that La. R.S. § 14:95E was passed in order to promote a compelling government interest, namely that of public safety. The Louisiana Supreme Court characterized the interest in 2001, stating:
      The aim of the legislature in enacting [La. R.S. 14:95(E) ] was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade.

        State v. Blanchard, 99-3439 (La.1/18/01), 776 So.2d 1165, 1168-69.

      . See Draughter, 13-0914 at 10, 130 So.3d. at 863-64, for a discussion of the salient dates regarding the amendment of La. Const, art. I, § 11. Under Draughter, the defendant here has standing to bring a challenge to pre-revision conduct because the defendant’s case is "not yet final.” Id., 13-0914 at 11, 130 So.3d at 864.

      . In Draughter, 13-0914 at 10, 130 So.3d. at 863, we explained, "we conclude the right to bear arms was always fundamental” under the Louisiana Constitution of 1974 and noted that the amendment of La. Const, art. 1, § 11 did not, therefore, effect a change in the nature of the right by adding the term "fundamental right” to describe the right to bear arms.

      . ‘‘[FJundamental rights ... are 'implicit in the concept of ordered liberty' such that 'neither liberty nor justice would exist if [they] were sacrificed.’ ” Sudwischer, 589 So.2d at 478, citing Bowers v. Hardwick, 478 U.S. 186, 192-93, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled on other grounds in Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and Palko v. Connecticut, 302 U.S. 319, 324-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . As amended, La. Const, art. I, § 11 specifies laws restricting the "right ... to keep and bear arms” are "subject[ed] to strict scrutiny.” Although the constitutional provision does not define "strict scrutiny,” it is a well-established term of art in law. We therefore draw from the jurisprudence, just as the district court did, in deriving the meaning of "strict scrutiny.”

      . As noted earlier, the defendant admitted in his motion to quash that public safety was the legislature’s intended purpose behind La. R.S. 14:95(E) and such purpose amounted to a compelling state interest. This admission removed the question of a state interest as an issue for the district court to decide. However, for completeness of our de novo review of the constitutionality of La. R.S. 14:95(E), we do not merely accept the substance of defendant's admission, but guided by prevailing jurisprudence, we test whether a compelling state interest truly exists. See, e.g., Draughter, 13-0914 at 9, 130 So.3d at 862-63 (considering an argument against retroactively applying La. Const, art. I, § 11, raised for the first time on appeal by the state, we found "the state's possible waiver of this issue is subsumed by the requirement that we consider de novo the proper meaning” of a challenged firearm statute). We emphatically reject, however, the defendant’s argument that the state failed to produce necessary evidence in the district court to support the existence of a compelling state interest, when the defendant had admitted the existence of a compelling state interest.

      . See Blanchard, 99-3439 at 3, 776 So.2d at 1169-1170.

      . See Smith, 508 U.S. at 240, 113 S.Ct. 2050.

      . The connection between firearm possession and illegal drug trafficking, is also reflected in the United States Sentencing' Commission Guidelines, § 2D1.1(b)(1) (recommending an increased sentence for drug-trafficking offenses "[i]f a dangerous weapon (including a firearm) was possessed”).

      . In cases of "constructive” possession of a firearm, this court recognized the following restrictions would "eliminate[] the risk that the statute w[ould] reach noncriminal or constitutionally protected activity.”
      Guided by ... decisions from other states, we find that under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more than mere possession of the firearm.
      It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.

        Blanchard, 99-3439 at 9, 776 So.2d at 1173.

      . See Helms, 452 U.S. at 420, 422-23, 101 S.Ct. 2434.

      . See Blanchard, 99-3439 at 9, 776 So.2d at 1173 (describing instances where constructive possession of a firearm has no nexus to illegal drugs).

      .Similarly, and for completeness of responding to the defendant's arguments, we decline the defendant’s invitation to adjudicate the penalty under La. 14:95(E) as constitutionally excessive. The defendant has not been tried, not been convicted, and not been sentenced. Thus, any question as to the constitutionality of the penalty provisions of La. 14:95(E) is presently premature.


source: Caselaw Access Project

author: PER CURIAM. JOHNSON, Chief Justice,

license: Public Domain

text:
    STATE of Louisiana v. Samuel MACK, Jr.
    No. 2013-K-1311.
    Supreme Court of Louisiana.
    May 7, 2014.

      Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, District Attorney’s Office, Orleans Parish, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Kyle C. Daly, Assistant District Attorneys, for Applicant.
    Samuel Mack, H2 Law, LLC, Justin Caine Harrell, New Orleans, LA, for Respondent.
   PER CURIAM.

I,We granted the state’s application to consider the Fourth Circuit’s split-panel decision reversing defendant’s conviction and sentence for second degree murder in violation of La.R.S. 14:30.1. State v. Mack, 12-0625 (La.App. 4 Cir. 5/10/13) (unpub’d). For the reasons that follow, the court of appeal’s decision is reversed and defendant’s conviction and sentence are reinstated. The case is remanded to the court of appeal to address defendant’s remaining claims of trial error raised below and pre-termitted on original appeal.

A jury convicted defendant as a principal in the murder of Mark Westbrook, victim of an apparently gratuitous two-shot execution committed by Ortiz Jackson on the night of July 10, 2008. Based primarily on the circumstantial evidence provided by cellular phone records from Sprint and Verizon tying the cell numbers of defendant and Jackson together with the number of an “unknown” person, the state argued, and jurors ultimately concluded, that defendant, who had intervened in an argument between Westbrook and Rock McKinney, one the victim’s friends, |2on a night of drinking in Lucky’s Lounge on Chef Menteur Highway at its intersection with Laine Avenue, got on his cell phone and orchestrated Westbrook’s demise, after exchanging words with the intoxicated victim outside of Lucky’s and warning him, “You know, I’m Sam Mack. You know what I could have done to you.”

To place the Sprint and Verizon cellular phone records in the context of the immediate circumstances surrounding the shooting, the state presented the testimony of two eyewitnesses, each of whom positively identified Ortiz Jackson as the shooter, but who also described the series of events leading to the victim’s death. James Bradley, a close acquaintance of the victim and a patron of Lucky’s Lounge that night, testified he arrived at the bar between 8:30 and 9:00 p.m. and had several drinks with the victim. Later, Bradley went outside and was told by Rock McKinney that he, McKinney, had been arguing with West-brook. Bradley encouraged McKinney to speak with the victim, because Bradley knew the two men were friends. McKinney left to walk toward the victim, and defendant followed him, while Bradley, Edwin Nelson (another acquaintance of Bradley’s), and some other individuals walked behind defendant.

Bradley testified that Westbrook turned and asked the group why they were following him and McKinney explained he only wanted to talk to the victim. Bradley overheard the victim say to defendant, “I know what you’re about. I’m about that too,” to which defendant replied, “I ain’t got no beef with you, Lil’ brother.” Bradley then saw defendant begin walking away towards Lucky’s, and while doing so, defendant opened his phone and started dialing or texting. Bradley did not see defendant again.

After about 20 minutes, and the victim had calmed down, all of those remaining decided to leave. Before doing so, the victim and McKinney apologized |sto each other. Another acquaintance, Terekethia Calloway, told the victim he needed to stop drinking so much, and also gave him a hug. Bradley then heard a shot, and turned to see Jackson put a gun to the back of the victim’s head and fire a second shot. The victim fell to the ground, and Jackson calmly walked away.

Bradley testified defendant did not know any of his acquaintances, and did not become involved with anyone until defendant interjected himself into the argument between McKinney and the victim. Bradley initially said he did not hear all of the words exchanged between defendant and victim, but knew the victim was being “hotheaded.” Bradley also did not initially tell police he saw defendant use his phone immediately after his exchange of words with the victim.

Edwin Nelson, a lifelong friend of both Bradley and the victim, testified he knew McKinney and Calloway from the neighborhood. He also was familiar with Jackson and defendant, and had seen them together “a couple of times.” Nelson testified he saw the victim and McKinney get into an argument over a woman. Though the argument was heated, there was no physical interaction. The victim left the bar, and Nelson, McKinney, Bradley, and defendant followed him outside. Nelson testified that at some point, defendant interjected himself into the argument. Nelson heard defendant say, “You know, I’m Sam Mack. You know what I could have done to you.” Defendant also made threatening gestures of an unspecified nature. Nelson testified that after defendant admonished the victim, he stepped back, retrieved a cell phone, and began dialing or texting. Defendant walked away and Nelson, like Bradley, did not see him again that evening.

Nelson’s description of the events that followed tracked that of Bradley.' McKinney and the victim made up and were preparing to leave. Nelson saw Jackson walk up to the victim and shoot him twice. Nelson, who had been sitting nearby in his car, sped off. Later, Nelson identified defendant as the naan who had | /threatened” the victim. He, like Bradley, said in his initial statement to police defendant was attempting to break up the conflict between the victim and McKinney. Nelson claimed he did not initially mention to police that defendant had threatened the victim. Nelson stated he was not thinking clearly during his first statement when he said defendant was there to stop the fight, or that the victim was the one who had threatening words with defendant. Nelson also neglected to mention to police during his initial statement defendant’s cell phone use 30-45 minutes before the shooting. Nelson did not recall defendant making the comment to the victim that “I ain’t got no beef with you brother.”

Nelson informed police of the threats he heard defendant make when presented with the photo array in which he identified Jackson as the shooter. Nelson told police then that, “Sam Mack butted into the argument and he threatened [the victim].” Nelson was of the opinion that defendant was “like back-up” for McKinney, though he did not think McKinney and defendant were actually going to fight the victim. In Nelson’s view, defendant first spoke with McKinney, prompting a response from the victim. Nelson testified he felt defendant did not go outside with the intention of being a peacemaker, and that after the conversation between defendant and the victim became heated, defendant informed Westbrook, “You know who I am. You know what I can have done to you.” The conversation only lasted “two or three minutes.” Nelson also testified he was unaware of any conflict between defendant and the victim while everyone was still in the bar.

New Orleans Police Officer Detective Kevin Burns investigated the homicide and testified at trial. In his initial interviews with witnesses, Burns learned defendant had made threats to the victim, specifically, “Do you know who the fuck I am,” and “What I can have done to you.” Bradley and Nelson identified the shooter as Jackson, who was later arrested and found to be in possession of the |smurder weapon and a cell phone. Jackson’s cell phone had defendant’s number saved in it.

Officer Burns conceded during cross-examination that Bradley had said nothing in his recorded statement about threatening comments made by defendant, but testified that he must have inadvertently attributed to Bradley Nelson’s later statement regarding a threat. Burns also conceded Nelson told him that defendant was attempting to break up the fight, and that the victim exchanged words with the defendant as a result. Burns confirmed that Nelson said after the argument between defendant and the victim, defendant stepped back, made a call, began speaking with someone, and left. In contrast, Burns testified Bradley told him defendant merely dialed a number before leaving. Burns indicated Ronald Ruffin, the other occupant of the car Nelson drove away in, had identified defendant, instead of Jackson, as the shooter in a photo line-up. According to the detective, Ruffin informed him that as he drove away from the scene with Nelson, Westbook called him “and said that Sam Mack was trying to kill him.” Burns emphasized that Ruf-fin did not claim to have witnessed the shooting but “made the identification solely on what he was told by the victim minutes before he was killed.”

On re-direct, Burns confirmed that in his report he stated Bradley said defendant made the statements, “Do you know who the fuck I am,” and “Do you know what the fuck I can do to you?” Burns clarified, however, that the report of the threatening statements could have been made by either Nelson or Bradley, but that they were given to him by a witness on the night of the murder.

The state presented the cellular records of phone calls made between defendant, “Unknown,” and Jackson. The first, 504-307-0046 (“unknown”) belonged to an unidentified subscriber. The second, 504-377-3431 (“Jackson”) 1 ^belonged to the shooter, Ortiz Jackson. Finally, 504-220-6855 (“Defendant”) was shown to belong to defendant. Phone records pertaining to those three numbers covering the period between July 5, 2008 and July 14, 2008 were entered into evidence and were at the heart of the state’s case. The order of phone calls placed around the time of the murder was as follows:

21:13:57: unknown calls defendant (30 seconds)
22:09:10: unknown calls defendant (5 seconds)
22:09:22: unknown calls defendant (89 seconds)
22:55:20: unknown calls defendant (73 seconds)
23:31:26: defendant calls unknown (26 seconds)
23:32:22: unknown calls defendant (27 seconds)
23:33:13: unknown calls Jackson (118 seconds)
23:36.27: Jackson calls defendant voice mail (16 seconds)
, 23:36:53: Jackson calls defendant (22 seconds)
23:54: Officers dispatched to the scene of the shooting.
23:58:33: Jackson calls ■ defendant (41 seconds)
00:00:05: defendant calls Jackson (14 seconds)
00:01:28: Jackson calls defendant (148 seconds)
00:05:55: Jackson calls defendant (29 seconds)
00:06:29: unknown calls defendant’s voice mail (29 seconds)
00:07:21: Jackson calls defendant (168 seconds)
00:14:21: Jackson calls defendant (128 seconds)
00:23:45: Jackson calls defendant (22 seconds)
00:24:30: Jackson calls defendant (70 seconds)
00:26:08: Jackson calls defendant (518 seconds)
02:40:01: defendant calls unknown (88 seconds)

The documentary evidence thus revealed that a total of 12 calls took place between defendant and Jackson in the hours before and after the shooting. The state also presented ample evidence of numerous phone calls between defendant and Jackson in the days before and after the shooting, in addition to calls between Jackson and “Unknown.”

On appeal, the Fourth Circuit addressed the state’s contention that defendant threatened the victim, was seen using- a cell phone, and that the victim died shortly after a series of phone calls between defendant, an unknown person, and Jackson. Defendant argued because the state could not prove the content of the phone calls 17made -to Jackson and the unknown party before the shooting, the state could not satisfy its burden of proof regarding any specific intent to murder the ■ victim. Finding the state’s case rested wholly on circumstantial evidence, the majority reasoned that, given Sprint and Verizon records indicating that calls linking the cell numbers of defendant’s, Jackson’s, and “unknown’s” phones on July 9, 2008 and in the hours well before the late-evening murder of Westbrook at Lucky’s, “the State did not exclude that another logical inference, other than to procure murder, could be drawn from these telephone calls; namely, that the defendant may have been returning the phone call of the unknown caller and/or that these calls were to discuss the business that pre-existed among them prior to defendant’s interjection of himself into the altercation between the victim and Rock McKinney.” Mack, 12-0625 at 19. The majority felt compelled to reach that conclusion because the state had failed to produce any evidence that:

(1) Defined the relationship among defendant, the unknown caller, and Jackson, so as to explain why Jackson would shoot the victim at defendant’s be[hest]; (2) failed to identify the unknown caller so as to clarify why he would act as an intermediary between Jackson and defendant in arranging the victim’s murder; (3) failed to show that defendant made any direct calls to Jackson to procure the victim’s murder; and (4) most importantly, failed to document the substance of any conversation among defendant, Jackson, and the unknown caller. Id.

Dissenting, Judge Lobrano noted “what would be an extraordinary coincidence if it was not all interrelated — Ortiz Jackson’s otherwise unexplained arrival on the scene within twenty minutes of the last phone call between the two cell phones and his otherwise unexplained brutal execution of the victim within that same twenty minute period.”- Mack, 12-0626 at 1 (Lobrano, J., dissenting). Unwilling to subscribe to that extraordinary coincidence, Judge Lo-brano concluded that “[vjiewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant 18communicated with Ortiz Jackson with the specific intent to procure Ortiz Jackson to shoot the victim and to kill or inflict great bodily harm upon him.” Id.

We agree with Judge Lobrano. Underlying the controversy between the state and defendant in the present case is the question of how much deference a reviewing court in Louisiana must give to the jury’s verdict in a ease involving primarily or exclusively circumstantial evidence. In Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992), the Supreme Court emphasized just how narrowly the Court intended its seminal decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to apply:

In Jackson, we emphasized repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review. We said that ‘all of the evidence is to be considered in the light most favorable to the prosecution,’ 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in the original); that the prosecution need not affirmatively ‘rule out every hypothesis except that of guilt,’ id., at 326, 99 S.Ct. at 2792; and that a reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution,’ ibid.

When this Court first implemented the Jackson standard, we indicated at one time that Louisiana’s traditional rule with respect to circumstantial evidence as incorporated into La.R.S. 15:438, that the evidence must negate every reasonable hypothesis of innocence, might change the terms of analysis and even add a second level of review. See e.g., State v. Shapiro, 431 So.2d 372, 388 (La.1982) (on reh’g) (“Assuming without deciding that the due process clause of the federal constitution as espoused in Jackson v. Virginia is not offended by a state conviction supported-by the identical evidence in this record, that constitutional consideration is irrelevant to our disposition of this case. We are constrained in a case of this sort by Louisiana law of long standing, La.R.S. 15:438, to decide as a matter of law whether every reasonable hypothesis of innocence has been | nexcluded, assuming every fact proven that the evidence tends to prove.”); State v. Williams, 423 So.2d 1048, 1052 (“The Louisiana legislature has, through this statute, provided greater protection against erroneous convictions based on circumstantial evidence than is provided by the Fourteenth Amendment. There is a possibility that the quality of evidence supporting a conviction would satisfy Jackson v. Virginia, [] but would not satisfy the requirement of R.S. 15:438.”). We subsequently clarified, however, that “[ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden.” State v. Wright, 445 So.2d 1198, 1201 (La.1984). Thus, the rule of La.R.S. 15:438 does not supplant Jackson’s objective test of evidentiary sufficiency from the point of view of a hypothetical rational trier of fact, although it does “provide[ ] an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt.” Wright, 445 So.2d at 1201.

To preserve the role of the fact finder, ie., to accord the deference demanded by Jackson, this Court has further subscribed to the general principle in cases involving circumstantial evidence that when the- fact finder at trial reasonably rejects the hypothesis of innocence advanced by the defendant, “that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). A reasonable alternative hypothesis is not one “which could explain the events in an exculpatory fashion,” but one that “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” Id. (quoting Jackson). Thus, in all cases, the Jackson standard does not provide a reviewing 1 incourt with a vehicle for substituting its appreciation of what the evidence has or has not proved for that of the.fact finder. State v. Pig-ford, 05-0477,-p. 6 (La.2/22/06), 922 So.2d 517, 521; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165, 1166. A reviewing court may impinge on the “fact finder’s discretion ... only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305,1310 (La.1988).

In the present case, the state relied on direct evidence of the threat made by defendant to the victim 20 minutes before Westbrook died and circumstantial evidence offered by the web of cell phone calls among defendant, Ortiz Jackson, and “unknown,” as twin buttresses of its theory that defendant had “concerned” himself in Westbrook’s murder. R.S. 14:24 (“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, are principals.”). Defense counsel, however, asked jurors to consider how defendant, the “peacemaker” in the dispute between Westbrook and Rock McKinney, who then walked away from the confrontation with the belligerent Westbrook after informing the victim he had “no beef’ with him, then became in the state’s theory the “undertaker” in the call placed by Jackson to defendant at 11:36 p.m., less than 30 seconds long, the last call before West-brook’s demise nearly 20 minutes later. It was not reasonable, counsel argued, to believe that defendant could have explained the situation and identified the victim in sufficient detail that Jackson could simply walk up and fire two shots into the intended target approximately 20 minutes later. It was far more reasonable, in counsel’s view, that defendant simply informed Jackson he had intervened in a fight and was walking away from another one, or to suppose that Westbrook may have been killed by some unknown person |n satisfying a grudge by calling Jackson to say Westbrook was “wasted out of his mind, he’s almost defenseless like right now, you can kill him.”

But jurors had heard of defendant’s scarcely veiled threat to Westbrook and had before them the cellular phone records documenting that at 10:55 p.m., “unknown” called defendant and spoke to him for 73 seconds, that defendant then called “unknown” at 11:31 p.m. (26 seconds), “unknown” called defendant back at 11:32 p.m. (27 seconds) and then called Jackson at 11:33 p.m. (118 seconds), after which Jackson then called defendant at- 11:36 (16-second voice mail) and again immediately at 11:36 (22 seconds). Reasonable jurors could rationally find that the three men had sufficient time to discuss the situation, identify the victim, and orchestrate his demise, if they were so inclined, even if jurors were not willing to speculate with the state that defendant may have met personally with Jackson in the 20 minute interval between, their last call and the victim’s murder. The phones had fallen silent in that 20 minute interval but the calls resumed in a flurry within four minutes of Westbrook’s murder.

Jurors therefore had an evidentiary basis for rationally rejecting the primary hypothesis of innocence advanced by the defense and the alternative hypothesis as well, for which there existed absolutely no evidence, that someone else recruited Ortiz Jackson to take advantage of the situation and to murder the intoxicated Westbrook. Those hypotheses therefore failed, and the pertinent question for the court of appeal was thus whether the various alternative hypotheses advanced by defendant on appeal, and in this Court, did not simply offer a possible exculpatory explanation but were so reasonable that rational jurors would necessarily have looked past Judge Lobrano’s “extraordinary coincidence” if all of the calls were not interrelated and found a reasonable doubt of defendant’s guilt. Among those alternatives is the possibility that Jackson and Westbrook had a bitter dispute- of |iatheir own and that Jackson settled the score on that night after receiving word of Westbrook’s whereabouts from defendant, who may have, for all that can ever be known, instructed Jackson not to harm the victim.

The nature of the relationship shared by defendant, Jackson, and “unknown” is not evident from the record but they were clearly entangled in the web of calls 20 minutes before the Westbrook shooting and within four minutes thereafter. It was possible, as defendant argues and as the Fourth Circuit majority came to agree, that Jackson simply called defendant at 11:58 p.m. to continue their conversations earlier that day and in the preceding day, as also documented by the Sprint and Verizon records. But it was undisputed that Jackson killed Westbrook. Jurors heard the same timeline and saw the same listing of the Sprint and Verizon records. They implicitly found that, even if possible, it was not probable that Jackson would call defendant about unrelated matters only four minutes after gunning down the victim in a public place. It was possible that Jackson simply reported that he had settled the score of his own with Westbrook but not probable, given evidence of defendant’s scarcely veiled threat to Westbrook underscoring that he was Sam Mack and capable of orchestrating exactly what would happen 20 minutes later, words which, according to Ronald Ruffin’s statement to Detective Burns, Westbrook understood as a direct threat on his life. The trial court admitted the detective’s testimony in that regard over defense counsel’s objection (urged in an unrecorded bench conference) but review of the sufficiency of the evidence takes into account all of the evidence introduced at trial, inadmissible as well as admissible. State v. Hearold, 603 So.2d 731, 734 (La.1992). Counsel in any event elicited the detective’s testimony on cross-examination that he gave the same interpretation to defendant’s words as Westbrook. “I think it means,” the officer testified, “I would have you killed.” Rational jurors could find from Nelson’s 11stestimony that those words, and not the statement overheard by Bradley, “I ain’t got no beef with you, Lil’ Bro,” were the last defendant spoke to Westbrook before he got on his cell phone and walked away.

In the present case, the state’s theory of the prosecution was consistent overall with the evidence introduced at trial, while the defense hypotheses of innocence appeared comparatively remote and for the most part lacking in any evidentiary basis. According the trier of fact’s resolution of conflicting inferences or hypotheses the deference that we must, and when considered in the light most favorable to the prosecution, the evidence appears sufficient to convince a rational trier of fact beyond a reasonable doubt defendant was “concerned” in Westbrook’s murder. Cf. State v. Anthony, 98-0406, p. 13 (La.4/11/00), 776 So.2d 376, 386 (“[C]on-trary to defendant’s position implying that if he did not pull the trigger, then he cannot be sentenced to death, the State is not required to show that defendant actually pulled the trigger. Instead, to successfully carry its burden, the State must prove that defendant acted in concert with his co-perpetrators, that defendant had the specific intent to kill, and that one of the aggravating elements enumerated in La. Rev.Stat. 14:30 was present.”).

In reaching the contrary conclusion, the Fourth Circuit placed the greatest weight on the state’s failure to prove the content of any of the phone calls and defendant called the court of appeal’s attention to United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982), for the proposition that standing alone, telephone calls are insufficient to prove the existence of a conspiracy unless the government identifies the participants in the calls and proves the content of the conversations. But in the present case, which involves Louisiana’s law with respect to principals and not federal conspiracy law, the participants in the cell phone calls were clearly identified. While the content of the calls was not proved directly, the calls were 114not the only evidence in the case, given defendant’s threat to Westbrook 20 minutes before he died. Notably, in United States v. Williams, 264 F.3d 561, 574 (5th Cir.2001), in which the government identified the participants in the unrecorded conversations charted in a manner similar to the present case, “[e]vi-dence that telephone calls were made between phones owned by Defendant and other alleged conspirators, at times consistent with the events alleged to be part of the conspiracy, makes the existence of the conspiracy, and Defendant’s participation in it, more likely.” Cf United States v. Powers, 168 F.3d 741, 746 (5th Cir.1999) (court found meritless claim government must not only prove that the calls alleged in wire fraud indictment were made between defendants, but also in those particular conversations they discussed the unlawful activity).

Consequently, the court of appeal erred in vacating defendant’s conviction for second degree murder on the basis the state failed to present evidence sufficient to sustain the conviction. Therefore, the conviction and sentence are reinstated, and the court of appeal is directed to address defendant’s remaining claims on the merits on remand of the case.

COURT OF APPEAL DECISION REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED

JOHNSON, Chief Justice, dissents and assigns reasons.

JOHNSON, Chief Justice,

dissents and assigns reasons.

IU respectfully dissent. In my view, this case rests upon circumstantial evidence that is insufficient as a matter of law to convict the defendant, Samuel Mack, Jr. I would affirm the ruling of the Fourth Circuit.

It is long established that where circumstantial evidence forms the basis of a conviction, the circumstances must be so clearly proven that they point not merely to the possibility or probability of guilt, but to the moral certainty of guilt. Louisiana, under La.R.S. 15:438, provides greater protection against erroneous convictions based on circumstantial evidence than is provided by the Fourteenth Amendment. When a case rests entirely on circumstantial evidence, La.R.S. 15:488 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” In this case, there is no direct evidence to prove that the defendant participated in the killing of the victim. Furthermore, the State does not exclude every reasonable hypothesis of innocence for a rational juror to find the defendant guilty beyond a reasonable doubt.

The majority relies upon a series of telephone calls made on the day of the shooting between the defendant, an unknown caller, and Jackson, as its proof that |2the defendant procured Jackson to murder the victim. However, there is a large absence of evidence, regarding the telephone calls and the identity of the parties, which show the weakness of the circumstantial evidence in this case. The majority concedes that the nature of the relationship between the defendant, the unknown caller, and Jackson was never established, yet later states that “the participants in the cell phone calls were clearly identified.” It is unclear how the participants in the calls were clearly identified when the State failed to identify the unknown caller. Without knowing the identity of the unknown caller, the State must rely on speculation to explain why John Doe would act as the middle-man between Jackson and the defendant in arranging the victim’s murder. No evidence was ever introduced that showed the defendant made any direct calls to Jackson to arrange or order the victim’s murder. Finally, the State failed to present any evidence of the content of the calls.

The majority finds that it would be an “extraordinary coincidence” for these calls not to be related to the victim’s murder. However, the phone records indicate another logical inference. The phone records show that the defendant, Jackson, and the unknown caller made over twenty-five calls to one another before the alleged “altercation” and sixteen calls afterward. The Fourth Circuit correctly held that based upon this pattern of telephone calls “the State did not exclude that another logical inference, other than to procure murder, could be drawn from these telephone calls; namely, that the defendant may have been returning the phone call of the unknown caller and/or that these calls were to discuss the business that pre-exist-ed among them prior to defendant’s interjection of himself into the altercation between the victim and Rock McKinney.”

The State also relied upon the testimony of two eyewitnesses who alleged that the defendant threatened the victim twenty minutes before the shooting. Yet, there are a number of problems with these witnesses’ testimony. Nelson, a lifelong | ofriend of the victim, initially told police that on the night of the shooting the defendant had attempted to stop a fight between the victim and Rock McKinney and the victim had threatened the defendant. Later, Nelson said he was not “thinking clearly” and claimed the defendant threatened the victim. Another witness, Bradley, claimed the defendant threatened the victim yet also overheard the defendant tell the victim, “I ain’t got no beef with you, Lil’ Bro.” Both witnesses’ testimony raises doubt as to the guilt of the defendant.

Ultimately, the State’s case rests upon highly circumstantial evidence. Under these circumstances, I find that there is legally insufficient evidence that the defendant committed the crime beyond a reasonable doubt.

      . State v. Shapiro, 431 So.2d 372, 385 (La. 1982).

      . State v. Williams, 423 So.2d 1048, 1052 (La. 1982).


author: JOHNSON, Chief Justice.

text:
    Ashley HOFFMAN, Individually and on Behalf of All Others Similarly Situated v. TRAVELERS INDEMNITY COMPANY OF AMERICA.
    No. 2013-CC-1575.
    Supreme Court of Louisiana.
    May 7, 2014.

      Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Ralph Shelton Hubbard, III, Seth Andrew Schmeeckle, Baton Rouge, Anne Elizabeth Briard, Rachel A. Clark, New Orleans, Pendley, Baudin & Coffin, LLP, Patrick W. Pendley, Plaquemine, for Applicant.
    Melancon & Rimes, Jason Luke Melan-con, Robert Cameron Rimes, Rachel Marie Abadie, Tomeny Law Firm, APLC, Frank Tomeny, III, Baton Rouge, for Respondent.
   JOHNSON, Chief Justice.

| plaintiff, Ashley Hoffman, was insured under an automobile insurance policy issued by defendant, Travelers Indemnity Company of America. Following an automobile accident, Ms. Hoffman obtained medical treatment at Baton Rouge General Medical Center (“BRMC”) and sought reimbursement for the hospital bill under her Travelers’ medical payments coverage. We granted this writ application to determine whether the Travelers’ policy, which provides for payment of medical expenses “incurred,” allows Ms. Hoffman to be reimbursed for the full, non-discounted amount of the hospital bill when the charges were contractually reduced pursuant to the hospital’s agreement with Ms. Hoffman’s health insurer, AETNA Insurance Company. For the following reasons, we answer that question in the negative and reverse the rulings of the lower courts.

FACTS AND PROCEDURAL HISTORY

Ashley Hoffman was injured in an automobile accident and sought medical treatment at BRMC. In conjunction with that treatment, Ms. Hoffman signed a hospital form, which provided, “[i]n consideration of these services rendered to the patient named below, IAve assume responsibility for and guarantee the payment of all | gMedical Center charges in accordance with the Medical Center’s then current rate.” The hospital charges totaled $713.67. However, because Ms. Hoffman was covered by her parent’s AETNA health insurance policy, BRMC reduced the charges to $485.29 pursuant to its contract with AETNA and billed this amount to Ms. Hoffman. Ms. Hoffman paid the $485.29 and BRMC never sought payment for the full $713.67.

Ms. Hoffman subsequently filed a claim with Travelers seeking reimbursement for the total hospital charges of $713.67 under the policy’s medical payments coverage. In reviewing the claim, Travelers obtained an itemized bill from BRMC, but that bill did not reflect the discounted charges. Thus, Travelers issued payment to. Ms. Hoffman in the amount of $674.73, representing the total charges of $713.67 less $38.94 for a geographical deduction relative to one particular treatment. Ms. Hoffman continued to seek payment from Travelers for the full amount of the non-discounted bill. After learning the hospital charges had been contractually reduced, Travelers asserted it had essentially overpaid Ms. Hoffman because she was only entitled to reimbursement of the discounted charges of $485.29.

Thereafter, Ms. Hoffman, individually and on behalf of all other similarly situated, filed a class action suit against Travelers, alleging Travelers failed to comply with its policy by failing to pay the full amount of the bill. Travelers filed a motion for summary judgment, arguing it had complied with the policy because it paid Ms. Hoffman for “expenses incurred?’ Travelers pointed out BRMC reduced the $713.67 in listed charges by $228.37, due to a contractual write-off with AETNA. Thus, Travelers maintained Ms. Hoffman incurred medical expenses of only $485.29, 1¡.which was less than the $674.73 it had paid her. Ms. Hoffman opposed the motion, arguing the Travelers’ policy required payment of the original, non-discounted hospital bill due to her implied liability for the total charges.

The trial court denied Travelers’ motion for summary judgment. Travelers sought supervisory review from this ruling and the court of appeal denied the writ without reasons. Travelers then filed a writ application with this court. We granted the writ with an order remanding the case to the court of appeal for briefing, argument and full opinion.

On remand, the court of appeal denied Travelers’ writ in a split decision, finding no error in the trial court’s denial of Travelers’ motion for summary judgment. The court stated the issue:

[Wjhether “expenses incurred,” as stated in the medical payment provision of plaintiffs automobile liability policy, means the full amount of the medical expenses charged by a treating hospital in connection with plaintiffs automobile accident, or the reduced amount of medical expenses accepted by the hospital due to a contractual agreement with plaintiffs health insurer.

The court concluded “that ‘expenses incurred’ constitutes the full amount of medical expenses charged by the treating hospital and that the trial court properly denied the automobile insurer’s motion for summary judgment.” In so ruling, the court relied on the holdings of Thomas v. Universal Life Ins. Co. and Niles v. American Bankers \4Ins. Co, reasoning that BRMC charged Ms. Hoffman for the services it provided and was entitled to be paid for those charges. “The fact that the charges could ultimately be reduced by virtue of a negotiated rate agreement between the treating hospital and plaintiffs medical insurer is of no moment in determining the amount which Travelers is legally and contractually obligated to pay.” The court further explained:

[T]his was not a gratuitous reduction by the treating hospital; rather, premiums were paid by or on behalf of Ms. Hoffman for health insurance to obtain this benefit. Thus, Travelers is not entitled to a windfall based on premiums paid to her health insurer, as there is no evidence that plaintiffs premiums paid to Travelers were reduced on account of her having a separate policy. Absent Ms. Hoffman’s decision to collaterally obtain health insurance, she would be responsible for the full sum invoiced, as the “expenses incurred” by her for the hospital charges. Moreover, if Ms. Hoffman’s health insurer had failed or refused to pay the hospital charges, she remained responsible for the charges as she signed a treatment authorization form upon being admitted to the hospital which included a contractual obligation that she “assume[s] responsibility for and guarantee[s] the payment of all Medical Center charges in accordance [with] the Medical Center’s then current rate.” There is no basis in fact or law to allow Travelers to obtain a windfall for Ms. Hoffman’s separately paid health insurance [footnote omitted].

Judge Higginbotham concurred, finding “the majority opinion unnecessarily discusses the meaning of the term ‘expenses incurred’ as used in the Travelers’ policy, because the meaning of the term is subject to interpretation of the parties’ intent, and is therefore, inappropriate for summary judgment.” Judge McClendon dissented, finding Travelers paid the expenses “incurred” by Ms. Hoffman in accordance with the terms of its medical payments provision because Ms. Hoffman was only billed for and legally obligated to pay the reduced amount of $485.29.

| ^Travelers filed the instant writ application with this court, which we granted.

DISCUSSION

This court applies a de novo standard of review in considering the lower courts’ rulings on parties’ summary judgment motions. Thus, we use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The Travelers’ policy contains an endorsement to the “Medical Payments Coverage C” and provides that Travelers will pay reasonable “expenses incurred” for necessary medical services in certain circumstances:

Amendment of Policy Provisions — Louisiana
III. Medical Payments The Medical Payments Section is amended as follows:
A. Paragraph A of the Insuring Agreement is replaced by the following:
A. We will pay reasonable expenses incurred for necessary medical and funeral services because of “bodily injury”:
1. Caused by accident; and
2. Sustained by an “insured”.

The issue presented involves the proper interpretation of the word “incurred” as it is |fiused in the Travelers’ policy. Specifically, we must determine whether Ms. Hoffman “incurred” expenses for the full value of the medical treatment at BRMC when the hospital charged and accepted a contractually discounted amount as full payment.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts. Whether contract language is clear or ambiguous is a question of law. The words of a contract are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. When a contract’s language is clear and explicit and leads to no absurd consequences, no further interpretation may be made in search of the parties’ intent. If the wording of the policy is unambiguous, then the contract must be enforced as written. This court has never directly addressed the meaning of “incurred” expenses as that term is used in the Travelers’ policy. After considering the record, law, briefs and arguments of the parties, we now find the term “incurred” in the medical payments provision of the Travelers’ policy unambiguous, and conclude that an expense is “incurred” when one has paid it or become legally obligated to pay it.

The definition of “incur” encompasses the concept of “liability.” “Incur” is generally defined as “to suffer or bring on oneself (a liability or expense);” to “become liable or subject to.” Likewise, “liability” is defined as “the quality or state of being legally obligated or accountable; legal responsibility to another or to society, ^enforceable by civil remedy or criminal punishment. A financial or pecuniary obligation; debt.” Commentators have noted that medical payments provisions requiring an insured to “incur” medical expenses “contemplates a liability thrust upon the insured by act or operation of law. Stated otherwise, expenses are incurred within medical payments coverage only when one has become obligated to pay for them.”

Relevant jurisprudence from our appellate courts also focuses on the concept of liability to determine whether an expense is incurred. In Drearr v. Connecticut General Life Insurance Co., the plaintiff, a veteran, received medical treatment at a Veterans Administration (“VA”) Hospital for treatment and surgery due to an ulcer. He brought suit seeking reimbursement from his hospitalization insurer for $1,038.50, the amount of a bill rendered by the VA. No effort was made by the VA to collect the bill and the VA had no intention to pursue plaintiff for any indebtedness. Plaintiff contended that the insurer had contracted to pay him “for the expense incurred for (a) for hospital charges for bed and board and (b) for hospital charges for necessary services and supplies.” The insurer asserted that as a qualified veteran, plaintiff was entitled to free treatment at the hospital and incurred no expense in connection with any of the services rendered. The court concluded that the plaintiff did not incur any expenses and thus had no right to recover under the certificate of insurance issued by the insurer. The court cited to federal jurisprudence involving a nearly identical situation wherein the federal court stated:

[T]he court is impressed with the unreality of the position that [the insured] has incurred any expense whose payment by him to plaintiff | Swas ever demanded, insisted upon or even expected by plaintiff. The claim of any debt on his part for the expense is a sham or pretense. It lacks that quality of “actuality” which, the policy declares, must characterize the “incurred expense” to support recovery by [plaintiff] from defendant.

Adopting this reasoning, the court concluded that because the VA did not have authority to collect for expenses from the plaintiff, “it could not be said that the plaintiff herein incurred any expense for the services of which he was the recipient.”

Similarly, in Irby v. Gov’t Employees Ins. Co., the plaintiff was injured in an automobile accident while on active duty with the United States Coast Guard and received medical treatment at a United States Public Health Service Hospital. Plaintiff was never charged for the medical services because of his status as a member of the Coast Guard and was under no obligation to pay for those services. Plaintiff sought to recover the $812.00 value of his medical services under the medical payments provision of his insurance policy. The policy’s medical payments provision provided that the insurer was required to pay “all reasonable expenses incurred” for necessary medical services. The insurer argued the policy only provided reimbursement of “incurred” medical expenses and the plaintiff never “incurred” any such expenses. The court of appeal agreed and dismissed the plaintiffs suit. The court explained:

[A]s used in the policy in suit, the word “incurred” emphasizes the idea of liability and the definition of “incur” is: “To have liabilities (or a liability) thrust upon one by act or operation of law”; a thing for which there exists no obligation to pay, either express or implied, cannot in law constitute an “incurred expense”; a debt or expense has been incurred only when liability attaches.

In interpreting the contract of insurance between the parties, the court concluded that 19“as the policy requires payment by the defendant only of ‘incurred’ expenses and as plaintiff never was under any obligation to pay the medical and hospital expenses and therefore never ‘incurred’ the same, the defendant cannot be forced to pay under its contract.”

Likewise, in Brackens v. Allstate Insurance Company, the plaintiff was injured in an automobile accident and was treated at a VA hospital. As a qualified veteran, plaintiff was entitled to receive hospital services without payment and no charge was made to the plaintiff for the services. Plaintiff filed suit against his insurer seeking recovery under the medical payments coverage of his policy. The policy provided that “Allstate will pay all reasonable expenses, incurred within one year from the date of accident, for necessary medical ... services ... to or for an insured who sustains bodily injury caused by accident.” The insurer contended plaintiff never incurred or became liable for any medical expenses and was not entitled to recovery under the policy provisions. The court agreed, relying on Irby. The court concluded that “plaintiff has never been liable or obligated for payment of the medical services rendered by the VA Hospital.... He has never, therefore, ‘incurred’ any medical expense for which payment is due under the medical payments provisions of the insurance contract.”

We find the analysis and holdings of these cases applicable here. In this case, there is no dispute that BRMC contracted with Ms. Hoffman’s health insurer, AET-NA, which entitled Ms. Hoffman to pay a discounted price for medical services. It is undisputed that BRMC charged Ms. Hoffman a discounted amount of $485.29 hnin full payment of her medical services. It is further undisputed that Ms. Hoffman paid $485.29 in full payment of her bill from BRMC, and BRMC did not seek payment for the full $713.67. The parties are in agreement that BRMC has no contractual right to recover any amount over the discounted bill. Thus, because BRMC contractually pre-negotiated rates with AETNA, Ms. Hoffman was only legally obligated to pay $485.29. And, because Ms. Hoffman bears no liability for any amount over the $485.29 she paid to BRMC, she did not incur the full medical expense of $713.67.

In finding Ms. Hoffman incurred the full amount of the hospital charges, the court of appeal erred by relying on Thomas and Niles, supra. In Thomas, the plaintiff was injured on the job and received medical treatment paid by his employer’s worker’s compensation insurer. Plaintiff sought benefits under a Hospital and Surgical Expense Policy issued by Universal Life Insurance Company. The insurer argued it was only required to pay “expenses actually incurred” under the policy and because all of the plaintiffs expenses were paid by the worker’s compensation insurer, the plaintiff had not actually incurred any such expense. The court disagreed and found the plaintiff incurred the medical expenses, relying on statements showing the charges for the hospital expenses and doctor’s services were billed to the plaintiff. The court held plaintiff was legally liable for these expenses.

In Niles, the plaintiff was hospitalized for surgical removal of a cataract, and all of her hospital expenses, other than the deductible, were paid by Medicare. Plaintiff sought to recover benefits under her hospitalization insurance policy which hiprovided reimbursement “for the hospital expense actually incurred.” The court found the hospital expenses were actually incurred by the plaintiff, reasoning the charges were made to the plaintiffs account and if plaintiff had not had coverage under Medicare, then the hospital could have required payment of the entire account from her.

Thus, in both Thomas and Niles, the plaintiffs were found to have incurred the expenses because the charges were billed to the plaintiffs, and plaintiffs were legally responsible for those charges. Plaintiffs’ failure to pay the charges was not due to a lack of legal responsibility, but, rather, because a third party paid the expenses on their behalf. By contrast, Ms. Hoffman was charged and billed for $485.29 and- she personally paid that amount. We find the rationale underlying the holdings of Thomas and Niles more akin to cases involving the collateral source rule. Viewed in this light, Thomas and Niles do not address the question of whether Ms. Hoffman can recover more in expenses than BRMC charged and accepted from her as full payment, and their rulings are inapposite here.

Additionally, the reliance on the signed hospital form by both the court of appeal and Ms. Hoffman is misplaced. While Ms. Hoffman agreed to be responsible for the hospital’s charges, she has never become liable for any amount above the discounted charges of $485.29. Although the form provided that Ms. Hoffman is responsible for payment of charges at the hospital’s “then current rate,” the “then | ^current rate” applicable to Ms. Hoffman can only be the discounted rate pursuant to BRMC’s contract with AETNA. BRMC pre-negotiat-ed rates with AETNA and contractually agreed to accept this reduced rate for treatment of AETNA’S insureds. In denying Travelers’ writ application, the court of appeal erroneously opined that if AETNA had failed or refused to pay the hospital-charges, Ms. Hoffman remained responsible for the full charges as she signed a treatment authorization form. However, it is undisputed that AETNA paid nothing on behalf of Ms. Hoffman and because she was an AETNA insured, Ms. Hoffman was still only charged the reduced rate of $485.29. Thus, Ms. Hoffman’s signature on the form did not increase the amount of her liability.

CONCLUSION

We conclude that the medical expense Ms. Hoffman “incurred” was the amount BRMC charged and accepted as full payment for its services rendered to her,. $485.29. Ms. Hoffman has not paid, nor is she legally obligated to pay, the amount discounted by BRMC pursuant to its agreement with AETNA. Because we find Travelers paid the expenses incurred by Ms. Hoffman in accordance with the terms of its policy, we find Travelers has fully performed under the insurance contract and is entitled to summary judgment.

DECREE

Accordingly, for the foregoing reasons the judgments of the lower courts are reversed. Travelers’ motion for summary judgment is hereby granted. REVERSED AND RENDERED.

      . Although Ms. Hoffman filed this petition as a class action, no motion for certification has been filed in this case. Thus, our ruling relates only to Ms. Hoffman’s individual suit against Travelers.

      . Ms. Hoffman also alleged in the petition ■ that Travelers’ systematic geographic reductions violated the policy. However, that issue is not directly before us for review.

      . Hoffman v. Travelers Indemnity Co. of America, 12-725 (La.App. 1 Cir. 9/19/12) (unpublished).

      . Hoffman v. Travelers Indemnity Co. of America, 12-2271 (La. 12/14/12); 104 So.3d 451.

      . Hoffman v. Travelers Indemnity Co. of America, 12-725 (La.App. 1 Cir. 6/7/13); 121 So.3d 106.

        .Id.

      . Id. at 107.

      . 201 So.2d 529 (La.App. 3rd Cir. 1967).

      . 229 So.2d 435 (La.App. 3rd Cir. 1969), writ refused, 255 La. 479, 231 So.2d 394 (1970).

      . Hoffman, 121 So.3d at 110.

      . Id.

      . Id. at 112.

      . Id. at 112-13.

      . Hoffman v. Travelers Indemnity Co. of America, 13-1575 (La. 11/8/13), 129 So.3d 522.

      . Property Insurance Association of Louisiana v. Theriot, 09-1152 (La.3/16/10), 31 So.3d 1012, 1014.

      . Greemon v. City of Bossier City, 10-2828 (La.7/1/11), 65 So.3d 1263, 1267.

      . La. C.C.P. art. 966(B).

      . Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 693.

      . Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cos. Co., 630 So.2d 759, 764 (La.1994).

      . Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1183 (La.1994).

      . Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1028.

      . Edwards v. Daugherty, 03-2103 (La. 10/1/04), 883 So.2d 932, 941.

      . Black's Law Dictionary 836 (9th ed. 2009).

      . Webster’s Third New International Dictionary 1146 (2002).

      . Black's Law Dictionary, supra n. 23, at 997; see also Webster's New World Dictionary, supra n. 24, at 1302.

      . Lee R. Russ & Thomas F. Segalla, 11 Couch on Insurance 3d, § 158.10 (2005).

      . 119 So.2d 149 (La.App. 4th Cir. 1960).

      . Id. at 153.

      . Id. at 152 (internal citations removed).

      . Id. at 153.

      . 175 So.2d 9 (La.App. 4th Cir.1965).

      . Id. at 10 (internal citations removed).

      . Id. at 11.

      . 339 So.2d 486 (La.App. 2nd Cir.1976).

      . Id. at 487.

      . Id. at 488.

      . Thomas, 201 So.2d at 531.

      . Id. at 532.

      . Niles, 229 So.2d at 436.

      . Id. at 437.

        .Id. at 438-39.

      . As explained by this court in Louisiana Dept, of Transp. & Dev. v. Kansas City Southern Railway Co., 02-2349 (La.5/20/03), 846 So.2d 734, 739: "Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tort-feasor’s procuration or contribution. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer.”