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    STATE of Louisiana v. Cedric Charles EDWARDS aka Cederic C. Edwards.
    No. 12-891.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Michael Harson, District Attorney, 15th JDC, Roger P. Hamilton, Jr., Assistant District Attorney, Lafayette, LA, for Ap-pellee, State of Louisiana.
    Jermaine D. Williams, J.D. Williams <& Associates, APLC, Lafayette, LA, for Defendant-Appellant, Cedric Charles Edwards.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

| ¡FACTS

During the search of an apartment where the defendant, Cedric Charles Edwards AKA Cederic C. Edwards, was staying with his girlfriend, the defendant’s parole officer and police found cocaine, marijuana, methlyenedioxymethampheta-mine (MDMA), alprazolam, methamphetamine, and a firearm.

The defendant was charged by bill of information filed on October 1, 2009, with the following: 1) possession with intent to distribute cocaine, a violation of La.R.S. 40:967; 2) possession with intent to distribute marijuana, a violation of La.R.S. 40:966; 3) possession with intent to distribute MDMA, a violation of La.R.S. 40:966; 4) possession of alprazolam, a violation of La.R.S. 40:969; 5) possession of methamphetamine, a violation of La.R.S. 40:967; 6) possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; 7) possession of a firearm while in possession of a controlled dangerous substance, a violation of La.R.S. 14:95; and 8) illegal use of controlled dangerous substances in the presence of persons under seventeen years of age, a violation of La.R.S. 14:91.13. A written plea of not guilty was filed on November 10, 2009.

An amended bill of information was filed on May 26, 2010. Therein, count one was amended to a charge of possession of cocaine and count eight was deleted. A second amended bill of information was filed on June 7, 2010, in which there were no changes in the offenses charged. The defendant entered a plea of not guilty to the amended bills on December 6, 2010.

Trial by jury commenced on August 16, 2011. On August 17, 2011, the jury returned verdicts of guilty as charged on counts one, four, five, six, and seven, and |2guilty of the responsive verdict of possession of marijuana on count two and possession of MDMA on count three.

The defendant filed a “Motion for Post Verdict Judgment of Acquittal, or, in the Alternative, Motion for New Trial” on August 23, 2011. The motion was denied on January 13, 2012. The defendant was then sentenced as follows: 1) possession of cocaine — five years at hard labor; 2) possession of marijuana — six months in parish jail; 3) possession of MDMA — five years at hard labor; 4) possession of alprazo-lam — five years at hard labor; 5) possession of methamphetamine — five years at hard labor; 6) possession of a firearm by a convicted felon — fifteen years at hard labor without benefit of probation, parole, or suspension of sentence; and 7) possession of a firearm while in possession of a controlled dangerous substance — five years at hard labor without benefit of probation, parole, or suspension of sentence. All sentences were to run concurrently but consecutively to any other sentence the defendant was serving.

A motion for appeal was filed on January 17, 2012, and was subsequently granted. The defendant is now before this court asserting three assignments of error.

ASSIGNMENTS OF ERROR

1. The Trial Court erred when it did not grant the Defendant’s Motion to Suppress due to the fact that an illegal search occurred.
2. The Trial Court erred when it granted the Defendant’s challenge as the State of Louisiana systematically excluded potential Black jurors in direct violation of Batson; however granted no relief to the Defendant.
3. There was insufficient evidence to support a finding of guilt.

| ^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent. The record does not indicate that the trial court advised the defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 980.8. Therefore, we remand and instruct the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within thirty days of the rendition of this opinion and to file written proof of same in the record of these proceedings.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends there was insufficient evidence to support a finding of guilty of the charges for which he was convicted. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court must first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, we will address this assignment of error first.

When a sufficiency of the evidence claim is raised on appeal, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Further, the trier of fact is responsible for determining the weight of the evidence and may accept or reject, in whole or in part, the testimony of any witness. Id. The appellate court should not assess credibility or re-weigh the evidence and may only intrude upon the fact-finding function of the jury to the extent necessary to satisfy the Jackson standard of review. Id.

State v. Jasper, 11-488, p. 4 (La.App. 3 Cir. 11/2/11), 75 So.3d 984, 987.

|4The defendant contends all narcotics and the gun found by police were found inside a residence that did not belong to him. Additionally, substantially all of the evidence was found inside a woman’s purse and/or inside a woman’s shoe box that contained women’s shoes, which clearly did not belong to him. The defendant asserts the state faded to produce any evidence that he actually or constructively possessed any of the contraband found in the residence. Therefore, there was insufficient evidence to find him guilty of the charges at issue. Because the defendant challenges only the possessory element of the offenses, we will determine whether the state presented evidence sufficient to support only that element of the offenses.

The defendant was convicted of possession of cocaine, marijuana, MDMA, alprazolam, and methamphetamine.

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession. State v. Harris, 94-0970, p. 4 (La.12/8/94), 647 So.2d 337, 338-39.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each case. Trahan, 425 So.2d at 1226. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs. [State v.] Toups, [01-1875,] p. 4 [La. 10/15/02], 833 So.2d [910,] 913.

State v. Major, 03-3522, pp. 7-8 (La.12/1/04), 888 So.2d 798, 802.

| sThe defendant was also convicted of possession of a firearm by a convicted felon and possession of a firearm while in possession of a controlled dangerous substance.

Actual possession of a firearm is not necessary to satisfy the possession element of the statute; it is sufficient that the subject had constructive possession. A person is in constructive possession of a thing if it is subject to his dominion and control. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. The jurisprudence additionally requires proof that the offender was aware that a firearm was in his presence, and that he had the general criminal intent to possess the weapon.
State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-535 (La.10/17/03), 855 So.2d 755 (footnotes omitted).
As for the element of general intent to possess the weapon, intent is a fact question which “may be inferred from the circumstances of a transaction.” State v. Johnson, 09-862, p. 3 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267.

State v. Ceasar, 11-1406, p. 4 (La.App. 3 Cir. 6/6/12), 91 So.3d 1231, 1234.

Probation and Parole Officer Kelly Hardy testified that she was the defendant’s parole officer on July 31, 2009. This was a courtesy supervision for the state of Virginia where he had previously been convicted of first degree murder. The defendant listed his residence as 813 North Frederick Avenue, Kaplan, Louisiana. Officer Hardy attempted to conduct an in-home visit with the defendant at his residence on four separate dates, July 15, 28, 30, and 31, 2009.

In January 2009, Officer Hardy was contacted by detectives from the Lafayette Police Department who provided her information that the defendant had been seen in possession of a firearm and told her he was suspected of being involved in narcotics. They also informed her they wanted to speak to the defendant regarding an ongoing homicide investigation.

| r,Officer Hardy testified that during July, the defendant told her that he stayed two to three nights a week at an apartment in Lafayette which Officer Hardy believed was leased by Narcisse O’Brien, and this occurred on a regular basis while he was working in Lafayette. On July 31, 2009, when unable to contact him at his address in Kaplan, Officer Hardy went to an apartment on South Beadle Road in Lafayette. She knocked on the door, and a juvenile answered and told her the defendant was asleep. While the juvenile went to get the defendant, Officer Hardy called Detective Brad Robin of the Lafayette Police Department and notified him she had located the defendant. The defendant subsequently came to the door, and she spoke to him inside and outside the apartment about his supervision fees for ten minutes. Officer Hardy testified that she did not notice anything unusual or suspicious at that time. Officer Hardy then left and returned four or five minutes later.

When Officer Hardy returned to the apartment, she was accompanied by Detective Robin and Detective Benjamin Suire, also of the Lafayette Police Department. Officer Hardy testified that she went back to the apartment for the specific purpose of allowing the detectives to speak to the defendant. The detectives spoke to the defendant while they were seated at a kitchen table, and Officer Hardy “went ... down the hallway into the apartment to just ... see what the apartment was.” Officer Hardy was asked what had changed between the two visits, and she explained that she would not search the residence of a parolee unless accompanied by another officer for safety reasons.

Officer Hardy testified she entered the master bedroom and saw a scale, which she testified was used to weigh illegal drugs, sitting on the night stand next |7to the bed. On the second shelf of the night stand, Officer Hardy saw an empty gun holster. Officer Hardy then looked inside the closet. She testified she picked up two or three blankets and found a loaded revolver. Officer Hardy testified that there were male clothes and shoes in the closet.

Officer Hardy subsequently searched a chest of drawers and found the defendant’s state issued identification card inside one of the drawers. Officer Hardy then went into the kitchen and picked up a pack of cigarettes located in front of the defendant. Inside, she found what she believed was a “marijuana blunt cigarette.” Officer Hardy testified that the pack of Newport cigarettes was in the defendant’s possession. She later testified the package was already on the table, and she could not recall if she saw the defendant with the cigarette pack in his hands.

Officer Hardy testified she returned to the bedroom and found that Detective Suire had taken out the bottom drawer of the chest of drawers. Under the drawer, he found a black purse and a cellophane bag that contained green vegetable matter, which Officer Hardy believed was marijuana. Officer Hardy opened the purse and found four cellophane bags that contained green vegetable matter that she believed was marijuana, a cellophane bag containing two smaller bags of white powder, and a cellophane bag that contained numerous green pills. Officer Hardy subsequently found a cellophane bag that contained orange pills in a bronze baby shoe located on the night stand. Officer Hardy further testified that Detective Suire found an open shoe box that contained a pair of women’s shoes and unspent bullets.

Officer Hardy testified that the defendant had a child with O’Brien. Officer Hardy also testified that O’Brien told her the defendant “stayed” at her residence, but Officer Hardy did not recall how often he did so. O’Brien further stated the | fitems found by police did not belong to her. Officer Hardy testified that during a police interview, the defendant admitted the items found in the apartment were his.

Lafayette Police Department Officer William White testified that police found approximately ninety-five or 105 grams of marijuana, approximately one gram of cocaine, 172 pills consistent with MDMA, one pill containing alprazolam, and five pills containing methamphetamine in the apartment.

Officer White interviewed the defendant. During that interview, the defendant stated the gun found by police belonged to a friend of his girlfriend, and he admitted handling the gun the night before it was found by police. However, no fingerprints were found on the gun. The defendant further stated the narcotics found were his and did not belong to his girlfriend. He further testified that O’Brien told him the defendant was living at her apartment.

Detective Suire testified that he was present at the apartment on July 31, 2009. He sat down at the kitchen table with the defendant and Detective Robin, and Officer Hardy announced she was going to search the apartment. He subsequently assisted Officer Hardy in conducting a search. He corroborated Officer Hardy’s testimony that bullets were found in a shoe box between the night stand and the closet and marijuana under the bottom dresser drawer. When asked about the pack of cigarettes on the kitchen table, Detective Suire could not recall if the cigarette pack was on the table when he entered the kitchen.

O’Brien testified that in July of 2009 she was romantically involved with the defendant, and he was the father of her child. O’Brien was at work on the day in question, and the defendant was at her apartment watching her two children. O’Brien indicated the defendant watched the children four to five times a week so she could work. She denied that he lived at the apartment. O’Brien testified that the defendant did not have any personal items at her apartment, and she did not | aconsider it to be his residence. O’Brien additionally testified that she smoked Newport cigarettes.

O’Brien testified she had not seen drugs in her apartment prior to being shown the drugs police had seized. Additionally, she had never seen the defendant with drugs while in her apartment. O’Brien testified that the gun found by police belonged to her neighbor, Kenneth Wilder. O’Brien further testified that Wilder had been at her apartment the night before the gun was found and had left the gun there. O’Brien testified that she told Officer Hardy the drugs did not belong to her.

The defendant testified that he occasionally spent the night at O’Brien’s apartment, and he was there on July 31, 2009, to babysit while O’Brien was at work. The defendant agreed that Officer Hardy announced she was going to search the apartment and that he did not verbally object to the search. The defendant denied the gun found in the closet was his. The defendant testified the gun and some bullets were in a shoe box, and he knocked the box over when he went into the apartment. He further testified that he put the gun back in the box and told O’Brien to get rid of it.

The defendant testified that he became aware there were pills and marijuana inside the apartment when he was questioned by police. He denied stating the drugs belonged to him. The defendant testified that he had never seen the drugs prior to July 31, 2009, and never possessed them. The defendant testified that he placed his identification card on the table on the morning in question and had no idea how it got into the chest of drawers.

Drugs

In State v. Brown, 04-1194 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, writ denied, 05-1687 (La.2/3/06), 922 So.2d 1173, a bag of marijuana was found in a duffle bag in a cedar chest in the master bedroom of the defendant’s girlfriend’s | xnapartment. Police testified that the defendant admitted the bag was his and stressed that his girlfriend was innocent. The defendant further admitted that he knew who brought the marijuana to the apartment but refused to divulge that person’s name. A defense witness testified the defendant lived in Florida, was in town visiting, and his girlfriend’s brother brought a bag of marijuana to the apartment. The defendant’s girlfriend also testified that the defendant lived in Florida, and another man brought a duffle bag to her apartment, but she did not know what was in the bag.

The fifth circuit noted that police testified that the defendant admitted to knowledge of the marijuana’s location and of the person who delivered it to him. The defendant also told police that his girlfriend had no knowledge of the marijuana. Police additionally testified that none of the other occupants of the apartment took responsibility for the marijuana. The fifth circuit also noted it was apparent that the jury found the police officers’ testimony more credible. The fifth circuit then stated:

Regardless of whether defendant was still living at the Celestine Street address at the time of the offense, he clearly had access to the area where the marijuana was found. He had an intimate relationship with Tammy Lagarde, who lived at the house. The evidence showed he was inside the house shortly before the search warrant was executed. Detective Boylen testified that he saw defendant leave the house during his surveillance. By his own admission, defendant had a history of drug offenses, including a 1987 conviction for possession with intent to distribute marijuana.

Id. at 547-48. The fifth circuit then affirmed the defendant’s conviction for possession of marijuana with intent to distribute.

Officers Hardy and White testified the defendant stated the drugs found in the apartment were his. This testimony was sufficient to prove the defendant had constructive possession of the drugs found. The jury clearly chose to believe this testimony over that of the defendant, and this court will not second guess that Incredibility determination. Accordingly, the evidence is sufficient to support the defendant’s convictions for possession of cocaine, marijuana, MDMA, alprazolam, and methamphetamine, when reviewed in a light most favorable to the prosecution in accordance with the Jackson standard.

Firearm

In State v. Goldsmith, 519 So.2d 299 (La.App. 2 Cir.1988), the defendant stated he picked up a pistol from a ditch in a residential area were children played and put it in his back pocket in an attempt to avoid risk to children. The second circuit noted that temporary possession had been held to constitute possession proscribed by La.R.S. 14:95.1 and affirmed the defendant’s conviction for possession of a firearm by a convicted felon.

In State v. Blackson, 45,525 (La.App. 2 Cir. 8/11/10), 46 So.3d 810, writ denied, 10-2138 (La.4/1/11), 60 So.3d 1247, the second circuit found the evidence was sufficient to establish the defendant exercised dominion or control of a shotgun found behind a house near where police began to chase the defendant, and the defendant admitted that he had fired the gun earlier in the day.

In State v. Brokenberry, 41,481 (La.App. 2 Cir. 11/3/06), 942 So.2d 1209, police stopped a vehicle driven by the defendant and occupied by three passengers. Upon being questioned, the defendant admitted there were weapons inside the vehicle. Inside the vehicle, police found a MAC 90 rifle, with its barrel propped between the front seats and the stock on the backseat floorboard. They also found a Glock 40 handgun on the front passenger floorboard. Police testified that both weapons were within the defendant’s reach. The defendant informed police that he did not own the weapons, and they had been purchased by his brother and father. The defendant admitted he knew the weapons were in the vehicle. When |12confronted with the fact that he was near the weapons, the defendant stated: “Man, these streets are dangerous; you can’t blame me for carrying these.” Id. at 1211.

At trial, one of the passengers testified that the weapons were inside the vehicle because he was moving them from his grandmother’s home to his father’s home. The passenger also testified the weapons were on the backseat floorboard, beyond the defendant’s reach, and must have shifted during the stop.

The defendant testified he knew the passenger entered the vehicle with the weapons but denied telling police the streets were dangerous; thus, he could not be blamed for carrying weapons. The defendant also denied having possession of or easy access to the weapons.

The second circuit found the evidence was sufficient to establish the defendant had constructive possession of the weapons and intended to possess the weapons so as to support his conviction for possession of firearm by convicted felon. The second circuit further found the weapons remained subject to the defendant’s dominion and control by virtue of his knowledge that the weapons were in vehicle as well as the proximity of the weapons to the defendant at time of the stop.

The defendant in the case at bar admitted handling the gun, and the gun holster was visible on the nightstand in the master bedroom where the defendant’s identification card was found in the dresser, and men’s clothes and shoes were in the closet. The jury chose to believe the defendant handled the firearm found by police thus exerting dominion and control over the firearm. When viewing the evidence in a light most favorable to the prosecution in accordance with the Jackson standard, the evidence is sufficient to support the defendant’s convictions for possession of a firearm by a convicted felon and possession of a firearm while in possession or a controlled dangerous substance.

\ .-ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends the trial court erred when it did not grant his motion to suppress due to the fact that an illegal search occurred.

The defendant filed a motion to suppress on April 28, 2010. Therein, the defendant alleged the search of the apartment located on Beadle Road was unreasonable because: 1) the address was not the address listed on his parole paperwork; 2) Officer Hardy had never visited him at that address; 3) Officer Hardy searched an area that was not clearly identified as his bedroom; 4) Officer Hardy had no justification for the search; 5) the search was conducted at the home of another, and that person was not home at the time of the search and did not consent to the search; 6) no search warrant was obtained, and no exception to the warrant requirement allowed for a warrantless search. The trial court denied the motion at a hearing held on August 12, 2010.

“A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion.” State v. Wilder, 09-2322, p. 2 (La.12/18/09), 24 So.3d 197, 198. Moreover, when reviewing the trial court’s decision on a motion to suppress the evidence, this court may look to the entire record, including relevant testimony given at trial. State v. Sher man, 04-1019 (La.10/29/04), 886 So.2d 1116.

In State v. Malone, 403 So.2d 1234, 1236-37 (La.1981), the supreme court discussed warrantless searches stemming from a person’s probation or parole status as follows:

As a general constitutional rule, war-rantless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Had defendant not been on probation, we would have no difficulty holding that the Fourth Amendment right to be free from unreasonable searches had 114been violated. However, defendant was on probation and that status requires that we carefully consider whether and to what extent defendant, as a probationer, had a reasonable expectation of privacy as relates to the type of intrusion involved here. In State v. Patrick, 381 So.2d 501 (La.1980), we noted that war-rantless searches of a parolee’s person and residence by a parole officer have been upheld where the search was reasonable, even though less than probable cause was shown, citing cases from the United States Courts of Appeals for the Second and Ninth Circuits: United States ex rel. Santos v. New York State Bd. of Par., 441 F.2d 1216, 1218 (2nd Cir.1971), cert. den. 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972); Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. den. 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975).
In Santos, supra, the court considered a warrantless search of a parolee’s apartment when the parolee was not at home. The police had received a tip that the parolee was dealing in stolen property and relayed this information to the parole officer. The parole officer and the police went to the parolee’s apartment and were admitted by his landlady. The policeman did not assist in the search which resulted in the discovery of stolen goods. In holding that the evidence need not be suppressed, the court reasoned that a parolee is released on the assumption that he will meet the conditions of his parole, one of which is to refrain from violating the law, and that the parole, officer is charged with the duty of enforcing the conditions of parole. According to the court, “(t)o hold that evidence obtained by a parole officer in the course of carrying out this duty cannot be utilized in a subsequent prosecution would unduly immunize parolees from conviction.” 441 F.2d at 1218.

Malone adopted a four part test to determine whether the search of a probationer or parolee’s premises is reasonable:

A probationer has essentially the same status as a parolee; in our view both must necessarily have a reduced expectation of privacy. The Fourth Amendment prohibits only unreasonable searches. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As we said in State v. Patrick, supra: “The test of reasonableness in cases of this nature depends upon the total atmosphere of each case.” 381 So.2d at 503. The Patrick opinion then quotes Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979):
“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each ease it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for | ^initiating it and the place in which it is conducted.” [cites omitted]
To determine whether the search in the instant case was reasonable we must therefore examine the total atmosphere in which it took place. In the words of Bell v. Wolfish, swpra, we must consider (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it and (4) the place in which it was conducted.

Id. at 1238-39.

At the hearing on the motion to suppress, Officer Hardy testified she was the defendant’s parole officer. Officer Hardy testified that on July 14, 2009, the defendant told her he worked a couple of days a week in Lafayette and stayed at his girlfriend’s house when he was in Lafayette. His girlfriend’s address was 169 South Beadle Street, Apartment 268, Lafayette, Louisiana. Officer Hardy testified that she attempted to contact the defendant at his mother’s residence on July 15, 28, 30, and 31, 2009. In fact, on July 31, the officer attempted two separate visits at that residence. The address was 813 North Frederick, Kaplan, Louisiana, and was the address given by the defendant.

Because Officer Hardy could not contact the defendant at the Kaplan address, she went to the apartment in Lafayette. On January 5, 2009, Officer Hardy had been contacted by detectives at the Lafayette Police Department who gave her information that the defendant had been seen in possession of a firearm and was involved in narcotics. The detectives also told her they wanted to talk to the defendant regarding a homicide investigation. Prior to entering the apartment, Officer Hardy called either Detective Robin or Suire and told him that, if she made contact with the defendant, she would let him know.

Officer Hardy testified that she attempted to postpone the visit until the detectives arrived, but they did not show up. Officer Hardy testified that she knocked on the door of the apartment at approximately 10:30 a.m., and it was 11f,opened by a juvenile male who stated the defendant was sleeping, but he would wake him. She then spoke to the defendant about his supervision fees but did not conduct any kind of search. The two parted, and she returned to her vehicle and circled the parking lot until the detectives arrived. Officer Hardy testified that during her initial visit with the defendant, she saw no suspicious activities in the apartment. Officer Hardy believed she stayed in the front area of the apartment during that time.

Officer Hardy, accompanied by the detectives, again knocked on the apartment door and made contact with the defendant. Officer Hardy told the defendant the detectives wanted to speak to him about a homicide. There is no evidence the defendant voiced any objection to talking to the detectives. Detective Robin then sat down at the kitchen table with the defendant. Officer Hardy was asked if there was any indication the defendant did not want police to enter the apartment, and she stated: “He never said that, no, they could not come in.” Officer Hardy further indicated the defendant never told police the apartment was not his or they did not have permission to enter. Officer Hardy testified the apartment was leased by the defendant’s girlfriend, she was not present at the time, and she did not consent to the search that was later conducted.

Officer Hardy testified that, once the defendant was seated at the kitchen table, she entered the master bedroom and looked around. Therein, she saw a silver scale commonly used to weigh drugs on the nightstand. Officer Hardy next saw a gun holster on the second shelf of the night stand. She looked in the closet and noted male clothes and shoes were present. She then looked through the closet for, and found, a gun after picking up several blankets. Officer Hardy proceeded to the table and told one of the detectives to handcuff the defendant for safety reasons, because the defendant was not to be in the presence of a weapon.

117Officer Hardy returned to the bedroom and continued her search. In the second or third drawer of the chest of drawers, Officer Hardy found the defendant’s wallet with his identification inside it. Detective Suire found a shoe box containing a pair of women’s shoes and thirteen bullets. Officer Hardy then returned to the kitchen and picked up a pack of cigarettes lying on the table next to the defendant and opened it. Therein, she found a marijuana joint.

Officer Hardy returned to the bedroom, where Detective Robin had removed the bottom drawer from the chest of drawers and found two or three bags of marijuana and a black purse. Inside the purse, Officer Hardy found marijuana, two bags containing cocaine, and numerous pills. Officer Hardy also found a bag that contained various pills in a copper shoe on the nightstand.

Officer Hardy had never visited the Lafayette address and had been supervising the defendant since July 11, 2007. Officer Hardy testified she went to the Lafayette address because it was the last day of the month, and the defendant was on her mandatory contact list. She had made five attempts to visit him at the Kaplan address, and he was never there. However, despite having failed to contact the defendant on five prior occasions that month, she had not tried to contact him by phone. When asked what right she had to search a residence, Officer Hardy testified, “Because they’re under our jurisdiction and supervision.” She further testified that the right to search extended to a parolee’s “person, their property, their vehicle, their residence, [and] any and all effects.” Officer Hardy testified that a parole officer could search common areas of a residence shared by more than one person. She was then asked if she had to establish that the bedroom she searched was that of the defendant before it was searched. In response, Officer Hardy stated: “I didn’t begin searching until I found the scale and the empty gun holster. That’s when I began searching.”

11sOfficer Hardy was asked why she waited to conduct the search, and she replied: “Because, one, I don’t normally do searches by myself, and two, if they were wanting to speak to him regarding an unsolved homicide, my safety, I’m not going to do it by myself.”

Officer Hardy was subsequently questioned as follows:

Q: This was a search based upon your parole supervision, and Officers Robin and Suire were merely assisting you; is that correct?
A Absolutely, yes.
Q In fact, it’s not unusual for you to do a search like this for probation and parole and request that law enforcement come to help you; is that correct?
A Correct. Well, we normally call law enforcement when narcotics are found.

Officer White testified that the defendant’s girlfriend indicated he lived at the apartment. Officer White also spoke to the defendant regarding the drugs found, and the defendant claimed ownership of the drugs and admitted he had handled the gun.

Officer White read the booking paperwork, which indicated the Lafayette CID and Louisiana Probation and Parole conducted a homicide follow-up investigation at the apartment. Detective Robin testified that he had obtained information in January 2009 that the defendant was involved in narcotics and had been seen with a gun. Detective Robin further testified that he relayed this information to Officer Hardy. Detective Robin testified that on July 81, 2009, Officer Hardy called and stated the defendant was at an apartment in Lafayette. When Detective Robin arrived, Officer Hardy was in her car leaving. Detective Robin testified that he was going to the apartment to question the defendant about an ongoing criminal investigation, because the defendant had failed to meet with |1flhim on a prior occasion. Detective Robin testified that police did not have a search warrant when they went to the apartment.

Detective Suire testified that Officer Hardy arrived at the apartment complex a short time after he and Detective Robin did. The group then knocked on the door of the apartment. When asked if the defendant told them not to come into the apartment or that he could not give permission for them to enter, Detective Suire stated “No, I don’t believe so.” Detective Suire testified that he did not know who owned the apartment, and he did not contact the owner about entering the apartment.

Detective Suire testified that after Officer Hardy found the gun, she asked him to assist with the search. Officer Suire further testified that he found narcotics under the bottom drawer of the chest of drawers. Officer Suire testified that he did not recall what type of clothing was in the chest of drawers. When asked if there were men’s clothes in the closet, he responded: “[N]ot that I know of.”

Barbara Edwards, the defendant’s mother, testified that he began living with her when he was paroled, and he continued to reside with her until July 2009. Edwards testified that all of the defendant’s belongings were at her home. She also testified that the defendant sometimes babysat at an apartment on Beadle Road. Joseph Edwards, the defendant’s father, testified that the defendant lived at his residence and was home at least five or six nights a week. O’Brien testified that the defendant was her boyfriend, and the two had a child together. The defendant babysat for her on July 31, 2009. O’Brien testified the defendant babysat when she worked, and he did not have clothes at her apartment. She indicated the defendant visited his child four times a week. She denied telling police the defendant lived with her. O’Brien testified she was not contacted by police on July 31, 2009, prior to their entry into her apartment.

1 apThe defendant testified he was at the apartment on July 31, 2009, watching his daughter. He indicated he lived in Kaplan at that time. The defendant admitted that he told Officer Hardy he stayed at the apartment some nights after work.

The defendant testified that in June, Detective Robin told him that if he did not come in to speak to police, he would get Officer Hardy involved. The defendant testified that he was asleep when Officer Hardy arrived at the apartment. He got up, and Officer Hardy looked around, told him he was late on his payments, and left. The defendant then saw the detectives drive up, and the detectives and Officer Hardy came to the door. The defendant testified he told them: “[Y]’all can’t come here without no [sic] search warrant.” The three entered, and Officer Hardy and one of the detectives went straight to the back and started searching.

The defendant testified that he had prior convictions for murder and illegal use of weapons during the commission of a felony.

After hearing the testimony, the trial court denied the motion to suppress -without setting forth any reasons for the ruling.

The defendant contends that Officer Hardy admitted she knew O’Brien leased the apartment, and the defendant did not live there. Additionally, he argues the state put on no evidence that Officer Hardy had a reasonable suspicion that any criminal activity was taking place at the apartment.

The defendant addresses the scope of the intrusion and argues the search was a pretext for allowing detectives to speak to him, there was no evidence of consent to search, and Officer Hardy acknowledged the apartment was leased to O’Brien. The defendant next addresses the manner in which the search was conducted and argues the search was conducted under false pretenses, and Officer Hardy had no authority to conduct a search of the home on her second visit. The defendant then addresses the justification for initiating the search and argues the state offered no | gijustification for initiating the search. Finally, the defendant addresses the place in which the search was conducted and argues the search was conducted in the home of a third person without that person’s consent, and Officer Hardy knew he did not have control or dominion over the apartment and could not consent to a search.

The state asserts the sweep of the apartment done by Officer Hardy was for her safety and that of the two detectives. The state additionally asserts the defendant admitted he allowed Officer Hardy in and gave her consent to search the apartment.

Officer Hardy testified the defendant was released on parole on June 21, 2007. At that time, La.R.S. 15:574.4(H) set forth the following:

H. (1) The Board of Parole may make rules for the conduct of persons heretofore or hereafter granted parole. When a prisoner is released on parole, the board shall require as a condition of his parole that he refrain from engaging in criminal conduct.
(4) The board may also require, either at the time of his release on parole or at any time while he remains on parole, that he conform to any of the following conditions of parole which are appropriate to the circumstances of the particular case:
(m) Will be subject to visits by his parole officer at his home or place of employment without prior notice.
(r) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on parole is engaged in or has been engaged in criminal activity since his release on parole.

22 In Cutler v. McGee, 09-1290, p. 8 (La.App. 3 Cir. 5/5/10), 38 So.3d 481, 487-88, writ denied, 10-1879 (La.11/19/10), 49 So.3d 393, this court stated the following:

Pursuant to La.R.S. 15:574.4(H), the Board of Parole has the authority to make rules and conditions to which parolees must conform. There is one mandatory condition: parolees must not engage in criminal conduct, La.R.S. 15:574.4(H)(1), but there are eighteen additional permissive conditions, which the Board of Parole “may also require” a parolee to obey, including allowing “searches of his person, his property, his place of residence, ... with or without a search warrant, when the ... parole officer has reasonable suspicion to believe that the person ... is engaged in or has been engaged in criminal activity.” La.R.S. 15:574.4(H)(4), (H)(4)(r). The conditions of parole must be explained to a parolee, and he must “agree in writing to such conditions.” La.R.S. 15:574.4(F).

In the case at bar, Officer Hardy testified she had the right to search a parolee’s residence, “Because they’re under our jurisdiction and supervision.” She further testified the right to search extended to a parolee’s “person, their property, their vehicle, their residence, [and] any and all effects.” Although, there was no documentation presented that he had agreed to these conditions, her testimony was unre-futed, and there is sufficient evidence that the defendant’s residence was subject to search, as a condition of his parole, when the parole officer has reasonable a suspicion to believe that the defendant was engaged in or had been engaged in criminal activity.

In State v. Bolden, 09-33 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, writ denied, 09-1317 (La.2/5/10), 27 So.3d 297, the defendant also argued the evidence should have been suppressed because the search was conducted at his girlfriend’s residence and not the residence listed on his parole plan, and his reduced expectation of privacy did not extend to his girlfriend’s residence. The fifth circuit found the record indicated the defendant was residing at his girlfriend’s apartment. The parole officer testified the defendant was never at his mother’s residence when | ^he went to visit the defendant even though the address was listed as the defendant’s residence on his parole plan. The defendant told his parole officer on January 19, 2006, and January 26, 2006, that he was living with his girlfriend at her apartment, and the officer could visit him there. When the parole officer conducted a residence check on January 31, 2006, the defendant was at the apartment, and the parole officer found some of the defendant’s belongings in the apartment. The fifth circuit found that because the defendant resided with his girlfriend, his parole officer had the right to enter the residence and speak to him due to this decreased expectation of privacy-

During the residence check, the defendant and his parole officer spoke in the front room. The defendant then said he had to brush his teeth, which the parole officer thought was odd. The parole officer followed the defendant down the hallway. “At that time he looked ‘catty-corner’ and saw a gun in plain sight on the bedroom dresser.” Id. at 1170. Because the defendant had violated his parole by having a gun in his residence, the defendant was handcuffed, and a search of his apartment was conducted. The fifth circuit noted:

Under the plain view doctrine, if police officers are lawfully in a position from which they view an object that has an incriminating nature which is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. State v. Manson, [01-159 (La.App. 5 Cir. 6/27/01),] 791 So.2d [749,] 757. Because the parole officer had the authority to enter defendant’s residence due to his status as a parolee, the parole officer had the right to seize the gun he saw in plain view. Since the parole officer then had reasonable suspicion of criminal activity, he was authorized to conduct a thorough search of the apartment. State v. Saulsby, [04-880 (La.App. 5 Cir. 12/28/04),] 892 So.2d [655,] 658.

Id. at 1172.

Although the defendant and O’Brien denied the defendant lived at the apartment and the defendant’s parents testified that he lived with them, the defendant was not at the home of his parents when Officer Hardy stopped by on l^five occasions during July. Additionally, the defendant told Officer Hardy that he spent several nights a week at his girlfriend’s apartment. Moreover, Officer White testified that O’Brien indicated the defendant lived at the apartment. Furthermore, the defendant’s identification was found in the chest of drawers in the master bedroom, and Officer Hardy observed men’s clothing and a pair of tennis shoes in the closet. When Officer Hardy arrived at the apartment the first time, the defendant was obviously sleeping there. Based on this information, we conclude the defendant resided at the apartment at issue.

Because the defendant was residing at the apartment, the parole officer had the right to conduct a search. She had been provided information that the defendant had been seen in possession of a firearm and was involved in narcotics. The Lafayette detectives wanted to question him in reference to a homicide. She walked into the master bedroom and saw a narcotics scale and an empty gun holster sitting in plain view. The subsequent search, which produced the gun and narcotics was justified in carrying out her duties as a parole officer.

In State v. Hamilton, 02-1344 (La.App. 1 Cir. 2/14/03), 845 So.2d 383, writ denied, 03-1095 (La.4/30/04), 872 So.2d 480, the defendant was on parole for a conviction of drug possession. The parole officers and a local detective received a tip from an anonymous informant that the defendant was selling cocaine and there was cocaine in a dresser in his bedroom. The detective contacted one of the parole officers, and the parole officer told the detective he would be performing a residence check at the home and asked for assistance. Later that day, parole officers and police conducted a search of the defendant’s home which revealed the presence of cocaine.

In concluding the search was not a subterfuge for a criminal investigation, the first circuit noted the parole officers planned to carry out the residence check laifrom the tip received from the informant before they had contact with the detectives. There was not an ongoing investigation at the time of the search, and the detectives were present to assist the parole officers. The first circuit also found the facts supported a reasonable suspicion that the defendant may have been violating his parole. The parole officer knew of the defendant’s previous drug conviction, and the information received from the informant was consistent with the same behavior. The first circuit further found the scope of the search was not unreasonable, stating the following:

When the defendant arrived home, the agents and officers informed him of the reason for the residence check and the defendant allowed them to enter the home. Before discovering the substance suspected to be cocaine, Agent Phelps limited the search to the master bedroom in accordance with the information received in the tip. Agent Roberts and Sergeant Swann remained in the front of the home with the defendant. The defendant was handcuffed as a precautionary measure. Detective Mistretta and Detective Hover assisted Agent Phelps with the search of the bedroom. Detective Hover located the hidden compartment in the dresser of drawers. Agent Phelps opened the compartment and discovered the substance later determined to be cocaine. As previously-discussed, the parole officers’ justification for initiating the search arose from their reasonable suspicion that the defendant was in violation of his parole. This reasonable suspicion was based on information received in a tip from a female informant who told the officers where drugs could be specifically located in the defendant’s home.

Id. at 389.

In the matter before us, we find the parole officer’s search of the premises was reasonable and in accordance with the performance of her duties as a parole officer. We do not find the search was a subterfuge for a criminal investigation. Officer Hardy was required to make a “field” visit to the defendant’s residence before the end of the month. She only went to the Lafayette residence after five failed attempts to visit him over a two week period of time at the address he had given her in Kaplan. She then went to Lafayette, to the address provided to her by the defendant, and where evidence supports a finding that he was actually living. 12r,She had been provided information that the defendant had been seen with a gun, which was a crime since he was a convicted felon. She had also been provided information that he was involved in narcotics. Knowing the Lafayette detectives wanted to question him in reference to a homicide, she contacted them and told them she was attempting a visit at the Lafayette address and would notify them if he was there. When she found him at home, she called them.

Officer Hardy testified that she did not search the apartment the first visit for safety reasons, stating she does not search a premise alone. After the detectives arrived, she reentered the apartment, told the defendant the detectives wanted to talk to him, and then conducted a reasonable search of the area the defendant occupied. Likewise, the search of the cigarette pack was reasonable in light of the circumstances and within her authority under the terms of his parole. We find no error in the trial court’s denial of the motion to suppress evidence.

ASSIGNMENT OF ERROR NUMBER TWO

In his third assignment of error, the defendant contends the trial court erred when it granted his Batson challenge but failed to grant him any relief. The defendant mischaracterizes the trial court’s ruling. The defendant entered an objection to the state’s peremptory challenge of four potential jurors, all of whom were black.

“In Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)], the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race.” State v. Anderson, 06-2987, p. 41 (La.9/9/08), 996 So.2d 973, 1004, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009) (footnote omitted); see also State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032, writ denied, 11-46 (La.6/3/11), 63 So.3d 1006.
A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory ^challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”
Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006) (citations omitted).
The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. When a defendant voices a Batson objection to the State’s exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor’s race-neutral explanations to be credible. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”
Anderson, 996 So.2d at 1004 (citations omitted).

State v. Bivens, 11-156, pp. 18-19 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, 796-97, writ denied, 11-2494 (La.3/30/12), 85 So.3d 115.

In this case, the trial court determined that the defendant had established a systematic exclusion of black veniremen from the jury, the first step in the Batson inquiry. It further found that the state gave credible race neutral reasons for exercising challenges as to each potential juror. Therefore, there was no finding of a Batson violation. The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. This assignment of error lacks merit.

J^CONCLUSION

The defendant’s convictions and sentences are affirmed. The case is remanded for the trial court to inform the defendant of the delays for seeking post-conviction relief as instructed herein.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . This witness’s first and last names were spelled differently in the transcripts of trial and the motion to suppress. We have used the spelling found in the trial transcript.

      . Louisiana parole regulations are applicable to the Defendant pursuant to the Interstate Compact for Adult Supervision. See www. interstatecompact.org.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Kimberly Crittenden DAIGLE v. MERRILL LYNCH, Pierce, Fenner & Smith, Inc. and Kenneth Paul Daigle.
    No. 12-1016.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      See also 85 So.3d 168.
    Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Defendant/Appellant, Kenneth Paul Daigle.
    Gerald H. Schiff, Armistead M. Long, Ashley S. Green, Gordon, Arata, McCol-lam, Duplantis & Eagan, LLC, Lafayette, LA, for Plaintiff/Appellee, Kimberly Crit-tenden Daigle.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILION, Judges.
   GENOVESE, Judge.

11 Defendant, Kenneth Paul Daigle, appeals the trial court’s grant of a motion for partial summary judgment in favor of Plaintiff, Kimberly Crittenden Daigle. Ms. Daigle has answered the appeal, seeking damages for frivolous appeal. For the following reasons, we reverse the trial court’s grant of the partial summary judgment and we deny Ms. Daigle’s request for damages for frivolous appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiff and Defendant were married on April 2, 1994. On October 22, 2002, they jointly filed a Petition for Approval of Matrimonial Regime of Separation of Property in the Sixteenth Judicial District Court (16th JDC), Iberia Parish. Concomitant with their petition, on October 22, 2002, the parties entered into a Partition of Community Property Agreement, hereinafter referred to as the “Partition Judgment”, and a judgment approving the Contract for Separation of Property Regime was signed by the trial court. The parties later instituted divorce proceedings in Iberia Parish and were granted a divorce on November 30, 2005.

On June 1, 2005, Ms. Daigle initiated separate proceedings in the Fifteenth Judicial District Court (15th JDC), Lafayette Parish, by filing a Petition for Monies Due, Damages, and for Physical Possession of Property against Mr. Daigle and his employer at that time, Merrill Lynch. On December 17, 2008, Ms. Daigle filed a Petition to Make Judgment Executory and for Garnishment in the 15th JDC, |2seeking to make the Partition Judgment of October 22, 2002, rendered in the 16th JDC executory.

On February 15, 2011, Ms. Daigle filed a Second Supplemental and Amended Petition for Enforcement of Contract or Separation of Property and Partition Agreement, Qualified Domestic Relations Order, Legal Interest, and Attorney’s Fees in the 15th JDC. After Mr. Daigle answered this petition, Ms. Daigle filed a motion for partial summary judgment, asserting that pursuant to the terms of the Partition Judgment of October 22, 2002, she was entitled to “a money judgment in her favor and against Kenneth Paul Daigle ... in the amount of one million five hundred thousand dollars ($1,500,000.00), plus legal interest, attorneys’ fees and costs.” The trial court granted Ms. Daigle’s motion for partial summary judgment and signed a judgment consistent therewith on May 31, 2012.. Mr. Daigle has appealed this judgment, and Ms. Daigle has answered the appeal.

ASSIGNMENT OF ERROR

On appeal, Mr. Daigle contends that “[t]he trial court erred as a matter of law in adding legal interest to a prior final judgment — here, the Partition Judgment of October 22, 2002 — that is silent as to that issue.” In her Answer to Appeal, Ms. Daigle seeks an award of damages for frivolous appeal.

LAW AND DISCUSSION

As phrased by Mr. Daigle, “the controversy stems from the trial court’s award of legal interest, not on the Judgment being appealed, but a prior final judgment that was silent as to that issue. The appropriateness of the interest award is the only issue on appeal.”

Mr. Daigle seeks a de novo review of the record, asserting that “[w]hen, as here, the trial court misapplies the law, the standard of appellate review is de novo review.” A de novo review is the proper standard of review in a summary | .judgment case where there are contested issues of fact. Guillot v. Guillot, 12-109 (La.App. 3 Cir. 6/6/12), 92 So.3d 1212. However, “[i]n a case where there are no contested issues of fact[] and the only issue is the application of the law to the undisputed facts, ... the proper standard of review is whether or not there has been legal error.” Tyson v. King, 09-963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 720 (quoting Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, writs denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055, and the cases cited therein). In this case, there are no facts in dispute; therefore, the proper standard of review is whether the trial court’s grant of Ms. Dai-gle’s motion for partial summary judgment constituted legal error.

The relevant portions of the October 22, 2002 Partition Judgment are as follows:

(1) KENNETH PAUL DAIGLE does herewith bind and obligate himself to pay unto KIMBERLY CRITTEN-DEN DAIGLE the following sums, to-wit:
(a) THREE HUNDRED THOUSAND AND NO/100 ($300,000.00) DOLLARS, cash, due and payable immediately upon the execution of this PARTITION OF COMMUNITY PROPERTY AGREEMENT BETWEEN KENNETH PAUL DAIGLE AND KIMBERLY CRIT-TENDEN DAIGLE (herein “AGREEMENT”) by the said KIMBERLY CRITTENDEN DAIGLE.
(c) ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,000.00) DOLLARS, cash, each year following the execution of this Agreement for a period of ten (10) consecutive years, the first of such annual payments due and payable within one (1) year from date of execution hereof; provided, however, if such amount does not equal fifty (50%) percent of KENNETH PAUL DAI-GLE’s yearly gross after tax earnings, then and in such event, the said KENNETH PAUL DAIGLE shall pay such additional sum of money each year to equal the aforesaid percentage of KENNETH PAUL DAIGLE’s total annual net annual Learnings from his endeavors, such annual payments to continue for the aforementioned ten (10)-year period of time.

By contrast, the May 31, 2012 judgment provides, in pertinent part: “IT IS ORDERED, ADJUDGED AND DECREED that Kim Daigle’s Motion for Partial Summary Judgment is GRANTED. As a consequence of the foregoing finding of law, Judgment is granted in favor of Kim Dai-gle and against Ken Daigle in the amount of $1,500,000.00 plus legal interest from the date each payment was due[.]”

A perusal and comparison of the foregoing judgments reveals that the May 31, 2012 judgment contains an obvious and substantial modification of the Partition Judgment by the inclusion of an award of legal interest. Neither statute nor jurisprudence allows for such a modification.

Louisiana Code of Civil Procedure Article 1951 provides that a final judgment may be amended under very limited circumstances. “A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.” Id. Moreover, as Mr. Daigle notes, this article “provides no authority for the trial court to amend its own final judgment to award judicial ■ interest, let alone to amend a final judgment of another court.” In this ease, the May 31, 2012 judgment of the 15th JDC impermissibly makes such an amendment to the Partition Judgment of the 16th JDC.

A similar claim made for interest was previously disallowed by this court in Gremillion v. Gremillion, 10-05 (La.App. 3 Cir. 7/7/10), 43 So.3d 1063, writ denied, 10-2125 (La.12/10/10), 51 So.3d 726, which we find persuasive. In Gremillion, this court opined as follows:

In her first issue raised, Mrs. Gremil-lion argues that the trial court erred by finding that she was not entitled to legal interest on her prior money judgment in the December 11, 2006 judgment. She states that jurisprudence provides that judicial interest from the date of judgment is appropriate in cases where an equalizing payment is awarded in the division of community property, even in instances where the judgment is silent on the award. See Reinhardt v. Reinhardt, 99-723 (La.10/19/99), 748 So.2d 423; Manno v. Manno, 01-2138 (La.App. 1 Cir. 10/2/02), 835 So.2d 649.
While we agree in principal with the holdings in Reinhardt and Manno, we find that both are distinguishable from the interest issue before us. In Reinhardt, the supreme court was not faced with a judgment silent as to interest. Instead, it was called upon to resolve the conflict among the appellate circuits as to when interest was to begin to run on a judgment. It concluded that interest was to run from date of judgment and not date of filing. The court in Manno, amended the judgment being appealed to provide for an interest award.
In the matter before us, Mrs. Grem-illion argues that she is entitled to an interest award, not on the judgment being appealed, but on a prior final judgment that was silent as to that issue. We rejected this argument in the recent case of Glass v. Glass, 08-1328 (La.App. 3 Cir. 4/1/09), 7 So.3d 118, writ denied, 09-988 (La.6/19/09), 10 So.3d 743. Specifically, we held that once a judgment becomes final, no court is authorized to amend or modify its terms. See La.Code Civ.P. art. 1951; Stevenson v. State Farm, 624 So.2d 28 (La.App. 2 Cir.1993).
We find no merit in this argument on the interest issue.

Id. at 1066-67 (second emphasis added).

Ms. Daigle’s present claim for legal interest is indistinguishable from those claims asserted in Gremillion. Ms. Dai-gle’s claim is based upon the prior final judgment that was silent as to interest. The Partition Judgment of the 16th JDC is final, and Louisiana Code of Civil Procedure Article 1951 only empowers that court to amend that judgment for the limited purposes set forth in the article. However, neither the 16th JDC nor any court of another jurisdiction has the authority to substantively amend the Partition Judgment to now include an award Rof legal interest.

Finally, in her Answer to Appeal, Ms. Daigle seeks an award of damages for frivolous appeal. However, having found merit in Mr. Daigle’s appeal and having reversed the trial court’s grant of partial summary judgment, we deny Ms. Daigle’s claim for damages for frivolous appeal.

DECREE

For the foregoing reasons, we reverse the May 31, 2012 judgment of the trial court granting the motion for partial summary judgment in favor of Plaintiff, Kimberly Crittenden Daigle, and we deny Ms. Daigle’s request for damages for frivolous appeal. All costs of this appeal are assessed to Kimberly Crittenden Daigle.

REVERSED.

      . The instant litigation has a lengthy procedural history and has been before this court twice before on appeal. For a detailed discussion of same, see Daigle v. Merrill Lynch, 11-965 (La.App. 3 Cir. 2/8/12), 85 So.3d 168, writ denied, 12-523 (La.4/13/12), 85 So.3d 1253.

      . Merrill Lynch was voluntarily dismissed from this suit in January 2008. Ms. Daigle later filed a First Supplemental and Amended Petition for Relief, Damages, and Attorney Fees and Return of Funds Held by Defendants Illegally and in Violation of Partition Agreement wherein she named as an additional defendant, a subsequent employer of Mr. Dai-gle, Linsco/Private Ledger Corp. (LPL). These claims were also dismissed.

      . In support thereof, Mr. Daigle cites Glass v. Glass, 08-1328 (La.App. 3 Cir. 4/1/09), 7 So.3d 118, writ denied, 09-988 (La.6/19/09), 10 So.3d 743.

      . See Sanders v. American Fidelity Fire Ins. Co., 98-308, p. 5 (La.App. 3 Cir. 9/23/98), 750 So.2d 210, 213, wherein this court stated: "The modification of the judgment in the case sub judice adds legal interest for ten years, a substantial sum. There was no agreement of the parties to do so. It is a substantive amendment to the judgment in this case.”


author: SAUNDERS, J. CONERY, J.,

text:
    Quincy L. CAWTHORNE v. Jace FOGLEMAN, et al.
    No. 12-870.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Edward 0. Taulbee, IV, Taulbee & Associates, Lafayette, LA, for Defendant-Appellee, Southern Farm Bureau Cas. Ins. Co., Michael Fogleman, Jace Fogleman.
    Pride Justin Doran, Doran Law Firm, Opelousas, LA, for Plaintiff-Appellant, Quincy L. Cawthorne.
    Court composed of JOHN D. SAUNDERS, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   SAUNDERS, J.

|, This case arises out of an automobile accident in Lafayette, Louisiana. Plaintiff brought suit alleging injury arising out of said automobile accident. A jury found no negligence on the part of Defendant and the trial court thereby dismissed the suit. Plaintiff appeals.

FACTS AND PROCEDURAL HISTORY

On April 8, 2009, at approximately 3:58 p.m., Plaintiff, Quincy Cawthorne (“Cawt-horne”), was travelling westbound on Johnston Street in Lafayette, Louisiana, in his 2007 GMC Yukon. At about that same point in time, Defendant, Jace Fogleman (“Fogleman”), was leaving his condominium at 2202 Johnston Street in his 2006 Chevrolet Malibu. Fogleman exited the private driveway of his complex, turning right into the outside westbound lane onto Johnston Street. When he did so, or shortly thereafter, the two cars collided.

Officer Chadwick Fontenot (“Office Fon-tenot”) of the Lafayette Police Department arrived on the scene shortly after to investigate the accident. He took two written statements from the parties. Cawthorne provided the following statement of events:

I was traveling west on Johnston Street when a car pulled out of a private drive onto Johnston Street. I attempted to avoid him but could not, because a car was beside me in the inside line [sic]. I was in the outside lane at the time of the accident. The driver stated that he did not see me.

Fogleman also provided the investigating officer with a written statement of the events:

I was turning out of 2202 Johnston and was turning right with my blinker on. It was safe to get into the right lane. There were no blinkers indicating that a vehicle needed to switch lanes. I pulled out of my drive and began to drive when I was hit by the Yukon.

12Fogleman additionally gave a verbal statement, which the officer summarized as indicating that Fogleman “exited a private lot, making a right turn onto Johnston Street. He stated it was clear for him to proceed. He stated that he was making a right turn when his vehicle collided with” Cawthorne’s vehicle.

Fogleman testified that this accident occurred because Cawthorne changed lanes, moving from the inside westbound lane and crossing the center line into Fogle-man’s lane of travel, without signaling and with no advance warning thereby striking Fogleman’s vehicle. Fogleman contended he completed his right turn into the outside lane and was fully occupying that lane.

In his accident report, Officer Fontenot established that the weather was clear and dry. There were no impediments to Fo-gleman’s field of vision from where he was turning. The speed limit was forty miles per hour, and there was no evidence of Cawthorne violating the speed limit.

Cawthorne filed suit on April 7, 2010, against Fogleman, Fogleman’s father, and their insurance company, asserting he suffered bodily injury, including, but not limited to, neck and back pain. Fogleman’s father was later dismissed. Cawthorne asserted at trial that, as a result of the accident, he sustained approximately $143,563.62 in past medical expenses. His treating physician, Dr. George Ray Williams (“Dr. Williams”), performed a lumbar fusion and also recommended a cervical fusion. Cawthorne also asserted that it was reasonable to expect he would incur at least $147,255.00 in future medical expenses as a result of the accident.

Fogleman asserted that he did not cause the accident, but rather it was due to Cawthorne’s fault. He offered accident reconstruction testimony by James Lock (“Lock”), as well as testimony by a diagnostic radiologist, Dr. Curtis Partington |3(“Pr. Partington”). The parties filed several motions in limine pertaining to the contested issues of whether Fogleman’s deposition would be allowed in lieu of his actual appearance at trial, whether Lock would be allowed to testify, and whether (and to what extent) Partington would be allowed to testify.

The trial court denied Cawthorne’s motions in limine pertaining to the above pretrial motions on February 22, 2012, and further denied his motion for reconsideration on the first morning of the trial. Trial began on February 27, 2012, and lasted for four days. The jury returned with a verdict in favor of Fogleman, finding he was not negligent. Cawthorne appeals.

ASSIGNMENTS OF ERROR

Cawthorne sets forth the following assignments of error:

1. The jury erred- in finding Fogleman bore no legal responsibility for the automobile accident.
2. The trial judge erred in allowing the introduction of Fogleman’s trial deposition, instead of requiring that he appear at trial.
3. The trial judge erred in allowing the testimony of James Lock.
4. The trial judge erred in not allowing Cawthorne to present a diagram of the accident scene prepared by Officer Fontenot.
5. The trial judge erred in allowing the testimony of Dr. Partington.
6. The jury erred by not making an award of damages.

LAW AND ANALYSIS

Standard of Review

An appellate court must do more than simply review the record for some evidence which supports or controverts a trial court’s finding; the appellate court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Johnson v. Safeway Ins. Co., 98-920 (La.App. 3 Cir. 1/6/99), 741 So.2d 32. An appellate court, even if it believes that errors committed at trial influenced the jury verdict, must undertake an independent evaluation of the facts and adjudicate the controversy before it. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976).

Where there is conflict in testimony as to which party’s negligence was the cause of the accident, a fact finder’s reasonable evaluations of credibility and inferences of fact should not be disturbed unless they are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992).

Therefore, to reverse a trial court’s determination of fact, 1) no reasonable factual basis must exist for the fact finder’s conclusions, and 2) the record must establish the fact finder is clearly wrong or manifestly erroneous. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

Assignment of Error No. 1: Jury Finding

The first issue raised on appeal by Cawthorne is the jury’s determination that Fogleman bore no legal responsibility for the accident. Our review of the record and facts recited show the evidence can be interpreted in two possible ways-one which would relieve Fogleman of liability and one which would hold him accountable. As discussed above, the manifest error rule states that an appellate court must give great deference to the fact finder’s reasonable conclusions. When there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Davis v. ENSCO Offshore Co., 06-197 (La.App. 3 Cir. 5/31/06), 931 So.2d 1194. In this case, there are two treasonable interpretations of the facts. Accordingly, we cannot reverse the jury’s finding of no legal responsibility on the part of Fogle-man.

Assignment of Error No. 2: Fogleman’s Trial Deposition

Fogleman was not present at trial because he voluntarily enrolled in a transitional program in Spokane, Washington, following his completion of a drug therapy program. He began seeking therapy in October of 2011 in Utah at a facility called “Legacy Outdoor Adventures” and completed the program in three months. He then voluntarily enrolled in the Washington program, “Life Designs,” which he alleged was for a minimum of five months. This, he asserts, made him unavailable to testify at trial in February of 2012, and necessitated the use of his trial deposition.

Louisiana Code of Civil Procedure Article 1450, in pertinent part, establishes the parameters for the use of deposition testimony at trial for a party or witness:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable; [or]
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition....

La.Code Civ.P. art. 1450(A)(3). Thus, the requirements for the admissibility of the deposition of a witness are twofold: (1) the deposition must be admissible under |6the Louisiana Code of Evidence and (2) the witness must be either (a) unavailable; (b) residing over one hundred miles from the place of trial without provocation by the party offering the deposition; or (c) in another state without provocation by the party offering the deposition.

When the deposition is sought to be used in place of the witness’ actual trial testimony, a showing of unavailability of the witness is required. Montgomery v. Breaux, 297 So.2d 185 (La.1974). A party who is not legally unavailable or who is intentionally absent from trial due to his choice to be out of state may not submit his deposition testimony in lieu of live testimony. Boutte v. ABC Ins. Cos., 00-0649 (La.App. 4 Cir. 2/6/02), 811 So.2d 30. A party whose absence from trial is attributable to his choice to be out of state on the date of trial is considered to have procured his own absence. Bruins v. U.S. Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3 Cir. 1983).

In Bruins, the defendant and his wife attempted to offer their depositions in lieu of appearing at trial but the trial court refused to admit the depositions finding that they “decided” to be out of Louisiana on the day of trial. Id. at 387. Defendant “was the party offering the depositions and was also the party ‘procuring’ the absence of the witnesses.” Id. As such, this violated La.Code Civ.P. art. 1450; defendant was not legally unavailable and was intentionally absent from trial due to his choice to be out of state; therefore, he could not submit his deposition testimony in lieu of live testimony when he procured that unavailability. La.Code Civ.P. art. 1450.

Life Designs is not a medical treatment facility as alleged by Fogleman in his trial deposition, but a therapeutic program for young adults that “offers fantastic opportunities for outdoor recreation.” The program was voluntary and served no medical purpose. At trial, his mother, Rebecca Fogleman, testified that it was |7“fair” to say her son was not receiving any medical treatment at Life Designs. She also denied that there was a doctor providing him with any type of medical treatment there.

No evidence was offered that Fogleman was unable to leave the center except for his own testimony. Fogleman admitted that he had never discussed with anyone at the program whether he could leave. In his trial deposition, Fogleman stated he never even inquired as to whether he could return to Louisiana to testify at trial and then return to the program. He stated an exception was allowed for him to give the deposition because it was “very important” to him, but he was unaware of the criteria for making an exception that would allow him to leave the facility or take a hiatus. He asserted the facility did not allow him to come and go freely or as he pleased.

Having permission to come and go freely is very different from the availability of permission to leave under extraordinary circumstances, such as being a defendant at trial. In the instant case, our review of the record shows Fogleman did not show he was legally unavailable. There is no credible proof that Fogleman could not make it to trial. The only evidence as to why Fogleman was unavailable was his own self-serving, and false, deposition statement that he was receiving some sort of medical treatment. In Bourgeois v. A.P. Green Indus., Inc., 06-87 (La.App. 5 Cir. 7/28/06), 939 So.2d 478, writ denied, 06-2159 (La.12/8/06), 943 So.2d 1095, the appeals court found the unavailability of a named plaintiff was not established since the only evidence as to his lack of availability came from hearsay evidence from the plaintiffs attorney, which could not be considered. Likewise, Fogleman’s self-serving statements on his ability to leave Life Designs, without more, are an insufficient showing of unavailability. “A party is not legally ‘unavailable’ as a witness simply because he eschews the trial.” Dickens v. Commercial Union Ins. Co., 99-698, 99-699, p. 5 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193, 1197.

In Dickens, the court of appeal’s review of the record showed that the plaintiff Dickens was absent because she chose to attend a conference in Florida rather than attend the trial of her claim. Dickens argued she was attending a national conference of which she was a member of the Board of Directors of the Baton Rouge Chapter. Nevertheless, the court held she was legally available and her absence was self-procured. Accordingly, she was not entitled to introduce her deposition testimony under Article 1450, and the trial court abused its discretion in permitting the introduction of her deposition testimony. Dickens, 762 So.2d 1193.

The instant case is also similar to Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98), 720 So.2d 1267, writs denied, 98-2907 (La.1/15/99), 736 So.2d 211 and 98-2970 (La.1/15/99), 736 So.2d 213, where the appeals court upheld a trial court’s finding that one of the plaintiffs, who was out of the country, chose to remain there and was available for trial. In that case, the husband was injured in an auto accident and filed suit to recover; his wife asserted a claim for loss of consortium. She did not appear at trial and the trial court excluded her deposition from evidence. The court noted that the record contained nothing to indicate the plaintiffs failure to attend trial was attributable to any reason other than her choice to remain in Lebanon. Id.

The trial court abused its discretion in permitting the use of Fogleman’s deposition. His live appearance was crucial for the jury to weigh the credibility of his testimony rather than glean what happened the day of the accident from the cold record of his deposition. Where there is such a crucial conflict in testimony, the jury’s core means of making reasonable evaluations of credibility and reasonable inferences of fact comes from witnessing live testimony. The use of a | ndeposition in lieu of a key party testifying should not be taken lightly. There is no supportable evidence in the record that Fogleman could not leave the program to testify at trial; it only reflects evidence that he chose to remain there. Choosing to stay at Life Designs in Washington was more for his convenience than out of necessity. As. such, it was self-procured. He was, therefore, legally available. Thus, we find that he was not entitled to introduce his deposition testimony in lieu of live testimony. Remand for a trial not inconsistent with this evidentiary holding is necessary in light of this finding.

Assignment of Error No. 3: James Lock Testimony

A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and this includes the determination of how much and what kind of education and/or training adequately qualifies the individual as an expert, and such judgment will not be disturbed by an appellate court unless it is clearly erroneous. Rhine v. Bayou Pipe Coating, 11-724 (La.App. 3 Cir. 11/2/11), 79 So.3d 430.

Louisiana Code of Evidence Article 702 sets forth the general rule for the admissibility of expert testimony in Louisiana:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

For the expert’s testimony to qualify as knowledge which would assist the trier of fact, it must meet four criteria originally established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by Louisiana courts. This inquiry serves to assist the trial judge in making a preliminary assessment as to the validity of the evidence because the trial judge is required to act as a gatekeeper in order to ensure “any and all scientific testimony Loor evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. These criteria include:

1. The “testability” of the expert’s theory or technique;
2. Whether the theory or technique has been subjected to peer review and publication;
3. The known or potential error rate; and
4. Whether the methodology is generally accepted in the scientific community-

Perret v. Nelson, 98-393, p. 11 (La.App. 5 Cir. 11/25/98), 722 So.2d 1118, 1123, writ denied, 98-3166 (La.2/12/99), 738 So.2d 575 (citations omitted).

Cawthorne asserts the trial court abused its discretion in accepting James Lock as an expert in the field of accident reconstruction and allowing him to present his expert opinions. Cawthorne argues Lock was unqualified, his opinions were based on nothing more than common sense, and Lock arbitrarily decided to believe or disbelieve one witness over the other.

Lock has thirty-seven years of experience in the field of accident reconstruction. He began his training in 1975 working for the Department of Transportation Institute at Texas A & M performing contract work for the United States Department of Transportation. During this six-year period, he performed thousands of accident investigation reconstructions. He also developed training courses in accident investigation reconstruction and trained others in the field. He has been accepted as an accident reconstruction expert by courts in Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, Indiana, Missouri, Tennessee, New York, Ohio, Michigan, South Dakota, California, Arizona, New Mexico, and Colorado. He has also performed work for various _J_yDepartments of Transportation including Louisiana, Texas, Missouri, Georgia, Florida, New Mexico, and Pennsylvania.

In conducting his accident reconstruction evaluation in the instant case, Lock employed peer-reviewed methodologies recognized and accepted in his field, including those outlined in the Northwestern Traffic Institute Manual. This methodology is generally accepted in the scientific community.

It was within the trial court’s discretion to rule that Lock was qualified to render expert testimony in his field of accident reconstruction. This was not clearly erroneous. The trial court did not abuse its discretion in accepting Lock as an expert. We do not find merit in this assignment of error.

Assignment of Error No. 4: Officer Fon-tenot Diagram

Cawthorne alleges the trial court abused its discretion in granting Fogle-man’s Motion in Limine excluding Officer Chadwick Fontenot’s diagram from evidence at trial. The trial court is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).

Officer Fontenot investigated the accident as an officer for the Lafayette Police Department. He did not witness the accident. Officer Fontenot further confirmed that the vehicles were moved prior to his arrival; there were no markings on the roadway related to the accident; there was no debris on or around the roadway related to the accident; and he did not perform any measurements during his investigation of the accident.

Officer Fontenot was never qualified, tendered, or accepted as an expert in this case. As part of the crash report made at the scene of the accident, Officer Fontenot prepared an unsealed diagram in which he marked an approximate area of impact. This diagram was not based on any measurements regarding distances 112and/or spacing of the relevant points, nor was it based on his observation of any physical evidence at the scene of the accident. In essence, Officer Fontenot arbitrarily identified and labeled points on the diagram.

Based on this context, the trial court excluded Officer Fontenot’s diagram on the basis that it had no probative value and was prejudicial. This exclusion is not clearly erroneous. The trial court did not abuse its discretion in excluding Officer Fontenot’s diagram. We do not find merit in this assignment of error.

Assignment of Error No. 5: Dr. Parting-ton Testimony

Cawthorne asserts the trial court abused its discretion in accepting Dr. Curtis Partington, a neuroradiologist and licensed medical doctor, as an expert in this case.

One of the issues presented to the trier of fact was the interpretation of Cawt-horne’s cervical MRI, performed on May 19, 2009, by Dr. David Jewell, regarding a possible abnormality at C4-5 and C5-6. Dr. Jewell performed the MRI upon the referral of Cawthorne’s treating orthopedic surgeon, Dr. George Williams. Dr. Jewell concluded the cervical MRI was normal at C4-5 and C5-6. Dr. Williams also interpreted the MRI and concluded there were abnormalities at C4-5 and C5-6 and these abnormalities warranted surgical intervention. Thereafter, Fogleman asked Dr. Curtis Partington to review the MRI and formulate a third opinion. Dr. Partington was not asked to physically examine Cawthorne, as is the standard in neuroradiology, only to review the cervical MRI for the existence of abnormalities.

Dr. Partington has been practicing radiology in Baton Rouge, Louisiana, for twenty-one years and has been certified in the subspecialty of neuroradiology since the Board of Neuroradiology was created about sixteen years ago. Neuroradiology, a subdiscipline of radiology, deals with diagnostic imaging of the 113brain and spinal cord. Cawthorne stipulated to the qualification of Dr. Partington in Dr. Parting-ton’s trial deposition.

On appeal, Cawthorne focuses on the fact that Dr. Partington did not physically examine Cawthorne or review Cawthorne’s documentation as to specific pain complaints, and that Dr. Partington was rejected as an expert previously for not physically examining a patient. It is clear that this methodology is generally accepted in the field of neuroradiology, as no physical examination is required to interpret an MRI. Thus, we find that the trial court did not abuse its discretion in accepting Dr. Partington as an expert witness in his field of neuroradiology. We do not find merit in this assignment of error.

CONCLUSION

We have noted in the assignment of error number two that the use of Fogle-man’s trial deposition in lieu of his live testimony was in error. When appropriate, appellate courts render judgments on the merits when the trial court has made a consequential but erroneous ruling on the exclusion or admission of evidence. Builliard v. New Orleans Terminal Co., 185 La. 924, 171 So. 78 (1986). See also Gonzales v. Xerox, 254 La. 182, 320 So.2d 168 (1975) and cases cited therein.

Therefore, “[w]here a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.” Ragas v. Argonaut Sw. Ins. Co., 388 So.2d 707, 708 (La.1980). However, “[t]here are cases where the weight of the evidence is so nearly equal a firsthand view of witnesses is essential to a fair resolution of the issues.” Id. “The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from | uthe cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.” Id.

In applying this standard, it is clear that the instant case is one in which it would be inappropriate for adjudication by an appellate court. As such, remand for a trial not inconsistent with this evidentiary holding is appropriate in light of our findings. We reverse the trial court’s decision to allow Fogleman to submit a deposition in lieu of his live testimony.

DECREE

Fogleman was not unavailable as required for use of a deposition by La.Code Civ.P. art. 1450, given that he made an insufficient showing of unavailability. The trial court abused its discretion in finding otherwise. Thus, he should not have been permitted to use a trial deposition in lieu of his live testimony. Given that the weight of evidence is so nearly equal that firsthand view of witnesses is essential to a fair resolution of the issues, the case is not appropriate for appellate adjudication. We reverse the trial court’s decision to allow Fogleman to submit his deposition in lieu of his live testimony and remand the matter to the trial court for results not inconsistent herewith.

Costs of this appeal are assessed to Fo-gleman.

JUDGMENT OF DISMISSAL VACATED. REMANDED WITH INSTRUCTIONS.

CONERY, J., concurs with reasons.

CONERY, J.,

concurs and assigns reasons.

LI concur with the majority on the record as it is presently constituted.. For the reasons set forth in the opinion, I agree that the defendant has not met his burden of proving a legally acceptable reason for his client’s absence at trial and therefore the defendant’s deposition should not have been admitted. The issue of credibility is crucial in this case and it is necessary, absent exceptional circumstances, that the defendant be present for in person testimony and for the defendant’s cross examination in the presence of the jury. A key issue in the case was the location of plaintiffs vehicle when defendant pulled out of the parking lot onto Johnston Street. The plaintiff had the right to cross examine the defendant on this and other key issues in the presence of the jury so that the jury could properly perform its duty to weigh witness credibility and find the facts. Voluntary absence on the part of the defendant, especially in a jury case, should not be excused absent special and exceptional circumstances not proven by the defendant on the record of this case.

      . Fogleman's father was later released from this suit.


author: GREMILLION, Judge.

text:
    Paula JOURNET and Paula Journet on Behalf of Jaylon Journet and Jaleigh Journet v. Clifford MOUTON, et al.
    No. 12-812.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    James L. Pate, Jason T. Reed, Laborde & Neuner, Lafayette, LA, for Defendants/Appellees, Sheriff Ronnie Theriot, Deputy Clint Aubrey, St. Paul Fire and Marine Insurance Company.
    Kenny Layne Oliver, David Oliver Way, Oliver & Way, Lafayette, LA, for Defendant/Appellee, Avis Budget Car Rental, LLC.
    Joslyn Renee Alex, Attorney at Law, Breaux Bridge, LA, Pride Justin Doran, Quincy L. Cawthorne, Doran & Cawt-horne, P.L.L.C., Irvin J. Celestine, Jr., Attorney at Law, Opelousas, LA, for Plaintiff/Appellant, Paula Journet.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ,For the reasons set forth in Journet v. Mouton, 12-811 (La.App. 3 Cir. 2/6/13), 107 So.3d 829, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiff/appellant, Paula Jour-net.

AFFIRMED.

GENOVESE, J., concurs in the result.