author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Donald DAVIS, Individually and on Behalf of his Deceased Mother, Cynthia Tuckson v. CANADIAN NATIONAL RAILWAY, City of Kenner, State of Louisiana Through the Department of Transportation and Development, Denver F. Dickens, and Chad Bishop.
    No. 13-CA-198.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.
    Rehearing Denied Nov. 21, 2013.

      Harry E. Forst, Attorney at Law, New Orleans, Louisiana, for PlaintiffiAppellant, Donald Davis, Individually and on Behalf of his Deceased Mother, Cynthia Tuckson.
    David S. Kelly, Bradley R. Belsome, Crystal E. Domreis, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees, Illinois Central Railroad Company, Denver F. Dickens and Chad Bishop.
    Francine Weaker, Leigh H. Roussel, Attorneys at Law, Kenner, Louisiana, for Defendant/Appellee, The City of Kenner.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

12This suit involves a railroad grade crossing accident in which a pedestrian was killed. The plaintiff appeals a judgment that granted motions for summary judgment in favor of two defendants. We reverse and remand.

FACTS

On July 25, 2009, Cynthia Tuckson, who was deaf, was killed by a train while walking across the railroad tracks at Taylor Street in Kenner. Her son, Donald Davis, filed suit against Illinois Central Railroad Company (IC), the City of Kenner, and others. The plaintiffs contentions are that the Taylor Street crossing was unreasonably dangerous and that the defendants should have installed an active warning system in 2009.

IC and Kenner filed motions for summary judgment.

The following facts were uncontested: At approximately 7:20 p.m. Ms. Tuckson, who was walking north on Taylor Street, attempted to cross the tracks without first looking to see whether there was rail traffic approaching. It was daylight. She was struck and killed by an oncoming train that was moving at ^approximately 26 miles per hour, sounding its horn, and ringing its bell. The traffic control devices in place for roadway traffic using the Taylor Street crossing were post-mounted cross buck signs. The train had its headlights on at high-beam and its auxiliary lamps were lit. The engineer began applying the emergency brakes when the front end of the train was approximately 130 feet from the western edge of Taylor Street, or more than three seconds before the fatal impact occurred, while Ms. Tuck-son was alongside the cross buck sign in the southeast quadrant of the crossing, 15 feet or more from the closest rail of the southernmost track. It took 25 to 26 seconds for the train to come to a complete stop, during which time the train traveled 600 feet. Ms. Tuckson lived in the vicinity of the railroad crossing and was familiar with the Taylor Street crossing, having traversed it many times prior to the accident. Ms. Tuckson was deaf, but she did not suffer from any vision handicap. If she had stopped at the cross buck sign and looked both ways for approaching rail traffic, she could have seen the oncoming train before she walked up on to the tracks in front of the train.

IC provided video footage of the accident itself. The train’s locomotive was equipped with a dash-mounted, forward-focused video camera that captured in real time the events leading to the accident. As the train approached Taylor Street, the video footage shows Ms. Tuckson was walking steadily toward the tracks, gazing straight ahead without looking to either side. The video has an audio track, so the viewer can hear the train’s horn sounding and its.bell ringing continuously, and the sound of the air brakes as they were applied. The video shows that the train arrived at the Taylor Street crossing just as Ms. Tuckson was stepping onto the first track. Due to the height of the locomotive cab in which the camera was placed, the video does not show Ms. Tuckson as the train struck her. The train locomotive came' to a full halt at the next street crossing beyond Taylor Street.

|4The plaintiffs expert in accident reconstruction, James R. Loumiet, found that the actions of the train crew in handling the train — horn, speed, braking — were reasonable and proper under the circumstances and that there was nothing the crew could have done under those circumstances to avoid the accident. However, Loumiet opined that the Taylor Street crossing was extra-hazardous and in need of an active warning system due to. sight distance restrictions, parallel roads, multiple railroad tracks, the raised hump where Taylor Street intersects with the tracks, high train volume, school buses and large trucks using the crossing, the collision record, and lack of active warning devices.

In opposition to the motions for summary judgment, the plaintiff presented an affidavit by Roger P. Perkins, Sr., dated August 26, 2011. In it Mr. Perkins made the following statements: He owns Perkins Restaurant & Sports Club located at 500 Taylor Street in Kenner; he has been president of Concerned Citizens Civic Coalition for approximately 15 years; he has known Cynthia Tuckson for 20 years, and he knew she was deaf. On the date of Ms. Tuckson’s accident, there were two parties going on at the Rose Minor Park, which faces Taylor Street and is next to the railroad crossing at Taylor Street. In 2009, there were three local streets, including Taylor Street, Jackson Street- and Webster Street, that did not have active warning signs or crossing gates on them. “All these streets are in a predominately African American and low income community.” In the years prior to July 25, 2009, there have been people injured and killed at the Taylor Street, Jackson Street, and Webster Street [crossings]. On several occasions prior to July 25, 2009, he spoke with the Kenner city councilman who represented the district about the need to install crossing gates and blinking signals for the Taylor Street, Jackson Street, and Webster Street crossings. “Kenner Public Works, City of Kenner Department of Parks and Recreation, Kenner Code Enforcement, and |fithe Kenner Police Department travel these streets all the time and should have been aware that there were no active warnings of the crossing nor did they have crossing gates.” “A cduple of months ago, active barricades with flashing lights and crossing arms were installed on Taylor Street and Webster Street crossings.”

The plaintiff listed the following in his Statement of Contested Facts: (1) IC and Kenner knew of the accident history of the Taylor Street crossing; (2) IC and Kenner knew that two mainline tracks warranted active warning devices; (3) the area of Taylor Street between the railroad right-of-way was controlled by Kenner or the railroad; (4) sight-restricting vegetation was in the railroad’s right-of-way; (5) the Taylor Street crossing should have had active warning devices before Ms. Tuck-son’s July 25, 2009 accident; (6) there were multiple causes of the July 25, 2009 accident; (7) IC and Kenner knew that the Taylor Street crossing was unreasonably dangerous; (8) the conduct of IC and Ken-ner was a cause-in-fact of the resulting harm; and (9) Cynthia Tuckson looked to her left before she began her walk towards the Taylor Street crossing.

In reply to the opposition, IC objected to the Perkins affidavit, arguing various statements by Mr. Perkins are inadmissible because the plaintiff laid no predicate and the affiant established no personal knowledge for his assertions. The challenged statements include that there were two parties going on at Rose Minor Park on the day of Ms. Tuckson’s accident; that people have been injured or killed at the crossings at Taylor Street and two other streets; that he discussed the “need to install crossing gates and blinking signals” with the then-councilman for the district; that various Kenner department employees were on “these streets all the time.”

IC also objected in its reply memorandum to some statements by James Loum-iet. Specifically, IC challenged Loumiet’s statement that he observed and |fimeasured “sight-obstructing vegetation within IC’s right-of-way when he inspected the accident location on May 8, 2012.” IC pointed out that Loumiet does not describe the precise location of the vegetation in relation to Taylor Street, although he claims that the vegetation obstructed Cynthia Tuckson’s view of the oncoming train that ultimately struck her. IC notes that Loumiet was not present at the scene when the accident occurred, and his inspection was nearly three years later. His affidavit includes no predicate for the assumption that the condition of the vegetation on May 8, 2012 was identical to its condition on July 26, 2009. IC referred to photographs, attached as an exhibit to its memorandum, that were taken within a few days of the accident and- also to the video recording from the train’s camera. IC also pointed to Loumiet’s admission that his analysis addressed the risks posed to operators of motor vehicles using the crossing, not the risks it posed to pedestrian users. Loumiet acknowledged there clearly is a difference.

IC further objected to Loumiet’s use of train and vehicle traffic count information from the Federal Railroad Administration crossing inventory database, as well as accident history data gathered and maintained by the Federal Railroad Administration, because federal law prohibits the use of such materials for any action for damages such as in this case. IC referred to 23 U.S.C. § 409 and Long v. State, DOTD, 2004-0485 (La.6/29/05), 916 So.2d 87.

The district court granted summary judgment in favor of both defendants, ruling that Ms. Tuckson was the sole cause of the accident.

In written reasons for judgment, the court discussed the evidence offered in support of and against summary judgment, noting, “plaintiffs mother [had] an unobstructed view of at least 800 feet” and “plaintiffs own expert, James Loumiet, confirmed that in this case, a pedestrian standing as cióse as five feet from the nearest rail of the track would not be in danger of being struck by a passing train.” |7The court stated further, “this crossing was not a dangerous trap, and plaintiff’s mother had ample opportunity from a position of perfect safety to see what she should have seen had she simply looked as she was legally obligated to do.” (Emphasis added.) The court found that a railroad company has no legal duty to install an additional traffic control device, under La. R.S. 32:169(E).

The court concluded,

The Court must note that it viewed the video which, disturbingly, shows plaintiffs mother stepping into the path of a moving train, which (despite the fact that she could not hear it) was constantly blowing its whistlei without taking even a moment to look both ways before she crossed the tracks. The video and photographs submitted by the defendants also make perfectly clear that plaintiffs mother’s view of the oncoming train was in no way obstructed, had she chosen to turn her head in its direction. Although the Court sympathizes with plaintiff, it is, sadly, clear that had his mother done what a reasonable person under the circumstances should have done, this tragedy would have been avoided.

ARGUMENTS

On appeal, the plaintiff makes two assignments of error:

(1) The trial court erred in finding Cynthia Tuckson the sole cause of the train-pedestrian accident. The plaintiff contends that in a railroad crossing accident, causation is a fact-specific inquiry requiring the factfinder to weigh the conduct and knowledge of-the pedestrian, the railroad company, and the municipality, thereby making a motion for summary judgment highly improbable..

(2) The trial court erred by not allowing a jury to determine if the Taylor Street crossing was unreasonably dangerous, necessitating an active warning system in 2009. The plaintiff argues that to determine if a railroad crossing is unreasonably dangerous, requiring an active warning system, the trier of fact must consider a host of factors, including sight obstructions, train volume, dual tracks, |8parallel roads, accident history, types of vehicles and citizens using the crossing, and location of the crossing.

In opposition, IC contends it is not liable for this accident because the plaintiff cannot show that IC breached any duty owed by it to Ms. Tuckson (that is, to pedestrian users of the Taylor Street railroad grade crossing), or that any alleged breach of a duty owed was the legal cause of the claimed damages.

IC contends, first, it complied with all obligations owed to roadway users attempting to cross its tracks at the public highway grade crossing — specifically, the cross buck signs regulating traffic on Taylor Street, as required by La. R.S. 32:169(A); sounding the train’s horn for the prescribed times and distances set out in 49 C.F.R. § 222.21; and maintaining track speed within the limits set by 49 C.F.R. § 213.307 and 49 C.F.R. § 201.01 et seq.

Second, IC asserts that Taylor Street was not a “dangerous trap” to Ms. Tuck-son. A “dangerous trap” exists only where the view of the roadway user is so obstructed as to require the user to place himself in a position of peril dangerously near the fi’acks to have a view of any oncoming train. Here, had Ms. Tuckson looked both ways before she started across the track, she would have easily seen the train approaching.

Third, IC contends that the foundation of the plaintiffs case against IC is “entirely illusory,” because the plaintiff hypothesizes that if the Taylor Street crossing had been signalized before this accident, the accident would never have happened. IC asserts this is an incorrect application of duty/risk analysis, because it is an “if/ then” showing of accident avoidance. The duty, if any, owed is to be fashioned on a case-by-case basis, based on the facts of the case at hand. To prevail on this theory, the plaintiff must establish that on or before July 25, 2009, IC knew or should have known that the Taylor Street crossing was unreasonably |9dangerous to pedestrians using it in the exercise of due care for their own safety. IC argues the plaintiff has no evidence to support that theory.

In addition, IC points out that James Loumiet admitted his opinions regarding the signalizing of the crossing were premised on his analysis of the risks the crossing posed to motorists, not to pedestrians. Loumiet acknowledged there are clear differences between motorists and pedestrians in their ability to stop.

Fourth, IC asserts that determining what roadway regulatory signs beyond the cross buck signs are necessary is a governmental function not shouldered by the private sector. The plaintiffs reliance on La. R.S. 32:169(E) is misplaced, because that statute permissively allows a railroad to install additional warning devices, but does not require it.

Fifth, IC contends the plaintiff imper-missibly relies on inadmissible and objectionable evidence. The plaintiff relied on and cited information gathered from the National Highway-Rail Crossing Inventory and the Federal Railroad Administration Accident History Database. Use of such information in a lawsuit for damages is prohibited by 23 U.S.C. § 409. Further, the plaintiff relies on statements in Roger Perkins’ affidavit, which are not shown to be based on personal knowledge and, further, bring in two other street-railway crossings not relevant to this case. In addition, there were no specific facts given, nor was there anything to show the accidents occurred under the same or substantially the same circumstances.

Finally, IC argues the trial court did not err in stating the cause of the accident was Ms. Tuckson’s inattentiveness, because Louisiana law does not impose a duty to warn of dangers that are “open and obvious.”

The City of Kenner asserts that to determine whether Kenner owed any duty to erect more than the railroad’s mandatory cross buck signs, it must be determined 110if there is sufficient proof to find the crossing at Taylor Street was a dangerous trap under Louisiana law. Kenner argues there is not sufficient proof that the crossing was a dangerous trap, because “Ms. Tuckson would have had an unobstructed view to see at least 867 feet west from the Taylor Street crossing.”

Kenner asserts further that the affidavit of Roger Perkins and the testimony of James Loumiet were flawed. Kenner contends there are no predicates or foundations for Perkins’ assertions, the affidavit presents irrelevant statements, and it relies on inadmissible evidence. Kenner asserts that Loumiet’s analysis and resulting opinions are based on potential risks to motorists, not to pedestrians. Kenner points out that under the duty-risk analysis, the duty that must be determined is the duty to the particular plaintiff in the case; hence, Kenner argues, Loumiet’s analysis, opinions and testimony are irrelevant to this case. In addition, Loumiet impermissibly relied on the Federal Railroad Administration crossing inventory database. Kenner contends “the trial judge correctly determined that the sole duty breached that day was the duty of Ms. Tuckson for not doing what the law required of her — ‘for not doing what a reasonable person under the circumstances should have done.’ ”

LAW AND ANALYSIS

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883.

The determination of whether a condition is dangerous and hazardous, and causation, are both fact-specific inquiries. Duperclay v. Illinois Cent. R.R. Co., 04-452, p. 5 (La.App. 5 Cir. 12/28/04), 892 So.2d 124, 127.

|nA motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge or of issues that require a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case. Greater Lafourche Port Commission v. James Construction Group, L.L.C., 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88-89.

We find the trial court made a number of fact determinations that were impermissible on motion for summary judgment: The trial court found that “this crossing was not a dangerous trap, and plaintiffs mother had ample opportunity from a position of perfect safety to see what she should have seen.” To find a “dangerous trap” requires a fact determination that the view of the roadway is so obstructed as to require the user to place himself in a position of peril dangerously near the tracks to have a view of any oncoming train.

To determine whether the crossing was unreasonably dangerous, the trial court had to consider factors such as sight obstructions, train volume, dual tracks, parallel roads, accident history, types of vehicles and persons using the crossing, and location of the crossing. These are matters that should be decided by the trier of fact. Further, the trial court impermissi-bly weighed some issues of fact presented by the Perkins affidavit to arrive at the court’s conclusion.

Accordingly, we find the trial court erred in granting summary judgment.

DECREE

For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings. Assessment of costs of this appeal is to wait until the final disposition of the lawsuit.

REVERSED AND REMANDED.

      . The petition originally named Canadian National Railway as owner of the train, but was amended to substitute Illinois Central Railroad Company instead. The suit also named as defendants the engineer and the conductor of the train, and the State of Louisiana through the Department of Transportation and Development (DOTD). DOTD was later dismissed from the suit.

      . An active warning system includes devices such as blinking lights and crossing arms that lower across the crossing as a train approaches.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Albert L. ARNOLD.
    No. 13-218.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Albert L. Arnold.
    .. J. Reed Walters, District Attorney, Jena, LA, for Appellee, State of Louisiana.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

| TDefendant, Albert L. Arnold, was convicted of manufacturing methamphetamine and conspiracy to manufacture methamphetamine after police executed a search warrant at his residence and found items that are used to manufacture methamphetamine, the remnants of two methamphetamine cooks, residue of methamphetamine in Defendant’s bedroom, and methamphetamine that had been in the possession of Defendant’s son, Joshua Arnold.

Defendant was charged by bill of information with one count of manufacturing of methamphetamine, a violation of La.R.S. 40:967, and one count of conspiracy to manufacture methamphetamine, a violation of La.R.S. 14:26 and La.R.S. 40:967. Defendant was tried by a jury and convicted as charged.

Defendant was sentenced to serve twenty-two years at hard labor for manufacturing methamphetamine, with the first ten years of the sentence to be served without benefit of probation, parole, or suspension of sentence, and to eight years at hard labor for conspiracy to manufacture methamphetamine. The trial court ordered the sentences to run concurrently but consecutively to the sentence Defendant was then serving. A motion to reconsider sentence was denied.

Defendant now appeals and asserts the following four assignments of error: 1) The evidence was insufficient to prove beyond a reasonable doubt that he manufactured methamphetamine; 2) The evidence was insufficient to prove he conspired with Joshua Arnold and Matilda Holmes to manufacture methamphetamine; 3) The trial court erred in permitting the prosecution to introduce several items of evidence during trial which were directly connected to another individual who was not on trial; and 4) The trial court failed to sufficiently [ aconsider ■ and weigh the factors set forth in La.Code Crim.P. art. 894.1, resulting in the imposition of excessive sentences.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first assignment of error, Defendant contends that the evidence, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard, was insufficient to prove beyond a reasonable doubt that he manufactured methamphetamine on or about December 21, 2011. In his second assignment of error, Defendant contends that the evidence, when viewed under the Jackson standard, was insufficient to prove beyond a reasonable doubt that he conspired with Joshua Arnold and Matilda Holmes to manufacture methamphetamine on or about December 21, 2011.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier-of-fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” La.Rev.Stat. 15:438; see State v. Jacobs, 504 So.2d 817, 820 (La. 1987)(all direct and circumstantial evidence must meet the Jackson v. Virginia test); State v. Porretto, 468 So.2d 1142, 1146 (La.1985) (La.Rev.Stat. 15:438 serves as an evidentiary guide for the jury when considering circumstantial evidence).

State v. Sosa, 05-213, pp. 6-7 (La.1/19/06), 921 So.2d 94, 99.

Defendant was convicted of manufacturing methamphetamine, a violation of La. R.S. 40:967 (footnotes omitted), which states, in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
|s(l) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II [.]

In State v. Bernard, 441 So.2d 817, 820 (La.App. 3 Cir.1983), writ denied, 445 So.2d 439 (La.1984), this court held: “In spite of the words that ‘it shall be unlawful for any person knowingly or intentionally ... ’ to do the prohibited acts, the statute requires no more than general criminal intent. LSA-R.S. 14:11; State v. Banks, 307 So.2d 594 (La.1975).”

[Gjeneral criminal intent is ... present “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.Rev.Stat. § 14:10(2). “In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal.” State v. Holmes, 388 So.2d 722, 727 (La.1980).

State v. Oliphant, 12-1176, pp. 11-12 (La.3/19/13), 113 So.3d 165, 172.

Defendant was also convicted of conspiracy to manufacture methamphetamine. Criminal conspiracy is defined as follows:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the- object of the agreement or combination’.

La.R.S. 14:26(A). In State v. Smith, 07-847, p. 3 (La.App. 3 Cir. 1/30/08), 974 So.2d 881, 884, we stated:

In the instant case, the State had the burden of proving, beyond a reasonable doubt, that the Defendant conspired to manufacture methamphetamine and that either the Defendant or the co-conspirator acted in furtherance of manufacturing methamphetamine. Additionally, as noted in State v. Zeno, 99-69, pp. 6-7 (La.App. 5 Cir. 8/31/99), 742 So.2d 699, 704-05:
| ^Specific intent is an essential element of conspiracy. State v. Ellis, 94-599 (La.App. 5 Cir.5/30/95), 657 So.2d 341, 361, writs denied, 95-2095 (La.12/8/95), 664 So.2d 421 and 95-1639 (La.1/5/96), 666 So.2d 300. Specific intent is defined as “... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific criminal intent is a question of fact and may be inferred from circumstances and actions of the defendant. State v. Armant, 97-1256 (La.App. 5 Cir.5/27/98), 719 So.2d 510, 517, writs denied, 98-1884 (La.11/20/98), 729 So.2d 3 and 98-1909 (La.11/20/98), 729 So.2d 4. Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Ellis, supra.

Detective Leland Guin testified that he obtained a search warrant for Defendant’s residence on December 21, 2011, as the result of a tip from a reliable informant. Police executed the warrant and entered the residence through an unlocked door and found that no one was at home. During the search, Detective Guin received word from the informant that the occupants were returning. Defendant, Joshua, Patrick Shipley, Holmes, Deborah Arnold, and an infant entered the residence through the back door. As soon as police announced their presence, Joshua, Patrick, and Matilda exited the front door and ran across a field. The three were caught, handcuffed, returned to the residence, and patted down. Detective Guin found a syringe in Shipley’s back pocket. Detective Guin testified that Defendant, Joshua, and Holmes lived at the residence.

Detective Guin spoke with Joshua inside the residence, and Joshua agreed to cooperate. Joshua then led Detective Guin through the residence, pointing out items that police had not yet found. Joshua subsequently took Detective Guin to the field to which he had previously fled and pointed out where he had dropped | .^several items, including a prescription bottle that contained suspected methamphetamine.

Detective Guin testified that Joshua showed him a butter bowl containing fertilizer in the garage; a bottle of Liquid Fire in the utility room; a plastic bag containing hypodermic syringes hidden under a drawer in a storage room; a Coleman lantern fuel in the garage; a plastic bottle containing the remnants of a methamphetamine cook behind Joshua’s bed; coffee filters containing a white substance suspected of being binding material, pseu-doephedrine, or methamphetamine in a trash bag in Joshua’s room; a glass Tosti-tos salsa jar containing caustic soda in a bathroom cabinet; and a Dr. Pepper bottle containing remnants of a prior methamphetamine cook in a trash bag on a covered walkway between the residence and the garage.

Detective Guin testified that a plastic bottle was the lab itself; the Dr. Pepper bottle found by police contained lithium batteries that had been broken open, and lithium strips were commonly used in the cooking of methamphetamine; Coleman lantern fuel was used as a catalyst agent in the process; Liquid Fire and caustic soda also played roles in the manufacturing of methamphetamine; and coffee filters were used to strain substances from the liquid produced by a methamphetamine cook. Detective Guin further testified that syr-ingés were used for the distribution of methamphetamine.

A blue box found inside a chest of drawers in Defendant’s bedroom contained hypodermic needles; razor blades; straws; a shoe lace; tin foil; a spoon, which police thought contained methamphetamine residue; a couple of rags; and a pouch. Detective Guin testified that tin foil and spoons were commonly used for the consumption or distribution of methamphetamine.

IfiA leather pouch containing drug paraphernalia and suspected methamphetamine were found in the chest of drawers in Joshua’s room. Police also found a box of sandwich bags, some Zig-Zag rolling papers, a straw, plastic tubing, and a set of digital gram scales in Joshua’s room. Detective Guin testified these items were commonly used in the distribution and consumption of methamphetamine.

Detective Guin spoke to Defendant at the residence and recorded a portion of that conversation. During the conversation, Defendant told Detective Guin he owned the blue box found in his bedroom and what it contained. During the interview, Defendant stated, “I couldn’t tell you who’s out there doing anything.” Detective Guin then told Defendant that Defendant “knew that this cooking and stuff was going on, and you participated in. the cooks, you know, because you have a problem. Am I right or wrong on this?” ' Defendant responded, “You’re right about it. Yeah, maybe I’ve got a problem, and I let it go, and I know, yeah, yeah, I know it happened.” Police then stated, “You guys have been cooking meth. I don’t know how long you started after you got out, but I know it’s been going on for at least two and a half months.” Defendant responded, “Yeah.” Detective Guin then asked, “Am I right on that?” Defendant replied, “Pretty close.” Defendant then admitted that the items found in his room belonged to him.

Portions of Detective Guin’s testimony were corroborated by Deputy Billy Prince, who participated in the execution the search warrant.

Rachel Plaisance, an employee of the North Louisiana Crime Lab, tested items submitted to the lab by police. Plaisance testified that a spoon found in Defendant’s bedroom contained methamphetamine and ephedrine. Plaisance also testified that the white residue on a piece of plastic linked to Joshua tested positive 17for methamphetamine. Plaisance further testified that the prescription bottle submitted to the lab by police contained methamphetamine and ephedrine.

Alex King, who was also an employee of the North Louisiana Crime Lab, was questioned regarding methamphetamine laboratories. King indicated that all that was needed to manufacture methamphetamine was ammonia, pseudoephedrine, a solvent, and lithium, which could be obtained from breaking open lithium batteries. King testified that ephedrine was the base compound for manufacturing methamphetamine. Fertilizer pellets provided the ammonia necessary for the chemical reaction needed to start the reduction. Liquid Fire was used át the end of the process to make a gas generator, as Liquid Fire was mixed with‘rock salt to produce HCL gas vapors which “precipitate crystals ... out of the solution.” Coleman camp fuel was a solvent that could be used to extract ephedrine out of the tablets used or as part of the process “when you throw everything together.” King testified “[t]his will form the liquid layer that I was talking about earlier where you precipitate crystals out.” Caustic soda could be used in a two-layer solution to manufacture methamphetamine.

King identified a photograph depicting a “disformed” bottle containing a few pellets and pieces of paper that looked like coffee filters. However, King testified that the most important fact was the lithium and the battery being cracked open. King was then shown State’s Exhibit 13, a photograph of the bottle found in Joshua’s room. King stated that the bottle in the photograph was discolored and contained pellets, cut up pieces of lithium metal strips, and a liquid layer. King further testified:

I think what’s most important to take away for me, and I like to tell people, is that, all of these things you probably have laying around the house at any one time. It’s how they are, they all, where they are, |8how them being, in the area that they are. You have to put it all together and ask yourself why is it like this. Even though all of this stuff can be readily available in all of our homes at one time, why are all these ingredients like this in the form that they’re in?
One of those reasons would be to manufacture methamphetamine.

When asked if there was any other reason for the items to be in the condition they were in, King responded: “I can’t think of any reason why the camera batteries would be like that. I can’t think of any reason why that bottle would have all that in there like it is.”

Defendant notes that he was not charged with operation of a clandestine laboratory, which makes it illegal to possess compounds or supplies with the intent that those items be used to manufacture a controlled dangerous substance. Defendant also notes there was no testimony that there was an active lab at his residence when the search warrant was executed.

Defendant contends that the mere presence of syringes, caustic soda, Liquid Fire, fertilizer, and Coleman lantern fuel at his residence did not put him on notice that Joshua was cooking methamphetamine, and the possession of these items without an active lab is insufficient to prove the elements of manufacturing methamphetamine.

Defendant contends that his admission that he was a methamphetamine user did not equate to an admission of manufacturing methamphetamine or conspiring to do so. Defendant argues that Detective Guin’s interrogation did not clarify who was cooking methamphetamine, the extent of the Defendant’s involvement therewith, or whether Defendant had used any of the methamphetamine Joshua cooked.

| ^Defendant contends there was no evidence that he personally cooked methamphetamine, participated in a methamphetamine cook with Joshua, or purchased any of the items seized by police as ingredients for manufacturing methamphetamine. Defendant notes that Joshua led detectives through the residence, had possession of methamphetamine when he arrived at the residence, and the remnants of a methamphetamine cook were found behind Joshua’s bed. Defendant asserts that his mere presence is not sufficient to support a conviction for manufacturing methamphetamine.

Defendant argues that failure to act when one knows or has reason to know another is committing a crime is insufficient to uphold a conviction for conspiracy. Further, silence about illegal activity is insufficient. Defendant contends that there must be an agreement to commit the crime of conspiracy, and, at least one of the persons must do an act in furtherance of committing the crime. Defendant argues that the State failed to introduce any evidence that there was an agreement between himself and another to manufacture methamphetamine.

There need not be an active lab at Defendant’s residence in order to find him guilty of manufacturing methamphetamine. See State v. Shumaker, 41,547, (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 07-144 (La.9/28/07), 964 So.2d 351.

In viewing the evidence in the light most favorable to the State, the jury could have determined that Defendant participated in the manufacture of methamphetamine based on his remarks when questioned by Detective Guin. Based on Defendant’s remarks and the evidence of two prior methamphetamine cooks at his residence, Defendant’s conviction for manufacturing methamphetamine is affirmed.

| ^Furthermore, the circumstantial evidence presented by the State was sufficient for the jury to infer that Defendant entered into an agreement with Joshua to manufacture methamphetamine, and there was an act in furtherance of the agreement. Defendant admitted that he took part in manufacturing methamphetamine and that he used methamphetamine. Joshua had methamphetamine on his person when he arrived at the residence, and he knew where items involved in the manufacture of methamphetamine were located inside the residence where he and Defendant resided. In fact, Joshua had the remnants of a methamphetamine cook behind his bed, and there were more remnants of a methamphetamine cook in a garbage bag outside of Defendant’s residence.

Accordingly, we affirm Defendant’s convictions.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant contends that the trial court erred in permitting the State to introduce several items of evidence during the trial which were directly connected to another individual who was not on trial.

At trial, defense counsel objected to the admission of photographs of the prescription bottle Joshua discarded and the bottle’s contents. The trial court found that the evidence was relevant to both the charge of manufacturing methamphetamine and conspiracy to manufacture methamphetamine.

Defense counsel later objected to the admission of photographs of a leather pouch and its contents, which included a photograph that depicted a box of plastic sandwich bags, some Zig-Zag rolling papers, a straw, plastic tubing, a digital gram scale, and a plastic bottle that appeared to contain the remnants of a methamphetamine cook. Finally, Defendant disputes the admission of a |n photograph depicting a prescription bottle. Defense counsel also objected to the admission of the actual items depicted in the above described photos.

Defendant contends that the evidence was connected to Joshua, and Joshua was not tried with Defendant. Thus, evidence found in Joshua’s room or that disposed of by him should not have been introduced at Defendant’s trial. Defendant argues that the evidence at issue did not show that he exercised control or possession of those items. Defendant also argues that the State failed to prove that he was aware of the various evidence located in Joshua’s room or on his person at the time they arrived back at the residence. Defendant further argues that, because the State failed to connect him to the items, other than its broad conspiracy theory, the items were not relevant and were inadmissible at his trial. Defendant contends that the State failed to show that a conspiracy existed and that the evidence found in Joshua’s room and under his control did not make the existence of any fact of consequence to the determination of Defendant’s guilt more probable or less probable than it would without the evidence. Defendant further contends that, if the evidence at issue was relevant, its prejudicial effect outweighed its probative value, as the evidence confused or misled the jury.

In State v. Evins, 626 So.2d 480 (La.App. 3 Cir.1993), the defendant was convicted of manufacturing crack cocaine, possession with intent to distribute cocaine, conspiracy to manufacture cocaine, and possession of drug paraphernalia. Evidence produced at trial indicated the following:

Paul Evins, the defendant, was operating a drug trafficking business in Oak-dale, Allen Parish, Louisiana. Evins would purchase cocaine in powder form in Houston, Texas, either personally or through his agent, Mark Clemmons. The cocaine in powder form would be brought back to Oakdale and would be cooked into “crack” cocaine either by Evins or his agent. The “crack” cocaine was for local distribution. Money for and from the operation was held |12for Evins in the home of and/or in bank safety deposit boxes by his sister, Sally Moreaux.

Id. at 483.

The defendant was charged with conspiring with Mark Clemmons, Ricky Hines, Michael Randolph, and Sally Mor-eaux, in the production, manufacture, distribution, or dispensing of crack cocaine. Testimony adduced at trial indicated that Randolph was the sentry stationed at the trailer’s door to warn of the appearance of the police while cocaine was being cooked into crack form inside the trailer. Clem-mons, Hines, and the defendant were inside the trailer. One or all of the men were in the process of cooking the cocaine at the time the police arrived as evidenced by the fact that a cookie of crack cocaine was still bubbling in one of the microwaves in the trailer when the police entered.

According to the testimony at trial, the crack cocaine found was, at least, the second batch of cocaine brought into the Oak-dale area by the defendant or Clemmons from Houston, Texas, by the defendant in a ten-day period. The street value of the second batch of crack cocaine was over $100,000.00. No large sums of money were found at the trailer or the defendant’s residence. However, in searching the defendant’s residence, police found receipts and other documents indicating the defendant’s money was being held for him by his sister, Moreaux.

Execution of a search warrant revealed $30,300.00 in a bank safety deposit box registered to Moreaux and her sister wrapped in a manner commonly used by drug dealers and another $5,000.00 in a boot in Moreaux’s home also wrapped in a manner commonly used by drug dealers. All of this information was presented at trial to prove that a single criminal conspiracy to produce, manufacture, distribute, or dispense crack cocaine existed by and between the defendant, Moreaux, Hines, 11sClemmons, and Randolph and to show that the role played by each was vital to its existence and perpetuation of the drug business.

On appeal, the defendant argued the trial court improperly allowed evidence of other crimes into evidence without first conducting a Prieur hearing. In addressing the issue, this court stated:

Consequently, all of the evidence adduced at trial was either evidence of the other three individual crimes with which Evins was charged or of the criminal conspiracy involving not only Evins but also Moreaux, Clemmons, Hines, and Randolph. Thus, there was no evidence of “other crimes” presented at the trial necessitating the requirement for a Pri-eur notice or Prieur hearing.

Id. at 488.

The defendant also argued that the trial court erred in allowing evidence that was obtained as a result of the search of a safety deposit box registered to Moreaux and her sister as well as the search of Moreaux’s residence, claiming the evidence was irrelevant and highly prejudicial. This court discussed the issue as follows:

[TJhis evidence was both relevant , and material to prove the existence of a conspiracy between the defendant and his sister, Sally Moreaux, to produce, manufacture or dispense a CDS. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” LSA-C.E. art. 401. However, relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of- time.” LSA-C.E. art. 408.
In the instant case, this evidence was necessary to show the existence of the conspiracy between the defendant and Sally Moreaux. Consequently, this evidence was relevant. Furthermore, it took very little time to present this evidence to the jury. The evidence was not complicated, nor does it appear too difficult for the jury to comprehend. Additionally, there was nothing inflammatory in showing pictures of money, even in light of the fact that it was a large sum ($30,000.00), when the introduction of “crack” cocaine in excess of $100,000.00 had previously been introduced.
|14It is the responsibility of the trial court to exercise reasonable control over the presentation of the evidence. The trial judge is left with wide discretion as to the admissibility of evidence under pertinent evidence rules. Furthermore, the decision of the trial judge will not be overturned absent a clear abuse of discretion. See State v. Clay, 576 So.2d 1099 (La.App. 3d Cir.), writ denied, 580 So.2d 669 (La.1991). There is no showing of an abuse of discretion on the part of the trial judge.

Id. at 496.

In the instant case, the items found in Joshua’s room and on his person when police arrived were relevant to prove the conspiracy. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403. A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion.

The evidence at issue was both probative and prejudicial. Thus, it is the trial court’s duty to balance those two competing concepts and make the call regarding admissibility. We find no abuse its discretion in the trial court’s determination.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant contends that the trial court failed to sufficiently consider and weigh the factors set forth in La.Code Crim.P. art. 894.1 resulting in the imposition of excessive sentences.

The law is well settled concerning the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a | ^needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Defendant was convicted of manufacturing methamphetamine, which is punishable by a term of imprisonment of ten to thirty years, with at least the first ten years of the sentence to be served without benefit of probation, parole, or suspension of sentence. La.R.S. 40:967. Defendant was also convicted of conspiracy to manufacture methamphetamine, which is punishable by a term of imprisonment of ten to thirty years pursuant to La.R.S. 40:967 and La.R.S. 14:26(B), or up to fifteen years pursuant to La.R.S. 40:967 and La.R.S. 14:26(C), or up to fifteen years pursuant to La.R.S. 40:979(A). The State has the authority to charge Defendant under La.R.S. 14:26 or La.R.S. 40:979. See State v. O’Blanc, 346 So.2d 686, 690 (La.1977). The State charged Defendant pursuant to La.R.S. 14:26 but did not note the subsection under which he was charged. However, Defendant’s sentences of twenty-two years hard labor, ten years of which were to be served without benefits, and eight years at hard labor fall within the statutory sentencing ranges.

Prior to imposition of Defendant’s sentences, the trial court stated the following:

The pre-sentence investigative report provides to me that you are a 58 year old male. You are a four time felony offender. Your |16record reflects that you were convicted in Winn Parish for the crime of Simple Burglary after it had been reduced from Aggravated Burglary in May of 1980. Your sentence was deferred at that time and you were placed on 5 years of active supervised probation. Subsequently in May of 2008, you pled guilty to the charge of issuing worthless checks which was felony grade and you were sentenced to two years of hard labor which was suspended and placed on two years active supervised probation. However, the record reflects that probation was revoked in November, 2009. In June of 2010, you pled guilty to the Operation of a Clandestine Lab and Conspiracy to Operate a Clandestine Lab. For those crimes you were sentenced as a part of plea bargain arrangement with the state to serve 5 years at hard labor with 3 of those years being suspended. Additionally you were placed on 5 years active supervised probation upon your release. The probated sentence was subsequently revoked on the basis of the arrest on these charges in which you entered an admission to the probation revocation. Then approximately 4 months after you began supervision on the last charges, the last sentence, you were arrested on the instant charges. Your continued criminal history is certainly not indicative of a person who simply just made a mistake. This a criminal activity that has lasted over 30 years. 1980 until now, that’s 32 years. The pre-sentence investigative report is unremarkable as it pertains to your social history. It reflects that you come from a normal size family by today’s standards, having 2 sisters. However, your immediate family is seemingly a mess right now. You’re currently divorced form [sic] Debbie Arnold but you are still residing with her. Further you have 3 children, namely Jessica, Jennifer and Joshua. No information was provided to me regarding Jessica. However, I can see that Meth creation and distribution certainly didn’t stop at your generation as Jennifer is currently serving 3 consecutive 5 year sentences for Distribution of Methamphetamines. Further, Joshua as you know is a co-defendant with you and pled guilty to Manufacture of Methamphetamines last month as well. You are a poster child for creating a bad role model for your children as they have obviously followed in your lead as to resorting to drugs to make a living or to make life easier upon themselves. Finally, your work history shows that you can be a productive member of society if you should so choose as you have held employment in numerous jobs over the years ranging from the oilfield, to a truck driver, to a self employed [sic] mechanic at the time ■of your arrest. Your record shows that you do not claim a disability nor have you ever served in the military. The most disturbing information in your social history is the recitation of your drug use. You stated in that report that you had used illegal drugs since you were 14 years old. For over 40 years you have used several illicit drugs including speed and occasionally marijuana. However, your drug of choice per your own statement was methamphetamines. I’ve heard it said that drug cases are victimless crimes. I have even heard it said that punishing meth heads should be lower on the punishing scale because those guys making meth are just supporting 117their family or simply just addicted. It’s not their fault that they are in the position in which they are in. I certainly couldn’t disagree more. The crime for which you have been convicted is one of the most reprehensible crimes in our society. The stuff that you are making ruins lives, not only for the people that are using your product but for the people that care for them. Further, there is no evidence that the product was solely meant for you or whether or not it was going to others. By the fact that you had several people involved in your arrest including your son, I can only assume that it was to be distributed generously to others. You didn’t care. Because the nature of your offense and the multiple occurrences of selling meth-amhetamines [sic] and making metham-phetamines, I find that your actions have become a pattern of conduct that must .be broken. If you are given a suspended sentence or put on probation, there’s an undue risk to society that you would continue to commit further drug related offenses. This determination is bolstered by the fact that you are not out of prison 4 months before you were making meth again and were arrested for basically the same offense for which you actually served time. Further,- given the serious nature of the offenses that you are now convicted of, I believe that your [sic] in need of correctional treatment that can be provided most effectively by the commitment to an institution. Manufacture of Methamphetamine and Conspiracy to Manufacture Methamphetamines are serious offenses and should not be treated lightly. These are charges that prey on the weaknesses of others. You request treatment for your addiction and that I give you some drug treatment and I not lock you up and throw away the key, that is your exact quote. I agree. That simply warehousing you in a facility without providing you some assistance is not a wise use of the state’s resources or your resources. If you are ever able to obtain your freedom you should have at least have some tools in order to participate in a free society. However, such drug treatment will occur in a facility. To let you out on the streets at this time is simply giving you authority to keep making meth with impunity. You have started a cycle starting with you and continuing through your kids. We’re going to stop that cycle today. No other members of your family nor of our society will be subject to this influence for a very long time. Therefore I believe that a lesser sentence would deprecate the seriousness of the offense charged. As indicated earlier, as a part' of the pre-sentence investigative report that I was provided, I was given the information that you are 58 years of age and have an educational background of completion of the tenth grade. Even though I was provided with information as to your family, I have no information as to the extent they rely upon you for support or even if they still reside in LaSalle Parish. The report indicates that you have held intermittent employment and even ran your own mechanic shop for a while. I have no idea of the profitability of that business or how much money was legitimately made. Accordingly, in light of my review of the pre-sentence investigative report and the consideration of the factors | ^contained in 894.1, (A)l through 3 of the Louisiana Code of Criminal Procedure....

Defendant contends that his sentences are excessive because no recognizable quantity of methamphetamine was manufactured, produced, distributed, dispensed, or possessed. Defendant also contends that the legislature created the offense of creation or operation of a clandestine laboratory to cover the purchase or transportation of various components or materials with the intent to manufacture a controlled dangerous substance, which is what the evidence in the case at bar reflects. The penalty range for creation or operation of a clandestine laboratory is five to fifteen years with a maximum fine of up to $25,000.000. La.R.S. 40:983. Defendant notes that his sentences exceed the maximum set forth for a violation of La.R.S. 40:983.

In State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 04-597 (La.9/24/04), 882 So.2d 1165, the defendant was sentenced to serve twenty-two years at hard labor without benefits and ordered to pay a $50,000.00 fine for manufacturing methamphetamine and ten years at hard labor, for conspiracy to manufacture methamphetamine. Five years of the sentence for conspiracy was to run consecutively with the sentence for manufacturing methamphetamine. At the time of sentencing, the trial court noted that the defendant was fifty-one years old; had convictions for reckless operation of a vehicle, speeding, resisting an officer, disturbing the peace, hit and run, simple burglary and DWI; his probation on the simple burglary had been revoked when the defendant was convicted of possession of marijuana with intent to distribute; he had a GED and a small engine certificate; he worked for a tree service and a gas station; he had seven adult children; he had been manufacturing methamphetamine lipfor approximately twenty years; he involved his family in the drug business; two of the defendant’s sons had pled guilty to drug charges in connection with the case; there was a high probability that he would commit another crime if granted probation; he was in need of lengthy correctional treatment in a custodial environment; a lesser sentence would deprecate the seriousness of the offense; he had been persistently involved in criminal activity; he was a leader and organizer of his family and other young people in conspiring to manufacture and in manufacturing methamphetamine; and he had made money from his ongoing drug activities. On appeal, the second circuit affirmed the defendant’s sentences.

In the case at bar, the trial court thoroughly considered Defendant’s background and the nature'of the offenses when imposing the sentences at issue. Based on the nature of the offenses, Defendant’s status as a fourth offender, the legislative purpose behind the punishment, and a comparison of the sentence imposed in Lingefelt, 865 So.2d 280, we find the trial court did not abuse its discretion when imposing the sentences at issue.

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Bryce W. PERKINS.
    No. 13-245.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      John Foster DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, Louisiana, for Ap-pellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, Louisiana for Defendant/Appellant, Bryce W. Perkins.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   CONERY, Judge.

liOn September 3, 2009, a Calcasieu Parish grand jury indicted Defendant, Bryce W. Perkins, for second degree murder, a violation of La.R.S. 14:30.1.

At trial on February 10, 2011, a jury found Defendant guilty of second degree murder. On April 20, 2011, the trial court addressed Defendant’s motions for a new trial and post-verdict judgment of acquittal. The court denied the motion for a new trial, but granted the motion for post-verdict judgment of acquittal, and entered a verdict of guilty of manslaughter in violation of La.R.S. 14:31. The defendant waived the delays for sentencing pursuant to La.Code Crim.P. art. 873, and the court sentenced Defendant to thirty years at hard labor.

The State timely appealed to this court, which reinstated the conviction for second degree murder and remanded for resen-tencing. State v. Perkins, 11-955 (La.App. 3 Cir. 3/7/12), 85 So.3d 810. On July 27, 2012, the trial court sentenced Defendant to life imprisonment, the mandatory sentence for second degree murder. On October 12, 2012, the court denied Defendant’s motion to reconsider sentence in open court.

Defendant now appeals, alleging excessive sentence as his sole assignment of error. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This court recited the pertinent underlying facts in its previous review:

On the night of July 4, 2009, a large group of people in their late teens and early twenties gathered at a house in Lake Charles for a party. A fight broke out involving a young man named Taylor Johnson. After Johnson fell to the ground, various people began kicking him, and he assumed a fetal position. Some testimony indicated that the victim, Daniel Gueringer, and a young man named Devionte Edmonson intervened and stopped the fracas. Defendant, Johnson’s friend, arrived and stood near the fallen man; he produced a pistol, raised it over his head, and chambered a round. Although there |2was conflicting testimony regarding which young men took what actions, some partygoers attempted to subdue Defendant. They were unsuccessful. Defendant leveled the pistol and fired a shot. The victim fell to the ground with a head wound and later died.

Id. at 811-12.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one error patent. The court sentenced Defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence. However, the court did not impose the sentence at hard labor as required by La.R.S. 14:30.1.

In State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, this court found that such an error renders a sentence illegally lenient. Accordingly, because Defendant’s sentence was not imposed at hard labor, the sentence is illegally lenient. However, this court will not correct an illegally lenient sentence, unless it is raised as an error on appeal. State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573; State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-0755 (La.12/18/09), 23 So.3d 931. Thus, no action need be taken.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant contends that his mandatory life sentence is excessive. Although his argument is not explicit, the basis of the claim seems to be his relative youth. This issue appears also to have formed the basis of his motion to reconsider sentence.

\9LAW AND DISCUSSION

This court’s review of whether an excessive sentence has been imposed on a defendant by the trial court consists of two factors: 1) a determination of whether the sentence is unconstitutionally harsh, and thus, violates La. Const, art. 1, § 20; and 2) a determination of the trial court’s consideration and weight given to the relevant sentencing factors established in La.Code Crim.P. art 894.1. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501.

Louisiana Constitution Article 1, § 20 guarantees that “[n]o law shall subject any person to cruel or unusual punishment.” In order for a sentence to be considered excessive, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime that it shocks our sense of justice, and that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court’s discretion is vast in the imposition of sentence within the statutory limits, and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La.6/30/00), 765 So.2d 1067. Thus, we must consider as the only relevant question, whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). We are mindful, in a review of a sentence imposed, that the trial court “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” Id. at 958.

RLouisiana Revised Statutes 14:30.1 mandates a sentence of life imprisonment and provides, in pertinent part, “[wjhoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” A discussion of the aggravating or mitigating factors, as required by La.Code Crim.P. art. 894.1, is satisfied when the court informs a defendant that he or she is receiving the mandatory sentence under the statute. State v. Paddio, 02-722 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, writ denied, 03-402 (La.2/13/04), 867 So.2d 682.

Excessive sentence claims involving mandatory sentences are analyzed pursuant to jurisprudence this court has previously discussed:

In a case such as the instant case, where one of the sentences was a mandatory sentence and the other a mandatory minimum sentence, the Defendant has the burden to rebut the presumption that the sentences are unconstitutional by clear and convincing evidence, showing that:
[she] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstance of the case.
Defendant has failed to meet her burden of showing how she is exceptional under the circumstances. Except for reciting the law regarding the general requirements for an adequate sentencing procedure, Defendant does not give any reason why her consecutive ■ sentences are excessive. •

State v. Pierre, 02-277, p. 15 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, 954, writ denied, 03-2042 (La.1/16/04), 864 So.2d 626 (citations omitted).

Defendant has failed to make any showing that he is “exceptional” in a way that renders his sentences excessive under the discussed jurisprudence. His brief | merely alludes to his youth. Defendant’s argument appears to concede that the law it cites is not on point. Rather, he attempts to suggest a developing, trend away from mandatory sentences and toward greater “care and discretion” in sentencing, particularly with youthful offenders. However, Defendant’s argument is unsupported and does not meet the threshold required by Pierre and related jurisprudence. The sentence is mandatory and not grossly disproportionate to the crime. Thus, the trial court did not abuse its vast discretion in sentencing Defendant to the mandatory sentence required by law. Thus, the assignment lacks merit.

DISPOSITION

The trial court sentenced Defendant to life in prison as mandated by La.R.S. 14:30.1. Defendant has failed to show that he is exceptional or unusual under the circumstances. Therefore, the trial court did not abuse its discretion, and Defendant’s sentence is affirmed.

AFFIRMED.

      . Defendant’s motion to reconsider states he was twenty-three on July 5, 2009. This is the age he gave during his statement to police on that date.


author: GENOVESE, Judge.

text:
    Stanley SAVOIE v. CALCASIEU PARISH SHERIFF’S OFFICE.
    No. 13-443.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Harold D. Register, Jr., A Professional Law Corporation, Lafayette, Louisiana, for Plaintiff/Appellant Stanley Savoie.
    Christopher E. John, Assistant City Attorney, Lake Charles, Louisiana, for Defendant/Appellee City of Lake Charles.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

|, Plaintiff, Stanley Savoie, appeals the judgment of the trial court granting an exception of no cause of action ex proprio motu. Finding no error in the trial court’s judgment, we affirm; however, Mr. Savoie will be allowed time within which to amend his petition pursuant to the provisions of La.Code Civ.P. art. 934.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Savoie filed a petition for damages on September 10, 2009, against the Calca-sieu Parish Sheriffs Department, alleging that “he was arrested on September 13, 2009[]” and that “the Calcasieu Parish Sheriffs Office used excessive force while arresting him and caused him bodily harm.” On September 16, 2009, Mr. Sa-voie filed a First Amended Caption and Petition for Damages which sought “to amend the name of defendant! ] named in the original petition ‘Calcasieu Parish Sheriffs Office’ to ‘LAKE CHARLES POLICE DEPARTMENT!’] each and every time it was named in the original petition for damages!,]” claiming he “inadvertently named Calcasieu Parish Sheriffs Office as the arresting agency.” The record also contains an Order to Amend Petition for Damages filed on February 24, 2010. This pleading again sought “to amend his original Petition for Damages to remove CAL-CASIEU PARISH SHERIFF’S OFFICE as a defendant and name CITY OF LAKE CHARLES POLICE DEPARTMENT as the defendant.” Unlike his prior amendment, Mr. Savoie requested that service be made upon Donald Dixon with the City of Lake Charles Police Department.

An Answer was filed by the City of Lake Charles (Lake Charles) on April 28, 2010. Lake Charles asserted that although it was “erroneously designated CITY OF LAKE CHARLES POLICE DEPARTMENT, a 12department/division of the City without procedural capacity to sue or be sued and thus not a proper party to this lawsuit,” it denied Mr. Savoie’s allegations. On May 7, 2012, Lake Charles filed a Peremptory Exception of Prescription, seeking to have Mr. Savoie’s claims dismissed. According to Lake Charles’ exception, Mr. Savoie’s “original September 10, 2009 petition ... alleges law enforcement arrested [him] on September 13, 2009 (erroneously stated as 2009 in petition)!.]” Lake Charles argued that since it was not named as a defendant by substitution for the Calcasieu Parish Sheriffs Office until February 24, 2010, that Mr. Savoie’s “February 24, 2010 amending/supplemental lawsuit ... fails to timely assert claims against [it].”

Prior to the August 1, 2012 hearing on Lake Charles’ exception, counsel for Mr. Savoie submitted a memorandum in opposition and waived his appearance at said hearing. Mr. Savoie’s memo reiterated that he was arrested on September 13, 2009.

At the hearing on Lake Charles’ exception of prescription, the trial court declared that pursuant to La.Code Civ.P. art. 927 it could sua sponte raise the exception of no cause of action. Noting that Mr. Savoie’s petition was filed on September 10, 2009, and that it listed the date of the alleged offense as September 13, 2009, the trial court stated, “That is an impossibility because that date had not yet occurred. So, there is no cause of action.” Mr. Sa-voie was granted fifteen days from the signing of the trial court’s judgment to amend his petition.

On September 12, 2012, Mr. Savoie filed a Second Motion to Amend Petition for Damages wherein he again lists the date of the alleged offense as September 13, 2009. By a hand-written notation across the Order attached to Mr. Savoie’s pleading, the trial court denied the motion, noting that it did so |sbecause “still no cause of action stated — petition has wrong date[.]” The November 7, 2012 Judgment of the trial court stated:

The Judgment of No Cause of Action was signed by the trial judge on August 27, 2012[,] and mailed by the Clerk to the respective parties on September 11, 2012.
On September 12, 2012, [Mr. Savoie] unsuccessfully attempted to file an amended pleading, which was disallowed by the Court[,] as his Second Motion and Order to Amend Petition for Damages was rejected by the Court on September 19, 2012[,] for its failure to state a viable cause of action.

It is from this judgment that Mr. Savoie appeals.

LAW AND DISCUSSION

In Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19, our supreme court discussed the peremptory exception of no cause of action and the scope of appellate review thereof as follows:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo [,] at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo [,] at p. 6, 637 So.2d at 131.
l/The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans [,] at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. City of New Orleans [,] at p. 29, 640 So.2d at 253.

The issue on appeal is whether Ms. Sa-voie’s amended petition states a cause of action against Lake Charles. Following our supreme court’s guidance in Ramey, we must conduct a de novo review of the record to determine whether the trial court was legally correct in concluding that Mr. Savoie failed to state a cause of action.

Louisiana Code of Civil Procedure Article 931 states that “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” The trial court must consider only the facts alleged in the petition when determining whether a cause of action has been stated. Ramey, 869 So.2d 114.

Accepting the allegations in Mr. Savoie’s petition as being true, we agree with the trial court’s finding that the allegation that the date of the incident occurred after the date of the filing of the petition is an impossibility from which a cause of action cannot exist. Accordingly, we find no error in the trial court’s determination that no cause of action existed in Mr. Savoie’s petition.

Although we agree with the trial court’s finding that Mr. Savoie’s petition does not contain sufficient facts to state a cause of action in negligence, Mr. Savoie will be allowed to correct the deficiency plaguing his petition. Louisiana Code of | ⅞Civil Procedure Article 934 (emphasis added) provides, in pertinent part, “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” The language of La.Code Civ.P. art. 934 does not limit Mr. Savoie to a single amendment of his petition. Ramey, 869 So.2d 114. The judgment of the trial court is affirmed; however, in accordance with La.Code Civ.P. art. 934, Mr. Savoie will be allowed one last opportunity to amend his petition to correct the deficiency relative to the alleged date of his cause of action.

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the exception of no cause of action is affirmed. Mr. Savoie is, however, permitted to amend his petition within fifteen days from the rendition of this judgment in order the cure the deficiency, in default of which his case shall be dismissed with prejudice. Costs are assessed to PlaintiffiAppellant, Stanley Savoie.

AFFIRMED AS AMENDED.