author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Dwayne MAGEE.
    No. 13-KA-1018.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellee.
    Katherine M. Franks, Attorney at Law, Abita Springs, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant, Dwayne Magee, appeals his convictions for second degree murder in violation of La. R.S. 14:30.1 and two counts of assault by drive-by shooting in violation of La. R.S. 14:37.1. We find that the trial court did not err in denying defendant’s challenge for cause with regards to potential juror George Lozano. Furthermore, we find that the trial court did not. err in refusing to admit a prior statement by defendant’s mother, who did not testify at trial. Accordingly, we affirm defendant’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

On the morning of June 22, 2012, defendant, Dwayne Magee, was driving in the left lane of Ames Boulevard in Marrero, Louisiana. Defendant’s cousin, Kemon Magee, sat in the truck’s passenger seat, and Kemon Magee’s girlfriend, Ariane Melerine, sat in the back seat of the truck. A black Nissan Maxima drove alongside the truck in the right lane and the three occupants of the Nissan Maxima, later identified as Kevin Jackson, Keyton Francois, and Dinah Jones, began pointing and laughing at the trio in the truck. According to the trial testimony of |3four witnesses, defendant proceeded to remove a firearm from the backpack sitting beside him in the truck and open fire on the occupants of the Nissan Maxima. The Nissan Maxima veered off the roadway and landed close to a nearby ditch where the two passengers crawled out.

At trial, Deputy Gabriel Faucetta of the Jefferson Parish Sheriffs Office testified that on June 22, 2012, he was dispatched to the scene of the shooting on Ames Boulevard. Upon arrival, Deputy Faucet-ta observed two people running out of the canal near the roadway. He testified that they informed him of the shooting and that the vehicle had crashed into the canal. Upon inspecting the vehicle, Deputy Fau-cetta found the victim, Kevin Jackson, unresponsive in the driver’s seat, having sustained a gunshot wound to his head.

Heather Palmer, a witness to the shooting, testified that she was driving down Ames Boulevard when she saw defendant’s truck traveling in the opposite direction and veering towards her lane. Palmer saw the truck’s driver lean forward and look towards the passenger side of his vehicle. Palmer further testified that when their vehicles were parallel, she heard gunshots and observed defendant with his back to her, leaning towards the passenger side of his vehicle. After passing defendant’s truck, Palmer looked in her rearview mirror and saw that a second car had swerved off the road. Kim Henry, a second eyewitness to the shooting, testified that she was driving down Ames Boulevard in the right lane when gunshots were fired at the vehicle in front of her. She then observed a woman jump out of the backseat of the vehicle screaming for help. Henry stopped her car to render aid and called 9-1-1.

The woman who jumped out of the vehicle was identified as Dinah Jones. Jones testified that she spent the night before the shooting at Keyton Francois’s house. On the morning of the shooting, Kevin Jackson picked Francois up to give |4him a ride to work and offered to drop Jones off at her home on the West Bank. As they were traveling down Ames Boulevard, Jones noticed a pick-up truck pulling up alongside their vehicle. She testified that Francois made an off-color remark about the occupants of the truck, which made her laugh. Jones testified that she noticed that the passenger side window of the truck was rolled down. She then saw the driver of the truck retrieve a handgun, point it out the passenger side window, and start shooting at their vehicle. When the police arrived, Jones provided them with a description of the truck and of the driver, whom she later identified from a photographic lineup. At trial, when asked how sure she was that the person she identified was both the shooter and the driver of the truck, Jones responded, “[a] hundred percent.”

Francois’s testimony confirmed Jones’s version of events. He testified that he made a joke about the woman in the backseat of the truck, which made Jones laugh. He testified that the driver, Kevin Jackson, subsequently made a joke about his job. Francois saw the truck pass them in the left lane and slow down before the driver of the truck started shooting at them. Francois testified that he clearly saw the passenger in the vehicle leaning back in his seat while the driver shot at their vehicle. Francois subsequently identified defendant as the shooter from a photographic lineup. At trial, he testified that he was “positive” that the driver was the shooter and pointed out that he had “no reason to lie.”

Through the use of camera surveillance in the area, the truck was ultimately identified as belonging to Ms. Denise Butler. Since her son, Dwayne Magee, fit the description of the shooter, officers staked out his home in New Orleans while waiting for a warrant. On June 25, 2012, officers watched Dwayne Magee enter the truck with a blue backpack. They followed and ultimately arrested him as he parked near the restaurant where he worked. After his arrest, defendant waived his | BMiranda rights and submitted to questioning. In his first statement, he denied ever being on the West Bank on June 22, 2012. However, when confronted with surveillance videos, he made a second statement in which he admitted that he had fired shots at the Nissan. He told the detectives that he believed the occupants of the Nissan were about to fire on him and his passengers. Defendant later identified Kemon Magee and Ariane Melerine as the passengers in his truck at the time of the shooting. Detective Travis Eser-man testified that three separate lineups containing photographs of defendant, Kemon Magee, and Ariane Melerine were compiled and presented to three witnesses: Jones, Francois, and Palmer. The only identification the three witnesses made from the photographic lineups was of defendant.

Detective Matthew Vasquez testified that he received information that defendant’s truck had been searched pursuant to a warrant. The items seized from the vehicle included a .40 caliber handgun, a 12-gauge shotgun, and ammunition for both firearms. The handgun, its ammunition, and a magazine were all found inside a blue backpack with the name “Dwayne Magee” written on it. Two fired shell casings were also recovered from the floor of the truck. Sergeant Joel O’Lear, an expert in firearms and tool mark analysis for the Jefferson Parish Crime Laboratory, testified that the casings and the fired projectiles recovered from the scene were fired from the handgun found in defendant’s backpack.

One week before trial, defendant gave a third statement to investigators regarding the shooting. Accompanied by his attorney, he told detectives that his cousin, Kemon Magee, was the shooter. At trial, defendant reiterated this accusation against Kemon Magee, testifying that his cousin was involved in a gang and had told him that he had already committed another murder. He further testified that he was afraid of his older cousin and had accepted responsibility for |fithe shooting out of fear. Defendant also testified that the handgun used in the shooting was given to him by his younger brother “a week or two” before the shooting. In an undated letter that defendant wrote to Kemon Magee from jail, defendant stated that he had confessed to the crime because he believed that the police were going to implicate defendant’s younger brother, Wayne Magee.

The defense also called Edward Hueske, an expert in the field of shooting reconstruction, to establish whether the shooter was more probably seated in the driver’s seat or the front passenger seat of the truck. Mr. Hueske testified that he was able to analyze four out of the nine shots fired at the victim’s vehicle and opined that three out of the four shots he analyzed were unlikely to have been fired from the driver’s seat. However, Mr. Hueske admitted that several important factors, including the distance between the two vehicles and the speed at which they were traveling at the time of the shooting were unknown. Mr. Hueske further stated that any inaccurate measurements by investigators at the scene would greatly impact his analysis and the reliability of his opinion.. He also testified that his opinion would change if he knew that there were two cartridge casings found inside defendant’s truck and that defendant gave a statement admitting to discarding the other casings that were inside the vehicle. ■

In rebuttal, the State called Colonel Timothy Scanlan, an expert in the field of firearms and toolmark examination and crime scene reconstruction, who testified regarding the flaws in Mr. Hueske’s analysis. In Colonel Scanlan’s opinion, the photographs submitted to Mr. Hueske for use in formulating his opinion could not have been properly used for the analysis of trajectory angles. Colonel Scanlan also stated that Mr. Hueske had erroneously assumed that the roadway where the shooting occurred was flat. Colonel Scan-lan further testified j7that based on an ejection pattern test, the shooter was more likely seated in the driver’s seat.

Defendant was indicted by a Jefferson Parish Grand Jury with one count of second degree murder in violation of La. R.S. 14:30.1 and two counts of assault by drive-by shooting in violation of La. R.S. 14:37.1. On April 11, 2013, defendant was found guilty as charged on all three counts after a twelve-person jury trial. On May 15, 2013, defendant filed motions for a new trial and post-verdict judgment of acquittal. After denying both of defendant’s post-verdict motions, the trial court sentenced defendant to a term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on the second degree murder count, and to five-year sentences on each count of assault by drive-by shooting. On May 17, 2013, defendant filed a motion for appeal, which was granted by the trial court on May 20, 2013. The instant appeal follows.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the trial court erred in denying his challenge for cause in reference to prospective juror George Lozano. During jury selection, Mr. Lozano disclosed that his brother-in-law had been murdered in a drive-by shooting five years prior. After further questioning by the court, Mr. Lozano stated that he could still render a fair and impartial verdict. Defendant maintains that the denial of his challenge for cause should result in a reversal of his conviction. In response, the State argues that this issue was not preserved for appellate review because defense counsel’s objection was lodged before the trial court’s decision overruling the challenge for cause. The State further argues, in the event this Court finds the issue was preserved, Mr. Lozano’s comments indicate that he would be able to render an impartial verdict according to the law and evidence.

lain the instant case, defendant was tried on charges of second degree murder and assault by drive-by shooting. Second degree murder is an offense necessarily punishable by imprisonment at hard labor. Therefore, defendant had twelve peremptory challenges. La. R.S. 14:30.1; La. C.Cr.P. art. 799. The record reflects that defendant exhausted all twelve of his peremptory challenges and used one of them curatively to remove Mr. Lozano.

During jury selection in the present case, the court asked the potential jurors a series of general questions. Specifically, the venire was asked whether they had any family members who were victims of a violent crime. Prospective juror Lozano responded: “[m]y brother-in-law was murdered in a drive-by shooting. He was a police officer outside of this country.” The State and defense counsel were then permitted to ask follow-up questions regarding the prospective jurors’ answers. When the State asked whether Mr. Lozano could “judge the facts of this case separately” and “render a verdict based on whether ... the State has proven the charges,” Mr. Lozano responded, “I think I can.” • However, when defense counsel brought up the possibility of the trial bringing back unpleasant memories for Mr. Lozano, the following exchange took place:

THE DEFENSE: You kind of hinted, like, it may be a problem with having, I guess, the murder that occurred in your family so close in time.
MR. LOZANO: Uh-huh, uh-huh.
THE DEFENSE: So it could possibly make you flashback and possibly not pay attention to what’s going on because you’re thinking about replaying that movie in your head, which is a terrible thing to have to do.
MR. LOZANO: Yes.
THE DEFENSE: So, if that were the ease, that really, would you think that would make you an adequate juror or a not so good juror in this type of case?
MR. LOZANO: Not so good at this time.
IsTHE DEFENSE: So, really they’re taking a risk that you might miss something important?
MR. LOZANO: Yes.

Defense counsel subsequently sought to challenge Mr. Lozano for cause on the stated ground that “Mr. Lozano has indicated that he would, with possibility he could have a problem listening to the evidence, with having that death in his family ...” In response, the trial court stated: “[t]he only thing he said that caused me any concern was when he agreed with your statement that he was, you’re actually taking a risk, that he might miss something important.” Mr. Lozano was then questioned at the bench:

THE COURT: I just want to clarify a couple of your answers. Okay? First of all, you understand that, at some point, if you’re selected as a juror, the judge is going to charge you as to what the law is to be followed in this particular case. You understand?
MR. LOZANO: Sure.
THE COURT: One of the oaths that you would take as a juror is to follow that law. Do you understand that?
MR. LOZANO: That’s correct.
THE COURT: Do you feel that you would be able to do that, sir? Would you be able to apply the law as given to you in this particular case?
MR. LOZANO: Yes.
THE COURT: And would you agree that you would have to follow that law and would follow that law?
MR. LOZANO: Yes.
THE COURT: Do you understand that ' the State has to prove their case beyond a reasonable doubt?
MR. LOZANO: Yes.
THE COURT: You understand that. And you would agree that you would hold them to that burden?
MR. LOZANO: Uh-huh.
|inTHE COURT: The question is this— You have mentioned that murder of your brother-in-law about five years ago. I understand that’s a fairly fresh wound. Is that going to prevent you from doing what you and I just discussed, following the law and holding the State to prove their case beyond a reasonable doubt? MR. LOZANO: No, it won’t affect that. THE COURT: And you think you can be a fair and impartial juror?
MR. LOZANO: Yes.

The trial court then denied defendant’s challenge for cause finding as follows:

I think the issue was the murder of the brother-in-law. I think that the fact that issue was raised, at least as far as the Court was concerned as to why there might be a challenge for cause. I think based on his response and now, in fact, that he specifically said that he will be able to be a fair and impartial juror in spite of the fact that his brother-in-law was murdered five years ago and the fact that he would follow the law, I’m going to deny the challenge for cause.

Defendant argues the trial court erred in denying his challenge for cause exercised to remove Mr. Lozano because of his statements regarding the murder of his brother-in-law in a drive-by shooting. Louisiana Code of Criminal Procedure article 797(2) provides that the State or the defendant may challenge a juror for cause on the ground that, inter alia, the juror is not impartial, whatever the cause of his partiality. “[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied.” State v. Jun iors, 03-2425, p. 9 (La.6/29/05), 915 So.2d 291, 305, cert, denied, 547 U.S. 1115, 126 S.Ct. 1940,164 L.Ed.2d. 669 (2006).

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Campbell, 06-0286, p. 73 (La. 15/21/08),! ¶ 983 So.2d 810, 858, cert, denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Leger, 05-0011, p. 66 (La.7/10/06), 936 So.2d 108, 155, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Only where it appears, upon review of the voir dire examination as a whole, that the trial court’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will an appellate court reverse that ruling. State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108; State v. Passman, 345 So.2d 874, 880 (La.1977).

The Sixth Amendment to the United States Constitution guarantees the accused the right to trial by an impartial jury. State v. Munson, 12-327 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, 12, writ denied, 13-1083 (La.11/22/13), 126 So.3d 476. Further, La. Const. Art. I, § 17 guarantees the accused the right to full voir dire examination of prospective jurors and the right to peremptory challenges of those jurors. Louisiana Code of Criminal Proee-dure article 797 sets forth the grounds for which a juror may be challenged for cause. When a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling on a challenge for cause that results in the deprivation of peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. See State v. Bourque, 622 So.2d 198, 225 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d |1216, cert, denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). Therefore, on appeal, to prove an error warranting reversal of both the conviction and sentence, a defendant must show that he exhausted all of his peremptory challenges and that the trial court erroneously denied a challenge for cause. State v. Mickel, 07-47, p. 8 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 522, writ denied, 07-1422 (La.1/7/08), 973 So.2d 732. In Louisiana, a defendant must also use one of his peremptory challenges curatively to remove the juror or waive any complaint on appeal. State v. Blank, 04-0204, p. 25 (La.4/11/07), 955 So.2d 90, 113, cert, denied, 552 U.S. 994, 128 S.Ct. 494,169 L.Ed.2d 346 (2007) (citing State v. Connolly, 96-1680, p. 8 (La.7/1/97), 700 So.2d 810, 818; Bourque, 622 So.2d at 229-30; State v. Fallon, 290 So.2d 273, 282 (La.1974)).

Based on the record as a whole, the trial court’s denial of the defense’s challenge for cause with regard to Mr. Lozano was not an abuse of discretion. First, the grounds stated by defense counsel justifying his challenge for cause are not supported by the Code of Criminal Procedure. Defense counsel’s reason for seeking to remove Mr. Lozano was due to the possibility that Mr. Lozano “could have a problem listening to the evidence, with having that death in his family.” However, the fact that a juror may have painful memories associated with the subject of a criminal trial is not listed as a basis for a challenge for cause under La.C.Cr.P. art. 797. Even assuming that defense counsel sought to challenge defendant for cause under La.C.Cr.P. art. 797(2) or (4), namely, that Mr. Lozano could not be impartial, or that he could not accept the law as given to him by the 11scourt, Mr. Lozano’s responses as a whole did not reveal facts from which bias, prejudice, or an inability to render judgment according to the law might be reasonably implied.

A prospective juror in a criminal trial is not automatically rendered incompetent to serve because a relative was a crime victim. See State v. Thom, 615 So.2d 355 (La.App. 5 Cir.1993). This is true even when the crime is similar to the one of which the defendant stands charged. Thom, supra; State v. Richardson, 33,272 (La.App. 2 Cir. 11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151. The pertinent inquiry is whether the prospective juror can put aside the experiences of relatives and be fair and impartial to the State and the defendant. State v. Collins, 359 So.2d 174, 177 (La.1978); Thom, supra; State v. Eskano, 00-101, p. 11 (La.App. 5 Cir. 1/30/01), 779 So.2d 148, 153-54; State v. Burton, 09-0826, pp. 8-9 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1079, writ denied, 10-1906 (La.2/11/11), 56 So.3d 999.

In Louisiana, appellate courts have consistently upheld thé denial of challenges for cause of prospective jurors whose relatives have been crime victims when the juror states that they would be fair and impartial in rendering a verdict. In State v. Thom, this Court upheld the denial of a challenge for cause in an aggravated rape trial where a prospective juror disclosed that her sister had been raped. Thom,, supra. Although the juror stated that her sister’s rape would make her “look at the facts more closely,” she further stated that she felt she could be impartial and fair. Id. at 360. This Court noted that despite her sister being the victim of a similar crime, her testimony as a whole revealed that she was “able and willing to be an impartial juror.” Id.

In State v. Chambers, 99-678, p. 6 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, 235, unit denied, 00-0551 (La.9/22/00), 768 So.2d 600, a case in which the 114defendant was charged with drug possession and intent to distribute, the Third Circuit Court of Appeal held that the trial court acted within its discretion in refusing to dismiss for cause a prospective juror whose sister had died of a drug overdose seven years earlier. The Third Circuit upheld the trial court’s ruling even though the juror stated that he was “afraid” his sister’s experience would have an influence on him and that he “seriously doubted he could put it out of his mind even if told by the court it was his duty to do so.” However, the juror later stated that he would apply the law as instructed by the trial judge and could be fair to the defendant. In this case, as in Chambers, the fact that a prospective juror’s family member was the victim of a crime similar to those allegedly committed by defendant is not determinative of whether a challenge for cause was appropriate. (See also State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, rehearing denied, cert, denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), where the Louisiana Supreme Court held that the trial court’s refusal to grant the defendant’s challenge for cause of a prospective juror whose grandfather was murdered during an armed robbery was not an abuse of discretion in a capital murder prosecution for a murder committed during the course of an armed robbery where the prospective juror indicated that he harbored no bias against the defendant based on the murder of his grandfather.)

As previously noted, the trial judge is vested with broad discretion in ruling on challenges for cause. Ross, supra. A trial judge’s ruling on a challenge for cause will only be reversed when a review of the entire voir dire reveals that the judge’s exercise of discretion was arbitrary and unreasonable with resultant prejudice to the accused. See State v. Labostrie, 358 So.2d 1243, 1247 (La.1978). The trial judge has the significant advantage of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to | ^questioning by the parties’ attorneys, which are not readily apparent at the appellate level where a review is based on a cold record. State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108. Here, Mr. Lozano’s voir dire testimony as a whole demonstrates his willingness and ability to be a fair and impartial juror. Nothing in the record suggests that Mr. Lozano’s experience concerning his brother-in-law as a .crime victim would bias him or that he would be unable to apply the law as given. Moreover, the rehabilitation of Mr. Lozano appears sufficient to overcome any alleged impartiality elicited by defense counsel during his questioning of Mr. Lozano. As noted by the trial court, Mr. Lozano stated that he would be able to be a fair and impartial juror in spite of the fact that his brother-in-law was murdered five years prior, and that he could apply the law as given by the trial judge. Mr. Lozano did not in any way admit partiality. Moreover, after having the opportunity to view Mr. Lozano during his voir dire questioning, the trial court determined that Mr. Lozano could be a fair and impartial juror. Under these circumstances, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the trial judge erred in precluding him from presenting evidence concerning a taped jail conversation he had with his mother prior to trial to rebut the presumption that his identification of Kemon as the shooter was a recent fabrication. He contends that the conversation would have established that he had asked his mother to speak to Kemon about going to the District Attorney’s Office. He asserts that the recorded conversation is not hearsay because it was being introduced to rebut the State’s implied charge of recent fabrication. He maintains that the trial court’s ruling violated his constitutional right to present a defense and that the error cannot be found to be harmless. In response, the State argues that the trial court did not err in excluding 116the recorded jail conversation. However, assuming the trial court’s ruling was in error, the State submits that any error was harmless and did not influence the verdict. The State maintains that it presented overwhelming evidence of defendant’s guilt as detailed by the testimony of the witnesses who identified defendant as the shooter.

At trial, defendant sought to introduce a taped phone conversation he had with his mother, Denise Butler, while incarcerated on July 26, 2012, which he contended established that he had asked his mother when Kemon was going to go to the District Attorney’s office and accept responsibility for the shooting. The trial court noted that the only applicable hearsay exception under which the recorded conversation would be admissible was if it was intended to rebut an allegation made by the State that defendant’s third statement given to the police a week prior to trial, in which he proclaimed his innocence and identified Kemon as the shooter, was a recent fabrication. The trial court listened to the taped conversation which revealed the following discussion between defendant and his mother:

DEFENDANT: You talked to the District Attorney?
MS. BUTLER: No, no, no. Let me tell you, we got good news ... I got on the phone with the detective. You know I’m not supposed to be talking to him, alright?
DEFENDANT: Yeah.
MS. BUTLER: But I’m talking to him and basically what he said is they’re holding you because he said of what the witnesses are saying.
DEFENDANT: Yeah.
MS. BUTLER: He’s not saying that it’s not enough, he needs to get Kemon and Ari [sic] in and get their side of the story, okay?
DEFENDANT: Yeah.
|17MS. BUTLER: Once he gets they [sic] side of the story, he’s saying you have to- once you go up to the_, of commissioners ... when you go up against them take the public defender that they are assigning to you, okay? DEFENDANT: Uh-huh.
MS. BUTLER: The reason I’m saying to take it is because chances are they’re gonna let you go if Kemon talks. DEFENDANT: Huh? They gonna what?
MS. BUTLER: If Kemon don’t talk ... I said chances are they will let you go if Kemon talks. If Kemon don’t talk, hear what I’m saying, they gonna try to put you with second degree. Okay?
DEFENDANT: Uh-huh. So if Kemon talk they gonna drop the charges?
MS. BUTLER: Right. And you can come home.
DEFENDANT: .So ... But ... why ... how is that even ... Okay, I-I’m listening to you. I’m believing you.
MS. BUTLER: The next thing is ... if what the witnesses saying, and I don’t you say anything Dwayne. I love you and I don’t believe you done all that. I do love you.
DEFENDANT: I know ma. I—
MS. BUTLER: He’s gonna come and get you and he’s gonna talk with you. Talk totalk the way you know you supposed to talk. So you can get the release.
DEFENDANT: Okay, so, ... stop talking about this over the phone. We can talk about this when you come Wednesday.

After listening to the recording, the trial court denied defendant’s request to admit the taped phone conversation. In rendering its ruling, the trial court found that, “at no point in that recording did the Court hear Mr. Magee say the essential element of what you’re trying to show was that the other party, if you will, Mr. Kemon had, in fact, been the shooter in the case.” As a result, the trial court found that the recorded statement did not fall under the hearsay exception defined in Louisiana Code of Evidence art. 801(D)(1)(b). Defense counsel noted an objection to the court’s ruling and proffered the subject phone conversation.

|1ROn appeal, defendant argues that the taped conversation, during which he claims he asked his mother “to get Kemon Magee to talk to the Assistant District Attorney so he could go free and her conversations with him denying responsibility for the shooting,” went to the core of his defense. Thus, defendant asserts the trial court’s ruling impeded his ability to demonstrate to the jury that the statement he gave a week prior to trial, in addition to his trial testimony, in which he identified Kemon Magee as the shooter, were not recent fabrications.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167, p. 19 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763. This right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. The trial court is accorded great discretion in evidentiary rulings and, absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). La. C.E. art. 801(D)(1)(b) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is Inconsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

For a statement to qualify as an exemption from the hearsay rule under La. C.E. art. 801(D)(1)(b), it is necessary for the witness’s statement to have been “attacked as a recent fabrication or claimed to have been prompted by an improper influence or motive.” State v. Joyner, 11-1397 (La.App. 4 Cir. 10/24/12), 107 So.3d 675, writ denied, 12-2494 (La.5/31/13), 118 So.3d 388 (citing George Pugh, Robert Force, Gerard Rault & Kerry Triche, HANDBOOK ON LOUISIANA EVIDENCE LAW, Authors’ Note (3), La. C.E. art. 801, p. 632 (2011)). “[T]here must have been an express or implied charge that the witness is now lying (‘fabrication’) and not just in error.” Id. at p. 633 (citing Weinstein & Berger, WEINSTEIN’S EVIDENCE, ¶ 801-185 et seq.)

At trial, the State elicited testimony from Detective Vasquez and defendant which implied that defendant’s third statement, in which he implicated Kemon Ma-gee as the shooter, was a recent fabrication. However, the trial court correctly found that the recorded conversation did not rebut the State’s allegation that defendant fabricated the allegations against Kemon Magee.

During the phone conversation, defendant’s mother is heard telling defendant that a detective had told her that if Kemon Magee implicated himself in the shooting, defendant would be released. At no point during the conversation did defendant proclaim his innocence or identify Kemon Ma-gee as the shooter. At trial, defense counsel admitted that the court would have to infer the intent behind the conversation. The substance of the recorded conversation is dissimilar to defendant’s trial testimony, as well as his third statement given a week prior to trial, and therefore, the trial court did not abuse his discretion in denying its | ^admission and finding that it did not fit within the hearsay exception set forth under La. C.E. art. 801(D)(1)(b).

Further, even assuming that the trial court erred in refusing to admit any such evidence, it appears that it constituted harmless error insofar as defendant being deprived of his right to present a defense. See Juniors, 03-2425 at 55, 915 So.2d at 382. An error is harmless when the guilty verdict is not attributable to the error. State v. Vallo, 13-1369 (La.1/10/14), 131 So.3d 835; State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 914, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162. At trial, the passengers of both defendant’s and the victim’s vehicles testified that defendant was the shooter. The occupants of the victim’s vehicle also identified defendant from a photographic lineup during interviews conducted after the incident. Additionally, eyewitness -Palmer testified that while passing defendant’s vehicle, she observed defendant, whom she later identified from a photographic lineup, leaning forward and looking in the direction of the passenger side of his vehicle when the gunshots were fired. Subsequent to the shooting, defendant was apprehended and found to be in possession of the handgun that matched the fired cartridge casings and fired projectiles recovered from the scene. Furthermore, Ms. Butler’s emotional attachment to her son provided her with a strong motive to believe her son’s claims of innocence despite the large volume of evidence to the contrary. Given the substantial evidence of defendant’s guilt, the jury’s verdict was surely not attributable to any alleged error in denying defendant’s request to admit the jail phone conversation in an attempt to rebut a presumption of recent fabrication.

Moreover, defendant was not hindered from presenting his defense at trial despite the trial court’s denial of his request to introduce the taped conversation. At trial, defendant’s third statement was played for the jury. His third statement |21was consistent with his trial testimony during which he proclaimed his innocence and identified his cousin, Kemon Magee, as the shooter. At trial, he further testified that he spoke to his mother while in jail about contacting Kemon Magee to clear his name. Therefore, although the recorded conversation itself was not admitted, the jury was still presented with the substance of the conversation through defendant’s testimony. Despite being presented with this evidence, the jury rejected defendant’s theory that Kemon Magee was the shooter. Accordingly, any error in precluding defendant’s admission of the subject jail conversation was harmless beyond a reasonable doubt. For the foregoing reasons, this assignment of error is without merit.

A review of the record reveals no errors patent.

CONCLUSION

Accordingly, we affirm defendant’s convictions and sentences.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

      . Louisiana Code of Criminal Procedure article 797 provides that either party may challenge a juror for cause on the ground that:
      (1) The juror lacks a qualification required by law;
      (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
      (3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
      (4) The juror will not accept the law as given to him by the court; or
      (5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

      . It is noted that the recorded phone conversation was not transcribed. Due to the quality of the recording, portions of the conversation are indecipherable and therefore left blank.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge.

license: Public Domain

text:
    Jalima TAMAYO, Sobeyda Green a/k/a Sobeyda Raquel Seraphin, and Fox Cars, LLC v. AMERICAN NATIONAL GENERAL INSURANCE COMPANY and Kevin Michael Klopf.
    No. 14-CA-130.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Pedro F. Galeas, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    John T. Westholz, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| gPlaintiffs-appellants, Jalima Tamayo, Sobeyda Green a/k/a Sobeyda Raquel Ser-aphin, and Fox Cars, LLC, appeal from the trial court’s May 21, 2013 judgment partially granting and partially denying plaintiffs’ motion for judgment notwithstanding the verdict, and awarding plaintiffs damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of a rear-end collision on March 17, 2011, wherein So-beyda Seraphin was driving a 2004 Chevy Aveo, which was struck from behind by a 2008 Honda Civic operated by defendant, Kevin Klopf. Jalima Tamayo, was riding as a passenger in the Aveo, which was owned by Fox Cars, LLC at the time of the accident. On May 10, 2011, plaintiffs, Jalima Tamayo, Sobeyda Seraphin, and Fox Cars, LLC, filed a petition for damages arising out of the accident against Kevin Klopf and his insurer, American National General Insurance Company. The matter proceeded to a jury trial on March 11, 2013 through March 13, 2013.

|sAt trial, the parties offered evidence showing that the accident at issue occurred on the Causeway Bridge at around 7:00 p.m. or 7:30 p.m. at night. Although Ta-mayo typically drove the Aveo, Seraphin was driving at the time of the accident because Tamayo was tired from working that evening. Plaintiffs were traveling in the southbound lane of the Causeway when their Aveo experienced a flat tire. As a result, Seraphin slowed the car down to approximately 30 to 35 miles per hour, and plaintiffs claim that she turned on the emergency hazard lights and intended to change the tire at the next crossover on the Causeway.

Meanwhile, Klopf was also traveling in the southbound lane of the Causeway at approximately 65 miles per hour. Just prior to the collision, Klopf testified that he did not see any other vehicle, any rear taillights or any hazard lights ahead of him on the bridge. When his cell phone lit up, Klopf glanced down at his cell phone, which was located in his driver’s side door handle. Klopf testified that he looked down at his phone for approximately one to two seconds, but that he did not use the phone. When Klopf looked up at the road again, all he saw was the white paint of the Aveo immediately in front of him. At that point, Klopf applied the brakes, but did not have time to avoid striking the Aveo from the rear.

The Aveo was owned by plaintiff Fox Cars, LLC, a company owned by Tamayo’s husband, Armando Cruz. At the time Fox Cars purchased the Aveo, the car had a salvage title, as it had previously been declared a total loss. Cruz testified that his shop fully repaired the Aveo, but he had no documents evidencing the repairs. Cruz also testified that the Aveo did not have a brake tag at the time of the accident. Photographs of the Aveo after the accident were shown to the jury, which depicted the rear end of the Aveo completely smashed. Tamayo and Seraphin, as well as each of their husbands, testified that they all witnessed the rear |4hazard lights of the Aveo flashing after the accident. Whereas, Klopf testified that he did not see any rear lights on the Aveo working after the accident, but that he did see the front hazard lights flashing after the accident.

Tamayo and Seraphin both claimed personal injuries as a result of the collision. Specifically, Tamayo introduced evidence indicating that she sustained a herniated lumbar disc, a bulging lumbar disc, and three bulging cervical discs, and Seraphin introduced evidence indicating that she sustained two bulging lumbar discs and soft tissue injuries to her cervical spine. Neither Tamayo nor Seraphin went to the hospital for further medical attention on the night of the accident. However, on the day after the accident, Tamayo sought medical care from Dr. Leia Frickey for headaches, dizziness, and neck and shoulder pain, but she did not complain of back pain at that time. Dr. Frickey’s examination of Tamayo revealed that she had suffered a neck sprain, but her examination of Tamayo’s lumbar area was normal. Ta-mayo was also evaluated by Dr. Gloria Kang, who similarly concluded that Ta-mayo sustained a neck sprain, but found no abnormalities in her back.

Tamayo testified that she did not feel back pain at the time she visited Dr. Frickey, but that she did experience back pain in the following weeks. As a result, Tamayo began treating with Chiropractor Michael Haydel on April 4, 2011, eighteen days after the accident. Chiropractor Haydel documented objective medical findings in Tamayo’s neck and back, which he related to the accident at issue. Upon Chiropractor Haydel’s recommendation, Tamayo obtained an MRI of her neck and back. Tamayo’s. MRI results were reviewed by Dr. Bradley Bartholomew, a neurologist. Dr. Bartholomew testified that Tamayo sustained three bulging lumbar discs, which he opined could have been caused by. trauma, or could have been preexisting. Dr. Bartholomew also ordered a discogram, which | r,produced a positive finding. As a result, Dr. Bartholomew testified that the discogram confirmed that Tamayo was experiencing pain at the L4-5 and L5-S1, and recommended that Tamayo receive a two-level lumbar IDET procedure.

Defendants retained Dr. David Aiken and Dr. Najéeb Thomas to evaluate Ta-mayo.' Dr. Aiken evaluated Tamayo on March 21, 2012, approximately one year after the accident. He testified that during his evaluation of Tamayo, she told him that she was not experiencing any neck or back pain, but that she had been experiencing dizziness and headaches. After his examination of Tamayo’s neck and back both produced normal results, Dr. Aiken opined that if she had neck or back injuries, they had healed by the time of his evaluation. He further opined that because neither Dr. Frickey nor Dr. Kang found any abnormalities in Tamayo’s back following the accident, her lumbar abnormalities could not be related to the accident.

Dr. Thomas also acknowledged Ta-mayo’s lumbar abnormalities, but noted that she exhibited several non-anatomical responses during his evaluation which he described as consisting of generally unreliable responses. Specifically, he testified that when he lightly touched her spine, Tamayo jumped in pain and indicated that it caused pain and heat throughout her leg. Dr. Thomas testified that lightly touching the spine should not cause these responses. He further testified that he witnessed Tamayo walk with a locked-knee limp, which he described as being inconsistent with back or leg pain. Dr. Thomas also noted that Tamayo alternated the limp to the other leg when she walked back towards him.

Seraphin was also treated by Dr. Frick-ey, Chiropractor Haydel and Dr. Bartholomew. Dr. Frickey testified that her examination of Seraphin revealed spasms in her cervical and lumbar spine. Chiropractor Haydel ordered Seraphin to have an MRI of her lumbar spine, which revealed two bulging discs at L3-L4 and | nL4-L5. However, Dr. Aiken interpreted the MRI results of Seraphin’s neck and back as normal. Dr. Aiken also testified that his physical examination of her neck and back was similarly normal.

Defendants also introduced into evidence surveillance videos of Tamayo and Seraphin conducted in March of 2012, roughly one year after the accident. The surveillance videos depicted Tamayo and Seraphin performing various activities ranging from shopping, lifting children in and out of cars, running errands, and bending.

After the conclusion of the evidence, the jury rendered a verdict finding Klopf 50% at fault, Tamayo 20% at fault, Seraphin 20% at fault, and Fox Cars 10% at fault. Although the jury concluded that both Ta-mayo and Seraphin were injured in the accident, they only awarded each plaintiff $15,000 for past medical expenses, respectively, and failed to award any general damages or any damages for future medical expenses. ■ The jury elected not to award Fox Cars any damages.

On April 5, 2013, plaintiffs filed a motion for judgment notwithstanding the verdict (“JNOV”), alleging that the jury rendered an erroneous verdict because it awarded Tamayo and Seraphin damages for past medical expenses, but failed to award them any general damages or any damages for future medical expenses. Plaintiffs further alleged that the verdict was erroneous because the jury only awarded Tamayo and Seraphin 50% of their claimed past medical expenses and it failed to award any damages to Fox Cars.

After a hearing, the trial court rendered a judgment on May 21, 2013 partially granting and partially denying plaintiffs’ motion for JNOV. Specifically, the trial court awarded Tamayo and Seraphin $35,000 and $19,500 in general damages, respectively, but declined to increase their awards for past medicals or to award any damages for future medicals or to award property damages to Fox Cars. |7After reducing plaintiffs’ awards in accordance with Klopf s 50% fault allocation, the trial court awarded Tamayo and Seraphin $17,500 and $9,750 in general damages, respectively. Plaintiffs now appeal.

ASSIGNMENTS OF ERROR

On appeal, plaintiffs raise the following assignments of error:

1. The jury manifestly erred in finding Klopf only 50% liable
2. Defendants failed to overcome the Housley Presumption
3. The trier of fact manifestly erred in awarding Jalima Tamayo only $35,000 in general damages, $15,000 in past medical expenses, and $0 in future medical expenses
4. The trier of fact manifestly erred in awarding Sobeyda Seraphin only $19,500 in general damages, $15,000 in past medical expenses, and $0 in future medical expenses
5. The jury manifestly erred in failing to disregard Dr. David Aiken’s opinion due to his erroneous diagnosis of plaintiffs
6. The jury manifestly erred in giving weight to defendants’ surveillance videos of plaintiffs
7. The trial court manifestly erred in failing to grant plaintiffs’ motion for new trial based upon newly discovered evidence consisting of photographs showing that the taillights of the Aveo were operational after the incident

LAW AND DISCUSSION

Plaintiffs’ Assignment of Error Number One:

In plaintiffs’ first assignment of error, they contend that the jury committed manifest error in its allocation of fault. Specifically, plaintiffs allege that the jury erred in only allocating 50% of the fault to Klopf.

Like all factual findings, the trier of fact is owed great deference in its allocation of fault and its findings may not be reversed unless clearly wrong or manifestly erroneous. Ruttley v. Lee, 99-1130 (La. App. 5 Cir. 5/17/00), 761 So.2d 777, 787, writ denied, 00-1781 (La.9/22/00), 768 So.2d 1287, citing Clement v. \nFrey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607, 609-10. Like the assessment of damages, fault allocation is a factual determination and the trier of fact, unlike the appellate court, has the benefit of viewing firsthand the witnesses and evidence. Id. It. is the appellate court’s duty to give deference to the trier of fact. Ruttley, supra. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670, 680-81.

An appellate court’s determination of whether the trier of fact was' clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), including: 1) whether the conduct was inadvertent or involved an awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capacities of the actors, and 5) any extenuating factors which might require the actor to proceed with haste, without proper thought. Duncan, supra; Davis v. Vosbein, 12-626 (La.App. 5 Cir. 5/16/13), 119 So.3d 100,102.

In a rear-end collision, Louisiana law provides that the following motorist is presumed negligent. Mart v. Hill, 505 So.2d 1120, 1123 (La.1987). However, when the rear-end collision presumption applies, the following motorist can escape liability by proving that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Mai Vu v. Artis, 09-637 (La.App. 5 Cir. 12/29/09), 30 So.3d 140, 144. Courts have held that a stopped or slowly moving unlighted vehicle upon the highway at night is an unusual obstruction which the following motorist has no reason to anticipate. Evans v. Olinde, 609 So.2d 299, 302 (La.App. 3 Cir.1992),' writ denied, 616 So.2d 697 (La.1993).

lain this case, the jury was presented with evidence that plaintiffs were traveling at 30 to 35 miles per hour across the Causeway at night due to a . flat tire. Plaintiffs both testified that Seraphin turned the hazard lights on after they experienced the flat tire. However, Klopf testified that he did not see any eai’s, taillights or hazard lights in front of him on the bridge, just before he glanced down at his cell phone for one to two seconds. When he returned his eyes to the road, he testified that all he saw was the white paint of the Aveo immediately in front of him.

Additionally, our review of the record shows that Tamayo was impeached at trial based upon her prior inconsistent deposition testimony. Specifically, Tamayo testified that the Aveo was in good condition, and that she knew the rear taillights were working. On cross-examination, when defense counsel questioned Tamayo about how she knew the taillights were operational that night, Tamayo first explained that she would always check for the reflection of the taillights in the glass door of her home or a stop sign. When questioned further, Tamayo stated that she does not intentionally check for the reflection of her taillights, but that she only sees them as. she’s parking in her driveway. Defense counsel then confronted Tamayo with her deposition testimony wherein she stated that every time she got into the Aveo, she checked for the reflection of the taillights.

The jury was also presented with evidence establishing that the Aveo had been restored by Tamayo’s husband, after having been previously declared a total loss. However, Tamayo’s husband had no documents evidencing the repairs, and he admitted that the Aveo had not been subjected to a brake tag inspection at the time of the accident.

The jury apparently gave more weight to the evidence presented by defendants in support of their argument that the taillights of the Aveo were not | moperational on the night of the accident. When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Johnson v. Lee, 10-439 (La.App. 5 Cir. 11/23/10), 54 So.3d 704, 706. After reviewing the record in its entirety, we cannot say that the jury’s apportionment of fault is clearly wrong or- manifestly erroneous under the facts of this case.

Moreover, we find no merit to plaintiffs’ argument that the sudden emergency doctrine is not applicable to situations where the following motorist is also partially at fault. First, we note that the sudden emergency doctrine is not contained within the jury charges, and therefore, the jury in this case was not charged on the law regarding the sudden emergency doctrine. Nevertheless, we find that “since the passage of the comparative fault law, La. C.C. art. 2323, in 1980, the defense of sudden emergency has been treated simply as one of the factual considerations which is to be used in assessing the degree of fault to be attributed to a party.” Lee v. Davis, 03-997 (La.App. 5 Cir. 12/30/03), 864 So.2d 780, 784. Therefore, even if the jury had been asked to consider the sudden emergency doctrine in this case, that doctrine would not preclude the jury from finding Klopf only 50% at fault for the accident. Therefore, we find that this assignment of error is without merit.

Plaintiffs’ Assignments of Error Numbers Two, Three and Four:

In their second, third and fourth assignments of error, plaintiffs challenge the award of damages to plaintiffs. First, in their second assignment of error, plaintiffs contend that the jury awarded insufficient general damages because they failed to properly apply the Housley presumption. In plaintiffs’ third and fourth | n assignments of error, they contend the trier of fact manifestly erred in the specific damage awards rendered in favor of plaintiffs.

We begin with plaintiffs’ second assignment of error. Plaintiffs allege that defendants failed to overcome the Housley presumption. In Harrington v. Wilson, 08-544 (La.App. 5 Cir. 1/13/09), 8 So.3d 30, 38-39, this Court held as follows regarding the Housley presumption:

In a personal injury action, the plaintiff must prove by a preponderance of the evidence that the claimed injuries resulted from the accident at issue. If the medical testimony establishes that it is more probable than not that subsequent injuries were caused by the trauma suffered in the incident, the burden of proof is satisfied. A presumption of causation will aid a plaintiff in meeting this burden, if before the accident, the injured person was in good health, but, commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be reasonable possibility of a causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973 (La.1991). To rebut this presumption, defendant must show that some other particular incident could have caused the injury in question.

(Emphasis added) (citations omitted). This Court further emphasized that under the Housley presumption, the trier of fact is not precluded from making determinations regarding the credibility of witnesses,. and after weighing and evaluating the medical testimony, the trier of fact is free to accept or reject the opinion expressed by the medical expert. Harrington, 8 So.3d at 39. The application of the Housley presumption is a factual issue, which is reviewed by appellate courts under the manifest error standard of review. Id.

A trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Foley v. Entergy Louisiana, Inc., 06-983 (La.11/29/06), 946 So.2d 144, 153 (citing Ferrell v. Fireman’s Fund Insurance Co., 94-1252 (La.2/20/95); 650 So.2d 742, 745). “Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, |12but whether the fact finder’s conclusion was a reasonable one.” Foley, 946 So.2d at 153. “If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony. Johnson, supra (citing Lasyone v. Kansas City Southern Railroad, 00-2628 (La.4/3/01), 786 So.2d 682, 693).

Plaintiffs contend that the jury failed to properly apply the Housley presumption because defendants failed to introduce any evidence that plaintiffs suffered from preexisting neck or back injuries. Because defendants failed to rebut the Housley presumption, plaintiffs contend that the jury should have presumed that their injuries were caused by the accident, and awarded damages accordingly.

After reviewing the record in its entirety, we find no manifest error in the trier of fact’s application of the Housley presumption. Although we note that the jury technically erred by awarding plaintiffs past medical expenses, but failing to award them any general damages, it does show the jury’s state of mind with respect to causation and damages. In any case, the trial court properly granted plaintiffs’ motion for JNOV based upon this error, and awarded plaintiffs general damages. As we noted above, under the Housley presumption, the trier of fact is not precluded from making determinations regarding the credibility of witnesses, or from accepting or rejecting the opinion expressed by the medical expert.

Here, the record shows that plaintiffs’ medical experts and defendants’ medical experts varied greatly in their opinions as to the severity of both Tamayo’s and Sera-phin’s injuries. In addition, the jury was also presented with the surveillance videos of both plaintiffs performing activities which seemingly 11scontradicted the physical limitations described to their physicians at that time. Defendants’ expert, Dr. Thomas, also testified that Tamayo appeared to exhibit signs of malingering, as evidenced by her non-anatomical responses of jumping in pain when he lightly touched her skin, and alternating a “locked-knee” limp from one leg to the other. Although we note that plaintiffs testified that they have “good” days where they can perform more strenuous activities, we find this evidence calls for factual findings based upon credibility determinations made by the trier of fact. After reviewing the evidence, we find no error in the trier of fact’s application of the Housley presumption as it relates to causation and to plaintiffs’ award of damages.

General Damages

For the same reasons as stated above, we find no error in the trial court’s partial grant of plaintiffs’ motion for JNOY awarding general damages, as set forth in their third and fourth assignments of error.

In Stoll v. Allstate Ins. Co., 11-1006 (La.App. 5 Cir. 5/8/12), 95 So.3d 1089, 1095, citing Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94, 99, this Court set forth the criteria to be used in determining whether JNOV is proper:

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

| u“There is no question that the abuse of discretion standard of review applies when an appellate court examines a fact finder’s award of general damages.” Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70, 74. The assessment of the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Id. “As such, ‘the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.’ ” Id. (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)).

Here, after the jury only awarded each plaintiff special damages for past medical expenses in the amount of $15,000, the trial court granted plaintiffs’ motion for JNOV in part and awarded Tamayo and Seraphin $35,000 and $19,500 in general damages, respectively. After reducing plaintiffs’ awards in accordance with Klopf s 50% fault allocation, the trial court issued a judgment on their motion for JNOV awarding Tamayo and Seraphin $17,500 and $9,750 in general damages, respectively.

Plaintiffs contend that Tamayo established that she sustained a herniated lumbar disc, a bulging lumbar disc, and three bulging cervical discs, and Seraphin established that she sustained two bulging lumbar discs and soft tissue injuries to her cervical spine. Plaintiffs heavily rely on their experts’ interpretation of their MRI results for these findings. However, defendants’ expert testified that he interpreted plaintiffs’ MRI results as normal, and that his physical examinations of plaintiffs were similarly normal. Given that the evidence does not clearly support the extent of the injuries claimed by plaintiffs, we cannot say that the trial court’s 11fiaward of $35,000 and $19,500 in general damages to Tamayo and Seraphin, respectively, was an abuse of discretion.

Special Damages

Plaintiffs further allege in their third and fourth assignments of error that the trial court erred by failing to increase the jury’s award of special damages for past medical expenses, and by failing to award plaintiffs special damages for future medical expenses.

A plaintiff may recover past medical expenses that he incurs as a result of an injury due to the fault of another. Harrington, 8 So.3d at 40. To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Id. at 40-41. A jury errs by not awarding the full amount of medical expenses incurred as a result- of injuries caused by the accident when the record demonstrates that the victim has proven them by a preponderance of the evidence. Gunn v. Robertson, 01-347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, 564, writ denied, 02-0170 (La.3/22/02), 811 So.2d 942, and writ denied, 02-0176 (La.3/22/02), 811 So.2d 942.

In this case, plaintiffs - introduced into evidence a summary of past medical expenses for Tamayo and Seraphin totaling $30,049 and $27,283, respectively. After hearing all of the evidence, the jury awarded Tamayo and Seraphin approximately one-half of their claimed past medical expenses, or $15,000 to each plaintiff. We find that this award suggests that the jury did not believe that all of plaintiffs’ post-accident treatment was causally connected to the accident. The jury’s award of $15,000 to each plaintiff for past medical expenses is- consistent with a finding that plaintiffs suffered some injuries from the accident, but that they were not entitled to recover all of their requested expenses. After reviewing all of the evidence, we find that reasonable persons in the exercise of impartial judgment 11 (¡might reach different conclusions as to plaintiffs’ claim for past medical expenses. Accordingly, we find no error in the trial court’s denial of plaintiffs’ motion for JNOV as to past medical expenses.

In order to recover future medical expenses, the plaintiff must prove that these expenses will be necessary, and inevitable. Gunn, supra. Future medical expenses must be established with some degree of certainty and must be supported with medical testimony and estimation of probable costs. Id. The plaintiff bears the burden of proving entitlement to future medical expenses by a preponderance of the evidence. Dufrene v. Gautreau Family, LLC, 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 83, writ denied, 08-0629 (La.5/9/08), 980 So.2d 694, and writ denied, 08-0628 (La.5/9/08), 980 So.2d 698. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Id.

Plaintiffs presented the testimony of Dr. Bartholomew and Dr. Lesser in support of their claims for future medical expenses. Plaintiffs introduced into evidence the reports of Dr. Bartholomew which recommended that Tamayo continue to treat conservatively with Chiropractor Haydel, and that she undergo an IDET procedure. Plaintiffs argue that Chiropractor Haydel’s past medical bill for two years.of treatment rendered to Tamayo totaling $9,756 provides an estimation of the probable costs necessary for her future treatment. As for Seraphin, plaintiffs contend that Dr. Lesser’s report recommended that she continue to seek treatment for chronic pain management totaling $8,000 a year.

Given that the medical evidence introduced by plaintiffs was highly contested by defendants, we find that reasonable persons in the exercise of impartial judgment could reach different conclusions as to plaintiffs’ claim for future medical expenses. Accordingly, we find that the trial court properly denied plaintiffs’ motion for JNOV as to their claim for future medical expenses.

| itPlaintiffs’ Assignments of Error Numbers Five and Six:

In their fifth and sixth assignments of error, plaintiffs contend that the jury erred in accepting the testimony of defendants’ expert, Dr. David Aiken, and in considering the video surveillance of Tamayo and Seraphin.

As we have set forth above, credibility determinations are for the trier of fact, and this rule applies equally to the evaluation of expert testimony. Johnson, supra. A trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Miller v. Clout, 03-0091 (La.10/21/03), 857 So.2d 458, 462. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

Applying this jurisprudence, we cannot say that the jury was manifestly erroneous in accepting the testimony of Dr. Aiken, or in considering the surveillance tapes of plaintiffs. Plaintiffs argue that the positive discogram results that were taken after Dr. Aiken’s evaluation of Tamayo prove that she did in fact sustain the injuries she complained of, and that Dr. Aiken’s opinion to the contrary should have been disregarded as erroneous. With respect to the surveillance videos, plaintiffs contend that the videos should have been disregarded by the jury because plaintiffs both testified that they have “good” days on which they can perform tasks without restriction. As such, plaintiffs allege that videos contain nothing that could be used to impeach their testimony.

We find plaintiffs’ argument to be without merit. The jury heard all of the relevant testimony first-hand, including testimony from defendants’ experts that discograms rely on a subjective element and are not purely objective tests, as well as evidence that plaintiffs performed tasks in the videos that were contrary to the | ^limitations communicated to their physicians at the same time. Considering the extent of conflict in the testimony presented by plaintiffs and defendants, we cannot conclude that the jury’s factual findings and credibility determinations are unreasonable. These assignments of error are without merit.

Plaintiffs’ Assignment of Error Number Seven:

In their final assignment of error, plaintiffs contend that the trial court erred in failing to grant their motion for new trial based upon newly discovered evidence, consisting of cell phone pictures of the Aveo which they claim depicted the taillights working after the accident.

Under La. C.C.P. art. 1972(2), a new trial shall be granted when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. In order to meet his or her burden of proof on a motion for new trial on the basis of newly-discovered evidence, the moving party must prove: (1) that the evidence was discovered after the trial; (2) that the new evidence is not cumulative; (3) that the new evidence would tend to change the result of the case; and (4) that the new evidence could not have been discovered with due diligence before the trial was completed. Holloway Drilling Equip., Inc. v. Bodin, 12-355 (La.App. 3 Cir. 11/7/12), 107 So.3d 699, 709.

The jurisprudence accords the trial court great discretion in granting a new trial. Warner v. Carimi Law Firm, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, 597, writ denied, 99-0466 (La.4/1/99), 742 So.2d 560. Appellate courts will not disturb a decision of the trial court denying a motion for new trial unless there has been a clear abuse of discretion. Id.

In their motion for new trial, plaintiffs alleged that the pictures of the Aveo, which they attached to their motion, were contained on a cell phone that was lost 119after the accident. Plaintiffs alleged that despite their best efforts, they were unable to locate the phone until after the trial.

We find that plaintiffs have failed to meet their burden under La. C.C.P. art. 1972(2). Plaintiffs attached an affidavit of Tamayo’s husband, Cruz, attesting that “much effort was spent attempting to locate the mobile phone.” We find that this singular statement is insufficient to meet plaintiffs’ burden of establishing that the cell phone could not have been discovered with due diligence before the trial was completed. See La. C.C.P. art. 1972(2). Additionally, we have reviewed the cell phone pictures attached to the motion, and find plaintiffs have failed to show that the new evidence would tend to change the result of the case, as the pictures do not clearly show that the taillights were in fact operational after the accident. Therefore, we find no abuse of discretion in the trial court’s denial of plaintiffs’ motion for new trial.

CONCLUSION

For the foregoing reasons, we affirm the May 21, 2013 judgment of the trial court.

AFFIRMED


author: HANS J. LILJEBERG, Judge.

text:
    Shirley TRENCH, v. WINN-DIXIE MONTGOMERY LLC.
    No. 14-CA-152.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Malcolm J. Dugas, Jr., Attorney at Law, Donaldsonville, LA, for Plaintiff/Appellant.
    John E. Unsworth, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡¡Plaintiff, Shirley Trench, appeals a summary judgment granted in favor of defendant, Winn-Dixie Montgomery, L.L.C. (“Winn-Dixie”), dismissing plaintiffs claims against it. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 23, 2011, Shirley Trench was shopping at a Winn-Dixie store in Gramer-cy, Louisiana, when she fell while walking in the area of the meat department. On June 13, 2011, Ms. Trench filed suit against Winn-Dixie, claiming that the floor was slippery, causing her to fall and sustain injuries to her lower back, neck, knees and right arm. In her petition, Ms. Trench contends that Winn-Dixie is liable for the damages she sustained, because it allowed a “greasy/wet/slippery condition” to exist on its premises which created an unreasonable risk of harm and caused her damages. In response to Ms. Trench’s petition for damages, Winn-Dixie filed an answer, generally denying Ms. Trench’s allegations and asserting that the fall and resulting damages were caused by Ms. Trench’s own negligence.

IsOn July 10, 2013, Winn-Dixie filed a motion for summary judgment, asserting that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Winn-Dixie claims that Ms. Trench cannot carry her burden of proof, as there is no evidence that an unreasonably dangerous condition existed on the Winn-Dixie premises or that Winn-Dixie had notice of any alleged defective condition prior to the incident in question. In support of its motion for summary judgment, Winn-Dixie submitted several exhibits, including the depositions of Shirley Trench and a witness, Lloyd Bartley, affidavits from two Winn-Dixie employees, Theo St. Amant and John David Anders, a surveillance video of the incident, and photographs from the surveillance video.

In Ms. Trench’s deposition, she testified that it was slippery in the area where she fell, but she does not know why it was slippery. She stated that one of the managers said the floor had just been waxed and they had put too much wax on the floor. Ms. Trench testified that she did not know how long the floor had been slippery or whether or not any other customers had problems walking in that area.

In Lloyd Bartley’s deposition, he testified that he and his wife were acquaintances of Ms. Trench and they were shopping at Winn-Dixie when the incident occurred. He stated that he saw Ms. Trench fall “out of the corner of [his] eye,” but he did not see how she fell and could not describe how she fell. Mr. Bartley testified that the floor was shiny and slippery with a “sparkling, clean, waxed, military-like floors, glare,” but he and his wife had no problems walking on it. He further stated that he heard a Winn-Dixie employee or manager at the scene say that he did not see anything that Ms. Trench could have slipped on. Mr. Bartley testified that he did not hear the employee say that there was too much wax on the floor, but the employee said that they wax or buff the floor every night, |4which could have caused the fall. Mr. Bartley noted that there was a skid mark on the floor where Ms. Trench fell.

In Theo" St. Amant’s affidavit, he stated that he was the manager at Winn-Dixie on the night of the incident. He inspected the area where Ms. Trench fell and saw absolutely nothing on the floor, including no water, wax, or any other foreign substance. Mr. St. Amant further stated that he never told Ms. Trench or anyone else that she may have slipped because the floor had been recently waxed and too much wax could have been used.

In John David Anders’ affidavit, he stated that he was a stock clerk at Winn-Dixie on the night of the incident. Mr. Anders inspected the area where Ms. Trench fell and saw nothing on the floor that could have caused her to fall.

In its motion for summary judgment, Winn-Dixie argued that there is a lack of factual support for Ms. Trench’s claims, because Ms. Trench admitted in her deposition that she does not know what caused her to fall, and there is no evidence that any unreasonably dangerous condition existed. Winn-Dixie further asserted that Ms. Trench’s argument that she may have fallen due to excess wax on the floor is not factual support for her claims; rather, it is mere speculation. Winn-Dixie also noted that the surveillance video does not show that any other customer had a problem traversing the area where Ms. Trench fell either before or after this incident.

Ms. Trench filed a memorandum in opposition to Winn-Dixie’s motion for summary, asserting that there are genuine issues of material fact as to whether or not the floor at Winn-Dixie was slick and dangerous due to excess wax and created an unreasonable risk of harm. Along with her opposition memorandum, Ms. Trench submitted the portion of her deposition in which she testified that the manager of Winn-Dixie told her that the floor had just been waxed and that too |fimuch wax had been used. She also submitted pages from Mr. Bartley’s deposition in which he noted that there was a skid mark where Ms. Trench fell, that a Winn-Dixie employee said the floor was waxed or buffed every night, and the wax could have caused the fall. Finally, Ms. Trench noted that the photographs of the aisle where she fell show a floor that is highly reflective of the ceiling lights, and she suggests that this is indicative of a high level of wax on the floor that would cause a slippery surface.

On November 4, 2013, Winn-Dixie’s motion for summary judgment came before the trial court for hearing. At the conclusion of the hearing, the trial 'court took the matter under advisement and indicated that it would review the video of the incident and consider the deposition testimony submitted. Thereafter, on November 21, 2018, the trial court rendered a judgment in favor of Winn-Dixie, granting its motion for summary judgment and dismissing Ms. Trench’s claims against it. The trial court issued written reasons for judgment on January 13, 2014, finding that there was “simply no competent evidence of an unreasonably dangerous condition.” Ms. Trench appeals the summary judgment granted in favor of Winn-Dixie.

LAW AND DISCUSSION

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Prince v. K-Mart Corp., 01-1151, p. 7 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248; Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 547. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that | amover is entitled to judgment as a matter of law.” La. ’C.C.P. art. 966(B)(2). The summary judgment procedure is favored, and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Id.; Patrick v. Iberia Bank, 05-783, pp. 3-4 (La.App. 5 Cir. 3/14/06), 926 So.2d 632, 634. Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2).

appeal, Ms. Trench asserts that the trial court erred by concluding that there was no competent evidence of an unreasonably dangerous condition. She contends that Winn-Dixie’s motion for summary judgment should not have been granted, because there are genuine issues of material fact as to whether Winn-Dix-Winn-Dix-floor was slippery due to wax buildup, thereby creating an unreasonable and foreseeable risk of harm, and whether Winn-Dixie failed to exercise reasonable care to warn customers of the dangerous condition.

In a slip and fall case against a mer-merthe plaintiff bears the initial burden of proving each element of her cause of action under La. R.S. 9:2800.6(B). Flow-Flowv. Wal-Mart Stores, Inc., 12-140, p. 5 (La.App. 5 Cir. 7/31/12), 99 So.3d |7696, 699; White v. Wal-Mart Stores, Inc., 97-97-(La.9/9/97), 699 So.2d 1081,1082.

La. R.S. 9:2800.6 provides, in relevant part, as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Because a plaintiff must prove each of these elements, the failure to prove any element is fatal to the claimant’s cause of action. White, supra at 1086.

Merchants are required to exercise reasonable care to protect those who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn persons of known dangers. Richardson v. Louisianar-1 Gaming, 10-262, p 4 (La.App. 5 Cir. 12/14/10), 55 So.3d 893, 895. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Id. at 4, 55 So.3d at 895-896. A store owner is not liable every time an accident happens. Id.; Harrison v. Horseshoe Entertainment, 36,294, p. 8 (La.App. 2 Cir. 8/14/02), 823 So.2d 1124, 1128-1129.

|sIn the present case, Winn-Dixie submitted the deposition of Ms. Trench, in which she testified that it was slippery in the area where she fell, but she admitted that she does not know why it was slippery or what caused her to fall. Although she claims that a manager said the floor had just been waxed and they had put too much wax on the floor, it is undisputed that no one saw anything on the floor that could have caused Ms. Trench to slip and fall, including any excess wax or wax buildup. We note that the surveillance video of the incident shows that the floor was shiny, but it does not show that the condition of the floor presented an unreasonable risk of harm or that any other customer had a problem walking on the floor before or after the incident.

It is well-settled that a plaintiff opposing summary judgment cannot rest on the mere allegations of her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B); Darr v. Marine Electronics Solutions, Inc., 11-908, p. 9 (La.App: 5 Cir. 5/22/12), 96 So.3d 527, 533, writ denied, 12-1442 (La.10/8/12), 98 So.3d 860; Peralta v. Perazzo, 06-343, p. 6 (La.App. 5 Cir. 10/31/06), 942 So.2d 64, 68, writ denied, 06-3028 (La.2/16/07), 949 So.2d 415. Mere conclusory allegations and unsupported speculation will not support the finding of a genuine issue of material fact; such allegations and speculation are insufficient to satisfy the opponent’s burden of proof. Sears v. Home Depot, USA, Inc., 06-201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La.1/26/07), 948 So.2d 168.

In the present case, based on our de novo review of the motion for summary judgment and supporting exhibits, we find that Winn-Dixie met its initial burden of proof by pointing out an absence of factual support for Ms. Trench’s claim that the condition of the floor at Winn-Dixie created an unreasonable and foreseeable risk of harm. Winn-Dixie noted that none of the witnesses saw any wax buildup on the |9floor or any other substance that could have caused Ms. Trench to fall. The burden then shifted to Ms. Trench to provide sufficient evidence to show that she would be able to satisfy her burden of proof at trial pursuant to La. R.S. 9:2800.6.

In opposition to Winn-Dixie’s motion for summary judgment, Ms. Trench failed to provide any factual support for her claim that the condition of the floor presented an unreasonable and foreseeable risk of harm. Rather, she merely speculated that she slipped due to wax on the floor. Ms. Trench admitted that she did not know what she fell on. She claims that the manager of Winn-Dixie said there was too much wax on the floor, which he denies. Regardless, even if the manager stated that the floor had just been waxed and speculated that wax could have caused her fall, there is no evidence that anyone actually saw any wax buildup or any other foreign substance was on the floor. Ms. Trench’s factually unsupported and speculative allegation of too much wax on the floor is insufficient to defeat summary judgment.

Based on our de novo review of the motion for summary judgment, opposition, exhibits, and the applicable law, we agree with the trial court that Winn-Dixie is entitled to summary judgment.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of Winn-Dixie, dismissing plaintiffs claims against it.

AFFIRMED.