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    STATE of Louisiana v. Dwayne P. BUTLER.
    No. 08-KA-662.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Elizabeth Curren, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

12Pefendant/appellant, Dwayne Butler (“Butler”), appeals his convictions and sentences on two counts of armed robbery in violation of La. R.S. 14:64, and one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. For reasons that follow, we affirm both the convictions and the sentences and remand the matter to the trial court for corrections of the commitment as instructed infra.

Butler was originally charged with the three crimes by bill of information. He entered a plea of not guilty to all three counts. Several defense motions were filed, including a motion to sever count three from the two armed robbery charges. The motions were denied.

Butler proceeded a to jury trial on all three counts and was found guilty. In due course, Butler was sentenced to serve forty-nine and one-half years at hard |3labor on each count of armed robbery, and fifteen years at hard labor on the possession of a firearm charge. All sentences were imposed without benefit of parole, probation, or suspension of sentence, and were made to run concurrently with the other sentences.

Subsequently, the State filed a multiple bill of information pursuant to La. R.S. 15:529.1. Butler pled guilty to the charge of being a multiple offender. The trial court vacated the original sentence on count one (armed robbery) and imposed an enhanced sentence of forty-nine and one-half years without benefit of parole, probation, and suspension of sentence. The enhanced sentence was made to run concurrently with other sentences Butler was serving. This appeal followed.

FACTS

On August 22, 2006, at approximately 1:30 p.m., Debra Lindsey (“Ms. Lindsey”) went into the Rent-A-Center in Marrero to make a payment on a bill. An individual wearing a white T-shirt and jeans, later identified as Butler, came in behind her. Lakesha Smith (“Ms. Smith”), an employee of Rent-A-Center, assumed Ms. Lindsey and Butler were together, but discovered shortly afterward that they were not. Ms. Lindsey paid in cash and then turned around to leave. Butler followed Ms. Lindsey and robbed her. Butler told her, “Let me get that out you.” After Ms. Lindsey saw that Butler had a gun, she gave him all the money she had in her pocket, which she believed was over $200.

Butler returned to the counter, showed Ms. Smith a gun, and demanded money. Ms. Smith gave Butler money, which she testified was less than $400, and he left. After he ran out of the store, Ms. Smith pressed the panic button and called 911 to report the robbery. When Ms. Smith went to lock the front door, she observed Ms. Lindsey crying in her car. Ms. Lindsey had returned to her car and called 911. Ms. Lindsey gave the police a physical description of the robber and |4told police he was wearing a white T-shirt and jean shorts. The incident was captured by the Rent-A-Center’s surveillance cameras, and still photographs were compiled from the surveillance CD.

On the date of the incident, Patricia Charles (“Ms. Charles”) was working at a Subway restaurant across the street from the Rent-A-Center. Lieutenant Bruce Harrison (“Lieutenant Harrison”) of the Jefferson Parish Sheriffs Office was canvassing the area after the robbery and went to the Subway. He spoke with Ms. Charles, who told police that a male with a white T-shirt and blue shorts had walked into the store earlier and had just stood by the fountain drinks. Ms. Charles recalled that, while he was in the restaurant, he spoke to a female deputy wearing a Jefferson Parish Sheriffs Office uniform who came in every day to get a salad. After customers left and the male remained in the restaurant without ordering anything, Ms. Charles picked up the phone, and he ran out.

The police later learned the deputy who was at the Subway was Barbara Duskin. They spoke with her, and she recalled having a conversation with Butler while she was in line on the day of the robbery at Subway at approximately 1:20 p.m. She identified Butler by name and described him as wearing a white T-shirt and blue jean shorts.

After learning the perpetrator’s name, a photographic lineup was prepared. The victims were separately shown the lineup on the same day as the robberies. Both Ms. Smith and Ms. Lindsey identified Butler as the person who robbed them. An arrest warrant was prepared for Butler, and officers went to Butler’s home, knocked on the door, and announced, “Police.” Before anyone opened the door of the house, the police heard a loud noise coming from the rear of the house, which proved to be Butler attempting to climb through the window. Lieutenant Harrison |r,ran to the back and yelled for Butler to drop the gun he had in his hand. After a brief struggle, Butler dropped the gun and was handcuffed.

Sergeant John Carroll of the Jefferson Parish Sheriffs Office showed a still photograph of the robber inside of the RenWA-Center to Butler’s mother, grandmother, and a family friend. They identified Butler. The officers were given consent to search the house, but no evidence was recovered.

At the detective bureau, after Butler was advised of his rights, he stated that he committed the robbery and explained he did it to pay off a drug debt. He also identified himself in the surveillance photograph.

At trial, the State also presented evidence of Butler’s prior conviction on a charge of distribution of cocaine in support of the convicted felon in possession of a firearm charge. It was stipulated that Deputy Asha Simon, a fingerprint expert, examined fingerprints taken from Butler when he was convicted of the distribution of cocaine charge, compared it to the fingerprints taken two days earlier, and found a match.

LAW AND ANALYSIS

In brief to this Court, Butler assigns three errors for our review. In the first, he argues that his challenges for cause seeking to reject certain possible jury members were wrongfully denied. The arguments in this assignment relate to two specific jury panel members, Fredric Watson (“Mr. Watson”) and Ismer Akinci (“Mr. Akinci”). The defense attorney challenged both jurors for cause, arguing that neither juror could follow the law, and they were incapable of being fair and impartial. Both challenges were denied by the trial court. Consequently, the defense used peremptory challenges to remove the two jurors.

The defense complaint against the prospective jurors is that the whole tone of their answers indicated that they expected the defendant to testify and would | r,hold it against him if he did not. Butler argues he used all of his allotted peremptory challenges, two of which were used on these jurors.

The State agrees that Butler exhausted all of his peremptory challenges but responds that, after Mr. Watson was instructed on the law, he stated he could follow the law and would not be biased against a defendant who chose not to testify. The State further contends that, although Mr. Akinci initially stated a defendant should testify at trial, after being instructed on the law he stated he would follow the law and not hold defendant’s decision not to testify against him. The State adds that the other responses reflected the jurors’ ability to be impartial, and there was no evidence they were incapable of being unbiased or fair jurors. The State concludes that the trial court properly denied these challenges for cause, noting that both clearly exhibited an acceptance of the law and a willingness to follow the law as instructed.

Under La.C.Cr.P. art. 797, a defendant may challenge a juror for cause if:

(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;
(4) The juror will not accept the law as given to him by the court....

The party seeking to exclude a juror for cause has the burden to demonstrate, through questioning, that the juror lacks impartiality. 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 17implied. A challenge for cause is not immediately warranted when a prospective juror has voiced an opinion seemingly prejudicial to the defendant. If after further inquiry the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence he may i*ehabilitated as a possible juror.

The trial court is vested with broad discretion in ruling on a challenge for cause, and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. The trial court has the benefit of seeing facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to the questioning.

A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. In Louisiana, a defendant must use one of his peremptory challenges euratively to remove the juror, thus reducing his remaining peremptory challenges, or waive any complaint on appeal. Prejudice is presumed when a challenge for cause is erroneously denied by the trial court and the defendant has exhausted his peremptory challenges. A district court’s erroneous ruling that deprives a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error.

In the present case, the trial court noted Butler’s objection after refusing to excuse both jurors for cause. Further, the record reflects that Butler made known his objections and explained his grounds for each challenge at the time he initially praised it. Butler asserts, and the State agrees, that all peremptory challenges were exhausted in the trial court. Thus, this issue is sufficiently preserved for ap--peal.

Prospective juror Mr. Watson stated that he had never been on a jury before and that he and his family had not been victims of crime. Mr. Watson stated that there was no reason he could not serve as a fair and impartial juror in a criminal matter. The State explained to the group of potential jurors that the State had the burden and that it could not be held against a defendant if he did not take the stand. The State asked if anyone had a problem with that and received a negative response. The State asked if everyone could follow the law in that aspect, and the group gave an affirmative response.

Mr. Watson stated that he believed he could follow the law and that Butler deserved his “due day.” The defense stated that a defendant was innocent at that point and would remain that way until the State convinced them that he committed a crime. Mr. Watson stated, “I can do that.” Defense counsel explained a defendant’s right against self-incrimination and how, if he chose to testify, the law provides it could not be held against him. Mr. Watson stated that he could not say one hundred percent that he would not hold it against Butler if he did not testify.

Defense counsel challenged Mr. Watson for cause. He argued Mr. Watson should be excused because he could not say with one hundred percent certainty that he would not hold it against Butler if he did not testify. The trial judge suggested they bring Mr. Watson to the bench to discover his true feelings on whether or not he could follow the law in this regard. While at the bench, the trial judge explained to Mr. Watson that there was some question about his feelings on Butler not testifying and explained that the law provides a defendant has a right not to testify and that cannot be held against him. Mr. Watson stated that he understood. Mr. Watson stated he could not be one hundred percent sure, but then [9stated he could follow the law. Mr. Watson explained that he believed a defendant had something to hide by not testifying. The trial judge explained that he could wonder that in his mind but asked if he could follow the law and not hold it against Butler in making his decision. Mr. Watson stated he could follow the law. Defense counsel asked him with one hundred percent certainty, if defendant did not testify, if he would hold it against him. Mr. Watson stated, “I wouldn’t hold it against him.”

After this questioning, defense counsel maintained the objection, noting that, although Mr. Watson changed what he said and that it could be that he misunderstood, his true feelings were what he stated the first time. The trial judge refused to excuse Mr. Watson for cause and noted the defense objection. The judge explained that Mr. Watson agreed that, although he may wonder in his mind why Butler did not testify, he could follow the law and not hold that against Butler. The defense used a peremptory challenge to strike Mr. Watson, and he was excused.

Prospective juror Mr. Akinei stated that he had never served on a jury before, and he and his family had not been victims of crime. He stated that he did not know of a reason he could not serve as a fair and impartial juror in a criminal case. Mr. Akinei was in the same group of potential jurors as Mr. Watson and gave an affirmative response when asked if they could follow the law pertaining to the presumption of innocence and the defendant’s right not to take the stand.

When Mr. Akinci was asked if he could give Butler the presumption of innocence, he answered, “Not right now, because I have to see, really.” Defense counsel explained a defendant’s right against self-incrimination and how, if he chose not to testify, the law provides it could not be held against him. When asked if defendant did not testify if he would hold it against him, Mr. Akinci said, “I hope hnhe will testify. If he’s not, that’s out of the question. I will question myself.” Defense counsel asked if he could say with one-hundred percent certainty that, if Butler did not testify, he would not hold it against him. Mr. AJkinci answered, “Of course, I will, because he is supposed to admit it, he’s supposed to testify.” Defense counsel asked, “If he doesn’t testify, you’re going to hold it against him?” Mr. Akinci answered, “Right.”

The defense challenged Mr. Akinci for cause, and Mr. Akinci was questioned at the bench. Mr. Akinci agreed that he understood the law was that a defendant did not have to take the stand and that he could follow the law, but that his “personal belief’ was that “sometimes you have to come to say what is going on.” Mr. Akinci again stated he understood the law and could follow the law. The trial judge sought clarification about his “personal belief,” and Mr. Akinci stated his personal belief was that an accused should take the stand. The trial judge explained that the law did not require a defendant to testify, and Mr. Akinci stated that he respected the law. He stated he would not hold it against Butler if the law said not to; he would follow the law.

Defense counsel maintained his objection, explaining that he did not believe someone could be rehabilitated involving this issue. The trial judge refused to excuse Mr. Akinci on the defense challenge for cause, explaining that Mr. Akinci understood the distinction between his personal beliefs and his obligation to follow the law and stated more than once that he would follow the law regardless of his personal beliefs. Defense counsel’s objection was noted, and he used a peremptory challenge to strike Mr. Akinci.

Although both Mr. Watson and Mr. Ak-inci originally expressed opinions about a defendant testifying that were seemingly prejudicial to Butler, after further inquiry, they were rehabilitated and demonstrated an ability and willingness to |n decide the case impartially according to the law and evidence. In such instances, a trial court does not abuse its discretion in denying a defense challenge for cause. A trial court does not err in deeming the witness impartial when, upon the court’s further inquiry, the juror unequivocally demonstrated a willingness to decide the case on the evidence presented in accordance with the instructions as to law given the jury by the trial judge.

This Court has consistently followed the above reasoning in finding no abuse of discretion in the trial court’s acceptance of a potential juror who initially expressed doubts about a defendant’s choice to refuse to testify at trial and subsequently, on further inquiry, unequivocally demonstrates a willingness to apply the law and presumption of innocence as instructed.

Accordingly, upon consideration of the entire voir dire transcript, we find no abuse of the trial court’s discretion in denying Butler’s challenges for cause as to Mr. Watson and Mr. Akinci.

In his second assignment of error, Butler argues the trial court erred in failing to grant his motion for mistrial. The basis of this argument is that the trial court allowed the State to deviate from its assertions that it would not introduce new evidence from Ms. Charles not disclosed in the police report. Butler argues that he was told by the State, after the conclusion of jury selection, that Ms. Charles gave no formal statement to the police and did not identify him.

However, Butler states that, during Ms. Charles’ testimony, the prosecutor wanted her to look at a photograph and identify Butler as being in the Subway around the time of the robbery. Further, Butler contends that he did not anticipate 112Ms. Charles’ change in testimony regarding her fear of being robbed. He argues he was prejudiced because he was deliberately misled and surprised by the State’s failure to disclose. He claims he was denied his right to a fair trial because he was lulled into a false appreciation of the strength of the State’s case and had no time to prepare for a proper cross-examination on such testimony.

The State responds that the showing of a photograph to Ms. Charles at trial did not warrant a mistrial, nor did the photograph constitute any form of exculpatory evidence which should have been disclosed to the defense prior to trial. The State explains that the photograph was only shown at trial and had no bearing on the identification of Butler by the witnesses to the crime. It adds that Ms. Charles was not present at the robbery. The State concludes that Butler has failed to establish a basis for a mistrial, has failed to establish any misconduct or error on the part of the prosecutor, and has failed to establish that he suffered prejudice.

The State, on a defendant’s motion, is required to produce documents and tangible objects within its possession, custody or control that are intended for use by the State as evidence at trial or that are favorable to the defendant and which are material and relevant to the issue of guilt or punishment. The State is under a continuing obligation to promptly disclose additional evidence that may be discovered or that it decides to use as evidence at trial.

When a party to a criminal proceeding fails to comply with the provisions of the discovery articles, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, | ijjOr enter such other order, other than dismissal, as may be appropriate. Mistrial is only one of the remedies available to the trial court in redressing a discovery violation, and it is warranted only when an error results in substantial prejudice to the defendant.

The rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony to allow the defense to meet the State’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. Basic unfairness results when a defendant is lulled into misapprehension of the strength of the State’s case through the failure of the prosecution to timely or fully disclose and the defendant suffers prejudice. This constitutes reversible error. However, the failure of the State to comply with discovery rules does not bring about automatic reversal. A defendant must make a showing of prejudice.

After jury selection, the defense questioned the State as to whether Ms. Charles made any identification or statements to the police. The State provided the information that Ms. Charles had spoken to the police, but did not give a recorded statement. The defense asked if she made an identification, and the State responded that she had not.

During trial, the State attempted to show Ms. Charles a photograph taken from the CD of the robbery. The defense objected and a bench conference was held. The defense argued that Ms. Charles was not presented a photographic lineup prior to trial and the photograph was overly suggestive. The State informed the court that Ms. Charles had seen the photograph that morning. The defense argued that, because the police report did not include Ms. Charles’ amplified testimony about panicking when Butler left and only a description of him wasJjjincluded in the police report, it would be prejudiced by the trial court’s allowing the State to proceed. The defense also argued it was assured by the State that there was nothing other than what was in the police report. The trial court sustained the defense objection, and there was no identification made by Ms. Charles and no questions were asked regarding this photograph. However, the defense moved for a mistrial because of the “preliminary questions” already heard by the jury. The defense argued cross-examination had to be reconsidered and the State knew this should have been done pretrial.

At trial, Ms. Charles did testify that she panicked and picked up the phone. Although Butler argues on appeal that Ms. Charles’ testimony changed radically when she testified that she was afraid of being robbed, the portions of the transcript Butler cites in support of this do not reflect such testimony. On cross-examination, when asked if she told anyone that someone tried to rob her, Ms. Charles responded that she had said that someone came into Subway and stood by the fountain drinks without saying or doing anything. She stated that when she picked up the phone, he left. In fact, when asked, she denied that she told the police she panicked when the person left.

In the present case, even assuming any of Ms. Charles’ testimony indicated to the jury that she feared she may be robbed, there’s nothing to suggest that the State had knowledge of this testimony pri- or to trial. The State has no obligation to disclose information it does not possess.

It was never established that the State intended to mention the identification the morning of jury selection, and the jury never heard of any identification of Butler made by Ms. Charles. Ms. Charles did not make an identification at trial when the defense objection was sustained. The State attempted to present a [^photograph of Butler to Ms. Charles that was taken from the video surveillance. The prosecutor stated, “And, Ms. Charles, I’m going to show you what’s been previously marked as State’s Exhibit # 3.” Although the defense attorney claimed he needed to rethink cross-examination, he did not indicate that he needed more time to prepare a defense by requesting a continuance.

On appeal, Butler argues that he was told by the State that Ms. Charles would not be asked questions outside of the police report. Butler argues he had a reasonable expectation that he could rely upon the prosecutor’s assurances that Ms. Charles would not be asked to identify him. However, the record does not reflect such assurances. After jury selection, the defense asked if Ms. Charles made an identification, and the State responded that she had not. At this time, the defense also acknowledged it had open file discovery.

Although Butler also seemed to argue that the one-on-one identification at trial was highly improper and unduly suggestive, the record shows no identification occurred. Furthermore, even though Ms. Charles was not a witness at the motion to suppress the identification hearing and did not identify Butler pretrial, a pre-trial identification is not a prerequisite to an in-court identification.

We also note that Butler has not demonstrated that he has been prejudiced because of the alleged discovery violation. Even if Ms. Charles had indicated that she was afraid Butler would rob her, the State had already presented testimony of the victims, Ms. Smith and Ms. Lindsey, who testified that Butler had robbed them. The victims also identified Butler.

The jury never learned of an identification made by Ms. Charles. The defense objection was sustained, and Ms. Charles did not identify Butler as the individual in the photograph. Further, there was no showing of any prejudice to | ^Butler. Based on these circumstances of this matter, we find no merit in Butler’s argument that the trial court erred in denying a mistrial.

In his final assignment of error, Butler argues that the trial court erred in denying his motion to sever count three (felon in possession of a firearm) from the two counts of armed robbery. He argues the motion for severance should have been granted because of the prejudice inherent in trying the multiple counts together, especially when the guns in the crimes were not the same. Butler asserts this was prejudicial and confusing to the jury, who could not have considered each offense separately and would have inferred that he had a criminal disposition.

The State responds that the counts were properly joined. It contends Butler was found in possession of the gun on the same day of the robbery when he was being arrested for the robberies, the counts were triable by the same mode of trial, were of similar character, and the facts of each offense were simple and uncomplicated.

Offenses that are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan can be joined, provided the offenses are triable by the same mode of trial. In the instant case, the charged offenses were connected together by the same underlying facts and occurred on the same date. The police discovered Butler in possession of a gun when they went to arrest him for the armed robberies that happened earlier that day. Additionally, because all offenses are necessarily punishable by hard labor, they are triable by the same mode of trial. Constitutionally, a conviction on each of the crimes |17charged required a trial before a twelve-person jury, ten of whom were required to agree on a verdict.

Nevertheless, a defendant properly charged in the same indictment with two or more offenses in accordance with the law may move for a severance of the offenses. A trial court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires. A severance is not mandated simply because the offense would not be admissible at the separate trial of the other if the defendant is not prejudiced by the joinder. No prejudicial effect occurs where the evidence as to each offense is simple and distinct and where, with proper jury charging, the jury can easily keep the evidence in each offense separate in its deliberations.

In ruling on a motion to sever offenses, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

[1RIn its determination of whether charged offenses should be severed for trial, the trial court may consider whether evidence of one offense would have been admissible as other crimes evidence at the trial of the other offense. However, the fact that evidence of one of the charges would not be admissible under Prieur in a separate trial on the joined offense, does not, per se, prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. The Louisiana Supreme Court requires a close connexity of res gestae or integral act evidence to insure that the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.

The defendant has a heavy burden of proof when he alleges prejudicial joinder. A motion to sever is addressed to the sound discretion of the trial court and the ruling should not be disturbed on appeal absent a showing of an abuse of discretion.

In the present case, Butler moved the court to sever the offenses for trial. He wanted count three, the felon in possession of a firearm charge, severed because the firearm was not the same firearm used in the robbery, and he wanted to avoid the introduction of evidence of the prior conviction for distribution of cocaine. After hearing arguments, the court denied the motion. The trial judge recognized his discretion and stated that he believed Butler could be provided appropriate relief based upon his claims of prejudice through jury instruction and by argument of counsel. The trial judge further stated that, because the gun was different, it could possibly benefit, rather than prejudice, defendant.

[190n appeal, Butler complains the trial court abused its discretion in denying his severance motion. He argues that trying the charges together made it impossible for him to receive a fair trial because they were prejudicial and confusing. Butler also argues the jury could not have considered each offense separately, and that the jury relied on the gun charge to validate the robbery charge, precluding the jury from considering mitigating evidence.

On appeal, Butler focuses his argument on the fact that count three involved a gun, and it was a different gun than what was used in the armed robberies. He does not rely much on prejudice regarding the evidence of the prior conviction for distribution of cocaine. Butler concludes that he was prejudiced by the joinder because the charges were confusing and could not be considered separately. He states that the jury inferred he had a criminal disposition by relying on the gun charge to validate the robbery charge, without considering mitigating evidence.

We do not find that Butler provided facts to support these conclusions. Factual, rather than conclusory, allegations are required when a defendant alleges prejudicial joinder of offenses as a ground for a motion to sever.

As a general rule, evidence of criminal conduct that takes place in a series of events is admissible at the trial of one of the offenses. Any time the State introduces evidence of other criminal activity by the accused, the possibility exists that the trier of fact will be affected to some degree by the evidence; for that reason, the State must be mindful of the circumstances in which it elects to try a charge of felon in possession of a firearm with other substantive offenses to insure that justice is served. Nevertheless, there is no absolute ban on the introduction of | gpevidence of other unrelated crimes, including felony convictions. Instead, statutory and jurisprudential guidelines establish the circumstances under which this evidence is admissible.

We do not agree that the jury’s knowledge of Butler’s prior conviction for distribution of cocaine would necessarily make the panel believe it more likely that Butler committed the anned robberies. The pri- or conviction was a drug charge, not an armed robbery. Further, the evidence presented at trial made clear that the gun Butler was found in possession of was different than the gun that was used in the armed robberies. At trial, one of the robbery victims, Ms. Lindsey, was shown the gun Butler had when he was arrested, and she testified that it was not the gun used to rob her. Lieutenant Harrison also testified he thought the gun Butler had at the time of the arrest was a different gun than the one used in the robbery. Further, the jury was able to observe the gun and also saw the CD and photographs from the robbery. They could have made their own conclusions about the difference in the guns.

The facts of each offense with which Butler was charged were simple and uncomplicated. The evidence for each crime was presented separately with each victim testifying regarding their robbery. As for the convicted felon in possession of a firearm charge, a stipulation was entered into by the parties as to the testimony of a fingerprint expert and documentation of the prior conviction was introduced as an exhibit. The story of how Butler was arrested for the armed robberies necessarily includes that he was attempting to leave the house while in possession of a gun when the officers went to his address to arrest him. The evidence presented at trial through testimony and photographs reflect that the gun used in the robberies was not the same gun Butler was found in possession of just prior to |21his arrest. We believe the jury would have been able to segregate the various charges and offenses, and there is no indication in the record that the charged offenses made the jury hostile to Butler.

The evidence of the armed robberies in this case was overwhelming. Both victims of the robberies testified regarding the incident and identified Butler as the robber. Surveillance, as well as photographs compiled from the surveillance, captured the incident. Butler’s family members identified Butler in a photograph taken from the surveillance, and Butler confirmed that identification. Further, Butler confessed.

We find Butler’s arguments regarding this assignment of error to be without merit.

Upon review of the record for errors patent, we have found there are discrepancies in the commitment and transcript regarding defendant’s sentences. The transcript prevails when there is a discrepancy between the commitment and the transcript. According to the transcript, the trial court sentenced defendant to forty-nine and one-half years of imprisonment at hard labor for each count of armed robbery without benefit of parole, probation, or suspension of sentence, to run concurrently with each other. For the possession of a firearm by a convicted felon conviction, defendant was sentenced to fifteen years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, to run concurrently with any other sentence he might be serving. The trial judge also ordered defendant to pay a fine of $1000.

The commitment, however, does not reflect that the fifteen-year sentence was ordered to be served at hard labor. Additionally, it does not reflect that the farmed robbery sentences were to be served without the benefit of parole, probation, or suspension of sentence. Further, the commitment reflects that defendant’s sentence was ordered to run concurrently with any sentence he was already serving and lists several case numbers. The transcript did not list any specific case numbers. Additionally, the commitment does not reflect that the trial judge imposed a $1000 fine as is reflected in the transcript.

The multiple bill commitment also lists specific case numbers with which defendant’s sentence would run concurrently, while the transcript only reflects his sentence was ordered to run concurrently with any other sentence he might be serving. It is also noted that the multiple bill commitment does not reflect that defendant was a second felony offender and only reflects defendant was sentenced under the multiple bill statute.

We hereby remand this matter for correction of the commitments to reflect the minutes accurately. We also remand for correction of the commitment to show that Butler was sentenced on the multiple bill as a second felony offender. We order the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entries to the officer in charge of the institution to which the defendant has been sentenced.

In conclusion, we affirm defendant’s convictions and sentences, and we remand the matter to the trial court with orders to correct the commitments as discussed herein and to make the necessary entries in the minutes to reflect these changes.

AFFIRMED AND REMANDED WITH ORDER.

      . State v. Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205, 1218, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).

      . State v. Strickland, 04-843 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 895, writ denied, 05-0820 (La.6/17/05), 904 So.2d 683.

      . Id.

        . State v. Anthony, 98-0406, p. 22 (La.4/11/00), 776 So.2d 376, 392.

      . La.C.Cr.P. art. 800(A).

      . State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, 113-14, cert. denied, - U.S. -, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

      . State v. Lindsey, 06-255, p. 2 (La.1/17/07), 948 So.2d 105, 107.

      . Id.

      . State v. Abney, 347 So.2d 498, 501 (La.1977).

      . Id.

      . State v. Bush, 02-0247 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 866-67, writ denied, 02-1887 (La.1/24/03), 836 So.2d 42; State v. Eugene, 03-1336 (La.App. 5 Cir. 3/30/04), 871 So.2d 584, 587-88, writ denied, 04-1080 (La.11/15/04), 888 So.2d 766; State v. Mickel, 07-47 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 523-24, writ denied, 07-1422 (La.1/7/08), 973 So.2d 732.

      . La.C.Cr.P. art. 718.

      . State v. Chaplain, 03-0338 (La.App. 5 Cir. 7/29/03), 852 So.2d 1088, 1089 (citing La. C.Cr.P. art. 729.3).

      . La.C.Cr.P. art. 729.5(A); Chaplain, 03-0338, 852 So.2d at 1089 (quotations omitted).

      . See, State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612, 617.

      . Id.

      . Id.

      . State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 485, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283.

      . See, State v. Chaplain, 03-0388 (La.App. 5 Cir. 7/29/03), 852 So.2d 1088, 1090.

      . State v. Long, 408 So.2d 1221, 1225 (La.1982).

      . La.C.Cr.P. art. 493.

      . La. R.S. 14:64 and La. R.S. 14:95.1.

      . See, La. Const. art. I, § 17; LSA-C.Cr.P. art. 782(A).

      . La.C.Cr.P. art. 495.1.

      . Id.

      . State v. Celestine, 452 So.2d 676, 680 (La.1984).

      . Id.

      . State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1232, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

      . State v. Williams, 05-317 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, 478, writ denied, 06-0638 (La.10/6/06), 938 So.2d 64.

      . State v. Prieur, 277 So.2d 126 (La.1973), and La. C.E. art. 404(B)(1); State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 45

      . Deruise, 98-0541, 802 So.2d at 1232.

      . State v. Noten, 01-1818 (La.6/25/01), 791 So.2d 607, 608-09 (per curiam) (quotation omitted).

      . Williams, 05-317, 918 So.2d at 478.

      . Deruise, 98-0541, 802 So.2d at 1232.

      . State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1019, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

      . See, La. C.E. art. 404(B). See also, State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908, 914, writ denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).

      . Morris, 99-3075, 770 So.2d at 914. See also, La. C.E. arts. 403; 404(B).

      . This Court routinely conducts a review of the record for errors patent in accordance with La.C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Defrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Frank CAVAZZO v. GRAY INS. CO., et al.
    No. CA 08-1407.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Jeffrey Martin Cole, Plauche, Smith & Nieset, Lake Charles, LA, for Defendants Appellants, The Gray Insurance Company, Dunham Price Group, LLC, Dunham Price, LLC, Dunham Price Marine, LLC, Material Handling, LLC.
    Rex Douglas Townsley, The Townsley Law Firm, Lake Charles, LA, for Plaintiff Appellee, Frank Cavazzo.
    J. Mac Morgan, Attorney at Law, New Orleans, LA, for Plaintiff Appellee, Frank Cavazzo.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

In this is a case, an employee filed a petition for damages against his employers, alleging he was a seaman under the Jones Act and § 905(b). The employers and their insurer responded by filing a motion for summary judgment seeking a judgment that the employee’s sole remedy was under the Longshoreman & Harbor Workers’ Compensation Act, thus, his claims against them under both the Jones Act and § 905(b) should be dismissed.

The employee then filed his own motion for summary judgment seeking a declaration that he was a Jones Act seaman. The trial court, recognizing that this case was not going to a jury, discovery was complete, and there was no dispute on what job duties the employee performed, determined that the employee was a Jones Act seaman. Accordingly, the employee’s partial motion for summary judgment was granted while the remaining summary-judgment requests were denied.

The trial court designated his judgment regarding the employee’s status as final and granted the employers and their insurer a devolutive appeal. They raised two assignments of error. We affirm the trial court’s judgment that the employee was a Jones Act seaman, and we dismiss all other issues raised as they are not properly before this court.

FACTS AND PROCEDURAL HISTORY:

PlaintifiyAppellee, Frank Cavazzo (Ca-vazzo) was injured when he attempted to disembark from an empty barge at the Calcasieu River Ship Channel marine facility on Lake Charles. The barge and facility were owned and operated by his employers, Dunham Price Group, LLC; Dunham Price, LLC; Material Handling, LLC; and Dunham Price Marine, LLC. The insurer for these entities is The Gray Insurance Company (the entities and insurer collectively “the appellants.”).

Cavazzo filed a petition asserting Jones Act and § 905(b) claims under the Savings to Suitors clause on August 10, 2006, in the Fourteenth Judicial District Court. This case will not be a jury trial. After Cavaz-zo amended his petition on January 30, 2007, the appellants filed a motion for summary judgment seeking a dismissal of Ca-vazzo’s claims on December 4, 2007. In response, Cavazzo filed a motion for partial summary judgment on February 22, 2008, seeking, among other things, a declaration that he was a Jones Act seaman.

The cross motions for summary judgment were heard on March 24, 2008. During the hearing, all the parties agreed that no facts as to what Cavazzo did on the job were in dispute, thus, as this was not to be a jury trial, the matter was ripe for summary judgment. Evidence of such is the following exchange that took place between the trial court and the lawyer for the appellants:

THE COURT:
Cross motions for summary judgment. ■ Is there really any material factual dispute about what the guy did, how it happened, anything of that sort?
MR COLE:
I don’t believe — well, what he did, I don’t believe there is any factual dispute. I think' — before the Court, you have everything that you would need to determine his status, his seaman status, even at the trial on the 21st. I don’t think you can hear any more evidence then what you have got before you today on that particular issue. There is some controversy over whether he was really injured the way he says and that kind of thing.
THE COURT:
I understand that. But insofar as the motions for summary judgment are concerned, as I appreciate it, we are really concerned about what his status is. Is he a seaman, or is he under the Longshoremen Harbor Workers’ Act?
MR COLE:
Right. There is two aspects to is, Your Honor; and you can rule by summary judgment on either or both of them. The plaintiff alleges that he is a Jones[ ] Act seaman; and then there is an alternative 905(B) claim. But I think that all of the evidence that you need to determine if he has got either of those claims is before the Court today.

After hearing the arguments and taking the matter under advisement, on August 1, 2008, the trial court granted the portion of Cavazzo’s motion for summary judgment declaring him a Jones Act seaman. Further, the trial court denied all other motions made by the parties for summary judgment. The trial court signed a judgment in accordance with La.Code Civ.P. art. 1915(B) designating the order granting Cavazzo’s motion for partial summary judgment a final judgment, and granting the appellants’ devolutive appeal that is now before this court. In that appeal, the appellants have raised the following two assignments of error:

ASSIGNMENTS OF ERROR:

1. The Trial Court erroneously granted partial summary judgment to [Ca-vazzo] holding that [he] is a Jones Act seaman and entitled to bring his claims for damages under the Jones Act, and erroneously concluding that [Cavazzo] is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers’ Compensation Act.
2. The Trial Court erroneously denied [the appellants’] Motion for Summary Judgment seeking dismissal of [Cavazzo’s] lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b).

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In their first assignment of error, the appellants assert that the trial court erroneously granted partial summary judgment to Cavazzo, holding that he is a Jones Act seaman and entitled to bring his claims for damages under the Jones Act, and erroneously concluded that Cavazzo is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers’ Compensation Act. In their second assignment of error, the appellants claim that the trial court erroneously denied their motion for summary judgment seeking dismissal of Cavazzo’s lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b). We find no merit in the appellants’ assertion that the trial court erred in finding that Cavazzo is a Jones Act seaman, and find that the remaining issues that the appellants raised are not before this court.

Appellant courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Stated differently, this court “asks the same questions as does the trial court in determining whether summax-y judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to a judgment as a matter of law.”

Lovejoy v. Bergeaux, 03-862, p. 3 (La.App. 3 Cir. 12/10/03), 862 So.2d 490, 492, writ denied, 04-13 (La.3/19/04), 869 So.2d 851, cert. denied, 543 U.S. 819, 125 S.Ct. 58, 160 L.Ed.2d 28 (2004) (citations omitted).

The United States Supreme Court, in Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995) (citations omitted), stated the following:

[W]e think that the essential requii’e-ments for seaman status are twofold. First ... “an employee’s duties must ‘contx-ibute to the function of the vessel or to the accomplishment of its mission.’ ” The Jones Act’s protections, like the other admii-alty protections for seamen, only extend to those maritime employees who do the ship’s woi’k. But this threshold l’equii'ement is vex-y broad: “All who woi’k at sea in the service of a ship” are eligible for seaman status.
Second, and most important for our pui’poses here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in tei-ms of both its duration and its nature.

In the case before us, the following is an excerpt of the deposition of Mr. David Godsey, a representative of one of the appellants, Dunham Price Group, LLC:

Q What is the function of one of those M deck barges as far as you know? If you had to tell me what’s the purpose, what’s it do, what’s its function—
A The load that we put on it.
Q Did the work that Mr. Cavazzo do when he was working on one of those barges, did it contribute or further that function, contribute to the accomplishment of the function?
A Yeah.
Q And the same thing on the boat. What is the purpose of the function of these two tugboats, the “Brandy Jo” and the “Mr. Cass”?
A When used to flip the barges around, was to exactly that, extract it from the slip, turn it around and put it back in the slip.
Q And when Mr. Cavazzo would be working on the boat, his work would contribute to the accomplishment of its function?
A Yeah, if he hooked the boat up to the barge and unhooked it, yes, sir.

This testimony from one of the appellants clearly establishes that the first requisite of the Chandris test is met. Cavaz-zo “contribute^ to the function of the vessel or to the accomplishment of its mission.” Chandris, Inc., 515 U.S. at 368, 115 S.Ct. 2172.

With regard to the second part of the Chandris test, we must determine whether Cavazzo was connected to a vessel or fleet of vessels that were in navigation. If so, we must then determine whether Cavazzo’s connection was substantial in both its duration and its nature.

It is clear to this court, and the appellants apparently concede, as they put forth no argument otherwise, that Cavazzo was connected to a fleet of vessels. The bare-boat chartered deck barges and the two tugboats, the Brandy Jo and the Mr. Cass, were under the control of Cavazzo’s employer, Material Handling. Therefore, they constituted an identifiable fleet of vessels that Cavazzo worked with daily.

The appellants did argue in brief that the fleet of vessels were not in navigation. They cite Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.1973) to support this argument. They contend that the barges Cavazzo loads and unloads are made simply to store cargo and, thus, not vessels in navigation under the jurisdiction of the Jones Act. We find this argument unconvincing.

In Cook, our United States Fifth Circuit Court of Appeals, citing The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903), stated that the “determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged.” Cook, 472 F.2d at 1001. However, the Cook court went on to state:

Conventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and commerce are vessels ivithin general maritime and Jones Act jurisdiction and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land.

Id. (emphasis added).

In this case, the fleet that Cavazzo was connected to consisted of barges and two tugboats. Barges are constructed to store and transport cargo. The two tugboats were used to help load and, on at least four occasions, transport that cargo. The business that the fleet of vessels were engaged in involves delivery of that cargo to a destination that is reached by the sea. As such, it is clear to this court that the fleet that Cavazzo contributed to the function of were vessels under the Jones Act.

Next, we must determine whether Cavazzo’s connection to the fleet was “substantial in terms of both its duration and its nature.” Chandns, Inc., 515 U.S. at 368, 115 S.Ct. 2172. Regarding the duration of the work and its connection to the fleet, Cavazzo testified that he spent seventy percent of his time at work loading barges, while the remaining thirty percent of his time he was doing maintenance. The following is the pertinent testimony of Cavazzo:

Q So 70 percent of the time you are loading barges, 30 percent of the time you are either unloading at the button house or you are doing some maintenance?
A Correct.
Q Now, in the 70 percent of the time that you are loading the barge, how much of that time do you spend on the barge as opposed to one the wharf or somewhere else on the facility? I mean, you talked about checking the load and pumping water out and hooking up onto the cables when you flipped the barge. All of those things happened when you are loading, right?
A Correct.

This testimony was not refuted by the appellants, and no records of the amount of time an employee spent on land as opposed to on a vessel were kept. As such, there is only one reasonable view of this evidence, that Cavazzo worked approximately seventy percent of the time on vessels under the jurisdiction of the Jones Act. We find that such an amount of time working is substantial. See Danos v. McDermott, Inc., 563 So.2d 968 (La.App. 1 Cir.1990).

Finally, after having established that Cavazzo’s connection to the fleet was substantial in its duration, we must decide whether Cavazzo’s connection to the fleet was substantial in its nature. We find that the nature of the connection was substantial.

Cavazzo’s work consisted primarily of loading barges, while secondarily he would unload barges or perform maintenance on either a barge or one of the tugboats. In loading the barges, he had to “flip” the barges around, i.e. turn the barge around once it was loaded to its middle. This was done so that he could load the other side of the barge. When flipping a barge, it was required that Cavazzo and the crew of workers would use of one of the two tugboats. In this process, Cavazzo would unhook the barge, ride in the tugboat to turn the barge around then handle the lines on the barge and handle the face wires on the tugboat while the barges were floating and being moved on the Calcasieu River Ship Channel. According to Cavazzo’s undisputed testimony, this would happen almost daily, some days more than once. On such days a “six-pack” of empty barges would arrive at the harbor, and the loading of all six would involve flipping each of the six. The flipping process took two hours per barge, and it usually took two to three days for a “six-pack” of barges to arrive empty and leave fully loaded. This testimony correlates with Cavazzo’s testimony that he loaded barges about seventy percent of the time.

Further, Cavazzo checked the engines on the tugboats to make sure they had the correct level and quality of oil and cleaned the tugboats. Finally, Cavazzo, on four different occasions, served as a tugboat deckhand on trips from Lake Charles to Beaumont to unload the barges the tugboats were transporting.

We find that all of these duties are clearly seaman’s duties. See Scheming v. Traylor Bros., Inc., 476 F.3d 781 (9th Cir.2007) and Delange v. Dutra Constr. Co. Inc., 183 F.3d 916 (9th Cir.1999). As such, we find that Cavazzo meets every aspect of the second prong of the Chandris test. He has “a connection to ... an identifiable group of such vesselsf ] that is substantial in terms of both its duration and its nature.” Chandris, Inc., 515 U.S. at 368, 115 S.Ct. 2172.

In their second part of this assignment of error, the appellants claim that the trial court erroneously concluded that Cavazzo is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers’ Compensation Act. Finally, in their second assignment of error, the appellants claim that the trial court erroneously denied their motion for summary judgment seeking dismissal of Cavazzo’s lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b). We find that none of these issues are properly before this court.

Louisiana Code of Civil Procedure Article 1915(B) (emphasis added) states:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Granger v. Guillory, 00-363 (La.App. 3 Cir. 4/26/00), 762 So.2d 640, this court dismissed an appeal taken pursuant to certification of a partial judgment denying a party’s motion for summary judgment. “While certification is allowed upon Article 1915 of partial judgments which grant a motion for summary judgment, this statute does not authorize the certification of a judgment denying a motion for summary judgment.” Id., at 641 (emphasis added).

All other issues raised by the appellants stem from the denial of their motion for summary judgment. As is clear by the language of Article 1915(B) and by established jurisprudence, these issues are not yet appealable and, thus, not properly before us. Accordingly, we dismiss these issues raised by the appellants.

CONCLUSION:

The appellants raised two assignments of error. We affirm the trial court’s grant of partial summary judgment in favor of Frank Cavazzo and dismiss the remainder of the issues raised by the appellants. We assess all costs of this appeal to the appellants: Dunham Price Group, LLC; Dun-ham Price, LLC; Material Handling, LLC; and Dunham Price Marine, LLC; and The Gray Insurance Company.

AFFIRMED.


author: AMY, Judge.

text:
    Linda G. BONSTELL v. BROOKSHIRE GROCERY COMPANY d/b/a Super One Foods.
    No. 09-154.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant, Brookshire Grocery Company d/b/a Super One Foods.
    Jonathan T. Gaspard, Marksville, LA, for Plaintiff/Appellee, Linda G. Bonstell.

      Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

liThe plaintiff, a patron of the defendant grocery store, alleges that she tripped on a rug that was placed on the ground to cover a crack on the floor. She sustained injuries to her ribs and left knee; accordingly, she brought suit against the defendant, seeking general and special damages. The trial court ruled in favor of the plaintiff, awarding her $25,000.00 in general damages and $7,828.52 in medical expenses. On appeal, the defendant questions the trial court’s finding that a defect in the premises existed and that it was the sole cause of the accident. Further, it contends that the general damage award was “abusively excessive.” For the reasons that follow, we reverse and render judgment.

Factual and Procedural Background

The plaintiff, Linda G. Bonstell, was a patron of Super One Foods , the defendant. According to the plaintiffs testimony, on April 1, 2006, she visited the grocery store to pick up one or two items. She stated that she was walking through the deli area and fell, sustaining injuries to her right ribs and left knee. She testified that she tripped on a rug but did not see the rug until after she had fallen. The testimony of the store manager, Parnell Priester, and the deli manager, Angela Dorsey, revealed that when Super One Foods purchased the store from Winn-Dixie, the floor was cracked in the deli area. Priester testified that while the renovation plans were being approved, duct tape was placed over the crack and a rug was placed on top of the tape. Dorsey stated that a linen company changed the rug once a week. She also stated that the rug needed to be fixed “maybe three times a week[,]” while |2Annette Nix, an employee of the defendant, stated in her deposition that the rug would need to be straightened about “once or twice a day.”

The plaintiff filed a negligence suit against the defendant. Subsequently, the plaintiff filed a motion for summary judgment on the issue of liability. The trial court denied the partial motion for summary judgment. A bench trial followed. The trial court ruled in favor of the plaintiff, finding that the crack in the floor constituted a defect in the premises and that the defendant was solely at fault. It awarded the plaintiff $25,000.00 in general damages and $7,828.52 for medical expenses. The defendant appeals, asserting that the “trial court erred in concluding that a defect in the premises existed and in concluding that such defect was the sole cause of the accident complained of herein” and that “[t]he trial court’s award of $25,000.00 in general damages was abusively excessive.”

Discussion

Burden, of Proof

The defendant questions the trial court’s determination that a defect in the premises caused the accident. In order to be successful in a merchant liability claim, the plaintiff must prove the elements of La. R.S. 9:2800.6. See Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84, wherein the supreme court held that La.R.S. 9:2800.6 governs claims brought against merchants.

| ¡¡Louisiana Revised Statutes 9:2800.6 provides:

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, pri- or 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.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
[4P. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

The supreme court instructed that the plaintiff must prove all of the elements listed above in order to succeed in her cause of action. White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081. Further, the supreme court held that “[t]he statute does not allow for the inference of constructive notice absent some showing of the temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall.” Id. at 1084. This determination of whether the temporal element is sufficient to establish that the merchant had constructive notice of the hazardous condition is a question of fact. Id.

This court stated in Barton v. Wal-Mart Stores, Inc., 97-801, pp. 4-5 (La.App. 3 Cir. 12/10/97), 704 So.2d 361, 364, that:

A trial court’s finding of liability for damages caused by a slip and fall accident at the defendant’s place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Myles v. Brookshires Grocery Co., 29,100 (La.App. 2 Cir. 1/22/97), 687 So.2d 668.

Application of the Elements

In its written reasons, the trial court stated:

The Court finds that the evidence (most specifically the very candid testimony of the store manager) shows by a preponderance of the evidence that the crack, which the Court finds to be a defect in the premises itself, caused the accident. This is true whether the crack created an uneven surface or the rug, which covered up the crack, caused the fall. Consequently, the Court finds the defendant to be solely at fault in the accident.

Our review of the record reveals a lack of evidentiary support for any of the elements listed in La.R.S. 9:2800.6. Accordingly, the trial court’s ruling was manifestly erroneous.

IfiThe first element contemplates whether a condition presented an unreasonable risk of harm. The record does not contain evidence that any condition imposing an unreasonable risk of harm existed. If the crack in the floor was the relevant “condition,” there was a lack of proof that it was displaced or that it, in any way, posed an unreasonable risk of harm. Mr. Priester, the store manager, testified that the duct tape, which was placed on top of the crack, “wasn’t uneven.” No other testimony or evidence indicated that the crack created an unreasonable risk of harm.

Insofar that the plaintiff may argue that the rug qualified as the “condition”, there was no evidence that it was wrinkled or folded as to create an unreasonable risk of harm. While the plaintiffs deposition and trial testimony revealed that she tripped on the rug, we note that she testified that she did not see the rug until after she fell. Further, she did not know if it was disturbed at all prior to her fall or, if it was wrinkled, how long it had been that way. Accordingly, there was no indication that the presence of the rug or the crack posed an unreasonable risk of harm.

The second element that must be analyzed is whether the merchant created the condition that caused the damage or whether the merchant had actual or constructive notice of said condition prior to the occurrence. The plaintiff only proved that there was a crack in the floor and that the merchant placed a rug on top of the crack. Again, there is no indication that its presence, alone, presented an unreasonable risk of harm. Consequently, the plaintiff did not prove that the merchant created a condition that caused harm. From the outset, also, we note that the record does not support a finding that the defendant had actual notice of the rug being a condition which would create harm, as no testimony or evidence was put forth establishing that |fithe defendant knew that the rug was buckled or wrinkled at the time of the plaintiffs fall.

Louisiana Revised Statutes 9:2800.6 states “ ‘[(Constructive notice’ means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” Concerning the defendant’s constructive notice of the rug, the temporal nature of this element was not satisfied insofar as the plaintiff stated that she did not know how the rug wrinkled or how long it had been that way before she fell. Further, the deli manager, Ms. Dorsey, testified that she had straightened the rug one to two minutes prior to the plaintiffs fall and then walked away to re-shelve a bottle of soda.

The second circuit considered a similar case in Hubbard v. APS Investments, LLC, 43,673, p. 3 (La.App. 2 Cir. 11/19/08), 997 So.2d 882, 884, wherein it stated that:

A plaintiff is not required to prove by eyewitness testimony that the hazardous condition existed for a certain number of minutes prior to the fall. Instead, the factfinder can reasonably infer from circumstantial evidence that it is more probable than not that the condition existed for such time prior to the accident that it should have been discovered and corrected. Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App. 2d Cir.12/30/02), 836 So.2d 465, writ denied, 2003-0560 (La.4/25/03), 842 So.2d 408.

However, the second circuit, noting that the plaintiff did not see the condition of the rug prior to the fall and was merely assuming that she tripped on an overturned portion of the rug, affirmed the granting of the defendant’s motion for summary judgment. It held:

[The plaintiff] has not presented any evidence that she can make a positive showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence. There is also no evidence that [the defendant] created or had actual knowledge of the damage-causing [ 7condition. [The plaintiff] has not produced factual support sufficient to establish that she will be able to satisfy her burden of proving that [the defendant] created or had actual or constructive knowledge of the damage-causing condition. Accordingly, the trial court did not err in granting the motion for summary judgment.

Id. at 886-87.

Similarly, the plaintiff in the case before us did not make a positive showing that the defendant had notice of the rug being out of place, insofar as she stated that after the fall she “was trying to find out what it was that [she] had tripped over.” She confirmed that she did not see the rug before she fell and did not know what “disturbed it,” but she, ultimately, concluded that the “rug would have to be wrinkled up for [her] to trip over it.” Further, we find of particular importance the fact that the deli manager straightened the rug just minutes before the plaintiffs accident.

Additionally, the notice element of the statute also requires a showing that the condition caused, the damage. Aside from the testimony that a rug was on the floor, there is no evidence that the rug actually caused the plaintiffs fall.

Thus, there is no evidence in the record to show that the defendant created a condition presenting an unreasonable risk of harm or that it had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

Finally, the last element addresses whether the merchant failed to exercise reasonable care. Again, testimony indicates that an employee observed and straightened the rug only minutes before the plaintiffs fall. As such, there is no showing that the defendant did not exercise a reasonable degree of care.

After reviewing the facts in light of the statutory standard, we find that the trial court committed manifest error in ruling that the defendant was liable. Accordingly, we reverse and render judgment.

| sWe note that the plaintiff argues that this case is governed by La.Civ. Code art. 2317.1. Notwithstanding the above analysis under La.R.S. 9:2800.6, and assuming for purposes of argument that La.Civ.Code art. 2317.1 is applicable, the claim fails for the same reasons. There was no evidence that a “defect” existed. A crack in the floor or a rug on the floor, alone, do not prove the existence of a defect. Nor was there proof as to causation or lack of reasonable care on the part of the defendant.

Excessive Damages

The defendant’s second assignment of error regarding an excessive damage claim is rendered moot in light of our reversal.

DECREE

For the foregoing reasons, the trial court’s judgment in favor of the plaintiff, Linda G. Bonstell, is reversed. Judgment is rendered in favor of the defendant. All costs of this proceeding are assessed against the plaintiff.

REVERSED AND RENDERED.

      . The record indicates that Super One Foods is owned, managed, maintained, and supervised by Brookshire Grocery Company. For purposes of this opinion, the defendant is referred to as Super One Foods.

      . We note that the plaintiff and the trial court reference a defect in the premises in accordance with the language of La.Civ.Code art. 2317.1. Louisiana Civil Code Article 2317.1 provides:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
      As discussed throughout this opinion, however, La.R.S. 9:2800.6 is the applicable law.