author: COOKS, Judge. PICKETT, J.,

text:
    Erin L. RICHARD, et al. v. APACHE CORPORATION, et al.
    No. 12-441.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.

      Lawrence N. Curtis, Lawrence N. Curtis, LTD. APLC, Lafayette, Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiff/Appellant Erin L. Richard, As Natural Tutrix of Her Minor Child Emma G. Richard.
    David K. Johnson, Baton Rouge, LA, for Defendant/Appellee Island Operating Company, Inc.
    Douglas C. Longman, Jr., Carmen M. Rodriguez, Jones, Walker, Waechter, Poi-tevent, Carrere and Denegre, Lafayette, LA, for Defendant/Appellee Apache Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and Judges SYLVIA R. COOKS, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION.
   COOKS, Judge.

hFACTS AND PROCEDURAL HISTORY

Frank Richard (Richard) was working on a fixed platform off the shore of Cameron Parish, Louisiana located within state territorial waters. The platform, identified as East Cameron 2 (EC-2), is owned by Apache Corporation (Apache) and is used for the production of crude oil, natural gas and natural gas liquids. Island Operating Company, Inc. (Island Operating), under a Master Service Contract, is responsible for providing personnel to operate EC-2. Richard was employed by Island Operating.

On January 13, 2010, the three-man crew on EC-2 felt the platform shaking and making rumbling noises. Upon exiting their living quarters they discovered the platform was engulfed in flames. The three employees, including Richard, had no choice but to jump into the cold winter waters of the Gulf of Mexico and swim away from the platform. The life raft on the platform was inaccessible to the three men. No boat was in attendance at the platform or nearby. The Marine Vessel International General (MW Int’l General) was time chartered by Apache “to standby in the field and transport persons, equipment and material to and from, among other places, Apache’s East Cameron 2 Platform.”

At the time of the fire on EC-2, the MW Int’l General was located at another platform identified as West Cameron 66 R. Personnel on another platform, West Cameron 71 D, called the captain of the MW Int’l General and advised him to proceed immediately to EC-2 as they believed there were personnel in the water in need of rescue. The vessel headed for EC-2. When he came within a three-mile range the captain of the MW Int’l General could see the fire on EC-2. Richard and his two companions were not rescued from the Gulf waters for over two hours more than two miles away from the platform. The MW Miss Dawnee (Miss [ gDawnee), a second smaller vessel, responded to the emergency call for rescue of the men in the water as did several other vessels. When Miss Dawnee arrived at the platform Captain Dowd, aboard the Miss Dawnee, allegedly observed the life raft tied to the platform with no one in the raft. He allegedly immediately began a search for the three men, whom he knew, and located them still together in the cold gulf waters miles away from the platform. He allegedly pulled Mr. Stone and Mr. Portie out of the water onto his boat. Plaintiff alleges Richard was the last one to be removed from the water still breathing and moaning. Captain Dowd and his crew tried to transfer Richard to the larger vessel, MW Int’l General, but Richard allegedly appeared to “let go.” He was again pulled from the cold waters. As he was pulled onto the M/V Int’l General, Richard allegedly had a faint pulse and was unconscious. The crew on the MW Int’l General allegedly removed Richard’s cold, wet clothing and began to administer CPR as he had stopped breathing. Erin L. Richard, confirmed natural tutrix of Richard’s minor child Emma G. Richard, alleged in her petition that Richard died aboard the MW Int’l General. The Miss Dawnee arrived onshore at the landside dock at 0321 hours with Stone and Portie on board. The MW Int’l General arrived thirty minutes later with Richard on board allegedly already deceased. He was taken to a local hospital and was pronounced dead.

Plaintiffs sued a number of Defendants including Apache as owner of the platform; Island Operating as Richard’s employer; and International Marine, LLC as owner of the MW Int’l General. Apache filed an exception of no cause of action and a motion for summary judgment. Island Operating filed an exception of no right of action/no cause of action. The trial court granted Apache’s motion for summary judgment and granted Island Operating’s exception of no right or cause of action dismissing all claims against both parties with prejudice. All claims |sagainst the other named defendants are pending and are not the subject of this appeal. The judgment was designated as a final appeal-able judgment under the provisions of La. Code Civ. P. art. 1914(A). Plaintiff Erin L. Richard appeals alleging several assignments of error asserting the trial court erred as a matter of law by (1) applying Louisiana Workers’ Compensation law as the exclusive remedy for Plaintiffs’ claims, (2) failing to apply maritime law to Plaintiffs wrongful death claim, and (3) failing to apply the choice of law contract provision in the Apache and Island Operating’s Master Service Agreement. Plaintiff also asserts the trial court erred in its factual determination by failing to find there was sufficient impact on maritime commerce so as to invoke maritime jurisdiction.

LAW AND ANALYSIS

The standard of review for both the motion for summary judgment and the exception of no right of action/no cause of action is de novo. See Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, (motion for summary judgment); and Everything on Wheels, Subaru Inc. v. Suban S., Inc., 616 So.2d 1234 (La.1993), (exception of no cause of action/no right of action). Louisiana Code of Civil Procedure Article 931 provides in pertinent part: “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” Further, La. Code Civ. P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

For purpose of the exceptions of no right of action and no cause of action the well-pleaded facts of Plaintiffs’ petition must be taken as true. Among the numerous facts alleged in Plaintiffs’ comprehensive petition are several which are ^particularly pertinent to our de novo review. Plaintiffs allege through no fault or negligence on the part of Richard, he was forced to jump from the burning offshore platform on which he was employed into the cold navigable waters of the Gulf of Mexico, within the state territorial limits of Louisiana. Plaintiffs further allege Richard suffered no injuries on the drilling platform, and the injuries which resulted in his death occurred solely in the navigable waters of the Gulf of Mexico. Richard’s injury, hypothermia, allegedly occurred over two miles away from the platform as a result of his prolonged exposure to the cold winter waters of the gulf awaiting rescue and/or as a result of negligence on the part of the captain and crew of the M/V Int’l General during the rescue operation. Plaintiffs allege Richard died as a result of Apache, Island Operating, and International Marine’s negligence related to the rescue operation as well as additional allegations of fault. Additionally, Plaintiffs allege:

That, the tragic, untimely, and unnecessary death of the late Frank A. Richard, was caused wholly and solely by reason of the legal fault, negligence, carelessness and omission of duty on the part of these Defendants [including Apache, Island Operating and International Marine] either acting alone, or in concert, without any legal fault, negligence, carelessness, or omission of duty on the part of the late Frank A. Richard, causing or in any way contributing thereto.

Plaintiffs also allege that the incident which gave rise to Richard’s injuries suffered in navigable waters “had the potential to disrupt and, in fact, did disrupt maritime commerce” and “shows a substantial relationship to traditional maritime activity.” Further, Plaintiffs allege Apache, Island Operating, and International Marine were at fault for Richard’s injuries in failing to provide a safe rescue from the gulf waters. Plaintiffs’ petition contains numerous other allegations of fault and negligence but they are not relevant to our disposition of this, appeal. The trial court granted the motion for summary judgment and the exceptions based solely on its finding that as a matter of law Louisiana Workers’ Compensation law provides |sthe exclusive remedy to Plaintiffs because this accident occurred in Louisiana state territorial waters on a fixed platform. We disagree. Under the facts of this case the trial court erred as a matter of law. Additionally, summary judgment was inappropriate as there remain many genuine issues of material fact in dispute.

In Quinn v. St. Charles Gaming Company, Inc., 01-794, pp. 2-3 (La.App. 3 Cir. 2/06/02), 815 So.2d 963, 966, writ denied 02-694 (La.4/12/02), 813 So.2d 412, we explained the tests employed to determine the applicability of admiralty jurisdiction:

In order to find that a tort is maritime in nature and within the admiralty jurisdiction, it must satisfy two tests. The first test, location, is satisfied if the tort occurred on navigable waters or if the injury suffered on land was caused by a vessel on navigable waters. Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); 46 U.S.C.App. § 740. The second test, whether the tort bears a significant connection to a traditional maritime activity, consists of two prongs:
A court, first must “assess the general features of the type of incident involved,” [Sisson v. Ruby ] 497 U.S., 358 at 363, 110 S.Ct. 2892, at 2896 [ (1990) ] to determine whether the incident has “a potentially disruptive impact on maritime commerce,” [Id.], at 364, n. 2, 110 S.Ct., [at] 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at [2879] [2897], 2896, and n. 2.
Id. at 534, 115 S.Ct. at 1048, quoting Sisson v. Ruby, 497 U.S. 358, 363-65, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990).

Determining whether maritime jurisdiction exists in any tort case seeking to recover under the laws of admiralty does not turn upon the “status” of the injured employee. This notion was expressly rejected by the United States Supreme Court in its holding in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986).

In Offshore Logistics, Inc. the defendants argued that because the decedents were “platform workers being transported from work to the mainland,” Id. at 218, 106 S.Ct. 2485, lfithe Outer Continental Shelf Lands Act (OCSLA) would govern their cause of action. (The decedents died in a helicopter crash miles away from the platform.) The defendants relied on the decisions in Rodrigue v. Aetna Casulty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) and Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981) asserting:

[T]he Court recognized the applicability of state law through OCSLA to accidents that resulted in deaths or injuries not on platforms, but on boats in the waters immediately adjacent to the platforms. This, they state, evidences the Court’s assumption that OCSLA applies to traditionally maritime locales on the high seas, beyond the confines of the platform, when the decedent is a platform worker. In support of their apparent assumption that it is the decedent’s status as a platform worker that controls, they note that it was the “special relationship between the men working on these artificial islands and the adjacent shore to which they commute to visit their families” that moved Congress to treat drilling platforms as upland federal enclaves rather than vessels. Rodrigue v. Aetna Casualty Co., 395 U.S., at 365, 89 S.Ct., at 1842.

Offshore Logistics, 477 U.S. at 218, 106 S.Ct. 2485.

In rejecting this “employee status” umbilical chord argument, the United States Supreme Court stated in clear language:

The character of the decedents as platform workers who have a special relationship with the shore community simply has no special relevance to the resolution of the question of the application of OCSLA to this case. Neither of the cases cited by respondents supports their position. Rodrigue and Gulf Offshore did not endorse the proposition that it is the decedent’s status or his special relationship with the shore that required the application of OCSLA, regardless of the location of the accident.... Moreover, the facts of these cases make clear that OCSLA was presumed applicable not because of the status of the decedents but because of the proximity of the workers’ accidents to the platforms and the fact that the fatalities were intimately connected with the decedents’ work on the platforms.
We do not interpret § 4 of OCSLA, 43 U.S.C. § 1333, to require or permit us to extend the coverage of the statute to the platform workers in this case who were killed miles away from the platform and on the high seas simply because they were platform workers.

Offshore Logistics, 477 U.S. at 219, 106 S.Ct. 2485 (emphasis added).

17Likewise in the case at bar, the decedent died miles away from the platform as the result of injuries sustained solely while in the cold gulf waters. He did not die as a result of any injuries sustained on the platform or in its immediate vicinity. The United States Supreme Court explained further in Offshore Logistics, Inc. that “[e]ven without” the statutory provisions of DOHSA providing admiralty jurisdiction in the matter, “admiralty jurisdiction is appropriately invoked here under traditional principles because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).” Id. The United States Supreme Court added, “Although the decedents were killed while riding in a helicopter and not a more traditional maritime conveyance, that helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an ‘island’ albeit an artificial one, to the shore.” Id. In the present case, the decedent died during the course of a maritime rescue operation. The petition alleges actions against a commercial marine vessel who took him on board during the rescue operation, a traditionally maritime activity, as well as actions against his employer, statutory employer, and various other defendants. In Jerome B. Grubart. Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (emphasis added), the United States Supreme Court expressly held that as long “as one of the putative tortfeasors was engaged in traditional maritime activity!,]” all tortfeasors fall under the admiralty jurisdiction. In Grubart, the Supreme Court rejected the city’s argument that there was no admiralty jurisdiction in the case because the proximate cause of the home owner flood victims’ injuries was the city’s failure to properly maintain the tunnel which collapsed when the Rdredging company was driving pilings near it. In response to that argument the United States Supreme Court held:

“[W]e made it clear that we need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor: as long as one of the putative tortfeasors was engaged in traditional maritime activity the allegedly wrongful activity will “involve” such traditional maritime activity and will meet the second nexus prong. Thus, even if we were to identify the “activity giving rise to the incident” as including the acts of the [C]ity [land-based] as well as Great Lakes [on navigable waters], admiralty jurisdiction would nevertheless attach. That result would be true to Sisson’s requirement of a “substantial relationship” between the “activity giving rise to the incident” and traditional maritime activity. Sisson did not require, as the [C]ity in effect asserts, that there be a complete identity between the two. The substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident.”

Grubart at 541, 115 S.Ct. 1043(emphasis added).

That is precisely what we have in this case. In the present case, an explosion and fire erupted on the fixed platform, considered a land-based location, and this occurrence caused the decedent to jump into the navigable gulf waters and go a very long distance, some two miles, away from the platform. Plaintiff clearly alleges that one cause of Richard’s death, which occurred in navigable waters, originated during a wholly maritime activity, a marine rescue operation, and allegedly included the negligence of the marine vessel attempting to rescue him in that maritime operation. Richard’s presence in the cold waters of the Gulf of Mexico was independent of his work on a fixed platform. His “status” as a platform worker, however, is not irrevocable for all times and for all reasons. Richard, though still a statutory employee of Apache, was not injured while “working” aboard the fixed platform. He died as á result of hypothermia suffered [^because he was forced to jump into the waters of the gulf to avoid being burned to death.

In Offshore Logistics, Inc. the defendants also asserted that the provisions of § 7 of DOHSA show a Congressional intent to ensure the application of state wrongful death statutes solely to deaths on the high seas. In rejecting that assertion, the United States Supreme Court explained that “§ 7 was intended only to serve as a jurisdictional saving clause, ensuring that state courts enjoyed the right to entertain causes of action and provide wrongful death remedies both for accidents arising on territorial waters and, under DOHSA, for accidents occurring more than one marine league from shore.” Offshore Logistics, Inc. at 221, 106 S.Ct. 2485(emphasis added).

The United States Supreme Court has long wrangled with determining when admiralty jurisdiction attaches and whether state laws and/or admiralty laws apply exclusively or concurrently. Resolving an age-old gap in the admiralty law, the United States Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) and the U.S. Fifth Circuit in Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274, (1979), held that an action in admiralty exists for wrongful death for torts occurring within state territorial waters. See also Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Relying on the U.S. Supreme Court’s holding in Moragne, the federal courts have expressly held that “the exclusive remedy provision of the Louisiana Worker’s Compensation Act,” Thibodaux, 580 F.2d at 847, does not preclude a plaintiff from pursuing a claim for wrongful death occasioned in state territorial waters. In Thibodaux the U.S. Fifth Circuit addressed the question of the exclusivity of the Louisiana Workers’ Compensation | inAct in a wrongful death action in admiralty for an incident which occurred in state territorial waters involving the death of a non-seaman. In Thibodaux, the decedent, an oil field construction and maintenance worker, drowned in a navigable canal in Louisiana as a result of a collision involving the vessel transporting him to work. His widow’s suit was dismissed on summary judgment based on the trial court’s finding that the Louisiana Workers’ Compensation Act provided the exclusive remedy. In a thorough treatment of the federal jurisprudence, the U.S. Fifth Circuit in Thibodaux reversed the lower court citing Moragne and its progeny:

Moragne dictates that “(t)here is now a cause of action for wrongful death in admiralty that is not dependent on adjacent state laws.” Hornsby v. Fish Meal Co., 431 F.2d 865, 867 (5th Cir.1970). Our holding is limited. We deal only with the exclusive remedy provision of the Louisiana Workmen’s Compensation Act as it may affect a remedy afforded by federal maritime law.
ARCO contends that if we permit the plaintiffs to proceed under general maritime tort law we will necessarily afford greater rights than would be afforded under state law merely because the deceased met his death upon navigable waters. We cannot agree. The plaintiffs are permitted to go forward with their lawsuit not merely because the deceased was killed upon navigable waters, but because the facts surrounding the occurrence display a sufficient relationship to traditional maritime activity, and because the Supreme Court in Moragne saw fit to provide a federal maritime remedy for wrongful death occurring upon state territorial waters regardless of the rights which might be afforded to the plaintiff under state law.

Thibodaux, 580 F.2d at 847.

A later U.S. Fifth Circuit case strengthened the holding in Thibodaux declaring whether a defendant in a maritime tort suit is the plaintiffs “statutory employer” or his “actual employer,” federal admiralty law overrides the exclusive remedy provision of the Louisiana Workers’ Compensation Act. See King v. Universal Elec. Constr., 799 F.2d 1073, 1074 (5th Cir.1986).

We note further, the U.S. Fifth Circuit Court of Appeal in Green v. Vermilion Corp., 144 F.3d 332 (5th Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 349, (1999), was faced with determining whether admiralty jurisdiction applied to the case, and whether Louisiana Workers’ Compensation Law provided the exclusive remedy to the injured employee. In Green, the plaintiff was employed by Vermilion Corporation as a land-based employee at its land-based fishing camp. Mr. Green was asked to help moor a vessel delivering goods to the camp and help unload the goods. He was injured while on board the docked vessel and alleged an unkept deck as the cause of his injury. The court found there was admiralty jurisdiction because the tort occurred on a maritime locality, the deck of a marine vessel on navigable water, and because the circumstances bore a significant relationship to a traditional maritime activity.

The, defendant asserted Green’s exclusive remedy, as a land-based employee, was workers’ compensation. The U.S. Fifth Circuit, relying on U.S. Supreme Court precedents as well as their own prior decisions, rejected defendant’s assertion. Relying on the U.S. Supreme Court’s decision in Moragne, and the U.S. Fifth Circuit’s decisions in Thibodaux and King, the court held “the exclusive remedy provision of the Louisiana Workers’ Compensation Act does not preclude Mr. Green from asserting his claim for unseaworthiness.” Green, 144 F.3d at 337. Likewise, the court held Mr. Green could also assert his general maritime negligence claim against Vermilion, his employer, “despite the exclusivity provision of the Louisiana Workers’ Compensation Act,” Id. at 338-39. The court reasoned as follows:

Though Thibodaux and King involved wrongful death claims, their holdings were based on the Supreme Court’s pronouncement that ‘“[wjhile states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretive decisions of this Court.’ ”

Id. at 337 (quoting Thibodaux).

1further refuting defendant’s argument in Green, the Fifth Circuit additionally held:

Though Green is entitled to seek relief under the Louisiana Workers’ Compensation Act, that option is not exclusive. See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 722, 100 S.Ct. 2432, 2437-38, 65 L.Ed.2d 458 (1980) (finding concurrent federal and state jurisdiction for maritime employees covered by both the LHWCA and a state workers’ compensation scheme.) The 1972 Amendments to the LHWCA, “which Congress enacted to abolish the [Seas Shipping Co. v.] Sieracki [328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) ] remedy, [do] not apply to maritime workers who are not within the coverage of the LHWCA.” Aparicio [v. Swan Lake], 643 F.2d [1109], 1116 [(5th Cir.1981) ]. Where the LHWCA does not apply, we refuse to expose maritime workers to the variegated state workers’ compensation schemes, especially where Congress has expressly found that “most State Workmen’s Compensation laws provide benefits which are inadequate.” H.R. Doc. 92-1441, 92th Cong., 2nd Sess.1972 U.S.C.C.A.N. 4698, 4707; see also Sun Ship, 447 U.S. at 723 n. 5, 100 S.Ct. at 2438 n. 5. Green may pursue his Sier-acki claim against Vermilion despite the availability of relief under the Louisiana Workers’ Compensation Act.

Id. at 337-38(emphasis added).

In Grubart, the United States Supreme Court set forth what a party seeking to invoke admiralty jurisdiction must satisfy. First, he must satisfy the location test, i.e. did the tort occur on navigable water? Second, he must satisfy a two pronged test of connectivity to maritime activity: 1) Did the incident have a potentially disruptive effect on maritime commerce; and, if so, 2) Did the character of the activity giving rise to Richard’s injuries have a substantial relationship to traditional maritime activity? See Grubart, 513 U.S. at 533-34, 115 S.Ct. 1043, and cases cited therein.

Richard’s injuries and subsequent death meet all of the tests employed to determine admiralty jurisdiction. His injuries and death allegedly occurred as a result of his exposure the cold navigable winter waters of the Gulf of Mexico. The petition also alleges that Richard’s death may have been, at least in part, due to something that occurred on the M/V Int’l during the rescue operation on navigable | ^waters and/or as a result of Apache and Island Operating’s negligence with regard to the rescue operation in the Gulf of Mexico. The location test is fully satisfied. Likewise, the tort “shows a substantial relationship to traditional maritime activity.” Grubart, 513 U.S. at 539, 115 S.Ct. 1043. Rescuing a person by marine vessels from the navigable waters of the Gulf of Mexico is a traditional maritime activity. See Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971), and cases cited therein. In assessing the general characteristics of a marine rescue operation it is easy to conclude that such operations always have “a potentially disruptive impact on maritime eommerce[.]” Quinn, 815 So.2d at 966 (quoting Grubart quoting Sisson.) This rescue operation of three men floating in the cold winter waters in the Gulf of Mexico involved at least two, and perhaps as many as seven commercial marine vessels, and the coast guard.

In Quinn, the plaintiff alleged that two casino gaming boats served alcohol to Ninh V. Do (Do) who, after leaving the ships in a very inebriated condition, was involved in a head-on collision with the vehicle in which Quinn was a passenger, killing Do and the driver of Quinn’s vehicle, and injuring Quinn. This court found the location test was satisfied as the alcohol was served to Do aboard two marine vessels, the casino boats. We also found that the activity in Quinn had the potential to disrupt maritime commerce. Inebriated passengers have the potential to “fall overboard causing a disruption to maritime commerce due to search and rescue operations.” Quinn, 815 So.2d at 967 (emphasis added). We also found the activity in Quinn was of a general character which bears a substantial relationship to traditional maritime activities, i.e. “[t]he duties owed by vessel owners to their passengers have long been found a traditional maritime concern.” Id. at 968, and cases cited therein.

As in Thibodaux, not only did Richard meet his death in navigable waters, |uhe allegedly died as a result of being too long in navigable waters while a marine search and rescue operation was underway to pluck him from the cold winter waters of the Gulf of Mexico. Rescue operations by marine vessels of persons adrift on the open waters unquestionably involve “traditional maritime activity.” Id. at 968. Defendants have done an artful job of trying to divert this court’s attention to the “status” of the defendant as a fixed-platform-worker. They have also focused this court’s attention on a number of cases dealing with accidents in close proximity to the fixed offshore platform which have no application to accidents occurring miles away from the platform. They have not cited a single case in which the worker has been injured in the water miles away from the platform either in the air, in a boat, or swimming. The reason for this failure is because the United States Supreme Court has said these events fall squarely within general maritime law/admiralty jurisdiction. There is no, and there never has been, a shore-to-the-platform state exclusivity remedy rule in this country and we will not create one.

The trial court clearly erred as a matter of law in holding Defendant was entitled to summary judgment and in granting the Defendants’ peremptory exception on the basis that Louisiana Workers’ Compensation law affords the exclusive remedy to Plaintiff. Defendants’ “fault, negligence, carelessness and omission of duty” in the rescue operation, a traditional maritime activity, affecting workers on the platform is the critical question here. Plaintiffs’ petition more than adequately states a cause of action and a right of action against the Defendants sounding in admiralty. Plaintiffs are entitled to proceed against these Defendants under the laws of admiralty. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

PICKETT, J., dissents and assigns written reasons.

GREMILLION, J., dissents for the reasons assigned by Judge PICKETT.

PICKETT, J.,

dissenting.

1 ]The undisputed facts before us show that Frank Richard was an employee of Island Operating Company, Inc., who had a contract to provide personnel to operate a fixed production platform in state territorial waters owned by Apache Corporation. Thus, Richard’s recovery from Island Operating and Apache is limited to workers’ compensation benefits for injuries sustained on the platform. See Herb’s Welding v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985) and Suire v. William G. Helis Company, LLC, 05-1042 (La.App.l1/29/2005), 915 So.2d 351. Richard’s widow filed suit in district court against Island Operating and Apache, alleging that because his injuries were sustained in the waters of the Gulf of Mexico, he is entitled to recover from his employer in maritime law. The majority finds that the trial court erred as a matter of law in dismissing Richard’s claims against Island Operating and Apache. I respectfully dissent.

The first prong of the test enunciated by the United States Supreme Court in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), relates to the location of the tort. The undisputed facts here demonstrate that the tort alleged against Island Operating and Apache occurred on the fixed platform, which is not considered maritime activity. As the first part of this test is not |2satisfíed, I find it unnecessary to reach the second prong of the Grubart inquiry. I would affirm the judgment of the trial court and dismiss the claims against Island Operating and Apache, as they are properly dealt with in workers’ compensation.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    James MOSS, et al. v. NATIONAL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 12-1084.
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2013.
    Vincent L. Bowers, Morris Bart, LLC, New Orleans, LA, for Plaintiffs/Appellants, James and Blanche Moss.

      David 0. Way, Kenny L. Oliver, Oliver & Way, L.L.C., Lafayette, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| ¡.FACTS AND PROCEDURAL HISTORY

On August 8, 2008, Glenn Carriere, in the course and scope of his employment with Louisiana Limo, Inc., was driving James Moss to his son’s wedding. Upon arrival at the church, Moss, who was blind, attempted to exit the vehicle. It was alleged by Plaintiffs (Moss and his wife) that Carriere did not provide any assistance or direction to Moss while he was exiting the vehicle. Moss fell and fractured his left ankle, which required surgery. Due to complications which ensued, Moss ultimately required amputation of his left foot.

Moss and his wife filed suit against Car-riere, Louisiana Limo, Inc., and National Fire and Marine Insurance Company (Louisiana Limo’s insurance carrier). The parties were able to reach a settlement. Plaintiffs also filed suit against Carriere’s personal automobile liability insurer, State Farm Mutual Automobile Insurance Company, alleging coverage under Carriere’s personal automobile policy. State Farm did provide a policy to Carriere with coverage for a 1998 Chevrolet 1500 pick-up truck.

State Farm filed a Motion for Summary Judgment asserting there was no coverage under its policy with Carriere because, at the time of the incident in question, Carri-ere was operating Louisiana Limo’s vehicle while in the course and scope of his employment. State Farm further maintained the damages to Plaintiffs arose out of the ownership, maintenance, or use of Louisiana Limo’s vehicle while it was being “used as a public livery or conveyance of persons” in the “business use” exclusion.

Plaintiffs opposed State Farm’s Motion for Summary Judgment, contending State Farm’s argument “amounted to a violation of the well-established prohibition against the ‘business use’ exclusion as against the well-settled public policy in the |sState of Louisiana” and that a genuine issue of material fact existed regarding State Farm having waived such defenses.

After a hearing on the motion on April 16, 2012, the trial court granted State Farm’s Motion for Summary Judgment. The trial court found no coverage for the accident existed under State Farm’s policy and that the exclusion did not breach public policy because the business owner was insured. Plaintiffs appealed, asserting the trial court erred in granting summary judgment because the exclusions relied upon by State Farm do not apply as these “business use exclusions are against well-established Louisiana public policy.” In the alternative, Plaintiffs argue genuine issues of material fact exist as to whether State Farm waived these business use defenses to avoid coverage.

ANALYSIS

We review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 98-2512 (La.7/5/94), 639 So.2d 730. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Civ.Code art. 966(B). Louisiana Code of Civil Procedure article 966(A)(2) also provides that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.”

It is undisputed that Carriere was engaged in the course and scope of his employment when the accident in question occurred. It is also undisputed that Carri-ere was insured by a State Farm policy of insurance, which provided coverage 14for a 1998 Chevrolet 1500 pick-up truck. The facts are clear Carriere was not driving this vehicle at the time of the accident.

The insuring agreement of the State Farm policy with Carriere provides:

(1)We will pay:
(a)damages an insured becomes legally liable to pay because of:
(1) bodily injury to others; and
(2) damage to property
caused by an accident that involves a vehicle for which that insured is provided liability coverage by this policy;

Thus, the policy requires an insured must be legally liable for injury or damage that was caused while operating an insured vehicle before coverage attaches.

The State Farm policy defines “insured” as follows:

(1) You and resident relatives for:
(a)the ownership, maintenance, or use of:
(1) your car;
(2) a newly acquired care; or
(3) a trailer; and
(b)the maintenance or use of:
(1) a nonowned car; or
(2) a temporary substitute car
‘Your car” is defined in the policy as the vehicle shown on the declarations page, in this case the 1998 Chevrolet 1500 pick-up truck. A “newly acquired car” is defined as a “car newly owned by you.” The facts establish Carriere was not the owner of the vehicle he was operating at the time of the accident.

Under (l)(b), the policy defines “nonowned car” and “temporary substitute car” as follows:

Nonowned car means a car that is in the lawful possession of you or any resident relative and that neither:
| fi(l) is owned by:
(a) you;
(b) any resident relative;
(c) any other person who resides primarily in your household; or
(d) an employer of any person described in a, b or c above;

Temporary substitute car means a car that is in the lawful possession of the person operating it and that:

(1) replaces your car for a short time while your car is out of use due to its:
(a) breakdown;
(b) repair;
(c) servicing;
(d) damage; or
(e) theft; and
(2) neither you nor the registered person operating it own or have registered.

The limousine driven by Carriere does not qualify under the State Farm policy as a “nonowned car” because it was owned by Louisiana Limo, Inc., Carriere’s employer. Further, the limousine was not a “newly acquired” or “temporary substitute car” while in use by Carriere.

Plaintiffs do not assert that the limousine owned by Carriere’s employer qualifies as a covered vehicle under the State Farm policy; rather, they argue Louisiana’s compulsory insurance law requires the invalidation of the business use exclusion in Carriere’s personal automobile policy. In support of this contention, Plaintiffs cite the Louisiana Supreme Court cases of Sensebe v. Canal Indem. Co., 10-703 (La.1/28/11), 58 So.3d 441 and Marcus v. Hanover Ins. Co., 98-2040 (La.6/4/99), 740 So.2d 60S. In those eases, the supreme court held when an insured is driving his own personal vehicle while in the course and scope of his employment, there is mandated coverage as required by the Louisiana Legislature. The court in Marcus, 740 So.2d at 606, stated as follows:

|fiIn this case, we likewise conclude the business use exclusion that excludes from coverage the named insured while operating his insured car in “any business other than an auto business,” contravenes the purpose of the Louisiana Motor Vehicle Safety Responsibility Law and La. R.S. 22:655(D), which is to provide compensation for persons injured by the operation of an insured vehicle. If the exclusion were upheld, a named insured driving his personal, insured vehicle in his own or someone else’s business would be denied coverage. This result would undermine the intent and purpose of the statutory scheme enacted to ensure that all Louisiana motorists have available to them automobile liability insurance coverage. The statutory scheme is intended to attach financial protection to the vehicle regardless of the purpose for which the vehicle is being operated.

(Emphasis added).

In this case, Carriere was not operating his own vehicle while in the course and scope of his employment, but was operating his employer’s vehicle, which was a covered vehicle in a different liability policy. The trial court specifically noted the business owner was insured in this ease, and the policy in place “provid[ed] for the public policy that was required.” State Farm also cites us to the following passage in the Civil law Treatise of Insurance, Section 81, which discusses the Hanover case in a similar context as here:

In Marcus v. Hanover Insurance Company, the Supreme Court held that a business use exclusion was not enforceable to the extent that its exclusion for coverage for a covered auto conflicted ■with the public policy underlying the compulsory insurance law. Since the compulsory insurance law does not require that insurance policies extend coverage for its insureds use of nonowned autos, the business use exclusion remains fully effective for such autos.

(Emphasis added).

This Court addressed a factually similar situation in Dees v. National Sec. Fire and Cas. Ins. Co., 97-962 (La.App. 3 Cir. 2/11/98), 707 So.2d 137. In that case a vehicle was purchased from a dealership. It was returned to the dealership because of mechanical problems. The car was tendered by the dealership to Sonny Thibo-deaux, an independent mechanic, for repairs. Norman Langley, a “shadejtree”7 mechanic, repaired the vehicle at Thibo-deaux’s home. Later that day, Langley drove that vehicle to pick up Thibodeaux’s wife and her friend. While returning to the Thibodeaux home, Langley rear-ended a vehicle. The injured parties filed suit against Langley and the insurer of his personal automobile. The insurer filed a motion for summary judgment, based on an exclusion that it did not insure any vehicle while it is being used “in the course of your employment or occupation.” As in this case, the plaintiffs in Dees contended this business use exclusion violated public policy and should not be given effect. The trial court granted the insurer’s motion for summary judgment.

Affirming the grant of summary judgment, this Court noted the compulsory liability insurance law required only that insurance policies provide liability coverage to the named insured and any other person driving a covered vehicle with the permission of the named insured. We stated “neither of these provisions requires that a liability policy provide coverage to the named insured for all risks while driving a nonowned vehicle.” Id. at 140.

The State Farm policy specifically excluded “non-owned” vehicles owned by an employer. We note the trial court emphasized the fact that Louisiana Limo had in force a policy of active liability insurance on this vehicle was vital in his determination to grant summary judgment in this matter. He categorically stated the policy of insurance Louisiana Limo had on its vehicle “provided] for the public policy that was required” by Louisiana’s compulsory insurance law. The trial court did not err in granting State Farm’s motion for summary judgment in the circumstances presented in this case.

Plaintiffs also argued genuine issues of material fact exist as to whether State Farm waived these business use defenses to avoid coverage. Apparently, Plaintiffs are arguing that counsel for State Farm represented the insured, Carriere, and then, prior to filing the motion for summary judgment on behalf of State Farm, | ¡Jailed to obtain a nonwaiver agreement “in order to preserve its coverage defense.” Plaintiffs maintain a conflict of interest was created by representing both Carriere and State Farm. Despite this contention, we note Plaintiffs brief does not cite any specific instance evidencing that counsel for State Farm represented Carri-ere. Counsel for State Farm vehemently denies any representation of Carriere.

A review of the record fails to indicate any representation of Carriere by counsel for State Farm. On October 5, 2010 an Answer was filed on Carriere’s behalf by Attorney Graham Smith, who also represented National Fire and Marine Insurance Company, the insurer of Louisiana Limo. A Judgment of Partial Dismissal was obtained by Mr. Smith after the settlement, but that dismissal did not include Carriere. There is no indication in the record that Mr. Smith is no longer Carri-ere’s attorney of record. Plaintiffs’ contention that counsel for State Farm at any point represented carrier is simply not supported by the record.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

      . Plaintiffs also brought suit against State Farm alleging liability through Carriere's homeowner’s policy. That matter is presently pending before the district court on a motion for summary judgment filed by State Farm.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Brent AUTHORLEE.
    No. 12-1179.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      J. Phillip Haney, District Attorney, New Iberia, LA, Angela B. Odinet, Assistant District Attorney, Martinville, LA, for Plaintiff/Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Brent Authorlee.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

1! Defendant, Brent Authorlee, was charged by bill of indictment with second degree murder in violation of La.R.S. 14:30.1. Defendant entered a plea of not guilty, and he was convicted by a unanimous jury verdict.

Defendant was sentenced to the mandatory term of life in prison, at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant appeals and asserts a single assignment of error, that the totality of the evidence presented at trial, which was entirely circumstantial, was insufficient to support the jury’s verdict of second degree murder. Defendant requests that this court reverse the jury’s verdict and vacate the conviction against him because the State failed to establish the requisite proof that Defendant committed the crime beyond a reasonable doubt. We cannot honor that request. We affirm Defendant’s conviction.

I.

ISSUE

We will consider whether the State presented sufficient evidence at trial to support Defendant’s conviction.

II.

FACTS AND PROCEDURAL HISTORY

The victim, Michelle Kenney, was a waitress at the Little River Inn in New Iberia, Louisiana. Defendant was employed as kitchen staff. At trial, the owner and manager of the Little River Inn testified that Defendant and the victim first initiated a work relationship that culminated into a more personal relationship 12around October 2007. The owner testified that she observed Defendant and the victim act affectionately toward one another until a work Christmas party on December 16, 2007, when the relationship began to involve hostile arguments. The owner observed an argument between the two, wherein Defendant made references regarding the victim’s new boyfriend, Craig Hebert, and her relationship with Hebert. The owner testified that the hostility between the victim and Defendant increased progressively to the point that she was uncomfortable working around the two.

On February 14, 2008, Defendant was released from employment at the Little River Inn, and his final paycheck was withheld until he agreed to return a gold-colored comforter to the victim. According to the owner, Defendant returned the comforter to the victim on February 22, 2008.

The victim’s boyfriend, Hebert, reported last seeing the victim a week before her death on February 17, 2008. On February 24, 2008, Defendant and the victim were identified on a surveillance video at a convenience store.

Sometime between the late evening hours of February 24, 2008, and the early morning hours of February 25, 2008, the victim was killed in her residence, which also served as the business where she worked, Patout-Greenwood Insurance Company.

The victim’s body was found after a neighbor, Julius Segura, called 9-1-1 to report a potential break-in at the victim’s business-residence. Police Officer Kenneth Franques responded to the call. Upon arrival at the business-residence, he found that a rear window to the building was broken. He also found the front door unlocked and the victim’s bedroom in disarray.

LThe victim’s body was found under a gold-colored blanket. A serrated knife was found in the victim’s possession, and several injuries were noted. A forensic pathologist, Joel Carney, testified that the cause of the victim’s death was an incised wound to the neck, with the manner of death being homicide. Specifically, the victim’s throat had been cut from ear-to-ear with an incision that was deep enough to sever her throat and jugular vein and ultimately leave a tool mark on her back vertebra. The wound was immediately fatal.

Blood evidence was found in the victim’s bedroom, including some on her body, the gold-colored comforter, and a storage container next to her body. Fingernail clippings and hair samples were collected from the victim and the surrounding area. Authorities also collected a cigarette butt found on a coffee table in the living room of the residence.

DNA Evidence

The serrated knife found in the victim’s possession was tested for DNA evidence. An expert DNA analyst testified that a Y-chromosome profile, consistent with Defendant’s DNA, was found on the handle of the knife. The examiner stated, however, that the DNA was not a specific match to Defendant’s DNA but that Defendant could not be excluded as a source of the DNA. The examiner testified that the particular Y-chromosome profile found excluded 99.92 percent of the general male population, leaving only 1 in 1,300 males that could have left the profile. The 1 in 1,800 males represented males that would be related to Defendant in a direct familial line.

Fingernail clippings from the victim were also tested for DNA. Defendant could not be excluded as a source of DNA found under the fingernails |4of the victim. The statistics cited by the expert DNA analyst showed that, based on the particular type of DNA, 99.92 percent of the male population could be excluded and that the DNA was found in 1 in 1,300 males. Again, the 1 in 1,300 males would be those related to Defendant in a direct familial line. The expert testified to a reasonable degree of scientific certainty that Defendant was the source of the DNA found under the fingernails of both of the victim’s hands.

Defendant’s DNA, along with the victim’s DNA, was found on a knife located in a block of knives in the kitchen of the residence. The cigarette butt located on the coffee table in the victim’s residence also contained DNA from the Defendant and a third-party, Ms. Lillian Lucille Green-Verret.

The Victim’s Vehicle

Green-Verret testified that Defendant picked her up in the victim’s white Lincoln Town car on February 24, 2008, the night of the murder. Defendant drove her to the victim’s residence sometime before midnight. Defendant exited the vehicle upon arrival and entered the victim’s residence through a back entrance, while Green-Verret waited in the vehicle. Defendant later gestured for Green-Verret to come inside.

Green-Verret entered the residence and sat on a couch in the living room, while Defendant proceeded to a back bedroom and closed the door. Green-Verret stated that she did not hear any voices from the back bedroom but did hear sounds of furniture being moved around. She also did not hear any glass break while at the victim’s residence.

Green-Verret testified that she sat on the couch and waited for Defendant for approximately twenty to twenty-five minutes. During this period, |5she asked Defendant for a cigarette, and he handed her, one through a crack in the bedroom door. He had been smoking the cigarette. Because the bedroom door was cracked, Green-Verret could only slightly see into the bedroom, but she did notice it appeared “messed up” or in disarray. Green-Verret then sat on the couch and smoked the cigarette. She left the cigarette butt on the coffee table in the victim’s living room.

Defendant and Green-Verret then returned to the victim’s vehicle and drove to his apartment complex. Defendant exited the vehicle and entered his apartment, while Green-Verret waited in the vehicle. After waiting approximately twenty-five to thirty minutes, Green-Verret exited the vehicle and knocked on the apartment door. She testified that Defendant opened the door and acted as if he did not know who she was. Defendant asked Green-Verret, “Who are you?” At that point, Green-Verret became suspicious that Defendant had stolen the vehicle. She became upset and told Defendant she was going to drive it to the police station.

Green-Verret departed in the victim’s vehicle. Defendant then called 9-1-1 and reported that someone had stolen his girlfriend’s car and was driving around in it.

Instead of driving the vehicle to the police station, Green-Verret drove the car around New Iberia, Louisiana for approximately two hours. She attempted to lease the vehicle to a drug-dealer, and she ultimately abandoned the vehicle in New Iberia in an empty lot.

Other individuals also testified seeing Defendant and the victim’s car on the night of the murder. Jefferson Brooks, who lived in Defendant’s apartment complex, was standing outside the apartment complex around midnight on ^February 24, 2008. He witnessed a white Lincoln Town car drive into the parking lot and saw Defendant exit the vehicle and enter his apartment.

Ted Darby, who lived near the empty lot where Green-Verret left the car, testified that he heard a male and female arguing outside his residence around 2:00 a.m. on the night of the murder. The following morning, he saw a white Lincoln Town car parked behind his residence that was not there when he arrived home the night before.

Photo Identification

After police identified and located Green-Verret, she led them to the location of the victim’s vehicle. On July 21, 2010, more than two years following the victim’s death, Green-Verret was shown a lineup of six different people. The officer asked whether she could identify the individual she was riding with in the car on the night of the murder. Green-Verret wavered between two individuals but ultimately settled on Defendant.

The officer who conducted the photo identification testified that it took Green-Verret approximately three to four minutes to identify Defendant. Given that the events occurred over two years prior, the officer stated that this amount of time was not unusual. The officer confirmed that, prior to showing Green-Verret the photo lineup, he informed her that he was going to “show her the gentleman that she said she was riding in the car with that night.” Following Green-Verret’s identification of Defendant, the officer transferred his photo from the lineup to a folder without specifically showing it to Green-Verret.

At the conclusion of the trial, the jury unanimously found Defendant guilty of second degree murder. He received a mandatory sentence of life in |7prison, at hard labor, without benefit of probation, parole, or suspension of sentence.

III.

LAW AND DISCUSSION

Defendant asserts that the evidence presented at trial, which consisted solely of circumstantial evidence, was insufficient to support the jury’s verdict convicting him of second degree murder, in violation of La. R.S. 14:30.1. Specifically, he argues that the jury’s verdict fails to meet the standard of sufficiency of the evidence because the circumstantial evidence presented did not exclude every reasonable hypothesis of innocence.

Standard of Review

The standard of review for sufficiency of the evidence to uphold a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the prosecution proved all of the requisite elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is an objective standard for testing all of the evidence, both direct and circumstantial, for reasonable doubt. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50. The trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988).

Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Mussall, 523 So.2d 1305. Rather, the reviewing court is required to consider the whole record and determine 1 ^whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Sylvia, 01-1406 (La.4/9/03), 845 So.2d 358.

In this case, the jury found Defendant guilty of second degree murder. Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. La.R.S. 14:30.1; State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434. Specific intent exists when the offender’s state of mind is such that he actively desires the specific consequences of the crime to follow the act. State v. Corley, 97-235 (La.App. 3 Cir. 10/8/97), 703 So.2d 653, unit denied, 97-2845 (La.3/13/98), 712 So.2d 875.

Discussion

Defendant’s claim that the evidence was insufficient to support conviction of second degree murder rests on two arguments. First, Defendant asserts that the State, which bore the burden of positively identifying Defendant as the perpetrator, failed to negate any reasonable probability that Defendant was misidentified. Specifically, Defendant argues that Green-Verret’s identification of him was tainted by the unduly suggestive nature of the identification procedure and was reflected through Green-Verret’s uncertainty throughout the process. Second, Defendant alleges that the evidence presented by the State, specifically the crime scene DNA evidence, did not negate a reasonable hypothesis of innocence that he was not the perpetrator and created a reasonable inference that someone other than him killed the victim. We find no merit in either of Defendant’s arguments.

Photo Identification

Defendant’s first argument involves the photo lineup identification procedure and the testimony of Green-Verret. Defendant asserts that the | ¡Identification procedure was unduly suggestive and tainted the accuracy of the identification because: (1) Green-Verret was informed by the interviewing officer prior to being shown the lineup’ that “he wanted to show her a picture of the gentleman she was riding around with [on the night of the murder.];” (2) the identification occurred more than two years following the crime; (3) Green-Verret wavered between two photographs, pointing first to the alternate photograph twice before identifying Defendant; (4) Green-Verret was not stopped from further consideration following identifying the alternate photograph as the perpetrator, and this indicated to her that she was not finished, as opposed to the “good” she was met with after subsequently identifying the Defendant; and (5) the suggestiveness of the identification procedure “was magnified when the officer ‘transferred’ [Defendant’s] booking photo from one folder to another in her presence after her selection was made.”

In support of his argument, Defendant relies on several legal principles pertaining to suggestive procedures that result in potential misidentification when a defendant seeks to suppress the use of the identification evidence. Specifically, Defendant quotes the language by this court in State v. Citizen, an unpublished opinion bearing docket number 12-58, p. 5 (La.App. 3 Cir. 10/3/12), which explained:

An identification procedure is suggestive if it unduly focuses a witness’s attention on the suspect. State v. Neslo, 433 So.2d 73, 78 (La.1983); State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Smith, 430 So.2d 31, 43 (La.1983); State v. Guillot, 353 So.2d 1005, 1008 (La.1977). The question for a reviewing court is to determine whether the procedure is so conducive to 11flir reparable misidentification that due process was denied. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); State v. Martin, 595 So.2d 592, 595 (La.1992); State v. Prudholm, 446 So.2d 729, 738 (La.1984). A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738; State v. Chaney, 423 So.2d 1092, 1098 (La.1982).
State v. Bright, 98-398, pp. 17-18 (La.4/11/00), 776 So.2d 1134, 1145, post-conviction relief granted, 02-2793, 03-2796 (La.5/25/04), 875 So.2d 37.

Defendant did not object to the admission of the photo lineup identification evidence at trial and does not presently assert that the evidence of the photo lineup identification should not have been admitted. State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553 (the issue of the admissibility of an identification procedure is not preserved where a defendant fails to file a written motion to suppress or object at trial). Defendant instead alleges that the suggestive nature of the identification procedure affected the sufficiency of evidence presented at trial. Because Defendant has failed to preserve the issue of admissibility of the identification procedure and is, instead, arguing the weight of the evidence, an issue which is in the purview of the factfinder, a determination of whether the identification is suggestible is unnecessary.

It is well-settled that it is the role of the fact-finder to weigh the credibility of a witness. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of a witness. State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280. Therefore, an appellate | ncourt will not reweigh the credibility of a witness on appeal and should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluation under the Jackson standard of review. Id. See also, State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724.

The jury was presented with the facts and circumstances surrounding Green-Verret’s identification concerning Defendant. The jury heard testimony of the alleged suggestive nature of the remarks by the officer telling the witness that “[the Defendant] was in the lineup she would be shown” and that the officer commented that he wanted “to show her a picture of the gentleman she was riding around with.”

The jury also heard Green-Verret’s testimony that she had difficulty distinguishing Defendant from two different photographs and wavered in making her decision. She also testified as to her statement expressing doubt when she inquired whether she had chosen the right photograph.

Thus, notwithstanding any suggestive nature of the photo lineup procedure alleged by Defendant, the jury was afforded all of the relevant facts surrounding the circumstances of the lineup procedure. The jury was given the requisite information to properly form an opinion regarding the reliability of the identification procedure and the credibility of the testifying witnesses.

We will not disturb the jury’s finding on appeal.

Sufficiency of the Evidence

Defendant’s second argument questions the sufficiency of the evidence presented at trial to convict him of second degree murder. Specifically, Defendant focuses on the DNA evidence found at the crime scene and argues that |12it does not foreclose the possibility that the crime was committed by another person. Defendant contends that a reasonable inference exists that “someone else entered through the unlocked front door and killed [the victim].”

Defendant argues that the DNA evidence found at the scene of the crime only proved that he could not be excluded as a source, which could have been attributed to any patrilineal related males and an unknown number of unrelated males. Defendant also contends that the reason the DNA was found on the knife in the victim’s possession and the knives in her kitchen was because he was a frequent visitor at the victim’s residence.

Defendant asserts that Green-Verret’s testimony merely placed him at the crime scene and did not prove he actually killed the victim. Defendant also notes that a time of death was not established. Finally, Defendant argues that the crime scene was compromised because investigators failed to secure a footprint ridge and broken window glass. He argues that the compromised crime scene created a reasonable inference that someone else entered the residence and killed the victim.

The trial in the instant case lasted five days. Over the course of the trial, the jury heard testimony from twenty-two separate witnesses. Defendant’s argument alleges that potential evidentiary discrepancies in isolation rendered the totality of the evidence presented to the jury insufficient. Defendant’s argument fails to consider the vast amount of evidence, outside of the alleged discrepancies, that the jury considered to arrive at the verdict of second degree murder.

Upon reviewing the sufficiency of the evidence, we find that a rational trier of fact, after viewing the evidence in the light most favorable to the | isprosecution, could have found beyond a reasonable doubt that Defendant was guilty of second degree murder.

DECREE

We affirm Defendant’s conviction for second degree murder.

AFFIRMED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Ernest Joseph ARCENEAUX.
    No. 12-1047.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Allan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Ernest Joseph Areeneaux.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Ernest Joseph Arceneaux, was convicted of the aggravated burglary of Rachel Nederveld’s apartment and the simple burglary of a car she was using. Defendant was charged with simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2; aggravated burglary, a violation of La.R.S. 14:60; and simple burglary of an automobile, a violation of La. R.S. 14:62.

The State moved to sever the charge of simple burglary of an inhabited dwelling and proceeded to trial on the remaining charges of aggravated burglary and simple burglary of an automobile. Defendant was subsequently found guilty on both counts. He was sentenced to thirty years at hard labor for aggravated burglary and to five years at hard labor for simple burglary of an automobile. The trial court ordered the sentences to be served consecutively.

Defendant is before this court asserting two assignments of error. He contends that the trial court erred in finding him guilty of simple burglary of an automobile, and that the trial court erred in imposing excessive and consecutive sentences.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends that the trial court erred in finding him guilty of simple burglary of an automobile.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 12(La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).

State v. McKithem, 11-1402, pp. 6-7 (La. App. 3 Cir. 5/2/12), 93 So.3d 684, 691.

The Defendant was convicted of simple burglary of an automobile.

In order to obtain a conviction for simple burglary, the elements of the crime must be proven beyond a reasonable doubt. The elements of the crime at issue, simple burglary, are contained in La.R.S. 14:62:
Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein....
Like most felonies, burglary consists of an act element and an intent element. La.R.S. 14:7, 14:8. The act element, or actus reus, is the unauthorized entry of a dwelling or vehicle. The intent element, or mens rea, is the specific intent to commit a theft (or other felony) in the dwelling or vehicle. State v. Maxie, 614 So.2d 1318 (La.App. 3 Cir.1993). Theft is defined by La.R.S. 14:67(A) as follows:
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371-72.

1 sNederveld testified that on December 3, 2010, she returned to her apartment around midnight and saw a man standing in her bedroom. The man grabbed Neder-veld and started hitting her in the head and the back. Nederveld screamed and kicked, and the man ran away. Nederveld testified that the man she saw was Defendant.

The same night, Nederveld saw that the window of her mother’s car, which she had been using, was broken. Nederveld indicated that the window had duct tape on it, and she did not know how the tape got there. Nederveld testified that nothing was missing from the ear. However, she did not inspect the inside of the ear to determine if anything had been tampered with. Nederveld also testified that she did not give Defendant permission to enter the car.

Detective Larry Theriot determined that Defendant worked at the apartment complex where Nederveld lived. A few days after the incidents, Detective Theriot spoke with Defendant. During the interview, Defendant admitted that he entered Nederveld’s apartment and was looking for cash, jewelry, and other items. Defendant was then questioned about Nederveld’s car as follows:

Q Um, and then also that night, the young girl’s car was broken into. Did you do that? Did you break into her car that night?
A Yes, yes.
Q That was parked in the front.
A I’m the one that bust [sic] the window. Yes.
Q Okay. Which window did you bust?
A The back and the right.
Q Okay. The back passenger side?
14A Yeah.
Q All the way in the back. Did you get anything out of the car?
A No, sir.
Q Okay. Why didn’t you get anything out the car?
A It was nothing in it.
Q Nothing in it?
A No.

Defendant was subsequently asked why he chose Nederveld’s apartment, and he responded:

I don’t know, man. Uh, I don’t know. I just — I just happened to see her, you know what I’m saying? Uh, you know, going by her car and gotten [sic] cash, you know what I’m saying? So I figure, you know what I’m saying? So I figure, you know what I’m saying?
Easy score. Uh, uh, uh, money, you know what I’m saying?

Defendant further stated: “Yeah, you know what I’m saying. I say, well, I — I say, well, that [sic] all intention on my mind right now. I say [sic], this is where I might have to fed cash that is here.”

Detective Theriot testified that during the interview, Defendant stated that he placed duct tape on the car window and used a brick to hit it. As a result of his striking the window, the car’s alarm went off. Defendant then ran into the bushes. Because of the alarm, people went outside to look around, and, when they returned to their apartments, Defendant got inside the car and hid. The car’s alarm went off again, so he ran. Detective Theriot then asked what Defendant “went there for,” and he stated: “He said he wanted cash or something of value. He did not fed anything of value to take from the car.”

| .¿Defendant contends that the State did not prove he entered Nederveld’s car with the specific intent to commit a felony or theft therein. Defendant reeites Detective Theriot’s testimony regarding the statement he made to police. He then asserts that the police report did not indicate that he stated he went inside the vehicle. Additionally, the investigative report stated “ ‘it appears the subject may have attempted to burglarize the vehicle.’ ”

Defendant notes that Nederveld did not see him enter the car, and she testified that nothing had been removed from the car. Defendant asserts that the only evidence of a crime was the broken window and his admission that he broke it. Defendant alleges it was not necessary for him to stick his head or body inside the car to ascertain if there was anything of value in the car. Defendant avers the evidence was not legally sufficient to prove he had the specific intent to commit a felony or theft inside the car.

In support of his argument, Defendant cites State in Interest of S.P., 11-1598 (La.App. 4 Cir. 5/2/12), 90 So.3d 528. In S.P. the juvenile was adjudicated delinquent for simple burglary of an automobile. He appealed, alleging that the evidence was insufficient to support his adjudication. Evidence adduced at the adjudication hearing indicated that the window of an automobile was broken, and a female yelled at the perpetrator to stop. Duncan Pace testified that the juvenile ran through the neighborhood and was pursued by two dogs and a female. Pace conceded he did not see the juvenile reach into the vehicle or throw anything at the vehicle. Police testified that they were flagged down and given a description of the perpetrator. Police then canvassed the neighborhood in search of the perpetrator. When the juvenile saw the officers, he ran toward a house where people were gathered on a porch. Police stopped their vehicle and asked the juvenile to ^approach. In response, the juvenile jumped a fence and fled. He was subsequently apprehended under a nearby house.

The fourth circuit found:

Even viewed in the light most favorable to the prosecution, although the window was smashed there is no evidence of entry into the vehicle. Further, although smashing a window constitutes evidence of the intent to damage the vehicle ... it does not necessarily constitute evidence of an intent to enter the vehicle as, concomitantly, would be required to find him guilty of the lesser criminal offense of attempted simple burglary. See La.Code Crim. Proe. art. 814(A)(43); La.Rev.Stat. 14:62. Accordingly, the judgment of the juvenile court is reversed with respect to the adjudication for simple burglary.

Id. at 533.

S.P. is distinguishable from Defendant in this case informed Detective Theriot that he got inside Nederveld’s car.

The State asserts the Defendant’s admission that he entered the car was sufficient evidence that he, in fact, entered the car. Additionally, his admission that he was looking for money satisfied the intent element of the offense.

In State v. Augustus, 93-4106 (La.App. 5 Cir. 2/23/94), 633 So.2d 783, writ denied, 94-964 (La.9/2/94), 642 So.2d 1284, the defendant was convicted of simple burglary. On appeal, he argued that the State failed to prove he had the intent to commit a felony inside the automobile he had entered. The fifth circuit noted the evidence indicated that the defendant broke into an automobile that did not belong to him without authorization and sat in the driver’s seat. The fifth circuit found that there was no reasonable explanation as to why the defendant entered and sat in the automobile if his intent was to merely break the glass. The fifth circuit then stated:

As we said in State v. Pierce, 450 So.2d 730 (La.App. 5 Cir.1984), “When the evidence is viewed in the light most favorable to the prosecution, it is difficult to imagine any hypothesis that does not |7include the specific intent to commit a felony or a theft therein at the time the appellant made his unauthorized entry of the van.” Supra, at p. 731.
The facts of State v. Pierce, supra, are very similar to those in the present case. There the defendant was seen tampering with the door of a vehicle, then entered the car and moved around in it. He carried a screwdriver as well as a bent coathanger, and there was no evidence that anything had been taken; the conviction was affirmed. See also State v. LaGarde, 513 So.2d 396 (La.App. 4 Cir.1987).
For the foregoing reasons, we find that the trial court was correct and drew a reasonable reference in its finding that the actions of the defendant manifested an intent to commit a theft of, or within, the vehicle in question.

Id. at 785-86.

In State v. Petty, 99-1307 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301, the fifth circuit found that evidence that the defendant broke the window of a car, reached inside the car, and fled when he was ordered to stop by police was sufficient to support his conviction for simple burglary. The fifth circuit noted that viewing the evidence in the light most favorable to the prosecution, it was “difficult to imagine any hypothesis that [did] not include the specific intent to commit a felony or theft therein.” Id. at 949.

The jury’s verdict indicated it chose to believe Detective Theriot’s testimony that Defendant stated he entered Nederveld’s car, and there was nothing of value inside the car for him to take. Based on the evidence presented and the cases cited herein, the State proved, beyond a reasonable doubt, that Defendant entered Neder-veld’s car and had the specific intent to commit a felony or theft therein. Accordingly, Defendant’s conviction for simple burglary is affirmed.

| «ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends that the trial court erred in imposing excessive and consecutive sentences. We disagree.

Defendant was sentenced on July 23, 2012, and defense counsel failed to object to the sentences or file a motion to reconsider the sentences. In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the sentencing hearing and did not timely file a motion to reconsider sentence; thus, this court found his claim of excessiveness of sentence was barred. See also State v. Fletcher, 00-968 (La.App. 3 Cir. 12/6/00), 776 So.2d 1240, writ denied, 01-342 (La.12/14/01), 803 So.2d 986. Additionally, in State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032, writ denied, 11-46 (La.6/3/11), 63 So.3d 1006, this court refused to consider the defendant’s claim that the consecutive nature of his sentences rendered his sentences excessive, as the issue was not raised in the defendant’s motion to reconsider sentence. See also State v. Wood, 08-1511 (La.App. 3 Cir. 6/3/09), 11 So.3d 701.

However, this court has reviewed claims of excessiveness where no objection was made and no motion to reconsider sentence filed. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La. App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352. Accordingly, we review Defendant’s claims as a bare claim of excessiveness. Bare excessiveness reviews have included evaluation of challenges to the imposition of consecutive sentences. See State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, unit denied, 07-49 (La.9/21/07), 964 So.2d 330.

1 flThis court discussed the standard of review applicable to claims of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,136 L.Ed.2d 539 (1996).
The fifth circuit, in Lisotta, 726 So.2d at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Defendant was convicted of aggravated burglary, which is punishable by imprisonment at hard labor for one to thirty years. La.R.S. 14:60. Defendant was sentenced to serve thirty years at hard labor.

Defendant was also convicted of simple burglary of an automobile, which is punishable by a fine of not more than $2,000, imprisonment with or without hard labor for not more than twelve years, or both. La.R.S. 14:62. Defendant was | 10sentenced to serve five years at hard labor, but no fine was imposed. The trial court ordered the two sentences to be served consecutively.

At the time of sentencing, the trial court stated:

I have considered the pre-sentence investigation. I have considered the victim’s position. I have considered the aggravating and mitigating circumstances and conditions in the applicable provisions of the Code of Criminal Procedure. I note your extensive criminal record and cannot under the circumstances ignore that. With respect to the aggravated burglary I sentence you to thirty years at hard labor with credit for time served. With respect to the simple burglary I sentence you to five years at hard labor with credit for time served, to run consecutively] to the aggravated burglary. That’s a total of 35 years.

The presentence investigation report (PSI) indicates that Defendant was convicted of three counts of indecent behavior with a juvenile on August 18, 1993, and sentenced to one year at hard labor. That sentence was suspended, and Defendant was placed on one year active supervised probation. On June 28, 1994, Defendant’s probation was revoked due to noncompliance with the conditions of his probation. Additionally, on December 12, 1996, Defendant pled guilty to simple burglary of an inhabited dwelling and was sentenced to two years at hard labor. The Defendant was released on parole on July 24, 1997. He subsequently absconded supervision, and his parole was revoked on August 3, 1998. Finally, on May 12, 2003, Defendant was convicted of molestation of a juvenile and sentenced to five years at hard labor. The following recommendation was set forth in the PSI:

Before Your Honor for sentencing is Ernest Joseph Arceneaux, a forty six year old, black male, officially classified as a fourth felony offender, convicted by jury trial for the crimes of aggravated burglary and simple burglary. He has an extensive criminal record and two prior convictions for sex offenses (3 counts of Indecent Behavior with a Juvenile and Molestation of a Juvenile). Arceneaux has no regard for the laws of the State of Louisiana and is a dire threat to public safety. His criminal record demonstrates that he is a dangerous sexual predator and requires incarceration to protect the public from any | nfurther harm. Accordingly, it is recommended that the maximum hard labor sentence for each count be imposed, with each count to be served consecutively.

Defendant contends that he is not the most egregious offender, the trial court gave no consideration to La.Code Crim.P. art. 894.1 by providing any aggravating circumstances for imposing the maximum sentence for aggravated burglary, and gave no reasons or justification for imposing consecutive sentences.

The State contends that Defendant’s sentence for aggravated burglary is not excessive and cites State v. Douglas, 576 So.2d 1102 (La.App. 3 Cir.1991), in support of its argument. The State further contends that Defendant’s undertakings constituted two distinct acts, which allows for consecutive sentences.

In Douglas, the defendant pled guilty to aggravated burglary and was sentenced to thirty years at hard labor. This court affirmed his sentence, noting the following criminal history:

Defendant, 25 years of age, pleaded guilty as charged to one count of aggravated burglary and two counts of simple burglary of an inhabited dwelling. As a juvenile, defendant was constantly in trouble with the Vidalia Police Department for stealing bicycles.
As an adult, defendant’s criminal history continued. In September of 1984, defendant was arrested and charged with one count of simple burglary and two counts of simple burglary of an inhabited dwelling. In December of 1984, a charge of simple escape was filed against defendant. However, none of these charges were pursued because defendant was arrested in Mississippi only one month later for armed robbery, convicted, and sentenced to 8 years at hard labor with the Mississippi Department of Corrections. Defendant was paroled four years early and committed the instant offenses while on parole. Additionally, at the time of sentencing, defendant had pending charges of aggravated battery in violation of LSA-R.S. 14:34 and attempted aggravated escape, violations of LSA-R.S. 14:27 and LSA-R.S. 14:110.

Id. at 1104.

In State v. Walker, 542 So.2d 756, 760-61 (La.App. 4 Cir.1989) (footnote omitted), the fourth circuit discussed sentences for aggravated burglary stating the following:

a review of punishments imposed by Louisiana courts in other aggravated burglary cases illustrates that defendant’s sentence is not disproportionally excessive. State v. Michaels, 516 So.2d 202 (La.App. 4th Cir.1987) [Defendant was originally sentenced to thirty (30) years; multiple billed and resentenced to thirty-five (35) years]; State v. Hawthorne, 454 So.2d 285 (La.App. 4th Cir.1984), unit den., 457 So.2d 1201 (La. 1984) [Defendant was sentenced to thirty (30) years where defendant choked the victim and threatened to kill her child]; State v. Wilson, 508 So.2d 960 (La.App. 4th Cir.1987) [Defendant was sentenced to twenty (20) years where defendant had inflicted minor physical injury to the victim and defendant had no prior convictions]; State v. Williams, 448 So.2d 659 (La.1984) [Defendant was sentenced to twenty (20) years where defendant had his hands around the mouth and throat of his sixty-one (61) year old victim. Defendant had a prior juvenile conviction and a conviction for attempted theft for which he was on probation at the time he committed the instant crime.]; State v. Coleman, 450 So.2d 1063 (La.App. 1st Cir.1984), writ den., 456 So.2d 172 (La.1984) [Defendant was sentenced to twenty-five (25) years where, although he did not attack anyone, he was found in the victim’s bedroom, holding a knife. Defendant had an extensive criminal record of arrests, but only one conviction].

The fourth circuit then found that the defendant’s sentence of twenty-five years for aggravated burglary was not excessive in light of the fact that he attacked the victim with a screwdriver. The fourth circuit also noted that the defendant had a substantial criminal history, which included:

a ten (10) year sentence for aggravated burglary and attempted aggravated burglary and attempted aggravated rape in 1966; a five and one-half (5 1/2) year sentence for burglary in Florida in 1969 from which defendant escaped in 1972; a five and one-half (5 1/2) month sentence for possession of stolen property in 1975, along with a violation of the Gun Control Act; and arrests without dispositions for burglary, false imprisonment, simple escape and shoplifting.

Id. at 759.

In State v. Brandenburg, 06-1158 (La. App. 3 Cir. 2/7/07), 949 So.2d 625, writs denied, 07-538, 07-614 (La.10/26/07), 966 So.2d 571, 573, (La.10/26/07), the defendant was convicted of aggravated burglary and sentenced to thirty years at hard labor. This court affirmed the defendant’s sentence, noting that he was a fifth felony offender with an extensive arrest record.

In State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864, the defendant was convicted of simple burglary and sentenced to six years at hard labor for entering a home and taking a ring. The court affirmed the defendant’s sentence, noting that the sentence was half the maximum sentence, he was a mature, second felony offender with a history of unauthorized entry and theft, and was unsuccessful during a prior period of probation.

In Petty, 759 So.2d 946, the defendant was convicted of simple burglary after breaking the window of a car and reaching inside. He was sentenced to twelve years at hard labor. The court affirmed his sentence, noting that the defendant had at least four prior felony convictions, two of which were for violent offenses. The court further noted that the sentencing court stated the defendant was in need of correctional treatment which could best be provided by his commitment to an institution and believed any lesser sentence would deprecate the seriousness of the crime.

Based on Defendant’s criminal history and the cases cited herein, Defendant’s sentences are not excessive.

Consecutive Sentences

Louisiana Code of Criminal Procedure Article 883 states in relevant part: “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be | userved consecutively.” (Emphasis added.) The Louisiana Supreme Court has recognized that although concurrent sentencing is favored, it is within the trial judge’s discretion to impose sentences consecutively based on factors including the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.
Where the trial court does impose consecutive penalties, it “must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1” State v. Merritt, 03-946, p. 28 (La.App. 3 Cir. 3/17/04), 875 So.2d 80, 97 (quoting State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917(La.6/25/04), 876 So.2d 823).

State v. Vollm, 04-837, p. 6 (La.App. 3 Cir. 11/10/04), 887 So.2d 664, 669.

In State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, urrit denied, 03-2042 (La.1/16/04), 864 So.2d 626, the defendant was convicted of second degree murder and attempted second degree murder and sentenced, respectively, to life imprisonment and ten years at hard labor, both to be served without benefit of probation, parole, or suspension of sentence, to run consecutively. On appeal, the defendant argued the trial court failed to articulate particular justification for the imposition of consecutive sentences.

This court held:

[E]ven though the shootings of her husband and son arose out of the same act, it is not mandatory that the sentences be served concurrently. In State v. Bibb, 626 So.2d 913 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188, the defendant killed his two children. The court affirmed the two consecutive life sentences. The court noted:
Herein, the two murders, though occurring close in time and place, are separate and distinct acts that justify consecutive sentences. Further, even assuming that the murders were close enough in time and place to be considered “same act” crimes which arise from a single course of conduct, we find that the trial court did not err in imposing consecutive sentences. Article 883 permits |1Bthe court to impose consecutive sentences if the court “expressly directs” such sentences.
Id. at 940.
Thus we find the trial court did not err when it ordered the sentences to be served consecutively.

Id. at 954.

This case involves separate and distinct acts that justify consecutive sentences, as Defendant broke into Nederveld’s car and her home. Even if this court considers the offenses at issue to constitute the same act, based on Pierre, 854 So.2d 945, the trial court did not err in imposing consecutive sentences. Article 883 permits the trial court to impose consecutive sentences if it expressly directs such sentences, and the trial court did so in this case.

DECREE

The Defendant’s conviction for simple burglary and his sentences for aggravated burglary and simple burglary are affirmed.

AFFIRMED.

      . Defendant does not contest the sufficiency of the evidence supporting his conviction of aggravated burglary.