author: DREW, J.

text:
    SUCCESSION OF William Owen HOLCOMB, Sr.
    No. 47,979-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 29, 2013.
    John W. Montgomery, Minden, LA, for Appellant, Pamela Hillidge, Executrix of Succession.
    John Edward Settle, Jr., Bossier City, LA, for Appellee, Barbara J. Holcomb.

      Before CARAWAY, DREW and GARRETT, JJ.
   DREW, J.

| jPamela Hillidge appeals a judgment classifying certain assets of William Holcomb, Sr.’s estate, as belonging to the community of Holcomb and his surviving spouse, Barbara Holcomb.

We affirm.

FACTS

William Holcomb (‘William”) died on August 7, 2010. He and Barbara Holcomb (“Barbara”) were estranged at the time.

William had executed his last will and testament on November 24, 2008. William named Pamela Hillidge (“Hillidge”) as the executrix of his estate, and he made bequests to his son, Hillidge, and Barbara.

William wrote in his will that he had certain unmatured CDs in his name and/or the name of Barbara, and that the CDs had been purchased with his separate, inherited funds. He further wrote that it was his intention to have the CDs changed solely to his name when they matured. He bequeathed 1/3 shares of the CDs each to his son, Barbara, and Hillidge.

Barbara opposed the probate of the will. She alleged that: (i) William had become delusional from cancer treatments; (ii) he had ordered her from the family home; (iii) Hillidge began a relationship with William and moved into the home; (iv) Hil-lidge had unduly influenced William; and (v) William had lacked testamentary capacity when he executed the will.

In spite of Barbara’s objections, the will was probated and Hillidge was confirmed as testamentary executrix. Hillidge was ordered to file a detailed descriptive list.

| ¡¿Barbara objected to Hillidge’s final detailed descriptive list and accounting. She contended that the only separate property belonging to William at the time of his death was certain real property that he had inherited.

When Barbara filed her traversal of the final detailed descriptive list, she rejected items listed as separate movable property and claimed they belonged to the community. The parties were able to come to an agreement at trial on the classifications of some items. However, remaining in dispute were a bush hog, tractor, pistol, and the contents of accounts at Regions Bank and Minden Building and Loan (“MBL”). The accounts at Regions bank were checking account numbers xxxx3876 and xxxx9835. The account at MBL was account number xxxx8363.

William inherited $78,853.97 from a relative as evidenced by a check dated October 26, 1999. Hillidge testified that this money was deposited into a Hibernia account. As shown by a Hibernia bank statement, William opened an account at Hibernia on October 29, 1999, with a deposit of $78,853.97. According to Hillidge, she accompanied William to the bank when he deposited the inherited funds. As of January 5, 2000, the account had a balance of $79,496.77.

Hillidge testified that William withdrew $50,000 from the Hibernia account and purchased a CD. A CD prematurity notice for account number xxxx2893 at Regions Bank showed a CD with a maturity date of July 15, [¡¡2010, and a term of 303 days. The CD had an anticipated renewal value of $50,664.32. The account was in William’s name, POD to Hillidge and his son. Hillidge stated that this CD was negotiated and the funds were moved in July of 2010 to an account that she and William had in their names, presumably Regions account number xxxx3876, and those funds were later moved to a succession account. She said she was present when all those transactions took place.

Hillidge testified that she was also present when William allegedly spent the remaining balance in the Hibernia account on some of the other items she classified as separate property, including the purchase of a CD at MBL that was worth approximately $13,000.

A record from MBL showed that Holcomb purchased a CD for $13,484.12 on October 20, 2009, for account number xxxx8363. The CD had an initial term of six months, and it was POD to Hillidge, Barbara, and the son. The CD was redeemed in 2010. Following William’s death, Hillidge closed the account and split the funds three ways.

The trial court noted Hillidge’s testimony that funds from the Hibernia account were used to purchase the $50,000 CD at Regions and the $13,484 CD at MBL, but she had no documents to support that assertion. While the court agreed that the money deposited into the Hibernia account was William’s separate property, Hillidge failed to meet her burden of proving those funds were then used to purchase the tractor, bush hog, gun, and the two CDs.

I/The court also noted that there was no evidence as to the source of the funds in Regions account number xxxx9835; therefore, those funds were also classified as community property. Hillidge used funds in this account to pay some of William’s bills after his death. This account was classified as community property on the final detailed descriptive list.

The trial court ordered the disputed items and funds classified as community property for purposes of the succession. Hillidge appealed.

DISCUSSION

Burden of proof

Things in possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340. The level of proof or persuasion required to overcome this presumption is not found in art. 2340. Talbot v. Talbot, 2003-0814 (La.12/12/03), 864 So.2d 590.

Hillidge argues that the trial court applied the wrong burden of proof in this matter. The trial court correctly stated that the burden of proof to overcome the presumption of community is preponderance of the evidence. However, the court next cited Lormand v. Lormand, 96-62 (La.App. 3d Cir.5/8/96), 673 So.2d 1345, writ denied, 96-1432 (La.9/13/96), 679 So.2d 109, as holding that to meet this burden, proof must be clear, positive, and legally certain that the property was separate instead of community. The court later stated that Hillidge had not shown with clear, positive, and legally certain proof that the CDs were William’s separate property.

| (¡In Talbot, the supreme court rejected a requirement of clear and convincing evidence to overcome the art. 2340 presumption:

As a matter of public policy and in the interest of fairness, we find that the community presumption contained in article 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community.

Id. at p. 12, 864 So.2d at 600. Emphasis added.

The trial court mentioned the preponderance of the evidence standard, but then it required that the proof be clear, positive, and legally certain. That level of proof was likened to clear and convincing by the supreme court in Talbot:

Through the years, however, the lower courts have repeated the formula ... requiring a spouse to prove the separate nature of his or her property by a “strict, clear, positive and legally certain” standard, or stated more traditionally, the clear and convincing standard.

Id. at p. 10, 864 So.2d at 598.

The Third Circuit in Lormand had cited another Third Circuit case, Hebert v. Hebert, 94-864 (La.App. 3rd Cir.2/15/95), 650 So.2d 436, for the statement that the proof to meet the burden of overcoming the art. 2340 presumption must be clear, positive, and legally certain. The Hebert court had stated that clear and convincing evidence must be presented to overcome the presumption of community. This approach was clearly rejected by the supreme court in Talbot.

Holding Hillidge to a heightened burden of proof was legal error by the trial court. If a legal error by the trial court interdicts the fact-finding process, the manifest error standard of review is no longer applicable, and, |fiif the record is otherwise complete, the appellate court should conduct an independent de novo review of the record. Chambers v. Village of Moreauville, 2011-898 (La.1/24/12), 85 So.3d 593. This error was possibly prejudicial to Hillidge as it skewed the finding that her proof was insufficient to overcome the burden. Accordingly, we conduct a de novo review of the evidence.

Evidence

Even after conducting a de novo review of the record, we reach the same conclusion that Hillidge failed to meet her burden of proof to overcome the presumption.

Hillidge testified that she knew the money he put into the CDs was William’s separate property because she had helped him with his financial affairs since the 1980s. However, Hillidge, who was employed in financial statement services at Regions Bank in Minden and said she was authorized on all of William’s accounts, was unable to present any documentation showing how the money he had inherited was moved from the Hibernia account to the CDs in the Regions and Minden accounts over the course of nine years.

We also note the language in William’s 2008 will that he had certain unmatured CDs in his name and/or the name of Barbara, and that the CDs had been purchased with his separate, inherited funds. The $50,000 CD had a maturity date of July 15, 2010, and a term of 303 days. The $13,484.12 CD was purchased on October 20, 2009. It is unclear as to which CDs William was referring in his will, and this uncertainty further 17clouds an ascertainment of the source of the funds for the $50,000 and $13,484.12 CDs.

Hillidge was also unable to establish that the tractor, bush hog, and gun were purchased by William with his separate funds.

DECREE

At appellant’s cost, the judgment is AFFIRMED.

      . Hillidge described the nature of her relationship with William as "family.”

      . This account contained $51,918 on the date of William's death.

      . This account contained $1,904 on the date of William’s death.

      . This account contained $13,484 on the date of William’s death.

      . Hillidge testified that she had placed $700 of her own money in this account.


source: Caselaw Access Project

author:
STEWART, J.
      DREW, J., concurring.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Joshua VALLO, Appellant.
    No. 47,995-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 29, 2013.

      Louisiana Appellate Project by Brent Hawkins, for Appellant.
    Joshua Vallo, Pro se.
    J. Schuyler Marvin, District Attorney, Graydon K. Kitchens, Jr., C. Sherburne Sentell, III, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
   STEWART, J.

liThe defendant, Joshua Vallo, was convicted by a jury of aggravated incest. The trial court sentenced him to 50 years’ imprisonment at hard labor, with credit for time served but also with the first 25 years of the sentence to be served without probation, parole, or suspension of sentence. The defendant appealed, assigning as error a violation of his constitutional right of confrontation by the admission of the victim’s videotaped interview where the victim refused to answer questions on cross-examination regarding the alleged offense. The defendant also assigned as error the excessiveness of his sentence. Because we find merit to the first assignment of error and for reasons explained in this opinion, we reverse the defendant’s conviction and sentence and remand for further proceedings.

FACTS

By bill of information Sled on July 21, 2010, the defendant was charged with aggravated incest of his stepdaughter, M.M., between the dates of April 1, 2010, and June 3, 2010. M.M. was eight at the time of the offense and lived with her mother and the defendant. The matter proceeded to a jury trial on April 23-25, 2012. The following facts were adduced at trial.

The alleged offense came to light on May 30, 2010, when M.M. told her aunt, Meiko Prevo, and Prevo’s partner, Marva Key. Key, not Prevo, testified at trial. According to Key, M.M. stated that she had something to tell her. The child then revealed that the defendant had been touching her all over — “touching her top and touching her bottom, her private area.” Prevo reported the allegation to the Cullen Police Department, which began Ran investigation. The state immediately removed M.M. from her mother’s custody and placed her with her father, Milton Lee Mosby, Sr.

On June 1, 2010, Mosby and Officer Leon Thirdgill of the Cullen Police Department accompanied M.M. to the Gingerbread House in Shreveport where she was questioned by a forensic examiner. Officer Thirdgill supervised the interview by listening over speakers and communicating by walkie-talkie with the interviewer, who wore an earpiece. The interview was videotaped, and Officer Thirdgill testified that he viewed the video prior to trial. He stated that the video was not altered, that it reflects what M.M. said during the interview, that no attorneys were present during the interview, and that the voices on the video are those of the people who were there during the interview. In conjunction with Officer Thirdgill’s testimony and without any objection by the defense, the state played the video for the jury. Both Officer Thirdgill and M.M.’s father denied telling her what to say during the interview.

The video shows M.M. and the forensic examiner. While M.M. was clearly hesitant to talk and slow to respond to the questions, she did eventually state that “Josh” had been touching on her and that it happened more than once. She stated that the touching occurred on her whole body and under her clothes. It happened in her room, her brother’s room, and the living room. She stated that no one saw him do these things to her.

Later in the interview, M.M. became more specific about what happened. She said that Josh used his fingers to touch her leg, her “bottom,” and her “privacy.” He did this touching under her clothes and 1..¡underwear. She stated that he would stick his finger in her privacy and bottom and lick her privacy. He would also lick and bite her nipples. M.M. said that he tried to make her touch his privacy, but she would not do it. When asked if Josh said anything to her while doing these things, M.M. replied that he would say “I got your back, b.a.b.y.” and “I love you.” M.M. also recalled that he would have “some kind of grease” on his hands and that he told her it “would make it feel better.” She said that he got the grease from his bathroom. Finally, M.M. recalled watching a movie on the television called “Booty Talk” with Josh. She said that boys and girls were touching each other and that she closed her eyes during the movie.

M.M. told the interviewer that Josh told her not to tell anyone. She said these things happened while her mother was at work or asleep and while her brother was asleep as well. When asked about whether she told anyone what was happening, M.M. said that she told her brother and then her cousin Ebony. She went on to say that she told her mother and other family members. She said that her mother was mad because Josh touched her and said that she should have told her about it. Lastly, the interviewer had M.M. identify the body parts she talked about on a drawing, which was introduced as State’s Exhibit 1.

The state called M.M. to testify at trial. M.M. stated that she was 10 and that she lived with her father. M.M. then answered “yes” or “no” to questions posed by the prosecutor. She indicated that she recalled talking to the prosecutor and going to his office. She indicated that she understood the truth and that she had to tell the truth in court. She affirmed that she Lwatched the video at the prosecutor’s office, that it was her on the video, and that what she said on it was true. She denied that anyone told her what to say on the video. She affirmed that she knows the defendant, that he was married to her mother, and that she had lived with him and her mother in Cullen. Following these preliminary questions, the state again played the Gingerbread video for the jury.

After watching the video, M.M. answered “yes” when asked whether what she said on it was true, and she answered “no” when asked whether anyone had told her what to say. She also answered “yes” when asked if she recognized two documents from the interview, one on which she identified male and female body parts and the second on which she wrote the names of her family, including the defendant. These were introduced into evidence as State’s Exhibits 1 and 2. Then, without any objection by the defense, the state offered the Gingerbread video into evidence as State’s Exhibit 3.

On cross-examination, M.M. again indicated that she understood the difference between the truth and a lie and that she had not told any lies. She also indicated that she could keep straight in her mind the time periods when she lived with her mother and the defendant, and when she went to live with her father. She testified that she was in the third grade at the time of trial and that she was nine years old when she went to live with her father. She testified that she called the defendant “Josh,” and she answered “yes” when asked whether she spoke truthfully when she said what he did to her. She testified that she told her cousin, “grandpapa,” and “auntie,” whom she identified as “Marva,” about what the defendant did to her. When asked |Rif this was before or after she went to live with her father, she answered, “After-before.” She then testified that she talked to her father at the police station and told him that “[h]e was touching on me.” M.M. then answered “no” when asked whether anyone had told her what to say. She knew that the police station was in Cullen, and she testified that she spoke with the police officers and then went to live with her father in Haynesville. Later in her testimony, she denied that she had ever been to her father’s house before she went to live with him.

When asked what happened next, M.M. indicated that she did not remember. However, she did remember going to the Gingerbread House. She also remembered going to a doctor, but she did not remember the examination. Defense counsel then asked her to forget about the video and answer the questions based on her memory. The state objected, and a bench conference took place. The court directed defense counsel to rephrase the question and then M.M. was allowed a short break before continuing.

Upon resuming, defense counsel asked M.M. to tell what the defendant did to her. M.M. stated, “He was touching on me.” When asked where he was touching, M.M. stated, “On my whole body.” To further questioning about where on her body, she answered, “On my legs.” She would not respond to additional questions about the touching. Defense counsel asked M.M. whether she would be more comfortable answering if counsel was seated, but M.M. indicated that she should “Stand there.” The trial court then directed M.M. to listen to the questions and answer them. Defense counsel again asked M.M. to say if the defendant touched her [^anywhere else or to say if he did not. The state objected and another bench conference was held. The state argued that the Gingerbread video was M.M.’s direct testimony and that she already testified in it about what exactly the defendant did to her. After noting M.M.’s age and that she might be having a difficult time answering questions about where she was touched, the court then directed defense counsel to ask simple questions that she would understand and that require a direct answer.

When questioning resumed, defense counsel again asked M.M. where on her body did the defendant touch her. M.M. answered, “My bottom.” She responded “no” when asked whether she had a hard time remembering. She would not answer when asked if anything would make it easier for her to answer the questions. Defense counsel then asked some general questions about school before returning to questions about the Gingerbread House interview. M.M. answered “yes” to indicate that she remembered that day and the things that the defendant did to her, but she would not answer when asked to tell what happened to her.

On redirect, M.M. again answered “yes” to indicate that she had viewed the video and what she said on it was true. She would not answer when asked whether it was hard for her to answer questions in front of the defendant or out loud, or whether she was afraid. M.M. would not answer further questions, even when posed by the trial judge. The state ended its redirect and rested its case.

When trial resumed the next day, the state made a new offer to the defendant on the record. The defendant turned it down and took the stand. [ 7The defendant asserted that he had been falsely accused and denied doing the things related by M.M. on the Gingerbread video. He suggested that someone, either her father or her aunt, told her to say those things and coached her. He disputed Mosby’s claim that he never saw M.M. before she went to live with him, and he stated that he argued with M.M.’s aunt from “time to time.” He believed that the explicit details provided by M.M. on the video and the time it took her to answer questions indicated that she was being prompted or lying.

By a vote of 11 to 1, the jury found the defendant guilty of aggravated incest. The sentencing hearing took place on August 17, 2012. The trial court had reviewed the presentence investigation report. Mosby asked the trial court to impose a life sentence due to the impact of what happened to M.M. and her family. The trial court set forth various factors considered by it, including the fact that the defendant was a first felony offender. The trial court noted that the victim was the defendant’s stepdaughter and he had the opportunity to confront her when she testified at trial. The trial court expressed its opinion that there is not much chance of rehabilitation from this type of crime and that such offenders tend to offend again. Noting how seriously it takes matters when children are hurt and its desire to make certain there will be no other victims, the trial court sentenced the defendant to 50 years at hard labor, with 25 years without probation, parole, or suspension of sentence. He was allowed credit for time served.

On appeal, the defendant asserts two assignments of error concerning the alleged violation of his Sixth Amendment right of confrontation and the |sexcessiveness of the sentence. Because we find merit to the first assignment of error, the assignment regarding excessiveness of the sentence will not be addressed.

DISCUSSION

In his first assignment of error, the defendant asserts a violation of his constitutional right to confront his accuser. He asserts that the Gingerbread video was admitted without him being able to effectively cross-examine M.M. because she refused to answer questions at trial concerning the alleged offense. He asserts that M.M.’s refusal to answer questions made her essentially “unavailable” to testify. He further asserts that the lack of effective cross-examination of the accuser at trial easts substantial doubt on the fact-finding process, particularly as the video was the basis of the state’s case against him. In support of his argument, the defendant cites State in the Interest of R.C., 514 So.2d 759 (La.App. 2d Cir.1987), writ denied,, 516 So.2d 128 (La.1987), discussed infra. Recognizing that there was no contemporaneous objection to the introduction of the video, the defendant asserts that this error is subject to review because it affects a substantial right.

The state counters that it and the trial court complied with the statutory requirements for admission of the video into evidence and that M.M. was subject to cross-examination by defense counsel.

As provided by La. C. Cr. P. art. 841, an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. The contemporaneous objection rule serves two purposes. It | ¡prevents a defendant from withholding objections to errors with the intention of urging such errors on appeal, and it promotes judicial efficiency. State v. Mart, 419 So.2d 1216 (La.1982); State v. Thomas, 27,507 (La.App.2d Cir.12/6/95), 665 So.2d 629, writ denied, 96-0119 (La.4/8/96), 671 So.2d 383.

Even in the absence of a contemporaneous objection, an error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence is subject to review on appeal. La. C. Cr. P. art. 920(2). Additionally, the supreme court has carved out a jurisprudential exception similar to the “plain error” rule provided in F.R.C.P. Rule 52(b). Thomas, supra. However, this rule is of limited applicability, not general application. Id. It applies “where the relevant errors substantially affected the fairness of the proceeding and the reliability of the fact-finding process.” Id., 27,507 at p. 7, 665 So.2d at 633.

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution guarantees an accused the right to be confronted with the witnesses against him. This is a bedrock procedural guarantee applicable in both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Amendment safeguards the right of the defendant to confront his accuser and to subject the accuser’s testimony to rigorous testing in an adversarial proceeding before the trier of fact. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Carper, 45,178 (La.App.2d Cir.6/9/10), |in41 So.3d 605, writ denied, 10-1507 (La.9/3/10), 44 So.3d 708. See also La. Const. Art. I, § 16.

Here, the defendant asserts that he was deprived the opportunity to confront his accuser and to subject her testimony concerning the offense to rigorous testing through cross-examination due to her refusal to answer questions about the offense. The defendant’s Sixth Amendment right to confrontation is clearly a substantial right guaranteed by the federal and state constitutions. Considering that the state’s case was based almost exclusively on the victim’s testimony, the claim that the defendant was deprived of the right of confrontation due to the victim’s unavailability resulting from her refusal to answer questions about the offense is, if correct, one that would have substantially affected the fairness of the proceedings and the reliability of the fact-finding process. Therefore, we will address the assignment of error notwithstanding the neglectful failure of defense counsel to lodge any objections concerning the playing and admission of the Gingerbread video or M.M.’s testimony.

Applicable Law:

La. R.S. 15:440.1 et seq., authorize the videotaping of statements by protected persons who are victims of rape or have otherwise been physically or sexually abused and the admission of such statements in evidence as an exception to the hearsay rule. La. R.S. 15:440.2 and R.S. 15:440.3. The purpose of this law is to allow for the prosecution of persons | Hwho commit such crimes with minimal additional intrusion into the lives of the protected persons. La. R.S. 15:440.1.

For the videotape to be considered competent evidence, it must be “satisfactorily proved” that (1) it was voluntarily made by the protected person; (2) no relative of the protected person was present in the room where the recording was made; (3) the recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement; (4) the recording is accurate, has not been altered, and reflects what the protected person said; and (5) the taking of the statement was supervised by a physician, social worker, law enforcement officer, or other authorized person listed in the statute. La. R.S. 15:440.4.

Admissibility of a videotaped statement is governed by La. R.S. 15:440.5, which states in relevant part:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;
(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
11g(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The protected person is available to testify.
(B) The admission into evidence of the videotape of a protected person as authorized herein shall not preclude the prosecution from calling the protected person as a witness or from taking the protected person’s testimony outside of the courtroom as authorized in R.S. 15: 288. Nothing in this Section shall be construed to prohibit the defendant’s right of confrontation. [Emphasis added.]

Before addressing the issue of whether the admission of the Gingerbread video in evidence violated the defendant’s right of confrontation, we must address the procedure utilized by the state in presenting it to the jury. The state played the Gingerbread video for the jury in conjunction with the testimony of Officer Thirdgill, who testified before M.M. was called as a witness by the state. Officer Thirdgill testified that he transported M.M. to the Gingerbread House and that he supervised the interview. He testified that the video is an accurate reflection of what happened during the interview. He testified that no lawyers were present at the interview but that M.M.’s father was present and had had M.M. in his custody since May 31, 2010.

The record shows that the Gingerbread video was played for the jury before the statutory competency and admissibility requirements were proved, satisfactorily or otherwise. There was no showing that M.M.’s father was not present in the room where the recording was made. Officer Thirdgill did not testify as to where M.M.’s father was during the interview, and the recording shows only that part of the room where M.M. and the interviewer sat. There was also no showing that the recording was 1 ^voluntarily made by the protected person. The state did not satisfactorily prove the Gingerbread video to be competent evidence under La. R.S. 15:440.4 prior to its presentation to the jury. The state also failed to establish that M.M., the protected person, was available to testify as required by La. R.S. 15:440.5 before presenting it to the jury during the testimony of Officer Thirdgill.

Louisiana’s special procedures for protecting children who are victims of abuse contain strict requirements that are meant to ensure that the rights of defendants to confront adverse witnesses and test the reliability of their testimony are not compromised. State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, cert. granted, 552 U.S. 1087, 128 S.Ct. 829, 169 L.Ed.2d 625, judgment reversed on other grounds, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), modified on denial of rehearing, — U.S.-, 129 S.Ct. 1, 171 L.Ed.2d 932 (2008), on remand, 2005-1981 (La.11/21/08), 994 So.2d 1287. Jurisprudence demands that these special procedures are to be followed with exactitude. Carper, supra. The state’s failure to satisfy these strict requirements prior to playing the Gingerbread video at trial is an error that violates the substantial rights of the accused and the fundamental requirements of due process.

We also find merit to the defendant’s assignment of error concerning 114the violation of his Sixth Amendment right of confrontation due to M.M.’s unwillingness to answer questions about the alleged offense. In Carper, supra, this court conducted a thorough survey of United States Supreme Court and federal jurisprudence addressing the Confrontation Clause, particularly its requirements concerning the admission of out-of-court statements. In Crawford, supra, the United States Supreme Court rejected its prior pronouncement in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2581, 65 L.Ed.2d 597 (1980), that a witness’s out-of-court statement may be admissible so long as there are “adequate indicia of reliability — i.e. falls within a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ ” Crawford, 541 U.S. at 42, 124 S.Ct. at 1859. Instead, the Crawford court determined that testimonial hearsay statements may be admissible only when the declarant is unavailable to testify and the defendant has had a prior opportunity for cross-examination. Id., 541 U.S. at 59, 124 S.Ct. at 1369. The court explained that the Confrontation Clause is a procedural, rather than a substantive, guarantee and that its “ultimate goal is to ensure reliability of evidence.” Id., 541 U.S. at 61, 124 S.Ct. at 1370. Explaining further, the court stated, “It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id.

More recently in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Supreme Court held that, without | lflthe in-court testimony of the analysts, the admission into evidence during criminal proceedings against the defendant of certificates by state laboratory analysts stating that the substance in bags seized by police contained cocaine violated the defendant’s Sixth Amendment right to confront the witnesses against him. Citing Crawford, supra, the Supreme Court found that the analysts were “witnesses” for Sixth Amendment purposes and that their certificates were essentially affidavits and thus testimonial statements. Therefore, absent a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them, the defendant was entitled to confront them at trial. Melendez-Diaz, 557 U.S. 305, 129 S.Ct. at 2532. Notably, the Supreme Court rejected the argument that the defendant could have subpoenaed the analysts and thus confronted them at trial. As stated, “[t]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Id., 557 U.S. at 324, 129 S.Ct. at 2540.

Turning to the jurisprudence of this state, State in the Interest of R.C., supra, involved the adjudication of a juvenile for the attempted aggravated rape of a five-year-old child. The victim was called by the state as a witness at the adjudication. She answered some general questions by which she identified the defendant and indicated that she had told her mother and the forensic 11fiinterviewer about the incident. However, she refused to answer questions in the courtroom about the incident, stating that she did not want to tell about it all over again. Though the defendant objected to the admission of the videotape, the court deferred its ruling until it viewed the tape and the victim was cross-examined. On cross-examination, she answered some questions about how long she had known the defendant and where her parents were when the incident took place. She testified that the defendant pulled her pants down, but she would not talk further about the incident and said that she forgot. The trial court then ruled the videotape inadmissible. That ruling was affirmed on appeal on the basis that the child’s refusal to answer questions about the offense rendered her unavailable at trial within the meaning of La. R.S. 15:440.5.

In its analysis, this court stated that every one of the requirements of La. R.S. 15:440.5 must be satisfied in order for the video to be admitted. The statutory scheme mandates that the child (protected person) must be available to testify. The court noted that this requirement “is absolutely essential to provide for constitutional confrontation and cross-examination.” Id., at 1355. The court found that the victim’s refusal to talk about alleged offense meant that she was not available for effective cross-examination and that “[e]ross-examination cannot be effective when it is not permitted to cover the facts of the alleged offense.” Id., at 1356. The court also noted that the victim’s videotaped interview “lodged a devastating accusation against the defendant” and that her refusal to testify denied him the opportunity to probe the truthfulness of her allegations. Id.

|17In State v. Guerra, 36,347 (La.App.2d Cir.12/18/02), 834 So.2d 1206, writ denied, 03-0072 (La.4/25/03), 842 So.2d 398, the defendant’s appeal urged that the victim’s videotape should have been inadmissible, in part, due to the victim’s refusal to answer certain questions. Finding that the victim was “sufficiently available to testify,” this court found no error in the admission of the videotape. The court noted that, unlike the victim in R.C., supra, the victim here did not refuse to testify, though some of her answers were not responsive to the questions. The court noted that the defense viewed the videotape prior to trial and had the opportunity to question the victim on cross-examination, but chose not to pursue answers to questions regarding the offense. The court found no abuse of discretion in allowing introduction of the video and concluded that any error in its omission was harmless. Notably, the state’s case included “a plethora of direct evidence” and medical evidence in addition to the victim’s taped statement and testimony at trial. Guerra, 36,347 at p. 14, 834 So.2d at 1214.

In Carper, supra, the defendant’s conviction for aggravated rape and molestation was reversed on appeal on the grounds that the victims’ Gingerbread interviews were admitted into evidence without any testimony from the young victims, who were not called to the stand. The court found that the interviews were the “linchpin” of the state’s case and that the state’s failure to call the children to the stand was a “fatal error to the prosecution.” Id., 45,178 at p. 22, 41 So.3d at 617. The court concluded that the admission of the taped interviews, without the defendant being afforded the | ^opportunity to cross-examine the victims, violated his right of confrontation under the Sixth Amendment.

On remand, the defendant was tried and convicted again. Both victims testified at trial and their Gingerbread interviews were admitted into evidence. His conviction was affirmed in State v. Carper (Carper II), 47,409 (La.App.2d Cir.11/14/12), 107 So.2d 118. The opinion notes that the defendant had the opportunity to cross-examine both victims at trial.

In Kennedy, supra, the defendant was convicted of the aggravated rape of his eight-year-old stepdaughter. At trial, the victim testified on direct and cross-examination, and her videotaped interview was offered into evidence by a joint stipulation of the parties. The victim answered some general questions but then lost her composure when asked to tell what the defendant did to her. After a recess, the video was played while she was on the stand, then questioning resumed. The opinion recounts her testimony from this point in full and shows that she answered numerous questions about what happened after the defendant raped her. She answered “yes” when asked whether everything she said on the video was true and whether the defendant was the person who raped her. On appeal, the defendant argued that the statutory provisions authorizing use of the video are unconstitutional and that it was admitted into evidence in violation of the statute because the victim was unavailable, due to poor memory, for cross-examination and simply adopted her videotaped statement.

The supreme court rejected the first argument, finding it “clear that La. R.S. 15:440.5 is not facially unconstitutional as it specifically requires |19as a condition of admissibility that ‘the protected person is available to testify.’ ” Id., 05-1981, p. 27, 957 So.2d at 777. The court then examined whether' the victim was “available to testify” for purposes of admitting the videotape into evidence. The court noted that the defense had stipulated to the admissibility of the video and stated that it had no objection. Nor did the defense object on the basis of the victim’s unavailability due to poor memory. The court noted that a witness who is physically present in the courtroom may still be “unavailable” as a witness, and that while the Confrontation Clause guarantees an opportunity for effective cross-examination, it does not guarantee effective cross-examination in whatever way or to what extent the defendant might wish. Id., 05-1981, p. 27-28, 957 So.2d at 757.

Applying these principles, the supreme court found that the victim was not unavailable for purposes of the statute or the defendant’s right of confrontation. The court noted that the victim answered the vast majority of the questions asked, even though she did not recall meeting certain people during the investigation or making an initial videotaped interview, which was introduced by the defense at trial. She identified the defendant as the rapist. She testified about what occurred the morning of the rape and the defendant’s subsequent actions to hide his crime. The court concluded that the victim was able to defend or explain her videotaped statement at trial.

1 Analysis

In light of the above discussion of the applicable law, we must determine whether the admission of M.M.’s Gingerbread video violated the defendant’s Sixth Amendment right of confrontation because M.M. was “unavailable” due to her refusal to answer questions at trial. On the Gingerbread video, M.M. appears reluctant to talk, but she reveals, during the course of questioning, specific details about what the defendant did to her. Her testimony on the video is compelling.

At trial, she testified that what she said on the video was true, but when questioned about what the defendant did to her, M.M. was mostly unwilling to talk about the offense as demonstrated by the following exchange on cross-examination:

Q. Okay. Now my question to you is I want you to tell me what Josh did to you.
A. He was touching on me.
Q. Okay. Where was he touching you?
A. On my whole body.
Q. On your whole body. Okay. Did he touch you in places that would have been inappropriate? Do you know what that word means? Well, just name the places on your body that he touched then. Can you do that?
A. On my legs.
Q. Where else?

(WITNESS NOTANSAVERING)

Q. M.M., did — did Josh touch you anywhere else?

(WITNESS NOT ANSAVERING)

121 After the court tried to make M.M. more comfortable and held a sidebar conference, cross-examination resumed as follows:

Q. Okay, [M.M.], can you think back to the time before you went to live -with your daddy and a time when you said that Josh Vallo did things to you? Are you able to think back to that time?
A. Yes.
Q. Okay. And you said that you he (sic) had touched you. Okay. And you have told people that he touched you. Can you please tell me where on your body he touched you?
A. My bottom.
Q. Do you have a hard time remembering this? Just yes or no.
A. No
Q. Okay. Can you tell me why it’s hard for you to talk about it and answer it? Is there anything I can do to make it easier for you to answer the questions?

(AVITNESS NOTANSAVERING)

Defense counsel then asked some general questions about school, to which M.M. responded with mostly “yes” or “no” answers. AVhen defense counsel again asked if she remembered the things that happened to her, M.M. responded, ‘Tes.” However, when counsel asked M.M. to tell anything about what happened, M.M. would not respond. Thus ended cross-examination.

This case is remarkably similar to State in the Interest of R.C., supra, and distinguishable from Guerra, supra, and Kennedy, supra. Like the victim in State in the Interest of R.C., supra, M.M. answered some questions but largely refused to talk about the incident. This is not a case like Guerra, supra, where the defense did not pursue answers to questions about the offense. Here, ^defense counsel did repeatedly attempt to ask M.M. about what specifically happened to her and made efforts to make M.M. more comfortable in the courtroom surroundings so that she could answer the questions. M.M. stated more than once that she could remember what happened, but she would not answer questions about it, as demonstrated by the testimony recounted above. The victim in Kennedy, supra, as stated in the opinion, answered the “vast majority” of the questions asked of her. That opinion does not indicate that she was asked or refused to answer questions on cross-examination about the offense. Moreover, the state’s cases in both Guerra, supra, and Kennedy, supra, were not solely dependent on the statements of the victims. In both cases, the state presented a plethora of other corroborating evidence. Here, M.M.’s Gingerbread video is the linchpin of the state’s case and practically the sole evidence against the defendant. Perhaps that is why the state endeavored to present the Gingerbread video multiple times to the jury.

Cross-examination cannot be effective when it is not allowed to cover the facts of the alleged offense. Carper, supra; State in the Interest of R.C., supra. The record shows that the defendant was not provided an opportunity for effective cross-examination due to M.M.’s unwillingness to answer most of the questions posed about the alleged offense. Neither the efforts by defense counsel nor the trial court’s attempts to coax the young victim into providing answers about the offense elicited responses from her. Close review of the transcript shows that M.M. chose which questions she would | ^answer and that she chose not to answer questions about the specifics of the offense.

We note that the state argued at trial that M.M.’s answers to questions about the offense were sufficient and that her Gingerbread videotape was her testimony. However, the statutory scheme which allows for the use of a protected person’s prior recorded statement at trial demands that the protected person be “available to testify.” La. R.S. 15:440.5(A)(8). That same statute mandates that “[njothing in this Section shall be construed to prohibit the defendant’s right of confrontation.” The state’s argument would render these provisions essentially meaningless.

As in State in the Interest of R.C., supra, M.M.’s Gingerbread video “lodged a devastating accusation against the defendant.” This is forcefully demonstrated by the sentence of 50 years at hard labor, 25 of which are without benefits, imposed by the trial court on this true first offender, who was 20 years old when the offense occurred. The victim’s refusal to testify about the offense denied him the opportunity to test the truthfulness of her recorded statement through confrontation and cross-examination.

Here, where the Gingerbread video was the linchpin of the state’s case, where the victim was “unavailable” because she would not provide answers, other than the most general, to questions about what the defendant did to her, and where the state failed to comply with the strict statutory requirements for establishing the video as competent evidence and for its admissibility at trial, we are constrained to find that the admission of the Gingerbread video into evidence constituted a violation of the defendant’s I^Sixth Amendment right of confrontation. Accordingly, we must reverse his conviction and sentence and remand for further proceedings.

CONCLUSION

For the reasons set forth in this opinion, the defendant’s conviction and sentence are reversed and vacated. The matter is remanded to the district court for further proceedings.

REVERSED and REMANDED.

DREW, J., concurs with written reasons.

DREW, J., concurring.

_JjThe majority certainly reaches the correct result in this sad case, and I concur, with these brief comments.

In addition to the three unanswered questions outlined by the majority, there was another important one, at the end of cross-examination:

DEFENSE COUNSEL:

Okay. So can you tell us anything that happened to you? Can you tell us that?

WITNESS:

(WITNESS NOT ANSWERING).

Had the witness answered the four salient questions, and any reasonable followup questions relative thereto, I believe this conviction could have been affirmed, as there is imperfect, yet substantial compliance with La. R.S. 15:440.5. The reality of this record, however, leads to the inescapable conclusion that the defendant’s Sixth Amendment right of confrontation has been violated.

Upon retrial, perhaps the state should consider the implementation of La. Ch. C. art. 329, which may lessen the victim’s emotional pain and reduce her fear of having to again testify.

      . Protected person is defined as any person who is a victim of a crime or a witness in a criminal proceeding and who is either under the age of 17 or has a developmental disability as defined in R.S. 28:451.2(12). La. R.S. 15:440.2(C).

      . Upon granting certiorari, the U.S. Supreme Court held that the Eighth Amendment of the U.S. Constitution bars the death penalty for rape of a child where the crime did not result, nor was intended to result, in the death of the victim.

      . Though not specifically required by the statute, a pretrial evidentiary hearing to determine whether the protected person’s videotaped testimony meets the statutory requirements and is admissible into evidence may be the best practice for addressing the requirements under La. R.S. 15:440.4 and 440.5. For example, see State v. Watson, 39,-362 (La.App.2d Cir.4/20/05), 900 So.2d 325.

      . In the interest of judicial economy, such an exhaustive survey will not be repeated here; rather, we refer readers to see the discussion set forth in Carper, supra.

      . But see State ex ret D.G., 2008-0938 (La. App. 4th Cir.5/27/10), 40 So.3d 409, writ denied, 2010-1423 (La.9/3/10), 44 So.3d 707, cert. denied, - U.S. -, 131 S.Ct. 1795, 179 L.Ed.2d 664 (2011), where after consideration in light of Melendez-Diaz, supra, the fourth circuit concluded that the victim, who was at the courthouse during the hearing, was "available” and that the defendant’s confrontation rights were not violated even though the prosecution did not call the victim as a witness. This was juvenile proceeding, not a jury trial.

      . See State v. Nall, 439 So.2d 420 (La.1983); State v. Pearson, 336 So.2d 833 (La.1976); and State v. Ghoram, 328 So.2d 91 (La.1976).

      . See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).

      . The prosecutor stated in opening arguments that he intended to play the Gingerbread video three times during the trial.

      . The majority wisely suggests a pretrial hearing to determine in advance whether there is adequate compliance with La. R.S. 15:440.4. In northwest Louisiana, some jurisdictions refer to this as a "Gingerbread Hearing.”


author: ROBERT A. CHAISSON, Judge.

text:
    David MARTIN v. A-1 HOME APPLIANCE CENTER, INC., the Hanover Insurance Company, Victory Express, LLC., Johnson Delivery Service and Progressive Security Insurance Company.
    No. 12-CA-784.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.
    Rehearing Denied July 24, 2013.

      T. Carey Wicker, III, J. Alex Watkins, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Michael J. Madere, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

| ¡¡This is an appeal by David Martin from a judgment in favor of A-l Home Appliance Center, Inc. (A-l), and its insurer, Hanover Insurance Company, in this delic-tual action arising out of an in-home accident during delivery of a refrigerator. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Martin bought a refrigerator from A-l. The salesman advised him that for an additional $75 fee, A-l would have the refrigerator delivered to his home. In addition to the purchase price, Mr. Martin paid the $75 delivery fee to A-l by check. Some time later, he received a phone call advising him that the refrigerator would be delivered the next day. The next day, he received a phone call in which the caller indicated that it was A-l, and that they were in his area and ready to deliver his refrigerator. Mr. Martin had no knowledge of whether the delivery was to be made by A-l employees, or by an independent delivery service, and he did not ask that of the salesman or the person who called him for the delivery. Mr. Martin assumed that the delivery was being made by A-l employees.

Mr. Martin testified that while the deliverymen were attempting to lift the refrigerator over his kitchen counter, it appeared to him that they were losing control of the refrigerator and that it was tipping over. He further testified that no one asked him to assist with the moving of the refrigerator; however, in order to stop it from falling over, he grabbed one of the sides of the refrigerator. When he did this, the weight of the refrigerator shifted to Mr. Martin and resulted in him tearing the bicep in his right arm. Mr. Martin required surgery and rehabilitation to repair the injury to his arm. Mr. Martin also subsequently experienced problems with his right shoulder that he attributed to the prolonged inability to use his arm. He required two surgeries and extensive rehabilitation to repair that injury. This suit followed.

Mr. Martin subsequently learned that A-l had contracted with Johnson Delivery Service (“Johnson”) to make deliveries of appliances, and it was this company which made the delivery of his refrigerator. Johnson was named as a defendant, and it and its insurer settled Mr. Martin’s claim for $100,000. After a trial against A-l, the jury returned a verdict finding Johnson negligent, but exonerating A-l. The trial judge entered judgment in A-l’s favor, as per the verdict, and subsequently denied Mr. Martin’s motion for a new trial. Mr. Martin now appeals the judgment.

Mr. Martin urges two assignments of error, both of which raise the same issue, i.e., did the trial judge err in not giving a jury instruction as to “apparent authority?” There is no dispute that Johnson was a separate entity from A-l, that it was an independent contractor, and that A-l did not exercise any control over its activities. A-l did not hire Johnson employees, did not pay them and did not supervise them. The Johnson delivery truck had no markings on it and the deliverymen all wore Johnson uniforms. It is also not disputed that the jury was properly instructed as to the law applicable to cases of master and servant arising under La. C.C. art. 2320, and that it properly found in favor of A-l under that law. Mr. Martin argues that the principle of “apparent authority” is a second and distinct |4basis upon which to impose liability on A-l, and that the trial judge erred in failing to give the requested jury charge on this theory of liability.

LAW AND ANALYSIS

A trial court is afforded wide discretion in determining and framing questions to be posed as special jury interrogatories. Schram v. Chaisson, 03-2307 (La.App. 1st Cir.9/17/04), 888 So.2d 247, 251. Louisiana Code of Civil Procedure Article 1792(B) requires that a trial court instruct jurors on the law applicable to the cause submitted to them. In Fisher v. River Oaks, Ltd., 93-677 (La.App. 5 Cir. 3/16/94), 635 So.2d 1209, 1213, unit denied, 94-0932 (La.6/3/94), 637 So.2d 503, the Court stated:

The trial judge is not required to give the precise instructions submitted by either party. Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094 (La.App. 5th Cir.1990). The trial judge must only give instructions which properly reflect the law which is applicable to the facts of a particular case. Jones v. Liberty Mutual, at 1094. Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. Jones v. Liberty Mutual at 1094. The adequacy of jury instructions must be determined in light of the instructions as a whole and the manifest error standard of review may not be ignored unless the instructions were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the law and the facts. Jones v. Liberty Mutual at 1094.

In the case before us, the trial court gave the following jury instructions regarding master/servant liability, vicarious liability and independent contractor liability:

Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the function in which they are employed.
For purposes of determining an employer’s vicarious liability in tort, it is not the actual supervision or control which is actually exercised by the employer that is significant for determining whether the employee is an independent contractor or a mere servant, but whether, from the nature of the relationship, the right to such supervision or control exists.
| {¡Vicarious liability is based on Louisiana Civil Code Article 2320 which provides in pertinent part; again, this is kind of a repeat:
“Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed.”
Under Codal Article 2320, an employer can be held liable for an employee’s tortuous conduct only if the injuring employee is acting within the course and scope of his employment.
The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.
The Louisiana Supreme Court has found the following five factors to be relevant in determining whether the relationship of principal and independent contractor exists:
1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that any contractor may employ non-exclusive means in accomplishing it;
3. The contract calls for specific piece work as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4. There is a specific price for the overall undertaking agreed upon, and;
5. The duration of the work is for a specific time and not subject to termination or discontinuation at the will of either side without a corresponding liability for its breach.
The most important factor to consider in determining whether an employer/employee or independent contractor relationship exists for the purposes of Article 2320 of the Civil Code, is the right of the employer to control the work of the employee. The right of control necessarily encompasses supervision, selection and engagement, payment of wages, and the power to dismiss.

Mr. Martin requested the trial court give, in addition to these charges, an additional jury charge on an “apparent authority” theory of liability. Mr. Martin relies on the case of Independent Fire Insurance Company v. Able Moving and Storage Company, Inc., 94-1982 (La.2/20/95), 650 So.2d 750, 752, for the | fiproposition that when a principal clothes another with the apparent authority to act for it, the principal is liable for the delictual acts of that other where the victim has relied to his detriment on that apparent authority. Thus, the question before us in this case is thus whether Mr. Martin actually “relied” on that alleged authority. Here, there are no facts to establish that Mr. Martin ever “relied” on any representations regarding who the individuals were that would actually deliver the refrigerator, or by whom those individuals were employed. The Court in Able Moving explained that in order for there to be liability under a theory of “apparent authority,” a person must have “changed his position because of [his] belief’ as to the responsible party. Id. at 752.

Mr. Martin testified that he went to the A-l store with his wife to buy a refrigerator. They picked one out and decided to buy it. The salesman informed them that A-l would have the refrigerator delivered to their home for an extra $75 delivery fee. The Martins paid the additional $75 fee to A-l for this service. The Martins made no inquiry as to how or by whom the delivery would be made, and at no point in the transaction did they ever bring up this subject. The object of the Mai'tins’ transaction with A-l was the purchase of a refrigerator. Common considerations in deciding on the purchase of an appliance tend to be the price, the manufacturer, the make and model, the features of the appliance, and the seller’s reputation for sales and service. While the identity of the entity which is ultimately liable for the tortious conduct of the deliverymen might be a consideration in such a purchase, no evidence to that effect was introduced in this case. Unlike the plaintiff in Able Moving, who specifically sought out defendant Bekins for their skill and reputation as movers to accomplish the object of her transaction, i.e., to move her furniture, Mr. Martin introduced no evidence to show that the identity of the actual employer of the deliverymen was such an important factor to him that he |7wouId not have made the purchase had he been informed that an independent contractor would make the delivery. Thus, there is no evidence whatsoever to show any change of position because of any representations made by A-l.

Mr. Martin cites language in the Able Moving case taken from the Restatement (Second) of Agency (1958) to the effect that “change of position” indicates a “payment of money,” and argues that he did in fact pay money to A-l. While that is true, there was no showing that he would not have made the payment had he known the facts of the delivery process, or that this process was even a consideration in the purchase of the appliance from A-l.

In this factual circumstance, we find that the jury charges given by the trial court on master/servant liability, vicarious liability and independent contractor liability were adequate to fairly and reasonably point up the issues in this case and provided correct principles of law for the jury to apply to those issues. We further find that the rule of Able Moving regarding an “apparent authority” theory of liability is inapplicable to this case, and therefore, the trial court did not err in declining to give a separate jury instruction on an “apparent authority” theory of liability.

DECREE

For the foregoing reasons, the judgment based on the verdict of the jury is hereby affirmed.

AFFIRMED


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Richard GEORGE, Appellant.
    No. 48,026-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2013.

      Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

| ,The defendant, Richard George, was charged by bill of information with three counts of distribution of cocaine, violations of LSA-R.S. 40:967(A). Pursuant to a plea agreement, the defendant pled guilty to one count of distribution of cocaine in exchange for the dismissal of the other two counts. The state also agreed not to file a multiple offender bill of information against the defendant and that the sentence imposed would run concurrent to any other sentence. The district court sentenced defendant to serve 27 years’ imprisonment at hard labor, with the first two years to be served without benefit of parole, probation or suspension of sentence. The defendant appeals his sentence. For the following reasons, we affirm.

FACTS

On three occasions in September 2011, deputies of the Webster Parish Sheriffs Office conducted controlled drug buys with the use of a confidential informant (“C.I.”). The deputies equipped the C.I. with audio and video recording equipment. On each occasion, the C.I. contacted defendant and purchased two rocks of crack cocaine for $40. Subsequently, the defendant was arrested on three counts of distribution of cocaine. After reaching a plea agreement with the state, the defendant pled guilty to one count of distribution of cocaine in exchange for the dismissal of the other counts. The state also agreed not to file a multiple offender bill of information against the defendant. There was no agreement as to the defendant’s sentence other than that the sentence imposed would run concurrent to any other sentence being served.

During the sentencing hearing, the trial court noted the facts of the |aoffense as well as the defendant’s lengthy criminal history. The defendant was classified as a sixth-felony offender whose criminal history dated back to 1981 when the defendant was 17 years old. The trial judge meticulously reviewed the defendant’s criminal history for the record. The defendant’s criminal record included convictions for simple burglary, theft, simple battery, simple robbery, possession of cocaine, attempted possession of marijuana with intent to distribute and two counts of possession of Schedule II controlled dangerous substances with intent to distribute. The trial judge noted that defendant’s prior criminal history included crimes against the person. The court also noted that defendant’s parole had been revoked on numerous occasions due to unsatisfactory performance while on supervised release and that defendant was on parole at the time he committed the instant offense.

In reviewing the defendant’s social history, the trial judge noted that defendant completed the 11th grade and was the father of one child. The defendant’s sporadic work history consisted of a few odd jobs and he was last employed in 2010. The court stated that defendant began selling illegal narcotics in 1994 and that during one period of release defendant failed to attend substance abuse counseling because he did not have transportation to the program. The trial court found that a lesser sentence would deprecate the seriousness of the defendant’s crime. The trial judge also noted that the defendant received a substantial benefit as a result of his plea agreement, specifically that he would not be charged as a multiple offender.

The trial court sentenced the defendant to 27 years’ imprisonment at |3hard labor with the first two years to be served without benefit of parole, probation, or suspension of sentence. The sentence was ordered to be served concurrently with any other sentence. The defendant’s motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the sentence is excessive considering the relatively small amount of drugs involved and his acceptance of responsibility for his actions by entering a guilty plea.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital |4status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

The penalty for distribution of cocaine is imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being served without the benefit of parole, probation, or suspension of sentence. In addition, a fine of not more than $50,000 may be imposed. LSA-R.S. 40:967(B).

The defendant’s argument that his sentence is constitutionally excessive is not supported by the record. This sixth-felony offender has continued his criminal behavior despite being afforded numerous opportunities to rehabilitate himself. The defendant has shown that he is unable to curb his criminal behavior, even when faced with further incarceration. Moreover, the defendant received a significant sentencing benefit as a result of his plea agreement. The defendant’s initial sentencing exposure in this instance was a separate sentence for each of the three counts of distribution of cocaine. Further, the defendant was spared an even lengthier sentence because the state agreed not to file a multiple offender bill of information against him.

The defendant’s criminal history is significant, demonstrating his propensity to commit crimes, especially the sale of illegal drugs. The defendant’s argument that this crime involved only a small amount (two |6rocks of crack cocaine) of drugs is not persuasive because the defendant’s illegal drug distribution was not limited to the single drug sale for which he was convicted. The defendant contends he accepted responsibility for his actions by pleading guilty and expressing remorse. However, the defendant’s statement in the presentence investigation report, that selling drugs was the only way he could earn money because he could not get a job, was merely an attempt to excuse his criminal behavior. His statement neither shows remorse nor a willingness to accept responsibility for his actions.

In considering the offense committed, the defendant’s criminal history, and his benefit from the plea agreement, we conclude the trial court did not abuse its discretion in imposing this 27-year sentence, which is not disproportionate to the severity of the offense. Thus, we cannot say the sentence imposed for this defendant is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Roland Lee LEWIS v. PROLINE SYSTEMS, INC., et al.
    No. 13-88.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.
    Rehearing Denied Aug. 7, 2013.

      R. Brent Cueria, Cueria Law Firm, LLC, New Orleans, LA, for Plaintiff/Appellant, Roland Lee Lewis.
    Kraig Thomas Strenge, Lafayette, LA, for Defendants/Appellees Guy J. Wagues-pack, Proline Systems, Inc., and Lafayette Insurance Company.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Ijn this personal injury case, Plaintiff, Roland Lee Lewis, appeals the jury verdict in favor of Defendants, Guy J. Wag-uespack, Proline Systems, Inc. (Proline), and Lafayette Insurance Company (Lafayette Insurance), finding that Mr. Wagues-pack’s negligence was not the proximate cause of Mr. Lewis’ injuries. Mr. Lewis also appeals the denial of his motion for judgment notwithstanding the verdict (JNOV). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a suit for personal injuries allegedly sustained by Mr. Lewis in a three-vehicle accident on the morning of April 28, 2007, on Interstate 10 at the U.S. Highway 165 overpass in Jefferson Davis Parish, Louisiana. Traffic that morning was slow-moving due to the left lane of travel being closed for road construction.

The three vehicles were westbound in the right lane of travel. The lead vehicle was driven by Plaintiff, Mr. Lewis, the second by Defendant, Mr. Waguespack, and the third by Chad Sampy. The vehicle being driven by Mr. Lewis, an eighteen-wheeler with a flatbed trailer, was struck from behind by the vehicle being driven by Mr. Waguespack, a crew-cab pickup truck pulling a utility trailer; this was the first impact. The vehicle being driven by Mr. Waguespack was then struck from behind by the vehicle being driven by Mr. Sampy, an eighteen-wheeler with enclosed trailer, which caused a second impact between Mr. Waguespack’s vehicle and Mr. Lewis’ vehicle.

Mr. Lewis filed a petition for damages against Mr. Waguespack, Proline, Mr. Waguespack’s employer for whom he was driving within the course and scope |aof his employment, and Proline’s insurer, Lafayette Insurance. Following a five-day jury trial in February 2012, the jury returned a verdict in favor of Mr. Waguespack, finding that his negligence was not the proximate cause of the injuries suffered by Mr. Lewis. A judgment was signed in accordance with the jury’s verdict. Mr. Lewis filed a motion for JNOV or, in the alternative, for a new trial, both of which were denied. In his appeal, Mr. Lewis asserts three assignments of error: (1) the jury erred in failing to find causation; (2) the jury erred in failing to award damages; and, (3) the trial judge erred in denying his JNOV.

LAW AND DISCUSSION

Standard of Review as to Proximate Cause

The determination of whether Mr. Waguespack’s conduct was the proximate cause of Mr. Lewis’ injuries is a factual determination which is subject to the manifest error standard of appellate review. Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557. Consequently, a court of appeal may not set aside a jury’s finding unless it is manifestly erroneous or clearly wrong. Greer v. State ex rel. Dep’t of Transp. & Dev., 06-417 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, writ denied, 06-2650 (La.1/8/07), 948 So.2d 128.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

Id. at 145.

13Burden of Proof

Louisiana law subjects negligence claims to the duty-risk analysis, which requires proof of a breach of duty that was the cause-in-fact of the plaintiffs injuries, resulting in plaintiffs damages. See Jones v. Centerpoint Energy Entex, 11-02 (La.App. 3 Cir. 5/25/11), 66 So.3d 539, writ denied, 11-1964 (La.11/14/11), 75 So.3d 946. A plaintiffs failure to prove any of the required elements will result in a finding of no liability. Id.

Pursuant to the duty-risk analysis, Mr. Lewis bore the burden of proving: (1) that Mr. Waguespack owed him a duty; (2) that Mr. Waguespack breached that duty; (3) that Mr. Waguespack’s conduct was a cause-in-fact of Mr. Lewis’ injuries; (4) that Mr. Waguespack’s substandard conduct was a legal cause of Mr. Lewis’ injuries; and (5) that Mr. Lewis suffered actual damages. Id.

Causation

The Jury Verdict Form asked the jury whether Mr. Waguespack was negligent in causing the accident. The jury answered in the affirmative. The next question, however, asked the jury whether “any negligence on the part of [Mr. Wag-uespack] was a proximate cause of the damages claimed herein?” The jury answered in the negative. Deliberations ended there, and the jury returned with a verdict in favor of Mr. Waguespack, Pro-line, and Lafayette Insurance.

Mr. Lewis argues that the jury erroneously held that causation had not been proven. Mr. Waguespack counters, asserting that “the credibility of [Mr.] Lewis was seriously at issue, and the jury’s verdict finding that he was not entitled to any damages was based solely upon credibility determinations!.]” We must decide whether the jury’s finding of no causation is supported by a reasonable factual basis in the record and, if not, whether the jury was clearly wrong or manifestly erroneous.

^Generally, the duty-risk analysis would require Mr. Lewis to prove the cause-in-fact element with a “but for” examination, which poses the question of whether or not Mr. Lewis’ injury would have occurred “but for” Mr. Waguespack’s substandard conduct. Id. However, “[w]here there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident.” Id. at 548 (quoting Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p. 8 (La.3/23/01), 782 So.2d 606, 611).

In the present matter, two rear-end collisions occurred, and the intensity of each, or lack thereof, was a contentious issue. Mr. Lewis testified that there was only a slight difference, if any, between the forcefulness of the first impact and that of the second impact. He claimed that he felt pain in his lower back and neck immediately after the first impact.

Mr. Waguespack testified that the first impact was so slight that, initially, he was not certain that his pickup truck had even made contact with the rear of the flatbed trailer attached to Mr. Lewis’ eighteen-wheeler. He rated the first impact as a three on a scale of one to ten and analogized the first impact to that of “a parking lot bump, like if I was backing out of a parking lot spot and bumped into somebody in a parking lot.” Mr. Waguespack described the second impact, which occurred when the eighteen-wheeler with enclosed trailer driven by Mr. Sampy struck Mr. Waguespack’s pickup truck with attached utility trailer, as considerably more forceful. According to Mr. Waguespack, immediately after both impacts, Mr. Lewis appeared uninjured and did not report being in pain to him or to anyone at the accident scene.

There were no testimonial disputes that the first impact resulted in Mr. Wagues-pack’s vehicle coming to rest against the bumper of Mr. Lewis’ | ¿vehicle. The jury had the benefit of photographic evidence depicting the accident scene after the second impact. The photos show that the second impact separated Mr. Wagues-pack’s pickup truck from the utility trailer being pulled behind it. The truck turned one-hundred-and-eighty-degrees and came to rest pointing in the opposite direction, touching the driver’s side of the flatbed trailer attached to Mr. Lewis’ vehicle. Mr. Waguespack’s utility trailer was thrown up against the side rail of the overpass where the wrecks occurred. The utility trailer had a 2,000-pound pump secured to it with bolts. The second impact also caused the bolts to sever and the pump to be thrown completely off the utility trailer.

Mr. Sampy admitted that his vehicle, an eighteen-wheeler with enclosed trailer, was traveling nearly thirty-five miles per hour when the impact with Mr. Waguespack’s pickup truck occurred. Mr. Sampy stated that he saw Mr. Waguespack’s truck was pinched up against Mr. Lewis’ vehicle. But, he was uncertain whether he was 200 feet away or eighty feet away when he made that observation.

Louisiana State Trooper Clifton J. Mire testified that he arrived at the accident scene and ascertained through his investigation that two impacts occurred. Only property damages were noted in his accident report. According to Trooper Mire, Mr. Lewis neither reported injury nor exhibited being injured.

Pertinent to the issue of causation, Mr. Lewis also elicited testimony at trial from Oscar F. Griffith, III, Ph.D., who was accepted as an expert in physics with an expertise in accident reconstruction analysis. According to Dr. Griffith, the impact from Mr. Waguespack’s pickup truck with a flatbed trailer to the rear of Mr. Lewis’ eighteen wheeler with a flatbed trailer produced major forward acceleration. Dr. Griffith described the second impact as minor compared to the contact made by the first impact. On cross examination, however, it was revealed ¡(¡that Dr. Griffith’s determination of the first impact’s force entailed the estimation that Mr. Waguespack was traveling thirty-five miles per hour. When asked whether he had made any estimation of the speed of Mr. Sampy’s eighteen-wheeler at the time it struck Mr. Waguespack’s vehicle, Dr. Griffith admitted that he had not.

Where there are different theories presented to the fact finder for their consideration, the fact finder’s credibility determination between the two plausible theories shall not be disturbed on appeal. Cheairs v. State ex rel. Department of Transp. and Development, 03-0680 (La.12/3/03), 861 So.2d 536, 546. Credibility determinations, including evaluating expert witness testimony, are for the trier of fact. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421.

Detraz, 950 So.2d at 564. “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.” Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 12 (La.4/3/02), 816 So.2d 270, 279.

After reviewing the record in this case, it is apparent that Mr. Lewis’ version of the events of the April 28, 2007 accident vacillated between his recollection that the impacts were nearly simultaneous and, thus, equally forceful, and his account that the first impact was clearly more significant and injurious. It is plausible that the jury considered the second impact as the superceding cause of Mr. Lewis’ injuries, assuming they felt Mr. Lewis was even injured. “[A] superceding cause is technically the last act of negligence and is usually determined to be the sole cause of the injury.” Johnson v. Morehouse Gen. Hosp., 10-387, p. 44 (La.5/10/11), 63 So.3d 87,117.

The record is replete with testimony and evidence in support of the jury’s findings and its reasonable determination of the facts. Though Mr. Lewis presented the testimony of doctors in support of his allegations of injury, the jury |7was clearly unimpressed and found his testimony self-serving and not credible. The testimonies of the three men involved in the two collisions, Mr. Lewis, Mr. Waguespack, and Mr. Sampy, conflict to such a degree that we cannot say the jury clearly erred in failing to find that Mr. Waguespack caused Mr. Lewis’ injuries. Also noteworthy are the inconsistencies in Mr. Lewis’ testimony relative to both his medical history and his work history, all of which was presented to the jury during trial.

The jury’s determination that Mr. Wag-uespack acted negligently, but did not cause Mr. Lewis’ injuries, is entitled to great deference on appeal. Weighing the entirety of the evidence, we conclude that the jury was not clearly wrong or manifestly erroneous in finding that Mr. Wag-uespack’s negligence was not the proximate cause of Mr. Lewis’ injuries. Having found no merit to his first assignment of error relative to causation, Mr. Lewis’ second assignment of error relative to damages is rendered moot.

Motion for Judgment Notwithstanding the Verdict

Louisiana Code of Civil Procedure Article 1811(F) provides that “[t]he motion for a [JNOV] may be granted on the issue of liability or on the issue of damages or on both issues.” “The standard to be applied by the appellate courts in reviewing the grant or the denial of a JNOV is whether the trial court’s findings in rendering the JNOV were manifestly erroneous.” Palacios v. La. & Delta R.R., Inc., 05-1168, p. 4 (La.App. 3 Cir. 5/3/06), 930 So.2d 1086, 1090, writ denied, 06-1909 (La.11/3/06), 940 So.2d 665 (quoting Broussard v. Stack, 95-2508, p. 15 (La.App. 1 Cir. 9/27/96), 680 So.2d 771, 780).

Mr. Lewis contends that the trial court committed error in denying his JNOV. In ruling on Mr. Lewis’ JNOV, the trial court was required to determine whether the evidence viewed in the light most favorable to Mr. Lewis pointed so |Rstrongly and overwhelmingly in his favor that reasonable persons could not arrive at a contrary verdict on the issue of whether Mr. Waguespack caused Mr. Lewis’ injuries. See Guillory v. Saucier, 11-745 (La.App. 3 Cir. 12/7/11), 79 So.3d 1188, writs denied, 12-75, 12-81 (La.3/9/12), 84 So.3d 554, 555. Given the evidence herein, there was a reasonable basis for the jury’s finding, and we are not convinced that reasonable persons could not arrive at any verdict other than the one in favor of Mr. Waguespack. We further recognize that the trier of fact is in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony. Robin v. Allstate Ins. Co., 03-1009, 03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). Thus, we find that the trial court’s denial of the JNOV was not manifestly erroneous.

DECREE

The judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed against Plaintiff/Appellant, Roland Lee Lewis.

AFFIRMED.

      . Mr. Sampy, his employer, and its liability insurer were also named as defendants; however, Mr. Lewis’ claims against these parties were settled prior to the jury trial at issue herein. Thus, this appeal only involves Mr. Lewis' claims against Mr. Waguespack.

      . The collision wherein Mr. Waguespack rear — ended Mr. Lewis' vehicle — -the first impact — was the incident at issue before the jury and which is presently before this court.


text:
    James W. DAVIS, Plaintiff-Appellee v. June G. BRENT, Nell G. Thomas and Raymond Lamar, Jr., Defendant-Appellant.
    No. 48,088-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 19, 2013.

      Josiah W. Seibert, III, Vidalia, LA, for Appellant.
    William B. Watson, William M. Street, Monroe, LA, for Appellee.
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   WILLIAMS, J.

|, The defendants, June Brent, Nell Thomas and Raymond Lamar, Jr., appeal a judgment declaring that a 1949 deed granted them a servitude of passage over a 50-foot driveway located on land owned by the plaintiff, James Davis. The court found that the language of the deed did not convey fee ownership. For the following reasons, we affirm.

FACTS

This case involves immovable property known as Southwood Plantation (“South-wood”), which is located in Tensas Parish. In 1949, the owner of the land, A.B. Coit, sold a 68-acre parcel of land, known as the “Fowler Tract,” to Ernest and Jewel Garland. Following the description of the Fowler Tract, the deed contained the following language:

ALSO a fifty foot driveway beginning 50 feet north of the SW corner of the above described tract and running thence south along the east line of Section 12 to a certain bar pit thence around the bar pit to a ramp at the foot of the levee.

The driveway abuts a portion of the Fowler tract but is located on the Southwood property. In 1950, Coit conveyed South-wood by deed to former Governor Jimmie Davis and his wife, Alvern Davis. The property description in the deed conveyed the entire Southwood tract as it existed before the sale to the Garlands and then excepted the 68-acre Fowler Tract from the sale. The Davis deed further stated that the conveyance was “subject to” rights of way for the public levee, highway and utilities, a mineral lease and a “Fifty foot right-of-way conveyed by A.B. Coit to Ernest Garland, as appears by deed dated June 8,1949.”

In 1965, James Davis acquired ownership of Southwood by donation from his parents, Jimmie and Alvern Davis. Attached to the 1965 donation | ¿was a sketch which had been prepared in 1950 by Henry Messinger, a land surveyor. The sketch was altered by a typed heading “Attachment A” and by the handwritten inclusion of two tracts of land. The sketch depicts the approximate location of the driveway. June Brent, Nell Thomas and Raymond Lamar, Jr. acquired their respective interests in the Fowler Tract through various conveyances from their predecessor in title, Ernest Garland.

In November 2009, the plaintiff, James Davis, filed a petition for declaratory judgment against the defendants, June Brent, Nell Thomas and Raymond Lamar, Jr., alleging that the 1949 Garland deed had conveyed a right of way over, and not ownership of, the strip of land used as a driveway. The plaintiff requested that the court recognize his fee ownership of the 50-foot driveway. The defendants filed an answer asserting that they are the owners of the driveway. At trial, the parties testified that they all used the driveway and took action to maintain the roadway.

Subsequently, the trial court issued written reasons for judgment finding that the language of the 1949 deed was ambiguous regarding the conveyance of the driveway, such that the 1950 Davis deed needed to be considered to determine the intent of the parties. The trial court rendered judgment declaring that the 1949 deed granted Garland and his successors, the defendants, a servitude of passage over the 50-foot driveway. The defendants appeal the judgment. While this appeal was pending, James Davis died and the executor of his estate was substituted as party plaintiff.

DISCUSSION

In two assignments of error, the defendants contend the trial court |serred in finding that the language of the 1949 deed was ambiguous regarding the property right conveyed. Defendants argue that the wording of the 1949 deed indicates the parties intended a transfer of fee ownership because they did not use the term “right of way” and the word “driveway” expressed only the planned use of the strip of land.

The court is bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when they are clear, explicit and do not lead to absurd consequences. LSA-C.C. art.2045. In the interpretation of deeds, the intentions of the parties must be gathered from an inspection of the instrument itself if their intent can be thus ascertained. Williams v. Hawthorne, 601 So.2d 672 (La.App. 2d Cir.1992). The general rule is that if an instrument is so ambiguous as to leave doubt about the parties’ intent, the court may resort to extrinsic evidence as an aid in construction. Williams, supra; City of Eunice v. Sunland Properties, Inc., 597 So.2d 1198 (La.App. 3rd Cir.1992). In deciding whether a fee simple title to land has been conveyed or a servitude thereupon has been granted by a deed, the intention of the parties must be determined from the stipulations in the entire instrument, giving effect to all of the provisions therein contained. Rock Island, A. & L. Railroad Co. v. Gournay, 205 La. 125, 17 So.2d 8 (La.1943); Sun Oil Co. v. Stout, 46 So.2d 151 (La.App. 2d Cir.1950).

In the present case, although the defendants complain in their brief that the trial court did not mention the 1949 deed’s mineral reservation in its written reasons, we note that defendants failed to raise the significance of |4the mineral reservation language in their pretrial or post-trial memoranda to the trial court. In any event, the defendants now argue in brief that the placement of the mineral reservation after the reference to the driveway indicates a fee title conveyance because such a reservation is not necessary when granting a servitude. However, since the only “tract of land” conveyed in the 1949 deed is the 68-acre Fowler Tract, both the mineral reservation and a driveway servitude could be understood as applying to the Fowler Tract.

The defendants assert that the 1949 deed contains a grant of land that was intended to be used as a road. Contrary to the defendants’ assertion, the deed language does not convey a “parcel” or “strip” of land to be used as a road, but expressly grants a “fifty foot driveway” that runs from a section line and then “around the bar pit to a ramp” on the levee. Based on this provision, the trial court could reasonably find that the language is a limited grant of a driveway, or means of passage, across the Southwood land and is not simply an expression of the parties’ intended use of the land.

In addition, the deed does not specifically describe where the driveway ends. As pointed out by the trial court, such an imprecise description is more commonly used in granting a servitude rather than conveying ownership. See City of Eunice, supra. Further, we agree with the trial court that the deed language, which requires reference to the description of the Fowler Tract to determine where the driveway begins, is an indication that the transfer of the driveway granted a servitude of passage on the Southwood land for the benefit of the Fowler Tract.

| .¡Based upon our review of the deed language and consideration of the applicable law, we cannot say the trial court erred in concluding that the transfer of a 50-foot driveway in the 1949 deed granted a servitude of passage, or right of way, to the defendants, the successors in title to Garland. Thus, the assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, June Brent, Nell Thomas and Raymond Lamar, Jr.

AFFIRMED.