author: LILJEBERG, J.

text:
    STATE of Louisiana v. Ali BATISTE
    NO. 16-KA-321
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Orenthal J. Jasmin
    COUNSEL FOR DEFENDANT/APPELLANT, ALI BATISTE, Peter “Q” John
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

| defendant appeals his conviction and sentence for manslaughter. For the following reasons, we affirm. We also remand to the trial court for correction of an error patent.

FACTS AND PROCEDURAL HISTORY

Defendant, Ali Batiste, was charged by-indictment with the second degree murder of Kyrian Gray, a violation of La. R.S. 14:80.1. Defendant pleaded not guilty. After waiving his right to a trial by jury, a bench trial was held. The trial court found defendant guilty of the lesser included offense of manslaughter, a violation of La. R.S. 14:31. Defendant was sentenced to ten years imprisonment in the Department of Corrections.

At trial, Sergeant Michelle Piearson of the St. John Sheriffs Office testified that on May 25, 2013, she and Deputy Steve Dailey were dispatched to 2509 Amy Drive in LaPlace, Louisiana, in reference to a noise complaint. At the location, a graduation party was coming to an end, so Sergeant Piearson and Deputy Dailey remained in the area to ensure the safe departure of the party goers. Approximately 20 to 30 minutes after their arrival, they observed a group of individuals running toward them, stating that there had been a shooting. Sergeant Pierson had not heard any gunshots at the time she was approached by the group, but shortly thereafter she heard “one pop” and then “a series of 2, 3 more pops.” The officers went to the scene of the shooting where they discovered a black male, later identified as Kyrian Gray, laying face up near a fence.

Julius Narcisse, who is defendant’s cousin, testified that on the night of May 25, 2013, he was with Shyheim Gregoire at a party which was broken up by the police. Julius testified that when he left the party, he waited with Shyheim and defendant for Aaron Gregoire and Nathaniel Gregoire to pick them up. When they Larrived, Aaron was driving and Nathaniel was in the front passenger seat. Defendant got in the backseat behind Aaron, Shyheim got in the backseat behind Nathaniel, and Julius sat in the rear middle seat.

The vehicle was in stop-and-go traffic, moving slowly due to the number of vehicles leaving the party. According to Julius, while they were stopped in the street due to traffic, the victim “crouched down” and “ran” up to their vehicle. The victim pulled on the rear passenger-side door, but was unable to open it because Shyheim had locked it. After pulling on the door handle, Julius testified that the victim stood up and reached down to his side. Julius stated that he felt “threatened” and “afraid,” so he ducked down, While his head was down, he heard gunshots coming from both inside and outside of the vehicle. Julius stated that defendant fired the gunshot that he heard from inside the vehicle, which Julius believed saved their lives. After the shooting, they fled the scene.

Julius also testified that a few months prior to this shooting, he was involved in an altercation with the victim; however, defendant was unaware of the altercation. Julius also stated that he had previously seen the victim in a rap video with a gun and acknowledged that the victim is a known member of the “RNIC” gang. The victim’s juvenile records were also admitted into evidence, establishing that approximately five or six months prior to the instant shooting, the victim entered a guilty plea to disturbing the peace by fighting, and the court noted there was a weapon involved.

Brentwood Howard, a bystander and friend of the victim, testified that from his location “up the street” he saw the victim pull at the door handle of the vehicle while standing by the passenger side door. Brentwood testified that he knew the victim very well, was with the victim at the party on the night he was murdered, and confirmed that the victim did not have a weapon on him that evening.

IsDale Young, who is also defendant’s cousin, testified that he was with defendant at a party in 2012 when he was involved in an altercation with the victim. Dale stated that during the altercation the victim punched him, which resulted in a chipped tooth and a cut eye.

Defendant testified he and the victim knew one another from playing recreational football. He testified that they were on good terms until the fight with his cousin, Dale. Defendant confirmed that before the shooting incident on May 25, 2013, he had never gotten into a fight with the victim.

Defendant recalled that on the night of the shooting, while leaving the graduation party, he and the victim made eye contact but did not exchange words, although he felt “uneasy” believing the victim was “up to something.” After meeting up with Shy-heim and Julius and entering Aaron’s car, defendant testified that the victim ran up to the rear passenger side door of the car and attempted to “force his way in.” According to defendant, Shyheim held the door handle while the victim appeared to “attack” Shyheim through the partially opened window. Defendant explained that when Shyheim finally managed to lock the door, the victim reached for his waist and grabbed a gun. Defendant fired one shot at the victim because he feared that he or one of his friends was going to be killed by the victim. Defendant further stated that he heard three additional gunshots after he fired his weapon and while the victim was running away from the car. Lastly, defendant testified that he had seen the victim on prior occasions in photographs as well as rap videos with a gun.

On the day after the shooting, Detective Maurice Rodriguez of the St. John’s Sheriffs Office interviewed occupants of the vehicle, including Aaron Gregoire, Nathaniel Gregoire, Shyheim Gregoire, and Julius Narcisse. Detective Rodriguez noted that their statements were consistent in that they indicated the victim approached their vehicle and pulled on the rear passenger-side door handle. |4Shyheim explained to Detective Rodriguez that he kept his hand on the door handle to prevent it from opening and that defendant then shot at the victim one time before they fled the scene. Detective Rodriguez noted that in their statements, none of the passengers indicated that there was “a threat or imminent threat towards the vehicle” or themselves, or that “they were scared in any way.” All of their statements further confirmed that defendant was the person who shot the victim while defendant was seated in the backseat behind the driver.

Three bystanders, Chad Wilson, Tevon Wilson, and Brentwood Howard, also provided statements indicating that the victim approached the vehicle in a non-threatening manner just prior to being shot. According to Detective Rodriguez, Chad indicated that defendant and the victim were seen at one point standing outside the vehicle and there appeared to be a confrontation, or a near confrontation, prior to defendant entering the vehicle. Chad further told Detective Rodriguez that the victim punched the “front passenger.” Meanwhile, Brentwood stated that there may have been “tension” between defendant and the victim based on the rivalry between the cities they live in.

LAW AND DISCUSSION

On appeal, defendant contends that the evidence was insufficient to support his conviction of manslaughter. Defendant does not contest that he fired his gun at the victim and caused his death. However, he asserts that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Defendant contends the evidence established a prior history of violence by the victim, that the victim initiated the confrontation by aggressively approaching the vehicle defendant was in and forcefully pulling at the door handle in an attempt to enter the vehicle, and that the victim was observed with a firearm, proving defendant had a reasonable belief that his life and the lives of the occupants in the vehicle were in imminent danger of death or serious harm.

|sThe State responds that it presented evidence through eyewitness testimony, that when viewed together, proved defendant was the aggressor, and as a result, not entitled to a claim of self-defense.

Defendant’s theory of self-defense was presented to the trial judge throughout the trial. The trial judge rejected defendant’s theory that the homicide was justified and found defendant guilty of the lesser included offense of manslaughter. The trial judge noted that she considered defendant’s theory of self-defense, but she rejected it after considering the evidence presented. She found that the evidence did not establish that defendant’s belief that he was in imminent danger of losing his life or sustaining great bodily harm was reasonable. Thus, the trial judge stated she considered the lesser included offenses available and found the evidence supported, beyond a reasonable doubt, a conviction for manslaughter under La. R.S. 14:31(A)(2).

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L,Ed.2d 560 (1979), is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Smith, 12-247 (La.App. 5 Cir. 12/11/12), 106 So,3d 1048, writ denied, 13-0494 (La. 7/31/13), 118 So.3d 1120. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Smith, 12-247 at 6, 106 So.3d at 1053; State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

It is not the function of the appellate court to assess credibility or reweigh the evidence; rather, a reviewing court must consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a | ^reasonable doubt. State v. Williams, 98-1146, p. 10 (La.App, 5 Cir. 6/1/99), 738 So.2d 640, 648, writ denied, 99-1984 (La. 1/7/00), 752 So.2d 176; State v. Juluke, 98-0341 (La. 1/8/99), 725 So.2d 1291. When the trier of fact is faced with conflicting testimony, the weight of the testimony lays solely with the jury or judge, who may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 05-59 (La.App, 5 Cir. 5/31/05), 904 So.2d 830, 833; State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La. 2/13/04), 867 So.2d 688.

A reviewing court is not required to determine whether another possible hypothesis of innocence suggested by a defendant offers an exculpatory explanation of events. State v. Mitchell, 09-996, p. 8 (La.App. 5 Cir. 5/25/10), 40 So.3d 1122, 1127, writ denied, 10-1557 (La. 10/21/11), 73 So.3d 370. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. Id.

In the instant case, defendant does not deny that he shot and killed the victim but rather contends he acted in self-defense. When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Reed, 11-507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-644 (La. 9/14/12), 97 So.3d 1014. The relevant inquiry on appeal is whether a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. State v. Cassard, 01-931, p. 8 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071, 1076, writ denied, 02-0917 (La. 12/19/02), 833 So.2d 327.

A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving |7great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(1). The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; State v. Sparkman, 13-640 (La.App. 5 Cir. 2/12/14), 136 So.3d 98, 106, writ denied, 14-0477 (La. 11/26/14), 152 So.3d 897.

The determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied, 12-2024 (La. 1/25/13), 105 So.3d 713. The fact-finder determines whether the State negated self-defense beyond a reasonable doubt. State v. Griffin, 14-450, p. 6 (La.App. 5 Cir. 12/16/14), 167 So.3d 31, 38-39, writ denied, 15-0148 (La. 11/20/15), 180 So.3d 315.

In the instant case, the evidence established that on the day of the murder, defendant and his friends, Julius and Shy-heim, were leaving a graduation party which the victim had also attended. At one point, glances were exchanged among defendant and the victim, but no words were spoken. Outside of the party, Aaron and Nathaniel arrived to pick up defendant, Julius, and Shyheim. The testimony is consistent in that once the occupants were inside the vehicle, the victim approached the rear passenger-side door where Shy-heim was seated and began to pull on the door handle. The manner in which the victim approached the vehicle, as well as the force exerted by the victim when pulling on the door handle varies between the witnesses; however, it was established that the victim was unable to gain entry into the locked car. Detective Rodriguez testified that after obtaining statements from the occupants of the vehicle, none of the passengers indicated' there was “a threat or imminent threat towards the vehicle” or its occupants or that “they were seared in any way.”

|RAt trial, defendant explained that he shot the victim after he pulled at the passenger-side door handle, because he saw the victim reach toward his waist and grab a gun. He testified that he shot once at the victim through the passenger side window because he feared for his life. However, the only testimony that supports defendant’s theory of self-defense is his own self-serving statement and that of his cousin, Julius, who changed portions of his testimony on the day of trial. It was not until trial that Julius testified that he felt “threatened” and “afraid” for his life when the victim approached the vehicle. Additionally, other than defendant, the only other passenger in the vehicle who asserted he saw the victim with a gun was Julius. Shyheim indicated that he did not actually see a gun. Rather, Shyheim stated that although he did not see the victim with a gun, “how his hands was, it looked he had a gun in it. Like it was on his side. But his shirt was down.”

Notably, however, even if a gun was observed on the victim, there was no testimony that the victim brandished the gun and pointed it at the vehicle’s occupants. Furthermore, Brentwood Howard testified that he was with the victim on the night of the party and the victim was not armed. No firearms were found on the victim or at the scene of the shooting. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Macon, 06-481 (La. 6/1/07), 967 So.2d 1280; State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1062, 1066.

Although evidence was presented regarding the victim’s history of violence, including a prior altercation with Julius (which defendant was unaware of) as well as with defendant’s cousin Dale, defendant himself had never been in an altercation with the victim. Further, defendant admitted that he fled the scene after the shooting. It can be argued that defendant’s flight from the scene after the | gincident is inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 191 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 1233 (La. 1993). A defendant’s flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Cazenave, 00-183 (La.App. 6 Cir. 10/31/00), 772 So.2d 864, 860, writ denied, 00-3297 (La. 10/26/01), 799 So.2d 1151.

After listening to the testimony and considering the evidence, the trial judge did not believe defendant committed the homicide in self-defense. The trial judge determined that the evidence did not support the conclusion that defendant could reasonably have believed his life to be in imminent danger. The fact-finder must make the ultimate decision in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. State v. Hyman, 09-409 (La.App. 5 Cir. 2/9/10), 33 So.3d 271, 278, writ denied, 10-0548 (La. 10/1/10), 45 So.3d 1094. The State adequately negated the defense of justification beyond a reasonable doubt in this case. Accordingly, we find that a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the homicide of the victim was not committed in self-defense. This assignment of error is without merit.

ERRORS PATENT

The record was reviewed for error patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors requiring corrective action were noted.

The State of Louisiana Uniform Commitment Order contains the incorrect offense date. It reflects the date of the offense as May 26, 2013, but the record indicates that the offense was committed on May 26, 2013.

1 mThis Court has previously remanded for correction of the uniform commitment order in its error patent review. See State v. Lyons, 13-664, p. 9 (La.App. 6 Cir. 1/31/14), 134 So.3d 36, writ denied, 14-0481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long, 12-184, pp. 10-11 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142). Accordingly, we remand this matter and order that the Uniform Commitment Order be corrected to reflect the correct date of the offense. We also order the Clerk of Court for the 40th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ legal department. See Long, 12-184 at 10-11, 106 So.3d at 1142.

Additionally, although the commitment reflects that defendant was given a proper advisal of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8, the transcript indicates that the trial court failed to advise defendant of the post-conviction relief period. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied, — U.S. —, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012); State v. Neely, 08-15707 p. 9 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272.

^^Accordingly, defendant is hereby informed that no application for post-conviction relief, including an application seeking an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court for correction of the Uniform Commitment Order. The Clerk of Court for the 40th Judicial District Court is ordered to transmit the original of the corrected Uniform Commitment Order to the Department of Corrections and to the officer in charge of the institution to which defendant has been sentenced.

AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER

      . Prior to commencement of trial, defendant stated that he was changing his plea "to an affirmative defense of self defense by reason of injustification [sic] ... under Revised Statute 14[;]20.”

      . Notably, defendant admitted that the altercation between the victim and his cousin did not involve a firearm.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Tavis C. JOSEPH
    NO. 16-KA-349
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, TAVIS C. JOSEPH, Keven V. Boshea
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
   CHEHARDY, C.J.

hOn appeal, defendant challenges his second degree murder convictions. For the following reasons, we affirm.

Procedural History

On February 20, 2014, the Jefferson Parish grand jury indicted defendant, Ta-vis C. Joseph, and two co-defendants for the second degree murders of Nikiayh Westerfield and Dave Harrison, violations of La. R.S. 14:3o.!. On June 25, 2015, the trial court heard and denied defendant’s motion in limine to prohibit the introduction of “other crimes” evidence. Defendant sought review of that ruling in a timely-filed writ application, which this Court denied.

On July 27, 2015, trial commenced before a twelve-person jury, which, after three days of testimony, found defendant guilty as charged on both counts. On August 12, 2015, defendant filed a motion for a new trial, motion for post-verdict judgment of acquittal, and motion for appeal. On January 8,2016, newly enrolled counsel filed a supplemental motion for a new trial.

On February 1, 2016, the trial court heard and denied defendant’s original motion and supplemental motion for new trial. On February 3, 2016, the trial court heard and denied defendant’s motion for post-verdict judgment of acquittal. Immediately thereafter, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on each count, to run concurrently. The trial judge thereafter granted defendant’s motion for appeal. The instant appeal follows.

j^Facts

At 11:56 p.m. on August 13, 2013, 9-1-1 operators received reports of gunshots fired in the 4000 block of Paige Jeannette in the Woodmere Subdivision of Harvey, Louisiana. When Jefferson Parish Sheriffs Office (“JPSO”) deputies responded, they found Dave Harrison and Nikiayh Wester-field sitting in a Chevrolet Blazer on the street. Detective Gary Barteet, who was the lead investigator, recalled that, when he arrived, he observed Mr. Westerfield in the driver’s seat and Mr. Harrison in the passenger backseat; both men had been shot. Autopsy confirmed that the two men died from multiple gunshot wounds.

Detective Barteet testified that, at the crime scene, JPSO recovered evidence from the ground near the vehicle, including shell casings, a red Nike sandal, and a cell phone. From inside the vehicle, JPSO recovered three phones, a clear bag containing marijuana, a wooden rosary, and two firearms — a Kimber .40 caliber semiautomatic firearm with an aftermarket extended magazine and a Colt .38 caliber revolver. The Kimber was found on the “center hump between the driver’s seat and the passenger’s seat” and the Colt was found on the “floorboard behind the driver’s seat.”

Furthermore, JPSO found “apparent blood transfer” on the front passenger seat of the victims’ vehicle, which indicated that there was a third person in the car. Detective Barteet testified that, because there was a bag of marijuana in the hand of one of the victims, officers thought the incident was a “drug deal gone bad” or a “drug rip.”

Detective Barteet learned, almost immediately after the shooting was reported, that a man, later identified as Jeremy Coleman, arrived at West Jefferson Hospital with a gunshot wound. The hospital’s security camera footage revealed [¡¡that Mr. Coleman arrived at the emergency room at 12:05 a.m, in a black SUV with two other individuals. The two individuals were later identified as Tavis Joseph, defendant-herein, and Irvin Harris,

Detective Barteet, with the assistance of the crime lab, determined that the phone found at the crime scene on the ground near the vehicle belonged to Irvin Harris. Detective Barteet searched through phone calls and text messages and learned that the victims, Mr. Westerfield and Mr. Harrison, had arranged to meet Mr. Coleman on Paige Jeanette Street on August 13, 2013 so that Mr. Coleman could purchase an ounce of “high grade marijuana” from Mr. Westerfield for $330.00. Phone records revealed that defendant, Mr. Harris, and Mr. Coleman were communicating in the hour or so leading up to the shooting but defendant did not communicate with Mr. Westerfield.

Further, JPSO digital forensic analysts extracted data from Jeremy Coleman’s and Irvin Harris’ individual cell phones. The photos and videos recovered showed: photos of a Kimber firearm with an aftermarket extended magazine; pictures of Mr. Harris armed with a Glock; pictures of Mr. Coleman armed with a Kimber; photos of Mr. Harris, Mr. Coleman, and defendant leaning against the hood of a GMC Envoy (the seized vehicle); photos depicting defendant and Mr. Coleman smoking a “blunt;” videos of Mr. Coleman and Mr. Harris holding firearms, including a Glock and Kimber; and a video of defendant sitting in a vehicle, with Mr. Harris, who was brandishing a Glock in the driver’s seat as defendant sat next to him in the passenger seat.

Colonel Tim Scanlan, the laboratory services commander for the Jefferson Parish Sheriffs Office, testified that he participated in the investigation in several |4ways: first, processing the vehicle the victims were found in; second, conducting an examination of the ballistics evidence that was recovered in connection with this case; and, third, conducting a crime scene reconstruction.

Colonel Scanlan testified that, although there were two firearms recovered from the scene, there were at least four separate weapons fired during the incident. Based on the casings and projectiles recovered from the crime scene and the autopsies, Colonel Scanlan concluded that four weapons were used: the Kimber, the Glock, and two unrecovered 9-mm caliber weapons. Only the Kimber was recovered at the scene.

Colonel Scanlan testified that the .40 caliber casings recovered outside of the vehicle were linked to a stolen Glock. With regard to the Kimber, two rounds were fired but the second round failed to eject properly and jammed the weapon. Further, projectiles recovered at the autopsy of Mr. Westerfield were linked to the Kimber, the Glock, and one of the 9-mm weapons.

Based on the location of the casings, Colonel Scanlan opined that the pattern was consistent with focused fire, aimed at the front driver’s side and a “more stationary shooter.” Colonel Scanlan testified that, from the casings of the stolen Glock that were recovered at the scene, the grouping was consistent with fire focused from outside of the vehicle into the driver’s side of the vehicle. Additionally, Colonel Scanlan stated that the 9-mm casings recovered from inside | fithe car were consistent with somebody going to the passenger side, leaning in, and firing into the vehicle.

Jeremy Coleman testified at trial. Mr. Coleman admitted that he had previously pled guilty to two counts of manslaughter and one count of possession of a stolen firearm, in connection with the deaths of Mr. Westerfield and Mr. Harrison. At trial, Mr. Coleman agreed that:

On August 13, 2013, Jeremy Coleman made arrangements to meet Nikiayh Westerfield. The stated purpose of the meeting was for Mr. Coleman to purchase an ounce of marijuana from Mr. Westerfield for $330. Mr. Coleman, Iran Harris, Tavis Joseph and a fourth individual. . .went together to the location of the murder. All four of them were armed with guns... [and] instead of completing the drug transaction, it was the intent of Mr. Coleman and of his three companions to rob Mr. Wester-field. Mr. Coleman pulled out the Kim-ber [semi-automatic handgun] to facilitate the robbery after he entered the front passenger side of the car occupied by Westerfield and Harrison. Mr. Wes-terfield was not armed. Shots were fired by Mr. Coleman and his three companions that resulted in the deaths of Mr. Westerfield and Mr. Harrison.

Colonel Scanlan confirmed that Mr. Coleman’s admission was consistent with the physical evidence.

Detective Barteet also testified about the statement that defendant provided at his interview on January 18, 2014, which was videotaped and played for the jury. In his interview, defendant stated that he was with his girlfriend, Karlinda Brooks, the night of the shooting. At trial, Karlinda Brooks admitted that she was dating defendant in August 2013 but did not remember where defendant was on the night that Mr. Coleman was shot. She testified that she did not remember talking with defendant about the circumstances surrounding how Mr. Coleman was shot.

After hearing the testimony and evidence, the twelve-person jury found defendant guilty as charged.

| ^Discussion

On appeal, defendant raises four assignments of error: first, the verdict is contrary to the law and the evidence; second, the district court respectfully erred in the denial of the motion for post-verdict judgment' of acquittal; third, the district court respectfully erred in the denial of the motion for new trial; and, finally, the district court erred in the denial of the motion in limine to prohibit the introduction of evidence of other crimes.

We will address defendant’s first two assignments of error, which are connected, together. In them, defendant argues that the evidence was insufficient to support his convictions of second degree murder. Defendant contends there was a lack of physical evidence that connected him to the crimes. Further, he avers that the circumstantial evidence and witness testimony was not reliable and that every reasonable hypotheses of innocence was not excluded. He claims that, when all the evidence, including the phone records, work records, video evidence, and defense testimony is viewed correctly, reasonable doubt exists that defendant was present at the time of the homicides.

The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 17, writ denied, 11-282 (La. 6/17/11), 63 So.3d 1039. Here, defendant filed a motion for post-verdict judgment of acquittal raising the insufficiency of evidence to support the verdicts of guilty of second degree murder.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Because the evidence must be viewed in the light most favorable to the prosecution, the reviewing court is required to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. Indeed, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745.

Defendant was convicted of the second degree murders of Nikiayh Wester-field and Dave Harrison in violation of La. R.S. 14:30.1. Under La. R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including but not limited to aggravated burglary, armed robbery, first degree robbery, second degree robbery, and simple robbery, even though he has no intent to kill or to inflict great bodily harm. See State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La. 12/15/06), 944 So.2d 1277. In this case, according to the jury instructions, the State prosecuted this case under both theories of murder for both counts: specific intent murder and murder while committing or attempting to commit armed robbery.

Under the first theory of second degree murder, the State had to prove that defendant had the specific intent to Mil or to inflict great bodily harm. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1546 (La. 1/25/08), 973 So.2d 753. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Id. Further, a specific intent to kill may be inferred from the intentional use of a deadly weapon such as a knife or gun. State v. Cochran, 09-85, p. 18 (La. App. 5 Cir. 6/23/09), 19 So.3d 497, 508, writ denied, 09-1742 (La. 3/26/10), 29 So.3d 1249; see also State v. Gonzalez, 07-449, p. 8 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-228 (La. 9/19/08), 992 So.2d 949 (“The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.”).

Under the second theory of second degree murder, the State had to prove that defendant was engaged in the perpetration or attempted perpetration of armed robbery, even though he had no intent to kill or to inflict great bodily harm. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Williams, 08-272 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La. 10/16/09), 19 So.3d 470. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Nelson, 14-252 (La.App. 5 Cir. 3/11/15), 169 So.3d 493, 500, writ denied, 15-685 (La. 2/26/16), 187 So.3d 468.

' In this case, defendant maintains that the evidence presented did not connect him to the crimes. Defendant argues that the testimony of Jeremy Coleman, which directly implicates defendant in these crimes, was unreliable.

Jeremy Coleman, who pled guilty to these crimes, testified that defendant was at the crime scene, brought a weapon with him, and took part in the shooting. He testified it was their intent to rob the victims. His testimony was corroborated by the physical evidence. Colonel Scanlan testified at trial that, based oh his examination of the evidence, four weapons, three of which were not recovered, were used in the shootings.

| inIn Louisiana, as á general principle of law, a conviction may be sustained on the corroborated testimony of a purported accomplice. State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, 928. Furthermore, although defendant presented evidence suggesting that he was at work on the night of the shooting, the jury obviously believed the testimony of the State’s witnesses over the testimony presented by defendant.

The determination of credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. Jones, supra. WZhere there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. Miller, 11-498 (La.App. 5 Cir. 12/13/11), 84 So.3d 611, 617, writ denied, 12-176 (La. 9/14/12), 97 So.3d 1012.

Based on the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard that defendant was a perpetrator of the second degree murders of Mr. Westerfield and Mr. Harrison. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s motion for post-judgment acquittal based on the sufficiency of the evidence. These assignments of error lack merit.

In his third and fourth assignments of error, defendant argues that the trial court erred in admitting certain videos and photographs into evidence. He asserts that there was no reason for this evidence to be deemed admissible at trial because |nthe evidence did not establish identity, motive or any other permissible use under La. C.E. art. 404(B). He contends the admission of this evidence denied him a fair trial, as the reason this evidence was introduced was to show him as a bad man. Further, he alleges that the danger of unfair prejudice substantially outweighed any probative value. He claims that because of the substantial rights that were violated, it is inappropriate to apply the harmless error rule.

Defendant filed a motion in limine to prohibit the introduction of evidence of other crimes. Specifically, the motion sought to exclude “video #0295 on the phone of Irvin Harris, which depicts Tavis Joseph in constructive possession of a stolen handgun” as well as text messages and images on the phones of Jeremy Coleman and Irvin Harris, which involve the sale of and/or consumption of marijuana.

At the hearing on the motion in limine, defense counsel argued that the exclusion of the video was warranted because it showed a weapon that was potentially stolen with defendant in the vehicle. Defense counsel reasoned that “constructive possession of a stolen weapon” was “another crime, or could be considered illegal carrying of a weapon while being in the presence of one,” which was “highly prejudicial.” She further argued that the phone records involving communications about selling and smoking marijuana should be excluded because they were not relevant. The court replied that was “the premiss [sic] of the State’s case. This was a drug rip off.” Defense counsel argued that those videos and photos showed prior bad acts of defendant that had no bearing on the instant case, namely, that he possibly had smoked marijuana.

The State responded that “the firearms that are depicted in photographs and videos are in fact.. .at least two of the weapons that were used during the course of the murder by the perpetrators.” The photographs and videos “showing these individuals in possession of those firearms certainly would be relevant to establish 112the elements of the State’s case, including identity and opportunity.” The State further argued that the phone records discussing the sale and use of marijuana “goes to the heart” of the State’s case, which was that “this [was] a drug rip... or a drug deal gone bad” and to deprive the State of “the opportunity to present that evidence to the jury would paint a very incomplete picture... of why these individuals were present.”

Defense counsel countered that with respect to motive, it had to be specific to that individual victim and that video did not depict any evidence in the instant case regarding either victim. She further countered that with respect to intent, the video did not show intent. As to identity, defense counsel stated that the video was not going to show that defendant was on the scene. She argued that the evidence in question was inflammatory and very prejudicial and should be excluded. The prosecutor then offered, filed, and introduced the “entire trial record in the matter of State versus Irvin Harris,” and he asked the trial judge to take judicial notice pursuant to La. C.E. art. 201, testimony adduced during the course of that trial and to consider all the physical evidence during that trial in support of its position on this motion. The trial judge allowed that and then denied defense counsel’s motion.

Defense counsel filed a supervisory writ with this Court, seeking review of the trial court’s denial of the motion in limine. This Court noted that neither the video, nor text messages, nor photos at issue were attached to the writ application, nor was the trial record from Mr. Harris’ trial, which was introduced at the hearing. This Court denied the writ on the showing made and noted that defendant had an adequate remedy on appeal if convicted. Further, we note that the record reflects that, at trial, the photographs were admitted over defense counsel’s objection, but there was no contemporaneous objection to the admission of the summary of text messages and the publication of the videos to the jury.

11sGenerally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La. 1978). However, when such evidence tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. Evidence of other crimes is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1).

Res gestae events constituting “other crimes” are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. Taylor, 838 So.2d at 741.

The res gestae doctrine is designed to allow the story of the crime to be told in its entirety, by proving its immediate context of happenings in time and place. Taylor, 838 So.2d at 741. The Louisiana Supreme Court has held that the test of whether res gestae evidence is admissible is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the 1 ^willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La. 1993). Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. La. C.E. art. 403. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Dauzart, 844 So.2d at 165-66. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art 404(B)(1) will not be disturbed. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La. 4/25/03), 842 So.2d 398.

In the present ease, Detective Barteet testified that without any eyewitnesses to the shooting, the initial focus of the investigation was the cell phones discovered at the crime scene. From pictures found on Mr. Harris’ phone, which was found at the scene, Detective Barteet was able to link Mr. Savage’s stolen Glock as the same Glock depicted in one photo and further as one of the weapons used in the shooting. A photo recovered from the phone also depicted a Kimber. The video in question depicted Mr. Harris brandishing a Glock next to defendant.

This evidence was used to link Mr. Coleman, Mr. Harris, and defendant together and show that defendant had access to weapons of the type used in the shooting. Photos from the phones also depict Mr. Coleman, Mr. Harris, and defendant smoking what appears to be marijuana. Marijuana was also found at the crime scene in the hands of one of the victims. The State, in its presentation of the case, theorized that these crimes resulted from a drug rip off. Evidence of a defendant’s prior drug use may be admissible to show his motive for committing murder. State v. Smith, 11-0091 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 692, writ denied, 12-2069 (La. 3/15/13), 109 So.3d 375.

Additionally, the phone records summary showing text messages that set up the drug transaction between the co-defendants and one of the victims, Mr. Westerfield, do not include any communications made by or to defendant. La. C.E. art. 404(B)(1) only prohibits evidence of other crimes or bad acts committed by a defendant. State v. Davis, 08-165 (La.App. 5 Cir. 7/29/08), 993 So.2d 295, 304, writ denied, 08-2188 (La. 5/1/09), 6 So.3d 810.

Even assuming arguendo that evidence of defendant’s other bad acts constituted inadmissible other crimes evidence, any such error is subject to a harmless error analysis. See State v. Williams, 09-48 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 365, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860. The test for determining if an error was harmless is whether the verdict actually rendered in the case was surely unattributable to the error. Id,

In the instant case, defendant was implicated in the crime by Mr. Coleman. His testimonial evidence was corroborated by the physical evidence. Surveillance video and cell phone tower evidence placed defendant at the hospital with Mr. Coleman shortly after the shooting. Therefore, even if it was error to admit the challenged evidence of other crimes, the evidence of defendant’s guilt rendered any such error harmless. Accordingly, we find that the trial court did not abuse its discretion by denying defendant’s motion in limine and in admitting this evidence. Because we find that the trial court did not err in denying defendant’s motion in limine, we likewise find that the trial court did not abuse its discretion in denying defendant’s motion for new trial on this basis. These assignments lack merit.

Errors patent

Finally, according to La. C.Cr.P, art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), we have | ^reviewed the record for error patent and found that neither the sentencing transcript nor the minute entry reflect that defendant was given a proper advisal of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030. Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Decree

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED

      . Co-defendants Jeremy R. Coleman and Irvin Harris were also indicted for the homicides and additionally charged with illegal possession of a stolen firearm. In the same indictment, Irvin Harris, Edward Harris, and Kanetra T. Whyte were charged with conspiracy to commit obstruction of justice. The matters were severed and only Mr. Joseph's convictions are the subject of this appeal. For clarity, we note that Irvin Harris’ convictions and sentences have been affirmed by this Court. See State v. Harris, 15-485 (La.App. 5 Cir. 4/13/16), 190 So.3d 466. Mr. Harris has applied for review from the Louisiana Supreme Court.

      . See State v. Tavis Joseph, 15-K-419 (La. App. 5 Cir. 7/10/15)(unpublished writ disposition).

      . Dr. Dana Troxclair, a forensic pathologist with the Jefferson Parish Coroner’s Office, testified that Dave Harrison received four gunshot wounds, which caused his death. Dr. Susan Garcia, also a forensic pathologist with the Jefferson Parish Coroner's Office, testified that Nikiayh Westerfield sustained eight gunshot wounds, which caused his death.

      . Ronald Kennedy, a route frequency engineer with Sprint Communications, testified regarding defendant’s cell phone records. Specifically, he testified that, on August 13, 2013, defendant’s phone made a call at 11:28 p.m, that pinged off a tower on Peters Road. Further, forty minutes later, at 12:10 a.m. on August 14, 2013, another call was made from defendant's phone that pinged off a tower near West Jefferson Medical Center. More importantly, no calls made from defendant's phone from August 13, 2013, at 9:58 p.m, until August 14, 2013, at 12:48 a.m. utilized a tower near the address where defendant purported to be that night.

      . Colonel Scanlan testified that the Colt revolver that was recovered from the scene had two spent, fired cartridge casings in it with four empty chambers. No casings from the Colt revolver, other than the ones in the chamber were recovered nor were any projectiles matching the Colt recovered from the crime scene.

      . Troy Savage, an investigator in the Jefferson Parish District Attorney’s Office’s Family Violence Unit, testified that in May 2013, his firearm, namely a Glock model 27 .40 caliber, was stolen out of his vehicle. He filed a police report regarding its disappearance, and later in August 2013, Detective Barteet contacted Mr. Savage requesting that Mr. Savage turn over the original gun box that the weapon came in, which included two spent casings from test fires, which is something Glock includes in the packaging of all the guns they sell. Mr. Savage’s Glock had the serial number HSB-144,

      . Only two small metal fragments were recovered from Mr. Harrison, which were unidentifiable.

      . David Cox, a DNA analyst with the Jefferson Parish Sheriff’s Office DNA Lab, was able to determine that DNA found on the Kimber grip and blood on the upholstery of the front passenger seat of the victim’s vehicle was consistent with Jeremy Coleman’s DNA.

      . Although defendant’s sufficiency argument is focused on the State's failure to prove his identity as the perpetrator, nonetheless it appears that the State also proved that defendant had the specific intent to kill or inflict great bodily harm, which is a required element under the first definition of second degree murder set forth in La. R.S. 14:30.1(A)(1). The State presented evidence that the victims died from multiple gunshot wounds. In addition, the State presented evidence that the vehicle the victims were found in sustained substantial damage from gunfire, and ballistics material was recovered at the scene from both inside and outside the vehicle. Thus, the State presented sufficient evidence to prove the killing of a human being when the offender had the specific intent to kill or inflict great bodily harm. See State v. Fields, 08-1223 (La.App. 4 Cir. 4/15/09), 10 So.3d 350, 355, writ denied, 09-1149 (La. 1/29/10), 25 So.3d 829 (where the appellate court noted that firing a gun into an automobile occupied by two people is sufficient evidence of the intention to kill one or more of the occupants of the vehicle).

      . These assignments will be addressed together because they are related. Defendant’s motion for new trial had several claims but, on appeal, defendant only challenges the trial court allowing the admission of defendant’s other crimes via the phone records of his co-defendants.


author: MURPHY, J.

text:
    STATE of Louisiana v. Quang T. DO
    NO. 16-KA-439
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, QUANG T. DO, Lieu T. Vo Clark
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

|, Defendant appeals his sentence following a conviction for one count of aggravated incest. For the reasons that follow, we affirm and remand with instructions.

FACTS AND PROCEDURAL HISTORY

This case comes before us for the second time on appeal. In defendant’s first appeal, we affirmed his convictions for one count of aggravated rape in violation of La. R.S. 14:42 (count one), four counts of aggravated incest in violation of La. R.S. 14:78.1 (counts two, six, seven, eight), one count of indecent behavior with juveniles in violation of La. R.S. 14:81 (count three), one count of aggravated oral sexual battery in violation of La. R.S. 14:43.4 (count four), and one count of sexual battery in violation of La. R.S. 14:43.1 (count five). We vacated defendant’s sentences imposed February 19, 2013, as to counts one, two, three, four, and five, and reinstated defendant’s original sentences on those counts imposed January 7, 2013. Upon finding that defendant’s sentence for count six was illegally lenient, we remanded the matter to the trial court with instructions to resentence defendant. State v. Do, 13-290 (La.App. 5 Cir. 11/19/13), 130 So.3d 377, writ denied, 13-2907 (La. 6/20/14), 141 So.3d 285.

On remand, the trial court sentenced defendant on count six to 25 years at hard labor without the benefit of probation, parole or suspension of sentence. Defendant thereafter filed an application for post-conviction relief which challenged his sentence for count six as excessive. After the trial court denied post-conviction relief, this court granted defendant’s writ and ordered the district court |2to consider defendant’s APCR as an out of time appeal. The instant timely appeal followed.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends that the 25-year sentence for aggravated incest (count six) is constitutionally excessive.

LAW AND ANALYSIS

The record in this matter demonstrates that defendant did not object to the sentence imposed, either on the date of resentencing or by way of a timely filed motion for reconsideration of sentence. The failure to file a motion to reconsider sentence limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E); State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La. 5/14/04), 872 So.2d 509. To constitute an excessive sentence, a court must find that “the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering.” State v. Guzman, 99-1753 (La. 5/16/00), 769 So.2d 1158, 1167. Trial judges are granted great discretion in imposing sentences, and a sentence will not be set aside as excessive absent a clear abuse of that discretion. State v. Parker, 03-288 (La.App. 5 Cir. 7/29/03), 853 So.2d 67, 69. The issue on appeal is whether the trial judge abused his discretion, and not whether another sentence might have been more appropriate. Id.

With respect to count six, defendant was convicted of aggravated incest in violation of La. R.S. 14:78.1. The applicable prior version of La. R.S. 14:78.1(C)(2) provided:

[.■¡Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

Thus, defendant was given the mandatory minimum sentence under the statute. This Court has recognized that a mandatory minimum sentence is presumed to be constitutional. State v. Hernandez, 03-424 (La.App. 5 Cir. 10/15/03), 860 So.2d 94, 97. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. Id. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the case that would rebut the presumption of constitutionality. Id. This Court has recognized the following:

To rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”

State v. Williams, 10-265, p. 8 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 104. Downward departures from a mandatory minimum sentence should only occur in rare cases. Id.

In this case, defendant first argues that, considering his age of 50, a 25-year sentence essentially amounts to imprisonment for life, which “will exact needless pain and suffering” on defendant. While defendant’s advanced age could génerally be considered by the trial court in sentencing, it is hot a factor specifically recognized under La. C.Cr.P. art. 894.1. In addressing similar issues in other sex abuse cases, appellate courts have looked at, among other variables, specific aspects of the case such as the age of the victim, the defendant’s relation to |4the victim used to aid defendant in the commission of the crime, as well as the victim’s emotional injuries. State v. Warmack, 49,880 (LaApp. 2 Cir. 5/20/15), 166 So.3d 424. In the instant case, defendant was convicted of various forms of sexual abuse committed upon his young, biological daughters and sister-in-law over the course of nine years. His convictions have been affirmed on appeal. For this particular aggravated incest conviction, defendant faced a possible life sentence, but received the mandatory minimum sentence, which was ordered to run concurrently with the sentences for his seven other convictions. In considering the grievousness of defendant’s actions, we cannot say that the concurrent mandatory minimum sentence in this case shocks our sense of justice or that the trial court abused its great sentencing discretion. State v. Sanderson, 49,957 La.App. 2 Cir. 7/22/15, 174 So.3d 149.

Defendant further contends that in light of the victim’s recantation, a 25-year sentence is constitutionally excessive. In defendant’s first appeal, this Court addressed as an assignment of error the issue of the victim’s recantation in the context of the trial court’s denial of defendant’s motion for new trial. We found defendant’s argument lacked merit. This issue is “law of the case” to the extent that defendant now asks us to again review the veracity of the victim’s recantation in the instant appeal. Further, defendant’s argument addresses sufficiency of the evidence rather than the constitutional excessiveness of his sentence, the sole issue before us in this second appeal. See State v. Wise, 14-378 (LaApp. 5 Cir. 10/15/14), 182 So.3d 63, 73-74, writ denied, 14-2406 (La. 9/18/15), 178 So.3d 143.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We note one error which requires correction. Under La. R.S. 14:78.1(E)(1), “the court shall, after determining the financial resources and future ability of the offender to pay, require the offender, if able, to pay the victim’s reasonable costs of counseling that result from the offense.” The resentencing transcript and the commitment in this case do not indicate that the trial judge assessed defendant’s ability or ordered him to pay the victim’s reasonable costs of counseling in compliance with the statute. Therefore, we remand this matter for the trial court to comply with La. R.S. 14:78.1(E). See State v. Arable, 07-806 (La.App. 5 Cir. 3/11/08), 982 So.2d 136, writ denied, (La. 11/21/08), 996 So.2d 1104.

DECREE

For the foregoing reasons, defendant’s sentence is affirmed. The matter is remanded with instructions.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The underlying facts of this case are contained in defendant’s first appeal, cited infra.

        . On January 7, 2013, on count one, defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On count two, defendant was sentenced to fifteen years at hard labor. On count three, defendant was sentenced to seven years at hard labor. On count four, defendant was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. On count five, defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. On counts six, seven, and eight, defendant was sentenced to fifteen years at hard labor, on each count. All sentences were ordered to be served concurrently; and, as to counts two, six, seven, and eight, the court required defendant to bear the cost of counseling.

      . State v. Do, 16-157 (La. App. 5 Cir. 5/12/15) (unpublished writ).

      . A defendant is to be tried under the statute in effect at the time of the commission of the crime. State v. Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166, 170. In defendant’s original appeal, this Court determined that count six occurred on or around November 13, 2007. La. R.S 14:78.1 was repealed in its entirety by Acts 2014, No. 177, § 2, effective August 1, 2014 and Acts 2014, No. 602, § 7, effective June 12, 2014.

      . At the outset, as indicated above, we note that defendant has, in fact, received a life sentence without benefits for his aggravated rape conviction, which this court affirmed in his first appeal,

      . In finding no merit in defendant’s claims in his prior appeal, we reasoned, in part:
      Recantations of trial testimony should be looked upon with the utmost suspicion. State v. Tyler, 342 So.2d 574 (La. 1977), cert. den., 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). Absent special circumstances, to refuse to grant a new trial on such a basis is not an abuse of discretion. State v. Clayton, supra. This is because a recantation at a new trial is a confession to perjury which destroys the credibility of the witness. State v. Linkletter, 345 So.2d 452 (La. 1977), cert., den., 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978).

        State v. Do, 13-290 (La.App. 5 Cir. 11/19/13), 130 So.3d 377, 388.

      .Under the discretionary principle of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Burciaga, 05-357 (La.App. 5 Cir. 2/27/06), 924 So.2d 1125, 1128; State v. Junior, 542 So.2d 23, 27 (La. App. 5 Cir. 1989), writ denied, 546 So.2d 1212 (La. 1989).


text:
    Gail STONE v. LAKES OF CHATEAU NORTH, L.L.C. and Liberty Surplus Insurance Company
    NO. 16-C-529
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/RESPONDENT, GAIL STONE, Laurence D. Cohen
    COUNSEL FOR DEFENDANT/RELATOR, LAKES OF CHATEAU NORTH, L.L.C. AND LIBERTY SURPLUS INSURANCE COMPANY, James C. Rather, Jr.
    Panel composed of Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

| iDefendants, Lakes of Chateau North, L.L.C. (the “Lakes”) and Liberty Surplus Insurance Company, filed a supervisory writ application seeking review of the trial court’s August 29, 2016 judgment denying their motion for summary judgment. In accordance with the requirements set forth in La. C.C.P. Art. 966(H), this Court assigned the matter for briefing and oral argument. For the following reasons, we reverse the trial court’s judgment denying defendants’ motion for summary judgment, grant defendants’ summary judgment motion and dismiss plaintiff Gail Stone’s claims against defendants with prejudice.

FACTS AND PROCEDURAL HISTORY

This matter involves a slip and fall accident which occurred on January 14, 2014, at an apartment complex, Lakes of Chateau South, owned by the Lakes in Ken-ner, Louisiana. The material facts are undisputed. On that day, a winter storm caused the area to experience snow, ice and sleet. Plaintiff, Gail Stone, alleges that she sustained injuries to her shoulder when she slipped and fell on ice on an exterior stairway as she proceeded to her apartment on the second floor. Ms. Stone alleges that defendants are liable for her injuries because the Lakes knew of the icy conditions on the stairwell, but permitted an unreasonably dangerous condition to remain unattended. In their writ application, defendants contend the Lakes posted signs warning tenants of the icy conditions, the icy conditions were open and obvious and the Lakes had no further duty to warn or guard against ice on the stairwell in this matter.

The apartment complex has 248 apartments in 21 separate two and three-story buildings. On the morning of the accident, Ms. Stone left her second-story apartment to go to work around 6:15 a.m. It was raining and sleeting outside at that time. Ms. Stone testified that she saw ice starting to form outside as she was leaving for work. Ms. Stone is a neonatal nurse at Ochsner Hospital in Kenner and |2on the day of the accident, she worked a twelve-hour shift. During that time, Ms. Stone learned other employees were concerned icy conditions would prevent nurses from arriving for the night shift, and some nurses were trying to leave early due to the weather conditions.

Ms. Stone completed her shift and drove home around 9:00 p.m., arrived in the parking lot and exited her vehicle. She walked very slowly towards her apartment building because the parking lot was wet and icy. As she approached her building, she saw a sign posted on the entrance which contained an advisory which warned tenants to be careful due to the ice. Ms. Stone testified at her deposition that she did not hold onto the handrail as she walked up the steps to her apartment on the second floor. Ms. Stone successfully ascended the first set of stairs to the landing between the first and second floor. She alleges that she then slipped on a patch of ice as she attempted to step onto the first step of the next set of stairs, fell on her shoulder and sustained a serious injury.

After falling, Ms. Stone stood up and held onto the railing as she carefully ascended the remaining stairs leading to her apartment. Ms. Stone could not recall if she saw ice on any other steps, but testified that she felt ice on the stairs. She also stated that the stairway was dimly lit at the time of her accident, but did not recall seeing any inoperable or broken lights.

On June 2, 2014, Ms. Stone filed a petition for damages alleging her injuries were due to the fault and negligence of the Lakes, including the failure to inspect the premises, failure to provide safe conditions on the premises in accordance with La. C.C. Art. 660, the failure to warn of the dangerous condition, the failure to |sclear the stairways of ice, the failure to properly inspect the stairwells for slippery substances and the failure to properly light the stairwell.

Defendants filed a motion for summary judgment asking the trial court to dismiss Ms. Stone’s claims because the Lakes owed no duty to Ms. Stone under the circumstances at issue. Based on her own testimony, Ms. Stone was aware of the ice and freezing conditions in the area, she walked very slowly through the parking lot due to ice, and she read the sign at the stairwell entrance warning of the icy com ditions. Defendants argued these undisputed facts established that the icy conditions were open and obvious. Defendants also argued that the presence of ice on the stairs did not create an unreasonably dangerous condition.

In addition to Ms. Stone’s deposition testimony, defendants provided an affidavit from David Sanderson, Vice-President of the Lakes’ parent company, Favrot & Shane Companies, Inc. Mr. Sanderson reported that Ms. Stone was the only person to report a slip and fall due to the ice, and there were no similar reported slip and falls due to ice in the ten years prior to the accident. Mr. Sanderson also noted that the stairwell leading to Ms. Stone’s apartment was illuminated by a double bulb fixture, the lights were inspected on a daily basis and there were no reports of broken lights around the date of the accident. Mr. Sanderson also explained that the apartment complex underwent a maintenance audit within six months prior to the accident and no defects or irregularities existed with respect to the lighting in the stairwell. In addition, neither Ms. Stone nor any other resident reported any slip and fall incidents due to inadequate lighting.

Defendants also attached deposition testimony from the Lakes’ supervising maintenance technician on duty at the time of the accident, Duane Guillot. Mr. Guillot testified that on the morning of the accident, he was in Ms. Stone’s building to complete some repair work when he observed ice on the landing. He immediately reported the situation to the apartment manager, who prepared signs Lin plastic covers to warn residents of the ice. Mr. Guillot taped the signs in all of the stairwells in every building in the complex. Mr. Guillot then went to the store and purchased bags of play sand to spread on the areas where he saw ice. He did not scrape off any of the ice. Mr. Guillot testified that he worked until the Lakes closed their office around noon or 1:00 p.m. due to the bad weather.

In her opposition brief, Ms. Stone argued the ice on the stairs created an unreasonable risk of harm and was not open and obvious, because the ice was clear and the lighting was insufficient for her to see the ice on the stairs. Ms. Stone argued that the issue of whether a condition is open and obvious is a question of fact that is not appropriate for summary judgment. She also argued that the Lakes breached its duty to her because the complex management and maintenance personnel left the complex around noon and there was no one to clear sidewalks and staircases for the tenants during the storm. The trial court held a hearing on the summary judgment motion on August 10, 2016. Following the hearing, the trial court denied defendants’ summary judgment motion based on its finding that the issue of whether the ice on the step was an open and obvious condition was a question of fact to be determined by the trier of fact and therefore, not a proper issue to be determined on summary judgment.

In their writ application, defendants first contend the trial court erred by failing to find that under the circumstances at issue in this matter, the Lakes owed no further duty to Ms. Stone to warn and/or guard against the ice on the stairwell. They also argue that the trial court ignored current Louisiana Supreme Court decisions which have clarified that the issue of whether a condition presents an unreasonable risk of harm can be determined on summary judgment when warranted under the particular circumstances of the case.

In response, Ms. Stone raised the same arguments asserted in her underlying opposition to the summary judgment motion. In addition, in her supplemental 1 .-.brief filed after this Court assigned the matter for briefing pursuant to La. C.C.P. Art. 966(H), Ms. Stone argues for the first time that defendants are strictly liable for her injuries, pursuant to La. C.C. Arts. 2696 and 2697, under which a landlord warrants to a tenant that the premises are free from vices and defects.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1991); Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. Summary judgment will be granted if the motion, memorandum and supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966(A)(3). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. Art. 966(D)(1). The burden in on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or to prove that the mover is not entitled to judgment as a matter of law. Id.

In determining whether a genuine issue of material fact exists, we must consider the substantive law governing the litigation. The issue of the appropriate law to apply in this matter depends on the claims which Ms. Stone alleged in these proceedings. In her petition and in all arguments set forth in her opposition to the summary judgment motion presented to the trial court, Ms. Stone indicated her intent to pursue negligence claims against defendants.

Therefore, we first note that the threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. See Herrera v. United Fire & Cas. Co., 09-256 (La. App. 5 Cir. 10/27/09), 27 So.3d 919, 921, writ denied, 09-2578 (La. 2/5/10), 27 So.3d 303. Whether a duty is owed is a question of law for the court. Id. An owner or custodian owes a plaintiff a duty to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. Alexander v. Parish of St. John the Baptist, 12-173 (La.App. 5 Cir. 10/16/12), 102 So.3d 904, 909, writ denied, 12-2448 (La. 1/11/13), 107 So.3d 617; Pitre v. Louisiana Tech Univ., 95-1466 (La. 5/10/96), 673 So.2d 585, 590.

Defendants argue that after the Lakes posted signs warning of the ice, the Lakes owed no further duty to warn or guard against ice on the stairwell during the storm. Defendants note that the Lakes posted a sign at the entrance of the stairwell warning tenants of the presence of ice and spread sand on the existing ice to protect its tenants’ safety. In response, Ms. Stone complains that no employees were on site to warn residents, clear stairs or monitor the safety of the buildings after noon on the day of the accident.

Applying the law outlined above in our de novo review, we find the trial court erred by failing to grant defendants’ motion for summary judgment with respect to Ms. Stone’s negligence claims because we find that under the rare and infrequent weather conditions at issue in this matter, the Lakes owed no further duty to its tenants after posting the signs warning of the icy conditions created by the ongoing weather. Considering the size of the complex and the ongoing weather conditions, it would not be reasonable to find the Lakes had a duty, as Ms. Stone suggests, to post employees around the complex to continuously warn residents and clear stairwells during the storm. Furthermore, Ms. Stone admitted she was aware of the icy conditions caused by the weather, she saw ice in the |7parking lot and she saw the warning signs the Lakes posted at the stairwell entrance.

Therefore, we find that due to the rare weather conditions at issue in this matter, the Lakes did not owe a further duty to warn Ms. Stone of the ice after it posted warning signs or a duty to retain employees on site to continuously clear ice from the complex during the storm.

As we noted above, Ms. Stone also argues for the first time in her supplemental brief filed with this Court that defendants are also liable for her injuries pursuant to a theory of strict liability under La. C.C. Arts. 2696 and 2697.

La. C.C. Art. 2696 provides:

The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose.
This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.

La. C.C. Art. 2697 provides:

The warranty provided in the preceding Article also encompasses vices or defects that are not known to the lessor.
However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly.

Under these provisions, the lessee need only prove a defect in the property in the custody of the landlord caused his or her injuries. Cennett v. Arceneaux, 12-706 (La. App. 5 Cir. 5/23/13), 119 So.3d 670, 673.

As a general rule, appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed. Geiger v. State ex rel. Dept. of Health and Hosp., 01-2206 (La. 4/12/02), 815 So.2d 80, 86. However, while Ms. Stone’s petition does not specifically refer to a cause of action for strict liability under La. C.C. Arts. 2696 and 2697, we find Ms. Stone pled sufficient facts to allege such a claim. In a de novo review, “the appellate court is at liberty to make an independent decision based on the record evidence.” Bujol v. Entergy Servs., Inc., 03-492 (La. 1/19/06), 922 So.2d 1113, 1144, fn. 1.

To prevail on a strict liability claim under La. C.C. Art. 2696, the plaintiff must prove 1) the defendant had custody of the thing causing the injury; 2) it contained a defect; and 3) the defect caused the plaintiffs injury. Wells v. Norris, 46,458 (La.App. 2 Cir. 8/10/11), 71 So.3d 1165, 1169, writ denied, 11-1949 (La. 11/18/11), 75 So.3d 465. Proof of a defect in the property is an essential element of liability. Martinez v. Coleman, 00-1827 (La.App. 5 Cir. 4/24/01), 786 So.2d 170, 173. For purposes of La. C.C. Art. 2696, a defect is defined as a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Id; Cennett, 119 So.3d at 673. The existence of a defect may not be inferred solely from the fact that an accident occurred. King, 185 So.3d at 840.

The relevant material facts in this matter are not disputed and the only issue with respect to a potential claim under La. C.C. Arts. 2696 and 2697 is whether the 10ice on the stairwell constituted a defect— that is whether it constituted a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.

After considering the particular facts and circumstances at issue in this matter, we also find that ice on an exterior stairway during an ongoing ice storm was not a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Ms. Stone was well aware of the ongoing icy conditions caused by the storm, observed ice in the parking lot and observed the sign posted by the Lakes warning about ice on the stairway. No other resident in the 21 apartment complex buildings reported an accident as a result of the ice. Ms. Stone proceeded slowly and carefully through the parking lot, but did not hold onto the stairway railing until after she slipped.

Therefore, in addition to finding the Lakes did not owe any additional duties to Ms. Stone with respect to her negligence claims, we also find that based on the undisputed facts presented in this particular matter, ice on the exterior stairway during an ongoing ice storm did not constitute a defect which the Lakes warranted against pursuant to La. C.C. Arts. 2676.

DECREE

For these reasons, we grant defendants’ writ application, reverse the trial court’s ruling denying defendants’ motion for summary judgment and grant summary judgment in favor of defendants. We further dismiss plaintiff Gail Stone’s claims against defendants, Lakes of Chateau North, L.L.C. and Liberty Surplus Insurance Company, with prejudice.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED

      . La. C.C. Art. 660 provides:
      The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passerby. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which cause the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. ■

      . Other jurisdictions which experience these weather conditions on a more frequent basis have held a landowner does not have a duty to clear ice while a storm is in progress. See e.g, Battle v. George Washington Univ., 871 F.Supp. 1459, 1462-63 (D.D.C. 1994); Rockford v. G.K. Dev., Inc., 845 N.W.2d 715, 716-18 (Iowa Ct. App. 2014).

      . This Court has recognized these provisions retain the traditional concept of strict liability. See Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So.3d 977, 987, writ denied, 10-241 (La. 4/9/10), 31 So.3d 393. The strict liability imposed on a lessor was unaffected by the tort reform legislation that enacted La. C.C. Art. 2317.1 in 1996. King v. Allen Court Apts. II, 15-858 (La.App. 1 Cir. 12/23/15), 185 So.3d 835, 839, writ denied, 16-148 (La. 3/14/16), 189 So.3d 1069.

      .“The Louisiana Code of Civil Procedure provides that no technical forms of pleading are required. La. C.C.P. Art. 854. Furthermore, La. C.C.P. Art. 862 sets forth as follows:
      Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

        The purpose of this article is to suppress the “theory of the case” doctrine and permit a court to grant the relief warranted by allegations contained in the pleadings and the evidence. Pottinger v. New Orleans Heating & Cooling Specialists, Inc., 06-701 (La.App. 5 Cir. 1/30/07), 951 So.2d 1224, 1226. Thus, a party may be granted any relief to which he is entitled so long as the facts constituting the claim are alleged or proved. Greemon v. City of Bossier City, 10-2828 c/w 11-39 (La. 7/1/11), 65 So.3d 1263, 1268.

      . Ms. Stone argued that a genuine issue of material fact exists as to whether a defective condition existed regarding the lighting in the stairway. While Ms. Stone alleged the stairwell was dimly lit, it is uncontroverted that the complex underwent a maintenance audit within six months prior to the accident and no defects or irregularities existed with respect to the stairwell lighting and there were no slip and fall accidents reported due to inadequate lighting for ten years prior to Ms. Stone’s fall. Ms. Stone did not complain about the stairwell lighting prior to the accident and did not notice any broken or malfunctioning lights. Considering all relevant uncontrovert-ed facts, if the lightening in the stairwell was dim, it was the same as any other evening.