author: PETTIGREW, J.

text:
    STATE of Louisiana v. Essence DYSON
    NO. 2016 KA 1571
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered June 2, 2017
    Rehearing Denied July 13, 2017

      HILLAR 0. MOORE, III, DISTRICT ATTORNEY AND CHRISTOPHER J.M. CASLER, ASSISTANT DISTRICT ATTORNEY, BATON ROUGE, LA, ATTORNEYS FOR STATE OF LOUISIANA
    FREDDIE PITCHER, JR., BATON ROUGE, LA AND KATHRYN FLYNN SIMINO, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT-APPELLANT ESSENCE DYSON
    BEFORE: PETTIGREW, MCDONALD, AND PENZATO, JJ.
   PETTIGREW, J.

|aThe defendant, Essence Dyson, was charged by grand jury indictment with second degree murder (count one), a violation of La. R.S. 14:30.1, and attempted second degree murder (count two), a violation of La. R.S. 14:30.1 and La. R.S. 14:27. The defendant pled .not guilty on both counts. After a trial by jury, she was found guilty as charged on count one, and guilty of the responsive offense of aggravated battery, a violation of La. R.S. 14:34, on count two. The trial court denied the defendant’s motion for postverdict judgment of acquittal and motion for new trial. She was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, and to ten years imprisonment at hard labor on count two, to be served concurrently. The defendant now appeals, assigning error to the trial court’s denial of her motion for postverdict judgment of acquittal based on insufficiency of the evidence, and to the trial court’s denial of her motion for new trial based on the verdict being contrary to the law and evidence and the ends of justice. For the following reasons, we find the record sufficiently supports the jury’s verdict and affirm the defendant’s convictions and sentences.

STATEMENT OF FACTS

A review of the record and evidence presented at trial reveals the following. During the early morning hours of June 30, 2012, officers of the Baton Rouge Police Department (BRPD) received a computer-aided dispatch (cad) reporting the detection of multiple gunshots fired at approximately 2:27 a,m., at 3006 College Drive. The cad report was consistent with the report of another officer in the same area at the same time that | she had heard four to five shots fired. The dispatch also reported that there was a white Grand Prix in which a passenger had been shot, at one of the locations of dispatch.

Upon arriving at the location of the victims’ vehicle behind Iberia Bank, at the Perkins Road and Acadian Thruway intersection, BRPD Corporal Aleesha Kuhn photographed a white Grand Prix into which shots had been fired. It was. later determined that the front seat passenger, victim Jordan Key, had been fatally shot in the head, and the driver, Darius Vicks, was shot in the foot. Corporal Kuhn’s photographs depicted the decedent on the front passenger seat as he was found, and .then again, after he had been removed from the vehicle by the coroner’s office. Her photographs also revealed blood on the seats and throughout the interior of the vehicle, and on the exterior of the front passenger’s and driver’s doors. In addition to taking photographs, Corporal Kuhn also seized items found inside the vehicle, including a bandana, a backpack containing ski masks, a t-shirt, and a hat, a cell phone retrieved by the coroner from the pockets of the decedent, and a loaded revolver that was located in the trunk.

After securing and photographing the first crime scene, which Corporal Kuhn testified took “a couple of hours,” she then proceeded to the second crime scene reported at Rabey St. and Bennington, crossed by College Drive, which already had been secured by other responding officers. She photographed the overall scene, depicting an International House of Pancakes (IHOP), Walmart, and Albertson’s, and also specific close-up areas of the scene that had been marked by the officers where shell casings hadpbeen located. She then proceeded to the third crime scene reported—the dead end of Rabey St.— where it runs into Balis and where the suspects’ vehicle had been abandoned. When Corporal Kuhn arrived at the third crime scene, it had been secured and roped off by other officers still present at the scene. She . photographed the interior and exterior of the suspects’ vehicle, a gray Toyota Camry, including a photo of a weapon found on the floorboard of the driver’s side, a baseball cap on the ground outside the Camry, a cell phone that was on top of the Camry, as well as the surrounding area, to depict the general location.

Cory Champagne, a security guard who had just left work on Bennington Drive “about 2:30” a.m., and travelled on Rabey Street to pick up his. girlfriend from 'Wal-mart on College Drive, witnessed the crime as the events unfolded. He reported the following events that occurred around the time of the shooting. After picking up his girlfriend, he turned back onto Rabey Street and entered the left turning lane to head back toward the interstate. While waiting at the traffic light, Champagne observed a black male, over' six' feet tall, exit the passenger side of the vehicle immediately behind his vehicle. Champagne continued to watch the individual, reveal-' ing' that he was alarmed because they were in the middle of the street when the individual 'abruptly exited the .vehicle. Champagne .noted that the individual was wearing a white t-shirt, dark shorts, blue boxers, white tennis shoes, and a white bandana or headband. The individual began walking away from the cars as though he was going to an IHOP restaurant, located in front of Walmart on College Drive. He then abruptly turned back towards the vehicles, walked straight to the vehicle in front of Champagne’s vehicle, pulled out a pistol 'and fired three shots into the vehicle. Champagne placed his car in park, drew his weapon, and ordered the individual to stop and drop his firearm. The shooter ran toward the vehicle that he previously exited, a Toyota Camry, which was travelling rapidly in reverse away | ¿from the scene of the shooting ahd was occupied by the driver and a third occupant, both also black males.

At approximately the same timé, Lieutenant Cedric Muse of the East Baton Rouge Parish Sheriffs Office, the' Walmart security officer on duty at the time of the incident, had been outside in his vehicle when the gunshots were fired. After hearing the gunshots, Lieutenant Muse observed a black male running down Rabey Street toward a Camry that was travelling in reverse. Lieutenant Muse positioned his unit in front of the Camry as the black male on foot reentered the vehicle, which continued travelling in reverse in an attempt to flee from the scene. After approaching a dead end at the Rabey Street and Balis Street intersection, the occupants exited the vehicle and fled on foot. Lieutenant Muse pursued them in a foot chase until they approached a wooded area. Lieutenant Muse advised BRPD of the direction in which the individuals fled and returned to the suspects’ abandoned vehicle, where he was met by Champagne, who relayed to him what he had observed.

Champagne pointed out to Lieutenant Muse a firearm he had seen in plain view on the floorboard in the back of the suspects’ vehicle behind the driver’s seat. Lieutenant Muse indicated that the firearm appeared to be jammed at the time, and he also observed and took possession of two cell phones also in plain view. Lieutenant Muse ran the license plate number of the Camry and determined that it was registered to Cierra Henry. Noting that the vehicle was only occupied by males that night, Lieutenant Muse entered Henry’s name into a police database, which provided him with the name of her boyfriend, Michael Francois. Lieutenant Muse remained with the vehicle until BRPD officers arrived at the scene.

| ^Detective Sherri Harris, of the BRPD homicide division, was one of the investigating officers who responded to the dispatch and went to all three reported crime scenes. She assisted Corporal Kuhn process the vehicles and collect evidence. She testified that in response to the crime scene where the getaway vehicle (the Camry) was located, abandoned at Rabey Street, Corporal Kuhn took photographs of the Camry and of the evidence from which Harris took DNA samples and collected, including an orange and red baseball cap located on the ground just outside of the vehicle, a cell phone on the passenger seat of the vehicle, another cell phone that was on top of the Camry, and a firearm that was behind the driver’s seat on the floorboard. The vehicle was then towed away for further processing. When Detective Harris arrived at the second crime scene, where the shooting took place, she found the area already had been secured and evidence (shell casings) marked, so she proceeded to the Victim’s Crime Unit (VCU) office where she took statements from Champagne and Francois.

Francois ultimately admitted to being the driver of the getaway vehicle at the time of the shooting.. He identified a co-perpetrator by his nickname, “Chad Youn-gin,” whom he stated was the shooter. He stated that he did not know the true name of the co-perpetrator, but referred the police to a video entitled “Mista I’m Grown Music Video,” featuring the co-perpetrator; and'he also made an identification of “Chad Youngin” through a photographic lineup using still shots from the video. Francois indicated that he did not know the other individual who was in the vehicle. After Francois’s interview, he was placed under arrest and charged with first degree murder. 17Petective Harris then contacted police informants and determined that the true identity of “Chad Youngin” was Chattley Chesterfield. She obtained a warrant for Chesterfield’s arrest. However, the police were unable to locate Chesterfield until approximately three months later, as detailed later herein.

Detective Harris also interviewed the surviving victim, Darius Vicks, when he went to the VCU office the day after the shooting, when he was discharged from the hospital. Vicks indicated that immediately after the shooting, he tossed a firearm from the vehicle that he knew had been in the deceased victim’s possession at the time of the shooting. According to Detective Harris, Vicks was unable to provide any more information, stating that he had been just sitting at a red light when suddenly they were feed upon. Later, Detective Harris contacted Vicks and told him the police had two suspects pertaining to the shooting. When Detective Harris revealed that Chesterfield was ,one of the suspects, Vicks stated he was familiar with Chesterfield and then realized he had more information “that he didn’t know if it was helpful, but thought it may have a connection.” He recalled and told Detective Harris about having an odd encounter at, the Walmart, just prior to the shooting, with Essence Dyson (defendant herein), whom he knew to be Chesterfield’s girlfriend. He relayed to Detective Harris that he and the deceased had been in the Wal-mart and upon exiting the store, he saw the defendant just standing outside of the Walmart. He stated .that he asked if she needed a ride, and she told him, no, that she was just waiting for her sister. Vicks suggested that the police may want to look into her, and he also provided the police with the defendant’s phone number.

Detective Harris obtained a search warrant on the cell phones obtained from the suspects’ Camry. Cell phone records revealed that minutes before the shooting, one of those cell phones had received a call from the number that Vicks provided the detectives with as being the defendant’s telephone number. On July 18, 2012, Detective Harris |8conducted an interview of the defendant. After being advised of her Miranda rights and executing a waiver of rights form, the defendant admitted to being at the Walmart and talking to the victims just before the shooting. She stated that she, along with someone else, went into the Walmart. Defendant said she then went outside to wait for her companion to exit the store, and she had a brief encounter with the victims as they exited Wal-mart before they headed to their vehicle. She stated that her companion then exited Walmart and together they got back into the vehicle they arrived in and left Wal-mart and headed toward the IHOP. She indicated that she was in the vehicle located behind the victims’ vehicle at the time of the shooting. She stated that the area was well lit and that she saw the shooter’s face clearly, but claimed she did not know him. She described him as a five-feet-eight-or-nine-inch male wearing a white t-shirt and a brown hat, with a mole or “mark of Buddha” and sideburns. The defendant also confirmed the identity of Chesterfield as one of the passengers in the Camry, and stated she had known him since grade school.

On September 14, 2012, approximately three months after the warrant was obtained for his arrest, Chesterfield was located, apprehended, and interviewed by the police. During a five-part interview. Chesterfield, at the onset, provided inconsistent scenarios. He admitted to being at the scene of the shooting, but originally indicated that he was in the vehicle with the defendant, He initially denied knowing the identity of the shooter, and later named the shooter as Darius Joseph, a fellow member of a group that included local rappers and referred to themselves as the “Cain Muzik Mafia.” Chesterfield ultimately admitted, but then wavered as to whether he was the shooter. At one point, Chesterfield indiqated that months before the instant.offenses, the deceased 13victim had tried to kill him or shoot at him, but the victim’s gun jammed. Chesterfield also indicated that the deceased victim also brandished a gun the night of the instant shooting.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that' the trial court erred in denying her motion for postverdict judgment of acquittal based on the claim that the verdict is contrary to the law and evidence, specifically in light of a lack of evidence of a conspiracy to kill, that she had the specific intent to kill or inflict great bodily harm to either of the victims, Key or Vicks, or that she was aware of Chesterfield’s intent to commit ’the offenses. The defendant argues that the images and text messages included in the phone records introduced by the State fell short of establishing the State’s theory that this crime was the result of a stalking or hunting expedition. The defendant further argues .that the images and text messages had little, if any, connection to the events of the night in question, and that Her conne'ction to the evidence was tenuous at best. The defendant specifically notes that she was not present at the location where the group met before the shooting and she was not involved in any of the text conversations regarding the lookout. The defendant contends that while Francois stated that Chesterfield was on the phone with her just prior to the shooting, his testimony about that conversation did not include any mention of guns or shooting someone. The defendant further argues" there is evidence that after the shooting, she made an excited utterance indicating surprise by Chesterfield’s actions, evidence she contends established that she was not a principal to the offenses. Defendant argues that the State improperly accused her of destroying evidence, by obtaining a new phone after the shooting, and attempted to infer guilt on her part based on that evidence. The defendant maintains the State failed to prove she destroyed any evidence noting that the SIM card from the old phone was transferred to her new phone, thereby retaining any calls that were made with the old phone. The defendant maintains if anything, the evidence established her actions are more indicative simply of being an accessory after the fact.

INAPPLICABLE LAW

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof of each of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P., art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson v. Virginia standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder, in prder to convict, must be satisfied the overall evidence excludes every reasonable hypothesis of. innocence, When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987).

The crime of second degree murder, in pertinent part, “is the killing of a human being: (1) [w]hen the offender' has a specific intent to kill or to inflict great bodily harm[.]” La. R.S. 14:30.1(A)(1). Specific criminal 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). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923.

InBattery is defined, in pertinent part, as the intentional use of force or violence upon the person of another. La. R.S. 14:33. The offense of aggravated battery “consists of the intentional use of force or violence, with a dangerous weapon, upon the person of another.” State v. Howard, 94-0023 (La. 6/3/94), 638 So.2d 216, 217 (per curiam,); see also La. R.S. 14:33 and La. R.S. 14:34(A). A dangerous weapon is any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3). Aggravated battery requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Instead, the requisite intent element is general criminal intent. See Howard, 638 So.2d at 217. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts that have been declared criminal. Howard, 638 So.2d at 217.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. Mere presence at the scene of a crime does not make one a principal to the crime. Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). However, “[i]t is sufficient encouragement that the accomplice is standing, by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam).

1 ^APPLICATION OF LAW TO EVIDENCE PRESENTED/ANALYSIS

On July 1, 2012, Corporal Monroe Carter of the BRPD, Crime Scene Division, processed the vehicles occupied by the victims and the suspects, after they were transported to the storage facility. In processing the victims’ vehicle, he photographed the blood and bullet holes on the seats, including a bullet hole in the headrest of the front passenger seat. Corporal Carter also took DNA swabs from door handles and other areas of the vehicle. Based on his assessment of the trajectory, Corporal Carter noted that it appeared that the bullet was fired from the top of the vehicle by a tall person, and travelled through the passenger headrest to the back' seat floorboard on the passenger side, where the bullet was recovered.

BRPD Crime Scene Division Corporal Glynn Averette also collected and swabbed evidence in this case, including the pistol found in the suspects’ Camry, seven live rounds, and an iPhone. He noted that the pistol appeared to have malfunctioned or jammed, as the slide was neither locked all the way to the rear, nor was it forward, and a projectile was stuck in the ejection port. Detective Harris, on the other hand, testified that the other revolver, located in the trunk of the vehicle occupied by the victims, had not been fired. She noted that the revolver was fully loaded, that the bullet holes in the vehicle did not match the revolver, and that the caliber of shell casings collected at the scene of the shooting and the bullet recovered from the deceased victim could not have come from that weapon.

Michael Francois admitted at trial to being the driver of the getaway vehicle, the Camry, at the time of the shooting. Before the shooting, Francois, who had been recently released after a week of incarceration, was riding around with his brothei", Willie Francois. He received a phone call from Chesterfield at around 1:30 a.m., asking him for a ride in exchange for money for gas. After dropping off his brother, Francois picked up Chesterfield from an apartment complex on Jefferson Highway. Chesterfield hasat in the front passenger seat, and a male individual who was with Chesterfield sat in the back seat behind Chesterfield. Francois was not familiar with the other individual, but later determined that he was Samuel Nicholas, noting that he recognized Nicholas in videos on the internet before the shooting.

Francois stated that Chesterfield instructed him to go to College Drive but did not indicate why he wanted to go to that area. While driving to College Drive, Chesterfield engaged in a telephone conversation on speakerphone, and Francois recognized the person’s voice on the speaker as the defendant’s. Francois heard the defendant questioning Chesterfield’s whereabouts and telling him to “hurry up.” He also heard the defendant indicate to Chesterfield that she was following “whoever the guy was” through Walmart and that the person was getting ready to leave the store. Taking directions from Chesterfield and the back seat passenger, who were telling him to “hurry up,” Francois took the College Drive exit and turned to go toward the Walmart through the Albert-son’s parking lot. Francois stated he could still hear the defendant on the speakerphone, and she was telling Chesterfield that they had left the store and she was in her car, following “the person.” Shortly thereafter, as his passengers directed him, Francois turned onto the side street and could hear the defendant on the speaker phone asking Chesterfield if they could see her, that she was right there, in the car behind them. At this time, Nicholas (back seat passenger) pulled out a gun and passed it to Chesterfield stating, “Man, here. Go with your move.” Chesterfield got out of the car, approached the victims’ vehicle and fired two shots into the car. Francois heard the defendant on the phone state, “Girl, I know Chad just didn’t.” Later on the night of the shooting, after arriving home, Francois told his girlfriend, Cierra Henry, to call the authorities and report that her vehicle, the Toyota Camry, had been stolen.

Detective Caan Castleberry of the BRPD homicide division, and an investigator in the shooting, testified regarding the Walmart surveillance footage that he obtained for the time period prior to and until the shooting, as the surveillance videos were shown to the jury. One of the videos depicts the entrance of the Walmart and customers as they exit the store. Detective Castleberry pointed out on the video when the two victims 114exited the store at 2:19 a.m., and stopped to speak with a female (the defendant) outside the store. The defendant is also seen on the video, exiting a black SUV at 2:19 a.m., and stopping to speak briefly with the victims. The victims are seen walking back towards and getting into their vehicle, as the defendant is also shown, going back to and getting into the black SUV. Surveillance footage at 2:23 a.m. shows the defendant’s vehicle backing up, then proceeding forward, and positioning the SUV behind the victims’ vehicle as they headed out of the parking lot to turn onto Rabey Street, to turn left and get onto College Drive. The video shows the victims’ vehicle pass by on Rabey Street and the defendant’s vehicle also turning left out of the driveway. At 2:25 a.m., footage shows another vehicle (the. suspects’ Camry) exit the Albertson’s parking lot, and then travel in reverse.

Vicks, the surviving victim, testified he was close friends with the deceased victim and they had attended a block party together before the shooting. Vicks confirmed that Jordan Key (the deceased victim) had a gun on his waist that night and also testified that Vicks’ father’s gun was in the trunk of the vehicle. Vicks stated that they “got into it” with some unknown guys when Key bumped into another individual as the police were shutting down the party and telling everyone to leave. The altercation was not physical, consisting only of an exchange of heated words. Vicks stated that he and Key went to the IHOP around midnight and then went to Walmart to use the restroom. After exiting the store, he testified they saw the defendant standing outside the store. Vicks testified that he knew the defendant from going to school with her and that he and Key stopped and briefly talked with the defendant. Vicks asked the defendant for her phone number but she refused. After they exchanged pleasantries, the victims got into their vehicle and proceeded to Rabey Street, planning to go home.

Vicks testified he was driving and Key was sitting in the front passenger seat. Vicks noted that he heard gunshots and initially thought someone was shooting in the area before realizing that someone had fired into the vehicle he was driving. He then realized that Key was not speaking and thought that the back window was shot out, though he was not certain. He did not know how many shots were fired, stating that he hfitook off down College Drive, trying to proceed home. He lost control of theyehicle as he travelled across the median at a fast rate, travelling on the wrong side of the road. After going across the median, he discarded the gun that was on the victim’s waist. At that point, he considered taking Key, who was nonresponsive, to the hospital, but the vehicle had been damaged and began swerving. He stopped on Acadian Thruway by the Iberia Bank and called 911. Vicks testified that Key never pulled out his gun that night, further testifying that he did not know Key had a gun until his body fell over as the out-of-control vehicle went over the median. Vicks stated that he discarded the gun because he knew police officers were approaching. He further stated that they had ski masks in the vehicle because they had contemplated robbing someone that night because Key needed money. He testified, however, that they did not have any particular victim in mind and never actually attempted to rob anyone that night. Vicks testified he did not know Chesterfield or Nicholas before the incident. When asked why he. gave the police the defendant’s name after the shooting, he testified, “Because after, after, after like we walked out of Walmart [sic] like I felt like she was stalling, and I felt like she was the one that like—because' nobody else was out there. They had no cars out there. The only cars was in IHOP parking lot. I felt like she had set us up.”

Darius Joseph testified that he, along with about fifteen other individuals, were part of the Cain Muzik Mafia group, which often met at the apartment complex on Jefferson Highway, where Francois picked up Chesterfield on the night in question. During the early morning hours,, after the shooting had taken place, Joseph testified he saw Chesterfield, the defendant, and Nicholas at the apartment complex and recalled them having a conversation about the instant shooting.' Joseph stated that Chesterfield told'him that he vomited, and dropped the gun and a cell phone as he ran from the scene after the shooting. Joseph testified that Chesterfield did not tell him who the victims were and did not provide any additional facts about the shooting. lifiHowever, Joseph stated he later found out more information about the shooting from other members of his household. He stated that Nicholas did not talk much, and that the defendant told him that she was there in the parking lot that night, but stayed in her car. Joseph further stated that the defendant was nervous and “panicky talking.”

BRPD Detective Robert Hunt, of the high-tech crime unit, examined the cell phones recovered in this case. The police determined that one of the I-phones recovered from the Camry was being shared among Chesterfield, Chesterfield’s girlfriend (identified as “Ty” or Tykeshia, the designated owner of the phone), and the defendant. Detective Hunt specifically testified that the defendant’s SIM card was placed into Ty’s phone the day before the shooting, as evidenced by a portion of the forensic report for the phone. That night, Ty’s phone received incoming text messages from one of the other cell phones in evidence stating, “I left myy [sic] gun ...,” and later asking, “See if yu [sic] can go get myy [sic] gun.”

FBI Special Agent Mark Sedwiek analyzed the call detail records in this case provided by AT & T and Sprint for four telephone numbers, revealing usage of the phones in the area of the shooting and the apartment complex on Jefferson Highway, around the time of the shooting. The records confirmed that one of the cell phones, recovered from the Camry abandoned near the scene of the shooting, received á call from the defendant’s phone number minutes before the shooting. The records further show that the defendant’s cell phone was utilizing the tower that covered the area of the murder scene minutes prior to and at the time of the shooting, at 2:27 a.m., that the phone was used out of the area minutes later, and that the phone returned to the coverage area of the shooting within ten minutes following the shooting. At approximately 4:00 a.m., the defendant’s cell phone was utilizing the tower that covered the area of the apartment complex on Jefferson Highway.

117The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La. App. 1 Cir. 1984). The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932.

On appeal, the defendant cites State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam), in arguing that the State did not prove that she had the requisite intent to kill or inflict great bodily harm on “Jordan Key”.' In Pierre, the defendant was convicted of manslaughter after having been charged as a principal to second degree murder under La. R.S. 14:30.1(1). On appeal, the Louisiana Court of Appeal, Third Circuit, affirmed the conviction and sentence. State v. Pierre, 614 So.2d 1309 (La. App. 3 Cir. 1993). The Louisiana Supreme Court reversed the defendant’s conviction, concluding that his mere presence at and near the crime scene did not demonstrate that he had the requisite intent to kill the victim so as to make him a principal to the crime. Pierre, 631 So.2d at 429. The supreme court noted that the jurors had no direct or circumstantial evidence that the defendant therein counseled or procured the others to kill the victim or that he participated in the actual murder. The defendant herein also relies on State v. McGhee, 2015-285 (La.App. 3 Cir. 11/4/15), 179 So.3d 739, wherein the third circuit found the evidence was insufficient to support the defendant’s conviction of simple kidnapping as a principal. The court found that while the State may have proven the codefendants had the intent and performed the actions that would constitute kidnapping the victim, it failed to identify how the defendant would have known of their intent to kidnap and possibly do physical harm to the victim. The court concluded that “[a]t most, the State proved that [McGhee] was present when the victim was kidnapped and failed to stop the kidnapping or report it to authorities.” McGhee, 179 So.3d at 746-47.

[ isThe present case is distinguishable from Pierre and McGhee in that herein the defendant’s actions constituted more than just her mere presence at the crime scene. In this case the evidence, including the surveillance footage, phone records, and testimony, shows the defendant was not only present and aware, but was further involved and played an active role in leading- and counseling Chesterfield regarding the victims’ whereabouts, and stopping and stalling the victims just before the shooting. Chesterfield claimed that he shot the deceased victim because the victim tried to kill him about two months before the instant offenses, further claiming that he saw the victim’s gun on the night in question. Francois testified that he realized what was about to happen before the shooting actually occurred based on what he heard during the speakerphone conversation between the defendant and Chesterfield that took place just moments before the shooting. Francois further testified thát during that conversation, the defendant was directing Chesterfield, telling him to hurry up to the scene where the victims were heading, further informing him that the victims were proceeding to leave the , area. (While the jurors were aware of the fact that Francois was not fully forthcoming and gave inconsistent accounts prior to the trial, he also indicated, that he feared the defendants. The jury was free to accept Francois’s trial testimony.) After the shooting, the defendant, Chesterfield, and Nicholas went back to the apartment complex on Jefferson Highway, where they talked about the shooting in the presence of Joseph.

Under the broad definition of “principals” in Louisiana, the jury did not have to find that the defendant was the one who fired the shots in order to be convicted of the offenses. Rather, the jury had to find that she had the requisite mental state (intent) and was concerned in the commission of a crime, whether present or absent, and whether she directly committed the acts constituting the offenses, aided and abetted in their commission, or directly or indirectly counseled or' procured another to commit the crimes in order to be prosecuted as a principal. See La. R.S. 14:24; State v. Arnold, 2007-0362 (La.App. 1 Cir. 9/19/07), 970 So.2d 1067, 1072, writ denied, 2007-2088 (La. 3/7/08), 977 So.2d 904.

|13We note that , the defendant made pretrial statements, concerning her actions just before the shooting and the identity of the shooter, that were directly controverted at trial by surveillance footage, the testimony of Champagne, and the defendant’s own statement immediately after the shooting indicating that she knew Chesterfield was the shooter, Lying or purposeful - misrepresentations reasonably raise the inference of a “guilty mind” and has been recognized as indicative of an awareness of wrongdoing. State v. Captville, 448 So.2d 676, 680 n.4 (La. 1984).

The defendant’s denial of being actively involved preceding the shooting is contradicted by the evidence in the record before us. A rational juror could have found that the defendant was not merely a bystander who took no part in the criminal activity, but instead aided and abetted in the commission, or directly or indirectly counseled or procured another to commit the crimes. In reviewing the evidence of the defendant’s actions, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), - So.3d -, -, 2016 WL 314814 (per curiam). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam ). Viewing the evidence presented at trial in the light most favorable to the State, we are convinced that any rational trier of fact could find the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and aggravated battery regarding the defendant. Thus, assignment of error number one lacks merit.

I ¡.(ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two,.the defendant argues that the trial court abused its discretion in denying her motion for new tidal. She argues that there were several instances wherein the jury could have drawn improper inferences that led to her conviction. Thus, the defendant contends that the ends of justice would be served by granting her a new trial.

We note that a trial judge’s determination regarding the weight of the evidence under Article 851(1) of the Code of Criminal Procedure is not reviewable on appeal, except for error of law. State v. Korman, 439 So.2d 1099, 1101 (La. App. 1 Cir. 1983); see also La. C.Cr.P. art. 858. Article 851(5) allows the trial court to grant a new trial if the ends of justice would be served although the defendant may not be entitled to a new trial as a matter of strict legal right. The grant or denial of a new trial pursuant to Article 851(5) does not involve questions of fact. In deciding whether the trial court abused its great discretion in granting or denying a new trial under Article 851(5), we keep in mind two precepts. One, in this provision the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. Two, this ground for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. State v. Guillory, 2010-1231 (La. 10/8/10), 45 So.3d 612, 615 (per curiam). In this case, the defendant has made no showing below or on appeal that an error of law, injustice, or abuse of discretion was committed. Thus, we find no merit in assignment of error number two.

CONCLUSION

Based on the record before us, and for the reasons explained herein, we find no error and affirm Essence Dyson’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The defendant was charged and tried along with codefendants Chattley Chesterfield and Samuel Nicholas. As with the defendant herein, the jury found codefendant Chesterfield guilty as charged of second degree murder on count one and guilty of the responsive offense of aggravated battery on count two. Chesterfield has also filed an appeal in this court, challenging the sufficiency of the evidence on the grounds that he shot the victims in self-defense. State v. Chesterfield, 2016-1570, 2017 WL 2399029 (La. App. 1 Cir. 6/2/17). Codefendant Nicholas was found not guilty on both counts.

      . Although the concurrent nature of the sentence was not expressly ordered by the trial court, the sentences shall be served concurrently pursuant to La. Code Crim. P. art. 883, . as the trial court did not expressly state otherwise and the offenses are based on the same act or transaction.

      .As noted later herein, there were three separate crime scenes reported arising from this incident. The first was the location of the victims’ vehicle, which had travelled away from the crime scene following the shooting, with the deceased passenger laying across the seat, and was found behind Iberia Bank at the intersection of Perkins Road and S. Acadian Thruway. The second crime scene was at Ra-bey Street and Bennington, which is crossed by College Drive (the original crime scene); and the third was the dead-end of Rabey Street at Balis Street, where the suspects' vehicle was found, abandoned after pursuit.

      . Deceased victim Keys suffered two gunshot wounds, including a fatal shot that entered the right base of his skull, from the right side to the left, with the projectile being recovered from underneath the skin. The non-fatal gunshot wound was in his left shoulder, and there was no projectile recovered as to that wound since the bullet travelled completely through the body, with the entrance being just slightly on the victim's back. Vicks was transported to the hospital by Emergency Medical Services with non-life threatening injuries.

      . Champagne also recalled allowing a black or dark colored SUV being driven by a female to pass in front of him prior to the shooting, Consequently, he was uncertain of his ability to identify the shooter. He participated in a photographic lineup right after the offenses but did not identify Chesterfield as the shooter.

      . Cheryl Swearingen, a forensic scientist at the Louisiana State Police Crime Laboratory (LSPCL) and expert in firearm examination, examined the .40 caliber semi-automatic pistol found in the Camry along with two bullets and three bullet cartridge cases recovered from the deceased victim and the victims’ vehicle, and determined that the bullets and shell casings were fired from the pistol,

      . Henry initially reported that her vehicle had been stolen that night in a carjacking. However, during police questioning about five hours after the incident, she admitted that her claim was untruthful.

      . Glenn Fahrig, a LSFCL expert in DNA analysis, testified that Francois could not be excluded as the major contributor of mixed DNA samples from the baseball cap located on the ground near the Camry and die front-passenger handle of the Camry. Mark William Perlin, chief scientist and expert in DNA evidence interpretation, testified regarding the match between the DNA sample from the pistol used in the shooting and the defendant’s DNA profile, stating that it "is 108,000 times more probable than a coincidental match.” Codefendant Samuel Nicholas was also a contributor to the DNA profile from the pistol, at a likelihood of 3.21 thousand times more probable than coincidental.

      . The music video also featured codefendant Samuel Nicholas, known as "Mista Cain.”

      . The police later interviewed a witness who indicated that Vicks was armed that night while working as a security guard at a party and that Vicks consumed alcohol that night. The day after the shooting, the police recovered the firearm that was tossed by Vicks, a .22 caliber pistol.

      . The parties agreed to play the majority of the recorded interview at trial.

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

      . Detective Harris concluded that the defendant was implicating Francois as the shooter, noting that Francois had a tattoo on his forehead as described by the defendant.

      .Chesterfield specifically stated that in a conversation that took place after the shooting, Joseph told him that he "went with his move,” an assertion that Chesterfield claimed he interpreted as a confession to the shooting.

      . After portions of Francois’s pretrial interviews were played to refresh his memory, he was allowed to correct some aspects of his testimony. He admitted that he was initially dishonest with the police out of fear.

      . Outside of the presence of the jury, a portion of Joseph’s pretrial interview was played to refresh his memory of the conversation.

      . A text message sent that day from the defendant’s phone number states in part, “oh ok but im [sic] finna [sic] give Ty her phone back so ima txt [sic] you when i get off.”

      .Records indicated that the text messages were sent from a telephone number used by codefendant Nicholas days before the shooting.


source: Caselaw Access Project

author: PENZATO, J.

license: Public Domain

text:
    Robert “Bert” L. FONTCUBERTA and MapMan, LLC Individually and on Behalf of All Others Similarly Situated v. CLECO CORPORATION and Pike Electric, LLC
    2016 CA 1477
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: June 2, 2017

      Gary J. Gambel, Michael D. Letoumeau, New Orleans, Louisiana and Jennifer N. Willis, William P. Buckley, New Orleans, Louisiana, Attorneys for Plaintiffs/Appellants, Robert “Bert” L. Fontcuberta and MapMan, LLC, individually and on behalf of all others similarly situated
    W. Raley Alford, III, William M. Ross, Eva J. Dossier, New Orleans, Louisiana, Attorneys for Defendants/Appellees, Cleco Corporation and Cleco Power, LLC
    Charles J. Duhe, Jr., Jason D. Bone, New Orleans, Louisiana, Attorneys for Defendant/Appellee, Pike Electric, LLC
    BEFORE: PETTIGREW, McDonald, and penzato, jj.
   PENZATO, J.

1 ¡¡Plaintiffs, Robert “Bert” Fontcuberta and MapMan, LLC (MapMan), appeal a judgment denying a class certification against Defendants, Cleco Corporation, Cleco Power, LLC (Cleco), and Pike Electric, LLC (Pike). For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 11, 2013, a vehicle accident occurred that involved an automobile striking a utility pole adjacent to Ochsner Boulevard in St. Tammany Parish. As a result of the accident, plaintiffs and a number of other residents/businesses lost electrical power. The utility pole belonged to Cleco. The pole supported a 34.5 kV circuit (Circuit 4001) and a 13.2 kV circuit (Circuit 4186C). The force of the impact dislodged a wire on Circuit 4001, the higher voltage distribution circuit, which contacted or came into proximity with a wire on Circuit 4186C, the lower voltage circuit. This resulted in an abnormal electrical event, or “fault.” As a result of the accident, approximately 2000 Cleco customers lost power. Specifically, some customers on Circuit 4001 lost power, and all of the customers on Circuits 4186A, 4186B, and 4186C lost power. Each of those four circuits had four “phases,” or distribution wires. Generally, each customer receives power from only one phase, and customers in the same neighborhood may be served by different phases.

Pike provides skilled labor to customers such as Cleco to perform electrical maintenance and repair work. Pike’s crew foreman, Mike Morel, Jr., testified that | she learned of the accident while his crew was at another job. Cleco called and requested that his crew assist Cleco with the pole after the accident. Morel explained that when he arrived on the scene, the line was already de-energized, and his crew changed two lightning arresters, also known as surge protectors. Cleco and Pike performed repairs and “switching” operations to restore power in stages and approximately two hours after the accident. Mr. Morel testified that Pike was not involved in the actual restoration of power, and Pike’s crew was not present when the power was restored.

Mr. Morel also explained that the surge took place when the 34.5kV line (higher-voltage line) fell- -on the 18.2 kV line (lower-voltage line), and that the surge is created when the electricity attempts to return to the source, the main substation.

Plaintiffs allege that a surge occurred during the restoration of power. Plaintiffs specifically claim that defendants, Cleco and Pike, an independent contractor, while attempting to restore the power, “performed the restoration operation in a negligent fashion so- that a massive electrical surge was created, damaging wiring, appliances, buildings, and other things belonging to plaintiffs and other residents/businesses/customers of defendants.” The plaintiffs alleged that the “electrical surge destroyed appliances, damaged electrical systems, started fires, and caused other harm and losses.”

Cleco maintains that any surge would have coincided with the automobile crash that damaged the utility pole, as opposed to the restoration of power that followed. Cleco further asserts that the plaintiffs’ expert also agreed that the surge occurred prior to the restoration.

| ¿Plaintiffs filed -a motion to certify the class on- January 21, 2015. The trial court held a class certification hearing on May 11, 2016. On the same date, plaintiffs filed a motion to- amend the class action petition. The motion sought to amend paragraph 5 of the original petition to read:

Due to defendants’ negligence in designing, installing, maintaining and/or repairing their electrical equipment, and/or due to defendants’ negligence in restoring power following the car accident, a massive electrical surge was created, damaging wiring, appliances, buildings, and other things belonging to plaintiffs and other residents/businesses/customers of defendants.

The trial court issued written reasons on June 28, 2016, and signed a judgment on July 21,2016, denying plaintiffs’ motion for class certification,' On June. 29, 2016, the trial court held a hearing on the motion for leave to amend the class certification. Because the trial court had already denied the class certification and because plaintiffs sought to add a new theory of liability after the deadlines set by the trial court, the trial court denied the motion to amend the petition for class certification and signed a judgment in accordance therewith on August 30, 2016. This appeal was originally brought referencing the date of June 28, 2016, the date of the'trial court’s written reasons. This court issued a rule to show cause, and the trial court issued a new appeal from the correct date of the July 21, 2016 judgment denying class certification. The only judgment being appealed is the July 21, 2016 judgment denying the class certification. No appeal has been taken from the August 30, 2016 judgment denying the motion to amend the class certification.

[.ERRORS

Plaintiffs claim the trial court erred in finding that they did not meet their burden of satisfying the requirements to certify a class of commonality, numerosity, typicality, adequacy of representation, and predominance.

LAW AND DISCUSSION

A trial court has wide discretion in deciding whether to certify a class. An appeal of a judgment addressing class certification is reviewed under the manifest error standard; the trial court’s factual findings can only be reversed upon finding, based on the entire record, no reasonable factual basis for the factual finding and the fact finder is clearly wrong. The ultimate decision of whether to certify the class is reviewed under the abuse of discretion standard. Baker v. PHC-Minder, L.P., 2014-2243 (La. 5/5/15), 167 So.3d 528, 538.

The only issue to be considered by the trial court when ruling on certification, and by this court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining-the propriety of such action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood they ultimately will-prevail on the merits, but whether the statutory requirements have been met. Baker, 167 So.3d at 537.

Under Louisiana law, the requirements for class certification are set forth in La. C.C.P. art. 591. Article 591(A) provides five threshold prerequisites, often referred to as numerosity, commonality, typicality, adequacy of representation, and objective definability of class:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
I fi(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of, ascertainable criteria, such that the court may determine the constituency of .the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.

Besides meeting the five prerequisites above, plaintiffs must meet one of the requirements of Article 591(B) depending on the type of class action sought. Plaintiffs seek certification under Article 591(B)(3), which provides:

(3)The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent-to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification:
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

Furthermore, “class action rules do not set forth a mere pleading standard; rather, a party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Price v. Martin, 2011-0853 (La. 12/6/11), 79 So.3d 960, 967 (citation omitted). While any errors to be made in deciding class action issues should, as a general rule, be in favor of and not against the maintenance of the class action because a class certification is always subject to modification or decertifi-cation if later developments so require, see La. C.C.P. art. 592(A)(3)(c), that general rule cannot and should not be used as a substitute for the rigorous analysis required to determine whether the prerequisites of Louisiana’s class action provisions have in fact been satisfied. Price, 79 So.3d at 967.

The Legislature has specifically provided, emphasizing the commonality and predominance requirements, that class “[cjertification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class.” La. C.C.P. art. 591(C); see also Baker, 167 So.3d at 539. “[TJhe mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” Baker, 167 So.3d at 539 (citation omitted).

The burden of establishing that the statutory criteria have been satisfied falls on the party seeking to maintain the class action. Baker, 167 So.3d at 539 (citation omitted). Therefore, the plaintiffs were required to prove the five prerequisites of Article 591(A), namely numerosity, commonality, typicality, adequacy of the representative parties, and an objectively definable class. Likewise, they were required to prove common questions of law or fact predominate over individual issues and the class action is superior to any other method for resolving the controversy fairly and efficiently under Article 591(B).

Commonality

The commonality prerequisite requires a party seeking class certification to show that “[tjhere are questions of law or fact common to the class.” La. C.C.P. art. 591(A)(2); Baker, 167 So.3d at 542. The mere existence of common questions, however, will not satisfy the commonality requirement. Commonality requires a party seeking certification to demonstrate the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution—one where the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Price, 79 So.3d at 969 (citation omitted). “To satisfy the commonality requirement, there must exist ‘as to the totality of the issues a common nucleus of operative facts.... ’ A common question is one that, when answered as to one class member, is answered as to all of them.” Price, 79 So.3d at 969 (citation omitted).

In the context of mass tort litigation, the Louisiana Supreme Court has found that in order to meet the “commonality” requirement, “each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.” Brooks v. Union Pacific Railroad Co., 2008-2035 (La. 5/22/09), 13 So.3d 546, 559. When plaintiffs’ individual liability issues predominate over the issue of the defendant’s duty, a class action certification is not appropriate. See Banks v. New York Life Ins. Co., 1998-0551 (La. 7/2/99), 737 So.2d 1275, 1281, cert. denied, Major Banks v. New York Life Ins. Co., 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000). When there are a myriad of individual complaints that ultimately will require plaintiff-by-plaintiff adjudication of liability issues, this will militate against a finding of predominance of common character and the superiority of the class action procedure. See Banks, 737 So. 2d at 1281-82.

We agree with the trial court, that to establish commonality, the plaintiffs in this matter must present evidence not simply that a power surge occurred because of the fault of the defendants, but that the defendants had a duty to avoid causing a |flpower surge; that this duty was breached; and that the breach caused plaintiffs to sustain property damage. See Price, 79 So.3d at 969-970. Furthermore, one class member must be able to prove the cause of his injury or damage based on the same set of operative facts as would be offered by every other member of the class. See Brooks, 13 So.3d at 561.

We note, as did the trial court, that other jurisdictions have rejected the class action format for suits based on interruption of power. In Brown v. New Orleans Public Service, Inc., 506 So.2d 621 (La. App. 4 Cir.), writ denied, 508 So.2d 67 (La. 1987), utility customers sued for power interruptions during a cold snap. Brown reversed the trial court’s granting of class certification, explaining that, although the alleged negligence was common to all claims, there were too many individual differences in proof of causation and the availability of defenses like comparative negligence, as well as the amount of damages, to warrant a finding of predominance' of common facts and issues. Brown, 506 So.2d at 623.

In LaFleur v. Entergy, Inc., 1998-344 (La.App. 3 Cir. 12/9/98), 737 So.2d 761, a winter storm power interruption case where the plaintiffs alleged negligent failure to maintain the power system, the appellate court affirmed the trial court determination that the proposed class did not meet the predominance requirement. Although an ice storm ultimately caused power outages affecting all plaintiffs, it was not clear that the damages of the entire putative class were caused by the defendants’ alleged negligence. LaFleur, 737 So.2d at 765.

In Royal Street Grocery, Inc. v. Entergy New Orleans, Inc., 1999-3089 (La.App. 4 Cir. 1/10/01), 778 So.2d 679, writ denied, 789 So.2d 594 (La. 4/12/01), the appellate court affirmed the trial court’s denial of class certification where a fire in an underground electrical vault prompted the fire department to twice order that the utility de-energize an entire grid. Business and individual electrical customers sued, and the court found a lack of predominance of common liability | ^issues. Various parties had different causes of action and even different standing issues, and the individualized claims could warrant different defenses. Royal Street Grocery, 778 So.2d at 685.

Similarly, in Entergy Gulf States, Inc. v. Butler, 25 S.W.3d 359 (Tex. App. 2000), the Texas appellate court reversed a class certification granted to electrical utility customers who claimed damages from power outages triggered by an ice storm. Again the plaintiffs based their claim on the alleged failure .to properly maintain the system to prepare for storms, and again the court found that common issues did not predominate. Butler, 26 S.W.3d at 362-63.

The plaintiffs rely on Cleco Corp. v. Johnson, 2001-0175 (La. 9/18/01), 796 So.2d 302, for the proposition that a nearly identical incident occurred in 1997 wherein Cleco actually settled with its customers, “and therefore had no problem acknowledging. that a power surge occurred and was the cause of the damage.” Johnson ,is distinguishable from the present case, as it did not involve class certification, but whether Cleco Corporation, the subrogee, had a cause of action against the tortfeasor, who had hit electrical equipment, causing a power surge,

The plaintiffs also rely on Doe v. Jo Ellen Smith Med. Found., 2012-0966 (La. App. 4 Cir. 4/24/13), 116 So.3d 655, 662, writ denied, 2013-1197 (La. 9/13/13), 120 So.3d 699, for the proposition that “the single most important issue to be determined is the duty of defendants.” Doe distinguished the facts of Price by stating:

On the issue of causation, the Court held that the plaintiffs needed to demonstrate through common evidence that chemicals- from the facility were found on the plaintiffs’ property. However, the Court concluded that because of the different types of damages (personal, property, and business) as well as the plaintiffs’ -varying habits, exposures, and lengths of exposure, the issue of causa-could not be resolved on a class wide basis.

Doe, 115 So.3d at 662 (internal citations omitted). For reasons that follow,,we find that the issue of causation in the present case is more similar to the facts of | ^Price, as there are different types - of damages and ’varying exposures involved in this matter,

We agree -with the trial court’s observations in referring to Royal Street Grocery, LaFleur, and Brown that “[t]he common issue in the holdings in these cases is that the class mechanism is not feasible because such -claims require individualized determinations not just on damages, but also with respect to the issues of fault and causation, and therefore the courts recognized that the factors of ‘commonality’ and/or ‘predominance’ were not met.”

The plaintiffs’ expert, James Orosz, P.E., who is an electrical engine'er, testified that the surge event that occurred on December 11, 2013, resulted from the higher-voltage line coming into contact with the lower-voltage line, 'and that this was the only surge event that occurred. He stated that there was only one surge event. He further testified that the restoration of power was completed in different stages, and he did not believe that the surge was during the restoration. Mr. Orosz noted that once the power to “this particular area” on Ochsner Boulevard was shut down to allow line crews to begin their work, the surge was actually over. When the switches were opened to allow the line crews to begin their work, the surge event had ended.

The testimony -of Mr. Orosz regarding how the surge occurred, the higher-voltage line coming into contact with the lower-voltage line, is consistent with the testimony of the defendants’ expert, Troy Little, P.E., a registered professional electrical engineer and certified fire cause and origin investigator. „ Mr. Little. testified that the higher-voltage line contacted the lower-voltage line, causing an abnormal electrical event, Mr. Morel also testified that the higher-voltage line fell on the lower-voltage line, causing the surge. The plaintiffs argue that Mr. Little claimed at one point in his testimony that he was unsure if the high-voltage line fell on the lower-voltage line on the day of the accident. However, after reviewing 112the referred to testimony of Mr. Little, this court understands that he stated that he could not absolutely say that the higher-voltage line fell on the lower-voltage line and caused the surge, but that is likely what happened. He was simply explaining that there were no absolutes as to causation, not that he was unsure of whether the high-voltage line fell on the lower-voltage line.

Mr. Orosz also testified that every customer that was connected to the line with the surge did not have the same electrical circuits or same equipment, so they were not affected in the same manner. Some customers experienced no damage, and some customers experienced damage to some items, but not other items in the same residence. Mr. Orosz also stated that he would have expected all of the customers on the line to have experienced the surge, but that “[t]he damages would be contingent on other variables.”

Mr. Little also testified that based upon what he had seen, he did not believe there was any way to know "which customers were impacted with a voltage and at what level it may have' been. Mr. Little explained that numerous contingent variables would need to be considered to determine the effect, if any, that a surge would have had on a particular utility-service location or a piece of equipment within the location, including (1) the circuit and phase from which the location is served; (2) the distance between the location and the site of the vehicle accident; (3) the- voltage level at the location (a surge attenuates, or reduces, as it travels away from its source); (4) the quality and age of the grounding and wiring at the location; (5) the age, condition, and quality of the equipment; (6) any steps taken by customers to protect the property, such as using surge protectors; (7) actions by the customer that could have damaged the equipment, such as a malfunctioning or misused gem erator used during the outage; and (8) when the customer claims to have discovered the damage. Essentially,. Mr. Little testified that each piece ofjjequipment for each claim would need to be separately analyzed to determine if it was damaged and, if so, the cause of such damage.

Mr. Orosz further testified that to verify the accuracy of each claim, he would like “to get the piece of equipment and take it apart to see what—-what the damage is” to determine potential causes of the damage. Mr.-Orosz admitted that he did not inspect any- of the customer equipment in forming his opinions- in this matter. Plaintiffs have the burden of proving that all of the claimants share the- same single cause. See Price, 79 So.3d at 972 (finding plaintiffs failed to present sufficient evidence of a common thread of causation where plaintiffs’ expert did not actually perform an analysis of the attic dust of the properties tested to determine the source of contamination).

The trial court determined that both experts conceded that numerous factors and “variables” would need to be considered with respect to each claimant. Plaintiffs argue that Mr. Orosz testified that “everyone on the circuit would experience the surge.” However, Mr. Orosz did distinguish that the general group experienced the surge, but the surge may not have caused damage for all of the customers. Therefore, not every customer who experienced a surge would have sustained damage attributable to the surge. The plaintiffs’ expert testimony is at odds with any theory that a particular circuit or circuits can be used to create common issue to define the class. .

Furthermore, this matter involves a multitude of different damages. Mark and Deborah Cortez filed suit against Cleco, alleging that during the repair of the Cleco equipment damaged in the vehicle accident, their home caught fire, causing personal injuries to Mr. Cortez. The suit claims damages for bodily injury, lost income, loss of earning capacity, mental anguish, loss of consortium, and property damage. Linda Bombardier also filed suit against Cleco, alleging that during the repair of the Cleco equipment damaged in the vehicle accident, both her home and | ^numerous contents of her home were damaged or destroyed. She sought damages for lost income, increased business expenses, mental anguish, property damage to her home, and loss of consortium. Cleco has provided a copy of numerous damage claims made by customers for various types of damaged equipment, including but not limited to damage to dishwashers, computers, ice makers, coffee pots, dryers, septic pumps, hot water heaters, a/c units, TVs, and ceiling fans.

Additionally, plaintiffs have named Pike as a defendant. It is undisputed that Pike was not an electrical provider, but only arrived at the scene after the vehicle accident and after the line had been de-energized. Pike’s only involvement was to replace two lightning arresters, and then Pike left the scene. Mr. Fontcuberta, the class representative, testified that he had no personal knowledge of any action taken by Pike that day. Mr. Orosz, the plaintiffs’ expert, testified that any surge would have occurred before Pike’s crew began its work.

There is no evidence in the record that the putative class members were customers of Pike, or how many, if any, putative class members were affected by the work performed by Pike. There is no evidence that the replacement of the lightning ar-resters adversely impacted any member of the putative class. Given the limited nature of the services performed by Pike, the replacement of two lightning arresters in a single subdivision, there are no common issues of law and fact relating to Pike’s involvement that would encompass the entire class. No person has been identified by the plaintiffs who may assert a claim against Pike for the work it performed.

We cannot say the trial court was manifestly erroneous in determining that the plaintiffs failed to carry them burden of demonstrating the requirement of commonality. The plaintiffs’ expert testified that he would have to take apart each piece of equipment damaged to determine the cause of the alleged failure and that there would be many variables. See Alexander v. Norfolk S. Corp., 2011-2793 (La. 3/9/12), 82 So.3d 1234, 1236 (per curiam) (trial court erred in certifying class because it “failed to take into account undisputed evidence in the record demonstrating that any determination of damages will be dependent upon proof of facts individual to each putative class member”): Brooks, 13 So.3d at 569 (trial court erred in certifying class because all experts testified that the predominate cause of flooding was dependent on an individual’s location). When each member of the proposed class will necessarily have to offer different facts to establish liability and damages, “the class [will] degenerate into a series of individual trials.” Alexander, 82 So.3d at 1236.

All of the criteria of Article 591(A) must be met for a class to be certified. Even though we have found that the commonality requirement is not met, precluding the certification of the proposed class, we will briefly address the other requirements.

Numerosity

In order to show numerosity, the plaintiffs must produce evidence that “the class is so numerous that joinder of all parties is impracticable.” La. C.C.P. art. 591(A)(1). There is no set number above which a class is automatically considered so numerous as to make joinder impractical as a matter of law. Baker, 167 So.3d at 542. The mere “allegation of the existence of a large number of potential claimants does not satisfy the necessity to establish the element of numerosity.” Singleton v. Northfield Ins. Co., 2001-0447 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 63, writ denied, 2002-1660 (La. 9/30/02), 825 So.2d 1200; see Baker, 167 So.3d at 542. To meet the requirement, the plaintiff must show join-der is impractical, but, at the same time, there is a definable group of aggrieved persons. Baker, 167 So.2d at 542. The definable group of aggrieved persons must have plausible claims. Singleton, 826 So.2d at 63. At the class certification hearing, the plaintiffs bore the burden of proving that there were a Insufficient number of aggrieved parties, in fact, such that joinder was impracticable. See Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13), 112 So.3d 822, 835.

Plaintiffs alleged that “there are dozens[,] if not hundreds[,] of putative class members who were affected by the electrical surge.” In their motion to certify class, plaintiffs alleged that “well over a hundred [Cleco] customers suffered damages as a result of the incident.” The evidence presented at the certification hearing was that approximately 2,000 customers lost power. While the parties dispute exactly how many customers reported damage, the evidence supports' that just over 50 claims were made for damaged equipment. Mr. Orosz testified that over 200 customers were affected by the surge. He further stated that although he could say how many customers were affected by the common surge, he could not say how many suffered damage. He admitted to not examining any of the alleged damaged equipment.

The trial court based its finding that plaintiffs did not meet the numerosity requirement on the fact that although approximately 50 claims of damage were reported in this matter, only three Cleco customers filed suit arising out of the December 11, 2013 incident, and that no suits or claims were asserted against Pike.

We disagree with the trial court’s reasoning that the plaintiffs did not meet the numerosity requirement because only three lawsuits were filed against Cleco as this requirement is not dependent upon the number of lawsuits filed. However, “plaintiffs seeking certification [must] meet a threshold burden of ‘plausibility’ as a component element of a prima facie showing of numerosity.” Moreover, the “burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members.” Boyd v. Allied Signal, Inc., 2003-1840 (La. App. 1 Cir. 12/30/04), 898 So.2d 450, 457, writ denied, 2005-0191 (La. 4/1/05), 897 So.2d 606. Therefore, 117due to the difficulties the plaintiffs in this case have in showing causation, as discussed above, we agree that the numerosity requirement has not been met.

Typicality and Representativeness

The typicality requirement of Article 591(A) requires that the claims of the class representatives are typical of the claims and defenses of the class. This requirement determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. Baker, 167 So.3d at 543. The representativeness requirement of Article 591(A) requires that the representatives will fairly and adequately protect the interest of the class.

Plaintiffs presented evidence that Mr. Fontcuberta was a residential customer of Cleco and had'an account for his own residence, as well as for. his daughter’s residence. Mr. Fontcuberta sought recovery for damage to the property of Map-Man, the business he runs out of his home, but MapMan was not a customer of Cleco on December 11, 2013. MapMan seeks recovery for damage to its property, even though it was never a customer of Cleco; Mr. Fontcuberta seeks recovery for damage to property belonging to his daughter, and not him. Ms. Westmoreland, who lives in the cottage. behind Mr. Fontcuberta’s house, reported that something may have been lying on the power line,, but Mr. Fontcuberta indicated that the line is underground. One of Mr. Fontcuberta’s televisions allegedly had to be replaced, whereas another television did not, and other’ appliances suffered no damage. One of Mr. Fontcuberta’s appliances connected to a surge protector was reported to be damaged, while others appliances connected to the same surge protector were not damaged. Mr. Fontcuberta claims, that MapMan lost business as a result of the loss of data on two hard drives, but he did not attempt to retrieve the data. Furthermore, the amount of the “business loss” was unknown to him, •

| isThe claims of Mr. Fontcuberta are not identical in nature to the claims of the members of the putative class. Mr. Fontcu-berta seeks damages for numerous electronics in his home, computer equipment of MapMan, and an electronic belonging to his daughter. Mr. and Mrs. Cortez seek damages for bodily injury, lost income, loss of earning capacity, mental anguish, loss of consortium, and property damage, as well as damages for their company, Speer, LTD. Ms. Bombardier seeks damages for lost income, increased business expenses, mental anguish, property damage to her home, and loss of consortium. As noted by the trial court, “these claimants are seeking damages associated with lost income, increased business expenses, inconvenience, loss of earning capacity, loss of consortium, loss of enjoyment of life, personal injury, medical expenses, and pain and suffering.” This case, does not present the situation where the only issue that varies is the extent of damage for each individual member of the class. See Brown, 506 So.2d at 623.

Furthermore, plaintiffs have offered no evidence that the claims of the proposed class representatives, Mr. Font-cuberta and MapMan, would be typical of the claims of the putative class against Pike. When Pike arrived at the scene of the- vehicle accident, the line had already been de-energized. Pike changed two lightning arresters. Pike left the scene after changing those arresters. Therefore, the trial court did not commit manifest error in determining that the plaintiffs failed to satisfy the typicality and representativeness requirements of Article 591(A).

Predominance and Superiority

Additionally, plaintiffs were required to demonstrate that, pursuant to Article 591(B)(3), common questions of law or fact predominate over any individual issues and, that the class action procedure is superior to any other. Price, 79 So.3d at 975. The Louisiana Supreme Court explained:

liiiThe inquiry into predominance tests “whether the proposed classes are sufficiently cohesive to warrant adjudication .by representation.” ... [T]he predominance requirement is more demanding than the commonality requirement, because it “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,” a process that ultimately “prevents the class from degenerating into a series of individual trials.” [Citations omitted.]

Price, 79 So.3d at 975 (quoting Dupree v. Lafayette Ins. Co., 2009-2602 (La. 11/30/10), 51 So.3d 673, 683).

As the commonality requirement has not been met in this matter, the logical corollary is that substantive questions of law and fact common to the class will not predominate over questions affecting only individual members. Where “each member of the proposed class will necessarily have to offer different facts to establish liability and damages,” and “any determination of damages will be dependent upon proof of facts individual to each putative class member,” it is reversible error to certify a class. Alexander, 82 So.3d at 1236. We agree with the trial court that “there are substantial individualized differences as to each element of potential claims, including the critical inquiry into causation.” Therefore, the predominance requirement has not been satisfied.

Furthermore, the present case presents issues as to individualized defenses, and issues as to the type of damages allegedly sustained by individual class members that make the class action procedure inferior, rather than superior, to other forms of adjudication in this case. Royal Street Grocery, 778 So.2d at 685-86. The claims of the non-customers of Cleco, Map-Man, Mr. and Mrs. Cortez, and Speer, LTD, would require separate adjudication, and thereby undermine judicial efficiency. See Price, 79 So.3d at 977; Dupree, 51 So.3d at 701. Therefore, the class action is not superior to other available methods for the fair and efficient adjudication of this matter.

I ^CONCLUSION

For the above and foregoing reasons, the trial court’s July 21, 2016 judgment denying plaintiffs’ motion to certify class is hereby affirmed. Costs of this appeal are assessed against plaintiffs, Robert “Bert” L, Fontcuberta and MapMan, LLC, individually, and on behalf of all others similarly situated.

AFFIRMED.

      . Throughout the record and the briefs, the parties at various times refer to “MapMan” as "MapMan.” Since the petition was filed in the name of "MapMan,” we will refer to this party as such.

      . Cleco Corporation asserts that it is not the proper party in this litigation, as it is a holding company that has no customers and no potential liability. Plaintiffs filed a supplemental and amending petition adding Cleco Power, LLC, the public utility in St. Tammany Parish, as a defendant, but did not amend their class certification. Although this court refers to “Cleco” in this opinion, we are cognizant that Cleco Corporation has not waived its defense that it is a proper party to this action.

      . In their brief, plaintiffs incorrectly refer to Mr. Morel as a Cleco employee. The record supports that Mr. Morel was an empldyee of Pike at the time of the incident, and an employee of Chain Electric at the time his deposition taken on January 19, 2016. There is no evidence in the record that Mr. Morel was ever employed by Cleco.

      . There does not appear to be a transcript from this hearing in the record. The court minutes indicate that a hearing took place and the trial court signed a judgment on August 30, 2016, referencing the hearing date.

      . The Amended Order for Devolutive Appeal is dated December 7, 2016.


author: THERIOT, J.

text:
    Brandon M. DONAHUE v. Sarah Ann DONAHUE
    NO. 2016 CU 0757 R
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: June 2, 2017

      Richard Ducote, Covington, Louisiana, Counsel for Defendant/Appellant, Sarah Ann Donahue
    Frank P. Tranchina, Jr., Tracy E. Gold, Covington, Louisiana, Counsel for Plaintiff/Appellee, Brandon M. Donahue
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

[¾In this child custody case, which comes before us on remand by order of the Louisiana Supreme Court, the appellant, Sarah Ann Donahue, challenges the re-allotment of her case and the judgment of the trial court granting sole custody of a minor child to the child’s father, the appellee, Brandon M. Donahue. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Mr. Donahue and Ms. Donahue were married in June of 2012. The couple had one child together during the course of their marriage, a son, born on January 13, 2013. On July 24, 2013, Mr. Donahue filed a petition for divorce against Ms. Donahue pursuant to La. C.C. art. 102. In his petition for divorce, Mr. Donahue requested that he be granted provisional custody of the couple’s minor child and that he and Ms. Donahue ultimately be granted joint custody of their minor child with him being designated as the domiciliary parent. Mr. Donahue alleged that on July 7, 2013, Ms. Donahue became violent and destructive in his presence while she was holding the couple’s minor child. Mr. Donahue also alleged that Ms. Donahue has a history of irrational and aggressive behavior.

The record consists of several consent judgments pertaining to issues of child custody, child support, and spousal support. Throughout the course of the proceedings, Ms. Donahue’s mental health has remained one of the primary issues in contention. Relevant hereto, Mr. Donahue and Ms. Donahue both filed motions seeking sole custody of their minor child. The opposing motions came before Division “L,” presided over by Judge Dawn Amacker, for a prolonged hearing on September 28, October 21, October 28, and November 2, 2015. Following extensive testimony on the matter, Judge Amacker issued an oral ruling finding that there had been a material change |sin circumstances regarding Ms. Donahue’s mental health and her ability to care for the couple’s minor child. Judge Amaeker ruled that Mr. Donahue should be granted sole custody of the couple’s minor child, and she ordered that Ms. Donahue be granted supervised visitation. Judge Amacker directed counsel for Mr. Donahue to submit a formal judgment in accordance with her oral ruling.

Thereafter, on November 17, 2015, a judgment was prepared for signing and filed into the record. However, before Judge Amacker signed this judgment, Ms. Donahue’s counsel withdrew from representation, and Richard Ducote enrolled as new counsel of record for Ms. Donahue. On November 23, 2015, Judge Amacker voluntarily recused herself from the case, explaining, in pertinent part:

Richard Ducote has chosen to engage in public conduct that personally and professionally attacks Judge Amacker. The Court does not agree that Mr. Du-cote’s conduct has caused Judge Amacker by design or effect to be biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Furthermore, the Court does not agree that recusal is required based on [Mr.] Donahue’s alleged status as a deputy or upon [Ms.] Donahue’s intentions to sue the Sheriffs Office.
The Court does find that voluntary recusal is appropriate, to avoid even an appearance of impropriety, in any case in which Richard Ducote is enrolled as counsel of record for one of the parties and therefore voluntarily recuses in the above captioned matter.

Consequently, Judge Amacker did not sign the judgment prepared in accordance with her oral ruling, but instead ordered the case to be re-allotted to Division “K,” presided over by Judge Mary Devereux, which, like Division “L,” has jurisdiction limited to family and juvenile matters pursuant to La. R.S. 131621.22(B).

|40n December 1, 2015, Ms. Donahue objected to the re-allotment, arguing that the case should have been randomly allotted amongst all the divisions of the trial court with general jurisdiction. Judge Dev-ereux denied Ms. Donahue’s objection on December 7, 2015. On December 23, 2015, Ms. Donahue filed a motion for new trial, which.was denied by Judge Devereux. Finally, on February 12, 2016, Judge Dever-eux signed. the judgment .that had been filed in accordance with Judge Amacker’s oral ruling on November 17, 2015. In written reasons for judgment, Judge Devereux stated that she had reviewed the 800-page transcript of the entire hearing, including the exhibits and the pleadings, and found' that no additional evidence was needed to render judgment. She analogized Judge Amacker’s factual findings to a hearing officer’s recommendations, and stated it would be “illogical and disrespectful” not to accept same. Ms. Donahue appealed Judge Devereux’s ruling to this court.

In our original opinion in this matter, we vacated Judge Devereux’s ruling and remanded the case to the trial court for further proceedings. See Donahue v. Donahue, 16-0757 (La.App. 1 Cir. 9/16/16), 2016 WL 4942403 (unpublished) (“Donahue I”). In Donahue I, we specifically held that Judge Devereux was not a “successor judge” to Judge Amacker as delineated by La. R.S. 13:4209. We explained that Judge Amacker had recused herself from the case and had not left office under any of the enumerated conditions mentioned in La. R.S. 13:4209(B). See Donahue I, 2016 WL 4942403, *3 (citing Starkey v. Starkey, 13-0166 (La.App. 1 Cir. 8/6/13), 122 So.3d 579, 583).

The Louisiana Supreme Court then granted Mr. Donahue’s writ application and reversed our decision, explaining:

The plain language of La. R.S. 13:4209(B)(2) provides, “[i]f a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.” [emphasis added]. In the instant case, Judge Amacker, through her oral reasons, clearly manifested an affirmative intent to sign a judgment in favor of relator. Therefore, Judge Devereux, in her capacity as successor judge, is empowered to sign the judgment. Any other result would be contrary to the statutory' intent as well as the interests of judicial economy.
Accordingly, the writ is granted. The judgment of the court of appeal is vacated and set aside. The district court’s February 12, 2016 judgment is reinstated, and the case is remanded to the court of appeal for consideration of the appeal on the merits.

Donahue v. Donahue, 16-1863 (La. 11/18/16), 206 So.3d 868, 858-59 (per curiam).

lain accordance with—and pursuant to— the order of the Louisiana Supreme Court vacating our holding in Donahue I and remanding the case to this court for consideration of the merits of the appeal, we now turn to address the three assignments of error raised by Ms. Donahue.

LAW AND DISCUSSION

In her first assignment of error, Ms. Donahue claims that Judge Amacker erred by directly re-allotting the case to Judge Devereux, and she further submits that Judge Devereux erred by refusing to order the random re-allotment of the case in accordance with La. C.C.P. art. 253.1. In her related third assignment of error, Ms. Donahue claims that Judge Devereux erred by deeming herself to be a successor judge of Judge Amacker and by entering a final judgment based solely upon the evidence heard by Judge Amacker.

In this case, as explained above,.Judge Amacker recused herself from the case and ordered the matter be re-assigned to Judge Devereux after Mr. Ducote enrolled as counsel of record for Ms. Donahue. Judge Devereux thereafter signed the judgment that had been filed in accordance with Judge Amacker’s oral ruling on November 17, 2016. Notwithstanding the foregoing, the Louisiana Supreme Court has determined that Judge Devereux was entitled to sign the judgment in her capacity as a successor judge pursuant to La. R.S. 13:4209. See Donahue, 206 So.3d at 858. Thus, in accordance with the decree of the Louisiana Supreme Court, we are bound 17to conclude that there can be no error as it concerns the re-allotment of the case by Division “L,” presided over by Judge Amacker, to Division “K,” presided over by Judge Devereux, following Judge Amacker’s voluntary recusal. Similarly, we are bound to conclude that there can be no error as it concerns Judge Devereux’s signing of the judgment rendered, but not signed, by Judge Amacker as per La. R.S. 13:4209. Ms. Donahue’s first and third assignments of error do not merit relief.

In her second assignment of error, Ms. Donahue claims that Judge Devereux erred as a matter of law and manifestly abused her discretion in denying Ms. Donahue’s December 23, 2015 motion for new trial. In support of this remaining assignment of error, Ms. Donahue maintains that Judge Devereux was not a successor judge under La. R.S. 13:4209 and could not render a judgment based upon the proceedings before Judge Amacker. Ms. Donahue notes that there were several bases for Judge Amacker’s recusal and claims that there were compelling reasons for Judge Devereux to reconsider the merits of the motions pertaining to child custody and the best interests of the child.

Generally speaking, a trial court should grant a motion for new trial when convinced by its examination of the facts that the judgment would result in a miscarriage of justice. See Krolick v. State ex rel. Dept. of Health & Human Resources, 99-2622 (La.App. 1 Cir. 9/22/00), 790 So.2d 21, 28, writ denied, 00-3491 (La. 2/9/01), 785 So.2d 829. The trial court has much discretion in determining whether to grant or deny a motion for new trial. Id. When the trial court’s decision is reviewed on appeal, the appellate court should determine whether the trial court abused its discretion in granting or denying the motion for new trial; the trial court’s decision to [ sgrant or deny the motion for new trial on discretionary grounds will not be reversed unless an abuse of discretion can be demonstrated. Id.

Herein, for the reasons explained more fully above, to the extent that-Ms. Donahue challenges the correctness of the trial court’s denial of her motion for new trial on procedural grounds, we are bound to conclude that Judge Devereux did not abuse her discretion in denying the motion for new trial. Furthermore, to the limited extent that Ms. Donahue challenges the correctness of the trial court’s ruling with respect to the best interests of the couple’s minor child through her second assignment of error, we have reviewed the record in its entirety and cannot say that the trial court erred in determining there had been a material change in circumstances concerning Ms. Donahue’s diminished ability to adequately care for the couple’s minor child. Thus, we cannot say that the trial court erred in denying Ms. Donahue’s motion for new trial or in granting sole custody of the couple’s minor child to Mr. Donahue. Ms. Donahue’s second assignment of error does not merit relief.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment signed on February 12, 2016. All costs of this appeal are assessed to the appellant, Sarah Ann Donahue.

AFFIRMED.

Higginbotham, J., concurs.

      . Louisiana Revised Statute 13:621,22(B) provides:
      B. There are hereby created two additional district judgeships for the Twenty-Second Judicial District for the parishes of St. Tammany and Washington.
      (1) The first additional judge provided for in this Subsection and his successors shall preside over. Division K, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division K is limited, under the provisions of-Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
      (2) The second additional judge provided for in this Subsection and his successors shall preside over Division L, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division L is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family, and juvenile,matters as provided by law,
      (3) For purposes of this Subsection, "family and juvenile matters” shall include all actions arising under Titles IV, V, and VII of Book I and Title VI of Book III of the Civil Code and related provisions of the Civil Code Ancillaries, all actions arising under the Children’s Code, adoptions arising under the Civil Code, actions involving protection from fámily violence pursuant to R.S. 46:2131 et seq., and actions for enforcement; collection of support, and paternity pursuant to R.S. 46:236.1.1 et seq,
      . (4) For purposes of this Subsection "juvenile matters” shall include but not be limited to all actions arising under or incidental to the Children's Code.
      (5) , For purposes of this Subsection, the subject matter jurisdiction shall also include all actions incidental to all matters listed in Paragraphs (3) and (4) of this Subsection, including but not limited to contempt, civil warrants, writs of habeas corpus, curatorship, change of name, prenuptial or separate property agreements, interspousal donations, lesions, and challenge to consent judgment.

      . Louisiana Revised Statute 13:4209 states:
      A. In all cases heard and taken under advisement of the district judge or judges of , the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in. office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it , is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.

        B. (1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
      (2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.

      . Louisiana Code of Civil Procedure art. 253.1 provides:'
      All pleadings, filed shall bo randomly assigned to a particular section or division of the court by either of the following methods:
      (1) By drawing indiscriminately from a pool containing designations of all sections or divisions of court in the particular jurisdiction in which the case is filed.
      (2) By use of a properly programmed electronic device or computer programmed to randomly assign cases to any one of the sections or divisions .of court in the particular jurisdiction in which the case is filed.