author: THERIOT, J.

text:
    Cheryl S. GREESON v. USAA LIFE INSURANCE COMPANY and Jennifer S. Gilkes
    NO. 2016 CA 0667
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 22, 2016

      James R. Nieset, Jr., Kristopher M. Gould, New Orleans, Louisiana, Counsel for Defendant/Appellant, USAA Life Insurance Company

      Phillip W. Preis, Charles M. Gordon, Jr., Crystal D. Burkhalter, Caroline P. Graham, Jennifer R. Dietz, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, Cheryl S. Greeson
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

| ¡¡The appellant, USAA Life Insurance Company (USAA), appeals the order of the Nineteenth Judicial District Court, granting a motion for contempt, sanctions, and costs filed by the appellee, Cheryl S. Gree-son, against the appellant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Dr. David Charles Greeson was the holder and the designated insured of a “30 Year Level Term III” life insurance policy issued by USAA. He was married to Jennifer S. Gilkes, who was a designated beneficiary on the policy. On January 17, 2014, Dr. Greeson filed for divorce from Ms. Gilkes. He contacted USAA by telephone and requested that the designated beneficiary on the policy be changed from Ms. Gilkes to his mother, Cheryl S. Greeson. By letter dated April 11, 2014, the change was confirmed by USAA.

On December 22, 2014, Dr. Greeson died. USAA’s policy was still in effect at the time of his death. Mrs. Greeson submitted a claim to USAA on January 12, 2015 to receive the policy proceeds as the designated beneficiary of the policy. On January 26, 2015, Mrs. Greeson was notified by USAA that it had also received a claim for the proceeds from Ms. Gilkes, and the claim was under review by USAA.

On February 26, 2015, Mrs. Greeson filed a petition for declaratory judgment and injunctive relief, praying that she be declared the beneficiary of the policy proceeds, and that USAA be enjoined from tendering the proceeds to anyone else. On March 31, 2015, USAA filed a petition for concursus, naming Mrs. Greeson and Ms. Gilkes as defendants and deposited the policy proceeds into the trial court’s registry.

LOn October 2, 2015, USAA filed a motion for a protective order for production of proprietary record and motion to quash 1442 deposition. In the motion, USAA states that it does accept beneficiary changes by telephone, and stated the same in its answers to Mrs. Greeson’s interrogatories. USAA alleges it proposed a protective order to Mrs. Greeson, which would have allowed it to produce an internal proprietary policy showing its procedures for accepting beneficiary changes, especially changes made by telephone; however, Mrs. Greeson did not consent to the protective order and instead gave notice to USAA of a deposition pursuant to La. C.C.P. art. 1442. USAA further alleged that a 1442 deposition in this matter would only serve to elicit information that is irrelevant to the case and cause “annoyance, embarrassment, oppression or undue burden or expense” to USAA.

A hearing was held November 3, 2015 on USAA’s motions. In the hearing, the trial court ordered that both motions were denied. Counsel for USAA informed the trial court that the 1442 deposition was scheduled for November 13, 2015. Counsel also discussed other pending matters before the trial court, such as a motion for summary judgment and a ruling on a stipulated judgment in the divorce proceeding, and suggested that the trial court rule on the motion for summary judgment prior to the taking of the deposition. The trial court responded, “I appreciate your suggestion, but the matter will go forward as scheduled.”

|Jn an email dated November 11, 2015, counsel for USAA informed Ms. Greeson that it would not proceed with the deposition, which was to take place in San Antonio, Texas, without its protective order in place to prevent the discovery of certain records which it deemed confidential and proprietary. In the absence of such an order, USAA believed it must first apply for supervisory writs.

On November 13, 2015, counsel for Mrs. Greeson arrived at the deposition location in San Antonio, but USAA did not appear for the deposition. A representative of USAA did appear merely to state its intention to not go forward with the deposition. Counsel for USAA appeared via telephone to formally object to the deposition and stated that the trial court had not issued a signed judgment which denied the motion for protective order and motion to quash. After these discussions ended, the meeting adjourned without the deposition taking place.

That same day, Mrs. Greeson filed a motion and order for contempt, sanctions, and costs, and a request for expedited consideration based on USAA’s non-appearance at the deposition. On November 16, 2015, USAA filed a motion and order to stay discovery proceedings pending application for supervisory writs. On November 17, 2015, the trial court signed the judgment denying USAA’s motions for protective order for production of proprietary record and to quash 1442 deposition, which were heard on November 3, 2015. USAA subsequently filed a notice of intent to apply for supervisory writs, challenging the judgment that was signed on November 17, 2015.

On February 26, 2016, the trial court signed an order granting Mrs. Greeson’s motion for contempt, sanctions and costs against USAA, and ordered USAA to pay all costs associated with the 1442 deposition. On the |Bsame day, the trial court denied USAA’s motion to stay. This Court denied USAA’s supervisory writ on March 21, 2016. USAA now appeals the trial court’s February 26, 2016 order.

ASSIGNMENTS OF ERROR
USAA raises two assignments of error:
1. The trial court manifestly erred and abused its discretion when it granted the motion for contempt. USAA did not disobey a court order because the trial court’s judgment denying USAA’s motion to quash 1442 deposition and motion for protective order did not compel USAA to appear for a deposition.
2. The trial court manifestly erred and abused its discretion when it granted the motion for contempt. USAA did not appear for the 1442 deposition based on a good faith belief that appearing and offering testimony on the confidential, privileged and proprietary information which USAA sought to protect would have mooted its writ application.

STANDARD OF REVIEW

The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order, and the court’s discretion should be reversed only when the appellate court discerns an abuse of that discretion. Boudreaux v. Vankerkhove, 2007-2555 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 733. While the trial court’s ultimate decision to hold a party in contempt of court is subject to review under the abuse of discretion standard, the trial court’s predicate factual determinations are reviewed under the manifest error standard in the case of a civil contempt. Boyd v. Boyd, 2010-1369 (La.App. 1 Cir. 2/11/11), 57 So.3d 1169, 1178.

DISCUSSION

Both of USAA’s assignments of error question the appropriateness of the trial court’s contempt ruling, and will therefore be reviewed together.

| ^Louisiana Code of Civil Procedure article 221 provides for two kinds of contempt: direct and constructive. Constructive contempt is at issue in the instant case, specifically the wilful disobedience of any lawful judgment, order, mandate, writ, or process of the trial court. La. C.C.P. art. 224(2). To be guilty of constructive contempt, USAA must have violated the order of the trial court intentionally, knowingly, and purposefully, without justifiable excuse. See Short v. Short, 2012-0312 (La. App. 5 Cir. 11/13/12), 105 So.3d 892, 896.

Black’s Law Dictionary (6th ed. 1990) defines an “order” as a “mandate; precept; command or direction authoritatively given; rule or regulation.” Id. at 1096. Similarly, “mandate” is defined as a “command, order, or direction, written or oral, which court is authorized to give and person is bound to obey.” Id. at 962. In the transcript of the November 3, 2015 hearing, it is evident that the trial court is giving counsel for USAA an order and/or mandate through the following exchange:

THE COURT: A1 right, your motion for protective order and the motion to quash the 1442, the court is denying....
[USAA]: Your honor, may I be heard briefly on the—
THE COURT: On what, counsel?
[USAA]: On the 1442 deposition, both on the scope as we’ve addressed as well as the timing on the 1442 deposition.
THE COURT: The scope is what has been noticed to you all. Now timing, I will hear you on the timing.
[USAA]: Your honor, the date that [Mrs. Greeson] proposed and they proposed this just last week, is November 13th. We have a conflict with a jury trial on that date. I recognize the interests of [Mrs.] Greeson in trying to get this done quickly, your honor. But your honor has the pending motion for summary judgment before it. Your honor has an opportunity to rule on the stipulated judgment in the divorce proceeding, whether that barred the beneficiary change in the policy. And |7depending on the outcome of that, this issue may be moot. And I would suggest to your honor that you could rule on the motion for summary [judgment] coming up next month before proceeding with the corporate deposition.
THE COURT: I appreciate your suggestion, but the matter will go forward as scheduled.
[USAA]: Thank you, your honor.

It can be seen from this exchange that counsel for USAA specifically asked for and received clarification from the trial court as to the scope and timing of the 1442 deposition. The trial court then issued an oral order that “the matter will go forward as scheduled,” and that the scope of the deposition would be what was contained in the notice of deposition. The notice listed numerous testimony topics, including USAA’s internal policies and procedures concerning changes of beneficiaries and the acceptance of electronic signatures. When an order is given to a party in open court, and the party fails to comply with the order, there is no abuse of discretion in finding that party in contempt of court. See Allen v. Allen, 2013-0996, 2014 WL 7368574 (La.App. 1 Cir. 12/29/14), p. 5 (unpublished), writ denied, 2015-0214 (La. 5/22/15), 171 So.3d 922.

Furthermore, we are not convinced of USAA’s contention that its non-appearance at the deposition was done in good faith. Its argument that appearing would have mooted its writ application fails simply by the fact that the writ was not applied for until December 2, 2015. For the same reason, USAA’s motion to stay cannot be considered as evidence of good faith since it was filed three days after the scheduled deposition. Since neither the motion to stay nor the writ application were filed before the deposition, they cannot be used as a justification for not appearing at the deposition. Cf. Lang v. Asten, Inc., 2005-1119 (La. 1/13/06), 918 So.2d 453, 454. (A party cannot be “wil-fully disobeying” a court order when it immediately seeks review of that order.)

For the above reasons, we find that USAA was aware of the trial court’s order to proceed with the 1442 deposition and wilfully refused to do so. The after-the-fact filing of pleadings to stay and seek review of the order cannot be construed as acting in good faith. The trial court did not abuse its discretion in finding USAA in contempt, and these assignments of error are without merit.

DECREE

The order of the Nineteenth Judicial District Court holding USAA Life Insurance Company in contempt and its imposition of sanctions and costs is affirmed. All costs of this appeal are assessed to USAA Life Insurance Company.

AFFIRMED.

      . Louisiana Code of Civil Procedure art. 1442 states:
      A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This Article does not preclude taking a deposition by any other procedure authorized in this Chapter.

      . Cheryl S. Greeson v. USAA Life Insurance Company, 2015 CW 1963 (La. App. 1 Cir. 3/21/16) (unpublished writ action).


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    METAIRIE CLUB GARDENS ASSOCIATION, INC. v. The PARISH OF JEFFERSON and The Board of Zoning Adjustments
    NO. 16-CA-139
    Court of Appeal of Louisiana, Fifth Circuit,
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, METAIRIE CLUB GARDENS ASSOCIATION, INC., G. Bruce Parkerson, Jessica S. Savoie
    COUNSEL FOR DEFENDANT/APPELLEE, THE PARISH OF JEFFERSON, Michael J. Vondenstein
    COUNSEL FOR DEFENDANT/APPELLEE, RAYMOND BRANDT, Preston L. Hayes, David R. Sherman, Matthew A. Sherman
    Panel composed of Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

11 Plaintiff, Metairie Club Gardens Association, Inc. (“MCGA”), appeals from Jefferson through the Board of Zoning Adjustments (“the Board”), which granted a variance in favor of defendant Raymond Brandt. For the reasons that follow, we affirm the judgment of the trial court.

FACTS and PROCEDURAL HISTORY

Raymond Brandt owns property in the Old Metairie Neighborhood Conservation District (“OMNCD”). In May of 2015, Raymond Brandt applied to the Board for a zoning variance to be allowed to construct a fence in the front yard, with a five foot setback, at a residence that he was building at 1000 Falcon Road, next to his residence at 1004 Falcon Road. Brandt’s variance application was opposed by the MCGA. A public hearing was held and the Board approved Mr. Brandt’s request for a variance. The Board found that a precedent had been set in that there were at least two houses in the neighborhood that had been granted a variance, and that to deny Mr. Brandt his variance would result in his being “deprived of rights and privileges granted to others.”

The MCGA filed a petition for review of the Board’s decision in the 24th Judicial District Court, alleging that the Board was arbitrary and capricious in granting the requested variance. Pursuant to the granting of an exception of nonjoinder of a party needed for just adjudication, the MCGA amended its petition to name Raymond Brandt as a defendant in this matter. After a hearing, the trial court affirmed the Board’s decision to grant the variance.

This appeal followed. In this appeal, The MCGA argues that the trial court committed legal error in failing to enforce the requirements of the Comprehensive Zoning Ordinances (CZO). The MCGA contends that the 500 foot precedential ^requirement in the CZO applies to Mr. Brant’s lot. The MCGA argues that the standard of review set forth in the CZO was not properly followed by the Board and that the Board abused its discretion in granting the variance. The MCGA also argues that the district court committed legal error by refusing to allow appellants to supplement the record while simultaneously allowing appellee to submit an additional affidavit into the record.

STANDARD OF REVIEW

A prima facie presumption of validity attaches to zoning board actions. Parish of Jefferson v. Davis, 97-1200, 97-1201 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 433, writ denied, 98-2634 (La. 12/11/98), 730 So.2d 460. A reviewing court cannot substitute its own judgment or interfere with the zoning board’s decision absent a showing that the board was arbitrary and capricious or abused its discretion. Id.; Freeman v. Kenner Board of Zoning Adjustments, 09-1060 (La.App. 5 Cir. 4/27/10), 40 So.3d 207, 212, The person who opposes a zoning board’s decisioh bears the burden of proving that the decision was arbitrary, capricious, an abuse of discretion, or palpably unreasonable. In re; Pierre, 04-636 (La.App. 5 Cir. 12/14/04), 892 So.2d 91, 92; Ostarly v. Zoning Appeals Board, Parish of Jefferson, 02-65 (La.App. 6 Cir. 10/29/02), 830 So.2d 542, 545, writ denied, 02-3112 (La. 2/21/03), 837 So.2d 632.

Applicability of Procedural Requirements

Appellants first argue that the trial court erred in granting a variance for the fence because the variance fails to recognize “the clear standards prohibiting the variance” located in the Jefferson Parish Zoning ordinances, The Code of Zoniiig Ordinances relative to OMNCD contains the following provision:

Section 40-172(1)(a)(1) Setbacks ánd streetscape. The Old Metairie Neighborhood Conservation district shall preserve the open character of the area or streetscape, established by the generally uniform setback of structures from the street and from other structures on both sides of the street within a linear distance of five hundred (500) feet.
| ¡¡Section 40-172(1)(a)(3)(B)(ii)(A) the proportion of the structure after alteration or construction shall be compatible with surrounding structures and development sites located on the same side of the street and the petitioned property within a linear distance of three hundred (300) feet from both sides of the petitioned property as measured along the street frontage from the nearest side property line.
Section 40-172(1)(a)(5)(ii)(A)(I) fences shall be permitted in the front yard of structures within the Old Metairie Neighborhood Conservation District after review and recommendation of the Old Metairie Commission and the granting of the variance by the board of zoning adjustments, provided an open design in a durable material is used.

Section 40-792 of the Jefferson Parish Code, Zoning Ordinances, allows the Board to grant variances from the provisions governing the OMNCD in certain instances, including:

3a. Permit a variance in yard requirements, height restrictions of structures, or lot-area-per-family requirements of any district; if the variance is for a lot overlaid with OMNCD, the OMC shall have reviewed the specific variance requested and made a recommendation to the BZA in accordance with section 40-170(2)(d).

While the Zoning regulations specific to the OMNCD regulate the more general “structures”, the Zoning Ordinances contain more specific regulations regarding variances for erecting fences in a front yard:

Section 40—743.5(b)(4) in granting or denying the request for a fence in the required front yard, the BZA may consider how the proposed fence conforms to the characteristics of existing fences in the immediate area and, except to maintain conformity with existing fences, a minimum setback of three (3) feet from the front lot line shall be provided. The immediate area is defined as consisting of one (1) street block on the same side of the street and not more than three hundred (300) feet from the subject property.
The Zoning Ordinances also provide that:
Section 40-743.5(a)(1) in the event that the regulations in this section are in conflict with the regulations of the applicable zoning district, the more restrictive regulations, including 40-665, clear vision area, shall apply. Where elements in this section are not addressed in the | ¿regulations of an applicable zoning district, the regulations in this section shall apply.

Reading these ordinances as a whole, Mr. Brandt applied for a variance to set a fence in his front yard. The variance was reviewed and a recommendation was made by the Commission, and thereafter the variance was granted by the Board. The proposed fence meets the specification of the applicable zoning ordinances in that it is of an open design and made of durable material. Further, because the zoning ordinances particular to the District do not specifically mention fences, the regulations specific to fences do apply. The variance requested provides a setback of five feet, more than, the minimum three foot requirement set forth in the regulations. Accordingly, we find that the trial court’s action in affirming granting of the variance was not in disregard of the restrictions set forth in the Zoning Ordinances regulating property in the OMNCD.

Actions of the Board

The MCGA next argues that the Board did not follow the applicable standard of review and further that its ruling was arbitrary and capricious.

In Cronley v. Bd. of Zoning Adjustments of/& the Parish of Jefferson, 13-789 (La.App. 5 Cir. 5/14/14), 142 So.3d 64, 67-68, citing Pierce v. Parish of Jefferson, 95-719 (La.App. 5 Cir. 1/17/96), 668 So.2d 1153, 1155, and Guenther v. Zoning Appeals Board, Parish of Jefferson, 542 So.2d 612, 614 (La. App. 5 Cir. 1989), writ denied, 544 So.2d 407 (La. 1989), this court explained the factors to be considered by the Board in granting a variance:

The Jefferson Parish Comprehensive Zoning Ordinance (CZO), Section XXII 3.B, sets forth the circumstances which must exist before the zoning board may grant a variance, which can be summarized as follows:
1. Surrounding property values will not be negatively affected; and
2. The variance will positively affect neighborhood prosperity and welfare; and
| ,-,3. The variance will not impair light and air, increase traffic congestion or parking problems, overburden fire protection or sewerage and water services, or produce other nuisances such as odors, dust, fumes, noise or glare; and either:
4. Circumstances special to the property create a demonstrable hardship for the property owner; or
5. The property owner would be deprived of rights enjoyed by neighboring property owners were the variance not be granted, but would not thereby simply be granted special privileges, nor would.the variance be merely for the owner’s convenience or profit.
Thus, before a variance may be granted, the Zoning Board must find that all of the first three requirements are present, plus one of the factors in the fourth or fifth paragraphs. It is the burden of the person seeking the variance to establish that the appropriate requirements are met. (Citations omitted)

Considering the first three factors, plaintiff introduced evidence to show that his request for a variance was not opposed by the Environmental Department, the Parish Attorney of the Inspection Code and Enforcement Department, or the Public Works Department. The plaintiff further introduced the Board’s rulings that approved two other fences in the neighborhood. In a letter to the Board, one property values; however the property owner offered no evidentiary support and explanation for this conclusion.

Next, the Board found that denying the variance would deprive the landowner of rights enjoyed by neighboring property owners, and thus their grant of the variance did not simply grant the landowner special privileges, nor was the variance merely for the owner’s convenience and profit. Again the Board noted that there were at least two other properties with fences in close proximity to plaintiffs residence. Accordingly, we find that the trial court did not err in concluding that the Board employed the appropriate standard.

Finally, the MCGA argues that the Board was arbitrary and capricious in its ruling granting the variance. The minutes of the hearing reflect that the Board heard from plaintiffs neighbor, the District representative, the security. The Board also considered several letters from surrounding neighbors opposing the fence. |fiThe board also considered the actual structure of the fence, what it would be made of, how tall it would be, and the like. After full consideration, the Board voted unanimously to approve the fence.

Having complied with the requirements of the Zoning Ordinances, and considering the arguments of both the plaintiff and his neighbors opposing the fence before making its decision, we find no error in the trial court’s conclusion that the Board was not arbitrary and capricious in its determination.

Evidentiary Issue

In its last issue presented to this court, the MCGA argues that the trial court excluded an affidavit from Mr. Riess, and allowed a corresponding affidavit of Mr. Valenti, which resulted in an unequal and disparate treatment of the parties’ evidence.

Section 40—796(c) provides that “The court shall render a decision from the record of the board unless, following review of the board’s record, it shall appear to the court that testimony is necessary for the proper disposition of the matter.”

Approximately one month prior to trial, the court conducted hearings on various exceptions filed by the parties and also held a pre-trial conference. The MCGA expressed its intent to call Mr. Riess as a witness, and was informed by the court that such testimony would not be allowed, as it was not necessary. At the appeal hearing, the MOGA sought to introduce the affidavit of Mr. Riess since it believed that, due to equipment malfunction, the Board’s record of the hearing was incomplete. After the court denied the introduction, and allowed Mr. Riess to proffer the affidavit, the Board requested that it be allowed to obtain and proffer an affidavit in response. The trial court granted the Board’s request to also submit a proffer. An affidavit by Mr. Valenti was prepared and was filed into the record several days later. Although the court allowed the Board the opportunity to file |7Mr. Valenti’s affidavit into the record as a proffer, it then considered the affidavit in rendering judgment.

La. C.C.P. art. 1636A provides that “When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” La. C.C.P. art. 1636D provides that “If the court permits a party to make a complete record of the evidence held inadmissible, it shall allow any other party the opportunity to make a record in the same manner of any evidence bearing upon the evidence held to be inadmissible.”

Because the court granted permission to file, as a proffer, the affidavit of Mr. Valenti, it committed error in considering the affidavit. The same objections made by the Board to Mr. Riess’s affidavit are relevant to Mr. Valenti’s affidavit. However, the MCGA was not given an opportunity to raise those objections since the affidavit was submitted after the hearing, and was to be a proffer only.

“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” La. C.E. art. 103(A). Erroneous evidentiary rulings are subject to a harmless error analysis. Lapuyade v. Rawbar, Inc., 15-705 (La.App. 5 Cir. 04/13/16), 190 So.3d 1214, 1220; Finch v. ATC/Vancom Mgmt. Srvs. L.P., 09-483 (La.App. 5 Cir. 01/26/10); 33 So.3d 215, 221. Moreover, where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is harmless. Id.

In this case, the statements made by Mr. Valenti in his affidavit are cumulative of other evidence in the record, and therefore no substantial right of any party was affected. Because this affidavit merely summed up evidence already |sbefore the court, unequal and disparate treatment of the parties’ evidence (the proffered affidavits), if any, was harmless, and does not warrant reversal of the trial court’s judgment.

CONCLUSION

For the above discussed reasons, the decision of the trial court is affirmed. Costs are assessed against the Metairie Club Gardens Association.

AFFIRMED

      . The MGCA contends that the 7,400 foot one-bedroom, single family dwelling is more accurately characterized as a sports complex and/or recreation center with a bowling alley, wine tasting room, twelve-seat theater, and a swimming pool.

      . Section 40-166 Created that Old Metairié Neighborhood Conservation District. Section 40-170 (2)a2. provides in part:
      d, The Old Metairie Commission shall review petitions for zoning variances which affect the Old Metairie Neighborhood Conservation District and make recommendations to the board of .zoning adjustments regarding the appropriateness of the request with respect to the Old Metairie Neighborhood Conservation District regulations.

      . The Louisiana Supreme Court granted writs, finding that this court erred in determining that the trial court abused its discretion. Cronley v. Bd. of Zoning Adjustments, 14-1234 (La. 09/26/14), 149 So.3d 252.

      . The trial court issued an order on November 16, 2015 that states that "IT IS ORDERED that the affidavit of Timothy D. Valenti, be and same is hereby accepted by the Court as a Proffer by Respondent, The Parish of Jefferson [.] ” Nevertheless, the trial court’s judgment affirming the Board's decision states in part that "This matter came before this court on November 9, 2015[.] ... The Court granted the Parish of Jefferson time to file an affidavit. After reviewing the affidavit of Timothy D. Valenti on November 16, 2015, the Court took the matter under advisement.”


text:
    STATE of Louisiana v. Kevin JAGO
    NO. 16-KA-346
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Joel T. Chaisson, II, Louis G. Authement
    COUNSEL FOR DEFENDANT/APPELLEE, KEVIN JAGO, Maria M. Chaisson
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

On November 9, 2015, the District Attorney for the Parish of St. Charles filed a bill of information charging defendant, Kevin Jago, with possession of heroin, on or about November 2, 2015, in violation of La. R.S. 40:967 C. On December 8, 2015, defendant was arraigned and entered a plea of not guilty. On December 21, 2015, defendant filed a motion to quash the bill of information, wherein'he argued the bill should be quashed pursuant to application of the immunity statute set forth in La. R.S. 14:403.10 B. On January 28, 2016, the trial court granted defendant’s motion to quash the bill of information. This appeal by the State followed. For the reasons stated below, the trial court’s judgment granting the motion to quash is reversed, the bill of information is reinstated, and the mattér is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

In its sole assignment of error, the State argues the trial court erred in quashing the bill of information against defendant because the limited testimony presented at the motion to quash hearing did not establish sufficient evidence to support the application of La. R.S. 14:403.10 B.

At the hearing on the motion to quash, Deputy Charles Warren with the St. Charles Sheriffs Office testified that on November 2, 2015, he responded to an anonymous call regarding two males “using drugs” or “passed out high on drugs” | ginside a red Nissan Altima located on Airline Highway in St. Rose. Upon arrival, Deputy Warren observed the vehicle running, and approached the driver’s side door. He observed a white male in the driver’s seat, later identified as defendant, and a black male in the passenger seat, later identified as co-defendant, Rafael Brooks, and both men were unconscious and “slobbering on themselves.” He knocked on the window, and when neither man responded, he opened the driver’s door, which was unlocked. After opening the door, he spoke with defendant and touched his neck to check for a pulse when defendant “started coming around.” Deputy Warren then looked over and saw a hypodermic needle in Brooks’ right hand as he was “coming to.”

Concerned for his own safety, Deputy Warren drew his weapon and ordered Brooks to drop the needle and put his hands on the dashboard while he removed defendant from the vehicle. Defendant understood and complied with Deputy Warren’s commands to get on the ground and put his hands behind his back. After defendant was placed on the ground, Brooks was removed from the vehicle and placed on the ground. Deputy Warren testified that at no point after the defendant “came to” did he lose consciousness or “slobber” again, nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. Defendant and Brooks were arrested and placed in his vehicle.

Deputy Warren then conducted a search of the vehicle and recovered the hypodermic needle initially seen in Brooks’ hand, a metal container that had a brown substance in it, additional hypodermic needles on the driver’s seat and in the driver’s side door, a brown belt that was around Brooks’ left arm, and a belt-like ^object on the driver’s seat. The hypodermic needles and the brown substance field-tested positive for heroin.

Other officers arrived on the scene to assist and Deputy Warren informed his sergeant that defendant was initially unconscious. His sergeant directed him to call emergency medical services (“EMS”) “just to check on them.” Once EMS arrived approximately an hour and a half later, defendant informed EMS that he injected approximately “$40 of heroin 3 to 4 hours ago.” He further informed them that he did not need medical assistance, and he signed a refusal form.

Deputy Warren transported defendant and Brooks to the Nelson Coleman Corrections Center. Defendant did not experience any medical problems that needed assistance on the way. Upon arrival, defendant was able to walk inside without assistance. The correctional facility’s medical records showed that defendant was subsequently treated for withdrawal, not for an overdose.

The trial court found that Deputy Warren’s action of opening the door was due to his concern that defendant was experiencing a medical emergency, and therefore, La. R.S. 14:403.10 B applied. The trial court did not make a specific finding that defendant experienced an overdose, and in fact, questioned whether experts were needed to determine if an overdose occurred. The trial court then had a lengthy discussion about the heroin/drug problem in the parish and “reluctantly” granted the motion to quash.

ANALYSIS AND DISCUSSION

A motion to quash is a procedural vehicle for challenging an indictment or a bill of information. La. C.Cr.P. arts. 531-533. Such a motion must be in writing. State v. Dauzart, 07-15 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, 1084, writ denied, 07-1269 (La. 12/14/07), 970 So.2d 532; State v. Branch, 00-1668 (La.App. 5 Cir. 03/28/01), 784 So.2d 43; State v. Bentel, 00-0057 (La.App. 5 Cir. 09/26/00, 769 So.2d 1247.

This Court applies an abuse of discretion standard when reviewing a trial court’s determination on a motion to quash. State v. Whitley, 14-737 (La.App. 5 Cir. 03/25/15), 169 So.3d 658, 661; State v. Lommasson, 11-536 (La.App. 5 Cir. 11/29/11), 81 So.3d 796, 799. The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court. State v. Mendoza, 12-589 (La.App. 5 Cir. 03/13/13), 113 So.3d 288, 292; State v. Payton, 06-1202 (La.App. 4 Cir. 02/28/07), 954 So.2d 193, 195 (citing State v. Love, 00-3347 (La. 05/23/03), 847 So.2d 1198, 1208).

Defendant filed a motion to quash the bill of information wherein he argued that the evidence was obtained while defendant was experiencing an overdose and was in need of medical assistance. The bill of information which charged defendant with possession of heroin was, therefore, in violation of La. R.S. 14:403.10 B.

La. R.S. 14:403.10 B provides:

A person who experiences a drug-related overdose and is in need of medical assistance shall not be charged, prosecuted, or penalized for possession of a controlled dangerous substance under the Uniform Controlled Dangerous Substances Law if the evidence for possession of a controlled substance was obtained as a result of the overdose .and the need for medical assistance.

The statute does not define “overdose” and there is no jurisprudence interpreting this statute.

The starting point in the interpretation of any statute is the language of the statute itself. State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233, 1242 (citing State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d 568, 575; Theriot v. Midland Risk Insurance Company, 95-2895 (La. 05/20/97), 694 So.2d 184, 186). A criminal statute must be given a genuine construc tion consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. La. R.S. 14:3. Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. A criminal statute should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature and an interpretation should be avoided which would operate to defeat the object and purpose of the statute. Shaw, 969 So.2d at 1242. Thus, where the words of a statute are clear and free from ambiguity, they are not to be disregarded under the pretext of pursuing their spirit. La. R.S. 1:4.

Application of La. R.S. 14:403.10 B

As written, La. R.S. 14:403.10 B establishes a three-prong test for determining whether the immunity it establishes applies. The person in possession of the controlled dangerous substance must be experiencing an “overdose”; the person must, be in need of medical assistance; and the evidence of the controlled dangerous substance must have been obtained as a result of the overdose and the need for medical assistance. This statute does not define “overdose,” and there is no jurisprudence interpreting this statute.

First, the record of the hearing on the motion to quash does not support a finding that the defendant was in need of medical assistance. Deputy Warren testified that after rousting the defendant, at no point did he again lose consciousness or “slobber,” nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. His sergeant had an EMS unit called “just to check on them.” The defendant informed EMS that he injected approximately “$40 of heroin 3 to 4 hours ago.” The defendant informed them that he did not need medical assistance, and he signed a ^refusal form. The correctional facility’s medical records showed that defendant was not treated for an overdose. No expert testimony was offered to the contrary. We therefore conclude that the record does not support a finding that the defendant was in need of medical assistance, and that this requirement of La. R.S. 14:403.10 B has not been met.

We next consider whether the defendant experienced an “overdose” as intended by the statute. “Overdose” is defined by the Merriam-Webster Dictionary as “too great a dose (as of a therapeutic agent); also: a lethal or toxic amount (as of a drug).” “Toxic,” is uniformly defined by the Merriam-Webster Dictionary and by other dictionaries and internet sources as poisonous, deadly, and capable of causing death or serious injury.

For purposes unrelated to La. R.S. 14:403.10 B, La. R.S. 40:978.1 provides for instances in which a first responder, including a peace officer, may possess and administer certain prescription drugs. “Opioid-related drug overdose” is defined therein by La. R.S. 40:978.1 A(3):

(3) “Opioid-related drug overdose” means a condition including extreme physical illness, decreased level of consciousness, respiratory depression, coma, or the ceasing of respiratory or circulatory function resulting from the consumption or use of an opioid, or another substance with which an opioid was combined.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; State v. La. Land & Exploration Co., 12-0884 (La. 01/30/13), 110 So.3d 1038, 1044; Rando v. Anco Insulations Inc., 08-1163 (La. 05/22/09), 16 So.3d 1065; 1075. However, when the language of a law is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur 17and the text of the law as a whole. La. C.C. art. 10; Rando, 16 So.3d at 1075; Marino v. Gulf Coast Bank & Trust Co., 15-307 (La. 12/23/15), 184 So.3d 153, 155-156.

We conclude that for the purposes of La. R.S. 14:403.10 B, an “overdose” must be of a lethal, toxic, or poisonous amount that is capable of causing death or serious injury, rather than one which is merely dangerous, “too great a dose,” or causing a lower level of consciousness. Illegal possession or use of any amount of a Controlled Dangerous Substance is, by its nature and by legal prohibition, dangerous and “too great a dose.” Therefore, to define “overdose” merely as one which is dangerous or is “too great a dose” would lead to the absurd result of allowing any amount of a CDS to satisfy this prong of the test for immunity granted by La. R.S. 14:403.10 B.

Moreover, defendant argues that the purpose of La. R.S. 14:403.10 B and the legislature’s intent by enacting it is to save lives. This necessarily contemplates that for the purpose of La. R.S. 14:403.10 B, “overdose” means the use of a lethal, toxic, or poisonous amount which has created a life-threatening condition, or one which is capable of causing death or serious injury.

Here, defendant obviously showed signs of drug impairment, i.e., slobbering on himself and unconsciousness, but there was no evidence of use of a lethal, toxic, or poisonous life-threatening amount. There were no medical tests performed at the scene, the defendant was not treated for an overdose at the correctional facility, and no expert medical testimony was offered at the hearing to indicate whether defendant ingested an amount of heroin likely to result in an overdose.

IsBased on the testimony and evidence adduced at the hearing, the trial court abused its discretion in granting the motion to quash finding defendant was entitled to immunity under the statute and dismissing the bill of information.

Accordingly, we reverse the trial court’s judgment granting the motion to quash, reinstate the bill of information, and remand this matter for further proceedings. See State v. Trevino, 07-870 (La.App. 5 Cir. 05/27/08), 985 So.2d 851, 858, writ denied, 08-1900 (La. 04/03/09), 6 So.3d 768.

CONCLUSION

For the reasons stated above, the trial court’s judgment granting the motion to quash is reversed, the bill of information is reinstated, and the matter is remanded for further proceedings.

JUDGMENT REVERSED, BILL OF INFORMATION REINSTATED; CASE REMANDED

      . Co-defendant, Rafael Brooks, was also charged in the same bill of information, with possession of heroin in violation of La. R.S. 40:967 C. See State v. Brooks, 16-345 (La.App. 5 Cir. —/—/—), — So.3d —.

      . The State originally filed a writ seeking supervisory review of the trial court’s judgment. This Court denied the State’s writ application after finding that the judgment was final and appealable, and thus, it was not under this Court’s supervisory jurisdiction. State v. Jago, 16-109 (La. App. 5 Cir. 04/13/16) (unpublished writ disposition). This Court remanded the matter with instructions for the 29th Judicial District Court to treat the State's notice of intent as a motion for appeal. Id.

      . The State argues the application of La. R.S, 14:403.10 B is a defense and a defense dependent on the facts and merits of a case cannot be brought by a motion to quash.- Defendant argues La. R.S. 14:403.10 B is an immunity statute that prohibits prosecution regardless of the merits of the case; therefore, a motion to quash is proper to quash a bill of information. The statute provides that a person experiencing a drug-related overdose and in need of medical assistance "shall not be charged, prosecuted, or penalized ...,” which is indicative of immunity. La. R.S. 14:403.10 B.

      . The 9-1-1 caller stated that a red Nissan Altima containing one white male and one black male was parked at 10057 Airline Drive in St. Rose. The caller stated that the two males looked "like they’re passed out high sitting in the car not even moving.” He stated they might be “selling and using” drugs. The caller verified that the two males were breathing "just passed out high.” The 9-1-1 caller’s information corroborated Deputy Warren's testimony.

      .In addition to Deputy Warren’s testimony, copies of defendant’s EMS medical records from the date of the offense, defendant’s medical records from Nelson Coleman Correctional Center from the date defendant was booked, the incident report, and the 9-1-1 CD were admitted at the hearing.

      . On cross-examination, Dep. Warren was asked, “In your opinion, at the time that you see these two individuals passed out, unconscious, slobbering all over themselves, they won’t respond to tapping on the window; you already know that somebody says they’re passed out high on drugs, were you concerned that it was an overdose situation, and these individuals were in need of medical treatment? Dep. Warren responded, "Not at that time, no ma’am.”

      . Florida Stat. Ann, § 893.21(2) is illustrative as to the application of La. R.S. 14:403.10 B, Fla. Stat. Ann. § 893.21(2) provides:
      A person who experiences a drug-related overdose and is in need of medical assistance may not be charged, prosecuted, or penalized pursuant to this chapter for possession of a controlled substance if the evidence for possession of a controlled substance was obtained as a result of the overdose and the need for medical assistance.
      In State v. Silliman, 5D14-2895 (Fla. Dist. Ct. App. 06/12/15), 168 So.3d 245, 245-46, a Florida appellate court stated that although the Florida legislature was silent as to the definition of "overdose," the language of the statute was clear. The court noted that the word "overdose” is defined by the dictionary as: "too great a dose (as of a therapeutic agent); also: a lethal or toxic amount (as of a drug).” Id.
      In Silliman, supra, the deputy observed that the defendant had bloodshot eyes, slow rambling speech, was swaying, and observed what appeared to be paraphernalia peeking out from the defendant’s pocket. The deputy arrested and transported the defendant to a drug treatment facility, and he was subsequently charged with possession of heroin after the paraphernalia was tested. Id. at 246. The charge was later dismissed by the Florida trial court, finding that the defendant was entitled to immunity under section 893.21(2). Id.
      The State appealed, arguing that the defendant did not experience a drug overdose and was not in need of medical assistance, but rather, the deputy took him into custody believing him to be impaired. Id. at 246-47. The court of appeal agreed, finding that the defendant showed signs of impairment, not overdose, and exhibited no "symptoms of extreme physical illness or impending death.” Id. at 247. Further, the court relied upon the fact that the defendant did not request medical assistance, and he was taken to a facility to receive drug treatment, rather than to a hospital for medical assistance. Id. Thus, the appellate court found that the trial court erred in granting the defendant immunity and reversed.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Lavell GANT
    NO. 16-KA-389
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Ricky L. Babin, Donald D. Candell
    COUNSEL FOR DEFENDANT/APPELLANT, LAVELL GANT, Bertha M. Hillman
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   JOHNSON, J.

| defendant, Lavell Gant, appeals his convictions and sentences for attempted first degree murder and possession of a firearm by a convicted felon from the 23rd Judicial District Court, Division “D”. For the following reasons, we affirm Defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On July 16, 2014, the grand jury for the 23rd Judicial District returned a true bill of indictment that Defendant committed attempted second degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count one) and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three). On August 11, 2014, Defendant was arraigned and pleaded not guilty to the charges. Defendant filed pretrial motions, including a motion to suppress evidence. On January 12, 2015, the trial court heard the motion to suppress. During the hearing, defense counsel became ill, and the matter was continued to a later date.

On March 9, 2015, Defendant informed the trial court that he wished to waive his right to a jury trial. On April 7, 2015, Defendant filed written notice of his wish to waive his right to a trial by jury, and the trial court granted Defendant’s request on April 13, 2015. On April 29, 2015, Defendant filed a motion for speedy trial, which the trial court granted on May 1, 2015, stating that trial should commence within 120 days from the filing of Defendant’s motion. On May 11, 2015, the trial court again took up the motion to suppress. On the same date, Defendant filed a motion in support of his motion to suppress. At the hearing, testimony concluded, counsel for both sides presented argument, and the trial court denied the motion to suppress.

| ¾A bench trial was conducted on June 9, 2015, and June 10, 2015. During the trial, Deputy Prentiss Woodfork of the St. James Parish Sheriffs Office testified that on May 27, 2014, he responded to a shooting at 2157 Church Street in Vacher-ie. Deputy Woodfork testified that upon entering the residence, family members directed him to the bedroom, and he observed a black male, who was later identified as Ansley Jackson, lying in bed in a pool of blood. Deputy Woodfork indicated that the man was totally unresponsive and was “bleeding out” from a bullet wound. He stated that he called “Acadi-an” and stayed with the victim. Deputy Woodfork testified that he took pictures because he thought the victim was going to die.

Detective Brett Forsythe of the St. James Parish Sheriffs Office testified that on May 27, 2014, at around 5:08 a.m., he was called to investigate a shooting at 2157 Church Street involving Mr. Jackson. He stated that Mr. Jackson was in the bedroom being tended to by “Acadian Ambulance” when he arrived. Detective For-sythe testified that Mr. Jackson had a gunshot wound below his right knee and was losing a lot of blood. He stated that he observed and recovered a bullet in the middle of the pool of blood on the bed. According to Detective Forsythe, when he asked if Mr. Jackson knew who shot him, Mr. Jackson indicated nonverbally that he did not know by shaking his head “no.”

Detective Forsythe stated that he observed two holes in the window in Mr. Jackson’s bedroom that faced the south side of the residence. He testified that he photographed the area outside the window and located two cartridge cases on the ground. Detective Forsythe indicated that both cartridge cases were GFL Luger 9 mm cases. He stated that he went back into the residence and recovered a bullet from inside the mattress.

Detective Forsythe continued his investigation by interviewing the | ..¡occupants of the residence and obtained information about Defendant, who he then considered to be a possible suspect. Detective For-sythe learned that Marie Washington was in relationships with Defendant and Mr. Jackson. He testified that he learned that Defendant’s address was 1218 Old Vacher-ie Street, and he went to that location. Detective Forsythe determined that Elizabeth Gant owned the trailer at that address. According to Detective Forsythe, one of Ms. Gant’s sons answered the door and invited the officers in. Detective For-sythe stated that he asked for Ms. Gant or Defendant, and Defendant emerged from the rear bedroom and identified himself. According to Detective Forsythe, Defendant was placed under arrest for an outstanding warrant. He stated that he was at Defendant’s residence a little over two hours after the shooting occurred.

Detective Forsythe determined that Defendant did not contribute financially to the residence. He testified that he obtained written consent from Ms. Gant to search the master bedroom. Ms. Gant and Defendant’s aunt, Annette Whittington, indicated that Defendant was the only one who stayed in the master bedroom. Detective Forsythe testified that he conducted a search of the master bedroom where Defendant had exited. He indicated that there was a queen-size bed and two bunk beds, but only the queen-size bed appeared to be slept in. He also stated that there was male clothing in the closet, and he found mail addressed to Defendant at that address in the bedroom. Detective Forsythe stated that he found a Smith and Wesson pistol hidden in the hot water heater closet in the master bathroom with a magazine containing twelve live rounds of GFL 9 mm Luger ammunition. Detective For-sythe indicated that the pistol was marked with serial number DSL 1051. He testified that the master bathroom was located within Defendant’s bedroom. He indicated that he also found a pair of shoes in Defendant’s room covered in grass and that the bottom of the jeans Defendant was wearing at the | ¿time of his arrest were muddy. Detective Forsythe testified that there was a distance of about 2200 feet between the scene of the shooting and Defendant’s residence. He indicated that the area is wooded with trails and scattered with homes, but “one could move freely through [the] community” without obstruction.

Detective Forsythe testified that after the search, he arrested Defendant for possession of a firearm by a convicted felon. He stated that he read Defendant his rights, and Defendant refused to talk and requested a lawyer. Detective Forsythe received a report from the ballistics testing of the gun, bullets, and cartridge casings, which stated that the pistol recovered from Defendant’s residence was the gun that fired the bullets and cartridge casings recovered from the crime scene. He stated that he subsequently obtained an arrest warrant for Defendant for attempted second degree murder, arrested Defendant, and read him his rights. According to Detective Forsythe, Defendant questioned him about having a search warrant for the residence, and Detective Forsythe replied that Defendant had previously asked for a lawyer. Detective Forsythe stated that he did not answer Defendant’s questions at that time.

Patrick Lane of the Louisiana State Police Crime Lab was accepted as an expert in firearm identification. Mr. Lane testified that he had performed a comparison of the two bullets and two cartridge cases found at the crime scene and the gun with serial number DSL 1051. He stated that he determined the two bullets and two cartridge cases were fired from the gun with serial number DSL 1051.

Mr. Jackson, the victim of the shooting in this matter, indicated at trial that both he and Defendant were “having relations” with Ms. Washington. He stated that on the night of the shooting, Ms. Washington wanted to come over to his house, but he told her not to come because he was sick of her fighting with Defendant. Mr. Jackson testified that Defendant had been to his home often and Rhad also been in his bedroom. He testified that he and Defendant “had a beef’ about Ms. Washington and “dice games.” Mr. Jackson stated that his “dice game” was more successful than Defendant’s because “the whole neighborhood” loved him more than Defendant. Mr. Jackson indicated that Defendant knew where he slept. He also testified that he had reason to believe that Defendant shot him because Defendant hated him.

Ms. Washington testified that she dated Defendant for three years. She also indicated that Mr. Jackson was her boyfriend. Ms. Washington indicated that her relationship with Defendant was abusive, and he was jealous of anyone she would speak to. She also indicated that Defendant threatened her multiple times. Ms. Washington, along with Mr. Jackson’s stepfather and brother, confirmed that Defendant had been to Mr. Jackson’s residence and had previously been in his bedroom.

At the conclusion of trial on June 10, 2015, the trial court found Defendant guilty of attempted second degree murder and possession of a firearm by a convicted felon. On June 22, 2015, Defendant filed a pro se motion for new trial, which the trial court denied on July 10, 2015.

On September 14, 2015, the trial court sentenced Defendant to imprisonment at hard labor for 50 years on count one to be served without benefit of probation, parole, or suspension of sentence and imprisonment at hard labor for 20 years on count three to be served without benefit of probation, parole, or suspension of sentence. The trial court specified that the sentences were to run consecutively to each other. The trial court also indicated that with regards to count three, Defendant was required to pay a $5,000.00 fine. On September 30, 2015, Defendant filed a motion to reconsider sentence. On December 14, 2015, the trial court conducted a hearing regarding the motion to reconsider sentence. At the | shearing, the trial court denied the motion to reconsider sentence, and Defendant orally noticed his intent to appeal.

On January 8, 2016, Defendant filed a written motion for appeal. The trial court granted the appeal on January 12, 2016. Defendant’s appeal follows.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error alleges the trial court erred in denying his motion to suppress evidence.

LAW AND ANALYSIS

Defendant alleges that the trial court erred in denying his motion to suppress evidence. Defendant argues that the search of his home without a warrant was objectively unreasonable because the officers failed to request his consent to search the home, although he was present. He claims that he had been living in his grandmother’s house for three years and. had a legitimate expectation of privacy in his bedroom. Instead of obtaining his consent to search his home, Defendant further argues the officers used the arrest warrant as a pretext to arrest him because they had no probable cause to arrest him in the investigation of Mr. Jackson’s shooting.

The State asserts that while Defendant had an expectation of privacy in the residence, he was absent due to a lawful arrest and, therefore, was not in a position to object to the search of his room. Additionally, the State argues that Ms. Gant’s consent to search the trailer provided an exception to the warrant requirement. The State ultimately concludes that the trial court did not err in denying the motion to suppress.

In his written motion to suppress, Defendant argued that the search of his home was unreasonable because the police failed to gain his consent and that the officers removed him because he expressly objected to the police request to search. Defendant’s memorandum goes on to argue about whether the officers |7intentionally removed him to prevent him from voicing an objection. Defendant also challenged whether the consent given to the officers by Ms. Gant was knowing and voluntary. The trial court held the hearing on the motion to suppress which proceeded as follows.

At the hearing on the motion to suppress, Detective Brett Forsythe testified that he worked for the St. James Parish Sheriffs Office. He stated that on May 27, at around 5:08 a.m., he was called to 2157 Church Street in Vacherie. Detective For-sythe indicated that the call related to the shooting of Ansley Jackson. He stated that Mr. Jackson was shot while he was sleeping in his bed. Mr. Jackson was shot once in the right knee, which severed a major artery. Detective Forsythe indicated that there were two bullet holes in Mr. Jackson’s bedroom window. Detective Forsythe testified that he recovered two 9 mm Luger GFL shell casings from the area outside of the window. He stated that he also discovered that Mr. Jackson was having issues “over a female” with Lavell Gant, Defendant.

Detective Forsythe testified that he received Defendant’s information and saw that he had an outstanding warrant for his arrest, issued on December 5, 2013. Detective Forsythe discovered that Defendant’s address was 1218 Old Vacherie Road. He stated that he and other officers went to Defendant’s address. Detective Forsythe indicated that Elizabeth Gant was the owner of the trailer, and one of her children answered the door. Detective Forsythe stated that he asked whether Ms. Gant or Defendant was there. He stated that Defendant came from the rear óf the trailer in a hostile manner and identified himself.

Detective Forsythe testified that Defendant was placed under arrest for the outstanding warrant at that time. He stated that he then spoke to Ms. Gant and found that Defendant did not work or pay rent. Detective Forsythe then asked if' |sshe would be willing to provide consent to search the residence. Detective Forsythe stated that' Ms. Gant consented to the search orally and in writing. He testified that he read the consent form to Ms. Gant, and she indicated that she understood before voluntarily and knowingly giving.her consent to search the residence. Detective Forsythe indicated that he did not coerce her into signing the consent form. He stated that though Defendant was staying at the trailer, he did not get Defendant’s consent to search. .

Detective Forsythe testified that he searched the room Defendant had come out of when the officers first arrived at. the house. He stated that he found a 9mm Smith and Wesson pistol with a black-handle and a silver slide. Detective Forsythe indicated that he also recovered several cigarette butts and a pair of shoes covered in grass. He stated that he also recovered mail with Defendant’s name and the address of the trailer.

Ms. Gant testified that on May 27, 2013, she lived at 1218 Old Vacherie Road. She stated that Defendant lived there, and he had a bedroom and a bathroom. She stated that on that date, Defendant was arrested, and the officers asked to check his room. Ms. Gant said that before signing the consent form, she gave the officers permission to search. She indicated that she had to give, them permission before they could search the room. She stated that she did not realize what she was signing; however, she also indicated that the officer told her what the form was about. Ms. Gant stated that she could have told them “no,” but she did not think it was serious.

At the conclusion of the hearing, Defendant argued the warrantless search of his room which led to the discovery of evidence was unreasonable. Specifically, Defendant claimed that the officers should have asked his permission to search because he had a “privacy right to his room.” He also alleged that the officers |flremoved him for the sake of avoiding his objection. Defendant further asserted that the arrest warrant was not related to the case the officers were investigating. Defendant also contended that Ms. Gant’s consent was neither knowing nor voluntary.

The trial court determined that Ms. Gant was the sole owner of the property. Additionally, the trial court found that she had indicated she understood and gave her consent before the search occurred. Therefore, the trial court denied the motion to suppress evidence.

The Fourth Amendment and Article I § 5 of the Louisiana Constitution protect individuals against unreasonable searches and seizures. State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00); 760 So.2d 522, 526, writ denied, 00-1510, (La. 3/9/01); 786 So.2d 117. In an effort to discourage police misconduct in violation of these standards, evidence recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution against the citizen, State v. Tucker, 92-2093, 92-2130 (La. 5/24/93); 626 So.2d 707, 710. The trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id; State v. Butler, 01-0907 (La.App. 5 Cir. 2/13/02); 812 So.2d 120, 124. In determining whether the trial court’s ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing but also may consider pertinent evidence presented at trial. State v. Sam, 11-469 (La.App. 5 Cir. 2/14/12); 88 So.3d 580, 586, writ denied, 12-0631 (La. 9/12/12); 98 So.3d 301.

Ultimately, the State bears the burden to show that a warrantless search falls within one of the exceptions to the rule that a warrantless search is, per se, unconstitutional. Flagg, 99-1004; 760 So.2d at 526. One such exception is a consent to the search by a third-party when consent is freely and voluntarily given, |]nand the third-party possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Gomez, 01-717 (La.App. 5 Cir. 11/27/01); 802 So.2d 914, 918 (citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)); State v. Edwards, 97-1797 (La. 7/2/99); 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).

Defendant relies . on the Supreme Court’s holding in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), in arguing his consent was needed for the search of his home. In Randolph, the Supreme Court found that under those particular circumstances presented, a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident could not be justified as reasonable as to him on the basis of a consent given to the police .by another resident. The Court went on to explain, “[I]f a ‘potential’ defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”

Defendant contends that the Court in Randolph suggested in dicta that consent by one occupant may not be sufficient if the police remove the potential objector unreasonably, for the sake of avoiding an objection. However, in this matter, Detective Forsythe testified that there was an outstanding warrant for Defendant’s arrest. Therefore, the arrest was both lawful and reasonable. Furthermore, the Supreme Court in Fernandez v. California, — U.S. —, 134 S.Ct. 1126, 188 L.Ed.2d 25 (2014), clarified the dicta Defendant references from Randolph stating, “an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

Defendant does not, challenge the validity of the arrest warrant itself, he only 11 argues that the use of the unrelated warrant was a pretext for removing him from the premises so that officers could search the residence without objection. This Court has previously determined that once an officer knows of an outstanding arrest warrant, he would be derelict in his duty not to arrest the subject. See State v. Wilson, 11-575 (La.App. 5 Cir. 11/29/11); 79 So.3d 1149, 1153, writ denied, 12-0090 (La. 8/22/12); 97 So.3d 361. Therefore, upon locating Defendant and having knowledge of the outstanding warrant, the officers would have been derelict in their duties had they failed to arrest Defendant. There was no evidence presented in the record that indicates the officers removed Defendant for the purpose of avoiding an objection to a search. Based on the foregoing, Defendant’s arrest was reasonable, although he was removed from the premises, which could have prohibited him from objecting to a search of the residence. Furthermore, the Supreme Court’s holding in Fernandez directly contradicts Defendant’s argument. Therefore, since Defendant was subject to a lawful arrest, we do not find that the search of the home was tainted by the officers.

It is further noted that in Matlock, supra, the United States Supreme Court made clear that someone who has common authority over a residence, described as “mutual use” and “joint access and control for most purposes,” may consent to a search that is valid as against a co-occupant. Inherent in that analysis, however, is the requirement that the third-party must possess common authority over the residence at issue. In Matlock, the Supreme Court discussed the issue of common authority and noted that it does not automatically flow from the third-party’s property interest in the search area.

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property with its attendant historical and legal refinements, [citation omitted] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to | ^permit the inspection in his own right and that the others have assumed the risk one of their number might permit the common area to be searched.

Gomez, 01-717 at 7; 802 So.2d at 918 (citing Matlock, 94 S.Ct. at 993). Nevertheless, in the present matter, the consenting party, Ms. Gant, was the sole owner of the property subject to the search. Ms. Gant herself testified that Defendant did not pay rent, although he had been living at the trailer for years. Therefore, Ms. Gant was the type of co-occupant who could have consented to the search of the property.

In order to rely on consent to justify a warrantless search, the State has the burden of proving that consent was given freely and voluntarily. State v. Joseph, 04-1240 (La.App. 5 Cir. 4/26/05); 901 So.2d 590, 597, writ denied, 05-1700 (La. 2/3/06); 922 So.2d 1176. Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances. Id. The trial court determined that Ms. Gant’s consent was free and voluntary. Ms. Gant testified at the suppression hearing that she could have refused consent, but that she did not think it was anything serious. She stated that she gave oral consent before the officers searched Defendant’s room. Additionally, Ms. Gant testified that the officer explained the consent form to her, and she signed it.

Therefore, the trial court did not err in determining that Ms. Gant had the requisite authority to consent to the search and that her consent was freely and voluntarily given. Based on the foregoing, we find that the trial court did not err in denying Defendant’s motion to suppress.

Error Patent Review

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals that there are no errors patent.

DECREE

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

AFFIRMED

      . The indictment also included a charge for illegal possession of a stolen firearm in violation of La. R.S. 14:69.1 (count two); however, that matter was nolle prossed.

      . Defendant filed a writ of mandamus with this Court, complaining that the trial court had continued his motion to suppress several times and had not ruled on the motion. On May 6, 2015, this Court granted Defendant’s writ application and ordered the trial court to rule on the motion to suppress within 30 days of its ruling. See State v. Gant, 15-250 (La. App. 5 Cir. 5/6/15) (unpublished writ disposition).

      . Detective Forsythe indicated that Ms. Gant is Defendant's grandmother.

      . Defendant's motion for new trial is stamped as filed on July 10, 2015; however, the order denying the motion for new trial reflects that the trial judge denied it on July 9, 2015.

      . It is noted that at this time during the suppression hearing, Detective Forsythe did not specify what year the incident occurred. Nevertheless, later in his testimony, he indicated that the “call to arms,” which documented the dispatch related to this incident, was dated May 27, 2014.

      . It appears from the remainder of the testimony at the hearing that Ms. Gant meant 2014, since that is when the search occurred.

      . We note that, even if Ms. Gant had not provided written consent, she also provided oral consent to the officers to search the home. This Court has previously held that oral consent is sufficient for a warrantless search. See State v. Gross, 14-110 (La.App. 5 Cir. 6/24/14); 145 So.3d 521, 529, writ denied, 14-1516 (La. 2/27/15); 159 So.3d 1065 (citing State v. Ossey, 446 So.2d 280, 287 n.6 (La. 1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984)).