text:
    STATE of Louisiana v. Travis R. GOODIE
    17-693
    Court of Appeal of Louisiana, Third Circuit.
    08/23/2017

      Keith States, District Attorney, Fifteenth Judicial District, Emilia Salas Par-do, Assistant District Attorney, P.O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
    Amanda Koons, Fifteenth Judicial District Defender, PO Box 3622, Lafayette, LA 70502, (337) 232-9345, COUNSEL FOR DEFENDANT/APPLICANT: Travis R. Goodie
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   SAUNDERS, Judge.

liThe defense alleges that, on July 14, 2017, the State charged Defendant, Travis Goodie, with one count of violating a protective order in violation of La.R.S. 14:79(B)(1).

Prior to Defendant being charged, the trial court, on June 15, 2017, held a “Gwen’s Law” hearing pursuant to La. Code Crim,P. art. 313. Following presentation of the evidence and argument by counsel, the district court denied bail based upon a finding that there was clear and convincing evidence that Defendant posed a present danger to others.

On June 23, 2017, the defense filed a notice of its intent to seek supervisory review of the denial of bail in the instant case. As a result, on June 28, 2017, the trial court set July 28, 2017, as the return date.

On July 31, 2017 (postmarked July 28, 2017), Defendant filed a writ application with this court seeking supervisory review of the trial court’s June 15, 2017, ruling denying Defendant bond. On August 1, 2017, the State filed an opposition brief with this court restating the facts and arguments made at the hearing.

At the June 15, 2017, hearing, the State introduced the protective order into evidence. The. protective order, which is acknowledged by Defendant’s signature, applies from April 27, 2017, through October 27, 2018. It protects the Petitioner, Cami R. Chaddick, from Defendant under the provisions regarding domestic abuse, La. R.S. 14:2131 et seq. (The order stated the trial court found Defendant to be a credible threat to the physical safety of Ms. Chaddick and, therefore, prohibited Defendant from possessing a firearm for the duration of the order.)

The following prohibitions were marked as not expiring following the October 27, 2018, expiration date of the order. Defendant was ordered to not |aabuse, harass, assault, stalk, follow, track, monitor, threaten, contact (even through a third party or social media) Ms. Chaddick unless it related to their two children, go within 100 yards of Ms. Chaddick unless it related to their two children, go within 100 yards of Ms. Chaddick’s residence (there was no exception to this prohibition), damage the belongings, damage the property, shut off utilities, stop mail service, or otherwise interfere with the living conditions of the protected person. Defendant was further ordered to stay away from Ms. Chaddick’s workplace.

Though the order granted temporary custody of the children to Ms. Chaddick, Defendant was allowed unsupervised visitation as reasonably permitted by Defendant’s offshore work schedule. The protective order also awarded child support.

The prosecution then stated the basis for Defendant’s arrest in the instant case. On June 10, 2017 Ms. Chaddick reported seeing Defendant in the area of her house. The person matching Defendant’s description was seen walking away from Ms. Chaddick’s home. The police responded, and when they subsequently stopped Defendant in a traffic stop, they Mirandized Defendant.

Thereafter, Defendant admitted to being at the home. Defendant explained he had gone there to check on his children. Defendant denied knocking on the door. Defendant said he had walked through the area to reach his cousin’s house. Defendant’s car alarm had activated, and he took a box cutter from his cousin’s house to cut the wires to the alarm. Defendant did not identify his cousin or say he actually spoke with the cousin.

Defendant admitted that he stopped to look inside Ms. Chaddick’s home during this time. Defendant was within 100 yards of the residence. Though] s Defendant said he had gotten a box cutter from his cousin’s house, a pat-down of Defendant’s person yielded no box cutter.

The State continued that, two days pri- or, Defendant was issued a misdemeanor summons for admitting to hacking Ms, Chaddick’s email account, retrieving nude photographs of her, and posting them on a social media website without her consent. The misdemeanor case report number was 174647; the State introduced the report as its second exhibit.

The police report for the June 8, 2017, offense shows the reported violation to be listed as a violation of a protective order, in violation of La.R.S. 14:79. The evidence collected consisted of audio visual recordings and screen shots of text messages. The report showed Defendant was issued a misdemeanor summons as a result of the complaint.

The narrative portion of the police report explained the basis of the complaint. When Ms. Chaddick. and Defendant interacted with each other in reference to their children, they had a heated argument..After they parted ways, Defendant .began texting Ms. Chaddick with threats that he would go to her residence. Additionally, Defendant had accessed Ms. Chaddick’s email and had copied a series of private photographs, of Ms. Chaddick with her new lover. Both Ms. Chaddick and her partner were nude and clearly identifiable. These photographs were posted in a social media collage. Not' only did the attached information identify Ms. Chaddick and her lover but it also included the following caption:

This is the slut of a baby momma I have this is the second dude I found out she’s f#$&%’1'! and he’s married ... the one she didn’t even, know his name ... I have proof of the other one to[o] ... just sad I had kid’s [sic] with someone like this.

14Additional text messages and photos revealed Defendant had threatened suicide. Though Ms. Chaddick provided a written statement, she declined to file.charges for nonconsensual disclosure of a private image under La.R.S. 14:283.2.

The narrative portion of the police report also contained a description of the officers’ interaction with Defendant following Ms. Chaddick’s June 8, 2017, complaint. After being Mirandized, Defendant “admitted contacting the victim outside of the protective order parameters. Additionally^] the suspect admitted going into the victim’s email without permission and taking the photographs for the collage.” As a result, the deputies arrested Defendant for a first offense violation of a protective order and released him on a misdemeanor summons.

The prosecution next noted that Defendant has been charged with one count on invading Ms. Chaddick’s home in docket number 161690. Defendant was .out on bond for the home invasion and subject to a misdemeanor summons for violating a protective order (for the harassment) when Defendant was arrested within 100 yards of Ms. Chaddick’s residence.

The State then argued'this pattern of activity showed a pattern of escalation; both the crimes against Ms. Chaddick and her concern for her safety were escalating. Defendant and Ms. Chaddick were married for ten to eleven years and share three children. Though Ms. Chaddick did not want to testify at the hearing, she was concerned about the increase of activity and about her safety.

The prosecution then introduced Defendant’s jail packet as its third exhibit to prove Defendant’s current charges for home invasion.and two prior theft arrests. The State pointed out that there were failures to appear relating to the theft charges. Additionally, there was a bench warrant for revocation.

The jail packet provided additional information about the June 10, 2017, incident. When the deputies arrived in the area, they saw Defendant walking away 1 sfrom the area and get into a car. When stopped, the deputies advised Defendant of his Miranda rights. Defendant then said he had gone to Ms. Chaddick’s residence to check on his children. Defendant was aware of the restraining order, but he thought it said 100 feet instead of 100 yards. Defendant maintained he did not go onto the property or knock on the door, but he admitted being within 100 yards of the home. The report went on to note that Defendant was the subject of a restraining order because he had been. arrested on April 16, 2017, for home invasion of Ms. Chaddick’s residence. Moreover, Defendant had been arrested for first offense violation of a protective order on June 8, 2017.

The prison packet additionally showed that in 2012, bench warrants were issued for Defendant’s failure to appear for arraignment on charges of operating a vehicle under a suspended or revoked license, for having an expired inspection sticker, and for theft betweén $500.00 and $1,500.00. Defendant had an additional bench warrant for the failure to appear for trial of the theft charge. In 2014, Defendant had a bench warrant issued for his failure to appear for a revocation hearing relating to a conviction for theft less than $500.00. The bench warrants were followed by information showing Defendant was arrested on April 16, 2017, for home invasion, in violation of La.R.S. 14:62.8.

The prosecution then asked the district court to consider holding Defendant without bond because of the increase in severity and because of his prior failure to appear. In the alternative, the State asked the trial court to consider requiring Defendant to wear an ankle monitor while out on bond.

The defense responded that Defendant was motivated by concern for his children. He was worried about the type of men to whom Ms. Chaddick was exposing his children. The defense did not accept responsibility for posting the | ¿nude photographs of Ms. Chaddick. Both the trial court and the prosecution pointed out that the report said he posted the pictures.

The defense then argued that the details of the prior violation were not germaine; the only relevant facts related to the current violation, which only involved him being near Ms. Chaddick’s residence. Defense counsel pointed out that Defendant said he misunderstood the parameters of the protective order. Moreover, Defendant’s job allowed him to pay a good ámount of child support, and he was due to leave to work in the oilfield industry. The defense then requested a $5,000.00 bond, and Defendant had expressed his consent to an ankle monitor.

The State responded that such a low bond was not applicable. Defendant’s prior violation had been two days prior, and posting nude photographs of Ms. Chaddick had nothing to do with protecting his children. Moreover, Defendant stopped to look in Ms. Chaddick’s house rather than just walking by in an effort to move between locations. The prosecution asked that, should the district court find bond to be appropriate, bail be set at $100,000.00 and electronic monitoring be required.

The trial court then gave the following reasons for denying Defendant bail:

THE COURT: You know, I’m just not convinced at all. I’m afraid it is escalating[,] and I felt that posting of the pictures of the ex-spouse as well as him being in the neighborhood, as well as the prior bench warrants, I mean, I just see an escalation here that could erupt into something not very good. So with that, I’m going to hold him without bond.

In brief, defense counsel argues the trial court abused its discretion by denying Defendant bail on a misdemeanor charge because the State failed to produce sufficient evidence at the Gwen’s Law Hearing to establish Defendant was an imminent danger to others. Defendant alleges the State presented scant |7evidence of imminent danger. Defendant concedes this was not the first violation of the protective order. On June 8, 2017, Ms. Chaddick contacted the police about text messages Defendant was sending her; however, Ms. Chaddick declined to file charges. On June 10, 2017, Defendant claims his violation consisted of just walking by and pausing to look at Ms. Chaddick’s house on his way to visit his cousin; this occurred within 100 yards of the residence. Upon his arrest, Defendant claimed he thought he was supposed to stay 100 feet away. Defendant contends that, despite the State’s assertion that Defendant admitted to posting nude photographs of Ms. Chaddick, the prosecution presented no evidence of that confession at the hearing.

The defense urges, moreover, the State failed to present persuasive evidence that Defendant was a flight risk under La.Code Crim.P. art. 332. The prosecution presented evidence that, for a prior theft charge, Defendant failed to appear for arraignment and for a later revocation hearing.

Denial of bail is reviewed for abuse of discretion. State v. Jacobs, 12-2737 (La. 12/20/12), 108 So.3d 757. Under “Gwen’s Law,” a trial court can deny bail if it finds that there is clear and convincing evidence that the defendant either might flee or pose an imminent danger to another or the community:

A. (1) This Paragraph may be cited as and referred to as “Gwen’s Law”.
(2) A contradictory bail hearing, as provided for in this Paragraph, may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the defendant’s family member, as defined in R.S. 46:2132 [an ex-spouse is included in the list] or upon the defendant’s household member as defined in R.S. 14:35.3 [an ex-spouse is also included in this list], or upon the defendant’s dating partner, as defined in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays. At the contradictory hearing, the court shall |sdetermine the conditions of bail or whether the defendant should be held without bail pending trial. If the court decides not to hold a contradictory hearing, it shall notify the prosecuting attorney prior to setting bail.
(3) In addition to the factors listed in Article 316, in determining whether the defendant should be admitted to bail pending trial, or in determining the conditions of bail, the judge or magistrate shall consider the following:
(a) The criminal history of the defendant.
(b) The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children.
(c) Documented history or records of any of the following: substance abuse by the defendant; threats of suicide by the defendant-, the defendant’s use of force or threats of use of force against any victim-, strangulation, forced sex, or controlling the activities of any victim by the defendant-, or threats to kill. Documented history or records may include but are not limited to sworn affidavits, police reports, and medical records.
(4) Following the contradictory hearing and based upon the judge’s or magistrate’s review of the factors set forth in Subparagraph(A)(3) of this Article, the judge or magistrate may order that the defendant not be admitted to bail, upon proof by clear and convincing evidence either that the defendant might flee, or that the defendant poses an imminent danger to any other person or the community.
(5) If bail is granted, with or without a contradictory hearing, the judge or magistrate shall comply with the provisions of Article 320, as applicable. The judge or magistrate shall consider, as a condition of bail, a requirement that the defendant wear an electronic monitoring device and be placed under active electronic monitoring and house arrest. The conditions of the electronic monitoring and house arrest shall be determined by the court and may include but are not limited to limitation of the defendant’s activities outside the home and a curfew. The defendant may be required to pay a reasonable supervision fee to the supervising agency to defray the cost of the required electronic monitoring and house arrest. A violation of the conditions of bail may be punishable by revocation of the bail undertaking and the issuance of a bench warrant for the defendant’s arrest or remanding of the defendant to custody or a modification of the terms of bail.
B. Upon motion of the prosecuting attorney, the judge or magistrate may order the temporary detention of a person in custody who is charged with the commission of an offense, for a period of not |9more than five days, exclusive of weekends and legal holidays, pending the conducting of a contradictory bail hearing. Following the contradictory hearing, upon proof by clear and convincing evidence either that there is a substantial risk that the defendant might flee or that the defendant poses an imminent danger to any other person or the community, the judge or magistrate may order the defendant held without bail pending trial.

La.Code Crim.P. art. 313(A) and (B) (emphasis added).

The general factors for setting bail referenced by the “Gwen’s Law” article are as follows:

The amount of bail shall be fixed in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community, having regard to:
(1) The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance.
(2) The weight of the evidence against the defendant.
(3) The previous criminal record of the defendant.
(4) Thé ability of the defendant to give bail.
(5) The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release.
(6) The defendant’s voluntary participation in a pretrial drug testing program. '
(7) The absence or presence in the defendant of any controlled dangerous substance.
(8) Whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing.
(9) Any other circumstances affecting-the probability of defendant’s appearance.
(10) The type or form of bail.

La.Code Crim.P. art. 316.

In State v. Anderson, 17-257 (La.App. 3 Cir. 3/27/17) (unpublished opinion), this court upheld a denial of bail under Gwen’s Law following the defendant’s arrest for domestic abuse battery, in violation of La. R.S. 14:35.3. Between the commission of the offense and the bail hearing, the two parties communicated by telephone, were civil, and professed their love for one another. The victim expressed her desire that the defendant be allowed bail and that there be no restraining order issued in the case. At the “Gwen’s Law” hearing, the trial court |indenied bail based upon the battery and issued, a two-year, protective order. The defense argued that denial of bond in a misdemeanor case-was unreasonable. The defense did not seek review by the supreme court.

In State v. Choplin, 16-499 (La.App. 3 Cir. 6/17/16) (unpublished opinion), this court ruled that the State failed to present clear and convincing evidence to support the denial of bail under La.Code Crim.P. art. 330.3 in a case where the denial of bail followed an initial arrest for domestic abuse battery. The supreme court disagreed and reinstated the district court’s ruling denying bail; it held that evidence the defendant had committed a domestic abuse battery upon the victim while under protective order constituted clear and convincing evidence the defendant presents an imminent danger to the victim. State v. Choplin, 16-1190 (La. 6/24/16), 192 So.3d 779.

In State v. Burke, 15-349 (La.App. 3 Cir. 4/24/15) (unpublished opinion), .this court found the trial court abused its discretion in denying bail under “Gwen’s Law.” The defendant had been charged with domestic abuse aggravated assault, in violation of La.R.S. 14:37.7, for throwing a knife and a hammer at her boyfriend during an altercation. The defendant resisted officers during the arrest both physically and through verbal abuse. The defendant had a prior conviction for disturbing the peace and pending felony charges for home invasion, simple battery, and aggravated assault relating to the same victim as the domestic abuse case. The defendant had been twice previously arrested for domestic abuse batteiy involving the same victim, but the charges were dropped when the victim failed to appear for trial. The defendant was actually out on bail for an incident involving the same victim when she was arrested for the domestic abuse aggravated assault. Defense In counsel pointed out that the abuse went both ways; the victim was currently charged with domestic abuse battery for actions toward the defendant. The State did not apply for certiorari by the supreme court.

In State v. Anderson, 06-755 (La.App. 3 Cir. 7/10/06) (unpublished opinion), this court found the trial court did not abuse its discretion in revoking the defendant’s bond. The defendant had been charged with domestic abuse battery, simple burglary, two counts of violating a protective order, unauthorized entry of an inhabited dwelling, obstruction of a court order, aggravated assault, and stalking, all pertaining to his ex-wife. After bonding out of jail, the defendant continued to contact his ex-wife. The defense did not seek certiorari by the supreme court.

In State v. LaHaye, 02-727 (La.App. 3 Cir. 6/24/02) (unpublished opinion), this court found the district court abused its discretion in ordering the defendant held without bond under “Gwen’s Law.” La-Haye was charged with sexual battery, in violation of La.R.S. 14:43.1, but the day before, he had been charged with numerous sex offenses involving juveniles. The defendant’s pregnant -wife of six weeks expressed fear for her safety should he discover she assisted the investigators; she eventually obtained a restraining order. Furthermore, the juvenile victims were unsure of the defendant’s reaction should he become aware they had been interviewed. Additionally, the defendant was a doctor with a successful practice, had a passport, possessed firearms, and owned land sufficient enough to operate a cattle ranch. The supreme court disagreed and reversed this court’s ruling; it held, “The trial court did not abuse its discretion in finding defendant is a flight risk and imposes an imminent danger to others.” State v. Lahaye, 02-1769 (La. 6/27/02), 819 So.2d 1025.

| taThe evidence the State presented at the hearing showing Defendant might flee is that Defendant works offshore and that Defendant has repeatedly failed to appear for prior court proceedings.

The evidence the prosecution introduced at the hearing showing Defendant poses an imminent danger to Ms. Chaddick is that, beginning April 16, 2017, Defendant began committing offenses against Ms. Chaddick. The first offense was home invasion; as a result, a protective order was issued on April 27, 2017, in an attempt to prevent Defendant from harming or harassing Ms. Chaddick. Exactly'six weeks later, on June 8, 2017, Defendant violated the protective order by texting Ms. Chaddick, by hacking her email, and by posting her private images in a public forum along with commentary. A mere two days later, Defendant, who had previously forced his way into Ms. Chaddick’s home was found there within the perimeter established by the court order. Defendant admitted to looking into her residence. Additionally, there was a mention that, at some point, Defendant threatened suicide.

The information in the record, i.e., the protective order, shows that Defendant works offshore with a twenty-one-day work period with ten days off. Two work periods, back-to-back without break, would be forty-two days, which is exactly six weeks. Defendant’s work schedule means that, at least for the bulk of the time between the issuance of the protective order and the commencement of harassment in June, Defendant was working offshore and could not readily access Ms, Chaddick. It is clear that Defendant has harassed Ms. Chaddick at any time he has had access to her.

The trial court did not abuse its discretion by finding the facts of the case show by clear and convincing evidence Defendant is an imminent danger to Ms. Chad-dick.

JjsWRIT DENIED: Defendant filed a writ application with this court seeking supervisory review of the trial court’s June 15, 2017, decision to deny bail based upon a finding that Defendant poses an imminent danger to the victim under La.Code Crim.P. art. 313. Our review of the record and jurisprudence suggests that there is no error in the trial court’s ruling. Accordingly, Defendant’s writ application is denied.

      . Louisiana Code of Criminal Procedure Article 330.3 was repealed by 2016 La. Acts No. 613, § 4.


source: Caselaw Access Project

author: CHUTZ, J.

license: Public Domain

text:
    Kira THIGPEN v. Christopher LACOMBE, Prairieville Volunteer Fire Department, Inc., Special Risks Insurance Inc., Ascension Parish Fire District, and Glatfelter Insurance Group
    2016 CA 1612 and 2016 CW 1611
    Court of Appeal of Louisiana, First Circuit.
    AUGUST 29, 2017

      Roy H. Maughan, Jr., Joshua D. Roy, Namisha D. Patel, Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant Kira Thigpen
    Henry D. H. Olinde, Jr., Scott E. Mercer, Baton Rouge, Louisiana, Counsel for Defendants-Appellees Christopher La-combe, Ascension Parish Fire District No. 3, and American Alternative Insurance Corp.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   CHUTZ, J.

| ¡Plaintiff-appellant, Kira Thigpen, appeals the trial court’s grant of summary judgment in favor of defendants-appellees, Cpt. Christopher Lacombe, Ascension Parish Fire Protection District No. 3 (District No. 3), and their liability insurer, American Alternative Insurance Corporation, dismissing her claims for damages as a result of a motor vehicle accident. Additionally, defendants filed a writ application, challenging an evidentiary ruling made by the trial court. For the reasons that follow, we deny the writ and we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 2011, at around 9:00 p.m., Cpt. Lacombe responded to an emergency call dispatched to District No. 3 concerning a motor vehicle accident. Driving a 2001 E-One Pumper fire truck, Engine #30, with three other fire fighters aboard, Cpt. Lacombe proceeded from the station house on Highway 73 in Prairieville onto westbound Interstate Highway 10 (I—10) with the emergency lights and sirens activated. As he approached the parish line between Ascension and East Baton Rouge parishes where the accident was reported to have occurred, he saw a Louisiana State Trooper’s vehicle with its blue lights flashing on the eastbound 1-10 roadway, across the median on the south side shoulder. In an effort to ensure administration of emergency responder services as quickly as possible, Cpt. Lacombe stopped Engine # 30 in the left lane of I—10 to allow the other fire fighters to exit the vehicle and render aid. While the fire fighters were in the process of exiting Engine # 30, Thig-pen’s 2004 Honda Civic, which was traveling approximately 60 mph, ran into the back of the fire truck. Although a passenger in her car was able to exit, Thigpen was not. After she was extricated from her car, Thigpen was taken to an area hospital where she received medical treatment.

Thigpen subsequently filed this lawsuit, naming as defendants, Cpt. Lacombe as the driver of Engine # 30, his employer, District No. 3, whom she haverred was vicariously liable for Lacombe’s actions, and their liability insurer. Defendants filed an answer and discovery was conducted. Thigpen subsequently filed a motion for partial summary judgment, asserting that defendants were not entitled to the immunity afforded the driver of an emergency vehicle under Louisiana’s Highway Regulatory Act. Defendants responded with a cross motion for summary judgment, contending they were entitled to immunity and, further, to dismissal from the lawsuit because Thigpen was unable to prove that Lacombe breached the applicable standard of care. When, in opposition to defendants’ motion for summary judgment, Thigpen relied on the opinion of an accident reconstruction expert, Michael Gillen, defendants filed a motion to exclude his testimony.

The trial court conducted a hearing on the motions. After argument and the presentation of the parties’ supporting documents, the trial court denied Thigpen’s motion for partial summary judgment and granted summary judgment in favor of defendants on the issue of the applicable standard of care. The trial court also denied the motion to exclude Gillen’s report and testimony but concluded that defendants were entitled to a dismissal of all of Thigpen’s claims against them. Thigpen appealed, and defendants filed a writ application challenging the trial court’s admission of Gillen’s report and testimony, which was referred to the merits of this appeal. See Thigpen v. Lacombe, 2016-1611 (La. App. 1st Cir. 3/16/17) (unpublished writ action).

II. SUMMARY JUDGMENT

In our de novo review of the trial court’s ruling on opposing motions for summary judgment, we use the same criteria that govern the trial court’s | consideration of whether summary judgment is appropriate. See Bank of New York Mellon v. Smith, 2015-0530 (La. 10/14/15), 180 So.3d 1238, 1243; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/05/94), 639 So.2d 730, 750. Thus, we must determine whéther a genuine issue of material fact exists and whether the movant is entitled to judgment as a matter of law. See La. C.C.P. art. 966A(3); see Supreme Services & Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La. 5/22/07), 958 So.2d 634, 638. The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966A(4).

The burden of proof rests with the movers. Nevertheless, if the movers will not bear the burden of proof at trial on the issue that is before the court, the movers’ burden on the motion does not require that they negate all essential elements of the adverse party’s claim, but rather to point out the absence of factual support for one or more elements essential to the adverse party’s claim. The burden is then on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the movers are not entitled to judgment as a matter of law. See La. C.C.P. art. 966D(1).

When summary judgment is granted in the context of statutory interpretation, there are no material issues of fact in dispute and the sole issue before us is a question of law as to the correct interpretation of the statute at issue. GameStop, Inc. v. St. Mary Parish Sales and Use Tax Dep’t, 2014-0878 (La. App. 1st Cir. 3/19/15, 6), 166 So.3d 1090, 1094, writ denied, 2015-0783 (La. 6/1/15), 171 So.3d 929. But where the issue is whether a particular fact in dispute is material, the substantive law determines materiality. See Smith v. Berteau, 98-1438 (La. App. 1st Cir. 6/25/99), 739 So.2d 269, 272.

Un her motion' for partial summary judgment, Thigpen suggested that because defendants were not entitled to assert the priviléges and immunity afforded an emergency vehicle driver under Louisiana’s Highway Regulatory. Act, her applicable burden of proof at trial was ordinary negligence. In their summary judgment motion, defendants asserted that, under Louisiana’s Highway Regulatory Act, Thigpen was required to prove Cpt. Lacombe acted with reckless disregard for the safety of others. They further- maintained that in light of the evidence produced at the hearing on the motion for summary judgment, Thigpen’s claims against them should be dismissed. >

In rendering judgment, - the trial court agreed with- defendants, concluding that at trial Thigpen had to prove a reckless disregard for the safety of others by Cpt'. Lacombe. Additionally, in determining that defendants were entitled to a dismissal of the claims against them, the trial court concluded that Thigpen had failed to produce factual support sufficient to establish that Cpt. Lacombe acted with reckless disregard.

III. STATUTORY INTERPRETATION

We are first called upon to interpret the provisions of La. R.S. 32:24,- the statute setting forth the privileges and immunities afforded to drivers of emergency vehicles under Louisiana’s Highway Regulatory Act. The starting point.in the interpretation of any statute is the language of the statute itself. Fontenot v. Reddell Vidrine Water Dist., 2002-0439 (La. 1/14/03), 836 So.2d 14, 20. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied .as written, and no further interpretation. may be made in search of legislative intent. Fontenot, 836 So.2d at 20. A statute shall be construed to give meaning to the plain language of the statute, and courts may | finot extend statutes to situations that the legislature never intended to be covered. Chamberlain ex rel. Wilmer J. v. Kennedy, 2003-0488 (La. App. 1st Cir. 12/31/03), 868 So.2d 763, 767. When two or more interpretations may be given a law, the interpretation which is reasonable and practical- is preferred to that which makes the law ridiculous or meaningless. Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d 653, 662.

IV. APPLICABILITY OF LA. R.S. 32:24, AFFORDING PRIVILEGES AND IMMUNITY TO THE DRIVER OF AN EMERGENCY VEHICLE

In both Thigpen’s motion for partial summary judgment and defendants’ cross motion for summary judgment, the parties asserted that interpretation of La. R.S. 32:24 resulted in a ruling in their favor. Section 24 provides in part: -

A. The driver . . : of an authorized emergency vehicle, when responding to an emergency call ... may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver ... of an authorized emergency vehicle may .... [p]ark or stand, irrespective of the provisions of this Chapter....
C. The exception[ ] herein granted to an authorized emergency vehicle shall apply only when such vehicle ... is making use of audible or visual signals ... sufficient to warn motorists of their .approach....
D. The foregoing provisions shall not relieve the driver ... of an authorized vehicle- from the duty to drive ... with due regard for the safety of all persons, nor shall such provisions protect the driver ... from the consequences of his reckless disregard for the safety of others.

Subsection D sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C of Section 24 will an emergency vehicle driver be held liable only for actions which constitute “reckless disregard for the safety of others.” On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of Section 24, such driver’s actions 17-will be gauged by a standard of “due care.” Lenard v. Dilley, 2001-1522 (La. 1/15/02), 805 So.2d 175, 180.

Under the facts of our case, for the reckless disregard standard afforded to an emergency vehicle driver to apply, the record must establish that: Cpt. Lacombe was driving an authorized vehicle in response to an emergency call; the accident arose while he was engaged in parking or standing the authorized emergency vehicle; and he was making use of audible or visual signals sufficient to warn motorists of their approach. See Lenard, 805 So.2d at 180. On appeal, Thigpen does not dispute, and the documents offered by the parties clearly established that Cpt. La-combe was on an emergency call and had engaged the fire truck’s audible and visual signals from the time he left the fire station until he stopped in the left lane of the westbound I—10 roadway where he disengaged the siren but left the emergency lights illuminated. Thus, for purposes of interpreting La. R.S. 32:24, we focus on whether Engine #30 was an authorized emergency vehicle; and, if so, whether Cpt. Lacombe had engaged in parking or standing the fire truck at the time of the accident such that the reckless disregard standard applies in this case.

A. Authorized Emergency Vehicle

Thigpen asserts that the definition of “authorized emergency vehicle” set forth in La. R.S. 32:1(1) must be read in pari materia with the requirements for audible and visual signals on certain vehicles provided for in La. R.S. 32:318. According to Thigpen, when La. R.S. 32:24, 1(1) and 318 are read together, defendants cannot avail themselves of an application of reckless disregard standard because Engine # 30 is not an authorized emergency vehicle.

|sLa. R.S. 32:1(1) states that, unless the context clearly indicates a different meaning when used in a statute in Louisiana’s Highway Regulatory Act, an “authorized emergency vehicle” means, in relevant part, “a vehicle of a fire department.” According to the pertinent provisions of La. R.S. 32:318C:

Every authorized emergency vehicle shall ... be equipped with signal lamps mounted as high and as widely spaced laterally as practicable, which shall be capable of displaying ... to the rear two alternately flashing red lights located at the same level, and these lights shall have sufficient intensity to be visible at five hundred feet. (Emphasis added.)

We note that Section 318 appears in Subpart A of Part V, entitled “Lights and Other Lighting Equipment,” of Louisiana’s Highway Regulatory Act. Nothing in Section 318 purports to define what constitutes an authorized emergency vehicle or to otherwise alter the definition set forth in Subsection 1(1). Rather, as with all the other provisions in Part V, Subpart A, Section 318 merely describes the lighting obligations required of an authorized emergency vehicle.

Moreover, according to the provisions of La. R.S. 32:24C, to receive the benefits of Subsection B, the driver of the authorized emergency vehicle need only make use of either audible or visual signals “sufficient to warn motorists of [his] approach.” Thus; it is the sufficiency of the warning that is the instrumental determination necessary to trigger Subsection B’s privilege allowing emergency drivers to park or stand their authorized emergency vehicles irrespective of any other provisions of Louisiana’s Highway Regulatory Act.

The record established that Engine # 30 was equipped with signal lamps mounted at the top of the rear of the fire'truck widely spaced laterally. But instead of displaying two rear alternately flashing red lights located at the. same level, the fire truck was equipped in the rear with two amber dome-style rotating lights located at the same level on each of the back corners. The fire truck also had an array of other red and clear lights located in the front and on the sides. Dash-cam | ¿video from Louisiana State Trooper Huey McCartney, who was investigating the eastbound I—10 accident to which District No. 3 was responding, captured Engine # 30 on westbound I—10 in the inside lane of travel. The video showed the fire truck for approximately seven seconds before it went out. of view prior to Thigpen’s rear end impact with it. Our review of the video shows that Engine # 30 was clearly visible and well illuminated with red, clear, and amber lights as it proceeded.

We decline to conflate the definition of an authorized emergency vehicle set forth in Section 1(1) with the equipment requirements set forth in Section 318C. Since- the record fails to establish that the authorized emergency vehicle’s activated lighting was insufficient to warn motorists of its approach, we conclude the fire truck that Cpt. Lacombe was- driving fell within the ambit of the plain language of La. R.S. 32:24A.

B. Parking or Standing of the Fire Truck

Thigpen next points to the definitions of “park” and “stand” in La. R.S. 32:1 to assert that Cpt. Lacombe’s action of stopping Engine # 30 on westbound 1-10 parallel to the site of the accident on eastbound 1-10 (the eastbound accident) to allow fire fighters, trained as emergency medical technicians, to attend to reported injuries was not within the ambit of La. R.S. 32:24. Reading Section 24 in pari materia with Section 1, Thigpen avers, Cpt. Lacombe’s actions must be judged under an ordinary negligence standard of care rather than the reckless disregard standard provided to drivers of authorized emergency vehicles under Section 24D.

As we have already noted, La. R.S. 32:24B(1) states that the driver of an authorized emergency vehicle may park or stand, irrespective of the provisions of this Chapter. La. R.S. 32:1 sets forth definitions for Chapter 1, Louisiana’s Highway Regulatory Act, providing:

| mWhen used in this Chapter, the following words and phrases have the meanings ascribed to them in this Section, unless the context clearly indicates a different meaning:
* ⅛ *
(46) “Park” or “parking” means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers.
* * *
(71) “Stand” or “standing” means the halting of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers.

Because it is undisputed that Cpt. La-combe was temporarily stopped in the left lane of the westbound 1-10 roadway to discharge the fire fighters on board Engine # 30 to more rapidly respond to the eastbound accident site, Thigpen asserts applying Section 1 to the provisions of Section 24B(1) shows that the fire truck was not parked or standing so as to allow defendants to qualify for the reckless disregard standard of care. We disagree.

The preambulatory clause of La. R.S. 32:1 states that the enumerated definitions have the ascribed meanings “unless the context clearly indicates a different meaning.” Our review of Louisiana’s Highway Regulatory Act reveals that the terms park/parking and/or stand/standing are used primarily in Part IV, “Traffic Regulations,” in Subpart E, entitled “Parking, Standing and Stopping.” See La. R.S. 32:141-146. Each of these sections proscribes conduct relative to leaving a vehicle on a roadway for otherwise than the temporary loading and unloading or receiving and discharging of passengers. Violations of these provisions generally result in citations. Section 24 is located not in Subpart E of Part IV, but in Subpart A of Part II, addressing “Uniformity of Application.” JjjNone of the Sections of Subpart A of Part II other than Section 24- uses the terms park/parking and/or stand/standing. To superimpose the definitions of park/parking and/or stand/standing set forth in Section 1 onto the plain language meaning of those terms in Section 24 results in an interpretation that is not reasonable or practical. See Rabalais, 952 So.2d at 662.

The obvious purpose of La. R.S. 32:24 is to provide protection to drivers of authorized emergency vehicles who, because of the nature of their obligations, in responding to emergency situations may have to make unusual, unexpected, and sudden movements. The “high social value and premium placed on protection and rescue efforts” is well established in our law. See Lenard, 805 So.2d at 180.

We find a construction of Subsection 24B(1) which superimposes the definitions of Section 1(46) and (71), undermines the purpose of La. R.S. 32:24. Specifically, a driver of an authorized emergency vehicle is afforded more protection the moment he/she stops. But once emergency personnel commence exiting the vehicle to attend to rescue efforts, the driver is no longer provided that protection. Subsequent to the disembarking of emergency personnel, the driver in the non-moving emergency vehicle is again afforded protection. Unlike situations under La. R.S. 32:141-146 where the temporary loading or unloading of passengers may relieve a driver from receipt of citation, we can see no reasonable basis to distinguish the standard of care where a driver of an authorized emergency is responding to' an urgent situation by allowing personnel to disem? bark from those instances where he/she is simply stopped on the roadway. Therefore, we conclude the use of the terms “park” and .“stand” in R.S. 32:24 are- a context which clearly indicates a different meaning from that ascribed in La. R.S. 32:1(46) and (71). As |12such, under the clear and unambiguous perambulatory language of Section 1, those definitions are inapplicable.

Accordingly, under the undisputed facts of this case, interpreting “park” and- “stand” as the terms are ordinarily understood, the record establishes that Opt. Lacombe was driving an authorized emergency vehicle in response to an emergency call while parking the fire truck and making use of his visible .signals sufficient to warn motorists of their approach. As such, defendants are entitled to ’ assert the immunity set forth in La. • R.S. 32:24 and Thigpen’s burden at trial so- as to support a • finding of fault for which defendants are liable is to prove that Opt; Lacombe acted with reckless disregard for the safety of others when he chose to park Engine #30 in the left lane of 1-10 to allow emergency personnel to exit the vehicle and cross the median of the interstate to respond to the eastbound accident. The trial court correctly granted this'portion of defendants’ motion for summary judgment.

V. PROPRIETY OF THE DISMISSAL OF THIGPEN’S CLAIMS

Having determined the applicable standard of care that Thigpen must prove, .we turn now to the summary judgment documents offered in support of and in opposition to the dismissal of defendants from the lawsuit. In so doing, we focus on the facts established by the documents to determine whether Opt. Lacombe acted with reckless disregard to the safety of others under the immunity protection afforded to him by La. R.S. 32:24D.

“Reckless disregard” connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, ‘‘gross negligence.” Gross negligence has been defined as the want of even slight Care and diligence. It is the want of that diligence which even careless persons áre accustomed to exercise. Lenard, 805 So.2d at 180. Gross negligence has also been termed the entire absence of care and |isthe utter disregard of prudence, amounting to complete neglect of the rights of others. Rabalais, 952 So.2d at 658.

Thigpen avers that in responding to the eastbound accident, Opt. Lacombe had a duty to keep the westbound flow of traffic unaffected. By parking or standing Engine #30 in the left lane of traffic, Thigpen reasons .that Opt. Lacombe created an unanticipated hazard on the interstate thereby breaching the duty he owed to motorists on the roadway. As we have already determined, irrespective of any duties that may have been owed and breached under the emergency response circumstances, defendants can only be liable to Thigpen if she can show that Opt. Lacombe acted with reckless disregard for the safety of others.

A. Showing Made by Defendants

In support of their entitlement to dismissal from the lawsuit, defendants offered the deposition testimony of Cpt. Lacombe, who testified that on the night of the accident, the Ascension Parish Sheriff Office (ÁPSO) dispatched District Nó. 3, advising of a motor vehicle- accident near the Aseension-East Baton Rouge parish line on eastbound 1-10. Cpt. Lacombe recalled dispatch having stated an overturned vehicle was involved with an entrapment and either an unresponsive or unconscious person. Given the information provided in the dispatch, Cpt. Lacombe responded with a Code 3, which is District No. 3’s most urgent response code. He activated Engine # 30’s siren and emergency lights and proceeded to the accident site.

When Engine #30 arrived parallel to the eastbound accident site on the I—10 westbound roadway, it was dark. Cpt. La-combe identified that the police were present at the eastbound accident site by the flashing blue lights, and he spotted a rolled over vehicle. Cpt. Lacombe stopped the fire truck in the left lane of the I—10 roadway with the emergency lights activated. He stated that stopping a fire truck in a travel lane of the interstate was proper. He could not park on the right travel | i4lane shoulder since this would have risked the safety of the exiting fire fighters by requiring that they cross two lanes of the 1-10 westbound roadway traffic to get to the median. By letting the fire fighters out in the left lane of travel, Cpt. Lacombe realized that, since the trooper ihvestigating the eastbound accident was present, he could assist the fire fighters in crossing the 1-10 eastbound roadway. It was Cpt. Lacombe’s intention to continue on westbound 1-10 to the Highland Road exit, where he could have turned and headed east on 1-10 back to the eastbound accident site.

According to Cpt. Lacombe, when he was stopping in the left lane, there were no other vehicles passing him in the right lane. With lights fully activated, he brought Engine #30 to a complete stop and was hit from behind. None of the fire fighters had actually exited Engine # 30 at the time of the impact.

Cpt. Lacombe explained that while in the fire, truck, fire fighters are unable to hear communications from other responding agencies, only dispatches from APSO. Therefore, at the time of the accident, he was unaware Louisiana State Police had ascertained that the overturned vehicle involved people refusing medical aid. District No. 3 responded to the eastbound accident as a Code 3 at all times until Thigpen rear-ended the fire truck.

Also admitted into evidence in support of defendants’ motion for summary judgment was Cpt. Lacombe’s affidavit. In addition to attestations consistent with his deposition testimony, Cpt. Lacombe stated that before he stopped/he looked in Indus side view mirrors. He saw a white light fairly far behind him and decided it was a safe time to stop. The dash-cam video of Trooper McCartney’s vehicle confirmed that the nearest vehicle behind the fire truck before Engine # 30 went out of view was “fairly far” behind it.

Given Cpt. Lacombe’s testimony that he believed it was a safe time to stop, coupled with his action of ascertaining that no vehicles were in the immediate vicinity of the fully illuminated fire truck, confirmed by the dash-cam video, defendants have established that Cpt. Lacombe did not drive Engine # 80 with reckless disregard for the safety of others. The summary judgment documents establish that Cpt. Lacombe drove with care and diligence, not that he acted with an entire absence of care or an utter disregard of prudence that would amount to the complete neglect of the rights of others. With this showing, the burden shifted to Thig-pen to produce evidence sufficient to support a factual finding that Cpt. Lacombe acted with reckless disregard for the safety of others such that a genuine issue of material fact remained. See La. C.C.P. art. 966D(1).

B. Responsive Showing Made by Thigpen

According to the salient portions of Thigpen’s deposition testimony, she entered westbound 1-10 at the Highway 30 onramp in Gonzales proceeding to Baton Rouge. She saw the fire truck enter the interstate at the Highway 73 onramp with its emergency lights on, but it sped out of her field of vision. When she passed the Highway 73 exit in Prairieville, she was traveling in the right lane. Because the car in front of her was driving slower than she was, she pulled into the left lane to pass it. A white pick-up truck immediately preceded her once she was in the left lane. After she passed a wooded area of the median and came out of a curve in the roadway, she saw the eastbound accident site. Thig-pen was between 1-1/2 to 2 car lengths behind the white pick-up truck, traveling at no more than 60 |1fimph, when the white pick-up truck suddenly swerved into the right lane of travel and Thigpen saw the fire truck again. She was unable to avoid hitting it.

Thigpen also offered Gillen’s affidavit and deposition into evidence. Attached to his affidavit was a report he prepared setting forth his expert opinion which concluded that Cpt. Lacombe had acted with reckless disregard for the safety of others when he stopped Engine #30 in the left lane of the 1-10 westbound roadway. The trial court permitted the expert’s opinion, noting that it went “to the weight of the evidence, and not its admissibility,” in response to defendants’ motion to exclude the expert’s opinion which they averred was based on assumptions not supported by the evidence. In the writ application referred to this merits review, defendants maintain the expert opinion evidence should be disallowed and that without it Thigpen cannot demonstrate any outstanding issues of material fact exists.

A trial court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Cheairs v. State ex rel. Dep’t of Transp. & Dev., 2003-0680 (La. 12/3/03), 861 So.2d 536, 541. The trial court’s decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Maddox v. Bailey, 2013-0564 (La. App. 1st Cir. 5/19/14), 146 So.3d 590, 594.

Expert opinion admitted on summary judgment must be both reliable and relevant. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 233. The factual basis for an expert’s opinion determines the reliability of the testimony. Thus, an unsupported opinion can offer no assistance to the fact finder and should not be admitted as expert testimony. Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552 (La. App. 1st Cir. 10/4/11), 77 So.3d 339, 355.

117La. C.E. art. 103A provides that error may not be predicated upon a ruling admitting or excluding evidence unless a substantial right of the party is affected. In reviewing evidentiary decisions of the trial court, the appellate court must consider whether the particular ruling complained of was erroneous and, if so, whether the error prejudiced the complainant’s cause, for unless it did, reversal is not warranted. The determination is whether the error, when compared to the record in its totality, had a substantial effect on the outcome of the case. Maddox, 146 So.3d at 594; see and compare Solito v. Horseshoe Entertainment, 36,667 (La. App. 2d Cir. 12/18/02), 834 So.2d 610, 616 (assuming the expert’s report and deposition testimony were improperly admitted into evidence, the admission is subject to harmless error analysis).

Our review of Gillen’s opinion establishes that his conclusions are based on facts not established by the summary judgment documents. Gillen acknowledged that he made assumptions about the speed of the white pick-up truck, the rate at which it made the lane change to avoid the fire truck, the point the lane change was completed, and the locations in the travel lane of both the white pick-up truck and Thigpen’s car. More particularly, Gillen based his conclusion that Cpt. Lacombe had acted with reckless disregard for the safety of others when he stopped Engine # 30 in the left lane of the 1-10 westbound roadway on the assumption that Thigpen was following the white pick-up truck at the recommended 2-second interval immediately before it moved to the right travel lane. But. Thigpen expressly stated she was traveling 1-1/2 to 2 car lengths behind the white pick-up truck. In his deposition testimony, Gillen conceded this was less than the 2-second interval recommendation and “obviously ... she’s not going to be able to avoid an object based on that following distance.”

Gillen nevertheless suggested that if Thigpen could not have been able to avoid the accident traveling 2 seconds behind the white pick-up truck, it showed | iSCpt. Lacombe had acted with reckless disregard regardless of the l-l/2-to-2 car length distance she traveled behind the white pick-up truck. But the record is devoid of any evidence to support a finding that, traveling at the recommended 2-sec-ond interval behind the white pick-up truck, a driver of a small car like Thigpen’s could not have seen the emergency lights of the fire truck, heeded the warning, slowed down, and avoided the accident. Absent such evidence, Gillen’s conclusion that Cpt. Lacombe acted with reckless disregard when he stopped in the left lane roadway was based on facts not established by the summary judgment documents. Thus,. because any error by the admission of Gillen?s'report and deposition testimony, when compared to the record in its totality of the record, did not have a substantial effect on the outcome, the writ is denied.

By their showing, defendants established that Cpt. Lacombe did not act with reckless disregard for the safety of others'. Because Thigpen was unable to produce factual support sufficient to establish the existence of a genuine issue of material fact to rebut defendants’ showing, the trial court correctly granted summary | judgment and dismissed Thigpen’s claims against them.

VI. DECREE

For these reasons, the trial court’s grant of summary judgment in favor of defendants is affirmed. The writ application of defendants-appellees, Cpt. Christopher La-combe, Ascension Parish Fire, and their liability insurer is denied. Appeal costs are assessed against plaintiff-appeílant, Kira Thigpen.

WRIT DENIED; JUDGMENT AFFIRMED,

      . Although Thigpen alleged that District No. 3 was independently negligent for failing to properly train Cpt. Lacombe, the trial court rejected that contention and, on appeal, Thig-pen has not challenged District No. 3’s dismissal on that basis.

      . See La. R.S. 32:1-399.

      . Although the trial court denied Thigpen’s motion for partial summary judgment, -that denial is not appealable. - See La. C.C.P. art. 968. But because defendants’ motion for summary judgment raised that same issue, we reviewed Ihé applicable burden of proof at trial as part of Thigpen’s appeal of the grant of summary judgment in favor of defendants.

      . By deposition, Thigpen testified that she could not recall whether she saw illuminated emergency lights on the fire truck after the accident. Photographs taken after the accident also brought into question whether all the fire truck’s emergency lights remained illuminated subsequent to the accident. But Cpt. Lacombe stated in his deposition testimony that the lights were activated at the time of the accident and that testimony was not rebutted.

      . Thigpen admitted in her deposition testimony that she saw the illuminated fire truck when it entered the westbound travel lanes of I—10 at the Highway 73 entrance ramp and that it subsequently advanced out of her view.

      . See generally La. R.S. 32:57.

      . See La. R.S. 32:21-25.

      . See e.g., La. R.S. 32:125 (setting forth the required procedure on approach of an authorized emergency vehicle and when passing a parked emergency vehicle) and Section 231 (recognizing the exception of the driver of an authorized emergency vehicle to the obligation of obedience to the instructions of any official traffic-control device).

      . In his affidavit, Cpt. Lacombe identified the proceeding, State v. Thigpen, from Ascension Parish District Court, in which Thigpen was tried for the traffic citations she received as a result of the accident with the fire truck. On' appeal, Thigpen complains that the trial court erred in permitting the transcript of the citation proceeding. Defendants attempted to admit the transcript from the citation proceeding into evidence as an attachment to the citation court reporter’s affidavit. Although the trial court permitted admission of the court reporter's affidavit, it refused to allow the entire transcript into evidence. Cpt. La-combe "adopted and incorporated" his citation-proceeding testimony into his affidavit. Mindful that Thigpen has not challenged the authenticity of the contents of Cpt. Lacombe’s testimony, see La. C.E. art. 901A, because the attestations resulting from the adoption and incorporation of the citation-proceeding testimony contained in Cpt. Lacombe's affidavit were made on his personal knowledge, we find no error. See La. C.C.P. art. 967A.

      . Gillen suggested that the use of a fire truck lacking the lights required by La. R.S. 32:318 resulted in a failure to allow motorists sufficient time to react to the stopped fire truck which constituted a reckless disregard for the safety of others, Since Thigpen stated she did not see the fire truck before the accident because, as Gillen opined, her view was blocked by the white pick-up truck, she would not have seen a fire truck with lighting in conformity with La. R.S. 32:318. Thus, the lighting configuration of Engine # 30 could not have been the cause-in-fact of the accident. We, therefore, pretermit a discussion of whether such use could have been a reckless disregard for the safety of others. Gillen also concluded that Cpt. Lacombe acted with reckless disregard by failing to park the fire truck in the median or partially on the left shoulder and in the median which, he opined, would have avoided creating an obstacle on the roadway. Gillen’s testimony established that, based on the axel ratings, Engine #30 weighed about 45,000 pounds. As a former police officer, Gillen acknowledged that he had become stuck in a median in a car weighing only about 5000 pounds. Raymond Laviol-ette, Jr., one of the fire fighters aboard Engine # 30 at the time of the accident, testified by deposition that fire trucks were not permitted to be driven off the roadway. This policy was confirmed by the deposition testimony of District No. 3 Fire Chief, Mark Stewart. Thus, the record established Cpt. Lacombe acted in conformity with District No. 3 policy when he chose not to utilize the median and, therefore, showed that he did not drive with reckless disregard for the safety of others. Thigpen has neither rebutted this showing by defendants nor alleged the independent liability of District No. 3 on the basis of this policy.

      . Since we have concluded that the trial court correctly dismissed Thigpen’s claims we pretermit a discussion of whether application of the doctrine from Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994) (civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments), would have' alternatively supported a dismissal of defendants from the lawsuit.


author: Judge Terri F. Love EDWARDS, J.,

text:
    STATE of Louisiana v. Nunzio MARCHIAFAVA
    NO. 2017-KA-0325
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 30, 2017
    Rehearing Denied September 25, 2017
    See also 182 So.3d 1187.

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT, STATE OF LOUISIANA
    Douglas S. Hammel, THE HAMMEL LAW FIRM, LLC, 3129 Bore Street, Me-tairie, LA 70001, COUNSEL FOR DEFENDANT/APPELLEE, NUNZIO MARCHIAFAVA
    (Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terri F. Love

I aThis appeal arises from the trial court’s granting of defendant’s motion to quash the charge of malfeasance. We find that the trial court did not err by granting the motion to quash because there was no violation of an affirmative duty by the defendant, which is required for malfeasance. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND

On September 26, 2012, a fatal fire occurred at the Willow Creek Apartments (“Willow Creek”), formerly known as the Rusty Pelican Motel, in Grand Isle, Louisiana. Two people were killed in the fire. This appeal concerns allegations that on September 27, 2012, Nunzio Marehiafava, a now retired district fire marshal, falsified a daily activity report to make it appear that he performed a follow-up inspection at Willow Creek on May 25, 2012. It is alleged that Mr. Marehiafava destroyed the original activity log from that date and created a new one documenting traveling to Grand Isle to inspect the motel.

The investigation into this matter was conducted by Inspector Heath Humble of the Office of the State Inspector General after a complaint was received from the Metropolitan Crime Commission (“MCC”). The MCC complaint alleged that [3the Office of the State Fire Marshal (“SFM”) received a complaint regarding Willow Creek. The SFM complaint alleged that Willow Creek had deplorable conditions and fire safety hazards prior to the fire that occurred on September 26, 2012. Further, the MCC complaint contended that Mr. Marchiafava failed to act on the information.

Inspector Humble then conducted an investigation to see what efforts SFM undertook to investigate the complaints that were received. Inspector Humble collected records from SFM, which showed that Mr. Marchiafava was tasked with inspecting Willow Creek. The records showed that Mr. Marchiafava inspected Willow Creek on April 2, 2012, and again on May 25, 2012.

Mr. Marchiafava documented his purported trip to Grand Isle to inspect Willow Creek by sending a report via email to his supervisor on September 27, 2012, the day after the fire. In his special report/email, Mr. Marchiafava stated that on the morning May 25, 2012, he conducted a follow-up investigation, but that he was unable to locate anyone in the building and the management office was closed, but filled with storage material. Mr. Marchiafava stated that he spoke to the Chief of the Grand Isle Fire Department to inform him of his results. Mr. Marchiafava learned that the Chief had tried unsuccessfully on a number of occasions to contact Jefferson Parish Code Enforcement to schedule an inspection.

Inspector Humble sought to confirm that these inspections occurred by examining odometer readings from Mr. Marchia-fava’s vehicle. Inspector Humble identified a discrepancy with respect to the odometer readings from May 25, 2012. Inspector Humble then obtained Mr. Marchiafava’s cell phone records, which documented that Mr. Marchiafava’s cell phone never left the New Orleans area on May 25,2012.

| ¿Inspector Humble also interviewed Mr. Marchiafava’s secretary/administrator Rosalyn Philips, who told him that she helped Mr. Marchiafava change the date on the daily activity report in question.

Inspector Humble applied for and obtained a warrant from the Nineteenth Judicial District Court for the Parish of East Baton Rouge for Mr. Marchiafava’s arrest for the crime of filing or maintaining false public records in violation of La. R.S. 14:133.

Mr. Marchiafava alleges that this case is a misunderstanding. He contends that he neglected to issue the report regarding his second attempt at inspecting Willow Creek prior to the fire, and when he did issue his report, he entered the wrong date, erroneously stating that his inspection occurred on May 25, 2012. Accordingly, Mr. Mar-chiafava contends that the charges stem from a simple clerical error.

PROCEDURAL HISTORY

Mr. Marchiafava was charged with filing false public records and malfeasance in office. Mr. Marchiafava filed a motion to quash the bill of information, which was withdrawn. The State responded to Mr. Marchiafava’s request for bill of particulars. A hearing was held on Mr. Marchiafa-va’s motions to suppress statement and evidence as well as his request for a preliminary examination. The trial court took that matter under advisement. Mr. Mar-chiafava filed a second motion to quash and memorandum in support. He alleged that venue was improper and that the charges were legally insufficient.

The trial court denied the motion to quash and the motions to suppress evidence and statement. Thereafter, Mr. Mar-chiafava sought supervisory review from this Court. This Court denied his application on the showing made. State v. Marchiafava, 15-0018, unpub., (La. App. 4 Cir. 3/10/15).

Subsequently, Mr. Marchiafava filed a third motion to quash relying in large part on Hanson v. Steven Caruso, Willow Creek, L.L.C., 15-449 (La. App. 5 Cir. 12/23/15), 182 So.3d 1187, a parallel civil case filed by survivors of the two occupants who died in the Willow Creek fire. Mr. Marchiafava also alleged that the State had not sufficiently responded to the bill of particulars.

The State filed a supplemental response to Mr. Marchiafava’s motion for bill of particulars, wherein it specified that the basis for the charge of malfeasance in office was Mr. Marchiafava’s falsifying records and submitting a false report. A hearing was held, and counsel for Mr. Marchiafava called two state fire marshals, who testified about Mr. Marchiafava’s responsibilities in connection with Willow Creek. The trial court conducted a second hearing on the matter. Thereafter, Mr. Marchiafava filed a supplemental and amending motion to quash in response to the supplemental bill of particulars, maintaining that the charges against him subjected him to double jeopardy. The same day that the State filed a response brief, the trial court granted Mr. Marchiafava’s motion and quashed the charge of malfeasance in office. The State’s appeal followed.

MOTION TO QUASH

The State, asserts that the trial court erred in granting Mr. Marchiafava’s motion to quash because he was properly charged with violating lawful .duties. La. C.Cr.P. art. 532 provides that “[a] motion to quash may be based on” the fact that “[t]he indictment fails to charge an offense which is punishable under a valid statute.” “In considering the motion to quash, the district court accepts as true .the |fifacts contained in the indictment or bill of information and in the bill of particulars, and determines as a matter of law and from the face of the pleadings, whether a crime has been charged.” State v. Petitto, 10-0581, p. 4 (La. 3/15/11), 59 So.3d 1245, 1248. A trial court’s ruling granting or denying a motion to quash is renewable for an error of law, thus requiring the use of the de novo standard of review. State v. Ancalade, 14-0739, p. 10 (La. App. 4 Cir. 1/14/15), 158 So.3d 891, 897. In deciding a motion to quash a bill of information, a “trial court is not authorized to make any factual determinations.” State v. Landry, 13-1030, p. 5 (La. App. 4 Cir. 5/7/14), 144 So.3d 1078, 1082. Likewise, factual defenses going to the merits of the charge are not proper grounds to be considered when deciding a motion to quash. Id.

“La. Const. Art. I, § 13 requires the state to inform the accused in a criminal prosecution of the nature and cause of the accusation against him.” State v. DeJesus, 94-0261, p. 3 (La. 9/16/94), 642 So.2d 854, 855. “The state may provide the information in the indictment alone, or in its responses to a defense request for a bill of particulars.” Id. “The purpose of the bill of particulars is to inform the accused more fully of the nature and scope of the charge against him so that he will be able to defend himself properly and to avoid any possibility of ever being charged again with the same criminal conduct.” Id.

Mr. Marchiafava was charged with malfeasance in office, which is defined in pertinent part by La. R.S. 14:134 as:

A. Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform atiy duty lawfully required of him, as such officer or employee; or
|7(2) Intentionally perform any such duty in an unlawful manner; or

The bill of information in the present case charged that between May 1, 2012, and September 30, 2012, Mr. Marchiafava “committed malfeasance in office.” The bill of information set forth no additional facts.

In its supplemental response to Mr, Marchiafava’s motion for a bill of particulars, the State further alleged that the prosecution is based upon the following statutes:

A. Louisiana Revised Statute .14:133, with respect to filing a false public record, to wit, a State Fire Marshall Report with knowledge of its falsity.
B. Louisiana Revised Statute 14:134, insofar as, in falsifying records and submitting a false report, defendant-
i. intentionally performed in an unlawful manner duties required by, and inherent in the nature of, his former office, contrary to his duty as a public employee under Article 10, Section 30 of the Louisiana Constitution of 1974 to support the laws of this state;
ii. . intentionally failed to comply with an order or orders of the State Fire Marshall, or authorized delegate(s) of the same, contrary to his duty as an enforcement agent of the State Fire .Marshal, under Louisiana Revised Statute 40:1591, to enforce all laws under the jurisdiction of, and lawful orders issued by, the State Fire Marshal; and
iii. intentionally failed to comply with his duties under Article 10, Section 30 of the Louisiana Constitution of 1974 and Louisiana Revised Statute 40:1591 by interfering with the State Fire Marshal’s fulfillment of statutory obli-. gations, to wit:
|8a. to direct investigations that shall determine, insofar as possible, the cause of and circumstances surrounding each fire that occurs within the state, under Louisiana Revised Statute 40:1566;
b. to keep a record of facts and circumstances surrounding each fire that occurs within the state, under Louisiana Revised Statute 40:1566; and c. to investigate fires that result in human death, under Louisiana Revised Statute 40:1568.1.

In Petitto, 10-0581, pp. 4-5, 59 So.3d at 1249, the Louisiana Supreme Court stated:

One key phrase in the statute is “any duty lawfully required of him.” This phrase makes it clear that before a public officer or employee can be charged with malfeasance in office, there must be a statute or provision of law which imposes an affirmative duty upon him. State v. Perez, 464 So.2d [737] at 741 [ (La. 1985) ], citing State v. Passman, 391 So.2d 1140, 1144 (La. 1980), As this court has explained, this duty must be expressly imposed by law upon the officer (or employee) because the officer (or employee) is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will expose him to criminal charges. State v. Perez, 464 So.2d at 741.

La. Const. Art. X, § 30 provides:

'Every official shall take the following oath or affirmation: “I, ..., do solemnly swear (or affirm) that I will support the constitution and laws of the United States and the constitution and laws of this state and that I will faithfully and impartially discharge and perform • all the duties incumbent upon me as ..., according to the-best of my ability and understanding, so help me God.”

In Hanson, the plaintiffs sued SFM and Mr. Marchiafava, alleging that Mr. Mar-chiafava failed to inspect a building that later caught fire causing the deaths of two people and falsified reports regarding his investigation of the building. 15-449, pp. 2-3, 182 So.3d at 1189, “Subsequently, SFM and [Mr. Marchiafava] filed 19an exception of no cause of action on the basis that the petition failed to allege a duty owed and/or breached by” SFM and Mr. Marchiafava to these particular plaintiffs. Id., 15-449, p. 3, 182 So.3d at 1190. The Fifth Circuit agreed, finding that, pursuant to La. R.S. 40:1563(0, the SFM through its employee, Mr. Marchiafava, was “by definition” performing “a discretionary function,” which exempted it from liability. Id., 15-449, p. 6, 182 So.3d at 1191, The Fifth Circuit summarized relevant portions of La. R.S. 40:1563(0 as follows:

The fire marshal shall not conduct or supervise inspections in all remaining matters where a fire .prevention bureau is properly certified unless specifically requested by the fire prevention bureau or the local governing body of that jurisdiction or upon complaint of any citizen. The fire marshal may, at his discretion, report any complaint received from a citizen to the appropriate fire prevention bureau and the fire marshal may conduct a joint inspection, with the fire prevention bureau.

(internal punctuation omitted). A plaintiff asserted that:

[T]he trial court erred in failing to find that the “acts and omissions by [the inspector], in fraudulently and criminally preparing reports for which he never did investigation” constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”

Id.

The Court of Appeal disagreed with the plaintiffs and found that Mr. Marchiafava’s “subsequent act is an exception to discretionary immunity,” reasoning as follows:

First, the record reveals that the inspector did inspect the Willow Creek premises in April. Further the record reveals that, after the fire in September, the inspector prepared a faise log entry that reflected that he made a | ^second trip to the premises. Although the report was falsified, the misconduct occurred subsequent to the fire, and, more importantly, the preparation of a fraudulent report was not a contributing cause of the fatal fire. We find that this conduct is not sufficient to trigger the exception to discretionary immunity. Accordingly, the trial court’s decision maintaining SFM’s and the inspector’s exceptions of no cause of action is affirmed.

Id., 15-449, pp. 6-7, 182 So.3d at 1192.

In the present matter, the trial court accepted the Hanson court’s reasoning and granted the motion to quash on the basis that “[ujnder the facts alleged, the Petitoner’s conduct was factually discretionary, thereby making it impossible to obtain a lawful conviction.”

The State contends that Hanson is not dispositive because, in Hanson, Mr. Mar-chiafava’s “duty of general care to the general public” was at issue while here “it is the defendant’s duties by law” that is at issue. We find this is a distinction without a difference. Mr. Marchiafava’s statutory duty or “duties by law” to perform an inspection is defined by La. R.S. 40:1563(0), on which the Hanson court based its decision. The crime of malfeasance in office requires the violation of “an affirmative duty.” Petitto, p. 4, 59 So.3d at 1249. Here, Mr. Marchiafava, in failing to inspect Willow Greek, failed to perform a discretionary duty. By definition, this conduct cannot constitute malfeasance in office. Hanson is directly on point, and the State’s assertion lacks merit or persuasion.

Additionally, the State failed to specify that Mr. Marchiafava’s conduct in failing to perform the inspection as ordered is what gave rise to malfeasance. The bill of particulars asserted that the offense of malfeasance was premised on Mr. Mar-chiafava’s conduct of “falsifying records and submitting a false report.” Likewise, at the hearing on Mr. Marchiafava’s initial motion to quash, the State fy specified that the malfeasance was tied to the filing of the report and that it was not related to violating any other public duty, such as a duty to respond to the complaint and inspect the location. As noted previously, the State omitted that portion of the bill of particulars specifying “falsifying records and submitting a false report” as the conduct that violated Mr. Marchiafava’s affirmative lawful duty from its appeal brief.

In State v. Deville, 94-0241 (La. App. 4 Cir. 10/27/94), 644 So.2d 1117, the defendant police chief was charged with malfeasance in office after instructing a town police officer to commit perjury, committing battery on a prisoner in his custody, and illegally arresting and falsely imprisoning a citizen, among other things. In Deville, the bill of information alleged that the police chief committed malfeasance in office by:

intentionally failing to perform the duties lawfully required of him as said officer and intentionally performed said duties in an unlawful manner. More specifically, as Chief of Police he is sworn to support the Constitution and Laws of the United States and the Constitution and Laws of Louisiana and to faithfully and impartially discharge and perform all the duties incumbent upon him as Chief of Police of the Town of Washington.

94-0241, p. 4, 644 So.2d at 1120.

This Court, in Deville, concluded that the reasoning of State v. Coker, 625 So.2d 190 (La. App. 3rd Cir. 1993), was analogous and relied on the Coker court’s analysis of the affirmative duties that are inherent in the office of Chief of Police in reaching its decision. This Court’s discussion follows:

| jgln appealing his conviction and sentence, Coker, like defendant in the instant case, vigorously argued his oath of office did not delineate any affirmative duty not to batter suspects and thus there was no basis for a malfeasance conviction. In rejecting defendant’s argument, the Court reasoned:
“... the defendant contends that a public official can never be convicted of malfeasance unless a specific criminal statute exists which defines the conduct as_malfeasance. In the defendant’s case, he asserts that he cannot be found guilty of malfeasance for maliciously battering helpless prisoners unless a statute exists which requires that ‘law enforcement officials shall ensure the safety, health and well being [sic] of all citizens or persons in their presence or custody, and ensure no batteries are committed upon the person who is in their custody or presence.’ Utilizing the defendant’s reasoning, every conceivable function and duty of a public official would have to be specifically included in a prohibitory statute in order to successfully ‘notify’ the official of his potential liability for malfeasance. This is clearly impossible in practice and was obviously not the intent of the legislature when enacting the malfeasance statute.
In fact, only two offenses are specifically delineated in Louisiana as constituting malfeasance. See La.R.S. 14:134.1 and La.R.S. 14:134.2. In all other cases, the specific duties required to support [a] conviction for malfeasance are derived from other sources.
Specific criminal statutes and ordinance[s] have been used to support malfeasance convictions, (citations omitted) ...
⅜ ⅜ ⅜* ⅝⅞ ⅝* ⅜
The oath of office has also been held to independently express certain affirmative duties. In Perez, supra, a judge was found to be under an express affirmative duty not to interfere with or obstruct the grand jury, | abased on his oath of office. In State v. Perret, 563 So.2d 459 (La. App. 1st Cir.1990), an employee of the Department of Wildlife and Fisheries was found to have an express affirmative duty not to interfere with , the execution of provisions of La.R.S. 56:433, pursuant to his oath of office.
5jí ⅜ ⅜ ⅜ ⅜ ⅛⅞
When police officers use unreasonable force, and the police conduct shows reckless and callous indifference to the rights of others, that conduct violates constitutional prohibitions against unreasonable seizures ... Certainly, when the chief performed in this fashion, he did so unlawfully, misused and abused his power, and thus, is guilty of the misuse and malfeasance of his office.
⅜ ‡ ⅜ ⅜ ⅜ ⅜
Clearly, the malfeasance statute requires that the offender be acting in his official capacity and engaged in the performance of a duty which is required by law, in order to support conviction. The jurisprudence indicates that prosecution for malfeasance is reserved for those cases in which a public official has blatantly abused the authority of his office and violates the public trust by his direct, personal acts or failure to act.” Id. at 195, 197, 198.
We adopt the above quoted language as our legal basis for concluding that the bill of information which included reference to defendant’s oath of office properly charged the offense of malfeasance in office. In addition we note the elementary fact that certain affirmative duties are inherent in the nature of the office. Certainly police officers have the duty not to break the law when performing the duties of their office. Our review of the evidence convinces us that it is sufficient to sustain the jury’s conclusion that defendant is guilty of malfeasance.

Deville, 644 So.2d at 1121-23.

In State v. Ferguson, 14-1305, 14-1321, 14-1334 (La. App. 4 Cir. 9/2/15), 176 So.3d 449, this Court relied on Coker and Deville to find that a correctional officer’s oath of office includes the duty not to break the law when performing the duties of his office. This Court also found that committing a battery on or becoming a principal to the commission of a battery upon a juvenile inmate in the officer’s care was sufficient to constitute the crime of malfeasance in office as the bill of information and the bill of particulars alleged. Ferguson, 14-1305, 14-1321, 14-1334, p. 18, 176 So.3d at 461.

Arguably, as seen in the jurisprudence referenced above, the supplemental bill of particulars implicitly sets forth a violation of Mr. Marchiafava’s duty regarding his oath of office. Mr. Marchiafava’s response to the filing of the supplemental bill of information was to contend that the prosecution violated double jeopardy principles. Mr. Marchiafava never asserted that he could not commit malfeasance in office by filing false public records in violation of La. R.S. 14:133. However, the State failed to assert this as an error on appeal, which limited Mr. Marchiafava’s response and precludes our discussion. See Rule 1-3, and Rule 2—12.4(B)(4), Uniforms Rules, Courts of Appeal.

Nonetheless, the crime of malfeasance in office requires the violation of an affirmative duty, which does not exist in the present case. We find that Mr. Marchiafava failed to perform a discretionary duty, which cannot constitute malfeasance in office. Further, the State failed to specify that Mr. Marchiafava’s conduct, in failing to perform the inspection as ordered is what gave rise to malfeasance. As such, we find the State failed to present a meritorious assertion that the trial court erred by granting’ Mr. Marchiafava’s motion to quash. The | ^judgment is affirmed.

DECREE

For the above-mentioned reasons, we find' that the trial court did not err by granting Mr. Marchiafava’s motion to quash. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

EDWARDS, J., DISSENTS AND ASSIGNS REASONS

EDWARDS, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent from the majority’s decision to grant the defendant’s motion to quash the malfeasance charge. The State does not disagree that the conduct at issue in the parallel civil suit —ie., the duty to conduct an inspection of the Willow Creek Apartments, formerly known as the Rusty Pelican motel,—wás a discretionary duty. Further, the State agrees that Mr. Marchiafava’s failure to conduct the inspection prior to the fire does not rise to the level of “malfeasance in office,” a criminal act. The crime of malfeasance in office requires the violation of an “affirmative duty,” and by definition, Mr. Marchiafava’s failure to perform the inspection, a discretionary duty, cannot constitute malfeasance in office.

To the contrary, however, the State argues that the allegations contained in its supplemental bill of particulars are directed to Mr. Marchiafava’s conduct occurring after the building burned down, when he filed a false police report and tampered with SFM records. According to the State, Mr. Marchiafava, in essence, attempted to stage a cover-up and, in doing so, he violatr ed statutory duties, duties inherent in the nature of his office, and duties he assumed under his oath in office,

1 ^Accordingly, I find that the State has presented a valid charge of malfeasance in office, and it should- have the opportunity to prove it. For these reasons, I respectfully dissent from the majority’s decision to quash the malfeasance charge.

      . Mr. Marchiafava’s third motion to quash is the subject of this appeal.

      . In Hanson, the court ruled that Mr. Mar-chiafava and SFM did not have a mandatory duty to inspect Willow Creek. 15-449, pp. 5-6, 182 So.3d at 1191.

      . Mr. Marchiafava was also charged with La, R.S. 14:133, which provides in pertinent part:
      A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or;rule, with knowledge of its falsity, of any of the following:
      (1) Any forged document.
      (2) Any wrongfully altered document.
      (3) Any document containing a false statement or false representation of a material fact,

      . The Fifth Circuit’s quotation of La. R.S. 40:1563(C) did not include the full language of the statute. We have omitted the quotation marks accordingly.

      . The prosecutor stated:
      The malfeasance in office is, in fact, Mr. Marchiafava's filing of a record that was not accurate for what actually transpired. That is what the investigator testified to, and for these reasons, the State would pray that you deny the motion to quash and we proceed with this case.

      . Mr. Marchiafava states that because the trial court avoided granting the motion to quash on double jeopardy grounds, any discussion or argument regarding the application of double jeopardy is not presently before the court. We agree,

      . Hanson v. Steven Caruso, Willow Creek, L.L.C., 15-449 (La. App. 5 Cir. 12/23/15), 182 So.3d 1187