author: PENZATO, J.

text:
    STATE of Louisiana v. Brandon Rashad MARTIN
    2017 KA 1100
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Warren L. Montgomery, District Attorney, Mary Watson Smith, Assistant District Attorney, Covington, Louisiana, Attorneys for Appellee, State of Louisiana
    David F. Gremillion, Rachel M. Yazbeck, New Orleans, Louisiana, Attorneys for Defendant/Appellant, Brandon Rashad Martin
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

The defendant, Brandon R. Martin, was charged by felony bill of information with three counts of aggravated assault with a firearm, violations of La. R.S. 14:37.4 (counts one, two, and three); and possession of a firearm by a person convicted of certain felonies, a violation of La. R.S. 14:95.1 (prior to revision by 2017 La. Acts No. 281, § 1) (count four). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on counts one, three, and four, and guilty of attempted aggravated assault with a firearm on count two. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied. The district court sentenced the defendant to ten years at hard labor on count one, five years at hard labor on count two, ten years at hard labor on count three, and ten years at hard labor without the benefit of probation, parole, or suspension of sentence on count four. The district court further ordered all of the sentences to run concurrently. The State subsequently filed a habitual offender bill of information. After a hearing, the defendant was adjudicated a second-felony habitual offender as to count four. The court then sentenced the defendant to forty years at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals, alleging four assignments of error. For the following reasons, we vacate the original sentence imposed on count four, and we affirm the defendant's convictions, habitual offender adjudication, and sentences.

FACTS

On January 19, 2016, the defendant drove to his father, James Martin's, home in Slidell, Louisiana, and confronted his father and two brothers, Jermaine Singleton and Randy Martin, the victims. The defendant, who had a gun, threatened to kill Jermaine. James and Randy tried to protect Jermaine, who was recovering from surgery, from the defendant. The defendant ultimately left the scene without firing his weapon.

SUFFICIENCY

In his third assignment of error, the defendant argues that the evidence presented at trial was insufficient to support his convictions. Specifically, he contends that the State failed to prove beyond a reasonable doubt that he was in possession of a firearm. The defendant notes that a firearm was not recovered and complains that the State's witnesses gave inconsistent statements regarding the firearm.

When issues are raised on appeal, both as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). The reason for reviewing the sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot. Hearold , 603 So.2d at 734.

On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Hearold , 603 So.2d at 734. Accordingly, we proceed first to determine whether the entirety of the evidence was sufficient to support the defendant's convictions.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. at 319, 99 S.Ct. at 2789 ; see La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno , 2001-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Aggravated assault with a firearm is an assault committed with a firearm. La. R.S. 14:37.4A. Pursuant to La. R.S. 14:95.1 A, "It is unlawful for any person who has been convicted of ... any violation of the Uniform Controlled Dangerous Substances Law which is a felony ... to possess a firearm or carry a concealed weapon." [Footnote omitted.] The defendant does not dispute his identity as the perpetrator of the offenses, and notes that he admitted that he committed simple assault. However, the defendant contends that because the State failed to prove he was in possession of a firearm, he should not have been found guilty of the charged offenses.

According to Jermaine Singleton's trial testimony, the dispute arose because of Jermaine "putting [the defendant] out" of his house approximately four months prior to the instant offenses. Jermaine explained that after the defendant was released from prison for an unrelated offense, he allowed the defendant to stay at his home and work with him. However, when the defendant quit working with Jermaine and began bringing women into the home, Jermaine told him that he had to move out. The defendant became angry and attempted to fight with Jermaine, but Jermaine's wife stopped the dispute. Thereafter, on January 19, 2016, the defendant drove to their father's house and jumped out of the vehicle that he was driving. The defendant then walked up to Jermaine and threatened to beat him up and kill him. James and Randy attempted to stop the defendant, as Jermaine was recovering from a surgery. After the defendant pushed Jermaine's forehead with his finger, James pushed the defendant away from Jermaine. The defendant walked back toward the vehicle he arrived in, bent over in the vehicle, and walked back toward the victims. He stated that he was going to kill Jermaine. According to Jermaine, James and Randy were "steady pushing [the defendant] away from" him, and Jermaine told James to leave the defendant alone, but the defendant reached into his back pocket and pulled out a gun. When the defendant pulled out the gun, he pointed it "directly at [Jermaine's] forehead." The defendant continually told Jermaine that he was going to kill him, but did not pull the trigger of the gun, which Jermaine described as a black .38 revolver with a rubber handle. James and Randy again pushed the defendant away, and as the defendant began walking away, he placed the gun in his back pocket. The defendant then entered the vehicle that he arrived in and drove away. Jermaine testified that he saw his nephew in the defendant's vehicle that day and that after the defendant left, Randy contacted the police. In Jermaine's written statement, he stated that the defendant was "waving a gun" at the three of them and "talking about he is going to kill me."

James Martin testified that the defendant arrived at his house on January 19, 2016, to confront Jermaine. James stated that the defendant, who had a gun, confronted Jermaine and threatened to hurt and kill him. James attempted to stop the defendant, who then hit James's chest and knocked him to the ground, almost into Jermaine. As James attempted to get back up, he saw the barrel of the defendant's gun, which he testified the defendant had pointed over James's shoulder. As the defendant walked back out to the vehicle he arrived in, James walked out to the side of the street to talk to the defendant, but the defendant became "violent" again and left. James followed the defendant to the house where he was staying, which was around the corner, and asked him why he wanted to "bring that drama" to his house. James's written statement indicates that the defendant pulled up to James's home while he, Jermaine, and Randy were outside.

The defendant was yelling and "steady waving the gun."

Randy Martin testified that on January 19, 2016, the defendant arrived at James's house "out of nowhere" and began "fussing" at Jermaine and "cursing him out about something old that had happened." Randy testified that he did not see anyone in the vehicle other than the defendant. The defendant walked back out to the vehicle that he arrived in and when he returned to the victims, he reached into his back pocket and pulled out a gun, which Randy described as a .38 caliber revolver. Randy testified that the defendant was acting extremely violent, and he was scared that the defendant might shoot someone. Randy contacted the defendant's probation officer prior to contacting 911. During his testimony, Randy clarified that the defendant did threaten him, and he was unsure why he told the 911 operator otherwise. Randy explained that the "primary" victims were James and Jermaine and that he was a "side" victim. However, Randy noted that the defendant stated that if they, referring to James and Randy, "[got] in the way," he would kill them too. Randy also provided a written statement, wherein he stated that the defendant arrived at his house in a light blue Hyundai, exited the vehicle, and began cursing. The defendant then reached into his back pocket and pulled out a revolver, which he noted was a .38 caliber. Before leaving the scene, the defendant "was shouting he was going to kill" Jermaine and "would kill my father James if he stepped in the way."

The defendant's girlfriend, Tequila Moss, testified on his behalf. According to her testimony, she and the defendant were living together at the time of the instant offenses. She testified that she and the defendant drove to the defendant's father's house, and the defendant's father and brothers were standing outside. When the defendant exited the vehicle, they started arguing. She heard the defendant and his father start screaming and heard the defendant's father say, "[L]eave it alone, don't worry about it." According to Tequila, the defendant then told his father that he never took his side. The defendant turned toward Jermaine and began arguing with him. Tequila testified that after the defendant's father told him not to fight with Jermaine because he was recovering from a surgery, the situation diffused and she and the defendant returned to her home, which was near the defendant's father's home. Tequila maintained that the defendant never pulled a gun on anyone and never returned to the vehicle to retrieve a gun. After she and the defendant returned to her home, the defendant's father drove up.

The issue raised by the defendant as to whether he possessed a firearm is a matter of credibility. The jury heard all of the testimony and believed the accounts of Jermaine, James, and Randy over that of Tequila. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt.

State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn , 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

The guilty verdicts returned by the jury indicate that it accepted the State's evidence. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. The victims testified that the defendant had a gun, waved or pointed it at them, and threatened to kill them. After a thorough review of the record, we find the evidence supports the jury's verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the charged offenses., See State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417 (per curiam).

This assignment of error is without merit.

MOTION IN LIMINE AND MOTION FOR NEW TRIAL

In his first assignment of error, the defendant argues that the district court erred in overruling his objection and motion in limine wherein he attempted to prevent the State from introducing jailhouse telephone calls. The defendant specifically argues that the recordings were not timely turned over to the defense, and that the prejudicial nature of the content of the telephone calls far outweighed any probative value they might have. In his second assignment of error, the defendant argues that the district court erred in denying his motion for new trial on this basis.

During trial, on November 9, 2016, the State sought to introduce telephone calls made by the defendant from jail on November 1 and 6, 2016. The State indicated that one of the calls was made the night before trial began and that as soon as it became aware of the calls, it notified the defense and provided a recording of the calls. The State clarified that it received notice of both calls at the same time. Defense counsel confirmed that the State provided copies of the calls around 3:30 p.m. on November 8, 2016. The court found the State exercised due diligence in obtaining the recordings and in providing them to the defense at an appropriate time.

The State further argued that the calls were relevant to show Tequila's interest in testifying on behalf of the defendant and that the defendant had an influence in controlling Tequila's behavior. According to the State, if the defendant were released, Tequila would have to confront him, and "his aggressive nature towards [her] is obviously very concerning as far as the influence that he's wielding over [her] even while he is incarcerated." Defense counsel responded that Tequila already admitted during her testimony that she had an interest in the defendant's release.

After hearing arguments, the district court concluded that the content of the telephone calls was relevant and probative. It explained that the calls "have the potential of the state showing that the witness did have some interest in testifying a particular way." The court noted that it also would allow defense counsel to recall the witness and ask her limited questions regarding her perception of the calls.

The recordings of the jailhouse telephone calls were played for the jury. In the November 1, 2016, telephone call, the defendant repeatedly cursed at Tequila because she did not answer his telephone call. When she stated that she did not answer because she had left her phone at home, he called her a liar and told her they would see who got the "last laugh." When Tequila told him that his comment sounded like a threat, the defendant responded, "I don't make threats." Thereafter, on November 6, 2016, the defendant called Tequila and after continually cursing at her, told her that she was "starting to think [she] can do whatever the f*** [she] wants to do."

Thereafter, Tequila was called back to the witness stand. She explained that on November 1, 2016, the defendant was angry because she left her phone at home while she went trick-or-treating. According to Tequila, the defendant thought that she was doing something that she had "no business" doing. She explained that she and the defendant discussed cheating regularly. Tequila stated that she did not consider the phone call to be a threat and noted that the call had nothing to do with the defendant's trial. As to the November 6, 2016, call, Tequila noted that the call was made the day before his trial was set to begin and that he was upset because she was at the casino with a friend. Tequila noted that because that friend sought to engage in a sexual relationship with her, the defendant did not want them to spend time together.

Louisiana Code of Evidence Article 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Further, Article 402 states, in pertinent part, that "[a]ll relevant evidence is admissible," and "[e]vidence which is not relevant is not admissible." In questions of relevancy, much discretion is vested in the district court. Such rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. Ultimately, questions of relevancy and admissibility are discretion calls for the district court, and its determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Duncan , 98-1730 (La. App. 1st Cir. 6/25/99), 738 So.2d 706, 712-13. "Except as otherwise provided by legislation: (1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness." La. Code Evid. art. 607D(1).

The district court did not abuse its discretion by allowing the State to introduce the recordings of the defendant's jailhouse telephone calls to Tequila or in finding that the State was timely in notifying the defense of its intent to introduce the recordings. The November 1, 2016 call was made less than a week prior to trial, and the November 6, 2016 call was made the day before trial. The State was not aware of the calls until November 8, 2016, and the State noted that it provided copies of the recordings to defense counsel as soon as it became aware of the calls. See La. Code Crim. P. art. 716 ; La. Code Crim. P. art. 729.3. Defense counsel confirmed that he was provided with the recordings of the calls that afternoon. Although Tequila testified that she would not lie for the defendant, she stated that she loved him and would like it if he could return home. After the recordings were played for the jury and Tequila was recalled to the stand, she admitted that she and the defendant "yell" at each other regularly and that the defendant loses his temper when she does something that he does not want her to do.

Thus, the statements made by the defendant during the telephone calls, although prejudicial, were highly probative of his influence over Tequila. Because we find the district court did not err in admitting the calls into evidence, we find no error in the court's denial of the defendant's motion for new trial.

Accordingly, these assignments of error are without merit.

HABITUAL OFFENDER ADJUDICATION AND EXCESSIVE SENTENCE

In his final assignment of error, the defendant argues that evidence presented at the habitual offender adjudication was insufficient to establish that he was a second-felony habitual offender. Specifically, the defendant contends that the State failed to negate the ten-year cleansing period. The defendant argues in the alternative that the sentence imposed by the district court was excessive.

In a habitual offender proceeding, the state has the burden of proving that the defendant was convicted of a prior felony and that the ten-year cleansing period has not elapsed between the defendant's release from custody on the prior offense and the commission of the new offense. See La. R.S. 15:529.1A-D (prior to revision by 2017 La. Acts No. 282, § 1); State v. Payton , 2000-2899 (La. 3/15/02), 810 So.2d 1127, 1130 ; State ex rel. Wilson v. Maggio , 422 So.2d 1121, 1123 (La. 1982) ; State v. Thomas , 2005-2210 (La. App. 1st Cir. 6/9/06), 938 So.2d 168, 176, writ denied, 2006-2403 (La. 4/27/07), 955 So.2d 683. Any competent evidence may be used to satisfy the State's burden of proof. See Payton , 810 So.2d at 1130 ; State v. Moten , 510 So.2d 55, 63 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). Such evidence may include (1) testimony from witnesses, (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, (3) photographs in the duly authenticated record, or (4) evidence of identical driver's license number, sex, race, and date of birth. Payton , 810 So.2d at 1130.

At the habitual offender hearing, the State introduced into evidence the record in connection with the defendant's predicate offense, which was his April 19, 2004, conviction under docket number 378,617, for simple burglary. The record contained the transcript, minutes, and revocation notes. The State pointed out that for the predicate offense, the defendant received a five-year sentence. Testimony was presented that the defendant's fingerprints taken in court on the date of the hearing matched those in the record of the predicate offense. An investigator with the district attorney's office testified that he ran an updated "rap sheet" for the defendant, which was introduced into evidence. The "rap sheet" was printed from the Cajun database and indicated that the defendant's sentence for his predicate conviction was completed on July 27, 2010. The district court initially found that the State failed to meet its burden that the cleansing period had not lapsed. The State requested reconsideration of the court's ruling after pointing out that the record of the defendant's predicate conviction contained a letter from the parole board addressed to a district court judge indicating that the defendant's parole hearing was set for November 1, 2006. Thereafter, the court ruled that the State met its burden of proving that the ten-year cleansing period had not lapsed and adjudicated the defendant a second-felony habitual offender.

The district court provided written reasons in support of its ruling. In its reasons, the court noted that the defendant pled guilty to his predicate offense on April 19, 2004, and was sentenced that day to imprisonment for a term of five years. His sentence was suspended, and the defendant was placed on probation for a term of five years. The defendant's probation was revoked on May 13, 2005. Per a letter filed August 15, 2006, the defendant's parole hearing was set for November 1, 2006. The court noted that the defendant's incarceration as of the date of the letter, August 11, 2006, was "evident in the language contained therein." The instant offense occurred on January 19, 2016. Thus, ten years had not elapsed between the date of the defendant's release for his predicate conviction and the date he committed the instant offenses. Accordingly, the district court correctly found that the State proved the elements necessary for application of the habitual offender statute.

The defendant argues in the alternative that the sentence imposed by the district court is excessive. Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado , 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than the needless infliction of pain and suffering. State v. Hurst , 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato , 603 So.2d 739, 751 (La. 1992).

Louisiana Code of Criminal Procedure article 894.1 sets forth items which must be considered by the district court before imposing sentence. The district court need not recite the entire checklist of Article 894.1, but the record must reflect that the guidelines were adequately considered. State v. Herrin , 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). A review for individual excessiveness should consider the circumstances of the crime and the district court's stated reasons and factual basis for its sentencing decision. State v. Watkins , 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos , 419 So.2d 475, 478 (La. 1982).

At the time of the defendant's underlying offense, felon in possession of a firearm, the offense carried a sentence of imprisonment at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence, and a fine of not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1B. As a second-felony habitual offender, the defendant's mandatory sentence was not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1A(1) (prior to revision by 2017 La. Acts No. 282, § 1). Thus, the defendant's sentencing exposure was ten years to forty years without the benefit of parole, probation, or suspension of sentence. See State v. Bruins , 407 So.2d 685, 687 (La. 1981). The defendant was sentenced to forty years at hard labor without the benefit of probation or suspension of sentence.

The defendant contends that this sentence is "beyond excessive" based on the facts of the case and the wishes of his family and the victims in this case that he receive mental health treatment. Despite his contentions, the defendant did not present any testimony or evidence prior to the imposition of his habitual offender sentence in support of this argument. Given the facts of this case and the defendant's predicate convictions for drug-related felonies and simple burglary, the sentence imposed by the district court was not grossly disproportionate to the severity of the offense and, therefore, was not excessive. This assignment of error is without merit.

ORIGINAL SENTENCE IMPOSED ON COUNT FOUR VACATED; CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

Holdridge J. concurs with reasons.

HOLDRIDGE, J., concurs.

I respectfully concur. The trial court erred in denying the defendant's motion in limine and allowing the introduction of the telephone call recordings made by the defendant from jail on November 1 and 6 of 2016. The telephone call recordings were not relevant to any facts regarding the guilt or innocence of the defendant. The majority holds that the telephone call recordings were admissible under La. Code Evid. art. 607(D)(1) to show the defendant's bias, interest, corruption, or defect in capacity. However, this is clearly in error since the only value that the telephone call recordings had was to show that the defendant was a bad person. Relevant evidence may be excluded if, among other things, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. Code Evid. art. 403. After reviewing the entire record, we fail to see how the evidence of the unrelated telephone call recordings concerning the defendant's character has any probative value in the instant matter. Even if the recordings had any relevance to any fact at issue, the prejudicial effect far exceeds any probative value it may have in the instant matter. See La. Code of Evid. arts. 401 and 403. While the trial court erred in admitting the tapes, there is overwhelming evidence that the defendant committed the crime for which he was found guilty by the jury. Therefore, any error by the trial court was harmless error. See State v. Small, 427 So.2d 1254, 1263 (La. App. 2 Cir. 1983) (holding that the improper admission of evidence relating to a defendant's character, much more prejudicial in nature has been held to be harmless error.)

      The defendant's predicate offense for purposes of count four is his January 10, 2008, conviction under Twenty-Second Judicial District Court docket number 437,044, for possession with intent to distribute a Schedule I controlled dangerous substance, possession with intent to distribute a Schedule II controlled dangerous substance, and possession of a Schedule III controlled dangerous substance.

      In its brief with this court, the State argues that the district court improperly restricted benefits on counts one and three and requests that this court correct the error and remand for correction of the commitment order. While the minutes do state that the district court restricted benefits on counts one and three, the transcript makes clear that the court only restricted benefits on count four. When there is a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch , 441 So.2d 732, 734 (La. 1983). Because it is clear that the district court restricted benefits on count four only, remand is unnecessary.

      The habitual offender bill of information lists the defendant's predicate offense as his April 19, 2004, conviction under Twenty-Second Judicial District Court docket number 378,617, for simple burglary.

      Although the minute entry states that the district court vacated the defendant's original sentence prior to imposing his habitual offender sentence, the transcript reveals that the court failed to vacate its previously imposed sentence on count four prior to imposing the habitual offender sentence. When there is a discrepancy between the minutes and the transcript, the transcript prevails. See Lynch , 441 So.2d at 734. Thus, we vacate the original ten-year sentence imposed on count four to conform with the requirements of La. R.S. 15:529.1. See State v. Jackson , 2000-0717 (La. App. 1st Cir. 2/16/01), 814 So.2d 6, 11 (en banc), writ denied, 2001-0673 (La. 3/15/02), 811 So.2d 895.

      We note that the district court failed to order the defendant's sentence to be served without benefit of parole. The defendant's parole restriction should be self-activated under La. R.S. 15:301.1A. See State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790, 799.


source: Caselaw Access Project

author: PICKETT, Judge. AMY, J., dissenting.

license: Public Domain

text:
    Allen B. MINIX, et al. v. CITY OF RAYNE, et al.
    17-93
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered April 4, 2018
    Jerry J. Falgoust, Falgoust, Caviness & Bienvenu, LLP, Post Office Box 1450, Opelousas, LA 70571-1450, (337) 942-5812, COUNSEL FOR DEFENDANT/APPELLEE: City of Rayne
    Chuck D. Granger, Christopher D. Granger, Granger Law Firm, Post Office Drawer 1849, Opelousas, LA 70571-1849, (337) 948-5000, COUNSEL FOR PLAINTIFFS/APPELLANTS: Allen B. Minix Kendra Minix Cora Minix
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   PICKETT, Judge.

The plaintiffs, Allen B. Minix and Kendra Minix, filed suit on behalf of their minor child Cora Minix after she fell on a sidewalk in front of her high school and sustained multiple injuries. The plaintiffs alleged that the concrete on the sidewalk was cracked and that it shifted underneath the child as she walked, causing her to lose her balance. The trial court found in favor of the defendant, City of Rayne, concluding that the plaintiffs failed to prove that the sidewalk was unreasonably dangerous. The plaintiffs appeal.

FACTS

According to the record, on the morning of November 19, 2013, Cora Minix, who was fifteen years old at the time, was walking to Rayne High School when she fell on a sidewalk that ran along the street in front of the school. She stated that while she had occasionally walked to school before this incident, this was the first time she walked on this sidewalk. At trial, she explained, "[A]s I stepped on the concrete, I felt like the concrete shifted and I lost my balance and I fell." She added that her "ankle rolled" and that she landed on her right knee, then on her hands. She then noticed "cracks in the sidewalk" where she fell but maintained that she had not seen them prior to the fall. She also related that there were "pieces of grass in various places in the cracks" and that there was a water meter and a light pole to her left where she fell. She alleged that it was a dry, sunny day and that she had not been carrying anything in her hands, had not been distracted, and that she had been looking "straight ahead" as she walked. She also indicated that she had been aware of height deviations on the other sidewalk she had previously used when she walked to school, which also ran adjacent to the school but on the opposite side of the street from the instant sidewalk.

Cora alleged that following the incident, she immediately felt pain in her right hip, right leg, right knee, and right foot, and that she was unable to walk due to the pain in her knee. She testified that she was taken into the school in a wheelchair, but that she only stayed "a couple of minutes" due to "excruciating pain." She explained that her father then took her to the hospital. She was subsequently diagnosed with a right knee contusion and a strained right ankle, and prescribed crutches and medication. Cora further alleged that she continued to feel pain after her fall, and that for two months, she walked with crutches, was homeschooled, and was unable to perform household chores. She further alleged that she still has occasional pain when standing, walking, climbing stairs, and lifting objects. Her pediatrician testified that he believed the fall was the "only explanation" for Cora's symptoms, as she had never complained of pain in these areas prior to her fall.

Cora's parents, Allen B. Minix and Kendra Minix, filed suit on her behalf against the Acadia Parish School Board, which was dismissed by summary judgment, and the City of Rayne. The plaintiffs alleged damages including medical expenses, mental pain and suffering, physical pain and suffering, and loss of enjoyment of life. The City denied liability, asserting that the condition of the sidewalk was open and obvious and therefore did not present an unreasonable risk of harm.

After a bench trial, the trial court dismissed the plaintiffs' claims. Performing a risk-utility analysis, it found that the defect in the sidewalk was open and obvious, that it did not present an unreasonable risk of harm, and that the City of Rayne lacked actual or constructive notice of the defective sidewalk at the time of the fall. The plaintiffs appeal.

ASSIGNMENTS OF ERROR

On appeal, the plaintiffs assert three assignments of error:

1. The trial court erred in finding that the City of Rayne did not have actual or constructive knowledge of the defective sidewalk at the time of the subject accident.
2. The trial court erred in finding that the defective sidewalk was "open and obvious" at the time of the subject accident.
3. The trial court erred in dismissing all of Plaintiff-Appellant's claims and awarding her no damages for the injuries she sustained as a result of her fall on the defective sidewalk.

DISCUSSION

Applicable Law and Standard of Review

The legislature has limited the liability of public bodies for damages caused by things in their custody or control by enacting La.R.S. 9:2800, which states in relevant part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
....
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
....
G. (1) "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.
(2) "Public site or area" means any publicly owned or common thing, or any privately owned property over which the public's access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.

In Chambers v. Village of Moreauville , 11-898, p. 5 (La. 1/24/12), 85 So.3d 593, 597, the supreme court explained the plaintiff's burden of proof in this case:

Under La. R.S. 9:2800, in order to prove a public entity is liable for damages caused by a thing, the plaintiff must establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682, 690 ; Dupree v. City of New Orleans, 1999-3651 (La. 8/31/00), 765 So.2d 1002, 1008.

In order to determine whether a defect presents an unreasonable risk of harm, "the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair." Pryor v. Iberia Parish Sch. Bd. , 10-1683, p. 4 (La. 3/15/11), 60 So.3d 594, 596. In performing this risk-utility analysis, the trier of fact must consider: (1) the utility of the thing; (2) the likelihood and magnitude of harm, including whether the defect was obvious and apparent; (3) the cost of preventing harm; and (4) the social utility of the plaintiff's activities, or whether they are dangerous in nature. Id. at 597.

"Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent." Bufkin v. Felipe's Louisiana, LLC , 14-288, p. 7 (La. 10/15/14), 171 So.3d 851, 856. The supreme court has stated that, for a condition to be considered obvious and apparent, it "should be one that is open and obvious to everyone who may potentially encounter it." Id. Accordingly, this inquiry "focuses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge." Broussard v. State ex rel. Office of State Bldgs. , 12-1238, p. 18 (La. 4/5/13), 113 So.3d 175, 188.

The supreme court has held that, "although municipalities have a duty to maintain its sidewalks in a reasonably safe condition, they are not insurers of the safety of pedestrians and are not required to maintain sidewalks in perfect condition." Chambers , 85 So.3d at 598. Furthermore, "when traveling down a sidewalk a pedestrian is not required to exercise the care required in traversing a jungle, but he must exercise ordinary care, keeping in mind that irregularities exist in sidewalks." Id.

Ultimately, a determination as to whether a condition creates an unreasonable risk of harm is subject to the manifest error standard of review. Pryor , 60 So.3d 594.

In determining whether a municipality has actual or constructive notice, we have held that a town has constructive notice "if the defect existed for such a period of time that by exercise of ordinary care and diligence, the municipal authority must have known of its existence, and the municipal authority had a reasonable opportunity to guard the public from injury by remedy of the defect." Ambrose v. City of New Iberia , 08-1197, p. 2 (La. App. 3 Cir. 4/1/09), 11 So.3d 34, 37 (citing Dawson v. City of Bogalusa, 95-0824 (La.App. 1 Cir. 12/15/95), 669 So.2d 451.)

Actual or Constructive Notice

In their first assignment of error, the plaintiffs contend that the trial court erred in finding that the City of Rayne did not have actual or constructive notice of the condition of the sidewalk at the time of the fall and did not fail to correct it within a reasonable time, as is necessary under La.R.S. 9:2800. We find merit in this assignment of error.

In its Pre-Trial Memorandum to the trial court, the City of Rayne admitted it "had actual notice of the sidewalk since this was one of the sidewalks which was in position to be repaired with the grant money in the year in question." Mark Daigle, the Director of Zoning, Planning, and Code Enforcement for the City, testified that he was aware that the City of Rayne received a grant for sidewalk repair in 2013. He explained that then-mayor Roland Boudreaux "asked [him] to kind of help compile a list of-and map out where were [sic] the problem areas and the worst areas and then try to prioritize sidewalks that needed attention and attempt to divide them equally between the four districts in town." Mr. Daigle included the sidewalk near Rayne High School in this list and indicated at trial that he noticed its condition from the street. He further alleged that he took three photographs of "three different situations" in the area sometime between July and September 2013, months before Cora Minix fell. Each photograph shows a section of the sidewalk adjacent to Polk St. where concrete sections are missing or the concrete has significant cracks or both. These photographs were introduced at trial as Rayne Number 2-A, 2-B, and 2-C. Mr. Daigle described Rayne 2-A at trial by saying that it appeared as though the concrete was still there, but that "it looks like it sank." He suspected that this condition was caused by someone who broke the concrete to run a sewer line from the water meter to the school. He described another portion of the sidewalk as having "about a four foot section" of concrete missing.

Cora Minix identified the sidewalk pictured in Rayne 2-A as the portion of the sidewalk where she fell. She identified the spot on the photograph where her foot landed before the concrete shifted and caused her ankle to roll.

We find the City had actual notice of the defective sidewalk at the time Cora Minix fell and the trial court's finding to the contrary is clearly unsupported by the record.

Unreasonable Risk of Harm-Open and Obvious

In its second assignment of error, the plaintiffs argue that the trial court erred in finding that the alleged defective nature of the sidewalk was open and obvious, such that it did not present an unreasonable risk of harm. They assert that "the photographs produced at trial show that the defective portion of the sidewalk was covered with grass, weeds and vegetation and was hiding or obscuring from view the defective condition, such that it is not open and obvious and did create an unreasonable risk of harm[.]" Moreover, the plaintiffs argue that "no one from the city could even describe the defect[,]" and that "[i]f the defect was so open and obvious, as the [t]rial [c]ourt stated, then the Mayor and city employees who went to the site, both before and after this accident, should have been able to describe it."

Debra Gothe, a Rayne High School custodian who witnessed Cora's fall, indicated at trial that she was aware of two missing sections of concrete on the sidewalk, agreeing that they had been missing "for a period of time" before the accident. City of Rayne Street Commissioner Robert Senegal related that he observed the condition of the sidewalk at one point as he drove by it on the street, but he could not recall when this happened. He also related that, while there was concrete in the portion of sidewalk near the water meter, "there was a piece missing, like a little circle." He further stated that in this area, the concrete was "leaning down" where it was "broken[.]" He indicated that there were "no jagged edges or big pieces sticking up" and that the concrete was "flat[.]"

Even Cora testified under cross examination that she did not notice the missing sections of concrete clearly depicted in the photographs: one where she fell next to a water meter and another that she had to traverse on her way to school before she fell.

In its written reasons for judgment, the trial court stated:

In the instant case, the accident occurred on a clear, sunny day. The plaintiff testified that she was not distracted and was looking straight ahead at the time of the accident. The evidence and testimony of the plaintiff showed that prior to her falling on the section of sidewalk in question, she had to traverse another section of the sidewalk within feet of where she fell which contained irregularities. She did so without incident.... The evidence and testimony of witnesses called by the plaintiff showed that the missing piece of sidewalk was open and obvious. There were no shrubs or trees in close proximity to the sidewalk and there was a coloring differential between the sidewalk and the grass covered portion, alerting pedestrians to a deviation in the sidewalk. This court was given no measurements on the deviation or even whether there was concrete beneath the grass.

In this case, though, the issue is not whether the missing pieces of concrete were open and apparent. The critical issue is whether the concrete piece that shifted when Cora fell was open and obvious. Mr. Senegal testified that he did not know whether there were any loose pieces in the sidewalk when he was sent to tear the sidewalk up in preparation for laying a new sidewalk in that area. Cora testified that she was not distracted when she fell. She said, "As I stepped on the concrete, I felt like the concrete shifted and I lost my balance and I fell." There was no evidence that contradicted Cora's statement. Cora could not have seen that the concrete would shift until she stepped on it. We find that a defect in the sidewalk that does not manifest itself until the pedestrian actually steps on the defective spot cannot be held to be open, obvious, or apparent.

In addition to the trial court's conclusion that the condition of the sidewalk was open and obvious, the plaintiffs assert that the trial court erred in balancing the remaining risk-utility factors. In particular, the plaintiff focuses on the third factor, the cost of preventing harm. In this regard, the trial court found the City lacked finances in relation to its high number of sidewalks in need of repair. In its written reasons for judgment, the trial court stated the following:

In addition, the representative from the city of Rayne testified that the condition of many of the sidewalks in the city were in need of repair from a storm in the past. The City was in the process of repairing the sidewalks with grant money they had received. However, the City was unable to repair all the sidewalks at the same time because the sheer cost of replacing all the damaged sidewalks was beyond the City's budget capabilities.

The supreme court has stated that, "[a]s part of the cost analysis, the physical and financial inability of a municipality to maintain its things in anything more than a reasonably safe condition has been considered by this Court as a factor in determining whether such condition creates an unreasonable risk of harm." Chambers , 85 So.3d at 600. Significantly, courts should consider "not only the cost to fix the instant deviation, but also all similar deviations." Id.

In this case, Mayor Boudreaux testified that the city had received a grant to repair sidewalks and had set aside general funds of the city in addition to the grant money for sidewalk repairs. The agreement with the Louisiana Division of Administration, which constituted acceptance of the funds, was signed by Mayor Boudreaux on August 1, 2013. The sidewalk area on Polk St. where Cora fell was on the City's list of sidewalks to repair. The sidewalk repairs began in August, three months before this accident, according to Mayor Boudreaux. The City was able to replace the sidewalk where the accident occurred within days of the accident, according to Mayor Boudreaux and City employees Mr. Daigle and Mr. Senegal. We find the City had the ample funding and ample time to repair this sidewalk. The trial court was manifestly erroneous in its finding to the contrary.

Dismissal of Claims and Failure to Award Damages

We find the City of Rayne had custody and control of the sidewalk at issue in this case. We find the City knew of the defective condition of the sidewalk months before Cora's fall. We find defect in the sidewalk which caused Cora's fall was unreasonably dangerous, that it was not open and obvious, and that the City had the funds and opportunity to repair the sidewalk.

We also find that the defect in the sidewalk was the sole cause of Cora's injuries. There was no evidence to contradict Cora's testimony that the shifting sidewalk caused her ankle to roll and her to fall. Therefore, we assess 100% of the liability for the injuries sustained by Cora to the City of Rayne.

Since the trial court failed to reach the issue of damages because it found the city was not liable, we must determine the amount of damages to compensate for Cora's injuries. When a trial court fails to reach an issue because of an earlier finding which disposes of the case, the court of appeal, in reversing the earlier finding, shall make a de novo determination of the undecided issues from the facts in the record. LeBlanc v. Stevenson , 00-157 (La. 10/17/00), 770 So.2d 766.

Cora reported to the hospital on the day of the accident with pain to her right knee, right ankle, and right hip. She testified that after the accident, she did not go to school for two months. She was homeschooled because she could not climb stairs. She testified that she could not perform chores around the house during that time because of her limited mobility. She received treatment from her pediatrician for two months specifically for the knee pain and complained about the knee pain in November 2014 and March 2015. We note that Cora had previously had surgery for scoliosis. She followed up with the orthopedic surgeon who performed her previous back surgery. In November 2014, Cora complained to a chiropractor, Dr. David Barczyk, about pain in her lower back.

Mr. and Mrs. Minix introduced evidence of $6,284.07 in medical expenses related to Cora's treatment after the accident. After discounting the amount by $4,178.46, Medicaid paid $1,353.61. The balance of unpaid medical bills is $752.00. Thus, Cora's compensable medical bills are $2,105.61. Pursuant to Bozeman v. State , 03-1016 (La. 7/2/04), 879 So.2d 692, we award judgment to Mr. and Mrs. Minix, on behalf of Cora, against the City of Rayne in the amount of $2,105.61 for medical expenses. Further, we award general damages in the amount of $20,000.00 to compensate Cora for her pain and suffering and loss of enjoyment of life. Costs of this appeal are assessed to the City of Rayne.

REVERSED AND RENDERED.

Amy, J., dissents and assigns reasons.

AMY, J., dissenting.

In my opinion, the standard of appellate review dictates an affirmation in this matter. Chiefly, I find no manifest error in the trial court's determination that the sidewalk did not present an unreasonable risk of harm. That conclusion is supported by the record and, in my view, is determinative in this case.

The majority opinion provides the pertinent legal framework, recognizing that jurisprudence interpreting La.R.S. 9:2800 indicates that a plaintiff seeking to hold a public entity liable for damages caused by a thing must prove: "(1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation." Chambers v. Village of Moreauville, 11-898, p. 5 (La. 1/24/12), 85 So.3d 593, 597 (citations omitted).

In assessing the unreasonable risk of harm element, the supreme court has further instructed that courts must consider: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility, or whether it is dangerous by nature." Dauzat v. Curnest Guillot Logging Inc. , 08-0528, p. 5 (La. 12/2/08), 995 So.2d 1184, 1186-87 (citations omitted). See also Pryor v. Iberia Parish Sch. Bd. , 10-1683 (La. 3/15/11), 60 So.3d 594. I differ from the majority in the application of that framework to the ruling now under review.

In written reasons for judgment, the trial court stated:

In the instant case, the accident occurred on a clear, sunny day. The plaintiff testified that she was not distracted and was looking straight ahead at the time of the accident. The evidence and testimony of the plaintiff showed that prior to her falling on the section of sidewalk in question, she had to traverse another section of the sidewalk within feet of where she fell which contained irregularities. She did so without incident.... The evidence and testimony of witnesses called by the plaintiff showed that the missing piece of sidewalk was open and obvious. There were no shrubs or trees in close proximity to the sidewalk and there was a coloring differential between the sidewalk and the grass covered portion, alerting pedestrians to a deviation in the sidewalk. This court was given no measurements on the deviation or even whether there was concrete beneath the grass.
....
Furthermore, another factor relevant to the risk of harm in a sidewalk case is the number of years the defect existed relative to pedestrian traffic and the number of incidents reported. In this case, the sidewalk in question was in front of a high school, in a high traffic area and, plaintiff was the only reported person to have fallen on this piece of sidewalk. Additionally, the plaintiff testified that she did not notice the first piece of missing concrete, nor did she notice the second piece of missing concrete. According to her testimony, she was not distracted at the time of the accident.
Thus, the plaintiff would need to show that, even though open and obvious, the defective sidewalk was so unreasonably dangerous that she could not be expected to traverse it safely. The plaintiff testified that when she stepped onto the missing sidewalk, it shifted causing her to fall to the ground. The witnesses, those from the school and from the city who inspected the sidewalk, could not testify as to whether there was any loose concrete, only that the sidewalk was possibly sunken and covered with grass. This court finds that it is a reasonable expectation for plaintiff, once aware of the condition of the sidewalk, to be on notice and exercise a higher standard of care in traversing the next section of missing sidewalk safely. Public entities only have a duty to keep sidewalks in a reasonably safe condition for pedestrians exercising reasonable care, keeping in mind that irregularities exist in sidewalks.

Given witness testimony in this case, I find that the trial court's ruling is in keeping with the supreme court's ruling in Chambers , 85 So.3d 593. As noted by the majority, the supreme court explained in that case that municipalities must maintain sidewalks in a reasonably safe condition, but that a pedestrian must exercise ordinary care in traversing the sidewalk, "keeping in mind that irregularities exist in sidewalks." Id. at 598. Further, and in a case involving a similar factual background to this matter, the first circuit affirmed a summary judgment in favor of the municipality where the plaintiff allegedly stepped in a "hole" on a sidewalk with "numerous areas where the concrete ha[d] shifted and fractured, resulting in cracks and crevices that extend[ed] the full depth of the sidewalk and, in some areas, expose[d] the underlying ground." Temple v. Morgan , 15-1159, p. 3 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 72, writ denied , 16-1255 (La. 10/28/16), 208 So.3d 889. The first circuit determined that the sidewalk's defective condition was open and obvious and, thus, did not present an unreasonable risk of harm.

Like the plaintiff in Temple , 196 So.3d 71, Cora testified that she had no explanation for failing to notice the condition of the sidewalk aside from looking forward as she walked. While the plaintiffs suggest that grass obscured the view of the sidewalk, Cora's testimony undermined that assertion as she responded as follows to questions by her attorney:

Q Did you notice that there was grass growing on the sidewalk?
A There were pieces of grass in various places in the cracks.
....
Q Do you recognize what that picture is showing?
A Yes, sir. That is where I fell.
Q Is that what it looked like on the day of the accident?
A No, sir. It had-it seemed like the grass was in various places, but there wasn't much grass.

Further, on redirect examination and in reference to a photograph of the area, the following exchange occurred:

Q Do you recall if that's what the-the area of the sidewalk looked like on the day of your accident?
A Yes, sir.
Q Did it have that much grass on it the day of your accident?
A No, sir.

That testimony concerning whether the sidewalk had less ground cover than evidenced in the photographs supports the trial court's ultimate finding that "[t]here were no shrubs or trees in close proximity to the sidewalk and there was a coloring differential between the sidewalk and the grass covered portion, alerting pedestrians to a deviation in the sidewalk." Accordingly, after review I find no manifest error in the trial court's determination that the condition of the sidewalk was open and obvious. In fact, the sidewalk's generally poor condition was such that it was observed by several witnesses prior to the incident, including City employees and those who worked in the area. I further point out that, in addition to hearing witness testimony regarding the sidewalk, the trial court viewed photographs of the sidewalk and its surroundings.

Neither would I disturb the trial court's ultimate conclusion regarding an unreasonable risk of harm analysis given the trial court's consideration of the risk-utility factors. The plaintiff focuses on the third factor, the cost of preventing harm. On that point, the trial court recognized the City's apparent lack of finances in relation to its high number of sidewalks in need of repair, stating that:

In addition, the representative from the [C]ity of Rayne testified that the condition of many of the sidewalks in the [C]ity were in need of repair from a storm in years past. The City was in the process of repairing the sidewalks with grant money they had received. However, the City was unable to repair all the sidewalks at the same time because the sheer cost of replacing all the damaged sidewalks was beyond the City's budget capabilities.

In this regard, Mark Daigle, the City's Director of Zoning, Planning, and Code Enforcement testified regarding a 2013 grant received for sidewalk repair. However, he stated that the list of sidewalks in need of repair consisted of "close to 100" locations in the City and that, while the City requested a grant of $50,000.00, it was ultimately given $22,865.00 in August 2013. Mayor Roland Boudreaux explained that the award was not enough "to make a major difference." The City also set aside a portion of its general fund toward sidewalk repair that year, but the City still lacked adequate funding to repair each defective sidewalk, as Mayor Boudreaux estimated that it could have cost "in the hundreds of thousands, possibly a million dollars." When questioned whether "the [C]ity [had] the funds...to fix all the sidewalks in any particular year[,]" Mayor Boudreaux responded: "Absolutely not."

For this reason, according to Mayor Boudreaux, the City established a priority list for repairing the sidewalks, first addressing areas used by the elderly and the disabled, then turning to commercial areas and churches. The City maintained that it was in the process of prioritizing the sidewalks to be repaired when the accident occurred, approximately three months after the August 2013 grant. Mayor Boudreaux testified that he visited the sidewalk shortly after the accident and noted "an elevation difference" near the water meter but he could not recall whether any concrete was missing or loose. He confirmed that there "were definitely deficiencies," but further explained that "they weren't the worst ones."

The trial court's evaluation of such testimony must not be discounted, as the supreme court has stated that, "[a]s part of the cost analysis, the physical and financial inability of a municipality to maintain its things in anything more than a reasonably safe condition has been considered by this Court as a factor in determining whether such condition creates an unreasonable risk of harm." Chambers , 85 So.3d at 600. Significantly, courts should consider "not only the cost to fix the instant deviation, but also all similar deviations." Id. My appreciation of the trial court's ruling indicates that it complied with that directive and that, in turn, the record supports its determination as to that factor.

While my conclusion that the trial court did not manifestly err in finding that the plaintiffs failed to demonstrate an unreasonable risk of harm pretermits review of the merits of the remaining assignments, I make one final observation regarding the plaintiffs' argument before the court. The plaintiffs suggest in their first assignment that the trial court erred in failing to determine that the City had actual or constructive notice of the "defect[.]" The plaintiffs do so by imputing notice to the City given its memorandum statement that it "had actual notice of the sidewalk since this was one of the sidewalks which was in position to be repaired with the grant money in the year in question." However, in the analysis of the unreasonable risk of harm element and the issue of whether the condition was open and obvious, the plaintiffs further particularize the "defect" as "the uneven, sunken and loose concrete hidden under the grass covering the sidewalk." In my opinion, such a narrowing of the identity of the "defect" from the overall poor condition, as pertinent to the notice element, to the identity of the particularized "defect" in the unreasonable risk of harm element, results in an inconsistency in application of the elements of La.R.S. 9:2800. Given my above-stated determination regarding the latter element, I do not further discuss the issue of actual or constructive notice.

For these reasons, I respectfully dissent.

      Mr. Daigle explained that many of the City's sidewalks were "destroyed" in 2003 after trucks and heavy equipment were used to remove fallen trees after Hurricane Lili.