author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Orlando I. LANE.
    No. 09-KA-179.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Jeffrey J. Hand, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2The Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Orlando Lane, with one count of possession of a firearm while in possession of marijuana in violation of LSA-R.S. 14:95(E) and one count of second offense possession of marijuana in violation of LSA-R.S. 40:966(C). He pled not guilty and proceeded to trial on count one only on August 19, 2008. After considering the evidence presented, a twelve person jury found defendant guilty as charged. The trial court sentenced defendant to six years at hard labor without the benefit of parole, probation, or suspension of sentence.

The State subsequently filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction for possession of cocaine. Defendant admitted his status as a second felony offender and was resen-tenced as a multiple offender to ten years at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant now appeals.

LFACTS

At approximately 10:00 p.m. on October 13, 2006, Captain William Goebel, with the Jefferson Parish Constable’s Office, was in the parking lot of the Winn Dixie at Medical Center Boulevard and the Westbank Expressway when he heard a dispatch from the Jefferson Parish Sheriffs Office regarding suspicious vehicles in that parking lot. Captain Goebel, who was in his personal vehicle, had just gotten off-duty and was still in uniform. Captain Goebel saw the described vehicles and then advised Jefferson Parish Headquarters that he was in the parking lot, that he would watch the vehicles, and that he would advise of their direction if they left.

At trial, Captain Goebel testified that he observed three vehicles: a maroon Tahoe, a pickup truck and a car. According to Goebel, the Tahoe and pickup truck were parked passenger side to passenger side facing opposite directions; and it appeared that the occupants of the vehicles were handing something back and forth across the windows, but he could not identify what it was.

At that time Deputy Paul Sperandeo, with the Jefferson Parish Sheriffs Office, turned into the parking lot in response to the call. He observed a maroon SUV, which he was looking for, attempting to leave the parking lot. He pulled his unit directly in front of the SUV, turned on his headlights, overhead lights, and side spotlight, and initiated a stop. Captain Goebel testified he thought the SUV might try to ram the police unit so he ran up to driver’s window with his gun drawn and ordered the driver to stop. Meanwhile, Deputy Sperandeo exited his vehicle and approached the passenger side of the maroon SUV. Both passenger side windows were down and Deputy Sperandeo detected an odor of burnt marijuana coming from the vehicle. He shined his flashlight into the car and saw the rear seat passenger, identified as defendant, remove a handgun from his waist and pass a |4clear baggie containing green vegetable matter, which Deputy Sperandeo believed to be marijuana, to another passenger.

Additional units arrived at the scene and the occupants were removed from the vehicle and placed into custody. Deputy Sperandeo searched the vehicle and found two guns and a baggie containing green vegetable matter that field tested positive for marijuana.

At trial, defendant presented the testimony of Christopher Jones, his co-defendant. Jones testified that he had the firearm and marijuana on his person when the police stopped the vehicle in which he was a backseat passenger. He stated he did not see defendant in possession of a firearm or marijuana on the night of the incident. According to Jones, there were several vehicles parked next to him in the parking lot. He claimed that they were on their way to a party and stopped in the parking lot to get directions.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. He specifically contends that there was no reasonable suspicion to justify the investigatory stop of the vehicle in which he was a passenger, and therefore, the evidence was illegally seized and should be suppressed.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of proving that an exception to the warrant requirement applies. LSA-C.Cr.P. art. 703(D). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized the investigatory stop as an exception to the warrant requirement. Under LSA-C.Cr.P. art. 215.1(A), a law enforcement officer may stop and question a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a | f,criminal offense. State v. Sam, 08-220 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577.

Investigatory stops require reasonable suspicion of criminal activity. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Chauvin, 06-362 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 757-58. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. State v. Boss, 887 So.2d at 585.

The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Katie, 96-2650 (La.9/19/97), 699 So.2d 879, 880. In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. A reviewing court must take into account the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes are factors that may support reasonable suspicion for an investigatory stop. State v. Sam, 988 So.2d at 769.

Under certain circumstances, an anonymous tip can provide reasonable suspicion to detain and question a person. Generally, there must be some corroboration of the anonymous tip and the tip must contain predictive information | ^regarding the future behavior of the reported suspect. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, 1270.

Whether an anonymous tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. The sufficiency of an anonymous tip under Terry is determined by the reliability of its assertion of illegality and not just its tendency to identify a determinate person. State v. Boss, 887 So.2d at 586. “If the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416.

The anonymous caller’s ability to predict the suspect’s future behavior goes towards reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. State v. Boss, 887 So.2d at 586. Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect. State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 85.

In the present case, Deputy Sperandeo was the sole witness to testify at the suppression hearing. He testified that he arrested defendant after responding to a “suspicious person” call at the Winn Dixie. He explained, “[t]he anonymous caller advised that there was possible drug activity going on at that location.” He stated that as he pulled into the parking lot, he observed a maroon vehicle, which he believed was described by the anonymous complainant, attempting to leave the parking lot. Deputy Sperandeo testified he immediately pulled in front of the vehicle, activated all his lights, exited his vehicle, and approached the passenger |7side of the maroon vehicle at which time he detected the smell of burnt marijuana coming from the vehicle. At that time Deputy Sperandeo observed defendant, in the rear passenger seat, removing a silver and black handgun and dropping it to the floorboard as well as passing a clear baggie containing a green substance to the other passenger in the back seat. Officer Sperandeo testified that he immediately drew his weapon, ordered them to get their hands up, and requested additional units. After that, he recovered the weapon and the bag containing the green substance that tested positive for marijuana.

On cross-examination, Deputy Sperandeo stated the sole reason that he blocked the maroon vehicle was the anonymous call. He admitted he did not speak with the caller, had no information regarding past information provided by the caller, and did nothing to verify the anonymous tip. He stated that he stopped the vehicle in an attempt to verify the information given by the anonymous caller. At trial, Deputy Sperandeo did not testify about the anonymous tip and no additional evidence was offered regarding the tip. Deputy Sperandeo simply stated at trial that he responded to a call at a strip mall and was looking for a maroon SUV.

With no predictive tip, no corroboration of the tip given, and no observation of suspicious activity, we find that Deputy Sperandeo lacked reasonable suspicion to conduct an investigatory stop of the vehicle in which defendant was riding. A review of the jurisprudence supports this conclusion.

In State v. Robertson, 721 So.2d at 1270-1271, the Louisiana Supreme Court found the officers lacked reasonable suspicion to stop the defendant. The officers received an anonymous tip that the defendant, who was named and described, was selling drugs. The tip also described the vehicle that the defendant drove and |sstated where the vehicle would be parked when the defendant was not using it to sell drugs. The officers went to the location and saw the vehicle being driven away. They followed the vehicle and when the defendant stopped, the officers detained him and called for a canine unit. The supreme court found that, although the officers corroborated certain aspects of the tip, such as the defendant’s name, physical description, and the location of the vehicle, the tip contained no predictive information, and therefore, there was no reasonable suspicion to stop defendant.

Likewise, in State v. Wilson, 99-2834 (La.App. 4 Cir. 3/15/00), 758 So.2d 356, the Fourth Circuit held the police lacked reasonable suspicion to conduct an investigatory stop and reversed the trial court’s denial of the defendant’s motion to suppress. The officers testified they received a call from dispatch that an anonymous caller reported a suspicious person at a specific location. The dispatcher gave a description of the suspect and the clothes he was wearing and noted the suspect was “possibly” selling drugs. The officers observed the defendant, who fit the description broadcast by the dispatcher, at the given location. The defendant entered a nearby store and the officers followed him and asked him to step outside. The officers conducted a pat down search and discovered cocaine on defendant’s person. The Fourth Circuit found the information received by the police from an anonymous caller did not provide the reasonable suspicion required for an investigatory stop. The court noted there was no information elicited during the suppression hearing or trial regarding the anonymous caller’s veracity, reliability, or basis of knowledge. The court further noted there was no testimony that the officers saw the defendant engage in suspicious activity when they arrived at the scene, and thus, there was no independent corroboration that defendant was engaged in criminal activity. The court also noted that there was no evidence that the area was a high crime area or | nan area known for drug trafficking. The court commented that aside from a description of the clothing worn by the defendant, the only evidence of suspicious activity was the anonymous tip that the suspect was “possibly” selling drugs at a specific location. As such, the Fourth Circuit found there was no reasonable suspicion to detain the defendant. State v. Wilson, 758 So.2d at 361.

See also, State v. Herrington, 07-70 (La.App. 4 Cir. 6/20/07), 961 So.2d 1271, writ denied, 07-1528 (La.8/81/07), 962 So.2d 429, and State v. Lee, 485 So.2d 555 (La.App. 5 Cir.1986), where the appellate courts concluded that the police officers did not have reasonable suspicion to stop the defendants, and therefore, the trial court erred in denying the defendants’ motions to suppress evidence.

Based on the facts and circumstances of this case, we find that the State failed to meet its burden of showing that the stop of defendant was justified. Deputy Speran-deo simply testified he responded to a call of a suspicious person at the strip mall and that the anonymous caller advised of possible drug activity. He went to the identified location, looking for a maroon SUV. As he approached the parking lot, he saw a maroon SUV leaving. He immediately blocked it in and initiated a stop by activating all his lights.

There was no information either during the suppression hearing or at trial regarding the anonymous caller’s veracity, reliability, or basis of knowledge. Deputy Sperandeo admitted he never spoke with the caller and had no information about the anonymous caller. Additionally, the anonymous tip contained no predictive information. Finally, there was no independent corroboration that defendant was engaged in criminal activity. Deputy Sperandeo admitted he did nothing to verify the anonymous tip, which contained only scant information, and stopped the vehicle in an attempt to verify the information. He stated the sole | inreason he stopped the vehicle was based on the anonymous call. Deputy Sperandeo never testified that he saw defendant engaged in any suspicious activity. Aside from the vehicle matching the description given by the dispatcher, the only evidence of suspicious activity was the anonymous tip that the vehicle was “possibly” selling drugs in the parking lot. Deputy Sperandeo never testified the area was a high crime area or an area noted for drug trafficking. Further, Deputy Sperandeo did not observe any suspicious behavior on the part of defendant that would appear to have been drug related.

The State argues Captain Goebel, the off-duty constable who was in his personal vehicle in the Winn Dixie parking lot at the time of the call, corroborated the anonymous caller’s tip with his testimony that he witnessed an exchange between the vehicles. The State presented the testimony of Captain Goebel at trial, but not at the suppression hearing. Captain Goebel testified he heard the dispatch for a suspicious vehicle in the Winn Dixie parking lot and that the dispatcher gave a description of the vehicles, one of which was a maroon Tahoe. Captain Goebel stated the maroon Tahoe was parked passenger side to passenger side with the pickup truck. He testified it appeared the occupants were “handing something back and forth across between the windows.” Captain Goebel explained, “I couldn’t tell what it was, honestly. I don’t know if it was money, paperwork, or what have you. I really don’t know what it was. But I could see they were handing each other something.”

At no time did Captain Goebel indicate he believed the exchange to be a drug transaction or suspicious. Additionally, there was no evidence that Captain Goebel knew the suspicious person call was based on an anonymous tip of possible drug activity. More importantly, Captain Goebel never communicated this information to Deputy Sperandeo. In fact, Deputy Sper-andeo specifically testified | nthat he never discussed with Captain Goebel what happened before Deputy Sperandeo arrived. Thus, even if the exchange could be characterized as suspicious, Deputy Sperandeo had no knowledge of the exchange before he stopped the vehicle.

The State also argues defendant attempted to flee and that flight from an officer can provide the reasonable suspicion needed for an investigatory stop. Deputy Sperandeo testified that as he turned into the parking lot, “the vehicle appeared to try to leave the area directly toward my vehicle.” Captain Goebel testified he thought the vehicle was going to ram the police unit after Deputy Speran-deo had pulled in front of it, so he ran up to the vehicle with his gun drawn and ordered the driver to stop, which he did. This evidence does not appear to show the vehicle was attempting to flee the officer.

Deputy Sperandeo, who initiated the stop, admitted that he did not witness anything suspicious and effected the stop solely pursuant to the anonymous tip that defendant was possibly selling drugs. In the absence of any suspicious conduct or corroboration of information from which Deputy Sperandeo could conclude the anonymous caller’s allegation of criminal activity was reliable, we find that there was no reasonable suspicion to stop defendant.

For the reasons set forth herein, we conclude that the trial court erred in denying defendant’s motion to suppress evidence. This judgment is reversed, and the motion to suppress is granted. Accordingly, defendant’s conviction and sentence are vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.

CONVICTION AND SENTENCE VACATED; REMANDED.

      . The record shows count two was dismissed after defendant's conviction on count one.

      . Christopher Jones was charged in the bill of information with possession of a firearm while in possession of marijuana. Jones testified that he pled guilty to the charge and is currently serving time.

      . In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing; it may also consider the evidence presented at trial. State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 85.

      . In his appellate brief, defendant requests an error patent review in Assignment of Error Number Two. In light of our ruling in the first assigned error, we find it unnecessary at this time to address any errors patent.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Clarance E. BARKER.
    No. 09-KA-150.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      ■n it-ví-i -i t tv 4. • i A.U. Paul D. Conmck, Jr., District Attorney, m. 4. ^ r i tv 4. * 4. T» ■ i_ 4? Twenty-Fourth Judicial District, Parish of T „„ m -r, i mi t Jefferson, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, George C. Wallace, Jr., Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Clarance Barker.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On May 24, 2007, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Clarance E. Barker and co-defendants, Wallace T. Hollis and Dornicya Mitchell, with possession of heroin, in violation of La. R.S. 40:966(C), and possession of cocaine, in violation of La. R.S. 40:967(C). At his arraignment, the defendant pled not guilty. After a four-day trial, the defendant was found guilty as charged on September 22, 2008.

On October 2, 2008, after sentencing delays were waived, the trial judge sentenced the defendant to five years at hard labor for possession of heroin and three years at hard labor for possession of co- . , , , ^ „ came, to be served concurrently. Defen- . ’ . , . . . " dant appeals his convictions and sentences.

_jb/?ac^s

At trial, Reserve Officer Marion Perret of the Gretna Police Department testified that, on March 21, 2007, at approximately 7:30 p.m., he responded to a call involving a green Chrysler convertible automobile with tan interior, fleeing from the parking lot of 64 Westbank Expressway in Gretna. Officer Perret stopped a vehicle matching that description in the vicinity and detained its occupants: Clarance Barker, Wallace Hollis, and Dornicya Mitchell. According to Officer Perret, Hollis was in the driver’s seat, Barker was in the passenger seat, and Mitchell was in the back seat on the passenger side.

Officer Perret testified that, for identification purposes, he personally drove the vehicle back to 64 Westbank Expressway. Officer Perret testified that, while driving the suspect vehicle, he noticed “some items of common drug paraphernalia,” including two used, small-gauge syringes in the console area between the front seats and several unused syringes in an open plastic bag on the back seat. According to Officer Perret, these types of needles are “very common” in the drug trade. Officer Per-ret also observed the bottom portion of an aluminum can that had been burned black and a spoon with some scoring and black soot on the bottom in the center console. According to Officer Perret, in his experience, common metal objects, like the bottom portion of aluminum cans and metal spoons, are used by intravenous drug users to heat and liquefy drugs to enable their injection. According to Officer Per-ret, once he found the alleged paraphernalia, he called a K-9 unit to the scene to search the vehicle for illegal drugs.

Officer Arthur Morvant with the Gretna Police Department responded to the request for a K-9 unit. According to Officer Morvant, his dog, trained to detect the scent of heroin, cocaine, methamphetamine, and marijuana, searched the interi- or |4and exterior of the vehicle. His dog alerted to the scent of drugs in the pocket of the driver’s door.

Officer Perret testified that, after the K-9 dog alerted by scratching on the driver’s door panel, he searched in the panel and found a foil wrapper containing an off-white powdery substance, which field-tested positive for heroin, and an off-white rock substance, which field-tested positive for crack cocaine. Officer Perret stated that no drugs were found on the defendants’ persons.

Thomas Angelica, an expert in examination of controlled dangerous substances with the Jefferson Parish Sheriffs Office Crime lab, testified that the brown powder in the folded piece of aluminum tested positive for heroin. In addition, Angelica testified that the off-white material tested positive for cocaine.

Dornicya Mitchell testified that, on March 21, 2007, Hollis picked her up from her residence in his car. Mitchell testified that they picked Barker up later. Hollis testified that he, Barker, and Mitchell were together, on March 21, 2007, for the sole purpose of using drugs. Hollis testified that he, Barker, and Mitchell all pooled their money to purchase drugs then went to a spot where they used the drugs. Mitchell and Hollis testified that they, along with Barker, consumed both the heroin and the cocaine by injection while in Hollis’ vehicle.

Hollis testified that he was driving his vehicle when the police stopped them. Mitchell admitted that she told the police that the drugs did not belong to her and that she knew nothing about the drugs. However, Hollis realized that the drugs the police found in his vehicle must have been left over from the drugs they had purchased earlier, which someone had “held back.” Hollis admitted that there was drug paraphernalia in the center console and scattered all over the back seat of his vehicle when they were stopped. Both Mitchell and Hollis admitted that they were arrested, with Barker, for the current charges of possession of heroin and cocaine. | BAccording to Mitchell, she ultimately entered an Alford guilty plea to possession of cocaine and heroin because it was in her best interest in light of her criminal record. Hollis admitted that he also pled guilty as charged. After hearing all of the testimony, the jury found defendant guilty as charged.

On appeal, defendant argues that the evidence was insufficient to support these convictions. Specifically, defendant claims that the State failed to prove that he knowingly possessed the drugs. He asserts that the State was only able to prove that he was riding in a car in which illegal drugs were found.

In response, the State contends that the testimony of co-defendants, Hollis and Mitchell, revealed that defendant possessed heroin and cocaine. The State asserts that co-defendants, Mitchell and Hollis, testified that they, along with the defendant, injected both heroin and cocaine into their bodies while sitting in Hollis’ car, which supports the fact that defendant knowingly exercised control over, and was in constructive possession of, the contraband narcotics.

The constitutional standard for review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Cho, 02-274, p. 10 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 442, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

| fiIn order to support a conviction for possession of narcotics, the State must prove that defendant was in possession of the narcotics and that he knowingly or intentionally possessed them. State v. Flagg, 01-65, p. 8 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 140, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159. Therefore, in order to convict a defendant for possession of heroin under La. R.S. 40:966(C), the State must prove beyond a reasonable doubt that defendant was in possession of the heroin and that he knowingly or intentionally possessed the heroin. State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/01), 812 So.2d 7, 9, writ denied, 02-0712 (La.9/13/02), 824 So.2d 1188. Likewise, in order to support a conviction of possession of cocaine, the State must prove that the defendant was in possession of the cocaine and that the defendant knowingly possessed it. La. R.S. 40:967(C); State v. Wright, 05-477, p. 5 (La.App. 5 Cir. 12/27/05), 920 So.2d 871, 874-75, writ denied, 06-1141 (La.2/16/07), 949 So.2d 404.

The evidence may be either direct or circumstantial. State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 658. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Stone, 05-82 (La.App. 5 Cir. 5/31/05), 904 So.2d 810, 814. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Brown, 03-581 (La.App. 5 Cir. 11/12/03), 861 So.2d 644, 651, writs denied, 03-3407 (La.4/2/04), 869 So.2d 875 and 04-49 (La.4/2/04), 869 So.2d 877. It is not a separate test from the Jackson standard; rather it provides a helpful basis for determining the existence of reasonable doubt. Id. Both the |7direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Guilty knowledge is a state of mind and need not be proven as fact but rather may be inferred from the circumstances. State v. Flagg, 792 So.2d at 140. The element of possession may be proven by showing that the defendant exercised either actual or constructive possession of the cocaine. State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65, mit denied, 03-2343 (La.2/6/04), 865 So.2d 738. A person who is not in physical possession of a drug may have constructive possession when the drugs are under that person’s dominion or control. State v. Schieffler, 812 So.2d at 9. The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to the drug may establish a prima facie case of possession when colored by other evidence. State v. Walker, 853 So.2d at 65.

The factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession include (1) the defendant’s knowledge that illegal drugs were in the area, (2) the defendant’s relations with the person found to be in actual possession, (3) the defendant’s access to the area where the drugs were found, (4) evidence of recent drug use by the defendant, (5) the existence of paraphernalia, and (6) evidence that the area was frequented by drug users. State v. Schieffler, 812 So.2d at 9.

A suspect can have constructive possession if he jointly possesses drugs with a companion, and if he willfully and knowingly shares with his companion the right to control the drugs. State v. Hollingsworth, 07-691 (La.App. 5 Cir. 12/27/07), 975 So.2d 31, 35. Mitchell and Hollis admitted that, on March 21, 2007, they met with the defendant for the sole purpose of obtaining and consuming | «drugs. Hollis further testified that, after the three pooled their money to purchase the contraband, he drove them to a predesignated place, where they stayed in his vehicle while they injected heroin and cocaine intravenously.

In addition, Hollis verified that used and new syringes, a metal can, and a metal spoon, which are all commonly used ways to inject drugs, were scattered “all over the back seat” and in the center console of his vehicle, next to the seat where defendant sat. See, State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 49 (presence of drug paraphernalia is indicative of dominion and control).

Officer Perret identified the defendant as an occupant of the vehicle that the police stopped and detained. Officer Per-ret testified that he noticed some common drug paraphernalia, i.e. syringes, the bottom of an aluminum can, and a scored spoon with soot on it, while driving the suspect vehicle back to the scene of another crime. Officer Perret testified that this paraphernalia is commonly used to liquefy drugs. After a K-9 called to the scene indicated the driver’s door panel, Officer Perret testified that he conducted a vehicle search and found a foil wrapper containing an off-white powdery substance that subsequently tested positive for heroin and an off-white rock substance that subsequently tested positive for crack cocaine in the driver’s door pocket.

It appears, based upon the evidence provided by the State’s witnesses, the jury could have found the State proved the essential elements of both possession of heroin and cocaine beyond a reasonable doubt, i.e. that the defendant was in possession of the heroin and the cocaine and that he knowingly or intentionally possessed the heroin and the cocaine.

We have reviewed the record for errors patent, according to La. C. Cr. P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals no errors | «patent in this case. For the foregoing reasons, we affirm both of defendant’s convictions and sentences.

AFFIRMED.

      . On Friday, September 19, 2008, co-defendants, Wallace Hollis and Dornicya Mitchell, pled guilty. Their convictions are not the subject of this appeal.

      . On September 22, 2008, defendant’s trial continued in absentia, after the trial judge found that the defendant was voluntarily absent from the trial proceedings. In the present case, both at trial and on appeal, the defendant has made no claim that his Sixth Amendment and due process rights were violated by his conviction in absentia. Generally, a defendant who appears in court at the beginning of trial, and then disappears in the later stages of the proceedings waives his right to trial in his presence. State v. Pigford, 05-477 (La.2/22/06), 922 So.2d 517, 518, citing Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912).

      .On the same day, the State filed a multiple bill of information alleging that the defendant was a second felony offender. The defendant denied the allegations in the multiple offender bill of information. The record before us does not reveal further proceedings on the multiple bill.


author: LOLLEY, J.

text:
    Donna KEESLAR Individually and on behalf of her Deceased Husband, Myron Keeslar, Plaintiff-Appellant v. DR. J.B. “Duke” McHUGH, Defendant-Appellee.
    No. 44,641-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 30, 2009.

      Gauthier, Houghtaling, & Williams, by Todd R. Slack, Metairie, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, by Lawrence W. Pettiette, Jr., Joseph S. Woodley, Shreveport, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

|! Donna Keeslar, the widow of Myron “Dale” Keeslar, appeals two rulings of the 4th Judicial District Court, Parish of Oua-chita, in favor of J.B. “Duke” McHugh, Jr., M.D. For the following reasons, we affirm the trial court’s judgment.

Facts

Myron “Dale” Keeslar, a 52-year-old man, presented at the Emergency Room of Glenwood Regional Medical Center (“Glen-wood”) at 10:17 a.m. on February 13, 2001. He complained of intermittent abdominal pain, cold sweats, and shortness of breath. During the day, Dr. Billy Alexander, the emergency room physician, called in a gas-troenterologist, Dr. J.B. “Duke” McHugh, for a consultation. Dr. McHugh arrived at approximately 6:30 p.m. and examined Mr. Keeslar and reviewed the test results that had been ordered and received by Dr. Alexander. After considering Mr. Kees-lar’s x-ray, Dr. McHugh’s first impression was “severe constipation,” and he admitted Mr. Keeslar to the hospital, primarily because he had been administered a sedative. Around 10:30 p.m., the nursing staff informed Dr. McHugh that Mr. Keeslar’s oxygen level had dropped and he was having respiratory problems. Dr. McHugh called for a consult by a pulmonologist, Dr. Thomas Gullatt, who came and intubated the patient. Mr. Keeslar was moved to the intensive care unit. Dr. McHugh left the hospital for the evening, leaving the patient in the care of Dr. Gullatt. Later that night, at approximately 2:00 a.m., Dr. Gullatt consulted the general surgeon, Dr. Russell Lolley. Dr. Lolley wanted to take the patient into emergency surgery, but he was too unstable. By 10:30 on the morning 12of February 14, Mr. Keeslar had stabilized enough for surgery, during which Dr. Lolley discovered a clot that had lodged in the mesenteric artery in the abdomen, cutting off blood flow to the colon. Resultantly, the colon had died and was gangrenous. Dr. Lolley attempted to save the patient by removing his colon, but Mr. Keeslar died on February 16.

Mr. Keeslar’s widow, Donna, brought the case against Dr. McHugh to the Medical Review Panel (“MRP”), which, after reviewing the evidence, concluded that Dr. McHugh had breached the applicable standard of care as to Mr. Keeslar. The panel determined that:

It is the opinion of the panel that there is evidence that Dr. McHugh failed to meet the standard of care expected of him in his treatment of Myron Keeslar in that he failed to make the diagnosis of a possible ischemic bowel and recognize the life threatening nature of that diagnosis in a timely manner.

Subsequently, Mrs. Keeslar filed a motion for summary judgment at the trial court, requesting that it find that liability had been established by the MRP and order a trial for damages only. Her motion was granted and judgment was entered in her favor, with the trial court determining that a breach of the standard of care had occurred. There was no finding, however, that Dr. McHugh’s actions had caused the death of Mr. Keeslar.

Subsequently, the original trial court judge presiding over the case, Judge Di-mos, retired and Judge C. Wendell Manning was elected to the bench and presided over the case. Dr. McHugh filed a motion to reconsider the grant of Mrs. Keeslar’s motion for summary judgment. After a hearing, the trial court overturned the pri- or court’s summary judgment in favor of Mrs. Keeslar, and the matter proceeded to trial. After the trial, the jury | ..¡concluded that Dr. McHugh did not breach the medical standard of care, and judgment was entered in favor of Dr. McHugh. Mrs. Keeslar appeals that judgment.

Discussion

Summary Judgment

In her first assignment of error, Mrs. Keeslar argues that the trial court erred in reconsidering and then denying her motion for summary judgment. She maintains that Dr. McHugh’s motion to reconsider the summary judgment was akin to a motion for new trial, and argues that pursuant to La. C.C.P. art. 1972, a motion for new trial requires the discovery of evidence important to the case which could not be obtained prior to the trial. She states that no new evidence was introduced that warranted a reconsideration of the previously granted summary judgment.

As stated, Judge Dimos originally presided over Mrs. Keeslar’s lawsuit against Dr. McHugh, and he partially granted her motion for summary judgment, concluding only that Dr. McHugh had breached the standard of care. The trial court made no determination regarding whether that breach actually caused the patient’s death. The partial final judgment was designated a final judgment by the trial court, which Dr. McHugh appealed. After a de novo review of the trial court’s certification of the judgment, this court determined that the trial court erred in certifying its judgment as suitable for immediate appeal, and the appeal was dismissed. Upon Dr. McHugh’s request, the trial court reconsidered the summary judgment and denied it.

|4We do not agree with Dr. McHugh’s characterization of the partial summary judgment as merely an interlocutory judgment. Pursuant to La. C.C.P. art. 1841, an interlocutory judgment does not “determine the merits but only preliminary matters in the course of the action.... ” Clearly, in this ease, the summary judgment originally rendered by Judge Dimos addressed the merits of this case, i.e., an element of liability. Thus, the judgment rendered by Judge Dimos was a partial judgment, albeit not final, as described in La. C.C.P. art. 1915(B)(2). However, subsection (B)(2) of the article also states that such a “decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” Thus, we conclude that the trial court acted in accordance with the article and did not err in reconsidering and revising the previously granted summary judgment.

Moreover, we note that the grant of summary judgment on a single element of La. R.S. 9:2794, the statute which sets out the elements to show liability in a medical malpractice claim, is improper. See Jones v. LSU Health Sciences Center-Shreveport, 39,292 (La.App. 2d Cir.09/02/04), 880 So.2d 269. As stated in Jones:

By dividing the issue of liability into smaller issues, the court’s judgment that the defendant breached the standard of care might be used at trial to preclude the introduction of evidence by the defendant regarding whether there was a breach in the standard of care and that breach caused the plaintiffs injury. There is possibility of confusion arising out of the factual interrelationship between the adjudicated element and the unadjudicated element that could lead to inconsistent rulings and piecemeal litigation.

Id. at 270.

IfiMrs. Keeslar also maintains that the trial court was correct when it partially granted her motion for summary judgment, in effect arguing that the trial court erred in subsequently denying her motion for summary judgment after the reconsideration. Initially, we point out that Mrs. Keeslar’s original motion for summary judgment sought relief on all claims. As discussed, the trial court under Judge Di-mos granted only the claims relating to Dr. McHugh’s breach of the standard of care — all other claims by Mrs. Keeslar were denied by the trial court. Ultimately, the trial court under Judge Manning denied Mrs. Keeslar’s motion for summary judgment, presumably including all claims — even those which had been previously denied. We do not believe the denial of Mrs. Keeslar’s motion for summary judgment was error.

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, 1999-2257 (La.02/29/00), 755 So.2d 226; Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2d Cir.12/15/00), 774 So.2d 1134. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. See La. C.C.P. art. 966(A)(2); Hin-son v. Glen Oak Retirement Home, supra. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

[ fiHere, despite the MRP’s finding that Dr. McHugh breached the standard of care, there was no conclusive determination that his actions caused the patient’s death, the other necessary element to prove liability in a medical malpractice case. Thus, the MRP left open the factual issue as to whether Dr. McHugh’s actions caused the death. We believe that this factual issue precluded summary judgment on the issue of liability in this case. In opposition to Mrs. Keeslar’s motion for summary judgment, Dr. McHugh offered his own deposition wherein he maintained his position that his care met the applicable standard of care (despite the MRP’s conclusion to the contrary) and that his actions did not cause the patient’s death. Obviously, Dr. McHugh’s affidavit is self-serving; however, he also offered the affidavit of Dr. Claude Minor, a general surgeon, who opined that the care and treatment rendered by Dr. McHugh did not result in the patient’s death. Although Dr. Minor was not a gastroenterologist, considering the nature of the patient’s medical ailment and the integral part played by a general surgeon in the diagnosis and treatment of such, we believe that Dr. Minor’s opinion as to Dr. McHugh’s treatment and the cause of the patient’s death was sufficient to raise a genuine issue of material fact on the issue of liability. Thus, the trial court properly denied Mrs. Keeslar’s motion for summary judgment.

Breach of Standard of Care

Finally, in her third assignment, Mrs. Keeslar argues that the jury’s verdict was in error in finding that Dr. McHugh did not breach the standard of care when all of the evidence, she maintains, was to the contrary. We disagree.

|7The jury’s finding in a medical malpractice case is subject to manifest error review; it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Tanner v. Cooksey, 42,010 (La.App. 2d Cir.04/04/07), 954 So.2d 335, writ denied, 2007-0961 (La.06/22/07), 959 So.2d 508. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding; and, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.04/03/02), 816 So.2d 270.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Sto-bart, supra. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126 (La.07/06/06), 935 So.2d 646.

|RIn a medical malpractice case, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794(A). Resolution of each of these inquiries is a determination of fact which should not be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991); Tanner, supra.

Where there are conflicting expert opinions concerning the defendant’s compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Pinnick v. Louisiana State University Medical Center, 30,263 (La.App. 2d Cir.02/25/98), 707 So.2d 1050.

In the case sub judice, the jury heard and considered the testimony of Dr. Michael Townsend, Dr. Thomas Lieberman, Dr. Thomas Gullatt, Dr. Russell Lolley, Dr. McHugh, Dr. Claude Minor, and Dr. David Scott.

\9Plaintiffs experts

The first witness called by the plaintiff was Dr. Michael Townsend, a general surgery physician hired by Mrs. Keeslar to review the medical records and give an expert opinion. Dr. Townsend specialized in general surgery and surgical critical care. Dr. Townsend testified that the standard of care for a patient like Mr. Keeslar would have required a surgeon to have been brought in at 10:00 p.m. at the very latest for the patient to have survived. However, Dr. Townsend also testified that in his experience, ischemic bowel is most commonly not diagnosed definitively before surgery.

The plaintiff also called Dr. Thomas Lieberman, a gastroenterologist who had not been personally involved in the patient’s care, but had reviewed the records for purposes of forming an expert opinion. Like Dr. Townsend, Dr. Lieberman opined that Dr. McHugh had breached the standard of care in failing to timely diagnose the patient’s condition. However, Dr. Lieberman did acknowledge that ischemic bowel carries a high risk of death. He also stated that it would be common for ischemic bowel to present in a nonspecific manner which can be confused with other illnesses. He also stated that ischemic bowel generally can be a very hard diagnosis to make, unless the physician specifically thinks about it. Dr. Lieberman also agreed that Dr. McHugh had acted properly by admitting the patient into the hospital and consulting with the pulmonologist for the respiratory issues.

Dr. Russell Lolley was also called by Mrs. Keeslar. Dr. Lolley was the general surgeon who performed surgery on Mr. Keeslar on February 14. |inDr. Lolley was called by Dr. Gullatt at approximately 2:00 a.m. When he first saw Mr. Keeslar, he was “on a ventilator and in shock and had a distended abdomen and his laboratory work showed that he was also acidotic.” At the time Dr. Lolley originally saw the patient, his condition was not stable enough for surgery. Dr. Lolley transfused him with large amounts of intravenous fluids and some plasma in an attempt to improve Mr. Keeslar’s general condition for surgery. According to Dr. Lolley, in order to truly make a diagnosis of ischemic bowel, surgery is necessary, and he was able to operate on Mr. Keeslar later that morning. Dr. Lolley opined that it is preferable to operate on ischemic bowel patients before complications from the illness set in, but he offered no explicit opinion regarding Dr. McHugh’s actions.

Dr. Paul Jordan also testified on behalf of Mrs. Keeslar. Dr. Jordan, a gastroen-terologist, was a member of the MRP that reviewed this case, and he was on the gastroenterology department faculty of the Louisiana State University Health Sciences Center. Dr. Jordan stated that he had treated perhaps 20 ischemic bowel cases in his career and that one or two of those had survived. In fact, Dr. Jordan testified that the mortality rate for ischemic bowel was 80%. As to this particular case, Dr. Jordan noted the MRP’s finding that Dr. McHugh breached the standard of care as to Mr. Keeslar, specifically because it was believed that the diagnosis should have been made earlier on in the process. However, Dr. Jordan went on to state that ischemic bowel is probably the “biggest nightmare” for gastroenterologists, because it is “extremely difficult to make the diagnosis.” He also stated that the MRP did not feel that in this case the | n patient had the symptoms that would have allowed Dr. McHugh to make the diagnosis of is-chemic bowel, but that the earlier the gas-troenterologist makes the diagnosis and calls the surgeon, the better the rate of recovery. Finally, Dr. Jordan noted that the MRP could not determine whether Dr. McHugh’s conduct was a factor in causing the patient’s death.

Defendant’s experts

Dr. Thomas Gullatt, an intensivist and pulmonologist, treated Mr. Keeslar after he was admitted at Glenwood and when Dr. McHugh called him in as a consult around 10:25 that evening. Dr. Gullatt’s first treatment of the patient was at approximately 11:25 p.m. He first noted that the patient had labored respirations and his oxygen saturations were low, which indicated to Dr. Gullatt a pulmonary problem. When Dr. Gullatt examined his abdomen, he noted it was distended; however, when he listened, he did not hear any bowel sounds. When he pressed the patient’s abdomen in different locations, there was no obvious tenderness. At that point, Dr. Gullatt did not see any indication of ischemic bowel. Dr. Gullatt noted that the patient did not have pain out of proportion to his physical symptoms and certainly not writhing pain — which would have been typical for a diagnosis of is-chemic bowel. However, he also testified that when Dr. Lolley examined the patient’s abdomen several hours later, he had a very different result. Finally, Dr. Gul-latt agreed that patients with ischemic bowel have a low survival rate.

Dr. McHugh also testified on his own behalf. According to Dr. McHugh when he first saw Mr. Keeslar his initial white blood count was within normal ranges. He noted that Dr. Alexander had circled a small, | ^localized area of the stomach where the patient was in pain. Dr. McHugh testified that localized pain would be atypical for generalized ischemic bowel. Dr. McHugh also explained that when he initially saw Mr. Keeslar and reviewed his test results, the radiology report noted a “massive amount of formed stool throughout the colon.” He noted that the radiologist’s use of the word “massive” was unusual. Dr. McHugh reviewed the nurse’s notation that Mr. Keeslar was pain-free at 5:00 p.m. He testified that he first saw Mr. Keeslar between 6:30-7:00 p.m. in the emergency room and, at that time, he physically examined the patient. In reference to that examination, Dr. McHugh described the pain associated with ischemic bowel as typically “the worst pain you can have.... It’s the heart attack of the intestine.” However, Dr. McHugh noted that in this case, when he examined the patient, he did not display any pain (his last pain shot had been approximately five hours earlier). Dr. McHugh explained that Mr. Keeslar was admitted to the hospital at 7:30 p.m., and Dr. McHugh was paged back to the hospital at 9:30. Between that time, no one called him to inform him of any changes in the patient’s condition. In fact, he stated that when he returned his page, the nurse made no mention of increased abdominal pain. At approximately 10:25 p.m. Dr. McHugh was informed that the patient has developed shortness of breath, and so he consulted Dr. Gullatt for pulmonary assistance. Dr. McHugh returned to the patient around 11:00 p.m., and he made the decision to move Mr. Keeslar to the intensive care unit (“ICU”). Dr. McHugh was present when Dr. Gullatt arrived at 11:25, and he accompanied the patient and Dr. Gullatt to the emergency room where he was to undergo bronchos-copy (intubation). 11sAgain, when Dr. Gul-latt examined the patient, there was no point tenderness in the abdomen — at that time, the patient’s only ailments seemed to be more pulmonary. Considering that and the fact that the patient was in the ICU, which is the domain of the intensivist (i.e., Dr. Gullatt), he was comfortable with Dr. Gullatt taking over Mr. Keeslar’s care; thus, he went home for the evening at around 12:30 a.m. on February 14. When Dr. Gullatt noted a change in Mr. Kees-lar’s condition to warrant a call to the surgeon, Dr. Lolley, Dr. McHugh was never notified. It was not until 8:40 a.m., when Dr. McHugh came back to see the patient, that he suspected ischemic bowel in light of the patient’s overnight deterioration. Dr. McHugh noted several reasons why he did not initially diagnose the patient’s ischemic bowel: a benign physical examination; only moderate pain during his examination of the patient; the “massive” amount of stool in his colon leading to his impression of constipation; a normal white blood count; and, relatively normal temperature.

The defense also called Dr. Claude Minor, a general surgeon, to testify. He was certified as an expert medical doctor, general surgeon, with a specialty in trauma and surgical critical care. Although he had not been a part of the patient’s care, Dr. Minor had been a surgeon at Glen-wood and, thus, was familiar with the standard of care and protocol of that facility. He agreed that for a diagnosis of ischemic bowel, excruciating, writhing pain is experienced by the patient. He related one typical example of a 45-year-old patient with ischemic bowel whose pain had not been relieved with 100 milligrams of Demerol. For comparison in this case, prior to seeing Dr. McHugh, the patient had received 2 milligrams of Dilaudid, which Dr. | uMinor said was equivalent to 20-30 milligrams of Demerol. Dr. Minor opined that small amount of painkiller would not typically affect the pain associated with is-chemic bowel. Additionally, Dr. Minor agreed that the admitting notes of Dr. Alexander indicated pain in an area of the abdomen not typically associated with is-chemic bowel. Dr. Minor testified that the care rendered to Mr. Keeslar was appropriate. Further, he opined that up until Dr. Lolley’s examination of the patient at 2:00 a.m., there had been no evidence of ischemic bowel. He pointed out that even then Dr. Lolley only listed “possible is-chemic bowel” as a third impression, and this after Mr. Keeslar had rapidly deteriorated. Dr. Minor opined that Mr. Kees-lar’s survival prospect was low, especially considering that his disease progressed rapidly and he showed no pathognomic signs or symptoms of the illness.

Finally, the defense called its last witness, Dr. David Scott, a gastroenterologist, who was tendered as an expert medical doctor in internal medicine, specifically gastroenterology. Dr. Scott was not involved with Mr. Keeslar’s case personally and only had reviewed the medical records. He testified that in his 17 years of practice, he had seen five or six cases of ischemic bowel, noting that they are all complicated cases. By looking at the patient’s medical record from Glenwood, Dr. Scott noted that he appeared to be stable when he left the ER and was admitted to the hospital at approximately 7:30 p.m. Dr. Scott stated that according to the records the patient did not have the type of pain normally seen with ischemic bowel. He concluded that he did not believe that Dr. McHugh had breached the standard of care in treating Mr. Keeslar.

| ifiHere, the jury was presented with opposing, but permissible, views of the evidence regarding Dr. McHugh’s treatment of Mr. Keeslar. However, although differing in their final opinion regarding a possible breach of the standard of care, certain common impressions by the physicians stand out: ischemic bowel is a complicated diagnosis which is most often fatal and is typified by extreme, nearly untreatable pain. Here, the stand-out fact is that Mr. Keeslar did not appear to be in excruciating pain — the hallmark symptom of is-chemic bowel as described by all the expert witnesses for both sides. It is always tragic when a patient dies, especially when the patient is relatively young and the onset of illness is unexpected and quick. But in this matter, the jury was presented with two permissible views of the evidence regarding whether Dr. McHugh breached the standard of care and caused the death of Dale Keeslar. The jury obviously chose to credit Dr. McHugh and his experts over the others. The objective evidence does not contradict that finding. Accordingly, we cannot find that the jury verdict in favor of Dr. McHugh was manifestly erroneous or clearly wrong.

Conclusion

For the forgoing reasons, we affirm the jury verdict in favor of the defendant, Dr. J.B. “Duke” McHugh, finding that Dr. McHugh did not breach the standard of care applicable to gastroenterologists in this case and dismissing the claims of the plaintiff, Donna Keeslar, individually and on behalf of Myron Keeslar. Costs in this matter are assessed to Donna Keeslar.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Stephanie HARRELL v. ST. MARGARET’S DAUGHTER’S NURSING HOME.
    No. 2009-CA-0526.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 4, 2009.

      Shawn T. Deggins, Deggins & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Robert J. May, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| jPIaintiff/Appellant, Stephanie Harrell, appeals a judgment from the Office of Workers’ Compensation that found in favor of St. Margaret’s Daughter’s Nursing Home. We find that Ms. Harrell failed to demonstrate any causal connection between the alleged work-related accident and her injury. We further find that the medical records and testimony presented at trial do not support Ms. Harrell’s claim that she sustained medical injuries as a result of a work-related accident. Therefore, we find that the workers’ compensation judge did not err in finding that Ms. Harrell did not carry her burden of proof that she suffered a work-related accident within the course and scope of her employment and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff/Appellant, Stephanie Harrell, was employed by Defendant/Appellee, St. Margaret’s Daughter’s Nursing Home, as a Licensed Practical Nurse. Ms. Harrell alleges that she sustained an injury in the course and scope of her employment. On June 8, 2002, while assisting Patricia Smith, a | ?nursing assistant, with moving a patient, Ms. Harrell alleges that she injured her back and suffered a bulging disc. Ms. Harrell maintains that as a result of the accident, she is currently disabled and unable to work. She applied for workers’ compensation from her employer and was denied benefits. Subsequently, Ms. Harrell filed suit against St. Margaret’s for workers’ compensation benefits, attorney’s fees, and penalties. The workers’ compensation judge ruled in favor of St. Margaret’s.

In the instant matter Ms. Harrell asserts that the workers’ compensation judge committed manifest error by denying her workers’ compensation benefits.

STANDARD OF REVIEW

Workers’ compensation benefits are available for claimants who suffer personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031(A). “Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551, 556.

To recover, the employee must establish a causal link between the work-related accident and his injury. Albert v. Trans-Met, Inc., 38,261 (La.App. 2 Cir. 06/23/04), 877 So.2d 183, 187-88; Qualls v. Stone Container Corp., 29,794, p. 5 (La.App. 2 Cir. 09/24/97), 699 So.2d 1137, 1151. The claimant is not necessarily required to establish the exact cause of his disability or injury; however, the claimant must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Buxton v. Sunland Constr., 34,995, pp. 5-6 (La.App. 2 Cir. 08/22/01), 793 So.2d 526, 531. “If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to Ucarry the burden of proof.” Lubom v. L.J. Earnest, Inc., 579 So.2d 1174, 1179 (La.App. 2 Cir.1991).

The Louisiana Supreme Court stated that:

[t]he trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992). Where a “factfinder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Salvant v. State, 05-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650.

BURDEN OF PROOF

Ms. Harrell avers that the workers’ compensation judge committed manifest error in finding that she failed to carry her burden of proof that the injury complained of was due to the alleged work accident.

“[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Bruno, 593 So.2d at 361. The worker’s testimony alone can be sufficient to meet his burden of proof if two elements are satisfied: “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Id.

“Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends.” Id. “In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’ uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’” Id., quoting West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979).

The instant claim arose out of an incident that Ms. Harrell alleges occurred during the course and scope of her employment. Ms. Harrell testified that on June 8, 2002, while lifting a patient at St. Margaret’s, she injured herself, which caused pain in her lower back and legs. Although Ms. Harrell alleges that she experienced severe and immediate pain, including pain lasting for the remainder of her shift, she did not inform the nursing assistant, her employer, or anyone else of the alleged injurious accident.

Ms. Harrell testified that she later discovered that her injury was a bulging disc. She continued to work for St. Margaret’s until June 25, 2002. She alleges that she continued to have back pain throughout this time and that she developed an additional symptom of burning in her legs by June 25, 2002.

Dr. Ira Markowitz, Ms. Harrell’s primary physician in the months following her alleged accident, testified that Ms. Harrell did not report a job accident nor did she complain of back pain when he first saw her on June 25, 2002.

In July 2002, Ms. Harrell was admitted to the hospital by Dr. Markowitz. While in the hospital, she was examined by several physicians. Dr. Donald Faust saw Ms. Harrell on the day of her admittance and reported in her patient history: “43-year old female with left leg swelling about the knee for several weeks. She recalls no injury.” On the same day, Ms. Harrell was seen by Drs. Kinnett and Pinner. Dr. Kinnett reported that Ms. Harrell had “no injury.” Dr. Pinner reported that Ms. Harrell described striking her left leg on her son’s bed months prior and reported “no other trauma.”

IsWhile hospitalized, Ms. Harrell was also examined by Dr. Alfarez. Dr. Alfarez reported that Ms. Harrell “does not remember any previous trauma, other than striking ant. tibial area on leg on son’s bed months ago.”

Dr. Markowitz admitted Ms. Harrell to the hospital again in August 9, 2002. While in the hospital Ms. Harrell was seen by an orthopedic surgeon, Dr. Richard Meyer. Dr. Meyer confirmed in his deposition that he asked Ms. Harrell about any trauma or injury that she may have experienced, and she denied that her complaints were related to trauma or injury.

A request for a physician-consult on Ms. Harrell was made by Dr. Markowitz, and Ms. Harrell was seen by Dr. Meyer in August 2002. Dr. Meyer asked Ms. Harrell if her symptoms were caused by an injury and she said no. Dr. Meyer further testified that Ms. Harrell stated that her symptoms began in May 2002, the month before her alleged work accident. Ms. Harrell was seen again by Dr. Meyer in September 2002. During this visit, Ms. Harrell reiterated that she had been having back pain since May 2002, and told Dr. Meyer that she hit her left leg on a bed at home. Ms. Harrell did not report her alleged job accident to Dr. Meyer.

Dr. Meyer saw Ms. Harrell again in October 2002, and she did not mention her alleged work-related accident. On October 28, 2002, Dr. Markowitz noted that Ms. Harrell lost private health insurance coverage. He testified that as a result, it was difficult to obtain orthopedic treatment for Ms. Harrell. Dr. Markowitz testified that in November 2002, he saw Ms. Harrell and she asked him to change his medical records to reflect that her injury was related to an accident that occurred in June 2002. Dr. Markowitz reported the following:

Seen in the office today and asked me to fill out papers about problems that have to do with insurance. She states that she wants me to say that her original injury was from trauma. Unfortunately, that is | r,not documented anywhere in the chart be-eause she never told me. She didn’t tell any of the consultants that and, frankly, as her entire hospitalization was such an enigma, that has been asked of her 20-30 times.

Dr. Meyer testified that in September 2004, Ms. Harrell asked him change his records to reflect that her injury arose from a work-related accident.

Ms. Harrell contends that she reported her alleged job accident to all of the doctors and maintains that they failed to record her history. The trial court, however, did not find this contention credible in light of the physicians’ testimony and reports. We find no error in the workers’ compensation judge’s finding.

WORK RELATED ACCIDENT

Ms. Harrell argues that the workers’ compensation court erred in finding that she failed to meet the burden of proof regarding the occurrence of an accident. The workers’ compensation court focused in part on Ms. Harrell’s failure to timely report the alleged accident.

La. R.S. 23:1031 provides that, as a threshold requirement, a worker in a compensation action must establish “personal injury by accident arising out of and in the course and scope of his employment.” In Lucas v. Ins. Co. of N. America, 342 So.2d 591, 596 (La.1977), the Louisiana Supreme Court stated the principle of presumption as to causal connection between accident and injury as follows:

A claimant’s disability is presumed to have resulted from an accident the injured was in good health, but commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves after-wards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Despite Ms. Harrell’s alleged continual worsening symptoms, she did not report a job injury to St. Margaret’s at any time between the date of the alleged accident and her last date of employment. Further, Ms. Harrell took a medical 17leave of absence due to problems with her legs, but she did not report her alleged job injury to St. Margaret’s. She testified that she did not report the alleged accident to St. Margaret’s until October 2002, four months after her last date of employment.

Velma Harrell, Ms. Harrell’s mother, testified that Ms. Harrell telephoned regarding an accident she had on the job. Velma Harrell stated that she went to visit her daughter and found her lying on the couch with a heating pad on her back and crying from pain. Further, Velma Harrell testified that Ms. Harrell said that she injured her back while assisting someone with a patient.

Conflicting evidence was presented in this matter on the issue of whether a work-related accident occurred. The trial court resolved this conflict in defendant’s favor. We find that the trial court was not clearly wrong in finding that plaintiff failed to prove by a preponderance of the evidence that she sustained a work-related accident. We therefore affirm the decision of the trial court.

DECREE

For the reasons assigned, the judgment of the workers’ compensation court is affirmed.

AFFIRMED.

      . An MRI showed a bulging disc in July 2002, and Dr. Markowitz's notes from October 22, 2002, indicate a “history of having a disc problem,” but the record is unclear as to the exact date Ms. Harrell learned of the disc problem.


author: MICHAEL E. KIRBY, Judge.

text:
    James and Renee HAMILTON, Individually and on Behalf of their Minor Daughter, Kirstyn Hamilton v. Travis WILLIS d/b/a Team FMX, Scooter Promotions, L.L.C., ABC Insurance Company and SMG, Inc. d/b/a Louisiana Superdome.
    No. 2009-CA-0370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 4, 2009.
    Michelle D. Robert, Jennifer G. Ahner, Law Offices of Michelle D. Robert, New Orleans, LA, for Plaintiffs/Appellants.
    J. McCaleb Bilbro Javier Law Firm, LLC, New Orleans, LA, for Defendant/Ap-pellee (Colony Insurance Company).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| j Plaintiffs, James and Renee Hamilton, individually and on behalf of their minor daughter, Kirstyn Hamilton, appeal the trial court’s grant of summary judgment in favor of defendant, Colony Insurance Company. Because we find that the summary judgment was properly granted, we affirm.

This case involves an accident that occurred at the 2005 Louisiana Bike Expo. The weekend event was sponsored by Scooter Promotions, and held at the Louisiana Superdome. Plaintiffs were watching a performance by a stunt motorcycle driver when the driver lost control of his motorcycle and crashed into the crowd. The plaintiffs were injured as a result of this accident, and filed suit against the motorcycle driver, Travis Willis, SMG Inc. d/b/a Louisiana Superdome, Scooter Promotions, LLC and its insurer for the event, Colony Insurance Company.

Colony filed a motion for summary judgment, arguing that its policy excluded coverage for bodily injury resulting from a motorsport event. The policy |2at issue contained an endorsement entitled, “Fireworks, Rides, Motorsports and Animals Exclusion.” This endorsement stated, in pertinent part:

This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from:
⅜ ⅜ * ⅜
(3) All “motorsports” events operated by or on behalf of any insured.

The endorsement defined “motorsports” as “any activity involving a motorized vehicle, watercraft, aircraft,” “auto” or “mobile equipment.”

In opposing the motion for summary judgment, plaintiffs conceded that the insurance policy contained the above-quoted exclusion, but argued that enforcement of this exclusion would lead to an absurd result. They contended that the clause should be considered ambiguous because it fails to express the common intent of the parties.

Following a hearing, the trial court granted Colony’s motion for summary judgment, and dismissed plaintiffs’ claims against that party. The trial court also certified the summary judgment as a final judgment for purposes of La. C.C.P. article 1915(B), making it immediately appeal-able.

Plaintiffs appeal, arguing that the trial court erred in granting Colony’s motion for summary judgment because (1) the motorsports exclusion leads to absurd consequences and is ambiguous, and (2) discovery is not complete so the | sintent of the parties to the contract is still at issue. We find no merit in either argument.

The policy exclusion for injury resulting from motorsport events is clear and unambiguous. At the conclusion of the motion hearing, the trial court referred to the exclusion at issue and stated, “I don’t know how it gets any clearer than that, counsel.” We agree.

Plaintiffs’ argument that the motor-sports exclusion leads to absurd consequences ignores the fact that the motorcycle stunt show was only one part of the Louisiana Bike Expo, which featured the exhibition of motorcycles. The declarations page of the policy described the business insured as a “motorcycle trade show.” The insurance policy secured by Scooter Promotions for this event was a standard commercial general liability policy with endorsements and exclusions, including the one at issue. There is no evidence in the record that Scooter paid an additional premium to secure coverage for motorsports events. Colony cannot be held liable for damages resulting from risks it was not paid to cover.

Plaintiffs’ other argument, that the motion for summary judgment was premature because of incomplete discovery, is not persuasive. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. article 2046. Additional discovery cannot change the motorsports exclusion, which we find to be clear and unambiguous and not leading to absurd consequences.

|4A motion for summary judgment shall be granted when the motion shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. article 966. Because we find that Colony proved its entitlement to summary judgment, we find no error on the part of the trial court.

For these reasons, we affirm the trial court judgment.

AFFIRMED.