author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Curtis CHELEY
    18-805
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Paula Corley Marx, Louisiana Appellate Project, P.O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Curtis Cheley
    Asa A. Skinner, District Attorney, Thirtieth Judicial District Court, Terry W. Lambright, Lea Hall, Assistant District Attorneys, P.O. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Curtis Cheley, David Wade Correctional Center, 670 Bell Hill Road, Homer, LA 71040-2150, PRO SE
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

Defendant, Curtis Cheley, is once again before this court seeking review of his sentence. In a previous appeal, this court affirmed Defendant's conviction for aggravated second degree battery. State v. Cheley , 17-538, 17-696 (La.App. 3 Cir. 1/4/18), 237 So.3d 58. Although the trial court had adjudicated Defendant a third habitual offender, this court found a statement made by the trial court at sentencing indicated the sentence was not being enhanced. Since aggravated second degree battery is punishable by not more than fifteen years, this court found the trial court's imposition of a sentence of twenty-two-and-one-half years exceeded the maximum term of imprisonment allowed for aggravated second degree battery. Thus, this court vacated the sentence imposed and remanded the matter for resentencing. Id. at 63. Additionally, pursuant to Defendant's assigned error, this court remanded the case for a hearing to determine whether one of the guilty pleas used as a predicate for Defendant's habitual offender adjudication was informed and voluntary. Id.

On June 20, 2018, the trial court held an evidentiary hearing as to the voluntariness of Defendant's predicate guilty plea. Finding Defendant's predicate guilty plea was constitutionally entered, the trial court again adjudicated Defendant a third habitual offender. The trial court then imposed a sentence of fifteen years at hard labor for aggravated second degree battery and a separate sentence of seven and one-half years at hard labor for Defendant's adjudication as a third habitual offender. The trial court ordered the sentences to run consecutively. Thus, Defendant received a total sentence of twenty-two-and-one-half years at hard labor.

Defendant filed a Motion to Reconsider Sentence on June 27, 2018, alleging the sentence imposed was excessive and illegal since a single sentence was not imposed. The trial court denied the motion without a hearing. Thereafter, on July 5, 2018, Defendant filed a Motion for Appeal and Designation of Record. The trial court granted the motion on July 10, 2018. Pursuant to Defendant's motion for appeal, two separate appellate records were filed in this court. By order dated October 11, 2018, this court consolidated the appeals. In both docket numbers, appellate counsel filed the same brief alleging two assignments of error as to the sentences imposed. Defendant also filed a pro se brief alleging three assignments of error as to the sentences imposed. For the reasons discussed, we find that the sentences must be vacated as illegal and the case again remanded for resentencing.

FACTS:

The following facts were set forth in this court's previous opinion:

On June 28, 2016, Sergeant Jerol Morrow of the Leesville Police Department was dispatched by a 9-1-1 operator to an incident involving Defendant. Sergeant Morrow knew Defendant and where he was living, so the sergeant proceeded to that location. On arrival, Sergeant Morrow witnessed Defendant on the ground struggling with a woman. Defendant was seen striking the woman and yelling at her, "Where's my kids? Where's my kids?" Sergeant Morrow, a trailing officer, and Deputy Paul Davis of the Vernon Parish Sheriff's Office, attempted to restrain Defendant. Sergeant Morrow was forced to administer pepper spray to effect the arrest of Defendant.
The woman Defendant battered was unresponsive to Sergeant Morrow's attempts to speak to her. Her face was very swollen, and her mouth was bloodied. She was identified as Ms. Mary Pittmon. Ms. Pittmon had been staying at Defendant's aunt's house, where Defendant also was residing.
Defendant and Ms. Pittmon were alone in the house on the morning of June 28, 2016. Ms. Pittmon was seated on the couch. Defendant was talking with someone on his phone, and stated, "I'm gonna take her out." Ms. Pittmon had no idea to whom Defendant was referring until he grabbed a red pipe, tucked it under his arm, and strode toward her with evident intent to strike her. Defendant struck Ms. Pittmon twice with the pipe, once on the head and once on her arm. Ms. Pittmon attempted to stand up, but slipped. Defendant then began to choke Ms. Pittmon with the pipe. He then lifted Ms. Pittmon and moved her toward the front door. Outside, Defendant pushed Ms. Pittmon to the ground on her stomach and began to punch her with his fists. Defendant was angrily asking Ms. Pittmon why she did not "feed his kids," whom Ms. Pittmon had never met. The beating continued until Sergeant Morrow intervened.
As a result of the beating, Ms. Pittmon sustained a broken tooth, mouth lacerations, and several bruises. She was transported to Byrd Memorial Hospital in Leesville, then to LSU Medical Center in Shreveport. This hospital move was necessitated by tachycardia Ms. Pittmon was experiencing following the battering.

Id. at 60.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends the trial court imposed an illegal sentence since it imposed two sentences when it should have imposed only one enhanced sentence. The State agrees with Defendant. As will be discussed, we also agree that the sentences imposed are illegal.

The trial court stated the following at sentencing:

In the underlying matter, which is filed in Vernon Parish Docket Number 89,944 - - I think that's eight - - 89,944-945, that being the underlying matter - - the aggravated second degree battery - - for which, um, the defendant was found on January 18th, 2017 to be guilty of aggravated second degree battery, it is the sentence of the court that you're sentenced to 15 years Department of Correction at hard labor. The Court having found the defendant a third-time felony offender and adjudicated as the same and for the reasons previously stated relating to that, at this time, the sentence for that, at this time, is an additional seven and a half years Department of Correction at hard labor to be consecutive to the 15 so that your total sentence is 22 and one-half years at Department of Correction at hard labor.

Defendant filed a Motion to Reconsider Sentence alleging the fifteen-year sentence imposed for aggravated second degree battery was excessive. Defendant also alleged that the imposition of an additional separate sentence for Defendant's habitual offender adjudication was illegal:

Mover avers that the imposition of sentence in this fashion was an illegal sentence and was an erroneous procedure.
The habitual offender status is an enhancement provision and not a separate crime itself. Mover avers that if the Court intended to impose the sentence in the way that it did, the Court should have vacated the underlying sentence and imposed a flat sentence of a determinate nature and stated that the sentence as imposed had been enhanced.
Mover contends that the sentence as it was worded and was imposed was improper.

The trial court denied the motion to reconsider without a hearing.

Louisiana Revised Statutes 15:529.1(D)(3) provides as follows:

When the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.

Since a trial court is required to vacate the previous sentence before imposing an enhanced sentence under the habitual offender penalty provisions, it is clear that only one enhanced sentence should be imposed when a defendant is adjudicated a habitual offender. In State v. Behn , 445 So.2d 516 (La.App. 3 Cir. 1984), this court addressed a similar issue in that the minutes showed the trial court had imposed two concurrent sentences after adjudicating Behn an habitual offender - three years for the felony being enhanced (unauthorized use of a movable) and three years for Behn's habitual offender adjudication. Addressing Behn's argument that the imposition of two separate sentences was illegal, this court stated the following:

LSA-R.S. 15:529.1 governs the filing of an habitual offender bill and the effect of a finding by the court that the defendant is an habitual offender. When a defendant is sentenced under this provision of law, only one sentence should be imposed. It is for the new crime only, but the sentence will be more severe than it otherwise would be had the defendant not been adjudged an habitual offender. The habitual offender proceeding is in the nature of an enhancement of penalty, rather than a prosecution for a crime. State v. Stott , 395 So.2d 714 (La.1981) ; State v. Walker , 432 So.2d 1057 (La.App. 3rd Cir.1983).

Behn , 445 So.2d at 520. Although the sentencing transcript reflected the imposition of only one three-year sentence, this court decided that remand of the case for resentencing was the appropriate mode of correcting the error in the minutes. Id. This court reasoned that upon resentencing, the trial court could make "clear to the drafter of the court minutes that only one offense and one sentence [was] involved." Id.

The error in the present case is clear since the transcript of sentencing shows the trial court undoubtedly imposed two separate sentences and even ordered the sentences to be served consecutively. Finding that this assignment has merit, we vacate the sentences imposed and remand the case for resentencing in accordance therewith.

ASSIGNMENT OF ERROR NO. 2:

In the event this court found the sentences imposed were legal, Defendant argues the sentences are excessive. Based on our finding in the previous assignment, this assignment of error is moot.

PRO SE ASSIGNMENT OF ERROR NO. 1:

Defendant argues his constitutional right against double jeopardy was violated by the trial court's imposition of an enhanced sentence when the case was originally remanded by this court for resentencing. Defendant bases his argument on the fact that in this court's original opinion, this court found the twenty-two-and-one-half-year sentence originally imposed by the trial court was not an enhanced sentence since the trial court specifically advised Defendant that it was not enhanced. See Cheley , 237 So.3d at 58. Defendant had already been adjudicated a third habitual offender, however, and pursuant to Defendant's assigned error, this court ordered a hearing upon remand as to whether one of the predicate guilty pleas was constitutionally entered. Id. At the hearing, the trial court found Defendant's predicate guilty plea was constitutionally entered, and the trial court again adjudicated Defendant a third habitual offender. The trial court then imposed a sentence of fifteen years at hard labor for aggravated second degree battery and a separate sentence of seven and one-half years at hard labor for Defendant's adjudication as a third habitual offender. The trial court ordered the sentences to run consecutively. Thus, Defendant again received a total sentence of twenty-two-and-one-half years. Despite the fact that the sentence imposed at resentencing totaled the same number of years as the sentence originally imposed, Defendant contends the sentence imposed at resentencing was greater since it was enhanced. In the conclusion section of his brief, Defendant asserts that since his sentence was enhanced at the resentencing, he is now ineligible for parole and good time credits.

The jurisprudence provides the following with respect to Defendant's argument:

Generally, if a convicted defendant is successful in having his conviction overturned on appeal, and is subsequently re-tried and convicted, the trial judge may not then impose a more severe sentence. North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A defendant may not be punished for seeking appellate redress. State v. Tremain P. , 06-438 (La.App. 5 Cir. 1/16/07), 956 So.2d 1. If a judge imposes a more severe sentence on a defendant when he is convicted following a successful appeal, the trial judge's reasons for the increased sentence must affirmatively appear in the record. Otherwise, there is a presumption of vindictiveness. The purpose behind this rule is to prevent defendants from being penalized for having exercised their constitutional rights. State v. Fletcher , [03-60 (La.App. 5 Cir. 4/29/03),] 845 So.2d 1213.
However, the presumption of vindictiveness is inapplicable where different judges have imposed the different sentences against the defendant, because a sentence "increase" cannot truly be said to have taken place. State v. Rodriguez , 550 So.2d 837, citing Texas v. McCullough , 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104. Where the presumption does not apply, the defendant may still be entitled to relief, but he must affirmatively prove actual vindictiveness. Wasman v. U.S. , 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424, State v. Rodriguez, supra.

State v. Dauzart , 07-15, p. 9 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, 1086.

The filing of a habitual offender bill has been held to be a factor justifying a harsher sentence:

Finally we note, the record reflects defendant's initial sentence was 49 ½ years without benefit of parole, probation or suspension of sentence. Upon re-sentencing, after his conviction as a multiple offender, he was sentenced to 49 ½ years without benefit of probation or suspension of sentence. Defendant claims that because he has been convicted as a multiple offender and is no longer entitled to good time under La.R.S. 15:571.3(C)(2), his second sentence was harsher and was intended to punish him for a successful appeal in violation of his Due Process. See North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Defendant's so-called harsher sentence was simply the result of being convicted as a multiple offender. Because we have already concluded the multiple bill was reasonable and, therefore, timely filed in light of the circumstances, we cannot attribute defendant's so-called harsher sentence to his successful appeal.

State v. Conrad , 94-232, pp. 4-5 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064, writ denied , 94-3076 (La. 4/7/95), 652 So.2d 1345.

To begin, Defendant makes no contention that he received an increase in the number of years he is to serve. Defendant contends the new enhanced sentence is harsher because he is ineligible for parole and good time credits. However, we note that the habitual offender penalty provision being utilized by the State does not restrict parole eligibility. Accordingly, the parole restriction would be the same as the underlying offense. La.R.S. 15:529.1(A)(3)(a) ; State v. Esteen , 01-879, (La.App. 5 Cir. 5/15/02), 821 So.2d 60, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. Thus, Defendant's parole eligibility was not affected by the trial court's decision to impose an enhanced sentence. Although Defendant's eligibility to receive good time credits appears to be affected by his status as a habitual offender, such a determination is within the exclusive authority of the Department of Corrections. La.R.S. 15:571.3 ; State v. Schleve , 99-3019, (La.App. 1 Cir. 12/20/00), 775 So.2d 1187, writ denied , 01-210 (La. 12/14/01), 803 So.2d 983, and writ denied , 01-115 (La. 12/14/01), 804 So.2d 647, cert. denied , 537 U.S. 854, 123 S.Ct. 211, 154 L.Ed.2d 88 (2002). Moreover, as stated in Conrad , an increased sentence based on the filing of a habitual offender bill is not per se vindictive.

Additionally, a different judge resentenced Defendant. Judge Vernon Clark imposed the original sentence. Cheley , 237 So.3d 58. Judge Martha O'Neal presided over the evidentiary hearing held upon remand and subsequently resentenced Defendant. Thus, there is no presumption of vindictiveness by Judge O'Neal. Finally, pursuant to Defendant's assigned error in the original appeal, this court remanded the case for an evidentiary hearing as to whether one of his predicate convictions was constitutional. The trial court determined the predicate conviction was constitutional and resentenced Defendant as a third habitual offender. Thus, the trial court's resentencing of Defendant as a habitual offender was not based on vindictiveness but was based on this court's remand instructions. It thus appears that there is no presumption of vindictiveness, and Defendant has not satisfied his burden of proving vindictiveness. Accordingly, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 2:

Defendant argues the trial court erred in proceeding to the evidentiary hearing and resentencing without conducting a hearing on his Motion for Procedural Objection and Leniency of Sentencing. Although the motion is not included in the appellate record, it is attached as an exhibit to the pro se brief and contains a file-date stamp of March 16, 2018. Also attached to Defendant's pro se brief is a notice for Defendant to appear before the court on March 28, 2018, for a ruling on the motion. The appellate record contains no indication of a ruling on the motion. Defendant contends a hearing on his motion would have allowed him to challenge the habitual offender charges as well as present mitigating factors for the resentencing. In the motion, Defendant raised the same arguments set forth in the first pro se assignment of error. Basically, Defendant argued that any habitual offender hearing would be vindictive since he successfully appealed his original non-enhanced sentence. For the reasons already discussed, this argument lacks merit. Based on our finding to vacate the sentence imposed and remand for resentencing, any mitigating evidence or argument regarding the sentence are now moot. Defendant fails to show he was prejudiced by the trial court's alleged failure to hold a hearing on the motion. Accordingly, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 3:

Defendant specifically states this assignment of error is abandoned. Thus, it has not been addressed by this court.

CONCLUSION :

For the foregoing reasons, the third felony offender conviction of Defendant, Curtis Cheley is affirmed. His sentences of fifteen years for aggravated second degree battery and seven-and-one-half years on the third felony offender charge are vacated, and the matter is remanded for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.

      The penalty provision for aggravated second degree battery mandates that at least one year of the sentence imposed be served without benefit of parole, probation, or suspension of sentence "if the offender knew or should have known that the victim was an active member of the United States Armed Forces or was a disabled vet, and the aggravated second degree battery was committed because of that status." La.R.S. 14:34.7(C). Considering the facts of this case, there is no indication this restriction of parole eligibility applies to this case.


source: Caselaw Access Project

author: PERRY, Judge.

license: Public Domain

text:
    Dekeisha Lashun CHAISSON v. COMPASS GROUP, USA, INC., et al.
    18-843
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Tracy P. Curtis, The Glenn Armentor Law Corp., 300 Stewart Street, Lafayette, Louisiana 70501, COUNSEL FOR PLAINTIFF/APPELLANT: Dekeisha Lashun Chaisson
    Eric E. Pope, Pamela N. Molnar, Blue Williams, LLP, 3421 North Causeway Blvd., Suite 900, Metairie, Louisiana 70002, COUNSEL FOR DEFENDANT/APPELLEE: Compass Group, USA, Inc.
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Dekeisha Lashun Chaisson (Chaisson) appeals the workers' compensation judgment denying her claim for workers' compensation benefits based on her failure to prove the occurrence of an accident arising out of and in the course and scope of her employment with Defendant, Compass Group, USA, Inc. (Compass). For the following reasons, the judgment of the Office of Workers' Compensation is affirmed.

FACTS

Bateman Community Living, which is owned and operated by Compass, employed Chaisson as a caterer from August 10, 2015, until her termination on June 21, 2017. Her duties involved delivering and serving food at different locations.

On July 12, 2017, Chaisson filed a Form 1008 Disputed Claim for Compensation (1008) seeking benefits and medical treatment pursuant to the Louisiana Workers' Compensation Act, La.R.S. 23:1021 -1415, for injuries she allegedly sustained in two separate workplace accidents. In the 1008, Chaisson alleged an accident was reported on March 25, 2017, to Supervisor, Paul Scelfo (Scelfo), and described: "Lifting filled catering trays[.] First injured while lifting heavy, long pans filled with food in September 2016, claimant continued to work in pain. On 5-25-17, she re-injured her spine. Pain, including headaches, caused claimant to miss many days of work for which she was terminated." Chaisson sought an additional award for statutory penalties and attorney fees, asserting Compass refused to pay benefits or authorize medical treatment.

In its August 2017 Answer, Compass denied Chaisson's entitlement to workers' compensation benefits, disputed her disability, and denied liability for penalties and attorney fees on the basis that Chaisson never reported a workplace injury. In addition, Compass asserted a fraud claim against Chaisson pursuant to La.R.S. 23:1208.

On November 21, 2017, Chaisson filed a First Amended Form 1008 Disputed Claim for Compensation (Amended 1008). In the Amended 1008, Chaisson alleged an accident was reported on May 23, 2017, to Scelfo, and described:

Lifting filled catering trays[.] Claimant first injured her low back while lifting heavy, long pans filled with food in September 2015.[ ] Claimant continued to work in pain. On or about May 23 or 24, 2017,[ ] she injured her left neck with radiating pain to the back, and aggravated her low back while lifting pans at work. At Lafayette General [Medical Center (LGMC) ] May 25, claimant recalled no accident. The healthcare provider concluded that lifting the pans at work two days prior caused the left lateral neck pain that radiated down posterior back.

Compass reiterated its denials in answer to the Amended 1008.

Following a trial on April 26, 2018, the workers' compensation judge (WCJ) ruled in favor of Compass and dismissed Chaisson's claims. Chaisson appeals. For the reasons that follow, we must affirm.

In her first assignment of error, Chaisson alleges the WCJ committed an error of law in reaching the decision that the criteria set forth in Bruno v. Harbert Int'l, Inc. , 593 So.2d 357 (La.1992), did not apply to her unwitnessed work injury. Secondly, she assigns error to the denial of her claims for workers' compensation benefits, as well as penalties and attorney fees.

It is Chaisson's contention the WCJ's ruling was primarily based upon Chaisson's formal claim being filed only after being terminated sixteen workdays after her injury. According to Chaisson, Compass knew she suffered injuries at work, knew she sought medical treatment, and knew her absences were due to injury-related pain. Compass repudiates any workplace accident or injury ever occurred, claims Chaisson was justly terminated for excessive absences, and charges Chaisson with filing her claim to punish Compass for her termination.

LAW AND DISCUSSION

Appellate courts review factual determinations in workers' compensation cases using the manifest error standard of review. Smith v. Louisiana Dep't of Corrs. , 93-1305 (La. 2/28/94), 633 So.2d 129. Only if we find the trial court committed an error of law that interdicted the fact-finding process will we conduct a de novo review. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502.

In Bruno , 593 So.2d 357, 361, the Louisiana Supreme Court considered a workers' compensation case where, as here, the accident was unwitnessed, and set forth the claimant's burden of proof and the criteria to be used by courts in determining whether an unwitnessed but compensable accident has occurred:

[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. [ Prim v. City of Shreveport , 297 So.2d 421 (La.1974) ]; Nelson [v. Roadway Express, Inc. , 588 So.2d 350 (La. 1991) ]. A worker's testimony alone may be sufficient to discharge this burden of proof, provided 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. West v. Bayou Vista Manor, Inc. , 371 So.2d 1146 (La.1979) ; Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation , § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra ; Nelson , [588 So.2d 350 ]. Corroboration may also be provided by medical evidence. West , [371 So.2d 1146 ].

After examination of the evidence, we find the record supports the WCJ's conclusion Chaisson failed to prove a compensable injury by a preponderance of the evidence.

At trial, Chaisson's co-employee, Preston Edwards, testified on her behalf. When asked whether he recalled Chaisson "ever complaining or being injured on the job[,]" he replied, "Yes ... she was complaining about lifting up heavy things, where she couldn't raise up things over. ... Like pans ... she carries around[.]" Edwards claimed Chaisson told him she injured her back. He testified he occasionally assisted Chaisson by loading items which were too heavy for her to lift. Edwards, however, was not aware if Chaisson ever complained of her pain to any other co-workers or to Scelfo, the supervisor. On cross-examination, Edwards testified he could not recall when Chaisson's complaints of back pain began.

Doddie Lange, an Administrative Assistant employed by Compass, was also called to testify during Chaisson's case-in-chief. Her duties involved maintaining employee's personnel files, documenting hire records, attendance, excuses, and accident reports. Lange confirmed from Time Off Worksheets that Chaisson was absent from work on September 28, 2015, and did not return until October 2, 2015. Lange denied knowing or having any record of Chaisson seeking treatment for back pain at LGMC on September 28, 2015.

Lange also established Chaisson worked on May 24, 2017, was "out" on May 25, 2017, was "off" May 26, 2017, and returned to work on Tuesday, May 30, 2017, after the three-day Memorial Day Holiday weekend. Lange denied knowing or having any record of Chaisson seeking treatment for a neck injury at LGMC on May 25, 2017. When asked whether Chaisson complained of hurting her neck at work in May 2017, Lange responded, "The only time she complained about an injury, I do not remember what the injury was, and I automatically told her, 'If you're hurt, you know you need to go to your manager.' And she said it didn't happen here. Her horse kicked her."

Another of Lange's duties was to reproduce an Injury Free Certification/Acknowledgement form weekly. The employees signed the form every Friday. Lange confirmed Chaisson did not sign the injury-free certificate for the week of May 22 through May 26, 2017. Finally, Lange verified that after returning to work on May 30, 2017, Chaisson worked an additional sixteen days before her termination on June 21, 2017. Lange was not cross-examined; Compass, instead, reserved its right to re-call and question Lange during its case-in-chief.

In her testimony, Chaisson stated she worked for Bateman as a driver and a server, delivering food to various locations. When asked to describe her September 2015 accident, Chaisson specified she was at J.S. Clark Academy in Opelousas, Louisiana, when she injured her back while lifting up a pan in the process of unloading her truck. This occurred on September 28, 2015. She did not immediately return to Lafayette because "she had to serve the food for the kids.... Because they had no one else to come over there." Chaisson claimed she told Scelfo, both by calling him on the telephone from the school and by speaking to him in person when she returned to Bateman in Lafayette. She stated Scelfo did not fill out an accident report nor did he offer her any medical attention; instead, she "told him that I got hurt and that I'd have to go to the doctor." She then went to the emergency room at LGMC. The LGMC's medical records for September 28, 2015 reflect Chaisson's "History of Present Illness" as:

The patient presents with back pain. The onset was 2 days ago. The course/duration of symptoms is worsening. Type of injury: lifting and turning. Location: Bilateral lumbar. Radiating pain: none. The character of symptoms is sharp and achy. The degree at onset was minimal. The degree at present is moderate. There are exacerbating factors including movement and bending over. The relieving factor is none. Risk factors consist of none. Prior episodes: occasional. Therapy today: over the counter medications. Associated symptoms: none. Additional history: none.

Chaisson testified she did not recall if she missed any time from work because of that injury, explaining she continued to work, even though in pain, because she needed her job.

When asked to describe her accident of May 2017, Chaisson recalled reaching for pans above her head when she injured her neck and reinjured her lower back; however, she could not remember where exactly she was when her injury occurred. Chaisson claimed she told Scelfo also of this injury both by telephone and in person, but Scelfo did not fill out an accident report nor did he offer her any medical attention. She stated the next morning she called Scelfo and told him she could not work because she had to go to the hospital. The LGMC's medical records of May 25, 2017 reflect Chaisson's "History of Present Illness" as:

The ... 43 y/o female presents with left side of neck and left side of back pain that started yesterday. [S]tates hurts to touch and movement. [S]tates she lifts pans at work. [D]enies any injury/trauma.... 43-year-old black female complains of left lateral neck pain radiating down posterior back worse with movement and deep breathing. States started yesterday. Denies injury. But does lift on heavy pans work.... The onset was 2 days ago. The course/duration of symptoms is constant. Location: Left Lateral neck and left upper back. Type of injury: none. The location where the incident occurred was at work. Radiating pain to the back. The character of symptoms is pain. The degree at present is moderate. The exacerbating factor is movement. The relieving factor is none. Risk factors consist of none. Prior episodes: none. Therapy today: none. Associated symptoms: none.

Chaisson testified that she missed work the following day, May 26, 2017, because she had an excuse from LGMC. She claimed she gave Scelfo her excuse and "[h]e made a copy in the front by the secretary desk and put it in my folder."

Chaisson testified she returned and continued to work, even though in pain, because she needed the money and the job. When asked why she filed her workers' compensation claim after she was terminated, Chaisson answered, "Because he -- he really fired me for nothing. He knew I was working, being hurt."

Under cross-examination, Chaisson reaffirmed that her original accident was on September 28, 2015, and occurred at J.S. Clark Academy. She testified that when she called Scelfo to report she was hurt, he told her, "He didn't have nobody to send there for me, and he said I was always complaining about something." After Chaisson was asked "what else were you complaining about[,]" the following exchange ensued:

A. My neck and my back about that, and I was working by myself.
Q. Okay. Now, this is September 28, 2015, when your accident occurred. Were you complaining about your neck and your back before that?
A. I didn't complain about my neck. I was complaining about my back.
Q. You were complaining about your back before September 28, 2015?
A. No.
Q. Okay. So I'm confused. When you called Paul [Scelfo] on September 28, 2015, to tell him you hurt yourself at work and he said he was tired of you complaining, what was he talking about?
A. Because I told him I needed help at the school. I was by myself.
Q. So you'd been working at the school for a while and having problems?
A. Yes.
Q. And had asked for help before September 28, 2015?
A. Yes. There was supposed to be two people working that regardless.

Chaisson testified she kept working after September 2015, even though she was in pain, but claimed Scelfo knew she was working in pain. According to Chaisson, she never had a conversation with Scelfo about filing a workers' compensation claim or about receiving any kind of accommodation at work, nor did she seek any other medical treatment for her back injury between September 2015 and May 2017.

Chaisson claimed she told Lange about her May 2017 injury "maybe once or twice" and gave Scelfo documentation from LGMC, but she could not remember where exactly she was when she injured her neck. She disputed LGMC's medical records of May 25, 2017, which indicate she denied any injury or trauma. According to Chaisson, "I told them exactly what happened."

Chaisson was next asked about her termination on June 21, 2017. She admitted sending a text message to Scelfo stating, "I'm coming for Bateman." This colloquy followed:

Q. And then I think the next day or a day later a letter of representation went out from your attorney. You retained an attorney immediately after you got fired?
A. Yes.
Q. Okay. To file this workers' compensation claim?
A. Because I was -- I was fired for no reason.
Q. Okay.
A. And I told them I was working while I was hurt.
Q. Is there any reason you didn't mention being hurt to Paul when you texted him that text?
A. Well, Paul already knew that. Many a times I told that to Paul when I would go in Paul's office.

Chaisson claimed Scelfo frequently arranged for other employees to load her truck in the morning because he knew she was hurting. She denied it was a customary occurrence for other employees to load the pans of food into every truck each morning.

Chaisson testified she had headaches and pain in her neck and back due to two workplace accidents. She claimed she began having painful headaches after her May 2017 accident. Despite medical records from LGMC dated May 30, 2015 and March 18, 2017 which indicate she reported suffering headaches, Chaisson denied seeking treatment from LGMC for headaches. She claimed she sought treatment for a cold, not headaches, on March 18, 2017.

Chaisson was questioned about her first accident, which she claimed occurred on September 28, 2015 at J.S. Clark Academy. When confronted with her employment record which showed she was not at work that day, the following exchange ensued:

A. ... I can't recall, which I don't remember the exact date that -- that's the day I went to the hospital. It must have been the day before because I did go to the hospital behind it.
Q. Okay. The day before is a weekend, though.
A. I can't -- then I can't explain all them questions.
Q. Okay.
A. I'm trying to see if that's when my excuses was still led to.
Q. You didn't work on Saturday and Sunday, though, did you?
A. No. I'm talking about from the Friday. I can't really remember the date that it really happened.
Q. Okay.
A. I can't recall the date.

When asked about the injury-free certificates, Chaisson testified that although there were times she would not sign the form because she missed work or worked offsite, she typically signed them because they were presented on a table where she would pick up her check. When asked, "So even though it's an injury-free certification, you would sign it even if you were having problems[,]" she replied, "Most of the time." She testified she would sometimes not sign the injury-free certificates because she was having problems.

On re-direct examination, Chaisson was only questioned about the text message she sent to Scelfo shortly after being terminated. The following exchange occurred:

Q. I'm interested in the text you -- where you have in all cap[s], "YOU USED ME." What were you referring to when you texted Mr. Scelfo that he used you?
A. As going doing things for him that I wasn't supposed to on the job at work. Doing him favors, going to the store for him. I was staying doing more work than I was supposed to be.
Q. How about working in pain?
A. He knew that.

This ended Chaisson's testimony and the presentation of her evidence.

Compass re-called Lange to the stand. According to Lange, Chaisson only mentioned an incident involving her horse, never a workplace accident. Lange explained that Compass's protocol required employees to report a workplace accident to their supervisors, which was then reported to the corporate office. Lange denied ever receiving any medical records concerning Chaisson, saying "The only stuff I saw was the first stuff that came from the attorney about the bill." Lange testified she reviewed Chaisson's personnel file for trial and found nothing related to a work injury. She testified Scelfo was aware of Compass's protocol for reporting and confirmed he had reported workplace accidents in the past.

Lange was also asked about Chaisson's claim she had asked for a helper when she worked at J.S. Clark Academy because of problems she was having physically. According to Lange, Chaisson "indicated she liked working by herself. She didn't like working with other people." Lange claimed Chaisson once told her of being tired so Lange told Chaisson to tell Scelfo if she needed time off or if she needed help, to which Lange stated Chaisson replied, "no, I like working by myself."

Under cross-examination, Lange reiterated Chaisson did not complain to her of an injury suffered while at work. According to Lange, Chaisson indicated the pans were heavy but did not ever say she could not work because they were too heavy.

Compass next called Scelfo to the stand. Scelfo testified he has been employed as a Unit Director for Compass since August 17, 2015. According to Scelfo, Chaisson was not working at J.S. Clark Academy on September 28, 2015, when she alleges her first injury occurred. Scelfo claimed he worked at the school from September 23, 2015 until October 10, 2015, after which Chaisson worked at the school. Scelfo also disputed Chaisson's claims that she asked for help with her work duties while working at the school.

Scelfo testified Chaisson never told him she was injured at work and denied Chaisson told him she was having neck or back pain because of work-related injuries. He recalled Chaisson complained that her knee hurt, but claimed she told him she hurt it when she fell while walking down stairs at her house. Scelfo testified Chaisson would inform him when she was sick, but he refuted Chaisson's claim he was given medical excuses or records related to a work-related injury.

Scelfo explained Compass's protocol required him to compose a written injury report, which he then gave to the human resources department. Scelfo testified he first heard Chaisson claimed a work-related injury when Compass received a letter of representation from her attorney.

Under cross-examination, Scelfo conceded that as a Unit Director, it would be beneficial to have an accident-free unit. When asked whether he knew anyone that makes nine dollars and fifty cents an hour who owns a horse, Scelfo replied he did not know anyone who owned a horse. Next, he reiterated that from September 23, 2015 through October 10, 2015, he alone brought and served breakfast, lunch, and snacks to J.S. Clark Academy. When asked his height, Scelfo testified he is six feet tall. He acknowledged he is responsible for hiring and firing and his supervisors hold him accountable for his unit's profits.

Following Scelfo, the defense rested its case and Chaisson returned to the stand on rebuttal. Chaisson denied ever owning a horse. She also denied having stairs in her home. This concluded Chaisson's testimony and trial.

The WCJ issued an oral ruling immediately at the conclusion of trial, denying Compass's fraud claim and Chaisson's claim for workers' compensation benefits. The WCJ opined, in pertinent part:

It is, as we discussed at the outset, more of a he-said/she-said credibility-type determination. It's not quite a Bruno , situation, or it's not a classic, I guess in my mind, Bruno situation because there is some corroboration, although, it is a little mild in nature. There are hospital or healthcare visits at approximately the times complained of. And then we have the first witness who, Mr. Edwards, my understanding of his testimony is that he did hear her complain. I did not hear him testify that he heard her complain of an accident, my words, in the sense that that term is defined in the Workers' Compensation Act and under the jurisprudence under the Act.
And I was also going to ask, but I did not, how tall was Mr. Edwards, because he certainly wasn't much taller, I think, than Ms. Chaisson. But any way, the corroboration that exists is mild, but there is some. Therefore, it's not what I call a classic Bruno case. So it is more down to weighing the evidence and the credibility of Ms. Chaisson, and I find the probabilities to be evenly balanced, and Ms. Chaisson does not prevail today because there are just too many discrepancies.

Considering Chaisson "notified [Scelfo] in a bit of detail and without hesitation when she was not feeling well, and it would be shocking to me if she was having back and neck and knee complaints related to a work accident and there was no text message about it[ ]" the WCJ did not "place any weight on [Chaisson's] testimony" that she only verbalized her pain complaints to Scelfo. Consequently, the WCJ ruled Chaisson "failed to bear her burden of proving an accident in the course and scope of employment by a preponderance of the evidence, and therefore find that the case should be dismissed with prejudice." A written judgment to this effect and which assessed Chaisson with court costs was signed on May 10, 2018.

Chaisson's arguments herein suggest that only her testimony should be considered to determine whether a workplace accident has been proven. We cannot ignore, however, our review of the record which reveals contradictions and inconsistencies throughout. Considering the Bruno criteria, the record supports the conclusion that other testimony and medical evidence discredited and cast serious doubt upon Chaisson's allegations.

Chaisson alleged an injury on September 28, 2015. Although medical records show she did seek treatment at LGMC on September 28, 2015, evidence disputes she worked that day at J.S. Clark Academy, as she claimed. Also suspect is the fact that Chaisson could remember specifics about the September 2015 incident, but could not remember specifics about the May 2017 incident. Although medical records show Chaisson did seek treatment at LGMC on May 25, 2017, she denied an injury at the time of treatment. Further, Edwards did not convincingly corroborate Chaisson's injuries, noting he only heard her mention back pain. Chaisson alleged her back was injured in September 2015 and her neck was injured in May 2017. Thus, we must agree with the WCJ's characterization that Chaisson's testimony was only mildly corroborated.

Finally, there is clear conflict in the testimony, requiring an evaluation of credibility. Both Lange and Scelfo vehemently disputed Chaisson claims she informed them of her workplace accidents and injuries. Even though an appellate court may feel its own evaluations and inferences are reasonable, the factfinder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflicts exist in the testimony. Rosell v. ESCO , 549 So.2d 840 (La.1989).

We must agree with the WCJ's conclusion that the inconsistencies noted above indicate Chaisson failed to prove a workplace injury by a preponderance of the evidence. In view of our holding, it is not necessary that we consider Chaisson's assignment of error number two.

DECREE

For the foregoing reasons, the judgment of the workers' compensation judge is affirmed. All costs of this appeal are assessed to Dekeisha Lashun Chaisson.

AFFIRMED.

      Throughout the proceedings, the parties often refer to Chaisson's employer as "Bateman."

      The 1008 initially alleged Chaisson's first accident was in September 2016.

      The 1008 initially alleged Chaisson's second accident was on May 25, 2017.

      While Chaisson claims two injuries, in brief she concedes entitlement solely to medical-related benefits for the September 2015 incident and asserts her "appeal primarily addresses the most recent, neck injury for which the law entitled plaintiff to all worker[s'] compensation benefits."


author: PERRET, Judge.

text:
    Norris CLEMENT, et al. v. Brent J. MENARD, et al.
    18-497
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    G. Andrew Veazey, Bradford H. Felder, Dona K. Renegar, Veazey, Felder & Renegar, Post Office Box 80948, Lafayette, LA 70598-0948, (337) 234-5350, COUNSEL FOR DEFENDANTS/APPELLANTS: Brent J. Menard, Jamille Menard
    Jade Roland Andrus, Andrus and Andrus, LLC, 1227 Camellia Boulevard, Lafayette, LA 70508, (337) 988-2100, COUNSEL FOR PLAINTIFFS/APPELLEES: Norris Clement, Barbara Clement Richard, Agent & Attorney in Fact for Norris Clement, Gregory Paul Dore
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
   PERRET, Judge.

This appeal stems from competing claims for injunctive relief involving an irrigation canal right-of-way. The trial court rendered judgment in favor of Norris Clement, Barbara Richard, authorized agent for Norris Clement, and Gregory Paul Dore ("the Clements"), and against Brent J. Menard and Jamille Menard ("the Menards"). The trial court concluded that the Clements have the right to maintain, operate, and repair the irrigation canal and permanently restrained, enjoined, and prohibited the Menards from interfering with the Clements' rights. The Menards appeal the judgment and, on appeal, we reverse the trial court's judgment, grant a permanent injunction in favor of the Menards, and remand the case to the trial court for further proceedings as may be necessary in conformity with this ruling.

FACTS AND PROCEDURAL HISTORY:

Most of the facts in this case do not appear to be in dispute. On September 20, 1952, Marcel Guidry, the Menards' ancestor in title, granted to Willie Clement, his heirs, and his assigns, a twenty-four-foot predial servitude/right-of-way for an irrigation canal across his property. The Clements are the heirs and assigns of Willie Clement, as evidenced by documents admitted into evidence. This agreement ("the 1952 Agreement") was recorded in the Lafayette Parish records under Entry number 280984. In the 1952 Agreement, Mr. Guidry recognized that:

[T]here is an irrigation canal running along the Southern boundary of his said land and lying next to the Public Road, which irrigation canal leads from the irrigation plant which Sidney Constantin sold to Willie Clement on September 19, 1952, ... to the tract of land consisting of approximately 120 acres, ... which Sidney Constantin sold to Willie Clement on September 19, 1952.

The 1952 Agreement further states that Mr. Guidry grants Willie Clement the right-of-way because Mr. Guidry had never granted the former owners of the irrigation plant the right-of-way described. More specifically, the 1952 Agreement states that Mr. Guidry:

[D]oes now grant, sell and deliver unto Willie Clement ... his heirs and assigns, a right-of-way 24 feet in width for the said irrigation canal, said right-of-way to continue for as long a time as the said irrigation well and pumping plant is operated by either the said Willie Clement, his heirs or assigns.
The said Willie Clement binds and obligates himself, his heirs and assigns, to take good and proper care of the canal levies and not permit any water to escape or cause any damage to the growing crops on land of Marcel Guidry, his heirs or assigns.

In 1997 the Clements installed a twelve-inch plastic pipe in the same location as the open irrigation canal and filled the open canal.

On September 22, 1998, the Menards purchased the subject property including that property on which the right-of-way was formerly granted. The Act of Cash Sale of Property transfers the described property to the Menards "with full and general warranty of title, and with full subrogation to all the rights of warranty and all other rights as held herein by said Sellers, subject to any easements, rights-of-way and restrictions of record." The act of sale did not disclose the presence of any underground pipeline on the Menard property.

Subsequently, the irrigation pipeline required repairs. After the Menards allegedly prevented those repairs from occurring, the Clements filed a Petition for Temporary Restraining Order, and Preliminary Injunction. The Clements asserted ownership of an irrigation canal right-of-way on the Menards' property which was, and is still, used to irrigate rice crops and crawfish ponds. The petition further alleged that Gregory Dore leases the Clement property for rice crops and that the irrigation canal supplies the property with water. The Clements asserted they attempted to repair a leak in the irrigation pipe but were prevented from doing so by Brent Menard. Therefore, the Clements sought a temporary restraining order preventing the Menards from interfering with the Clements' maintenance of the irrigation pipe.

On June 22, 2017, the trial court signed and granted the Clements' temporary restraining order for ten days. The Menards sought to have the temporary restraining order deemed expired, and a show cause hearing was set for July 31, 2017. In opposition to the restraining order, the Menards alleged that the irrigation canal was abandoned in 1997, when the open irrigation canal was replaced with an underground irrigation system. The Menards further assert that a survey done on July 31, 1997, does not indicate the presence of the pipeline on the Menard property. The Menards allege that their act of sale does not acknowledge the pipeline and the only attachment to the act of sale was the 1997 survey.

On July 31, 2017, the Menards filed an Answer, Reconventional Demand & Third-Party Petition for Possession and for Damages alleging that the Clements cannot meet the requirements for obtaining injunctive relief, that there is no recorded instrument establishing the Clements' right to operate an underground pipeline on the Menard property, and that the Menards were entitled to rely upon the absence of any instrument in the public records. Furthermore, the Menards sought injunctive relief to protect their possession of their property and ensure the removal of the irrigation pipeline, an order requiring the Clements to assert any adverse claims of ownership in a petitory action, and damages from the disturbance of their possession, negligence, nuisance, and wrongful issuance of a temporary restraining order.

The Clements responded to the Menards' reconventional demand with their own demand for damages allegedly caused by the Menards' excavation of the irrigation pipeline area.

At the trial on the competing temporary restraining orders and permanent injunctions, Gregory Dore, Barbara Richard, and Ronald Richard testified regarding the use of the irrigation system before and after 1997, as well as the impact on farming operations that occurred when the irrigation system was not operational. The parties introduced exhibits including the 1952 Agreement and the Menard act of sale documents. The trial court ruled in favor of the Clements, documenting its factual findings in its Findings of Fact and Reasons for Judgment in addition to the court's Judgment Granting Final Injunction.

It is from this judgment that the Menards appeal, asserting three assignments of error:

A. The trial court's ruling ignores and undermines the public records doctrine because it deprived the Menards of their right to rely on the absence from the public records of an instrument granting title for the Clement Interests to operate a non-apparent underground predial servitude.
B. The trial court erroneously conflated the grant of title of an apparent predial servitude for an irrigation canal as encompassing a non-apparent predial servitude for an underground pipeline.
C. Alternatively, the 1952 Agreement is ambiguous as to whether it grants title to operate a non-apparent predial servitude[,] and the trial court failed to recognize that any ambiguities regarding title must be resolved in favor of the Menards as owners of the servient estate.

DISCUSSION:

"Predial servitudes are either apparent or nonapparent. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions .... Nonapparent servitudes are those that have no exterior sign of their existence[.]" La.Civ.Code art. 707. Apparent predial servitudes may be established in three ways, including by title, but non-apparent servitudes may only be acquired by title. La.Civ.Code arts. 739 and 740. Additionally, to be effective as to third parties, the instrument establishing "a real right in or over an immovable" must be recorded. La.Civ.Code art. 3338.

The 1952 Agreement, establishing the right-of-way, was recorded in the Lafayette Parish conveyance records, and, therefore, the right established in that instrument is effective against the Menards.

When established by title, "[t]he use and extent of such servitudes are regulated by the title by which they are created[.]" La.Civ.Code art. 697. Therefore, the crux of the issue on appeal is whether the 1952 Agreement for an "irrigation canal" right-of-way encompasses an underground irrigation pipeline, which is addressed in Appellants' Assignment of Error Number Two.

"Whether a servitude has been used according to the title or possession, or whether the condition of the servient estate has been aggravated, is a question of fact." A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 7:5 (4 Louisiana Civil Law Treatise 2018). "Courts resolve this question according to the circumstances by taking into account the situation of the estates, the agreement of the parties, the needs of the dominant estate at the time of the creation of the servitude, and the prejudice sustained by the owner of the servient estate." Id. See also Sigue v. Texas Gas Transmission Corp. , 154 So.2d 800 (La.App. 3 Cir.), writ refused , 244 La. 1025, 156 So.2d 228 (1963), cert. denied , 379 U.S. 922, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964), in which this court applied contract interpretation codal articles to determine that a contract providing a right-of-way only provided for buried pipelines. Additionally, "[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate." La.Civ.Code art. 730.

[T]he intention of the parties to place a charge on one estate for the benefit of another estate, and the extent of the charge, must be expressed on the face of the title document and cannot be inferred or implied from vague or ambiguous language. The title document must also reasonably identify the dominant estate and the servient estate.

S. Amusement Co., Inc. v. Pat's of Henderson Seafood & Steak, Inc. , 03-767, p. 7 (La.App. 3 Cir. 3/31/04), 871 So.2d 630, 634 (quoting Mardis v. Brantley , 30,773, pp. 2-3 (La.App. 2 Cir. 8/25/98), 717 So.2d 702, 704, writ denied , 98-2488 (La. 11/20/98), 729 So.2d 563 ).

In this case, the 1952 Agreement sets forth the intention to place a charge on Mr. Guidry's estate for the benefit of Willie Clement's estate by granting a twenty-four-foot right-of-way for an irrigation canal. The extent of the charge is described as "a right-of-way 24 feet in width for the said irrigation canal" which was earlier described as "an irrigation canal running along the Southern boundary of his [Mr. Guidry's] said land and lying next to the Public Road, which irrigation canal leads from the irrigation plant ... to the tract of land consisting of approximately 120 acres[.]" The 1952 Agreement further requires Willie Clement, his heirs and assigns, "to take good and proper care of the canal levies and not permit any water to escape or cause any damage to the growing crops on [the] land of Marcel Guidry, his heirs or assigns."

The Menards argue that the 1952 Agreement only establishes a right-of-way for an apparent servitude, an irrigation canal as was in existence at the time that the 1952 Agreement was signed, and that the "nature" of the servitude has been changed to a non-apparent servitude, a buried irrigation pipeline.

The Clements argue that the current underground pipeline is merely a permissible modification of the original, apparent servitude and, thus, encompassed by the 1952 Agreement as it serves the same purpose, irrigation.

The Clements further argue that the buried irrigation pipeline is less onerous, as it is underground and does not present all the hazards and unpleasant effects of an open canal. Overlooked by the Clements is the obvious problem of having to go onto the lands of the servient estate to dig up and repair the pipeline should it become clogged or inoperable, the very issue that brought the existence of the pipeline to the attention of the Menards in this case. In determining whether the "nature" of the servitude has changed, we have considered the Louisiana Civil Law Treatise on the subject, which provides:

The owner of the dominant estate may not unilaterally change the nature of a servitude, its location, or its purpose. For example, he may not transform a discontinuous servitude into a continuous servitude; he may not relocate the servitude without the consent of the owner of the servient estate; and he may not convert a servitude of passage for the construction of a highway into a servitude for recreational purposes, a railroad right of way into a servitude for the operation of a cotton gin, or an under-the-ground pipe line servitude into a servitude for the maintenance of above-ground facilities. In such cases, the owner of the dominant estate is not using the servitude within the limits of his title or possession, but is attempting to establish a new servitude or to modify the servitude by unilateral action. He may be liable, therefore, to the owner of the servient estate for damages for aggravation of the condition of the servient estate, or even if the condition of the servient estate has not been aggravated.

A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 7:6 (4 Louisiana Civil Law Treatise 2018) (footnotes omitted)(emphasis added).

The trial court concluded that although the underground pipeline was "changed from an open ditch to a subsurface pipe in 1997[,]" "the right of way for the irrigation canal has been maintained and consistently used for irrigation for agricultural crops for many years. The subsurface pipe has been utilized for that, and no other, since 1997." Additionally, the testimony of the Clements was that the pipe was in the same location as the prior apparent canal. Furthermore, the trial court concluded that the term "irrigation canal," as used in the 1952 Agreement, encompasses a subsurface pipe for agricultural irrigation in this case.

We disagree with the trial court's conclusion. The 1952 Agreement describes an apparent servitude, which is emphasized by the requirement that Willie Clement maintain the canal levies. Additionally, although the new underground pipe is in the same location and serving the same purpose as the prior canal, the nature of the servitude has been unilaterally changed by the Clements. Thus, when the Clements filled in the apparent servitude in 1997, they ceased to use the servitude granted to them by the language in the 1952 Agreement. Considering that any "[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate," we find the trial court was manifestly erroneous. La.Civ.Code art. 730.

CONCLUSION:

The trial court's judgment in favor of the Clements is reversed. A permanent injunction in favor of Appellants, the Menards, is granted and the case is remanded to the trial court for further proceedings as may be necessary in conformity with this ruling. Costs of this appeal are assessed to Appellees, the Clements: Norris Clement, Barbara Clement Richard, and Gregory Paul Dore.

REVERSED; PERMANENT INJUNCTION IN FAVOR OF THE MENARDS IS GRANTED; CASE REMANDED FOR FURTHER PROCEEDINGS.

Pickett, J., dissents and assigns written reasons.

Conery, J., concurs and assigns written reasons.

Savoie, J., dissents and assigns written reasons.

Pickett, J., dissenting with written reasons.

I respectfully dissent.

In 1952, the plaintiffs' ancestor was granted the right to operate and maintain an irrigation canal situated on the defendants' property by the defendants' ancestor in title. The act establishing the servitude was recorded in the public records. In 1997, the plaintiffs installed plastic pipe to transport the irrigation waters and covered the pipe. They have continued to transport irrigation water via this underground pipe without interruption for twenty-two years since installing the pipe. The defendants purchased the property on which the irrigation canal is situated after the plaintiffs installed the plastic pipe and filled the canal. The act of sale transferring title to the defendants does not mention the irrigation canal/pipeline but provides that the sale is made "subject to any easements, rights-of-way and restrictions of record." The servitude at issue clearly was "of record." The plaintiffs filed suit in 2017 seeking an injunction allowing them on the defendants' property, alleging that the defendants refused to allow them to repair a leak on a section of the underground pipe located in the servitude. The trial court found that the plaintiffs were entitled to a permanent injunction "restraining, enjoining and prohibiting [the defendants] from harassing or threatening them and from interfering with the operation, maintenance and repair of the irrigation canal" as described in the 1952 act granting the servitude.

The defendants argue that the right of way granted by their ancestor-in-title was an apparent servitude and that the plaintiffs changed the nature of the servitude to a non-apparent servitude when they installed plastic pipe where the irrigation canal was situated and filled the canal. They maintain that the public records do not reflect that the servitude granted is a non-apparent servitude as required by La.Civ.Code art. 739 ; therefore, the trial court erred in granting judgment in favor of the plaintiffs.

As noted by the majority, the 1952 act granting the right-of-way at issue provides that Marcel Guidry sold to "Willie Clement, ..., his heirs and assigns a right of way 24 feet in width for the said irrigation canal, said right-of-way to continue for as long a time as the said irrigation well and pumping plant is operated by either the said Willie Clement, his heirs or assigns." The act further set forth the specific location of the canal on Mr. Guidry's property and obligated Mr. Clement "to take good and proper care of the canal levies and not permit any water to escape or cause any damage to growing crops on land of Marcel Guidry, his heirs or assigns."

The majority cites Professor Yiannopoulos' discussion of the limitations of the dominant estate owner's rights with regard to changing the nature of a servitude, its location or its purpose. Professor Yiannopoulos' examples of unacceptable changes by a dominant estate owner include changing a non-continuous servitude to a continuous servitude, complete relocation of a servitude on the servient estate, changing a railroad right-of-way to a servitude to operate a cotton gin, and conversion of an underground pipe line servitude to an above ground facility. While at first glance the last example might appear to support the defendants' claim, it does not. The installation of an above ground facility limits the servient estate owner's use of his property thereby making the pipe line servitude more onerous on the servient estate. In each of these instances, the changes made by the dominant estate caused the servitude to be more onerous. In the instant case, the installation of an underground pipe in the same location of an irrigation canal made the servitude less onerous. Neither the nature nor the purpose of the servitude was changed. The installation of the underground pipe actually improved the system for which the servitude was established by eradicating the need for mosquito and rodent control, as well as other maintenance issues that accompany an open canal.

The majority also finds that the 1952 Agreement describes only an apparent servitude because the agreement required Mr. Clement, and now the plaintiffs, to maintain the canal levies. However, the agreement makes it clear that the purpose of maintaining the levies is to "not permit any water to escape or cause any damage to the growing crops or land" of Mr. Guidry. The plaintiffs remain bound by that requirement such that they must maintain their irrigation pipe to insure that no water escapes or causes damage to the defendants' property.

In my view, the plaintiffs' conversion of the irrigation canal to an irrigation pipe does not change the nature of the original servitude granted by Mr. Guidry-its nature remains that of an irrigation canal. Nor does it change the location or purpose of the servitude. Additionally, the change made the servitude less burdensome on the servient estate.

The plaintiffs complied with La.Civ.Code art. 739's requirement that non-apparent servitudes be recorded and thereby protected the existence of their servitude. The act establishing the servitude does not define or limit the irrigation canal to being an apparent servitude; however, it does specifically define the location and existence of a right of way for an irrigation canal.

I would affirm the judgment of the trial court.

CONERY, J., concurs and assigns reasons.

I join in the majority opinion, but write separately as, in my opinion, consideration of the issue presented must begin with discussion of La.Civ.Code arts. 729 and 730. It is the application of that framework that reveals the error in the trial court's ruling.

Louisiana Civil Code Article 729 provides: "Legal and natural servitudes must be altered by agreement of the parties if the public interest is not affected adversely." There is no indication that an agreement between the Menards and the Clements, verbal or otherwise, altered the initial servitude. It is instead apparent that the parties' dispute stems from the original, 1952 Agreement which called for an "irrigation canal." The Clements now wish to expand the scope and meaning of "irrigation canal" as used in that document to include operation of a replacement underground irrigation pipeline which they undisputedly installed without the knowledge or permission of the Menards. Indeed, the survey of the property purchased by the Menards does not show that there is an underground irrigation pipeline across their property, and because the pipeline is buried, there is no indication of its existence on the surface of the property.

In the face of such dispute, La.Civ.Code art. 730 dictates that: "Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate." Article 730's foundational nature is apparent in its comment, which describes this concept as the "cardinal rule of interpretation[,]" and indicates that "instruments purporting to establish predial servitudes are always interpreted in favor of the owner of the property to be affected." La.Civ.Code art. 730 cmt. (b). The comment further references longstanding supreme court jurisprudence explaining that " 'servitudes are restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law.' " Id. (quoting Parish v. Municipality No. 2 , 8 La.Ann. 145, 1853 WL 4186 (La.1853), cited with approval in Buras Ice Factory, Inc. v. Dep't of Highways , 235 La. 158, 103 So.2d 74 (1958) )(also citing McGuffy v. Weil , 240 La. 758, 125 So.2d 154 (1960) ). See Palomeque v. Prudhomme , 95-0725 (La. 11/27/95), 664 So.2d 88 ; Ryan v. Monet , 95-1332 (La.App. 4 Cir. 12/28/95), 666 So.2d 711. See also A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 6.25 (4 La. Civ. L. Treatise 2018).

It is unquestioned here that the parties' competing claims arise out of the change in the nature of servitude from "apparent" to "non-apparent" and the manner of exercise of the predial servitude contained within the 1952 Agreement. By reference to La.Civ.Code art. 730, on this latter point, resolution favors the Menards.

In Southern Amusement Co., Inc., v. Pat's of Henderson Seafood & Steak , 03-767 (La.App. 3 Cir. 3/31/04), 871 So.2d 630, this court recognized Article 730's directive as well as the underlying principle that the intention of parties to place a charge on the servient estate, as well as the extent of that charge, must be expressed on the face of the title document creating the purported predial servitude. Reviewing the matter before it, the panel found "ambiguity in the attempted establishment of a predial servitude" contested between the parties and found, therefore, "that the issue must be resolved in favor of [the servient estate.]" Id. at 635. The same type of analysis is applicable in this case as the parties dispute the meaning of "irrigation canal."

The trial judge's well intentioned efforts to resort to equity to "expand" the meaning of irrigation canal to encompass a buried "irrigation pipeline" is legally incorrect, and as such, we owe no deference to his decision and must decide the case de novo . See Chambers v. Village of Moreauville , 11-898 (La. 1/24/12), 85 So.3d 593. In Dautreuil v. Degeyter , 436 So.2d 614, 618 (La.App. 3 Cir. 1983), a panel of this court rejected such an equitable remedy, instead finding it appropriate to construe the servitude at issue by the terms of its originating agreement. It determined that the servitude's contractual nature controlled and explained that "[w]hen a servitude of passage is created by contract, that contract regulates the extent of the servitude" pursuant to La.Civ.Code art. 697, "keeping in mind that servitudes are limitations on ownership and, as such, are not favored in law; thus, any doubt as to the existence, extent or manner of exercise of a predial servitude is to be resolved in favor of the servient estate, [La.Civ.Code] art. 730."

Similarly, in Dickson v. Arkansas Louisiana Gas Co. , 193 So. 246, 247 (La.App. 2 Cir. 1939), the second circuit looked to the language of the instrument establishing a servitude in which the dominant estate was granted a right-of-way for the laying of "a gas main for the distribution of natural or artificial gas" through the servient estate. The court rejected the argument that the subject language encompassed a right to dig "an entirely new ditch, separate and independent of the old one" in order to lay a new main. It instead noted that the servitude referenced the use of land for "a gas main," not "two or more mains," and it did not permit the use of "double the quantity of land for two mains than was required for one." Id. at 248-49. While recognizing that the width of the right-of-way was not specified in the instrument, it found that "[t]he width necessary to make an excavation adequate to receive the main originally, determined the limits of the grantee's right in that respect, under said instrument." Id. In doing so, the second circuit returned to a contractual analysis, explaining that "[i]nstruments of the character of that before us are strictly construed because rights which would not otherwise have existence are thereby created. Little or nothing should be inferred in construing or enforcing them[.]" Id. at 249.

In this case, the 1952 Agreement permitted a right-of-way for an "irrigation canal." To the extent that term now seems to be ambiguous in terms of the respective parties' interpretation of that term, it is clear by the instruction of Civil Code Article 730 and by reference to jurisprudence such as Southern Amusement , 871 So.2d 630, that the trial court was required to resolve ambiguity in favor of the servient estate, the Menards.

Accordingly, I join in the majority's finding in favor of the Menards and agree to the disposition outlined in the majority's decree.

Savoie, J. dissenting with written reasons.

I respectfully dissent for the reasons assigned by Judge Pickett, as well as for the following reasons. In my view, the purpose of the servitude, as made clear by the 1952 act granting the servitude, was to allow for the passage of water for irrigation purposes. The 1952 act, as written, encompasses both an apparent and a nonapparent servitude for that purpose.

Therefore, I would affirm the trial court's judgment.

      The Menards are the trustees of The Menard Family Revocable Living Trust, which has naked ownership of the property on which the irrigation canal crosses.

      While the Menards argue in their first assignment of error that the right-of-way was not in the 1997 survey or their act of sale document, that is of no moment in this case. "The servitude need not appear in the act by which the present owner acquired the servient estate nor in his chain of title." A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 6:23 (4 Louisiana Civil Law Treatise 2018). "[R]eal obligations accompany the land in the hands of subsequent vendees without any mention thereof in the acts of transfer." Clark v. Reed , 122 So.2d 344, 349 (La.App 2 Cir. 1960). Additionally, the act of sale document specifically states it is "subject to any easements, rights-of-way and restrictions of record."

      This case is resolved by addressing the Menards' Assignment of Error Number Two: whether, the trial court erroneously conflated the grant of title of an apparent predial servitude for an irrigation canal as encompassing a non-apparent predial servitude for an underground pipeline.


author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Anthony YOUNG
    NO. 2018-KA-0847
    Court of Appeal of Louisiana, Fourth Circuit.
    May 1, 2019
    Leon Cannizzaro, District Attorney, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119 COUNSEL FOR APPELLEE
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158 COUNSEL FOR APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Joy Cossich Lobrano

The defendant, Anthony Young ("Defendant"), appeals from jury verdicts that convicted him of possession of hydrocodone, tramadol, and oxycodone. After reviewing the record and applicable law, we affirm his convictions and sentence.

On August 15, 2014, the State charged Defendant and co-defendant Floyd Boudreaux in an eleven count bill of information. The State charged Defendant with aggravated assault on a peace officer with a motor vehicle (count 5), a violation of La. R.S. 14:37.6(A) and aggravated flight and failure to stop a motor vehicle that endangered human life (count 6), a violation of La. R.S. 14:108.1(C).

Counts 8, 9 and 10 charged Defendant and Boudreaux with possession of hydrocodone and oxycodone in violation of La. R.S. 40:967 and tramadol without a prescription in violation of La. R.S. 40:1238.1 (now La. R.S. 40:1060.13 ).

Count 11 charged Defendant with being a felon in possession of a firearm in violation of La. R.S. 14:95.1.

A jury trial commenced on June 28, 2016, and concluded on June 30, 2016, with the jury finding Defendant guilty on courts 5, 6, 8, 9 and 10. Defendant's post-trial motions for new trial and post-verdict judgment of acquittal were denied.

On July 15, 2016, Defendant was sentenced to five years on counts 5, 8, 9 and 10 and to two years on count 6, with the sentences to run concurrently. The State filed a multiple bill of information charging Defendant as a recidivist as to count 5 and, on September 30, 2016, the trial court adjudicated him a third felony offender, vacated his previous sentences, and resentenced him to eight years.

ERRORS PATENT

Our review for errors patent on the face of the record reveals one. In sentencing Defendant as a third offender, the district court failed to stipulate that the sentence be served without the benefit of probation or suspension of sentence in accordance with La. R.S. 15:529.1(G). However, La. R.S. 15:301.1(A) provides, in pertinent part: "[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement" that those restrictions apply. Our jurisprudence recognizes that "this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute." State v. Williams , 00-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799 ; State v. Dowell , 16-0371, pp. 4-5 (La.App. 4 Cir. 8/10/16), 198 So.3d 243, 246.

STATEMENT OF FACTS

On June 16, 2014, New Orleans Police Department ("NOPD") Detective Chad Cockerham, while in plain clothes and on foot, was conducting undercover surveillance of narcotics and weapons activity near the Desire Housing Development when he observed Defendant seated in the driver's seat of a black SUV in the area of Maurice Duncan and Treasure Streets. Det. Cockerham recognized Defendant from past encounters and noted that there was an active warrant for Defendant's arrest. The detective's attention was drawn to Defendant by the presence of an assault rifle sitting on the dashboard of the vehicle.

Det. Cockerham notified other officers to make an investigatory stop of Defendant's vehicle. NOPD Officers Willard Pearson and Brandon Kelly arrived in a marked unit and Det. Cockerham rode in the back seat. They observed Defendant's vehicle approach the intersection of Benefit and Louisa Streets at a high rate of speed and disregard the stop sign. Ofc. Pearson activated the unit's siren and lights in pursuit. Defendant disregarded the officers' attempt to stop his vehicle and led the officers on an erratic twenty-minute high-speed chase from the east bank of the river, across the Crescent City Connection and onto the Westbank Expressway, where Defendant's vehicle stalled after colliding with two civilian vehicles. During the chase, Defendant drove against traffic at dangerously high speeds, narrowly averting a head-on collision with another police unit.

As Defendant's vehicle came to a stop, several officers approached Defendant and his passenger, Boudreaux, ordering them to exit the vehicle. Boudreaux complied with the officers' demands but Defendant refused. Ofc. Kelly tased Defendant to subdue and handcuff him. Officers searched Defendant's vehicle but did not recover a weapon. They did, however, seize an unmarked pill bottle from the vehicle's front seat cup holder, which later proved to contain tramadol. Officers also seized oxycodone and hydrocodone, which were located in the vehicle's front console. Defendant was charged with possession of narcotics and cited for several traffic violations: reckless operation of a vehicle by disregarding multiple stop signs; failure to heed the officers' signal to stop; traveling in the wrong direction on a one-way street; hit and run; and operating the vehicle with a suspended driver's license.

Ofc. Pearson testified and corroborated Det. Cockerham's testimony. Ofc. Pearson added that he saw a rifle thrown from the front seat passenger window of Defendant's vehicle into a heavily weeded area during the first three minutes of the chase. The weapon was never recovered.

On the day in question, NOPD Officer Lawrence Weathersby was coming on duty when he heard the dispatch of pursuit of a black SUV. Ofc. Weathersby was traveling on the Interstate high rise bridge and saw Defendant's vehicle make a U-turn into oncoming traffic and into the path of his police unit. Ofc. Weathersby took evasive action and avoided a head-on collision with the vehicle. Ofc. Weathersby joined the pursuit and witnessed Defendant's vehicle run a red light, disregard stop signs, and collide with two civilian vehicles, which ultimately disabled Defendant's vehicle on the Westbank Expressway. When Defendant ignored police commands to show his hands and exit his vehicle, he was tased to ensure his removal from the vehicle.

The State and defense stipulated that if Dwayne Gilyot were called to testify, he would be qualified as an expert in the testing and analysis of controlled substances. They agreed that Gilyot would verify that the ten pills confiscated from Defendant's vehicle testified positive for tramadol, oxycodone and hydrocodone.

NOPD Officer Joseph Pollard, an expert in fingerprint analysis, testified he fingerprinted Defendant on June 28, 2016. He identified the card bearing those prints. Ofc. Pollard reviewed a "cert pack" from Defendant's earlier conviction for possession of cocaine, compared the fingerprints, and concluded that both sets belonged to Defendant.

The defense called co-defendant Boudreaux, who asserted his Fifth Amendment privilege to all of the defense counsel's questions.

ASSIGNMENT OF ERROR NUMBER 1

In the first of two assignments of error, Defendant argues the evidence is insufficient in that no rational juror could have found that the State proved beyond a reasonable doubt that he exercised dominion or control over any of the drugs found in the vehicle as it was rented at all times. Moreover, Defendant argues that it was impossible for him to know what the sealed pill bottle found in the vehicle's cup holder contained.

The constitutional standard for testing 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

"In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier-of-fact that all of the elements of the crime have been proven beyond a reasonable doubt." State v. Sosa, 05-0213, p. 6 (La. 1/19/06), 921 So.2d 94, 99. "Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, 'assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.' " Id. (quoting La. Rev. Stat. 15:438.)

"[W]hen a jury rationally rejects the hypothesis of innocence advanced by the defendant, that hypothesis fails, and 'the defendant is guilty unless there is another hypothesis which raises a reasonable doubt,' i.e., an 'alternative hypothesis ... sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.' " Id. , 05-0213, p. 7, 921 So.2d at 99 (quoting State v. Captville, 448 So.2d 676, 680 (La. 1984) )." The trier-of-fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness." Sosa, 05-0213, p. 11, 921 So.2d at 101.

To support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967, the State must prove that a defendant knowingly and intentionally possessed the drug. State v. Perron, 01-0214, p. 6 (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. Guilty knowledge is an essential element of the crime of possession of illegal drugs. State v. Major , 03-3522, p. 8 (La. 12/1/04), 888 So.2d 798, 803. However, since knowledge is a state of mind, it need not be proven as fact, but rather may be inferred from the circumstances. State v. Trahan, 425 So.2d 1222, 1227 (La. 1983).

"The State need not prove that [a] defendant was in actual possession of the narcotics found; constructive possession is sufficient to support conviction." Perron, 01-0214, p. 6, 806 So.2d at 928. "A person not in physical possession of narcotics may have constructive possession when the drugs are under that person's dominion and control," (citing State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4th Cir. 1990) ). A determination of whether a defendant had constructive possession depends on the circumstances of each case. Id. , (citing State v. Cann, 319 So.2d 396, 397 (La. 1975) ). In determining whether a defendant exercised the requisite dominion and control, factors which may be considered are knowledge that illegal drugs are in the area, relationship with one found to be in actual possession, access to the area where drugs were found, physical proximity to the drugs, and evidence that the area was frequented by drug users. Id. (citing State v. Reaux, 539 So.2d 105, 108 (La.App. 4th Cir.1989) ).

In Major , 03-3522, p. 8, 888 So.2d at 802-03, the Supreme Court stated:

The evidence at trial established that defendant had exercised dominion and control over the cocaine hidden underneath the dashboard of the car by virtue of his dominion and control over the vehicle as the driver and professed renter. Ortega v. United States, 270 F.3d 540, 545 (8th Cir.2001) ; see also State v. Walker, 03-188, p. 7 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65-66, writ denied, 03-2343 (La. 2/6/04), 865 So.2d 738 (holding that the driver and sole passenger had custody of the car and the cocaine found in the car was within his immediate control even though ownership of the vehicle was not proven). As driver and ostensible renter of the vehicle, the defendant had complete and authorized access to the glove box and dashboard area where the drugs were found. Furthermore, the location of the drugs was within the reach of and accessible to the defendant as the driver. These facts alone are sufficient to convince a rational trier of fact beyond a reasonable doubt that the defendant exercised ample control and dominion over the cocaine to constitute the required element of constructive possession.

In State v. Duncan , 08-1579, p. 10 (La.App. 4 Cir. 6/17/09), 15 So.3d 1171, 1177, we stated:

[W]e find that defendant exercised the requisite dominion and control sufficient to establish constructive possession of the narcotics in this case; Agent Baroni's canine gave a positive signal for the odor of narcotics in the area between the front and rear seats of the suspect vehicle; the search revealed cocaine hidden under several blankets, pillows and a jacket on the rear seat behind where defendant was seated[.]

See also , State v. Morgan, 557 So.2d 977, 980 (La.App. 4th Cir. 1990) (defendant was in constructive possession of gun and narcotics found under the driver's seat where he was the permissive user of the vehicle from owner with whom he had a personal relationship); State v. Manson, 01-0159, p. 17 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761-62 (defendant had at least constructive possession of cocaine where he was the driver of the vehicle, despite testimony the car belonged to another person); State v. Williams, 01-0644, p. 8 (La.App. 5 Cir. 11/27/01), 802 So.2d 909, 914 (defendant in constructive possession of cocaine that was in plain view within the car he was driving, although the car may have belonged to another person); State v. Ashlock, 526 So.2d 511, 512-13 (La. App. 3 Cir. 1988) (defendant's use of an automobile was sufficient to show he had constructive possession of marijuana found in the automobile, even though it was never established who the registered owner was); State v. Walker, 03-0188, p. 7 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65-66 (driver had custody of the car and the cocaine found in the car was within his immediate control even though ownership of the vehicle was not proven; location of the drugs was within the reach of, and accessible to, defendant as the driver.)

Guilty knowledge, an essential element of possession of illegal drugs, is present here. Defendant refused to stop his vehicle when signaled to do so by police. In addition, he led officers on a long and dangerous high-speed chase, almost causing a head-on collision with the police unit driven by Ofc. Weathersby. The jury could have reasonably relied upon Defendant's erratic behavior during the stop to find he had the requisite guilty knowledge of the drugs located in the car.

Defendant relies on State v. LeBlanc, 01-1503 (La.App. 3 Cir. 6/5/02), 819 So.2d 424, in support of his position that he could not have been found to exercise dominion and control over the drugs found in his car. This reliance, however, is misplaced. The LeBlanc court concluded that a rational fact finder could not have concluded beyond a reasonable doubt that the defendant driver knowingly possessed the marijuana found in a knapsack on the front passenger seat of his car. Id., 01-1503, p. 8, 819 So.2d at 429. The court noted that, although the defendant was the owner of the vehicle and the drugs were easily accessible from his location as driver, the evidence was insufficient to prove he exercised dominion and control over the knapsack and its contents. Id. In addition, a passenger in the vehicle claimed, both at the scene and at trial, to be the owner of the knapsack as well as the drugs contained therein. None of these hypotheses of innocence are present in the case sub judice .

Viewing the evidence in the light most favorable to the prosecution, a rational juror could have concluded that Defendant constructively possessed the narcotics recovered from the vehicle. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant argues that the non-unanimous verdicts as to his felony convictions for aggravated assault and the possession of oxycodone, hydrocodone and tramadol are unconstitutional.

The Supreme Court has addressed this issue. In State v. Bertrand , 08-2215, p. 6 (La. 3/17/09), 6 So.3d 738, 742, the Court noted, "defendants argue that the use of non-unanimous verdicts [has] an insidious racial component, allow[s] minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed." The Bertrand Court found that a non-unanimous twelve-person jury verdict was constitutional and that La. C.Cr.P. art. 782 did not violate the Fifth, Sixth, and Fourteenth Amendments. Id. , 08-2215, p. 8, 6 So.3d at 743.

This assignment of error has no merit.

CONCLUSION

Based on the foregoing, Defendant's convictions and sentence are affirmed.

AFFIRMED.

Chase, J., concurs in the result.

      Defendant was also convicted of aggravated flight and aggravated assault on a police officer, but these convictions are not addressed in his appeal.

      This appeal pertains to Defendant Young only.

      The first four counts of the bill, which pertained only to Defendant, were severed from the remaining counts and later nolle prossed .

      Count 7 of the bill charged Boudreaux with being a felon in possession of a firearm.

      The verdicts as to the possession of hydrocodone, tramadol and oxycodone convictions were by 10-2 jury votes. The aggravated flight verdict was returned by a unanimous jury, and the aggravated assault verdict was rendered by a jury vote of 11-1.

      Defendant's two prior drug convictions were from the Twenty-Fourth Judicial District Court in Jefferson Parish Case Nos. 2008-1319 and 2007-1415.

      Det. Cockerham posited that Defendant discarded the assault weapon during the chase. He dispatched units to retrace the flight path to locate the weapon with no success.

      Flight is a circumstance from which guilt can be inferred. State v. Smith, 98-2645, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 314, 317-18 ; State v. Recasner, 98-2518, p. 3 (La.App. 4 Cir. 12/22/99), 750 So.2d 336, 338.

      In 2018, La. C.Cr.P. art. 782 was amended to require an unanimous verdict in cases for an offense in which the punishment is necessarily confinement at hard labor. However, the provision specifically states the amendment is applicable to felonies committed on or after January 1, 2019. See Acts. 2018, No. 493, § 1, La. C.Cr.P. art. 782.