author: MICHAEL E. KIRBY, Judge. LOVE, J.,

text:
    Don COURTADE v. DEPARTMENT OF FIRE.
    No. 2009-CA-1100.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.

      Louis L. Robein, Jr., Kevin R. Mason, Robein Urann Spencer Picard & Cangemi, APLC, Metairie, LA, for Appellant.

      Shawn Lindsay, Assistant City Attor-. ney, Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Appellee.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

| ,New Orleans Firefighter Don Courtade appeals a decision of the Civil Service Commission (“Commission”), denying his appeal of the discipline imposed by the appointing authority, the City of New Orleans Department of Fire (“NOFD”). Mr. Courtade contends that his actions were not prejudicial to the efficient operation of the NOFD and that the discipline imposed — a ninety (90) suspension-was not commensurate with the offense — failing to report for a hurricane emergency activation. We affirm the Commission’s finding that Mr. Courtade should be disciplined and suspended, but we amend that judgment to reduce the length of his suspension from ninety (90) to thirty (30) days.

FACTS AND PROCEDURAL HISTORY

The NOFD issued a ninety-day suspension to Mr. Courtade for violating Article 4 of the NOFD Hurricane Guidelines, which mandates that certain fire suppression personnel report for duty when an emergency activation is called. Mr. Courtade failed to report for duty at 7:00 p.m. on August 31, 2008, during the recall for Hurricane Gustav. He appealed his suspension to the Commission, which appointed a hearing officer to receive testimony.

12At the hearing, the Superintendent of Fire, Charles Parent, testified for the NOFD. Supt. Parent testified that the NOFD has stressed for years that firefighters should evacuate their families early as it is important for firefighters to know their families are safe. In the case of Hurricane Gustav, Supt. Parent stated firefighters were told on Wednesday, August 27, 2008, before Hurricane Gustav was to make landfall, to begin making preparations to ensure the safety of family and property. Supt. Parent explained that firefighters work a twenty-four shift and then are off-duty the following forty-eight hours. Supt. Parent testified that the announcements were made early in an attempt to give every firefighter ample time to safely evacuate family members and make other storm preparations during their forty-eight hours off-duty. Supt. Parent identified a hurricane preparation announcement dated Wednesday, August 27, 2008, which provided that all annual leave was canceled and that all essential personnel were to be readily available throughout the weekend, beginning at noon on Friday, August 29, 2008. Supt. Parent testified that all firefighters were to report for duty at 7:00 p.m. on Sunday, August 31, 2008. Supt. Parent revealed that the announcement to report for duty at 7:00 p.m. on Sunday, August 31, 2008, was dispersed through both the district chiefs and via radio announcements starting on Thursday, August 28, 2008. Supt. Parent stated that Mr. Courtade failed to report for duty on Sunday, August 31, 2008.

Supt. Parent testified that the first role of firefighters during hurricane activation is to report for duty and do as they are assigned. He acknowledged that the duties of firefighters during hurricane activation include more than just firefighting, explaining that firefighters set up a warehouse where food and equipment are taken in for use by every other department in city government, not just firefighters.

| .¡Supt. Parent explained that on September 8, 2008, he issued emergency suspensions to Mr. Courtade and the other firefighters who failed to report for duty by 7:00 p.m. on August 31, 2008, during the emergency activation for Hurricane Gustav. Supt. Parent testified that tension arises from those firefighters who do show up and work during a recall, as the NOFD learned during Hurricane Katrina. Pursuant to the NOFD rules, the suspension proceeded before a NOFD peer review board, which consisted of NOFD members. In this matter, two members voted not guilty and one voted guilty. After receiving notice of the NOFD peer review board vote, Supt. Parent reviewed the information, found Mr. Courtade did not report until Monday, September 1, 2008, and imposed the ninety (90) day suspension.

Mr. Courtade testified that he was off-duty Wednesday, August 27, 2008 and Thursday, August 28, 2008, but could not recall what he was doing on those two days. Mr. Courtade stated he was on-duty Friday, August 29, 2008, from 7:00 a.m. until 7:00 a.m. Saturday, August 30, 2008. Mr. Courtade stated that he believed he was to call in at 7:00 p.m. on Sunday, August 31, 2008, and admitted that he knew when he got off work Saturday morning, that he would be required to return to duty at some point with the storm approaching. Mr. Courtade admitted that he did not call in Sunday night. Mr. Courtade further testified that he received a call at some point during the daylight hours on Sunday, August 31, 2008, from Capt. Jurisich. Mr. Courtade testified that his platoon did not have a captain at the time of Hurricane Gustav, and Capt. Jurisich contacted him with necessary NOFD information.

Mr. Courtade stated he informed Capt. Jurisich that he would report as soon as possible. He explained that from the time he got off-duty at 7:00 a.m. on Saturday, August 30, 2008, he was busy evacuating his parents and son to Tunica, | ^Mississippi, and then his pregnant girlfriend to Zachary, Louisiana. Mr. Cour-tade testified he was also busy moving seven tow trucks and a box truck, which belonged to his towing company, and several personal vehicles. He claimed that by the time he received the call from Capt. Jurisich to report for duty, he was unable to return to the city by 7:00 p.m., as he was returning from Tunica, Mississippi. Mr. Courtade testified that he intended to report for duty and stopped in Picayune, Mississippi, to purchase personal supplies that firefighters are supposed to have during an activation. He explained that Capt. Jurisich informed him that the firefighters would be going to NASA and that once the gate to NASA was closed, he would not be allowed inside the gate, but could wait at the firehouse. Mr. Courtade did not want to arrive at the firehouse and be there by himself for the storm. He informed Capt. Jurisich that he would make it as close as he could to Baton Rouge and make it into New Orleans once he could, to which Capt. Jurisich responded, “okay.” Mr. Courtade drove to Zachary, Louisiana, and stayed there on Sunday, August 31, 2008. The following morning, he again spoke with Capt. Jurisich, who informed him that the firefighters would return that day to the firehouse. He then left Zachary to travel to the firehouse. Mr. Courtade testified that he encountered difficulties returning due to the weather, but reported for duty on Monday, September 1, 2008, at 9:30 p.m.

The hearing officer prepared a report for the Commission. After reviewing the report, the evidence, and the testimony, the Commission denied the appeal, upholding the discipline imposed on Mr. Cour-tade.

\ STANDARD OF REVIEW

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const. art. X, § 12; Cornelius v. Dept. of Police, 2007-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is | (¡commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

DISCUSSION

Mr. Courtade concedes that he failed to report for duty on August 31, 2008, after receiving notification of the emergency activation, but argues that the NOFD failed to prove his action was prejudicial to the public service and detrimental to the efficient operation of the NOFD. The NOFD argues his failure to appear did create a real and substantial risk to the NOFD.

Supt. Parent testified that the NOFD learned during Hurricane Katrina of the tension that arises between those who report for duty during emergency activation and those who fail to report for duty during emergency activation. Supt. Parent explained that firefighters are needed to fulfill firefighting duties during an emergency activation, as well as non-firefighting duties.

The Commission found Mr. Courtade’s failure to report for duty during the emergency activation was prejudicial to the public service and created a real and substantial risk to the NOFD. The Commission’s finding reads as follows:

After the recent chaotic experience of Hurricane Katrina, all emergency responders had a clear template for the actions to be taken. The Fire Department in particular had learned hard lessons and had adopted new Emergency Preparation policies. Appellant’s personal situation was more complicated than most, with multiple family members and property requiring his attention; however, he knew all of this prior to the storm, and |7he had more time than most to address his needs due to his individual shift schedule. His belief that the department order only required him to call in, rather than report for duty, was unreasonable.

Recently, in Bankston v. Dept. of Fire, 2009-1016, p. 5 (La.App. 4 Cir. 11/18/09), 26 So.3d 815, this Court found that failure of a firefighter to report on August 31, 2008, for the emergency activation which arose as a result of Hurricane Gustav, was prejudicial to the public service and created a real and substantial risk to the efficient operation of the NOFD. Therein, the Court noted that the testimony revealed that manpower is needed by the NOFD in the event of a hurricane. Further, the Court noted that the testimony revealed that the morale of the firemen who reported for duty would be affected if those who did not report were not disciplined. Id.

Therefore, in this instance, the Commission correctly concluded that Mr. Cour-tade’s failure to report was prejudicial to the public service and created a real and substantial risk to the efficient operation of the NOFD. Given our finding that the Commission correctly concluded that Mr. Courtade should be disciplined, we turn to the issue of whether the discipline imposed was commensurate with the offense.

Mr. Courtade contends that the discipline imposed — a ninety (90) day suspension-was not commensurate with the offense — failing to report. He argues the NOFD erred in not considering the circumstances surrounding Hurricane Gustav as mitigating factors. The NOFD counters that the discipline imposed was intended to send a strong message to all firefighters that the failure to report in an emergency situation will not be tolerated.

Is At the hearing, Mr. Courtade testified that once he was off-duty on Saturday, August 30, 2008 at 7:00 a.m., in addition to evacuating his parents to Tunica, Mississippi, and his pregnant girlfriend to Zachary, Louisiana, he worked alone moving his seven tow trucks, a box truck, and other personal vehicles to Picayune, Mississippi, Covington, Louisiana, and Zachary, Louisiana. He also cited the unfortunate circumstances surrounding Hurricane Gustav, such as roadblocks and the short notice of recall, as mitigating factors. However, as the Commission stated, Mr. Courtade knew he would have to evacuate his family and knew that he would need to move the trucks belonging to his towing company, both of which would require time and attention in the event of a storm. Nonetheless, Mr. Courtade remained in contact with Capt. Jurisich while traveling and reported to duty the following day.

In Bankston, supra, this Court found the Commission acted arbitrarily in finding a ninety (90) day suspension commensurate with Mr. Bankston’s failure to report and reduced the suspension to thirty (30) days, noting the mitigating circumstances dictated a less severe penalty be imposed. 2009-1016, p. 6, 26 So.3d at 22. The Court noted the following mitigating factors: 1) Mr. Bankston had completed his regular shift on Sunday, August 31, 2008 at 7:00 a.m. and was called to report for emergency activation by 7:00 p.m. that same day, leaving him only twelve hours to evacuate his wife, who had a medical condition requiring assistance, and their infant child to Houston; 2) he attempted to return to the city before the hurricane made landfall but roadblocks and traffic contraflow prevented him from returning; 3) he remained in constant contact with his supervisor while away; and 4) the NOFD presented no evidence that Mr. Bankston’s failure to report was premeditated.

|9In this case, the Commission relied upon Supt. Parent’s conclusion that Mr. Courtade had at least thirty-six (36) hours to evacuate his family and personal property. However, considering the work schedules of the NOFD firefighters (24 hours on/48 hours off), we find little, if any, distinction between the circumstances in Bankston and those in this case. From Wednesday, August 27, 2008, when the NOFD first issued a hurricane preparation announcement, notifying all personnel to begin making personal preparations for Hurricane Gustav, to 7:00 p.m. on Sunday, August 31, 2008, the time to report for emergency activation, both Mr. Bankston and Mr. Courtade had ample time to evacuate their families. Like Mr. Bankston, Mr. Courtade encountered road blocks, traffic contraflow and bad weather while evacuating family from the city and trying to return to report to duty. While we agree with the appointing authority and the Commission that Mr. Courtade should be disciplined, we find a ninety (90) day suspension to be arbitrary and excessive in this case. Therefore, following the Court in Bankston, we will reduce the ninety (90) day suspension to a thirty (30) day suspension.

DECREE

Accordingly, we affirm Mr. Courtade’s suspension, but reduce the discipline imposed from a ninety (90) day to a thirty (30) day suspension.

AFFIRMED AS AMENDED.

LOVE, J., dissented and assigned reasons.

LOVE, J.,

dissents and assigns reasons.

|,I respectfully dissent from the majority’s amendment of the Civil Service Commission’s (hereinafter “the Commission”) decision.

The appointing authority must prove by a preponderance of the evidence that the complained-of conduct occurred and that the conduct impaired the efficient operation of the entity (legal cause). Banquet v. Department of Welfare, 620 So.2d 501, 505 (La.App. 4 Cir.1993). “In reviewing the Commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.” Lombas v. Dept. of Police, 467 So.2d 1273, 1275 (La.App. 4 Cir.1985), (quoting Walters v. Dept. of Police of the City of New Orleans, 454 So.2d 106, 114 (La.1984)). “In judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.” Id. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The Superintendent of the New Orleans Fire Department (hereinafter “NOFD”) testified that the NOFD learned during Hurricane Katrina of the tension |2that arises between those who report for duty during emergency activation and those who fail to do so. The Superintendent further testified as to the need of firefighters to fill firefighting and non-firefighting duties during emergency activation.

As a result, according to the record before us, the NOFD adopted new Emergency Preparation policies after Hurricane Katrina. Under these policies, all emergency responders had a clear template for the actions to be taken during emergency activation.

Mr. Courtade testified that in preparation for Hurricane Gustav, when his shift ended on Saturday, August 30, 2008, he evacuated his parents to Tunica, Mississippi and his pregnant girlfriend to Zachary, Louisiana. He further testified that he independently moved his seven tow trucks, a box truck, and personal vehicles to Picayune, Mississippi, Covington, Louisiana, and Zachary, Louisiana. Additionally, Mr. Courtade cited mitigating factors such as roadblocks and the short notice of recall that he was given. However, the Commission found legal cause for Mr. Courtade’s punishment.

The appointing authority is charged with departmental operations, and it is within his or her discretion to discipline an employee for sufficient cause. Whitaker v. New Orleans Police Dept., 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575 (citing Joseph v. Dept. of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980)). The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify, reduce, reverse or affirm a penalty; the authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The Commission is without authority to substitute its judgment for that of the Appointing Authority. Joseph, 389 So.2d at 741. As noted in a police matter, “the | .^Superintendent is charged with the operation of his department, and the Civil Service Commission is not his supervisor.” Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). Further, “[t]he [Superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion.” Id.

Unlike the majority, I find the Commission’s determination in Bankston v. Dept. of Fire distinguishable from the matter before us. Bankston v. Dept. of Fire 09-1016 (La.App. 4 Cir. 11/18/09), 26 So.3d 815. In Bankston, Mr. Bankston evacuated his wife and child when, due to his wife’s medical condition, she was unable to manage evacuating with their infant child without assistance. Id. at p. 2, 26 So.3d at 818. At the instruction of Deputy Chief Frank, Mr. Bankston’s immediate supervisor, Captain Poole, carried Mr. Bankston on emergency annual leave, which is time off granted to a New Orleans Fire Department employee in an emergency situation. Id. at p. 4, 26 So.3d at818. Captain Poole apprised Mr. Bankston that he was granted emergency annual leave. Id.

Deputy Chief Frank was not disciplined for violating the guidelines by granting annual leave to Mr. Bankston. Id. at p. 3, 26 So.3d at 819. Further, this Court found the Commission acted arbitrarily in finding a ninety (90) day suspension commensurate with Mr. Bankston’s failure to report giving the mitigating factors. Id. at p. 6, 26 So.3d at 819.

After Mr. Courtade safely evacuated his family, he decided to evacuate his business vehicles as well. As the Commission noted, “[ajppellant’s personal situation was more complicated than most, with multiple family members and property requiring his attention; however he knew all of this prior to the storm, and he had more time than most to address his needs due to his individual shift |4schedule.” Thus, I do not find Bankston analogous to the particular facts that Mr. Courtade presents in matter sub judice.

Unlike Bankston, Mr. Courtade was not granted emergency annual leave by a supervisory official. Id. at p. 4, 26 So.3d at 819. Therefore, I find that the mitigating factors offered in support of Mr. Cour-tade’s appeal distinguishable from those presented in Bankston. Further, while I may find that Mr. Courtade’s decision to evacuate his family and business and personal vehicles a mitigating factor, I do not find the Commission was manifestly erroneous or abused its discretion in not doing so.

Further, I do not think that this Court may supplant its own judgment for that of the appointing authority and exercise the discretion of levying discipline by reducing the suspension to an arbitrary number of days inconsistent with the NOFD’s punishment matrix. I therefore find that Mr. Courtade’s punishment was commensurate with the infraction and would affirm the decision of the Commission.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    CAFÉ LeBLANC, INC., Robin LeBlanc, and Andre LeBlanc v. CGI HOLDINGS, L.L.C. and ABC Insurance Company.
    No. 2009-CA-1042.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.
    M. Elizabeth Bowman, Christy M. How-ley, Bowman & Howley, Gretna, LA, for Plaintiffs/Appellees.
    Mark E. Seamster, Galloway Johnson Tompkins Burr & Smith, Mandeville, LA, for Defendant/Appellant, C.G.I. Holdings, L.L.C.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| ] This matter arises from a dispute between the owner/lessor and former tenant/lessees of part of a commercial building that flooded during Hurricane Katrina. The owner/lessor, C.G.I. Holdings, L.L.C. (“C.G.I.”), appeals a trial court judgment in favor of the tenant/lessees, Café LeBlane, and Robin and Andre LeBlane (“the LeBlancs”), awarding them damages of fifty thousand dollars ($50,000.00), plus judicial interest and costs, for the loss of their movable property. For the reasons that follow, we reverse.

In 1989, the LeBlancs opened Café Le-Blanc, a restaurant in St. Bernard Parish, located in the commercial building at issue. On August 29, 2005, Hurricane Katrina made landfall just south of New Orleans. A breach at the Industrial Canal levee and the overtopping of the Mississippi River Gulf Outlet levee caused widespread flooding throughout St. Bernard Parish. The interior of the restaurant sustained seven (7) feet of water.

li>Two weeks after the storm, the Le-Blancs contacted Keith Collura, a partner in C.G.I., to inform him that they were in Houston, Texas. Mr. Collura told the Le-Blancs that he had returned to St. Bernard Parish on September 10, 2005, to view the devastation. He explained that he did not have a key to access the restaurant, but by looking through the windows, it appeared to him that the restaurant was completely destroyed. Before ending their conversation, the LeBlancs authorized Mr. Collura to enter the restaurant to inspect the damage if he returned again.

In early October 2005, Mr. Collura and Pat Perez, another C.G.I. partner, returned to St. Bernard Parish to begin cleaning their homes and commercial properties, including 1010 East Judge Perez Drive. They cleaned, gutted and removed debris from Café LeBlane. They placed the commercial restaurant equipment, including refrigerators, freezers, fryers, ovens, sinks, drink machines and an ice machine, outside the building.

While still in Houston, Mr. LeBlane received a phone call from a friend who informed him that the restaurant equipment was on the side of the road. The LeBlancs returned to St. Bernard Parish on October 9, 2005, and discovered Café LeBlane had been cleaned and the restaurant equipment discarded onto the street outside the premises. Upon closer inspection, the LeBlancs realized many of the pots, pans, utensils, dishes, and smaller appliances were missing. The following week, the LeBlancs presented Mr. Collura with a letter from their attorney demanding that C.G.I. and its partners cease all activity at the leased premises until |sthe LeBlancs had the opportunity to assess their damages. On March 9, 2006, the LeBlancs filed their petition for damages, alleging that C.G.I. wrongfully evicted Café LeBlane from the premises and discarded their movable property without permission.

Prior to trial, the LeBlancs stipulated that their claim had a value of no more than fifty thousand dollars ($50,000.00); thus, the matter was tried by the judge without a jury. See. La.Code Civ. Proc. art. 1732. At trial, the LeBlancs testified that although they had authorized C.G.I., through Mr. Collura, to enter the restaurant, they never authorized him to clean and gut their leased space or to remove and discard their movable property before they could assess their damages. They testified that C.G.I. never gave them notice that it intended to remove their property in conjunction with the cleanup. On the other hand, Mr. Collura and Mr. Perez claimed that the LeBlanes had authorized them to enter the restaurant and remove their property to facilitate the cleanup. They claimed that Mr. LeBlanc told them that he and Mrs. LeBlanc had no intention of ever returning to live in St. Bernard Parish.

Following trial, the trial court rendered judgment in favor of Café LeBlanc and the LeBlanes, finding that C.G.I. evicted them while Executive Orders KBB 2005-32, KBB 2005-48 and KBB 2005-67, which temporarily prohibited evictions after the storm, were still in effect. The trial court concluded that C.G.I. failed to afford the LeBlanes due process regarding the eviction. In reasons for judgment, |4the trial judge emphasized that he found the Le-Blancs’ testimony to be much more credible than that of the C.G.I. partners.

On appeal, C.G.I. argues that the trial court erred in finding that it wrongfully evicted Café LeBlanc and the LeBlanes from the premises. We agree.

Louisiana Civil Code article 2668 provides, in part, “Lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.”

The lessor’s principal obligations are set forth in La. Civ.Code art. 2682, which states, “The lessor is bound: (1) To deliver the thing to the lessee; (2) To maintain the thing in a condition suitable for the purpose of which it was leased; and (3) To protect the lessee’s peaceful possession for the duration of the lease.”

The lessee’s principal obligations are set forth in La. Civ.Code art. 2683, which states, “The lessee is bound: (1) To pay the rent in accordance with the agreed terms; (2) To use the thing as a prudent administrator and in accordance with the purpose for which it was leased; and (3) To return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered to him, except for normal wear and tear or as otherwise provided hereafter.”

If a lessee fails to pay the rent in the amount and manner agreed upon, a lessor may dissolve the lease and regain possession in the manner provided by law. See La. Civ.Code art. 2704.

|fi“If the leased thing is lost or totally destroyed, without the fault of either party, or if it is expropriated, the lease terminates and neither party owes damages to the other.” La. Civ.Code art. 2714.

Furthermore, the written lease between C.G.I. and Café LeBlanc, provided, at lines 23-25:

Should the property be destroyed or materially damaged so as to render it wholly unfit for occupancy by fire or other unforeseen event not due to any fault or neglect of Lessee then Lessee shall be entitled to a credit for the unexpired term of the lease and any unma-tured rent notes shall be cancelled.

The appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Driscoll v. Stucker, 2004-0589, p. 17 (La.1/19/05), 893 So.2d 32, 46.

Upon review, we find the overwhelming evidence in the record, particularly the photographs, indicates that the extensive water damage to the interior of the commercial building rendered the premises uninhabitable and unsuitable for operating a restaurant. Even accepting as true the LeBlancs’ claim that they never authorized C.G.I. to remove their movables from the premises, Executive Order KBB 05-67 did not prohibit an owner of immovable property from entering the lease property to make necessary repairs. It is undisputed that the restaurant | fiequipment and other movables had to be removed to remediate the environmental hazards and repair the premises. Because C.G.I. was without fault in causing the damage to Café Le-Blanc, and the LeBlancs never paid rent after the month of August 2005, we find the trial court erred in concluding that an eviction occurred and in awarding the Le-Blancs damages.

Accordingly, for the above reasons, the judgment of the trial court is reversed.

REVERSED.

      . The commercial building, located at 1010 East Judge Perez Drive, Chalmette, Louisiana, has a total area of 12,000 square feet. In August 2005, three tenants, a restaurant, a dancing school and a bingo hall, leased space in the building. The plaintiff herein, Café LeBlane, Inc. ("Café LeBlane”), occupied 2,400 square feet pursuant to a written lease.

      . Executive Order KBB 05-67, Section 1 E, provides:
      Nothing in Subsection C of this Section [regarding the suspension of legal deadlines] shall prohibit an owner of immovable properly from reclaiming leased property if abandoned as provided for by law, or entering leased property to make necessary repairs as provided by law.


author: GREMILLION, Judge.

text:
    KENWORTH OF SOUTH LOUISIANA, LLC v. Dee BRISTOW, et al.
    No. 09-1178.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2010.

      James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Defendant/Appellee, Longman Russo, APLC.
    Joseph C. Giglio Jr., Liskow & Lewis, Lafayette, LA, for Third-Party Appellee, Kenworth Truck Company, a Division of PACCAR, Inc.
    Wayne Allen Shullaw, Attorney at Law, Lafayette, LA, for Third-Party Appellants, Dee Bristow, Marilyn Price Bristow, Anthony Wayne Price, Janet Price Martin.
    Ronald Joseph White, John Herr Mus-ser, V, Donald R. Wing, Murphy, Rogers & Sloss, New Orleans, LA, for Third-Party Appellee, Kenworth of South Louisiana, LLC.
    Court composed of, JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

|,The third-party plaintiffs-appellants, Dee Bristow, Marilyn Price Bristow, Anthony Wayne Price, and Janet Price Martin (the Bristow/Prices), appeal the trial court’s grant of summary judgment in favor of the third-party defendant-appellee, Kenworth Truck Company, a Division of PACCAR, Inc. (Kenworth). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Bristow/Prices were the owners of Acadiana Mack Sales and Service, Inc. (Acadiana Mack), a truck dealership. Kenworth of South Louisiana, LLC (KSL), purchased the shares of stock of Acadiana Mack on April 30, 2008 pursuant to a Compromise and Settlement Agreement and an Assumption Agreement. In February 2008, KSL received a balance sheet indicating a total net worth of Acadiana Mack of $1,413,456, including cash on hand in the amount of $557,014. KSL’s August 2008 petition claims that in the two months following issuance of the balance sheet, the Bristow/Prices “looted the corporation’s bank accounts,” issuing checks amounting to $469,108.67 to its shareholders and a check to Longman Russo, APLC, the law firm that negotiated the Stock Purchase Agreement on their behalf, in the amount of $72,121, the day before the closing on April 29, 2008. KSL claimed |2these disbursements rendered the former Acadiana Mack insolvent.

In their answer to KSL’s petition, the Bristow/Prices filed a reeonventional demand against KSL and filed a third-party demand against Kenworth for indemnification. Kenworth answered the third-party demand pleading the affirmative defense of transaction or compromise, urging that all of the matters sued upon had been compromised and settled in the Compromise and Settlement Agreement dated April 30, 2008. In January 2009, Ken-worth filed a motion for summary judgment. Following a March 2009 hearing on the motion, the trial court granted Ken-worth’s motion for summary judgment. The Bristow/Prices now appeal and assign as error:

1. The trial court’s grant of summary judgment on the third-party demand in the absence of an affidavit in support thereof.
2. The trial court’s grant of summary judgment on the third-party demand based on a compromise and settlement agreement evidencing no intent by the parties to waive indemnity.
3. The trial court’s grant of summary judgment on the third-party demand based on a compromise and settlement agreement in violation of Louisiana law.
4. The trial court’s grant of summary judgment on the third-party demand prior to the completion of adequate discovery.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. | ;iId. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

EVIDENTIARY SUPPORT

In this assignment of error, the Bristow/Prices argue that the trial court erred in granting summary judgment based on the undated and unverified Compromise and | Settlement Agreement of the prior litigation that occurred between the Bristow/Prices, Acadiana Mack, the Mack Investment Group, and Kenworth when Kenworth exercised its right of first refusal and did not allow the Mack Investment Group to purchase Acadiana Mack’s stock.

Louisiana Code of Civil Procedure Article 966(B) allows for pleadings and admissions on file to serve as adequate evidence to prove that no genuine issues of fact exists. The Bristow/Prices acknowledged the validity of the Compromise and Settlement Agreement, the Assumption Agreement, and the Stock Purchase Agreement multiples times in the record. Additionally, the trial court took judicial notice of the prior record. See State v. Konkle, 03-0512 (La.App. 3 Cir. 11/12/03), 865 So.2d 808, writ denied, 03-3415 (La.2/20/04), 866 So.2d 818. Accordingly, this assignment of error is without merit.

LA. R.S. 32:1267/COMPROMISE AND SETTLEMENT AGREEMENT

Louisiana Revised Statute 32:1267(B)(6)

In assignments of error two and three, the Bristow/Prices argue that the Compromise and Settlement Agreement does not indicate an intent by them to waive indemnity and that they are entitled to indemnification as a matter of law pursuant to La. R.S. 32:1267(B)(6). In their brief, they argue that Kenworth “acknowledged that they would indemnify them as required by law” pursuant to an email sent February 11, 2008, and that the Bris-tow/Prices did not waive the indemnity owed to them under La. R.S. 32:1267(B)(6). The email states:

Dee:
As discussed, please see section 6 below which should help put your mind at ease. This is from LSA-R.S. 32:1268(B):
(6) The dealer shall not have any liability to any person as a result of the manufacturer’s exercising its right of first refusal and the manufacturer or distributor shall assume the defense of the selling dealer for any claim by the proposed owner or transferee arising from the exercise of the right of first refusal.
Kenworth is ready to work with you to ensure your deal closes as soon as possible.
Thanks,
Sean Edwards
Director of Network Development
Kenworth Truck Company

There is no dispute that when Kenworth exercised its right of first refusal 15and stepped into the shoes of the Mack Investment Group, it expressly contractually bound itself in the December 28, 2007 Stock Purchase Agreement to indemnify Acadiana Mack for any litigation arising out of its exercise of the right of first refusal. Indeed, litigation ensued and Kenworth fulfilled its obligation of indemnification in the previous suits. Moreover, the plain language of the La. R.S. 32:1267(B)(6)(emphasis added) makes it clear that the statutory imposition of indemnification applies to disputes arising from the manufacturer’s exercise of its right of first refusal:

B. In the event of a proposed sale or transfer of a dealership and if the franchise agreement has a right of first refusal in favor of the manufacturer or distributor, then, notwithstanding the terms of the franchise agreement, the manufacturer or distributor shall be permitted to exercise a right of first refusal to acquire the motor vehicle dealer’s assets or ownership if all of the following requirements are met:
(6) The dealer shall not have any liability to any person as a result of a manufacturer’s exercising its right of first refusal and the manufacturer or distributor shall assume the defense of the selling dealer for any claim buy the proposed owner or transferee arising from the exercise of the right of first refusal

Although the Bristow/Prices strenuously argue that the current lawsuit arises out of Kenworth’s exercise of its right of first refusal, the facts are abundantly clear that it does not. The sale of Acadiana Mack to KSL, based on Kenworth’s exercise of its right of first refusal, was complete and final. A lawsuit, filed months after the sale is finalized, alleging that the former shareholders looted the company has no relation | (ito Kenworth’s exercise of its right of first refusal. Any buyer of the franchise, even the one that Acadiana Mack had desired to sell to, could have filed this claim against the shareholders for theft. The dealer’s exercise of its right of first refusal has no relationship whatsoever to KSL’s suit against the Bris-tow/Prices. Clearly, La. R.S. 32:1267(B)(6) is meant to protect a dealer from litigation when a manufacturer bars the sale of the company to a third party by exercising its right of first refusal. The present lawsuit does not stem from that situation, and there is no indemnity due under La. R.S. 32:1267(B)(6).

The Compromise and Settlement Agreement

The Compromise and Settlement Agreement clearly sets forth the procedure for termination of any business relationship, including a claim for indemnification, between Kenworth and the Bristow/Prices. It states in pertinent part:

12.2 In consideration of the promises and covenants made by Kenworth in this Settlement Agreement and subject to the exclusions set forth in 12.8, as of the Closing Date, and the provisions of Section 13.1, the Acadiana Released Parties hereby jointly and severally release and forever discharge Kenworth from any and all claims, counterclaims, demands, obligations, actions, causes of action, judgments, rights, damages, costs, losses, expenses, attorney’s fees and compensation of any nature whatsoever, whether based in tort, contract, common law and/or statutory fraud, civil conspiracy, breach of fiduciary duty, breach of any implied covenant of good faith and fair dealing, or other theory of recovery, and for all damages of whatsoever nature which the Acadiana Released Parties have, jointly or severally, against Kenworth, arising out of acts, omissions and/or transactions occurring prior to the date of this Settlement Agreement, including, without limitation, all claims and counterclaims asserted or that could have been asserted by the Acadiana Released Parties in the Lawsuit or otherwise relating to the business relationship of the parties.

The Bristow/Prices argue that the above release says nothing about “waiving the indemnity provided for by law under R.S. 32:1267.” As we have |7previously discussed, there is no indemnity provided by law under these facts. Additionally, the release quite clearly indicates the finality of the relationship between Kenworth and the Bristow/Prices.

Finally, the Bristow/Prices argue that the Compromise and Settlement Agreement is invalid under Louisiana law because “[i]n the present case, there was no dispute between the [Bristow/Prices] and [Kenworth]. They both got sued by the Mack Investment Group. Consequently, there was no dispute between the parties to be settled.” Louisiana Civil Code Article 3071 defines a compromise as “a contract whereby the parties, through concessions made by one or more of them, settle a dispute or uncertainty concerning an obligation or other legal relationship.”

Notwithstanding the fact that the Compromise and Settlement Agreement was a valid compromise between the Bris-tow/Prices and Kenworth as it settled multiple disputes arising from Kenworth’s exercise of its right of first refusal, the Bristow/Prices now argue that they did not intend to settle the claims that they have set forth in their third-party demand. There simply is no merit to this argument. The Bristow/Prices are bound by the terms of the Compromise and Settlement Agreement, which clearly dispenses with any indemnity owed by Kenworth. These assignments of error are without merit.

DISCOVERY

In them final assignment of error, the Bristow/Prices argue that summary judgment was inappropriate because Kenworth had not provided discovery materials. The Bristow/Prices’ claims for indemnity under either the December Stock Purchase Agreement or La. R.S. 32:1267 require no other documentation beyond what already existed in the record, and they have failed to provide any evidence to suggest | ¡¡otherwise. The Bristow/Prices do not have any factual support for their claim that Kenworth owes them indemnity. Accordingly, this assignment of error is without merit.

CONCLUSION

There is no genuine issue of material fact. The Bristow/Prices are unable to meet their burden of proving that Ken-worth owes them indemnity. Accordingly, the judgment of the trial court in favor of Kenworth Truck Company, a Division of PACCAR, Inc., granting its motion for summary judgment, is affirmed. All costs of this appeal are assessed against Dee Bristow, Marilyn Price Bristow, Anthony Wayne Price, and Janet Price Martin.

AFFIRMED.

      . Acadiana Mack was a franchisee of Ken-worth. Kenworth had a right of first refusal regarding any sale of Acadiana Mack stock. Kenworth exercised its right and later assigned the Stock Purchase Agreement to KSL. Acadiana Mack had previously tried to transfer the stock to a corporation named the Mack Investment Group, but was prevented from doing so by Kenworth’s exercise of its right of first refusal. Litigation ensued between the Mack Investment Group, the Bris-tow/Prices, Kenworth, and Acadiana Mack.

      . The checks issued to the shareholders include:
      March 20, 2008 $ 13,580.00 payable to A.Wayne Price
      April 24, 2008 $ 39,153.00 payable to Marilyn Price Bristow
      April 24, 2008 $ 16,506.00 payable to A.Wayne Price
      April 24, 2008 $ 60,172.00 payable to Janet Price Martin
      April 30, 2008 $267,576.67 payable to Marilyn Price Bristow
      That matter was settled in the April 30, 2008 Compromise and Settlement Agreement.

      . Longman Russo also filed a motion for summary judgment. The hearing on the motion occurred at the same time as Kenworth’s motion and was also granted in Longman Russo’s favor. It is not a party to this appeal.

      . Section 7.2 of the Stock Purchase Agreement states:
      Subject to the provisions of this Section 7, the Buyer [Kenworthl shall indemnify the Sellers [the Bristow/Pricesl from, against and in respect of any and all liabilities or obligations actually incurred which result from (I) the breach of any warranty or representation or of any obligation of Buyer [Kenworth] pursuant to this Agreement, and (ii) the breach of any covenant of the Buyer [Kenworth] set forth in this Agreement.


author: GASKINS, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee, v. Tonya SMITH a/k/a “Little Feather”, Appellant.
    No. 44,998-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 2010.

      Cary J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, Fourth Judicial District, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

Iiln this case involving the ambush killings of two police officers, the defendant, Tonya Smith, was convicted by a jury of two counts of second degree murder, three counts of possession of a firearm by a convicted felon, possession of an unregistered firearm, possession of an unidentifiable firearm, conspiracy to possess a firearm by a convicted felon, possession of methamphetamine, and possession of marijuana, third offense. The trial court sentenced the defendant to serve consecutive life sentences for the murders and concurrent maximum sentences for the other offenses. The defendant appealed, urging four assignments of error. We affirm the defendant’s convictions and sentences.

FACTS

The defendant’s convictions are the result of her participation in the murders of Detectives John Smith and Chuck Wilson in Bastrop, Louisiana, on August 10, 2007. The defendant, who was 24 years old at the time of these offenses, committed the crimes with her boyfriend, Dennis Clem. The defendant and Clem met in Texas in 2005; both of them were involved with drugs and white supremacist gangs. The defendant claimed affiliation with the Aryan Brotherhood. She had an outstanding warrant for probation violation based on North Dakota drug convictions. Clem, who was a tattoo artist, had served time in prison and was a member of the Aryan Circle.

Both Clem and the defendant had numerous tattoos with symbolic significance. Clem’s tattoos, covering most of his body, included an “AC” on his wrist and a “13” on his leg (signifying the first and third letters of the alphabet, AC, for his membership in the Aryan Circle), a huge diamond lapatch on his chest with “Aryan Pride” (with the same significance), various Nazi-style “SS” and swastika tattoos, “Kill 'em all” across his lower back and a tattoo of an AK-47 on his side captioned with “Revenge Is Easy.”

The defendant’s tattoos include a large red swastika on her upper back done with a wood-grain effect; superimposed over the swastika is a stylized Viking. According to a gang expert, the wood-grain is significant as a reference to “peckerwood,” a self-reference by white supremacist groups who call themselves “woods” and who call their female members “feather-woods.” On the back of her neck, the defendant has a tattoo of Thor’s hammer, Mjollnir, which the gang expert explained to be a symbol of the pagan religion adhered to by some white supremacist groups. On one wrist, she has the Nazi-style “SS,” on the other, a swastika. On her right foot, she has a Celtic cross (which is commonly used by white supremacist groups) captioned with the number “14,” a reference to a 14-word white supremacist creed. On her left foot, the defendant has another Mjollnir hammer including another swastika and the numbers “88.” The numbers typically refer to the eighth letter of the alphabet, H, and signifying “Heil Hitler” in white supremacist circles. On her right ankle, she has a tattoo of the Confederate Naval battle flag. Her other tattoos include a pig head wearing a WWII-era German helmet bearing the “SS” symbol and another large swastika superimposed with the head of a German soldier wearing a helmet which is also emblazoned with “SS.” She also has a tattoo of a flower captioned with “Big Boy” (Clem’s nickname); that tattoo covers an |solder tattoo of a shamrock (a symbol adopted by the California Aryan Brotherhood, another white supremacist group) and the number “12,” signifying the first and second letters of the alphabet, AB, for Aryan Brotherhood. Finally, on her lower back, the defendant has a tattoo which reads “Love Thy Race.”

The defendant and Clem were arrested in 2005 while returning to the United States from Mexico with a handgun and a substantial quantity of marijuana. They were charged with federal drug and weapon offenses in Texas. The defendant pled guilty to possession of marijuana with intent to distribute while Clem pled guilty to possession of a firearm by a convicted felon. Both were sentenced to prison.

When the pair was paroled, they continued to associate with each other in violation of the terms of supervised federal release. In fact, despite repeated warnings from her probation officer to stay away from Clem, the defendant lied about her address when she was actually living with Clem at his father’s home in Houston, Texas. On July 14, 2007, a gunfight broke out at this Houston house; one of Clem’s friends was wounded. Clem then shot into the assailants’ fleeing vehicle with an assault rifle, killing two black teenagers. After gathering firearms and personal effects, the couple absconded in a Chrysler LHS recently paid for by Clem for the defendant’s use.

After the shooting, Clem’s cousin came to the house and found that the pair had gone. When the cousin called the defendant, she asked the cousin to retrieve the murder weapon from underneath the house and said |4that “if I ran my mouth the same thing would happen to me.” Clem told his cousin that he wasn’t going back to prison, and in a later phone call to his uncle, Clem repeated that he wasn’t going back to prison and said that “he was going out in a blaze.”

Houston police immediately began looking for Clem and the defendant and forwarded their descriptions to the Gulf Coast Bond Offenders and Fugitive Task Force, a group of U.S. Marshals and deputies who have the resources to search for fugitives. Clem and the defendant, who had a police scanner and a list of police frequencies for Texas, were able to evade capture on two occasions.

Clem contacted his friend Alex Brendle in Louisiana and asked for assistance. On August 6, 2007, Brendle rented a room in his own name at the Best Budget Inn in Bastrop, Louisiana, for Clem and the defendant. The motel is directly across the street from the Bastrop Police Department.

In the meantime, Bastrop police were investigating Brendle for an unrelated matter. Detective John Smith of the Bas-trop Police Department was looking for Brendle to question him about a theft. On the afternoon of August 10, 2007, Detective Smith learned that Brendle had rented the room at the Best Budget Inn. He and Detective Chuck Wilson proceeded to the motel to talk with Brendle; the call was dispatched over the police radio.

The motel’s video surveillance system recorded the ensuing events. Just after 1:30 p.m., the detectives arrived and parked near the room where Clem and the defendant were staying. About 10 seconds after the detectives knocked on the room door, the door opened, and the detectives entered the |Broom. The door stayed open while the detectives were inside the room. The detectives remained in the room for about one minute. Suddenly they ran out of the room, headed in opposite directions; several gunshots were audible. The person or persons firing cannot be seen. Seconds later, Clem appeared at the still-open motel room door and fired at the fleeing detectives. The shooting stopped a few seconds later; both detectives had been shot several times and had fallen. Clem then reentered the motel room and shut the door.

Four seconds later, the defendant emerged from the room, carrying her purse. As she left the room, she raised her empty hand, but not the one holding the purse. She looked to her left and right, toward the fallen detectives, and proceeded across the parking lot away from the room. She walked at a normal pace. Less than 10 seconds later, she encountered the hotel manager in the parking lot, and the two had this exchange:

Manager: What happened?
Defendant: I have no idea. I have no idea. Call the cops. Call the cops and call an ambulance. Is that the police station?

The defendant then left the scene.

Within minutes, several nearby police officers who heard the gunshots arrived at the scene of the shooting and established a perimeter around the motel room. Paramedics also arrived and began tending to the |fifallen detectives. Clem burst from the motel room, bare-chested and with a gun in each hand, firing wildly. Two of the paramedics were wounded. The officers returned fire, hitting Clem 15 times; he died at the scene.

Both of the detectives died of multiple gunshot wounds. Detective Smith had been shot six times, including one gunshot wound to the face. Detective Wilson was shot three times. The weapons of both officers were found still in their holsters.

The defendant fled to Texas. After interviewing Aryan Circle members, the fugitive task force located the defendant hiding in an RV trailer at a Houston trailer park. The marshals arrested the defendant on August 12, 2007. As she was being arrested, the defendant said: “You’re lucky I didn’t know you were coming this time.” The defendant still had the same purse she was carrying when she left the motel. The marshals did not find any weapons on the defendant when she was arrested.

Investigation of the crime scene at the motel yielded a variety of evidence. The two handguns Clem was firing when he was killed were a Hi-Point .45 caliber and a Taurus 9 mm. In addition to nine .45 caliber shell casings from the Hi-Point handgun fired by Clem, police found a total of 289 mm shell casings from the Taurus — seven inside the motel room and 21 outside the motel room. One 9 mm CBC shell casing, which was located near a PVC pipe just outside the door threshold of the motel room, was not matched to any gun recovered at the scene. Evidence suggested that Clem and the defendant had possession of another 9 mm pistol which was never recovered.

17Inside the motel room, police found a quantity of unfired ammunition and a rifle cleaning kit. Clem and the defendant also had the police scanner and a stun gun. In the pocket of a pair of the defendant’s pants, police found a quantity of methamphetamine. In addition to drug paraphernalia, a baggie full of marijuana was also recovered from the room. One officer testified that when he entered the motel room, he smelled “a strong odor of marijuana.” Many of the drug and firearm items were in plain view.

The pair had been traveling with a number of photo albums including pictures of themselves; in several of these photos, the defendant can be seen making the Aryan Circle gang hand sign, sometimes in the presence of other people with white-supremacist tattoos. In two other photos, the defendant and Clem are each seen giving a one-arm-raised Nazi-style salute, and in the background is hand-drawn art containing swastikas and the number 14. Some of this Nazi/Norse mythology-themed art was found in the room as well. In the defendant’s car, police found a handgun, an SKS assault rifle, and a shotgun whose barrel had been sawn off to less than 18 inches in length.

The defendant was charged with two counts of second degree murder; she was also charged with an array of other offenses related to the guns and drugs found at the scene. The state provided the defendant with notice of its intent to use other crimes evidence concerning her conduct prior to the |8murders. The defendant filed a motion to sever the drug and gun charges from the murder charges, which motion the trial court denied.

The defendant’s jury trial was held in Bossier Parish due to the publicity attending these events in the Bastrop area. The jury voted 10 to 2 to convict the defendant of the murder charges and unanimously as to all of the other charges. The court sentenced her to the mandatory life terms for the murders and imposed these sentences consecutively. The court also imposed maximum sentences of imprisonment for the remaining offenses but imposed those sentences concurrently with the other sentences.

The defendant appealed, urging four assignments of error.

SUFFICIENCY OF EVIDENCE

The defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that she was guilty of the second degree murder of either of the police officers.

La. R.S. 14:30.1 provides, in part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... aggravated escape ... even though he has no intent to kill or to inflict great bodily harm.

Aggravated escape is defined in La. R.S. 14:110:

C. (1) Aggravated escape is the intentional departure of a person from the legal custody of any officer of the Department of Public Safety and Corrections or any law enforcement officer or from any place where such person is legally confined when his |9departure is under circumstances wherein human life is endangered.

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by | inviewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

Flight indicates consciousness of guilt and is a circumstance from which a jury may infer guilt. State v. Gatti, 39,833 (La.App.2d Cir.10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511.

The state’s theories of the defendant’s guilt are: (1) that the defendant actually fired one or more of the shots at the officers; (2) that the defendant was a principal to the crimes; and (3) that the defendant was engaged in .aggravated escape at the time of the offenses.

There is some evidence to prove that the defendant may have fired one of the initial shots in the hotel room; in particular, one spent 9 mm shell casing at the doorway was not matched to any firearm found at the scene. Given the quantity of drugs and weapons in the defendant’s hotel room, there is also some evidence to prove that the defendant may have been escaping from the custody of these two officers and thus participating in an |, aggravated escape. However, the evidence is ample to prove beyond a reasonable doubt that the defendant is guilty of the murders as a principal.

La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

In State v. Tate, supra, the supreme court observed:

Not all principals are automatically guilty of the same grade of the offense; thus, a principal may be charged with and convicted of a higher or lower degree of the crime, depending on the mental element proved at trial. An individual may be convicted only for those crimes for which he personally has the requisite intent. It is not enough that his accomplice have the intent, the State must prove that the defendant had the required mental element.
Specific intent is a state of mind that may be inferred from the circumstances of the transaction and the actions of the accused. To establish specific intent the state must show that the defendant pulled the trigger, that he acted in concert with his co-perpetrator, or that he actively acquiesced in the use of deadly force. [Citations omitted.]

The evidence demonstrated that the defendant and Clem were “on the run” from law enforcement authorities in Texas after Clem shot and killed two young men during an altercation in Houston. The testimony indicated that the defendant participated in this crime by handing Clem the weapon and then later threatening Clem’s cousin about “running his mouth.” The pair was staying across the street from the police station in the Best Budget Inn motel in a room registered under the name of one of Clem’s friends; they were hiding out in this motel room with an arsenal of firearms and a police scanner to monitor the effort to capture them. They also had quantities of 112methamphetamine and marijuana, as well as drug paraphernalia for partaking of these drugs. On the day of the murders, the presence of these drugs was readily detectable by sight and smell.

The evidence also showed that Clem was a member of a violent Aryan Circle prison gang. It further demonstrated that the defendant had closely identified herself with Clem and this gang through her gang tattoos, frequent use of gang signs, and association with other white supremacists. Clem had repeatedly voiced his preference to die, violently if need be, rather than return to prison.

On the day of the murders, the defendant and Clem remained together in the motel room until after the crimes were completed. By her own subsequent admission, they knew that the police were coming. The defendant admitted the two police detectives — one of whom was African-American — into the motel room, which reeked of marijuana and contained firearms and visible drug paraphernalia. Also inside was her white supremacist boyfriend who had recently committed murder in her presence and had vowed not to return to prison. The officers apparently engaged someone in the room in conversation for approximately one minute before the shooting started. During this time, the defendant could have changed the course of these events by surrendering to the officers or warning them of the volatile situation they were in and allowing them to escape. However, the defendant chose another path, and she elected to send the two officers to their deaths.

Immediately after the detectives were shot, the surveillance video showed the defendant walking calmly away from the motel room. She | ^looked left and right before walking away to freedom as the two officers lay bleeding on the pavement beside her. In the course of her escape, she lied to the motel owner that she did not know what had just happened. She then asked if a nearby building was the police station. Instead of remaining at the motel or walking across the street to the police station, she fled to Texas where she was hidden by members of the Aryan Circle. The jury was entitled to infer the defendant’s consciousness of guilt from her flight from the murder scene. Perhaps most telling of all, when she was arrested by members of the fugitive task force, the defendant told them that they were lucky she didn’t know they were coming “this time.” There can be no doubt that the defendant was a willing partner with Clem in the murders of Detective Smith and Detective Wilson.

This assignment of error is without merit.

OTHER CRIMES EVIDENCE

In this assignment of error, the defendant argues that the trial court should not have admitted evidence (1) of her affiliation with the Aryan Circle white supremacist gang and (2) of the Houston shooting.

La. C.E. art. 404 provides, in part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

| MThe state must provide the defendant with notice and an opportunity for a hearing before trial if it intends to offer such evidence. State v. Prieur, 277 So.2d 126 (La.1973). Additionally, the state must prove that the defendant committed the other acts, and the probative value of the other crimes, wrongs or acts evidence must outweigh its prejudicial effect. State v. Galliano, 2002-2849 (La.1/10/03), 839 So.2d 932. A trial court’s ruling on the admissibility of such evidence will not be overturned absent an abuse of discretion. State v. Stepp, 28,868 (La.App.2d Cir.12/11/96), 686 So.2d 76, writ denied, 97-0410 (La.6/30/97), 696 So.2d 1006.

In the instant case, the other crimes evidence was highly relevant in many respects. The evidence of the defendant’s Aryan Circle affiliation was relevant to explain the defendant’s intent and knowledge at the time of the killings. The evidence demonstrating this affiliation included the numerous highly visible and very unusual tattoos adorning the defendant and Clem. These tattoos contain mythological figures, Nazi emblems, and a variety of numbers and acronyms. Expert testimony given at trial explained what the tattoos represented and how they tied into the white supremacist mind-set of this couple. Additionally, the record contains photos of the defendant socializing with members of the Aryan Circle; in some photos, the defendant herself is shown making gestures associated with white supremacist groups.

The fact that the defendant strongly shared a white supremacist ideology with Clem was highly probative and tended to explain her actions pertaining to the instant offenses. It also served to discount defense counsel’s assertion that the defendant was a battered woman upon whom |1BClem forced tattoos and his racist beliefs. Nothing in this record indicates that the tattoos were forced on the defendant or that she was compelled against her will to make Nazi and Aryan Circle gestures or associate with Aryan Circle members.

Likewise, the evidence of the Houston shootings explained many of the actions of Clem and the defendant. In particular, it supplied a motive as to why they both might want to evade capture at any cost. While the testimony of the Texas law enforcement officers indicated that Clem shot the two young men, it also suggested that the defendant handed the gun to him. There was testimony from Clem’s cousin that the defendant unsuccessfully tried to get him to retrieve that murder weapon from the spot where it was concealed at the Houston crime scene and that she threatened this man with death if he talked. At an absolute minimum, both the defendant and Clem, who were convicted felons on federal supervised release at the time of these crimes, faced being returned to prison for possession of firearms. The mere fact of their association with each other was a violation of federal supervised probation. The evidence of the events in Texas also tended to show that the defendant was an active participant in the couple’s flight from police, rather than merely being “along for the ride.” In fact, it is noteworthy that even after she parted ways with Clem at the motel, she continued to flee from the police until she was captured by the fugitive task force.

The trial court correctly allowed this evidence to be admitted; this assignment of error is without merit.

J^FAILURE TO SEVER CHARGES

The defendant urges that the trial court should have severed the various drug and firearm charges from the murder charges. She argues that she might have chosen to testify in the murder trials had those charges been tried separately from the other matters, but the joinder effectively prevented her from doing so.

La. C. Cr. P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

For purposes of appellate review, whether the claim involves misjoin-der of offenses, prejudicial joinder, or improper consolidation, the defendant must show prejudice to establish that trial of two or more crimes in a single proceeding “affect[ed] his substantial rights.” State v. Crochet, 2005-0123 (La.6/23/06), 931 So.2d 1083, citing La. C. Cr. P. art. 920 and State v. Strickland, 94-0025, p. 13 (La.11/1/96), 683 So.2d 218, 226. Proper considerations for the trial court to use in evaluating joinder are “whether the jury would be confused by the various charges; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.” Crochet, supra, citing State v. Washington, 386 So.2d 1368, 1371 (La.1980).

In the instant case, all of the offenses joined were part of a single criminal scheme or plan by the defendant and Clem. They possessed firearms (prohibited because of their prior felony convictions) and illegal drugs. The illegal presence of these items in their motel room and car provided part of the motive for their violent resistance to law enforcement. The suggestion that the defendant’s trial strategy might have been different had the drug/firearm offenses been severed is purely hypothetical, and at any rate, any prejudicial effect the joinder had on that decision would be outweighed by the defendant’s desire to escape cross-examination of her testimony.

Because the joinder was proper and because no prejudice has been demonstrated, this assignment of error is without merit.

EXCESSIVE SENTENCES

Finally, the defendant argues that her two consecutive life sentences are excessive, contending that the trial court should have imposed the sentences concurrently.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).18 It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App.2d Cir.8/15/07), 962 So.2d 1126.

When consecutive sentences are imposed, the trial court shall state the factors considered and its reasons for the consecutive terms. State v. Ashley, 44,655 (La.App.2d Cir.9/23/09), 22 So.3d 1045. Among the factors to be considered are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the potential for the defendant’s rehabilitation; and whether the defendant has received a benefit from a plea bargain. State v. Ashley, supra.

The record does not reveal that the defendant made or filed a motion to reconsider sentence. In such cases, a defendant is relegated to a bare claim of constitutional excessiveness. La. C. Cr. P. art. 881.1; State v. Mims, 619 So.2d 1059 (La.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

We find that the defendant’s consecutive life sentences are not excessive. In order to further their escape, the defendant and her boyfriend ambushed and murdered two police officers who were not even looking for them; instead they were searching for a companion wanted for theft. The trial court provided ample and accurate justification for the imposition of the | |9consecutive sentences. Foremost among the reasons was the gravity of the defendant’s conduct in participating in the ambush and the grievous and irreparable injury to the families of the murdered officers, as well as the defendant’s criminal history and her several unsuccessful efforts at rehabilitation.

This assignment of error is without merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

BROWN, C.J., concurs with reasons.

BROWN, Chief Judge,

concurring.

| ¶ That Dennis Clem committed these murders without Tanya Smith’s knowledge or forewarning is the core of the defense. Gang evidence has great probative value in explaining motivation and intent. Implicit in the definition of “gang” is complicity. Tattoos are drawings with coded messages that dramatically provide insight into the individual. The expert decoded the symbols and identified gang affiliation and culture. In this case, the evidence was relevant to prove motivation and intent. Certainly it was prejudicial; all probative evidence is. These tattoos, as interpreted by the expert, communicated defendant’s partnership in these cowardly and heinous murders.

Rather than evaluating this as “other crimes” evidence, I believe that the correct analysis for the introduction of this evidence was for its relevancy. Standing alone, tattoos and gang affiliation are not “other crimes.”

The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers and effects from unreasonable search and seizure. The Fifth Amendment prohibits compelled self-incrimination. In a “tell all” fashion, defendant voluntarily displayed on her body for all to see her beliefs, desires, fantasies and hatreds. Her message was inscribed in plain view. There was no unreasonable taking. Further, there was no compelled self-incrimination. This was not a zone of privacy that the government forced defendant to surrender.

|2The shooting in Houston was other crimes evidence. Because both Dennis Clem and defendant were convicted felons and on parole, their freedom of association was limited and their possession of firearms was also criminal. This evidence was, however, an integral part of the plan leading to the killing of the officers in Louisiana. The shootings in Louisiana were not a spur of the moment decision. It all started in Houston where defendant handed an assault rifle to Clem who then shot into a fleeing vehicle killing two of its occupants. Defendant told a neighbor to hide the assault rifle and threatened him if he “ran his mouth.” The couple then fled to Louisiana heavily armed and made statements that they would not return to prison. Their motivation to die in a violent shootout was conspicuously inscribed on their bodies and affirmed by their actions. Both defendant and Clem were armed and ready when defendant let the officers into the room, and both participated in the shooting. Several rounds were fired from two different guns and a shell casing from a third gun was found. Defendant left the scene while Clem stayed in the room and was killed during the shootout with police. Although indicted for second degree murder, defendant could have appropriately been charged with first degree murder and subject to capital punishment.

      . A nickname used by the defendant is "Light Feather.”

      . The defendant and Clem were the only individuals in the room when the detectives arrived. The clothing of the person who opens the door appeared to be similar to that worn by the defendant when she is seen leaving only minutes later. Clem, on the other hand, was wearing only shorts when seen minutes later on the video.

      . The contents of her purse are unknown; however, the size of the purse was such that a handgun would have fit inside.

      . In a post-mortem toxicology study, Clem tested positive for methamphetamine and marijuana.

      . However, when the motel owner was in the room two days before the shooting to repair the air conditioning, he did not observe any drugs or firearms.

      . Where applicable, the trial court also generally imposed the mandatory minimum fines.