author: CHEHARDY, C.J.

text:
    Candido PERDOMO v. CITY OF KENNER and Veolia Water Logistics LLC d/b/a Veolia Water
    NO. 18-CA-156
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CANDIDO PERDOMO, Anthony L. Glorioso, Metairie, D. Steven Wanko, Jr., Covington
    COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER, Michael D. Peytavin, William D. Dunn, Gretna
    COUNSEL FOR DEFENDANT/APPELLEE, VEOLIA WATER NORTH AMERICA-SOUTH, LLC, Robert E. Kerrigan, Jr., Raymond C. Lewis, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

Plaintiff, Candido Perdomo, appeals the district court's July 5, 2017 judgment granting summary judgment and dismissing with prejudice Mr. Perdomo's claims against defendants, City of Kenner and Veolia Water North America-South, LLC. After our de novo review, we find plaintiff is entitled to relief, reverse the judgment of the district court, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2011, Mr. Perdomo filed suit against the City of Kenner and Veolia Water North America-South, LLC seeking damages for injuries he sustained on May 11, 2010 while employed by Ramelli Janitorial Service as a garbage "hopper" collecting garbage for the City of Kenner. Mr. Perdomo was injured when a portion of the concrete surface on 27th Street near the intersection of Salem Street collapsed underneath the right rear wheels of the garbage truck on which he was riding.

Following discovery, Kenner and Veolia moved for summary judgment, arguing that Mr. Perdomo could not succeed on his cause of action because he could not satisfy his burden of proving the element of notice as required by La. R.S. 9:2800 and La. C.C. art. 2317. In support of its motion for summary judgment, Kenner submitted an affidavit of Jerry Dillenkoffer, the Assistant Director of Public Works for the City of Kenner, and an affidavit of Joanne Massony, a project manager with Veolia. Similarly, Veolia submitted in support of its motion the Massony and Dillenkoffer affidavits, a deposition of Ms. Massony, and a deposition of Dennis Dufour, a maintenance manager with Veolia.

In support of his opposition to Kenner and Veolia's motions for summary judgment, Mr. Perdomo submitted the Massony and Dufour depositions, a deposition of Mr. Dillenkoffer, a July 2009 newspaper article, an affidavit and deposition of Scott Troxclair, as well as affidavits of Josette White, Alisha Hamilton, Natalie Thomas, and Terri Williams.

In Mr. Dillenkoffer's affidavit and deposition, he explained that along with the Kenner Police Department, the Weights and Standards Division of the Department of Public Safety investigated the scene of the accident. Through this investigation, it was determined that the rear axle of the garbage truck was overweight by 4,700 pounds.

Mr. Dillenkoffer, through his inspection of the scene, observed a leaking sewer line that he believed caused the street's collapse. Mr. Troxclair, a plumber retained by plaintiff, also examined the scene of the accident and similarly opined that the leaking sewer line had eroded the subsurface of the street and led to its collapse. He inferred from the extent of the subsurface erosion that the leak must have been ongoing for quite some time.

Mr. Dillenkoffer explained that the Kenner Department of Public Works does not have a plan for periodic inspections of public streets and the department relies on citizen complaints as the primary means of identifying issues with infrastructure. Prior to the accident, Mr. Dillenkoffer was not aware of any complaints of potholes, sinkholes, or any other issues with the surface of 27th Street at this location. He also attested that city complaint logs do not reflect any complaints about the condition of the street or sewerage near the accident site.

Mr. Dillenkoffer further stated that the department did not operate or maintain the Kenner sewerage system in 2010, as Veolia was under contract to operate and maintain the Kenner sewer system since 1995.

In the affidavit and deposition of Joanne Massony, a project manager with Veolia, Ms. Massony explained that Veolia had received no complaints of potholes, sinkholes, or any sewerage-related issues at the 27th Street location prior to the accident. Ms. Massony added that Veolia routinely inspects the sewerage lift stations throughout Kenner on a weekly basis. This accident occurred immediately adjacent to Lift Station No. 4341. The weekly inspections of this lift station did not reveal anything to suggest that the system was in disrepair or was creating a condition that would compromise the structural integrity of the street surface. In fact, Dennis Dufour of Veolia confirmed that the weekly inspection of Station 4341 was completed the day before the accident, on May 10, 2010. This inspection revealed no problems with the system. The lift stations are also outfitted with a wireless notification system designed to provide real-time diagnostics on the stations. This system never alerted Veolia to any potential issues with Station 4341 prior to the accident.

Regarding a leaking sewer line, Ms. Massony explained that "the only way" Veolia would discover such a leak would be "through people calling or visually seeing ...subsidence" that would prompt Veolia to further investigate and test for leaks.

Ms. Massony added that impellers on one of the pumps in Station 4341 had been replaced in February 2010 due to normal wear and tear. At the time of this replacement, there were no observations of any potential problems or subsurface conditions that suggested the street was susceptible to collapse.

Ms. Massony also explained that in June 2005, Veolia received a request from the Department of Public Works to inspect a sewer line on 27th Street because subsidence had been observed on the opposite side of the street from the accident site. Veolia's inspection revealed no issues with the sewer line, but it was determined that a potable water line, a responsibility of Jefferson Parish, was a contributing factor to the subsidence. Repairs were made at that time.

The July 2009 newspaper article offered by Mr. Perdomo reported the commencement of an infrastructure project to rebuild Kenner's sewer system because, as the newspaper quoted Deputy Chief Administrative Officer, Prat Reddy, "We have reached a sewerage crisis in Kenner[.]" Allan Katz, Kenner Ready to Embark on $15 Million Phase I Rebuilding of Sewage System , Kenner Star, July 2009, Vol. 18 No. 7, at 1.

Ms. White, Ms. Hamilton, Ms. Thomas, and Ms. Williams all resided near the site at the time of the accident. They all stated in their affidavits that the ground adjacent to the street near the accident site had been "soggy" prior to the accident, and all except Ms. Hamilton reported foul sewage odors emanating from the area around the site before the accident. Along with her complaint about sewage odors, Ms. White had also lodged a complaint with the City of Kenner about the backup of sewage in her home.

Ms. Massony acknowledged that Veolia had received several odor complaints from residents near the accident site, but that no issues were found with the sewerage system during the inspections made in response to these complaints. Mr. Troxclair explained in his deposition that even properly operating lift stations commonly emit sewage odors. Ms. Thomas and Ms. Williams further recounted that a large crack in the street surface had formed near the site, and Ms. Thomas recalled that it had been patched on two occasions prior to the accident.

At the conclusion of the hearing on the motions for summary judgment on June 19, 2017, the district court granted summary judgment in favor of Kenner and Veolia. The court found that Mr. Perdomo could not prove the notice element of his claim. In the signed judgment that followed on July 5, 2017, the court granted summary judgment in favor of Kenner and Veolia and dismissed with prejudice Mr. Perdomo's claims against these defendants.

On July 17, 2017, Mr. Perdomo filed a motion for new trial, arguing that the court's judgment was contrary to the law and evidence. Following a hearing on August 18, 2017, the district court denied this motion in a judgment dated September 19, 2017. Mr. Perdomo appeals the district court's judgments of July 5, 2017 and September 19, 2017.

DISCUSSION

On appeal, Mr. Perdomo raises two assignments of error: (1) the district court erred in granting defendants' motions for summary judgment and in denying plaintiff's motion for new trial; (2) the district court erred in dismissing plaintiff's claims of general negligence under La. C.C. art. 2315 against Veolia.

ASSIGNMENT OF ERROR ONE

In support of Mr. Perdomo's first assignment of error on appeal, he submits three arguments. First, Mr. Perdomo argues that summary judgment as to Veolia was improper because La. R.S. 9:2800 does not apply to Veolia as a private company. Second, he argues that summary judgment was improper because both defendants had actual and constructive knowledge of the alleged defect. And third, he argues that the doctrine of res ipsa loquitur precluded summary judgment in this case.

We address Mr. Perdomo's first and third arguments before addressing his second argument in our de novo review of the district court's granting of defendants' motions for summary judgment.

Mr. Perdomo argues that La. R.S. 9:2800 does not govern Veolia's liability because Veolia, a private company, is not a "public entity" as defined in La. R.S. 9:2800(G)(1). La. R.S. 9:2800(A) provides in pertinent part: "A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody."

La. C.C. art. 2317 provides:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

And La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

We decline to decide whether Veolia qualifies as a "public entity" for purposes of La. R.S. 9:2800 because even if La. R.S. 9:2800 does not govern Mr. Perdomo's claim against Veolia, Mr. Perdomo is not relieved of proving notice on the part of Veolia to succeed on his cause of action under La. C.C. art. 2317 and 2317.1. See Luquette v. Great Lakes Reinsurance (UK) PLC , 16-422 (La. App. 5 Cir. 12/21/16), 209 So.3d 342, 348, writ denied , 17-136 (La. 3/13/17), 216 So.3d 806 ("The law requires a plaintiff seeking to recover under La. C.C. art. 2317.1 to prove that the defendant had actual or constructive knowledge of the vice or defect.").

Mr. Perdomo also argues that his suit against Veolia should not have been dismissed because his general negligence theory of recovery under La. C.C. art. 2315 remains. We find no merit to this argument because, as the following demonstrates, regardless of whether Mr. Perdomo couches his cause of action under La. C.C. art. 2315 or La. C.C. art. 2317.1, he still must prove the element of notice. See generally Myers v. Dronet , 01-5 (La. App. 3 Cir. 6/22/01), 801 So.2d 1097 (discussing custodial liability within the broader framework of Louisiana tort law).

For instance, considering Mr. Perdomo's claim in the "duty-risk" parlance of La. C.C. art. 2315, the owner or custodian of property has a duty to keep the property in a reasonably safe condition. Pryor v. Iberia Par. Sch. Bd. , 10-1683 (La. 3/15/11), 60 So.3d 594, 596. This duty requires the owner or custodian to discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. See id. "This duty is the same whether based on custodial liability under La. C.C. arts. 2317, 2317.1, and 2322, or negligence under La. C.C. art. 2315." Cheramie v. Port Fourchon Marina, Inc. , 16-895 (La. App. 1 Cir. 2/17/17), 211 So.3d 1212, 1215, writ denied , 17-499 (La. 5/12/17), 221 So.3d 73. Under either theory, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the "custody" of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Id.

Mr. Perdomo's next argument that summary judgment was precluded by application of res ipsa loquitur is presented in his brief as follows:

Citizens operating a motor vehicle on a roadway should have an expectation that the roadway will not suddenly collapse and cause them injury. In this case that is exactly what happened. The evidence shows that a sewer line below the roadway failed and in turn caused the road to collapse. While the reason it failed may be a question of fact, it makes no difference in the Court's evaluation to determine that Summary Judgment is not appropriate. No expert is needed to tell a jury that a road just doesn't collapse.

This argument appears to have been adopted from Judge Leon Cannizzaro's concurring opinion in the Louisiana Fourth Circuit decision, Craft v. Sewerage & Water Bd. , 03-1886 (La. App. 4 Cir. 4/28/04), 874 So.2d 908, writ denied , 04-1276 (La. 9/24/04), 882 So.2d 1134. In Craft , the Fourth Circuit affirmed a judgment against the New Orleans Sewerage and Water Board, awarding damages to the plaintiffs who were injured when the roadway underneath their vehicle collapsed due to a defective sewer line. A majority found that the plaintiffs had borne their burden of proving the notice element with evidence that the S & WB had received complaints about the sewer leak and about subsidence. Craft , 874 So.2d at 911. In a concurring opinion, Judge Cannizzaro disagreed with the majority that the S & WB had notice of the defect, but nonetheless concluded that the S & WB was liable for the damages based on the doctrine of res ipsa loquitur. He explained:

I concur with the result in the majority opinion, but I do not think that the evidence shows that the Sewerage & Water Board (the "S & WB") had notice of the problem that caused the accident in this case. In my opinion the evidence shows that the condition that caused the accident arose so suddenly that the S & WB could not have been notified of the condition. Although the S & WB had been notified of other matters regarding its sewer line, the evidence demonstrates that these matters were unrelated to the cause of the accident in this case.
The fact that the S & WB did not have notice of the condition that caused the accident should not, however, preclude recovery by the plaintiff. The doctrine of res ipsa loquitur is applicable to this case, and the notice requirement under La. R.S. 9:2800 is, therefore, irrelevant. La. R.S. 9:2800 expressly refers to La. C.C. art. 2317, and La. C.C. art. 2317.1 provides the "nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur."
Citizens lawfully operating a motor vehicle on a roadway should have an expectation that the roadway will not suddenly collapse and cause them injury. In this case that is exactly what happened. The evidence shows that a sewer line below the roadway failed unexpectedly and without any warning, causing the roadway's sudden collapse. It is nonsensical to require that the S & WB receive prior notice of such a condition before an injured citizen, who is free from fault, can recover damages. Fortunately, the legislature has provided for just such a situation by sanctioning the use of the doctrine of res ipsa loquitur, where applicable, in situations subject to La. R.S. 9:2800 and La. C.C. art. 2317.

Craft , supra at 913, (Cannizzaro, J., concurring).

Res ipsa loquitur (literally, "the thing speaks for itself") is a rule of circumstantial evidence which allows an inference of negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not, caused the injury. Sandifer v. City of Kenner , 17-58 (La. App. 5 Cir. 05/31/17), 221 So.3d 307, 318. It applies in cases involving circumstantial evidence, rather than direct evidence, provided the plaintiff establishes the following foundation of facts: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other possible causes of the injury, such as the plaintiff's own responsibility or the responsibility of others; and (3) the alleged negligence of the defendant must fall within the scope of his duty to the plaintiff, which will often be the case if the defendant had exclusive control of the thing or situation that caused the injury to the plaintiff. Id.

To the extent that Mr. Perdomo argues, as set forth in Judge Cannizzaro's concurring opinion, that the application of res ipsa loquitur relieves plaintiff of his burden of proving the notice element, we reject this as a misstatement of the law. The law is well-settled that application of res ipsa loquitur "does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery." Sandifer , supra ; Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr. , 564 So.2d 654, 666 (La. 1990). Accordingly, Mr. Perdomo cannot rely on the doctrine of res ipsa loquitur to obviate his burden of proving the element of notice.

In any event, we find that res ipsa loquitur is not otherwise applicable to the present case. "Res ipsa loquitur only applies where direct evidence of defendant's negligence is not available to assist the plaintiff to present a prima facie case of negligence." Linnear v. CenterPoint Energy Entex/Reliant Energy , 06-3030 (La. 9/5/07), 966 So.2d 36, 42. Here, direct evidence was offered bearing on the element of notice. Representatives of Kenner and Veolia attested that no complaints were received regarding a sewer leak or subsidence. Nor did inspections, both routine and pursuant to odor complaints, reveal any conditions indicative of possible street collapse. And Mr. Troxclair opined that an ongoing sewer leak caused the street's collapse.

This direct evidence precludes application of res ipsa loquitur .

Finally, turning to Mr. Perdomo's argument that both Kenner and Veolia had constructive and/or actual notice of the alleged defect, we consider this in our de novo review of the district court's granting of summary judgment.

A judgment granting a motion for summary judgment is reviewed de novo . Luft v. Winn Dixie Montgomery, LLC , 16-559 (La. App. 5 Cir. 2/8/17), 228 So.3d 1269, 1272. Under this standard, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Id.

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Lincoln v. Acadian Plumbing & Drain, LLC , 17-684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

"[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Here, Kenner and Veolia are the movers who will not bear the burden of proof at trial. Accordingly, in their motions for summary judgment, Kenner and Veolia sought to point out the absence of factual support for one of the essential elements of Mr. Perdomo's claim: notice.

La. R.S. 9:2800 provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
* * *
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

In order to recover under this statute, a plaintiff must prove that: (1) the public entity had custody of the thing that caused the plaintiff's injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4)

the defect in the thing was a cause-in-fact of the plaintiff's injuries. Pitre v. Jefferson Par. Hosp. Serv. Dist. No. 2 , 16-361 (La. App. 5 Cir. 12/28/16), 210 So.3d 502, 506, writ denied , 17-150 (La. 3/13/17), 216 So.3d 802. To recover, the plaintiff bears the burden of proving all these inquiries in the affirmative and failure on any one is fatal to the case. Id.

Similarly, to recover under La. C.C. arts. 2317 and 2317.1, the plaintiff must prove that the defendant had actual or constructive knowledge of the defect. Luquette , supra .

Actual notice under La. R.S. 9:2800 and La. C.C. art. 2317 has been found in cases where complaints about the injury-causing defect were received by the proper authorities. See Craft , supra ; Priest v. City of Bastrop , 34841 (La. App. 2 Cir. 7/11/01), 792 So.2d 80, 83 ; Hanson v. Benelli , 97-1467 (La. App. 4 Cir. 9/30/98), 719 So.2d 627, 636. Constructive notice, on the other hand, is defined in La. R.S. 9:2800(D) as "the existence of facts which infer actual knowledge." Generally, constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Pitre , supra ; Luquette , supra .

In support of their contention that they had neither actual nor constructive notice, defendants submitted Mr. Dillenkoffer's testimony that the Kenner Department of Public Works had not received any complaints regarding the street condition of 27th Street. Defendants also submitted the affidavits and depositions of Veolia representatives, Ms. Massony and Mr. Dufour, whose testimony established that through Veolia's routine inspections, including one on the day before the accident, and inspections conducted in response to odor complaints, Veolia did not find any issues with the sewerage system, or any other conditions to suggest the possibility of street collapse.

In support of Mr. Perdomo's opposition, he submitted the testimony of Mr. Troxclair and Mr. Dillenkoffer, who both opined that the collapse was caused by a leaking sewer line. And Mr. Troxclair explained that the extent of the subsurface erosion led him to believe that the leak had been ongoing for quite some time.

With Mr. Troxclair's testimony, we find Mr. Perdomo has presented factual support sufficient to establish the existence of a genuine issue of material fact on the element of notice. We find that reasonable persons could reach differing conclusions as to whether Veolia and Kenner had constructive notice of the subsurface leak, i.e. , whether it existed for such a period of time that, by the exercise of reasonable care, they should have known of its existence.

We therefore conclude upon our de novo review that the district court erred in granting summary judgment in favor of Veolia and Kenner. Given that summary judgment was granted on the element of notice, the parties did not argue and the district court did not rule on the issue of whether and to what extent both Kenner, as the owner of the sewerage system, and Veolia, as the subcontractor charged with the operation and maintenance of the system, may be liable under La. R.S. 9:2800, La. C.C. art. 2317, and La. C.C. art. 2317.1. This issue must also be resolved through further proceedings in the district court.

Because we reverse the district court's July 5, 2017 judgment, we also vacate the district court's September 9, 2017 judgment denying Mr. Perdomo's motion for new trial.

ASSIGNMENT OF ERROR TWO

Although Mr. Perdomo assigns as error the district court's dismissal of his claim of general negligence under La. C.C. art. 2315 against Veolia, he does not brief this assignment of error. Accordingly, pursuant to Rule 2-12.4(B)(4) of the Uniform Rules of Louisiana Courts of Appeal, this assignment of error is abandoned and is not considered by this Court. See Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C. , 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 300, writ denied , 17-893 (La. 9/29/17), 227 So.3d 288.

DECREE

For the foregoing reasons, we reverse the district court's July 5, 2017 judgment granting summary judgment in favor of the City of Kenner and Veolia Water North America-South, LLC and dismissing with prejudice Mr. Perdomo's claims against these defendants. We also vacate the district court's September 9, 2017 judgment denying Mr. Perdomo's motion for new trial. This matter is remanded for further proceedings.

REVERSED; REMANDED

      In its responsive pleading, Kenner filed a third party demand against Ramelli Janitorial Service that is not before us in this appeal.

      The jurisprudence refers to this element interchangeably as "notice" and "knowledge." This opinion also uses these terms interchangeably.

      See n.2, supra .

      La. R.S. 9:2800(G)(1) provides:
      "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.

      We note the misuse of "infer" in La. R.S. 9:2800(D). As explained in Fowler's Modern English Usage :
      This misuse of [infer] for imply is sadly common-so common that some dictionaries give imply as one of the definitions of infer without comment. But each word has its own job to do, one at the giving end and the other at the receiving (What do you imply by that remark? What am I to infer from that remark? ) and should be left to do it without interference.
      E. Gowers, Fowler's Modern English Usage 282 (2d ed. 1965) (Italics original).
      Accordingly, La. R.S. 9:2800(D) should read: "Constructive notice shall mean the existence of facts which imply actual knowledge;" or, "Constructive notice shall mean the existence of facts from which actual knowledge may be inferred ."


source: Caselaw Access Project

author: MOLAISON, J.

license: Public Domain

text:
    STATE of Louisiana v. Jason R. ECKER
    NO. 18-KA-38
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JASON R. ECKER, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
   MOLAISON, J.

On appeal, defendant's appointed appellate counsel has filed an Ander s brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's conviction and sentence and further grant appellate counsel's motion to withdraw as attorney of record.

FACTS AND PROCEDURAL HISTORY

Because defendant pled guilty, the facts of this case were not fully developed at a trial. However, during the guilty plea colloquy, the State presented the following factual basis for the plea:

THE STATE:
Your Honor, if the State were to proceed to trial, it would prove beyond a reasonable doubt that the defendant, Jason Ecker, on November 8th, 2016, after the commission of a first degree robbery at the hands of Christopher Lucia of the Jade Buddha Restaurant in Jefferson Parish, did, after knowing that Christopher Lucia committed that armed robbery -- I'm sorry -- first degree robbery, did harbor and conceal Mr. Lucia, knowing that he committed the crime with the intent to help him avoid apprehension and/or arrest or a conviction by law enforcement.

The Jefferson Parish District Attorney filed a bill of information on February 10, 2017, charging Jason R. Ecker ("defendant"), with armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3. Defendant pled not guilty at arraignment and thereafter filed several omnibus motions, all of which were denied. The State amended the bill of information on October 3, 2017, to charge defendant with accessory after the fact to first degree robbery, in violation of La. R.S. 14:25. On that same date, defendant withdrew his plea of not guilty and pled guilty to the amended charge under North Carolina v. Alford , 400 U.S. 5, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Pursuant to his plea agreement with the State, defendant was sentenced to five years imprisonment at hard labor.

Defendant filed a timely pro se motion for appeal, which was granted on November 8, 2017. The instant appeal followed.

LAW AND DISCUSSION

Anders Brief

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , supra , and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (internal citation omitted).

In State v. Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She contends that defendant did not plead guilty under State v. Crosby , 338 So.2d 584 (La. 1976), and thus, there is no ruling of the trial court to challenge. Appellate counsel states that she considered whether to raise that defendant's sentence was constitutionally excessive but felt that the issue was frivolous, as the trial court sentenced defendant to a reduced charge, and defendant was made aware of the sentence he would receive. She notes that defendant faced a sentencing range from 15 to 104 years if convicted of armed robbery with a firearm.

The State agrees with appellate counsel that there are no non-frivolous issues to be raised on appeal and urges that this Court should grant appellate counsel's motion to withdraw.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

Defendant was properly charged and appeared at each stage of the proceedings against him. As noted by appellate counsel, defendant did not preserve his right to challenge any of the trial court's pre-trial rulings on appeal pursuant to State v. Crosby , supra . With respect to defendant's guilty plea under Alford , supra , the State provided the requisite factual basis at the time of the plea. The record further reflects that defendant was aware he was pleading guilty to the charge of accessory after the fact to first degree robbery. The trial court advised defendant of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant acknowledged that he understood he was waiving those rights by pleading guilty, and he acknowledged that his plea of guilty was a knowing, intelligent, free, and voluntary act by him as evidenced by his signature on the waiver of rights form. Defendant was informed by the court of the maximum sentence, as well as the actual sentence he would receive, if his plea was accepted. The record indicates that the trial court accepted defendant's plea as a knowing, intelligent, free, and voluntary act. Finally, because defendant's sentence was imposed in conformity with a plea agreement set forth in the record at the time of the plea, defendant is now precluded from seeking review of that sentence. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we affirm defendant's sentence and conviction and grant appellate counsel's motion to withdraw as attorney of record.

ERRORS PATENT REVIEW

This Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). No errors which require correction were found.

DECREE

Accordingly, for the reasons provided herein, defendant's conviction and sentence are affirmed and appellate counsel's motion to withdraw as attorney of record is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      Christopher Lucia was named as a co-defendant in the bill of information and was likewise charged with armed robbery with a firearm. Lucia subsequently pled guilty to first degree robbery, and his Anders appeal is pending before this Court as companion case number 17-KA-37.

      Prior to this amendment, the State amended the bill on October 2, 2017, from the charge of armed robbery with a firearm to armed robbery as to both defendant and Lucia. It additionally reflects that earlier on October 3, 2017, the State amended the charge of armed robbery to first degree robbery as to both defendant and Lucia.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      We note that, at the time of defendant's guilty plea, the trial court had not ruled on defendant's outstanding motion for preliminary examination. However, because defendant did not object prior to pleading guilty, this issue is waived on appeal. State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Kedrick K. ANDERSON
    NO. 18-KA-45
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, KEDRICK K. ANDERSON, Prentice L. White
    DEFENDANT/APPELLANT, KEDRICK K. ANDERSON, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Kedrick K. Anderson, challenges his convictions and sentences for two counts of attempted second degree murder. Defendant's appointed appellate counsel has filed a brief which challenges the sufficiency of the evidence used to convict defendant. In addition, defendant has filed a pro se brief alleging constitutional violations in the multiple offender proceedings and prosecutorial misconduct. For the reasons that follow, we find no merit to the arguments raised in either brief and accordingly affirm defendant's convictions and sentences.

PROCEDURAL HISTORY

On January 23, 2014, the Jefferson Parish Grand Jury returned an indictment charging defendant with two counts of attempted second degree murder that occurred on July 13, 2013, in violation of La. R.S. 14:27 and La. R.S. 14:30.1. At the February 10, 2014 arraignment, defendant pled not guilty. The matter proceeded to trial before a twelve-person jury on December 13, 14, and 15, 2016. After considering the evidence presented, the jury found defendant guilty as charged on both counts.

On January 17, 2017, the trial judge sentenced defendant to fifty years on each count to run concurrently. On May 4, 2017, after a hearing, the trial court found defendant to be a second felony offender, vacated the original sentences on both counts, and resentenced defendant pursuant to the provisions of La. R.S. 15:529.1 to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence on each count to run concurrently. Defendant now appeals.

FACTS

This case stems from a shooting that occurred on July 13, 2013, at the Ridgefield Apartments on Mount Kennedy Drive in Marrero. The victims were J.A. and her two-year-old son (hereinafter referred to as "J."), who lived at the apartment complex at the time of this incident.

According to J.A., on the evening of July 13, 2013, she was inside her apartment with A.P. (the father of four of J.A.'s children, including J.), F.P. (A.P.'s brother), "Jeremy" (A.P.'s cousin), and two of her other children. At approximately 9:30 p.m., she left the apartment with J., Jeremy, and F.P. to go to Brothers' gas station to buy some snacks. Within ten minutes, they returned to the apartment complex, parked and exited their vehicle, and proceeded towards J.A.'s apartment located in building ten.

J.A. described that as they were walking to her apartment, "they just had bookoo [sic. ] black shirts came from the front, just ran and started shooting." At trial, J.A. testified that she recognized the "first main face" as Kevias Hicks, defendant's brother, and that Kevias was the individual who approached her from the front and shot her son. She explained that she "saw the fire" and that the first bullet hit J. She then "dived down" to grab J. and crawled through the grass, at which point F.P. told her to run. As she was trying to get away with J., J.A. looked up to her right and saw defendant in the parking lot by the dumpster come from behind the building with a "long gun," like a rifle. J.A. ran to a nearby apartment, and the occupants called 9-1-1.

Deputy Christopher Lewis of the Jefferson Parish Sheriff's Office responded to the emergency call, and upon his arrival, he observed J.A. holding her son and screaming for help. In light of the urgency of the situation, Deputy Lewis carried the child to the emergency medical responders at the back of the apartment complex, and J. was rushed to the hospital. Deputy Lewis thereafter spoke to J.A. to try to find out what had happened. According to Deputy Lewis, J.A. told him that she heard several gunshots as she walked towards her apartment; however, she maintained that she did not see anyone and did not know who the perpetrators were. Deputy Lewis then secured the crime scene, canvassed the scene for evidence, and notified the crime scene technicians who recovered ballistics evidence from four different guns.

Thereafter, on July 22, 2013, J.A. spoke to Deputy Brandon Veal of the Jefferson Parish Sheriff's Office and provided him with the names of three people who were possibly involved in the shooting: defendant, Kevias Hicks, and Kevin Hicks. However, J.A. would not explain how she obtained that information.

In October of 2013, Deputy Joe Ragas of the Jefferson Parish Sheriff's Office spoke to J.A. who indicated that she was afraid to come forward with any information and did not want to get involved. As Deputy Ragas had a good relationship with J.A.'s family, she ultimately decided to meet with him, and in late October of 2013, she provided recorded statements to the police and positively identified defendant and Kevias in photographic lineups as the perpetrators. Defendant and his co-defendants were thereafter arrested for the July 13, 2013 shooting.

At trial, Jene Rauch, the supervisor of the firearms section at the Jefferson Parish Sheriff's Office Crime Lab and an accepted expert in the field of firearm and tool mark analysis and identification, testified regarding the ballistics evidence recovered from the scene of the July 13, 2013 Mount Kennedy shooting. Ms. Rauch asserted that there were eight 7.62 by 39-mm caliber cartridge casings recovered on the night of the shooting near the dumpster, that all eight of those casings were fired from the same weapon, and that those casings were usually shot in assault rifles. Ms. Rauch further stated that there were sixteen 9-mm casings that were recovered, noting that fourteen casings were fired in one gun and two casings were fired in a different gun. She also mentioned that there was one .45 caliber fired cartridge casing recovered that night.

In addition to the testimony relating to the July 13, 2013 incident, the State presented evidence at trial to suggest that this shooting was the result of an ongoing feud between the Hicks family and A.P.'s family. According to testimony presented, the feud stemmed from the fact that A.P. received substantially less prison time for an armed robbery than his co-defendant and was therefore labeled a "rat." Subsequent to this "designation," a series of violent transactions occurred between the Hick brothers, who were apparently sympathetic to the co-defendant in the armed robbery, and A.P. and his family.

The first noted incident happened on June 22, 2013, when A.P. was riding in J.A.'s vehicle with another person and several shots were fired, striking the vehicle but no individuals. The next incident was the July 13, 2013 shooting that forms the basis for the instant case. Three days later, on July 16, 2013, another episode occurred on the elevated portion of the Westbank Expressway. On that occasion, Kevias Hicks was shot and injured as he and defendant were riding in a vehicle on the Westbank Expressway, and A.P. was implicated as being involved in that incident. Thereafter, on August 12, 2013, Ms. Aubrieon Davis, the mother of defendant's child, was shot at as she and her infant were in her vehicle traveling on Beechgrove. In that incident, Ms. Davis identified A.P. as the perpetrator, and A.P. later pled guilty to that offense.

In contrast to the testimony presented by the State, defendant testified at trial that he was not aware of an ongoing "beef" between Kevias or Kevin and A.P. and that any ongoing feud in 2013 had nothing to do with him. Defendant maintained that he was not involved in the July 13, 2013 shooting and was not present at the Ridgefield Apartments that night. Further, he stated that he knew J.A. and would not try to hurt her or her child. During his testimony, defendant expressed that J.A. was lying about the incident in order to protect A.P., the father of her children. He further voiced his belief that J.A. testified he was at Mount Kennedy with a rifle participating in the shooting because that was the only way she would get out of jail.

SUFFICIENCY OF THE EVIDENCE

(Assignment of Error Number One)

On appeal, defendant challenges the sufficiency of the evidence used to convict him of two counts of attempted second degree murder. In his argument, he focuses on the lack of credibility of J.A., the State's only witness that placed him at the scene of the July 13, 2013 shooting.

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. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In the present case, defendant was charged with and convicted of two counts of attempted second degree murder. In order to prove attempted second degree murder, the State must establish beyond a reasonable doubt that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. La. R.S. 14:30.1(A)(1) and 14:27 ; State v. Bishop , 01-2548 (La. 1/14/03), 835 So.2d 434, 437 ; State v. Bannister , 11-602 (La. App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied , 12-628 (La. 6/15/12), 90 So.3d 1060. Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the defendant's conduct. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. State v. Holmes , 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 191, writ denied , 13-1395 (La. 1/10/14), 130 So.3d 318.

Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ray , 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied , 13-1115 (La. 10/25/13), 124 So.3d 1096.

In the present case, we find that the State proved beyond a reasonable doubt the elements of the offenses, including the identification of defendant as one of the perpetrators. At trial, J.A. testified that on July 13, 2013, as she was walking towards her apartment with her son and F.P., several individuals in black shirts "came from the front, just ran and started shooting." J.A. stated that she recognized the "first main face" as Kevias Hicks, defendant's brother, and that Kevias was the individual who approached her from the front and shot her son. She explained that she "saw the fire" and that the first bullet hit J. J.A. then "dived down" to grab J. and crawled through the grass, at which point F.P. told her to run. As she was trying to get away with J., J.A. looked up to her right and saw defendant in the parking lot by the dumpster come from behind the building with a "long gun," like a rifle. She subsequently identified defendant and Kevias in a photographic lineup as the perpetrators. In addition, J.A. positively identified defendant at trial as the person she saw with the rifle on the night of the shooting.

With regard to her identification, J.A. admittedly did not positively identify defendant until approximately three months after the shooting. However, the testimony presented at trial established that she knew defendant by his nickname, K.K., and that she had known him for approximately two years prior to the July 13, 2013 shooting. She testified that she and defendant used to live in the same neighborhood in Waggaman, that she was familiar with defendant's face, and that she knew defendant was Kevias' brother. Further, although on the night of the incident, J.A. told Deputy Lewis that she did not know who shot her son and did not see anyone, she identified her voice in the background of the 9-1-1 call saying, "I don't know their names but I know these dudes." She stated at trial that she was talking about defendant and Kevias. In addition, J.A. explained that she did not initially want to get involved or provide an identification because she feared for her life.

Further, the ballistics evidence presented at trial corroborated J.A.'s testimony that defendant was holding a rifle near the dumpster during the shooting. Ms. Rauch, the firearm and tool mark expert, testified at trial that there were eight 7.62 by 39-mm caliber fired cartridge casings recovered that night near the dumpster and that all eight of those casings were fired from the same weapon. Also, Chief Timothy Scanlan, the firearms and crime scene reconstruction expert, testified that the eight casings associated with the assault rifle were located near the dumpster area and that there was a shooter at or near the dumpster location. Chief Scanlan further testified that the crime scene reconstruction based on the recovered evidence from the July 13, 2013 shooting was consistent with J.A.'s description of events.

Based on the testimony and evidence specified above, we find that a rational trier of fact could have concluded that defendant had the specific intent to kill and committed an overt act in furtherance of that goal. Having addressed the elements of the offenses, we now turn our attention to the focus of defendant's argument, that being the credibility of J.A., the State's sole witness to place him at the scene of the July 13, 2013 shooting. Defendant contends that J.A.'s testimony was not based on her independent recollection of the event but rather on her boyfriend's animosity towards Hicks and his family. To support this attack on credibility, defendant points out that J.A. did not identify him until three months after the shooting, that J.A. gave multiple statements to the police regarding the shooting, that each statement either confused the facts from the previous statement or totally conflicted with the previous statement, and further that J.A. lied in the past to protect A.P. and was willing to do so again.

At trial, the jury heard testimony about the alleged ongoing feud between Kevias Hicks and his brothers and A.P. and his family, which resulted in several violent interactions. Further, the jury heard about J.A.'s relationship with A.P. and that he had encouraged her to lie for him with regard to the June 22, 2013 shooting. Additionally, the jury was aware of her delayed identification and the inconsistencies in her statements.

The jury also heard the evidence presented by the defense that there was no ongoing feud between the two families and that defendant knew J.A. and had no reason to shoot at her or her son. Further, during his testimony, defendant maintained that he had nothing to do with the shooting of J., that he was not at the Ridgefield Apartments that night, and that Kevias and Kevin did not convince him to go with them to shoot J.A., J., and F.P. The jury likewise heard defendant's version that J.A. implicated him in the shooting to protect the father of her children, A.P., and further to get out of jail.

In the present case, the jury was informed of all of these issues and the conflicts in testimony and obviously found the State's witnesses to be more credible. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan , 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Additionally, under Louisiana law, a victim's or witness' testimony alone is usually sufficient to support the verdict. State v. Munson , 12-327 (La. App. 5 Cir. 4/10/13), 115 So.3d 6, 13, writ denied , 13-1083 (La. 11/22/13), 126 So.3d 476. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner , 05-75 (La. App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied , 05-2591 (La. 5/26/06), 930 So.2d 20. Here, there was no internal contradiction or irreconcilable conflict with the physical evidence presented at trial.

Based on the foregoing, we find that the evidence presented by the State was sufficient to support the jury's determination that defendant was guilty of two counts of attempted second degree murder. Accordingly, the arguments raised by defendant relating to the sufficiency of the evidence are without merit.

FAILURE TO ADVISE OF MULTIPLE OFFENDER RIGHTS

(Pro Se Assignment of Error Number One)

In his first pro se assigned error, defendant contends that his constitutional rights were violated by the trial court's failure to advise him of his multiple offender rights as mandated by La. R.S. 15:529.1.

In the present case, at the beginning of the multiple offender proceedings, the State noted that it had previously filed a multiple offender bill of information alleging that defendant had one prior felony conviction for unauthorized entry. Defense counsel then informed the court that he reviewed the multiple bill with defendant as well as the certified conviction that the State intended to use and the transcript from trial reflecting defendant's admission that he had a prior felony conviction. Thereafter, defense counsel advised the court that defendant was going to stipulate to his multiple offender status and waive his right to a hearing. The trial court then addressed defendant as follows:

THE COURT:
Mr. Anderson, the State of Louisiana has now filed a - - pursuant to the habitual offender law has filed a multiple offender bill of information against you charging you as a second felony offender. You understand that.
THE DEFENDANT:
Yes.
THE COURT:
...
You understand, sir, that you have the right to have a hearing with regard to that but I've been informed by your counsel that you want to waive your right to have that hearing and enter a plea of guilty to the multiple offender bill. Is that correct?
THE DEFENDANT:
Yeah, because you're going to find me guilty anyway, so ---
THE COURT:
Sir, what I need you to do is answer the question yes or no. You are entitled to have a hearing. Do you want to have that hearing or do you want to enter a plea of guilty to being a multiple offender?
THE DEFENDANT:
Yes, I want to have a hearing.

While preparing to start the hearing, the trial court continued his colloquy with defendant, explaining to him the nature of the hearing and the proof required by the State. Subsequent to this discussion, defense counsel again informed the trial court that defendant was ready to waive the hearing. The trial court, however, opted to proceed with the hearing.

At the hearing, the State introduced defendant's fingerprint card, the certified conviction packet from defendant's unauthorized burglary of a business conviction, and the certified transcript of defendant's trial testimony during which he acknowledged his prior conviction. In addition, the State presented the testimony of Deputy Courtney Sinon, an expert in latent print examination and processing, who testified that she compared the fingerprints of defendant taken that morning to those contained in the introduced certified conviction packet and determined that the fingerprints are from the same individual. Based on the evidence presented, the trial court found defendant to be a second felony offender and thereafter issued a written judgment and reasons.

Based on our review of the transcript, we find no violation of defendant's constitutional rights at the multiple offender proceedings. La. R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the bill of information, his right to a hearing, and his right to remain silent. In the present case, defendant was advised of the allegations contained in the multiple offender bill and of his right to a hearing but was not advised of his right to remain silent. However, the failure of the trial court to advise a defendant of his right to remain silent is harmless error when the multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant.

State v. Haywood , 00-1584 (La. App. 5 Cir. 3/28/01), 783 So.2d 568, 582.

Although the trial judge erred by not advising defendant of his right to remain silent, defendant proceeded to the multiple bill hearing, and the State presented competent evidence at the hearing to establish his multiple offender status. Therefore, the trial court's failure to advise him of his right to remain silent was harmless error. See State v. McClure , 15-237 (La. App. 5 Cir. 9/23/15), 176 So.3d 730, 735. This assigned error is without merit.

PROSECUTORIAL MISCONDUCT

(Pro Se Assignment of Error Number Two)

In his second pro se assigned error, defendant contends that the prosecutor intentionally misrepresented the facts and evidence in a prejudicial way, violating his constitutional rights to a fair and impartial trial and his right to present a defense.

While defendant's arguments in this pro se assigned error are unclear, his main challenge seems to be related to the sufficiency of the evidence used to convict him. He specifically complains about the State's use of "motive" evidence relating to the "back and forth violence" between A.P.'s family and the Hicks families to support his convictions. Defendant reasons that motive is not a crime, he is not charged with motive, and no district attorney can prove motive as it is an ambiguous emotion. He points out that the State did not have any type of factual or physical evidence showing that he had the desire to kill or attempt to kill anyone and that evidence of motive by itself is insufficient to prove his guilt.

To the extent that defendant is now challenging the sufficiency of the evidence used to convict him, we have already fully addressed that issue in the first assignment of error, finding that the State proved the elements of the offenses beyond a reasonable doubt.

While defendant's argument in this assignment focuses on the sufficiency of the evidence used to convict him, he also seems to be indirectly challenging the admissibility of this "motive" evidence, as indicated by his references to the June 24, 2016 hearing, which was held to consider the State's Prieur notice to introduce evidence of other crimes in defendant's trial. At the pretrial hearing, after considering the State's assertion that it intended to use this evidence to show motive under La. C.E. art. 404(B), the trial court ruled admissible at trial the evidence regarding the shootings on June 22, 2013, and July 16, 2013, which involved members of A.P.'s family and the Hicks families.

While we do not necessarily agree that the provisions of La. C.E. art. 404(B) relating to other crimes evidence was the proper basis upon which to introduce these incidents as it pertains to this defendant, we nonetheless find that the complained of evidence was relevant to show motive and to provide a complete narrative of the ongoing dispute between A.P.'s family and the Hicks families, which resulted in a series a violent interactions, including the July 13, 2013 shooting. Therefore, the complained of evidence was properly admitted pursuant to the provisions of La. C.E. arts. 401 - 403. Further, we note that at the June 24, 2016 hearing, defendant did not object to the admissibility of the evidence relating to the June 22 and July 16, 2013 shootings.

Based on the foregoing discussion, we find no merit to defendant's argument that the prosecutor intentionally misrepresented the facts and evidence in a prejudicial way, violating his constitutional rights to a fair and impartial trial and his right to present a defense. This assigned error is likewise without merit.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). Defendant notes in his appellate brief that the trial court failed to advise him of the prescriptive period for filing post-conviction relief as set forth in La. C.Cr.P. art. 930.8. While neither the sentencing transcript nor the minute entry/commitment reflects that the trial judge orally advised defendant of the provisions of La. C.Cr.P. art. 930.8, we note that defendant was in fact provided with both written and oral notices informing him of the time delays for filing post-conviction relief. Specifically, the record contains two letters dated May 8, 2017, and June 29, 2017, issued by the trial court to defendant advising him of the two-year time period for seeking post-conviction relief. Furthermore, the record contains a minute entry from August 28, 2017, reflecting that defendant was present in court for a motion hearing and that the trial court informed defendant that he had "thirty (30) days from today's date to appeal this conviction, and two (2) years after judgement of conviction and sentence has become final to seek post-conviction relief." Nonetheless, out of an abundance of caution, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09-248 (La. 10/30/09), 21 So.3d 272.

Accordingly, for the reasons set forth herein, we affirm defendant's convictions and sentences for two counts of attempted second degree murder.

AFFIRMED

      It is noted that Kevias C. Hicks and Kevin Hicks were charged in the same indictment with two counts of attempted second degree murder stemming from the July 13, 2013 incident. In addition, Kevias Hicks, Kevin Hicks, and Tommie C. Molette a/k/a Tucker Molette were charged with second degree murder and attempted second degree murder arising from an incident that occurred on October 8, 2013. The co-defendants all have appeals pending before this Court: State v. Kevin Hicks , 17-696 (La. App. 5 Cir. 10/17/18), 258 So.3d 1050 ; State v. Kevias C. Hicks , 18-46 (La. App. 5 Cir. 10/17/18), 257 So.3d 1283 ; State v. Tommie C. Molette a.k.a. Tucker Molette , 17-697 (La. App. 5 Cir. 10/17/18), 258 So.3d 1092.

      On May 19, 2016, the trial court granted defendant's motion to sever, and he proceeded to trial alone.

      La. R.S. 15:529.1 does not prohibit enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. State v. Alexander , 12-194 (La. App. 5 Cir. 5/16/13), 119 So.3d 120, 122, n.1, writ denied , 13-1337 (La. 12/6/13), 129 So.3d 529.

      In order to protect the identity of the minor victim, initials of the minor victim and his family members will be used throughout this opinion. See La. R.S. 46:1844(W)(3).

      The 9-1-1 recording was played at trial. J.A. identified her voice in the background of the call saying, "I don't know their names but I know these dudes."

      J.A. also originally identified Kevin Hicks in the photographic lineup; however, she later told Deputy Ragas that she was unsure about Kevin.

      It is noted that in the record, this shooting is referred to as both the Westbank Expressway and the Crescent City Connection shooting. Throughout this opinion, it will be referred to as the Westbank Expressway shooting.

      J.A. was picked up on a material witness warrant and brought to jail to assure her attendance at trial.

      This Court has recognized that although specific intent to inflict great bodily harm is sufficient to support a second degree murder conviction, attempted second degree murder requires a specific intent to kill. State v. Saulny , 16-734 (La. App. 5 Cir. 5/17/17), 220 So.3d 871, 877, writ denied , 17-1032 (La. 4/16/18), 240 So.3d 923.

      During her trial testimony, J.A. recalled that just before the shooting, she saw Brittany Singleton, the mother of Kevias' son, wave her hand as if to signal to Kevias and the others that J.A. was approaching.

      If the record reflects that the defendant was advised of his multiple offender rights by the trial judge and/or his attorney, then the defendant intelligently waived his rights. State v. Hart , 10-905 (La. App. 5 Cir. 5/10/11), 66 So.3d 44, 48, writ denied , 11-1178 (La. 11/18/11), 75 So.3d 448.

      State v. Prieur , 277 So.2d 126 (La. 1973).

      At the hearing, defense counsel specifically stated that he had no objection to the introduction of "those items listed in paragraph 3" of the State's notice of intent to introduce other crimes evidence (the June 22, 2013 shooting). With regard to the trial court's decision to allow the introduction of the July 16, 2013 incident at trial, defense counsel did not object but did point out that defendant was a victim in that case and his only involvement was driving his brother to the hospital after he got shot.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Lavelle M. HARRELL a/k/a Big Mike
    NO. 18-KA-63
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Douglas W. Freese, Gretna, Rachel L. Africk
    COUNSEL FOR DEFENDANT/APPELLANT, LAVELLE M. HARRELL A/K/A BIG MIKE, Cynthia K. Meyer
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant appeals his conviction and sentence for possession of a firearm by a convicted felon. For the following reasons, we affirm. We also remand to the trial court for correction of the commitment and the uniform commitment order.

STATEMENT OF THE CASE

Defendant, Lavelle M. Harrell a/k/a "Big Mike," was charged by indictment with the second degree murder of Ronald Perrier and Jonas Perrier, violations of La. R.S. 14:30.1 (counts one and two), and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count three). Defendant pleaded not guilty at his arraignment.

Defendant proceeded to trial before a twelve-person jury, which found him guilty as charged on count three, possession of a firearm by a convicted felon. However, the jury was unable to reach a verdict on the second degree murder charges, resulting in a mistrial on counts one and two. The trial court sentenced defendant, on count three, to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant now appeals, challenging the sufficiency of the evidence used to convict him of possession of a firearm by a convicted felon.

FACTS

At approximately 6:49 p.m. on the evening of January 27, 2014, brothers Ronald Perrier and Jonas Perrier were shot and killed outside of 932 E. Monterey Court in Terrytown, Louisiana. Defendant and his co-defendants were implicated in the murders by the victims' brother, Jessie Perrier, who testified that he was present at the time his brothers were killed and witnessed defendant shoot at his brother Ronald and then flee the scene. Jessie explained that in the weeks leading up to the murder of his brothers, his brother Ronald was involved in a dispute with defendant/co-defendants.

Jessie provided statements to the police based upon the events he witnessed, and as a result, arrest warrants were issued for defendant and his four co-defendants. Defendant's cell phone was seized at the time of his arrest. Pursuant to a search warrant, a forensic analysis was performed on defendant's cell phone. Several photographs were obtained from defendant's cell phone including pictures found on his camera roll depicting him holding firearms with specific metadata indicating the make and model of the phone which took the photograph and the following "capture" dates: December 19, 2013 and January 25, 2014. A photograph without metadata, depicting defendant holding a firearm while standing with his arm around a woman, was also recovered from defendant's text messages. The information gleaned from the text message indicated that it had been received by defendant on January 5, 2014, but it did not indicate the capture date.

Deputy Donna Quintanilla, an expert in the field of latent print processing and comparison, compared defendant's fingerprints taken on the day before trial to those contained in a certified conviction packet for case number 04-1936 of the Twenty-Fourth Judicial District Court, in which defendant pleaded guilty to the felony offense of distribution of marijuana within one-thousand feet of a playground, in violation of La. R.S. 40:981.3. Based on the fingerprint comparison, Deputy Quintanilla testified that defendant was the same person convicted of violating La. R.S. 40:981.3 in 2004, which formed the basis for the instant conviction of possession of a firearm by a convicted felon.

LAW AND DISCUSSION

In his sole assignment of error, defendant argues the evidence is insufficient to support the verdict of possession of a firearm by a convicted felon. Defendant contends the only testimony presented by the State at trial to show he possessed a handgun was provided by Jessie Perrier-a witness whose testimony was rejected by the jury as evidenced by the jury's inability to reach a verdict on the second degree murder charges. He further submits that the photographs downloaded from his cellular phone and introduced into evidence which depicted him with handguns, specifically State's Exhibits 79H and 79I, do not clearly show that he was actually holding a handgun. Defendant also argues that the State failed to prove that one of the photographs, State's Exhibit 79K, was taken within the date range alleged in the indictment.

The State responds that the evidence is sufficient to support the conviction of possession of a firearm by a convicted felon. The State asserts that eye witness Jessie Perrier testified that he observed defendant shoot at the victims, and that any contradictions to Jessie's testimony concern witness credibility and do not establish that the evidence was insufficient to support the verdict. The State also submits that the photographic evidence retrieved from defendant's cellular phone and introduced at trial establishes that defendant was in possession of various handguns during the relevant time period in question.

The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to determine whether the evidence is sufficient to support the conviction. State v. Hearold , 603 So.2d 731, 734 (La. 1992).

It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Clark , (La. 12/19/16), 220 So.3d 583, 626. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Id. ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, 929, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). Thus, a reviewing court may impinge upon the fact finder's discretion "only to the extent necessary to guarantee the fundamental protection of due process of law." Clark , 220 So.3d at 626 ; State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness's testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall , 04-3139 (La. 11/29/06), 943 So.2d 362, 369.

In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had: (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) an absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. State v. Chairs , 12-363 (La. App. 5 Cir. 12/27/12), 106 So.3d 1232, 1250, writ denied , 13-306 (La. 6/21/13), 118 So.3d 413.

Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1. State v. Jones , 09-688 (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 315, writ denied , 11-1301 (La. 3/2/12), 83 So.3d 1042. Constructive possession is sufficient to satisfy the element of possession. Id. ; State v. Day , 410 So.2d 741, 743 (La. 1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson , 03-1228 (La. 4/14/04), 870 So.2d 995, 998. A person's dominion over a weapon constitutes constructive possession, even if it is only temporary in nature and even if control is shared. Id. at 999.

General intent requires a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Howard , 94-23 (La. 6/3/94), 638 So.2d 216, 217.

In the present case, the evidence was clearly sufficient to support defendant's conviction for possession of a firearm by a convicted felon. Deputy Quintanilla testified that she took defendant's fingerprints the day before the commencement of this trial and compared those to the fingerprints contained in a certified conviction packet from a distribution of marijuana within one-thousand feet of a playground (a violation of La. R.S. 40:981.3 ) charge, to which defendant pleaded guilty on May 17, 2004, and was sentenced on June 1, 2004. The indictment in this case alleges defendant committed the crime of possession of a firearm by a convicted felon between January 27, 2013 and January 27, 2014. Thus, evidence of defendant being a convicted felon, as well as the date of his previous conviction being within the ten-year cleansing period, was presented to the jury.

The jury was also presented with photographic evidence retrieved through the course of a forensic analysis performed on defendant's cellular phone seized at the time of his arrest, including:

1) State's Exhibits 79L and 79M: a photograph retrieved from defendant's camera roll with metadata indicating a capture date of December 19, 2013, depicting defendant holding a gun while kneeling next to two other men.
2) State's Exhibits 79J and 79K: a photograph retrieved from defendant's text message database having been received on January 5, 2014, with no metadata, depicting defendant holding a gun while standing next to a woman.
3) State's Exhibits 79H and 79I: a photograph retrieved from defendant's camera roll with metadata indicating a capture date of January 25, 2014, depicting defendant with two guns on his chest and a partial visible hand.

On appeal, defendant challenges the sufficiency of the evidence based upon State's Exhibits 79K and 79H/I. However, he fails to challenge State's Exhibits 79L/M, which clearly show defendant holding a gun while kneeling next to two other men on December 19, 2013-a date which occurred after his prior felony conviction and within the range alleged in the indictment (between January 27, 2013 and January 27, 2014). Detective Steven Villere, an expert in the field of mobile device forensics, testified that State's Exhibits 79L/M were found on defendant's camera roll and contained metadata providing for the make and model of the phone which captured the image as well as the capture date and the time the photograph was taken. Thus, with the photograph in State's Exhibits L/M, the State satisfied its burden of proving defendant possessed a gun during the applicable time period and had the general intent to possess it.

Defendant argues that State's Exhibits 79H/I, depicting defendant with two guns resting on his chest and a portion of his hand/arm resting under the guns to support their position, are insufficient to prove that he possessed a firearm, because "the reasonable possibility that these handguns were superimposed on [defendant's] chest by using photo technology was not refuted by the State." However, this theory was not presented at trial, nor does the record on appeal support such an assertion. Also, defendant challenges State's Exhibit 79K, depicting defendant with a gun in his hand while standing next to a woman, asserting that while this photograph was received via text message on January 5, 2014, it does not contain the metadata necessary to decipher the date the photograph was actually taken. Defendant is correct in this assertion. Nevertheless, even if these images (State's Exhibits 79H/I and/or 79K) were disregarded, the evidence presented by the State was sufficient to prove defendant possessed a gun within the applicable time period.

Taking into account the uncontradicted evidence of defendant's prior felony conviction, as well as the photographs retrieved from defendant's cellular phone that were captured during the time period in question, in viewing the evidence detailed above in the light most favorable to the prosecution, we find the jury had a rational basis to conclude the State proved all essential elements of the crime of possession of a firearm by a convicted felon.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Three errors were noted, two of which require corrective action.

First, defendant's sentence is illegally lenient due to the failure of the trial court to impose the mandatory fine. La. R.S. 14:95.1(B) provides for a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. In this case, neither the commitment nor the transcript reflects the imposition of the mandatory fine required under the statute.

The Louisiana Supreme Court has held that an appellate court has the authority under La. C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. State v. Campbell , 08-1226 (La. App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied , 09-1385 (La. 2/12/10), 27 So.3d 842. However, this authority is permissive rather than mandatory. State v. Horton , 09-250 (La. App. 5 Cir. 10/27/09), 28 So.3d 370, 376. This Court has often declined to use its authority to remand cases for imposition of a mandatory fine when the defendant is indigent. See Horton , supra .

In the present case, neither party has raised this issue, and defendant is represented by the Louisiana Appellate Project, which provides appellate legal services for indigent criminal defendants in non-capital felony cases. Due to defendant's indigent status, we decline to remand this matter for imposition of the mandatory fine.

Second, there is a discrepancy between the commitment and the transcript. The commitment reflects the trial court designated defendant's conviction as a crime of violence, whereas the transcript does not. If "there is a discrepancy between the minutes and the transcript, the transcript must prevail." State v. Lynch , 441 So.2d 732, 734 (La. 1983).

While certain crimes are required to be designated by the court in the minutes as a "crime of violence" per La. C.Cr.P. art. 890.3(C), the crime of possession of a firearm by a convicted felon is not one of them. La. R.S. 14:2(B) defines, "crime of violence" as an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The statute thereafter provides a list of enumerated offenses and states that those offenses and attempts to commit any of them are included as "crimes of violence." Possession of a firearm by a convicted felon does not fall within the statutory definition of a crime of violence or under any of the enumerated offenses listed as crimes of violence. Thus, the designation in the commitment of defendant's conviction as a crime of violence is erroneous.

This Court has previously remanded cases for correction of the commitment in its error patent review. See State v. Beal , 13-925 (La. App. 5 Cir. 5/14/14), 142 So.3d 124. Accordingly, we remand this case for correction of the commitment for accuracy purposes with regard to the noted discrepancy.

Lastly, the uniform commitment order (UCO) incorrectly reflects the date of the offense on count three as January 27, 2014. However, the record reflects that the offense occurred between January 27, 2013 and January 27, 2014. This Court has previously remanded a case for correction of the UCO in its error patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170. Accordingly, we remand the matter for correction of the UCO to accurately reflect the date range of the offense for count three. We further order the Clerk of Court for the Twenty-Fourth Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Doucet , 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598, 609.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence. We also remand to the trial court for correction of the commitment and the uniform commitment order.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      Defendant was charged in counts one and two along with four co-defendants: Andrew M. Johnson a/k/a Mikey a/k/a Dolamike; Ashton D. Milton a/k/a Ackie; Joshua C. Parker a/k/a Stacks; and David M. Samuels, Jr. a/k/a Soup a/k/a Lil Dave. Defendant and his co-defendants were tried together.

      Defendant subsequently filed a motion to reconsider sentence, which was denied by the trial court.

      Because a mistrial was declared by the trial court on counts one and two, the facts presented herein primarily relate to defendant's conviction for possession of a firearm by a convicted felon.

      The State and defense witnesses gave conflicting testimony regarding whether or not Jessie Perrier was present at the scene at the time of the murders.

      Detective Steven Villere, an expert in the field of mobile device forensics, testified that the "capture" time is the date and time the photograph was taken.

      A violation of La. R.S. 40:981.3 is a violation of the Uniform Controlled Dangerous Substances law-an enumerated felony under La. R.S. 14:95.1.

      At trial, Jessie Perrier testified that he was present when his brothers were murdered on January 27, 2014, and that he saw defendant possess a gun and shoot it. Defendant asserts that Jessie Perrier's trial testimony should be disregarded as support for his conviction, because his testimony "was rejected by the jury as evidenced by the inability of the jury to reach a verdict on the second degree murder charges." The jury's failure to reach a verdict on the murder charges does not mean that it rejected the entirety of Jessie's testimony. However, we need not consider this argument, because the photographic evidence was sufficient to support the verdict.