author: WICKER, J.

text:
    STATE of Louisiana v. Trevor CLIFTON
    NO. 17-KA-538
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Gail D. Schlosser, Matthew R. Clauss, Joshua K. Vanderhooft,
    COUNSEL FOR DEFENDANT/APPELLANT, TREVOR CLIFTON, Lieu T. Vo Clark
    DEFENDANT/APPELLANT, TREVOR CLIFTON, In Proper Person
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   WICKER, J.

Defendant, Trevor Clifton, appeals his convictions for sexual battery of a juvenile in violation of La. R.S. 14:43.1 and his subsequent adjudication and sentence as a multiple offender. For the following reasons, we affirm defendant's convictions but vacate his enhanced sentence as a multiple offender under La. R.S. 15:529.1, and remand this matter to the trial court for resentencing.

STATEMENT OF THE CASE

On February 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Trevor Clifton, with one count of sexual battery of a juvenile under the age of thirteen, in violation of La. R.S. 14:43.1 (count one), and one count of sexual battery of a juvenile under the age of fifteen, in violation of La. R.S. 14:43.1 (count two). Defendant pled not guilty at his arraignment.

The matter proceeded to trial and, on January 26, 2017, a twelve-person jury found defendant guilty as charged. On February 9, 2017, the trial court sentenced defendant to sixty years imprisonment at hard labor, with the first twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence on count one and ten years imprisonment at hard labor to be served without benefit of parole, probation, or suspension of sentence on count two. The trial court ordered defendant's sentences to be served concurrently, recommended defendant for participation in any self-help programs available to him, and ordered that, upon completion of his term of imprisonment, defendant be monitored by the Department of Public Safety and Corrections through the use of electronic monitoring equipment for the remainder of his natural life. The trial court further ordered that defendant register as a sex offender pursuant to La. R.S. 15:543.1 and provided defendant with a written copy of the sex offender notification requirements. On February 23, 2017, defendant filed a motion to reconsider sentence.

The State filed a multiple offender bill of information on count one, alleging defendant to be a second felony offender, to which defendant pled not guilty. On April 13, 2017, the trial court conducted a hearing and adjudicated defendant a second felony offender. The trial court vacated defendant's sentence on count one and resentenced him, pursuant to La. R.S. 15:529.1, to sixty years imprisonment at hard labor to be served without benefit of probation or suspension of sentence. After imposition of his enhanced sentence, defendant orally "converted" his previously filed motion to reconsider sentence to argue that the imposition of his sixty-year enhanced sentence was excessive. The trial court denied defendant's motion to reconsider. This timely appeal follows.

FACTUAL BACKGROUND

The victim, C.C., testified that in the early morning hours of October 2, 2015, she was in her bedroom getting ready for school. Upon exiting her room, C.C.'s "step-father," defendant, was standing in the hallway waiting for her. C.C. recalled that defendant instructed her to come over to him and to pull down her pants. He then ordered her to get down on the ground on all fours at which time he got down on his knees, pulled down his pants, and put his penis inside her vagina. C.C. testified that her mother, D.C., came out of her bedroom, saw defendant with her, and began hitting him. C.C. recalled that defendant promised her mother that he would go to church with her if she agreed not to call the police and that he then attempted to hide the phone before grabbing a knife and fleeing the house.

C.C. testified at trial that her encounter with defendant on October 2, 2015, was not the first instance of sexual abuse committed by defendant. She recalled other occasions, when her mother was not at home, in which defendant would retrieve her from her bedroom and instruct her to go out into the hallway, pull down her pants, and "get on all fours" on the floor. She testified that he would then pull down his pants and put his penis in her "booty between [her] legs." She further testified that at night, while her mother was asleep, she would lock her bedroom door and barricade it with toys but that defendant would find a way in and would tell her to do "the same thing" in the hallway. She recalled that when he would "finish" he would "clean up" with a white towel.

C.C. also told the jury that there were instances "a long time ago" when defendant would pick her up from Bible study and take her to an isolated location where he would instruct her to pull down her pants at which time he would get in front of her and "lay" his penis "in front of-in between [her] legs and he would, like, do it." C.C. recalled an earlier incident when she and defendant were at home and he touched her legs, which she stated made her feel "scared, nervous, and disgusting." There were also times, according to C.C., when defendant would instruct her to perform oral sex on him and request that she "make noises." C.C. stated that although she would not make the "noises" requested of her, defendant would moan during the sexual acts. C.C. testified defendant instructed her not to tell her mother and that she was "scared and nervous" to tell her mother or anyone else.

Anne Troy, an expert family nurse practitioner with Children's Hospital specializing in forensic nursing, including child sexual abuse and delayed disclosure, testified at trial. Nurse Troy explained for the jury that delayed disclosures in sexual abuse cases involving children are very common due to the often close relationship between the victim and the perpetrator. She further explained it was common in sexual abuse cases for children to present with "normal bodies" upon examination. Nurse Troy testified that a sexual abuse victim may disclose information gradually as the child begins to feel more supported and that the details of the victim's reports can vary depending on who the victim is speaking to and the victim's level of comfort. Nurse Troy further explained that it is not unusual for a child to acquiesce to the sexual abuse because of his or her love for the abuser and/or shock or fear at the time of the abuse.

Nurse Troy testified that she conducted a forensic examination on C.C., who was fourteen years old at the time of the examination on October 2, 2015. C.C.'s explanation of the events to Nurse Troy corroborated C.C.'s trial testimony. During her evaluation, C.C. told Nurse Troy that her "stepdaddy" put his "private part in me." She explained she was getting ready for school on October 2, 2015, when defendant knocked on her bedroom door. C.C. told him "no leave me alone," but defendant waited in the hallway and proceeded to warn her that if she did not come with him he was going to hurt her. C.C. followed defendant's command, pulled down her pants, and got down on her knees. She told Nurse Troy that defendant then pulled down his pants and put "his private part" in her "private part." C.C. further told Nurse Troy that D.C. walked into the bathroom, saw what was going on, and began crying and hitting defendant. She recalled that D.C. told defendant she was going to call the police, and that defendant told D.C. he was not going to "do it again" and would start going to church.

During the interview with Nurse Troy, C.C. initially denied any prior sexual abuse, stating that she did not want to "get in trouble" with her mom. After Nurse Troy assured C.C. that she would not be in trouble, C.C. then relayed other occasions of sexual abuse to Nurse Troy. C.C. told Nurse Troy that, on other occasions, defendant would come into her bedroom while she was sleeping, wake her up, and tell her "you better come or I'm going to hurt you." Defendant would then instruct her to go into the hallway where he would "put his private part inside" of her.

C.C. recalled that her stomach hurt when he did "those things" to her and that she also feared that she would become pregnant.

C.C. told Nurse Troy that the first time defendant did "something" to her was when she was "nine or thirteen." She explained she was too scared to tell her mother because defendant threatened to hurt her if she did and that often times he was drunk when he came into her bedroom. She stated that when her mother would leave the house, she would ask if she could go to her grandmother's house so that she did not have to be at home alone with defendant.

During Nurse Troy's examination, a rape kit was collected with no abnormal findings present. Testing for various sexually transmitted diseases was also performed which resulted in negative findings. Nurse Troy testified that normal physical examinations are common in sex abuse cases. Nurse Troy concluded that, in her expert opinion, C.C. was subjected to sexual abuse and that there were no indications of fabrication or coaching with respect to the reported abuse.

Brittney Bergeron, a forensic interviewer for the Children's Advocacy Center ("CAC") in Jefferson Parish, testified that she conducted a forensic interview with C.C. on October 5, 2015. Concerning the October 2, 2015 abuse, C.C. further recalled-as she testified to at trial-that, after her mother discovered her and defendant having sex, defendant grabbed a knife and threatened to kill himself if D.C. contacted police.

C.C. reported other instances of abuse to Mrs. Bergeron. C.C. told Mrs. Bergeron that defendant would pick her up from Bible study and take her "somewhere else" with her responding to defendant that she did not "want to do that." C.C. further stated that on one occasion defendant told her to rub his "private part" and when she said no, he grabbed her hand and "made" her "do it" by placing her hand on his "private part." C.C. recalled on another occasion, when she was thirteen, where defendant came into her room and told her to lie down at which time he "put his private part" inside her "in front." C.C. stated that, in an effort to prevent defendant from entering her bedroom during the night, she would take her sister's toys and put them in front of her bedroom door.

C.C.'s mother, D.C., testified that she adopted C.C. shortly after she was born on November 25, 2000, and that defendant-her ex-boyfriend and father to her youngest biological child-was born on March 20, 1979. She testified that defendant began living with her in 2005 and that they moved into a new house together in Gretna in 2008, when C.C. was eight years old. D.C. testified that she ended her relationship with defendant in April of 2015 when she discovered that she had contracted a sexually transmitted disease which she believed she had contracted from defendant. However, she permitted defendant to continue living with her until he could make other living arrangements but mandated that he sleep on the couch.

D.C. recalled that on October 2, 2015, she woke up at 6:21 a.m. to discover a quiet house, which she found to be strange since her daughter was supposed to be up and getting ready for school. When D.C.

walked down the hallway in search of C.C., she found C.C. and defendant "doing things." D.C. testified that when defendant saw her, he jumped up and turned away to "fix" himself. D.C. asked C.C. why she did not tell her "what was going on" with defendant to which C.C. replied, "Mama, I was scared." D.C. testified that she and defendant began fighting and that she instructed C.C. to call the police. While C.C. called the police, defendant knocked the phone from C.C.'s hand. Defendant begged D.C. not to report him to the police because "he can't go to jail" and told her, as he ran to the kitchen to retrieve a knife, that he would rather kill himself than go to jail. D.C. testified that, as police arrived, defendant fled out the back door.

D.C. also recalled that she noticed changes in her daughter at the age of nine or ten years, at which time C.C.'s grades in school began to decline and she would forget certain things she had learned at a young age, such as how to tie her shoes. Upon noticing these changes, D.C. sought help for her daughter with her pediatrician who referred C.C. for psychological evaluation. In 2011, when C.C. was eleven years old, she was seen at the Jefferson Parish Human Services Authority and was diagnosed with signs of depression, depressed mood, diminished interest in pleasure, insomnia, fatigue, loss of energy, and diminished ability to concentrate.

D.C. further testified that, around that same time, she noticed defendant began acting "mean" towards C.C. and observed that C.C. avoided being around defendant by locking herself in her bedroom and barricading her door at night. D.C. testified that she eventually sat down with both C.C. and defendant to figure out a solution to the obvious hostility they displayed towards one another. D.C. testified that, at that time, she attributed the hostility in C.C.'s and defendant's relationship to the recent birth of C.C.'s younger sibling-D.C.'s and defendant's biological child.

D.C. told the jury that her daughter struggles with making friends and does not care to leave the house. She further testified that C.C., even though sixteen years old at the time of trial, follows D.C. around everywhere and at times urinates on herself.

Detective Joseph Hebert and Deputy Maya Seymour of the Jefferson Parish Sheriff's Office testified that on October 2, 2015, they responded to a "disturbance" call from the victim's home in Westwego. Deputy Seymour spoke to fourteen-year-old C.C., who was crying as she explained the details of what had just occurred with defendant. Detective Hebert observed that the back door of the residence was open, and defendant could not be located. Based on her discussion with C.C., Deputy Seymour placed an aggravated rape dispatch call, to which supervising officers responded, and a warrant for defendant's arrest was obtained.

Upon discovering that defendant had fled the scene, Detective Donald Zanotelli with the Jefferson Parish Sherriff's Office-pursuant to an exigent circumstances request which described defendant as an aggravated rape suspect who was "suicidal, homicidal and was armed with a knife"-tracked defendant's cellular phone. A tracking of defendant's cellular devices reflected that defendant frequently contacted a cell phone registered to Trenelle Jourdan. Officers arrived at Ms. Jourdan's location, where defendant was found hiding behind a refrigerator and eventually apprehended.

Ms. Jourdan confirmed that defendant called her immediately after the October 2, 2015 incident and that she picked him up near the scene of the crime. She testified that defendant appeared suicidal and told her of his intent to take his own life and "slit his wrist" with a knife. Defendant told Ms. Jourdan that he was "in trouble" and that he "did something, he drank too much."

Dr. Marcella Zozaya, an expert in the field of forensic DNA analysis and comparison, testified that she analyzed the specimens in the rape kit performed on C.C. at Children's Hospital and found them to be negative for seminal fluid and spermatozoa, but noted the presence of epithelial (skin) cells on certain swabs taken during C.C.'s examination. Dr. Zozaya testified that the perineal swab and vaginal swab did not contain a detectable level of Y chromosome (male) DNA. However, with respect to the labia majora swab and the external genitalia swab, Dr. Zozaya found a detectable level of Y chromosome (male) DNA. Dr. Zozaya explained that while there was Y chromosome (male) skin cell DNA detected on the labia majora and external genitalia swabs, there was insufficient Y chromosome DNA to process a valid profile for identification comparison. Dr. Zozaya opined that it was "highly likely" that skin friction caused the shedding of the male epithelial (skin) cells that were found on C.C.'s labia majora and external genitalia.

DISCUSSION

On appeal, defendant's appointed appellate counsel has filed a brief, challenging the excessiveness of defendant's sixty-year enhanced sentence as a multiple offender pursuant to La. R.S. 15:529.1. Defendant has also filed a pro se appellate brief, raising three separate assignments of error. Because we must vacate defendant's sixty-year enhanced sentence under La. R.S. 15:529.1 due to an error patent, as discussed below, we pretermit discussion of counsel's assigned error and address defendant's pro se assignments of error in turn.

Pro Se Assignment of Error No. 1

In his first pro se assignment of error, defendant contends his sexual battery upon a juvenile convictions are illegal because he was never arrested for, arraigned, or pled to the charged offenses. Defendant contends that he was arrested on charges of first degree rape and molestation of a juvenile-offenses for which he was never charged-but was subsequently convicted of sexual battery upon a juvenile in violation of La. R.S. 14:43.1, which he asserts is in violation of his due process rights.

Defendant accurately asserts that he was arrested, pursuant to an arrest warrant, on charges of first degree rape, in violation of La. R.S. 14:42, and molestation of a juvenile, in violation of La. R.S. 14:81.2, on or about October 2, 2015. After his arrest, on November 6, 2015, a Jefferson Parish Commissioner found probable cause to hold defendant on charges of first degree rape and molestation of a juvenile.

On February 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of sexual battery of a juvenile under the age of thirteen, in violation of La. R.S. 14:43.1, and one count of sexual battery of a juvenile under the age of fifteen, in violation of La. R.S. 14:43.1. Defendant was present for his arraignment and pled not guilty at his arraignment to those charges on February 5, 2016.

While it is accurate that the district attorney charged defendant with crimes different than those for which he was arrested, the language of La. C.Cr.P. art. 61 gives the district attorney broad discretion in determining whom, when, and how to prosecute. Additionally, under La. R.S. 14:4 , when the offender's alleged conduct violates more than one criminal statute, the prosecution may proceed under any applicable statute at the discretion of the district attorney. State v. Smith , 99-0606 c/w 99-2015 (La. 7/6/00), 766 So.2d 501, 514. Thus, the district attorney in the instant case had the discretion to prosecute defendant for two counts of La. R.S. 14:43.1, where defendant's conduct was criminal under either La. 14:43.1 or the criminal statutes under which he was arrested- La. R.S. 14:42 and 14:81.2.21. "It is thereafter left to the trier of fact to determine if the State met its burden of proving the elements of the charged offense." State v. Fisher , 12-412 (La. App. 5 Cir. 11/27/12), 105 So.3d 964, 969. Accordingly, we find that the district attorney was within his discretion in prosecuting defendant under La. R.S. 14:43.1. This assignment has no merit.

Pro Se Assignment of Error Number 2

In his second pro se assignment of error, defendant claims that the trial court erred in denying his "Motion to Enjoin Victim's Family From Showing Emotion in the Courtroom While Sitting as Spectators," which the trial judge denied on September 19, 2016. Defendant maintains that any emotion shown by the victim's family during trial could have influenced the jury verdict and denied him his right to a fair trial.

The record reflects that, in denying defendant's motion, the trial court notified the parties as follows:

The Court is going to deny said Motion, but for the record, I will let Counsel know and client know that it's normal for me to actually inform anyone who's a part of the family on either side that if they cannot control their emotions to please step outside. But I can't say what a person is going to Do, [sic] but I will instruct them that if they can't conduct themselves accordingly, to please step outside during the trial or when it gets to the point where we're talking about reading the verdict for them, so they will not be disruptive in any way.

Therefore, although the trial judge denied defendant's motion, he did warn counsel that all family members should refrain from emotion and that, if the need arose, he would remove any family member who could not control his/her emotions in the courtroom. Nevertheless, there is no indication in the record that any such admonishment or removal of any family members was necessary during the trial. Therefore, because the actions that were the subject of defendant's motion did not come to fruition, we find that defendant has failed to show that he was prejudiced or denied his right to a fair trial by the denial of this motion. This assignment has no merit.

Pro Se Assignment of Error Number Three

In his third pro se assignment of error, defendant claims generally that his constitutional right to a fair trial was denied when the trial court allowed witnesses Nurse Troy and Nancy Weber to testify as to "evidence of hearsay to verify the complaint." Defendant does not point to any specific statements made by Nurse Troy or Nancy Weber at trial that he alleges constitute hearsay. Rather, he makes a general allegation that the trial court erred in allowing the hearsay testimony of Nurse Troy and Nancy Weber. Upon review of defendant's pro se brief, we find that defendant has failed to state with specificity which statements he alleges are hearsay that the trial court impermissibly allowed at trial. Accordingly, defendant has failed to adequately brief the alleged error and the lack of specificity precludes appellate review of this assignment of error. See State v. Crosby , 98-0372 (La. App. 4 Cir. 11/17/99), 748 So.2d 502, 509, writ denied , 99-3463 (La. 1/28/00), 753 So.2d 833 ; see also Uniform Rules of Court-Courts of Appeal, Rule 2-12.4.

In his third pro se assignment of error, defendant further appears to challenge the sufficiency of the evidence presented against him. Defendant first contends that the evidence presented against him was insufficient because "the only evidence was the testimony of the victim and her adopted mother." Second, defendant argues that the fact that C.C. did not test positive for any sexually transmitted diseases creates reasonable doubt that defendant committed the crime, pointing to D.C.'s testimony during which she stated that she believed she contracted a sexually transmitted disease from defendant.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Bone , 12-34 (La. App. 5 Cir. 9/11/12), 107 So.3d 49, 58, writ denied , 12-2229 (La. 4/1/13), 110 So.3d 574 (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. King , 06-554 (La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied , 07-0371 (La. 5/4/07), 956 So.2d 600 ). This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey , 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied , 09-1305 (La. 2/5/10), 27 So.3d 297.

An appellate court's primary function is not to redetermine the defendant's guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury's conclusion. Bone, supra ; State v. Banford , 94-883 (La. App. 5 Cir. 3/15/95), 653 So.2d 671.

Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams , 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Bone, supra ; State v. Wooten , 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied , 99-2057 (La. 1/14/00), 753 So.2d 208.

Defendant was convicted of two counts of sexual battery of a juvenile (one count having occurred when the victim was under the age of thirteen years, and one count when the victim was under fifteen years of age). Sexual battery is defined in pertinent part as "the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, [directly or through clothing], or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, [directly or through clothing]," when the victim has not yet attained fifteen years of age and is at least three years younger than the offender. Further, La. R.S. 14:43.1(C)(2) provides for a harsher penalty when the victim is under the age of thirteen and the offender is seventeen years of age or older.

The credibility of a witness, including the victim, 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. State v. Gonzalez , 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233, writ denied , 15-1771, 2016 La. LEXIS 1955 (La. 9/23/16). In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Hernandez , 14-863 (La. App. 5 Cir. 9/23/15), 177 So.3d 342, 351, writ denied , 15-2111 (La. 12/5/16), 210 So.3d 810. In sex offense cases, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Id.

Upon review of the record, we find that the evidence presented at trial established each element of the two offenses of sexual battery for which defendant was convicted. At trial, C.C. testified as to acts committed by defendant that constitute sexual battery occurring at various times beginning when C.C. was nine years old and concluding at the age of fourteen. She testified regarding several instances when defendant had sexual intercourse with her, when she performed oral sex on defendant at his instruction, and when defendant forced her to touch his penis with her hand, all of which constitute sexual battery. See State v. Perkins , 11-162 (La. App. 5 Cir. 12/28/11), 83 So.3d 250, 257 ; State v. Bienvenu , 14-541 (La. App. 5 Cir. 12/16/14), 167 So.3d 63, writ denied , 15-0098 (La. 11/20/15), 180 So.3d 314 ; and State v. Anderson , 10-779 (La. App. 5 Cir. 3/27/12), 91 So.3d 1080.

The eyewitness testimony of D.C.-who testified that she walked in on defendant and her daughter having sexual contact on October 2, 2015-corroborated C.C.'s trial testimony. Further, the recorded interviews with Nurse Troy and Mrs. Bergeron corroborated C.C.'s testimony concerning both the October 2, 2015 incident as well as earlier incidents of abuse. Additionally, the State produced evidence to show that, on the date of the alleged October 2, 2015 sexual abuse, the DNA swabbing of C.C.'s vaginal area reflected male DNA skin cells on the outside and inside of her vagina. We find the evidence presented at trial against defendant to be sufficient to support his convictions for sexual battery in violation of La. R.S. 14:43.1.

Moreover, defendant's hypothesis of innocence that C.C. would have necessarily tested positive for an STD if she had sexual contact with defendant is not supported in the record. First, other than D.C.'s speculative testimony that she "believed" she contracted an STD from defendant, no evidence was presented to establish that defendant in fact had an STD or that he transmitted an STD to D.C. Further, Nurse Troy testified that C.C. was tested for various STDs, but was not tested for all STDs and was never tested for Trichomonas Vaginalis, the only specific STD referenced at trial. Moreover, defendant's hypothesis of innocence was presented by the defense in closing arguments and rationally rejected by the jury. This assignment lacks merit.

ERRORS PATENT

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. 5 Cir. 1990). The record reflects the following errors patent.

First, defendant received an illegally lenient multiple offender sentence on count one. The transcript reflects that when the trial judge resentenced defendant on count one-sexual battery of a juvenile under the age of thirteen-he imposed a sixty-year sentence without the benefit of probation or suspension of sentence. The multiple offender statute, La. R.S. 15:529.1(G), provides that any sentence imposed under its provisions "shall be at hard labor without benefit of probation or suspension of sentence." Thus, the multiple offender statute does not impose a parole restriction. Nevertheless, the restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. In this case, the underlying offense in the reference statute, La. R.S. 14:43.1, imposes a parole restriction. La. R.S. 14:43.1(C)(2) requires that "at least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence." Therefore, we find that the trial court erred by not restricting parole eligibility on defendant's enhanced sentence for at least twenty-five years.

Because the trial judge did not mandate the length of time that defendant must serve without benefit of parole, and because the language of the sentencing statute requires an exercise of the trial court's discretion in determining the exact length of time that benefits are to be restricted, we vacate defendant's enhanced sentence on count one and remand this matter for resentencing in accordance with the underlying statute. See State v. Wilt , 14-823 (La. App. 5 Cir. 4/29/15), 170 So.3d 317, 327, writ denied , 15-1055 (La. 5/2/16), 206 So.3d 877 ; State v. Smith , 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 508-09, writ denied , 09-2102 (La. 4/5/10), 31 So.3d 357.

Second, there are several discrepancies between the transcript and the original Louisiana Uniform Commitment Order (UCO). Generally, when the transcript and commitment are inconsistent, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). The UCO indicates that the offense date was November 25, 2009; however, the record reflects that the offenses occurred on multiple dates: count one-on or between November 25, 2009 and November 24, 2013; and count two-on or between November 25, 2013 and October 2, 2015. Additionally, the UCO reflects that defendant was given "60 Year(s) without benefit of parole, probation, or suspension of sentence." However, during sentencing, the trial court imposed only twenty-five years of the sixty-year sentence to be served without benefit of parole, probation, or suspension of sentence on count one. Thus, the UCO should reflect that twenty-five years, and not sixty years, of defendant's original sixty-year sentence be served without benefit of parole, probation, or suspension of sentence.

Accordingly, we remand this matter to the trial court for correction of the UCO and direct the Clerk of Court for the 24th 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. Long , 12-184, pp. 10-11 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ).

In this case, the State introduced sufficient proof through competent evidence that defendant was the individual who pled guilty to possession of cocaine, in violation of La. R.S. 40:967(C), in case number 99-6591 of the 24th Judicial District Court on December 2, 1999. The State offered proof of defendant's identity through a certified conviction packet, waiver of rights form, a fingerprint card associated with the prior conviction, and the testimony of fingerprint expert witness Joel O'Lear at the multiple bill hearing. Thus, we find that the trial court's failure to advise defendant of his multiple offender rights is not a reversible error requiring corrective action.

DECREE

Accordingly, for the reasons provided herein, defendant's convictions are affirmed. Defendant's multiple offender sentence on count one is vacated and this matter is remanded for resentencing and for further corrective actions consistent with this opinion.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED; MATTER REMANDED

      During sentencing on defendant's multiple bill, the trial court again recommended defendant for participation in any self-help programs available to him, advised him of his sex offender registration obligations previously provided to him in writing at original sentencing on February 9, 2017, and ordered that upon completion of his term of imprisonment, defendant be monitored by the Department of Public Safety and Corrections through the use of electronic monitoring equipment.

      In accordance with La. R.S. 46:1844(W)(3), the victim, who is a minor, and the victim's family members will be referred to by their initials to protect the victim's identity. C.C. was sixteen years old at the time of trial and testified that she was born on November 25, 2000.

      While C.C. referred to defendant as her "step-father," having known him for nearly her entire life, the testimony at trial appears to establish that defendant and C.C.'s mother-D.C.-were never married.

      D.C., C.C.'s mother, confirmed in testimony that, during her intimate relationship with defendant, he would often ejaculate into a white towel.

      C.C. testified that she went to Bible study "a long time ago." D.C. testified that C.C. began going to Bible study in 2009 when C.C. was approximately eight or nine years old. Also, on cross-examination, C.C. testified that she was nine years old the first time the sexual abuse began.

      C.C. also told Nurse Troy that, on one occasion, defendant made her put her mouth on his "private part."

      Nurse Troy confirmed that it is common for a child to have somatic complaints, such as stomach pain, to express their pain.

      Nurse Troy noted that a test for Trichomonas Vaginalis was not performed on C.C., but that C.C. was nonetheless treated for it, per standard of care guidelines.

      The 9-1-1 recording was played for the jury during the testimony of Jefferson Parish Sheriff's Office custodian of records, Nancy Webber. On the recording, a man is heard stating "I didn't do that" before the phone is disconnected. The 9-1-1 operator is then heard calling back and a man's voice is heard stating, "I can't go to jail" before it is again disconnected. A third attempt is made by the 9-1-1 operator to reach the person who placed the call, at which time a man states "don't answer the phone" before it is disconnected for the last time.

      Nurse Troy confirmed that it is common for victims who have a history of sexual abuse to exhibit certain symptoms such as poor school performance, depression, diminished interest in pleasures or activities, insomnia, and fatigue.

      Nurse Troy testified at trial that day and night time bedwetting has been correlated with sexual abuse in children.

      Having been unable to locate defendant at any of the addresses associated with his cell phone, it was soon discovered from defendant's cell phone provider that defendant had disconnected his phone that day and changed his cell phone number. A trace of defendant's new cell phone number revealed that defendant had contacted Ms. Jourdan numerous times on that date. Detective Zanotelli learned that Ms. Jourdan had a Mustang model vehicle registered in her name so he placed her license plate number in the Automatic License Plate Recognition System in an attempt to determine her vehicle's location.

      Detective Kay Horne of the Jefferson Parish Sheriff's Office testified that she spoke to Trameka Clifton-defendant's sister-while attempting to locate defendant. Detective Horne testified that Ms. Clifton reported to her that defendant told Ms. Clifton that, on the date of the incident in question, he was asleep in the hallway and woke up to discover C.C. performing oral sex on him, and that it was "just a big misunderstanding." At trial, Ms. Clifton denied making that statement to police.

      On October 7, 2015, defendant was brought before a Jefferson Parish Commissioner on a motion to set bond. The Commissioner set his bond on the first degree rape at $750,000, and on the molestation of a juvenile at $50,000.

      La. C.Cr.P. art. 61 provides:
      Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

      La. R.S. 14:4 provides:
      Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender's conduct is:
      (1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes;
      or
      (2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

      In State v. Juluke , 374 So.2d 1259 (La. 1979), a case in which the defendant was charged with forgery, a felony, in violation of La. R.S. 14:72, the defendant filed a motion to quash on the basis that he should have been charged with unauthorized use of a credit card (La. R.S.14:67.3 ), a misdemeanor. The trial court granted the motion. On appeal, the Louisiana Supreme Court stated that the defendant's conduct would be criminal under either La. R.S. 14:72 or La. R.S. 14:67.3. The Court found that although the State might have chosen to prosecute the defendant under La. R.S. 14:67.3, it was within the discretion provided to the district attorney under La. R.S. 14:4 to charge her under the general forgery statute. As such, the Louisiana Supreme Court reversed the ruling of the trial court and remanded for further proceedings.

      Defendant does not allege that he did not have knowledge or notice of the charges against him.

      The record reflects that, prior to trial, defendant's counsel filed two motions in limine, which the trial court denied on September 19, 2016. In his motions, defendant sought an order barring the State from introducing, through the testimony of any witness, out-of-court statements that were elicited during any forensic interview. Defendant argued that any statement made by C.C. to anyone constituted inadmissible hearsay in violation of his right to confrontation. On appeal, defendant does not assign the trial court's denial of these motions as error but rather makes a conclusory allegation that Nurse Troy and Nancy Weber's testimony was based on hearsay and should have been excluded. Nevertheless, as to any alleged hearsay statements made in the audio recorded medical history of the victim as testified to by expert family nurse practitioner Anne Troy-taken at the hospital on the same day of the last incident of alleged sexual abuse and in conjunction with the victim's physical examination, which included vaginal DNA swabbing-those statements are admissible under La. C.E. art. 803(4) as a "statement for purposes of medical treatment and medical diagnosis." See State v. Koederitz , 14-1526 (La. 3/17/15), 166 So.3d 981. Moreover, disclosures made by C.C. to her mother when D.C. discovered defendant having sexual contact with C.C., and disclosures of prior abuse C.C. made to Nurse Troy during her interview, were both initial reports of different instances of sexual abuse. A statement is not hearsay if the declarant testifies at trial subject to cross-examination and the statement is consistent with the declarant's testimony and is one of an initial complaint of sexually assaultive behavior. La. C.E. art. 801(D)(1)(d) ; See State v. Burks , 04-1435 (La. App. 5 Cir. 5/31/05), 905 So.2d 394, 402, writ denied , 05-1696 (La. 2/3/06), 922 So.2d 1176. Further, as to 9-1-1 records custodian Nancy Webber, the record reflects that C.C. did not make any statements to Ms. Weber and is also not heard on the 9-1-1 recording played for the jury.

      The bill of information alleged that the count of sexual battery upon a victim under the age of thirteen years occurred on or between November 25, 2009 and November 24, 2013, and that the count of sexual battery of a juvenile under fifteen years of age occurred on or between November 25, 2013 and October 2, 2015. The bracketed language, "directly or through clothing," was added to the definition of sexual battery by Acts 2015, No. 256 § 1, effective August 1, 2015. The amendment of the definition language does not affect a sufficiency of the evidence analysis in this case.

      The record reflects that when the State questioned Nurse Troy whether "it is possible for a person to have intercourse with one person and infect them with an STD and have sex with another person and not transmit that STD," defense counsel objected to the line of questioning on the grounds that Nurse Troy was not an expert in the transmission of STDs. The trial court sustained the objection.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Bahram ZAMANIAN, M.D. And Bahram Zamanian, M.D., a Professional Medical Corporation v. OCHSNER MEDICAL CENTER-KENNER, L.L.C.; James T. Tebbe, M.D.; and Paolo Zambito
    NO. 17-CA-638
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, BAHRAM ZAMANIAN, M.D., Al M. Thompson, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT, OCHSNER MEDICAL CENTER-KENNER, L.L.C., Judith W. Giorlando, Jude C. Bursavich, Jeanne C. Comeaux, Carroll Devillier, Jr., Baton Rouge,
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

This matter involves an appeal from a judgment compelling production of settlement funds by appellants, after the case had been dismissed with prejudice. We vacate the trial court's judgment compelling production of settlement funds. This case has previously been dismissed with prejudice.

Background

On March 18, 2011, Bahram Zamanian, M.D., and Bahram Zamanian, M.D., A Professional Medical Corporation (plaintiffs/appellees) (collectively "Dr. Zamanian") filed suit against Ochsner Medical Center, Kenner L.L.C., James T. Tebbe, M.D., and Paolo Zambito (defendants/appellants) for damages allegedly caused by the termination of Dr. Zamanian's medical staff privileges at Ochsner Medical Center in Kenner, Louisiana. Dr. Zamanian asserted causes of action under the Sherman Act, 15 U.S.C. § 1 and the Louisiana Unfair Trade Practices Act, La. R.S. 51:1405. On October 10, 2011, defendants answered plaintiffs' petition. Thereafter, there was very little progress with the lawsuit.

In 2014, the parties participated in settlement negotiations. By email dated August 4, 2014, Dr. Zamanian's counsel accepted defendants' offer to settle for $20,000. Defense counsel, by letter dated September 4, 2014, informed Dr. Zamanian's counsel that a Medicare lien search would delay the settlement, and sent a Confidential Receipt, Release, Hold Harmless and Indemnity Agreement and a Motion for Voluntary Dismissal. In this letter, defense counsel stated the following: "[a]s we await the lien search process, we ask that your client review and execute the two (2) attached settlement documents.

Please note, upon delivery of the settlement funds to your client, we will file the executed Motion for Voluntary Dismissal releasing all defendants with prejudice." Defense counsel also asked that Dr. Zamanian's counsel provide defendants "with either the signed documents or your comments no later than Friday, September 12, 2014."

In a January 26, 2015 letter to Dr. Zamanian's counsel, defense counsel stated as follows:

Since your client accepted our offer of settlement in August of last year, we have been trying to have your client resolve the issue on the "Medicare Lien" for his settlement.
Our firm has provided you with all of the information necessary for your client to make the necessary contacts with Medicare to remove the lien so that we can finalize the settlement. To date, you have failed to provide the information for the resolution of the Medicare Lien. More disturbing is that you will not return my repeated phone calls to your office.
Based on your client's apparent lack of interest, I would ask that your client sign the enclosed Voluntary Dismissal and return to me by February 5, 2015 for immediate filing with the court.
If I do not receive the signed Voluntary Dismissal, I will forward the enclosed letter on February 6, 2015 to the Court asking for a status conference to request the courts assistance [sic] in bringing this matter to a close.

At this time, the parties were awaiting clearance from the Centers for Medicare and Medicaid Services that Dr. Zamanian did not have sums due for treatment of mental anguish. After receiving this letter, Dr. Zamanian's counsel signed the motion for voluntarily dismissal and sent it to defense counsel. Defense counsel filed the motion for voluntary dismissal, and the trial court signed an order dismissing the case with prejudice on February 24, 2015.

On March 28, 2017, Dr. Zamanian filed a motion to vacate judgment and to compel production of settlement funds. By judgment dated June 14, 2017, the trial court denied the motion to vacate judgment and granted the motion to compel production of settlement funds. This appeal followed.

Assignments of Error

Appellants/defendants assert as assignments of error that the trial court erred in granting appellees/plaintiffs' motion to compel production of settlement funds and in finding an enforceable settlement agreement between the parties.

Law and Analysis

Appellants first assert that the judgment ordering them to produce settlements funds is void because at the time of rendering, the trial court did not have jurisdiction over this case as it had been dismissed with prejudice. La. C.C.P. art. 1673 provides that "[a] judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial." A voluntary motion to dismiss with prejudice signed by the trial court is a final judgment and puts an end to a plaintiff's suit. Maher v. Magic Tilt Trailer Co., 98-1151 (La. App. 5th Cir. 3/10/99), 735 So.2d 38. The only recourse after a dismissal with prejudice becomes effective is a motion for new trial. Id. Here, no motion for new trial was filed. Consequently, the pleadings filed after the judgment of dismissal with prejudice to upset that ruling had no effect.

Appellants also assert that the trial court erred in enforcing a nonexistent settlement agreement. Appellants assert no agreement exists because appellees never finalized the settlement by signing the agreement and the only evidence of any settlement is correspondence between counsel.

"A contract is formed by the consent of the parties established through offer and acceptance." La. C.C. art. 1927. "An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer." La. C.C. art. 1943. A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. DeSoto v. DeSoto, 96-1079 (La. App. 5 Cir. 4/29/97), 694 So.2d 1043.

A settlement contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form. La. C.C. art. 3071 ; DeSoto, 694 So.2d 1043. "The requirement that the agreement be reduced to writing necessarily implies that the agreement be evidenced by documentation signed by both parties. Felder v. Georgia Pac. Corp., 405 So.2d 521 (La. 1981). It does not mean, however, that the agreement must be contained in one document: "[i]t would suffice that there be a written offer signed by the offerer [sic] and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings." Id. at 523-524.

In this case, the correspondence appellees rely on to establish the settlement does not contain Dr. Zamanian's signature, and no evidence was submitted to establish that plaintiffs expressly authorized their attorney to settle their claims. Until the parties signed a written document or documents demonstrating their consent to the terms of the settlement agreement, either party was free to change his mind. Considering there is no documentation showing the parties' express agreement or finalization of a settlement agreement, the record does not support the trial court's judgment compelling execution of a settlement. We therefore vacate the trial court's judgment granting appellees' motion to compel production of settlement funds.

Conclusion

For the reasons discussed above, we vacate the trial court's judgment compelling production of settlement funds from defendants. Once the judgment of dismissal with prejudice became final, this case was terminated. This case has previously been dismissed with prejudice.

JUDGMENT VACATED


author: CHAISSON, J.

text:
    LLOYD'S SYNDICATE 1861 v. DARWIN NATIONAL ASSURANCE COMPANY
    NO. 17-CA-623
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, LLOYD'S SYNDICATE 1861, Harry E. Morse, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, DARWIN NATIONAL ASSURANCE COMPANY, Judy Y. Barrasso, Michael A. Balascio, New Orleans, Chloe M. Chetta
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

In this insurance coverage dispute arising out of a multiple-impact automobile collision resulting in multiple injured victims, Lloyd's Syndicate 1861 ("Lloyd's") appeals a June 27, 2017 judgment of the trial court denying its motion for summary judgment and granting a cross-motion for summary judgment filed by Darwin National Assurance Company ("Darwin"). For the following reasons, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

On the morning of September 10, 2013, Mr. James Hyde, Jr., was driving his pickup truck approximately 70 miles per hour in the right lane of the elevated U.S. 90B West Bank Expressway. As he approached the Barataria Boulevard exit, Mr. Hyde rear-ended a pickup truck driven by Mrs. Shannon Riggio, striking the rear of her vehicle several times over a distance of approximately four-tenths of a mile. Mr. Todd Riggio was a passenger in that vehicle. The several impacts from Mr. Hyde's vehicle caused the Riggio vehicle to spin across several travel lanes and strike the center bridge rail. Mr. Hyde alleges that at the time of this initial impact he was knocked unconscious by the deployment of his airbag and does not remember anything else from that point on about the collision until being removed from his vehicle by emergency medical technicians.

Mr. Hyde's vehicle continued to travel forward at about 60 to 70 miles per hour in the right lane of the elevated expressway. Approximately two-tenths of a mile from his last impact with the Riggio vehicle, as he approached the entrance to the Barataria Boulevard right-exit down ramp, Mr. Hyde's vehicle struck the right side of a minivan driven by Ms. Carol Patai, before proceeding to the right, down the ramp towards Barataria Boulevard. Mr. Hyde's vehicle struck the down ramp retaining walls at least twice while traveling down the ramp. After exiting the ramp, Mr. Hyde's vehicle crossed four traffic lanes on the ground-level expressway service road and struck the rear corner of an SUV driven by Ms. Tresia Bonds that was stopped in the far right lane of the service road at the Avenue D traffic light.

Next, Mr. Hyde's vehicle, while still traveling approximately 60 miles per hour, crossed the northbound lanes of Avenue D and the median, struck a SUV driven by Ms. Kimberly Knoten in the left southbound lane of Avenue D, and finally came to a stop. Tyrone Vicks, Jr., an eight-year-old child who was a passenger in Ms. Knoten's vehicle, was seriously injured in this last collision.

According to the police reports, the total distance traveled by Mr. Hyde's vehicle from its initial impact with the Riggio vehicle to the final impact with the Knoten vehicle was approximately nine-tenths of a mile. Attached to the third police report was a written statement of Ms. Angela Aubrey, a witness to all four impacts, who indicated that throughout the incident Mr. Hyde's vehicle was traveling at a high rate of speed. Ms. Aubrey did not indicate that Mr. Hyde's vehicle slowed or came to a stop at any time during this incident until after it struck Ms. Knoten's vehicle.

On the day of this incident, there were three separate insurance policies in effect that provided coverage to Mr. Hyde: a personal automobile insurance policy issued to Mr. Hyde by Geico Casualty Insurance Company ("Geico"); a marine general liability policy issued by Darwin to Mr. Hyde's employer, B & D Contracting, Inc.; and an excess policy issued by Lloyd's to B & D Contracting, Inc. The Riggios, Ms. Knoten, and Tyrone Vicks, Sr. (on behalf of his son, Tyrone, Jr.) filed suit against Mr. Hyde, his employer, B & D Contracting, Inc., and their insurers, in the 24th Judicial District Court. That lawsuit settled before trial for an amount well in excess of $1,000,000. At the time of that settlement, Darwin paid $1,000,000 to some of the plaintiffs, and Lloyd's, as the excess insurer, paid additional funds to the other plaintiffs for the relinquishment of those plaintiffs' claims.

On March 15, 2017, Lloyd's filed a petition for damages against Darwin seeking to recover funds it paid in settlement of the Vicks lawsuit, contending that Darwin was responsible for the payment of those amounts under the terms of its insurance policy. Subsequent to Darwin answering the petition, both Lloyd's and Darwin filed cross-motions for summary judgment on the issue of the amount of coverage provided by the Darwin policy. The parties did not dispute that the Darwin policy provided a $1,000,000 per occurrence limit, and a $2,000,000 aggregate limit for any one policy period. The parties disagreed, however, as to whether this incident was one occurrence, as that term was defined in the Darwin policy, thus triggering the $1,000,000 per occurrence limit, or whether it was multiple occurrences, thus triggering the $2,000,000 aggregate limit.

In its motion for summary judgment, Lloyd's, in arguing that Mr. Hyde's incident was more than one occurrence and that Darwin was therefore responsible for its $2,000,000 aggregate limit, contended that "Louisiana case law holds that when accidents are separated by time and space, there are multiple accidents and multiple occurrences." To the contrary, Darwin, in its motion for summary judgment, in arguing that Mr. Hyde's incident was one occurrence for which it was only responsible for its $1,000,000 per occurrence limit, contended that "a multi-impact accident is a single 'occurrence' when the collisions are an unbroken chain of events and the driver does not regain control of the vehicle."

Following a hearing on the cross-motions for summary judgment, the trial court denied Lloyd's motion for summary judgment and granted Darwin's motion for summary judgment, thereby dismissing Lloyd's petition with prejudice, with each party to bear its own costs. In ruling from the bench, the trial court specifically found that although there were three collisions that day, there was one continuous series of events emanating from the original collision and that the collisions constituted one occurrence under the Darwin policy. It is from this judgment that Lloyd's takes its timely appeal.

In its sole assignment of error, Lloyd's argues that the trial court committed legal error in holding that a vehicle involved in three separate collisions had only one occurrence within the meaning of the Darwin insurance policy. Lloyd's argues that Mr. Hyde's collisions were separated by "significant" time and space, and therefore should be considered separate accidents under the policy language and in accordance with Louisiana case law. In opposition to Lloyd's position, Darwin argues that the language of the insurance policy that provides coverage for each "occurrence" covers multiple-impact car collisions in situations like this where the impacts are continuous and the at-fault driver never regains control.

DISCUSSION

Appellate courts apply a de novo standard of review in considering lower court rulings on summary judgment motions. Arceneaux v. Amstar Corp. , 15-0588 (La. 9/7/16), 200 So.3d 277, 281. Thus, we use the same criteria that govern the district court's consideration of whether summary judgment is appropriate. 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 mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. Washington v. McCauley , 45,916 (La. App. 2 Cir. 2/16/11), 62 So.3d 173, 177.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co. , 93-0911 (La. 1/14/94), 630 So.2d 759, 763. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. Id. The parties' intent, as reflected by the words in the policy, determines the extent of coverage. Id. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. La. C.C. art. 2047. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. , 630 So.2d at 763.

The Darwin policy defines "occurrence" to mean "an accident, including continuous or repeated exposure in conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." In its appellate brief, Darwin maintains that, because Lloyd's brief fails to discuss the phrase "including continuous or repeated exposure in conditions" in its analysis of this case, Lloyd's asks this Court "to ignore the policy's definition of 'occurrence' and to ignore Louisiana jurisprudence by defining 'occurrence' to mean only 'an accident,' without more." Darwin suggests that because this phrase in the policy further qualifies the term "accident" beyond the ordinary or popular sense of that word when used on its own, thus narrowing the scope of coverage, this Court should employ an expanded definition of accident in this case. Regarding the applicability of the phrase, Darwin argues that "Hyde's continuous state of unconsciousness and lack of control of his vehicle-which undisputedly caused each of the successive impacts in this case-is a type of 'continuous or repeated exposure in conditions' included in Darwin's broad definition of 'occurrence.' " (emphasis added).

In response, Lloyd's, citing the Louisiana First Circuit case of Miley v. Continental Ins. Co. , 93-1652 (La. App. 1 Cir. 9/9/94), 645 So.2d 1166, maintains that the phrase "including continuous or repeated exposure in conditions," is only applicable to exposure cases, and has no applicability to multiple-impact automobile collisions.

In a discussion of the history of this particular phrase, Professor Robert H. Jerry, II, and Mr. Douglas R. Richmond, in their treatise "Understanding Insurance Law," state that "[i]n 1966, CGL policies were modified to cover 'occurrences,' and occurrence was defined as 'an accident, including continuous or repeated exposure to conditions.' This change made clear that the liability policy was intended to provide coverage not only for sudden, unexpected events but also for long-term exposures to harmful conditions or substances that resulted in damage during the policy period." See Understanding Insurance Law , 4th Ed., by Jerry and Richmond, LexisNexis, p. 535 (emphasis added).

In our review of Louisiana jurisprudence, although we find cases involving multiple-impact automobile collisions where the insurance policy at issue included the phrase "including continuous or repeated exposure to conditions" (or some variation thereof), we have found no case that relied upon that phrase as the basis to employ an expanded definition of the term "accident" in multiple-impact automobile cases. We agree with the First Circuit Court's conclusion in Miley that this phrase is not intended to apply to the traditional type of accident, specifically vehicular collisions, and that characterization of a multiple-impact automobile accident as "... an occurrence involving continuous or repeated exposure to substantially the same general harmful conditions [is] inappropriate." Miley , 645 So.2d at 1169. In our opinion, this phrase is intended to apply to traditional long-term exposure type cases, such as pile-driving or toxic fumes, etc. See , e.g. , Lombard v. Sewerage & Water Bd. , 284 So.2d 905 (La. 1973). It would require a strained reading of the phrase to find it applicable to multiple-impact automobile collisions. We therefore decline Darwin's invitation to view this multiple-impact automobile collision as a type of "continuous or repeated exposure in conditions," and we further decline its suggestion that we rely upon that phrase as a basis to employ an expanded definition of the term "accident."

The Darwin policy contains no definition of the term "accident," and we must therefore give that term its common and generally prevailing meaning. Black's Law Dictionary defines accident as "an unforeseeable and unexpected turn of events that causes loss in value, injury, and increased liabilities. The event is not deliberately caused and is not inevitable." Black's Law Dictionary , "Accident" (10th ed. 2009). Merriam-Webster's Dictionary defines an accident as "an unforeseen and unplanned event or circumstance" or "an unfortunate event resulting especially from carelessness or ignorance." Accident , Merriam-Webster.com , Merriam-Webster , (n.d. Web, May 16, 2018).

Clearly, an accident does not simply happen in a vacuum; there must be some cause (or combination of causes) that triggers the accident. Once that cause has set some harm-producing violence in motion, the accident continues along an unbroken chain of events, only ending once the harm-producing violence stops and ceases to inflict additional injuries or damages.

In the context of the typical automobile collision, both the beginning and the end of the accident are rather clear. An accident begins suddenly and unexpectedly, often involves an impact with a single object, and is usually of very short duration, ending just as suddenly as it began. In the more unusual type of automobile collision, like the one before us in this case, although beginning suddenly and unexpectedly, the incident has a somewhat longer duration and involves impacts with multiple objects that are often separated by some time and distance. In these latter type of collisions, it can sometimes prove challenging to discern whether there is only one accident or multiple accidents. In these cases the issue arises as to whether the insured driver's impact with each separate object is a separate accident, triggering multiple policy limits, or whether the entire incident comprising all of the impacts is a single accident, thus triggering only one policy limit.

In Washington , supra , a case involving this same issue, the Louisiana Second Circuit reviewed cases from this state and from across the nation that involved this issue and found:

In determining whether a single policy limit or multiple policy limits should be applied to a particular situation, "occurrence" and "accident" have been defined by courts across the nation in three ways. The majority of courts have adopted the general view that, to determine whether there is a single or multiple occurrence or accident within the meaning of the policy limits clause of a liability policy, one must look to the cause or causes of the accident or occurrence. Other courts have looked to the effect of the accident or occurrence, making the entire policy limits available to each injured or damaged party. A third group of courts has held that the phrase "per occurrence" in a limitation of liability clause in a liability policy refers, not to the cause of the occurrence or to the effect, but to the event that triggered liability.

Washington , 62 So.3d at 180-81.

Lloyd's suggests that the appropriate test for resolving this issue is whether a "reasonable observer" would perceive that sufficient "time and space" separate the impacts, thus resulting in separate and distinct accidents. On the other hand, Darwin suggests that the primary factor courts should consider to resolve this issue is whether the insured driver maintained control of his vehicle between the impacts. Our review of Louisiana jurisprudence reveals that although courts have relied upon factors such as "time and space" and "control" between impacts to resolve this issue, no Louisiana court has expressly adopted either of these tests, or any of the three tests identified by the Court in Washington , as controlling. See generally , 64 A.L.R.4th 668.

We conclude that the appropriate manner in which to resolve the question of whether there is one accident or multiple accidents in these multiple-impact automobile collisions is application of the "causation" theory. We reach this conclusion by considering the purpose of the insured's liability coverage and the specific provisions of coverage in the policy, in order to ascertain the intent of the contracting parties as to the extent and applicability of that coverage.

The purpose of liability insurance is to provide coverage for the insured tortfeasor for his fault that causes injury to others. Policy limit provisions in the Darwin policy provide, however, that coverage is limited to $1,000,000 for each occurrence, which is defined as an "accident," regardless of the number of others that sustain injury as a result of that accident. Additionally, aggregate policy limitations provide that coverage during a single policy period is limited to $2,000,000. These provisions clearly contemplate that the insured tortfeasor may be involved in multiple accidents during the policy period, for which he will be afforded coverage up to the aggregate limit of $2,000,000. Therefore, if an insured tortfeasor engages in negligent conduct which results in injury to others, and on a completely separate occasion during the policy period engages in a separate and distinct act of negligence that causes injury to others, he will be afforded coverage for both accidents up to the aggregate policy limit. We see no rational basis, in a multiple-impact automobile collision where the two collisions occur in such quick succession that they are arguably one accident that this same result would not apply, provided that the insured tortfeasor has engaged in a distinct, intervening act of negligence between the impacts, such that there is a different cause for the subsequent impact.

A succinct description of the "causation" theory is found in the case of United Services Automobile Assn. v. Baggett , 209 Cal.App.3d 1387, 258 Cal.Rptr. 52 (6th App. Dist. 1989), wherein the Court stated:

In determining whether, under a particular set of circumstances, there was one accident or occurrence, the so-called 'causation' theory is applied. Hence a single uninterrupted course of conduct which gives rise to a number of injuries or incidents of property damage is one 'accident' or 'occurrence.' On the other hand, if the original cause is interrupted or replaced by another cause, then there is more than one 'accident' or 'occurrence.'

Baggett , 209 Cal.App.3d at 1393, 258 Cal.Rptr. 52 (citations omitted).

Under this theory, an insured tortfeasor will be limited to a single policy limit for a single accident in situations where all of the successive impacts are the result of the same cause as the initial impact, rather than the result of different causes. In effect, the multiple-impact collision is a single and continual unbroken chain of events, uninterrupted by any new and distinct, intervening cause. Conversely, in situations where the insured tortfeasor engages in a distinct, intervening act of negligence between the impacts, such that the successive impact results from a different cause than the first impact, then there are separate accidents for which the insured tortfeasor will be afforded coverage with separate policy limits. In our view, adoption of the "causation" theory comports with the contracting parties' intentions regarding coverage under the policy.

Although we have stated our rationale for adopting the "causation" theory, we also find it important to state our reasoning for rejecting the "time and space" test proposed by Lloyd's. Contrary to Lloyd's contention that a "time and space" test would be more objective, and "clear and easy to apply," we find that use of a "time and space" test would be more subjective on the part of courts using the test and would lead to arbitrary results from case to case. More importantly, use of such a test would not resolve the crucial question of what transpired between the two impacts as it relates to the conduct of the driver whose insurance coverage is at issue, i.e. , did the driver engage in some distinct, intervening act of negligence between the two collisions such that the second collision resulted from a different cause than the first collision?

In adopting the "causation" theory, we do not suggest that "time and space" and "control" between impacts are irrelevant; to the contrary, we find that these are important factors for any court, when faced with this issue, to consider in evaluating whether the evidence supports a conclusion that the successive impacts are the result of a single cause or multiple causes. The more time and space between impacts, the more likely a court is to find that there are two accidents. Likewise, the more apparent it is that a driver did not regain control of his vehicle after a first impact, the less likely a court will be to find that he engaged in a distinct, intervening act of negligence that constitutes a different cause for the successive impact.

Our review of the facts of similar Louisiana cases that have addressed the issue before us reveals that examination of factors of "time and space" and "control" are useful to assist a court in its ultimate determination of whether multiple-impact collisions were the result of "one cause."

In Washington , supra , the driver of an 18-wheeler, while attempting to retrieve his dropped cell phone, crossed the center line of the highway, overcorrected and lost control of his vehicle, which turned over and slid on its side. The truck turned over onto one vehicle, seriously injuring that driver, and, while continuing to slide on its side, struck a second vehicle a few car lengths behind the first, instantly killing the driver. Washington , 62 So.3d at 175. After a thorough review of prior jurisprudence addressing the coverage issue in multiple-impact collision cases, including cases that discussed "time and space" and "control," the Washington Court appeared to base its finding of a single accident on the fact that the two impacts occurred "almost simultaneously, resulting in a single accident under the facts ..." Id. at 184. Although not expressly adopting a "time and space" test, the Court did place emphasis on the timing of the two impacts. However, we note that under the facts of this case, it is clear that the driver had no control of his vehicle from the moment it overturned and therefore clearly did not engage in a distinct, intervening act of negligence that caused the second impact. There clearly was but one cause of both impacts. Thus, application of the "causation" theory to the facts of that case would lead to the same result.

In Liberty Mut. Ins. Co. v. Rawls , 404 F.2d 880 (5th Cir. 1968), the Court determined that there were two accidents where the insured tortfeasor, while being pursued at a high rate of speed by two deputy sheriffs, struck the left rear of one vehicle, continued on, veered across the centerline, and collided head-on with a second vehicle. The Court noted "time and space" factors (that the second collision occurred two to five seconds after and 30 to 300 feet apart from the first), but also noted that the insured tortfeasor had control of his vehicle after the initial collision, in reaching its conclusion of two accidents. Under the facts of that case, we note that a driver who maintains control of his vehicle after a first collision, yet continues at a high rate of speed and crosses the centerline, colliding with another vehicle head-on, clearly has engaged in a distinct, intervening act of negligence that causes the second accident. Thus, application of the "causation" theory to the facts of that case would lead to the same result.

In Amberge v. Lamb , 849 F.Supp.2d 720 (E.D. La. 2011), a highly intoxicated driver rear-ended a vehicle on the interstate, then, as both vehicles continued to drive forward, switched lanes and rear-ended the same vehicle a second time "thirty seconds to two minutes after the first collision." Id. at 721. After the intoxicated driver exited the interstate at the next interchange, the other driver passed the exit and pulled onto the shoulder of the road. The intoxicated driver then re-entered the interstate, pulled onto the shoulder in front of the other vehicle, put his vehicle in reverse and backed into the other vehicle. The driver of the other vehicle attempted to escape by exiting the interstate at the next interchange; however, the intoxicated driver followed the other vehicle and struck it in the rear one last time. Id. at 721-22.

The Court, in finding that there were four separate accidents, stated that "... the element of 'control' is essential to determining whether there was a single accident or more. Where a person loses control of the trajectory of his vehicle and strikes more than one person or vehicle, a court is more likely to find only one accident." Id. at 725 (citation omitted). Under the facts of that case, despite the fact that the intoxicated driver claimed to not remember the incident, he clearly "... was in control of the vehicle enough to make deliberate decisions about how and where to drive it, "and" ... seemed to deliberately target [the other] vehicle." Id. at 726. We note that a driver who maintains control of his vehicle after a first collision such that he makes deliberate decisions about how and where to drive it, and continues to operate that vehicle while intoxicated, repeatedly running into another vehicle, has engaged in distinct, intervening acts of negligence between the successive impacts, such that there are separate causes of each impact. Thus, application of the "causation" theory to the facts of that case would lead to the same result.

Lloyd's relies heavily upon the First Circuit case of Miley , supra , as indistinguishable from the case before us. We find the Miley case to be clearly distinguishable. In Miley , the insured tortfeasor was engaged in a "controlled burn" on a tract of land adjacent to an interstate. The smoke from the burn drifted over the highway and resulted in two separate accidents 15 minutes and two-tenths of a mile apart, each accident involving completely different vehicles, none of which were operated by the insured tortfeasor. Miley , 645 So.2d at 1167. Because the insured tortfeasor, whose conduct and insurance coverage is at issue, was not operating a vehicle that was involved in multiple successive impacts, we do not view Miley as a case involving a multiple-impact automobile collision. We find the Miley case clearly distinguishable and not applicable to the analysis of the case before us.

A further example of the application of both the "space and time" and "control" factors is found in the case of Illinois Nat'l Ins. Co. v. Szczepkowicz , 185 Ill.App.3d 1091, 134 Ill.Dec. 90, 542 N.E.2d 90 (1st Dist. 6/30/89), in which the driver of an 18-wheeler pulled across a fog-shrouded four-lane highway and stopped while still blocking the two northbound lanes. After being struck by a first vehicle, the driver, who was not incapacitated and was obviously aware of the dangerous position of his stopped but otherwise operable vehicle, failed to move his vehicle, which was then struck by a second vehicle five minutes later.

The distance between impacts apparently was not a factor in the Court's determination because the tortfeasor's vehicle had only moved forward 12 feet between impacts. However, time was clearly an important factor in the Court's determination that the tortfeasor had the opportunity between impacts to assess the continuing dangerous situation and take corrective action to avoid further impacts, but failed to do so, resulting in a second collision. Hypothetically, if the second impact had occurred more quickly after the first collision, such that the tortfeasor did not have the opportunity between collisions to take corrective action, it is more likely, based solely on the factor of time, that the Court would have found that there was only one accident, rather than two.

More importantly, the Court found that because the driver had both the ability and the opportunity to move his vehicle prior to the second impact, he was in "control" of his vehicle. Although the Court also relied upon the "continuous or repeated exposure to substantially the same conditions" provision of the insurance policy, which we decline to do here, the Court stated that "the circuit court correctly adopted the 'cause' theory," and found that the tortfeasor's failure to move his vehicle from the travel lanes was a separate negligent act and "constituted a separate cause of the second collision," different from the cause of the first collision. The Court therefore determined that there were two accidents. Id. , 134 Ill.Dec. 90, 542 N.E.2d at 93.

We now turn to a review of the facts of the case before us. Mr. Hyde maintains that from the moment of the initial impact with the Riggio vehicle his airbag deployed and rendered him unconscious. He therefore maintains that he had no control of his vehicle after the initial impact and that there was but one cause of all of the successive impacts. Lloyd's counters that adoption of such a test to determine the number of accidents would be completely subjective on the part of the insured tortfeasor, and further implies that it would depend upon his self-serving statements.

We first note that because the issue before us is the extent of Mr. Hyde's insurance coverage, not his liability for all of the injuries that he caused in each of the collisions, a statement that he had no control of his vehicle throughout the incident, rather than serving Mr. Hyde's interest, would actually provide him with less insurance coverage from Darwin, while not exculpating him from liability for any of the impacts and resulting injuries. We therefore do not find such a statement to be self-serving. Furthermore, we disagree with Lloyd's assertion that a "causation" test would require a purely subjective evaluation of Mr. Hyde's intent. To the contrary, an examination of the physical evidence and eyewitness accounts from the collisions will assist us in determining whether there was only one cause for all of these successive collisions.

Although Lloyd's argues for adoption of a "time and space" test, it never affirmatively states either the time that elapsed from the initial impact with the Riggio vehicle until the final impact with the Knoten vehicle, nor the distance between those two impacts. However, we can ascertain from the mile-post demarcations in the police reports, with no countervailing evidence, that the distance between these two impacts was approximately nine-tenths of a mile. Additionally, using this information regarding distance, and the uncontroverted evidence from the eyewitness accounts and the police reports that Mr. Hyde was traveling no less than 60 miles per hour throughout this incident, we can further ascertain that the entire incident lasted approximately one minute. It is with these parameters in mind that we consider Lloyd's suggestion that Mr. Hyde's contention that he was unconscious throughout the incident is suspect.

We note that neither the police reports nor the eyewitness accounts indicate any evidence of braking on the part of Mr. Hyde. To the contrary, all of the evidence indicates that Mr. Hyde's vehicle maintained its speed of approximately 60 to 70 miles per hour throughout this incident. We also note the configuration of the roadways involved as shown in the police reports. The first two impacts occurred in the right lane of an elevated expressway immediately before a right-exit down ramp leading to the ground elevation. The diagram in the second police report shows that there are bridge rails on each side of the down ramp, which in effect act as retaining walls, and that Mr. Hyde's vehicle struck those rails at least twice. The diagram in the third police report indicates that the down ramp is angled directly toward the intersection of the service road and Avenue D where Mr. Hyde's vehicle struck Ms. Knoten's vehicle in the final impact. Additionally, we note that the narrative in the third police report indicates that due to the severity of the injuries of the victims, blood was voluntarily drawn from Mr. Hyde for chemical testing for intoxication. Trooper Cedric Skinner, who prepared the third police report, indicated in his deposition that those tests were negative for any intoxicating substances, thus eliminating intoxication as a potential explanation for Mr. Hyde's failure to stop after the initial impact. Both Trooper Damian Lafonta, who prepared the first police report, and Trooper Skinner maintained in their depositions that the facts of these collisions were consistent with a driver who was unconscious throughout the incident.

Although Lloyd's complains of its inability to produce evidence of Mr. Hyde's condition or conduct inside of his vehicle during this incident, it completely disregards all of the evidence which directly supports Mr. Hyde's contention that he was rendered unconscious after the initial impact. We agree with the opinions of Troopers Skinner and Lafonta and find that this evidence makes it highly probable that Mr. Hyde was rendered unconscious by the initial impact; was then directed into the contained down ramp by striking the right side of Ms. Patai's vehicle; was then funneled by the downslope of the contained down ramp, along with the forward momentum of his vehicle at a high rate of speed, directly to the intersection where, without braking, his vehicle violently struck Ms. Knoten's vehicle. Furthermore, we do not find Mr. Hyde's claim of being unconscious during this incident to be suspect, simply because this incident lasted one minute and happened over a distance of nine-tenths of a mile. To the contrary, absent any other explanation, we find it to be the only rational explanation for this very unique incident.

Upon our de novo review, Lloyd's provides no evidence to contradict Mr. Hyde's claim, supported by the evidence outlined herein, that he was rendered unconscious upon the first impact with the Riggio vehicle. We therefore find no genuine issue of material fact that Mr. Hyde was rendered unconscious by the initial impact, was not in control of his vehicle after the initial impact, and did not engage in any distinct, intervening acts of negligence between any of the successive impacts. Applying the "causation" theory, we find that there was only one cause for all of these impacts and consequently, only one accident. Accordingly, Darwin is entitled to summary judgment as a matter of law. We therefore affirm the judgment of the trial court granting summary judgment in favor of Darwin and denying summary judgment to Lloyd's.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court granting summary judgment in favor of Darwin National Assurance Company and denying summary judgment to Lloyd's Syndicate 1861.

AFFIRMED

      Although the exit ramp from the elevated expressway is designated as the Barataria Boulevard exit, the first intersection that a vehicle exiting the down ramp encounters after exiting is the Avenue D intersection.

      Three separate police reports were prepared regarding this incident: one for the impact with the Riggio vehicle; a second for the impact with the Patai vehicle; and a third for the impact with the Bonds and Knoten vehicles.

      Mr. Hyde's primary auto insurer, Geico, pursuant to its policy, treated the loss as three separate accidents and paid the maximum aggregate limit for its policy.

      In support of its motion for summary judgment, Darwin introduced copies of its insurance policy, the original and amended petitions for damages in the Vicks lawsuit, excerpts of the depositions of Mr. Hyde and the three officers who prepared the accident reports, the three accident reports relating to this incident, and Lloyd's petition for damages. In support of its motion for summary judgment, Lloyd's also introduced copies of the three accident reports relating to this incident.

      Although the extent and seriousness of injuries and damages caused by an accident may not manifest themselves until sometime after the end of the harm-producing violence itself, the genesis of those injuries and damages nevertheless occurs during the active harm-producing violence.

      We stress that the issue before a court in this circumstance is not the insured tortfeasor's liability for all of the damages caused by his fault; rather, the issue is the extent of coverage provided to him under the applicable policy of insurance. We also note that this issue will only arise in cases where there are multiple impacts that are separated by some time and space such that an argument can be made that there are separate accidents, and the total sum of all damages sustained during the incident due to the insured tortfeasor's fault is arguably greater than the policy limit for a single occurrence.

      Although a successive impact that constitutes a separate accident may be the result of a different cause that does not arise from any fault of the initial tortfeasor, because the issue before us involves the extent of coverage under the initial tortfeasor's insurance policy, we concern ourselves in this opinion only with intervening acts of negligence of the insured tortfeasor.

      Although we have stated that we agree with the Miley Court that the phrase "including continuous or repeated exposure to conditions" does not apply to multiple-impact automobile collisions, we do not view Miley as a multiple-impact automobile collision case because the insured tortfeasor in that case was not operating a vehicle that was involved in multiple successive impacts.

      Sufficient "control" may come in different forms: it may be the successful recovery from the initial impact while the vehicle is still in motion, such that the tortfeasor is able to purposefully direct the forward motion of his vehicle safely to avoid further collisions; or it may be the ability and opportunity of a tortfeasor, who is not otherwise incapacitated from the initial impact, to remove his stopped vehicle from a dangerous position, provided the vehicle is otherwise operable, to a safe position. See Szczepkowicz , supra .

      Although the police reports contain speculation that Mr. Hyde might have blacked-out prior to the first collision due to a medical condition, that scenario is directly contradicted by Mr. Hyde's assertion that he was rendered unconscious by the deployment of his airbag during the first collision. In any event, the relevant fact is that Mr. Hyde was rendered unconscious at the point of the initial collision, regardless of the reason for that unconsciousness.