author: BROWN, C.J.

text:
    Tiffany O'NEAL, Plaintiff-Appellant v. Brandon ADDIS, Defendant-Appellee
    No. 52,377-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018.
    BREEDLOVE LAW FIRM By: Pamela N. Breedlove, Shreveport, Counsel for Appellant
    SUSAN D. SCOTT, Shreveport, Counsel for Appellee
    Before BROWN, MOORE, and GARRETT, JJ.
   BROWN, C.J.

Plaintiff, Tiffany O'Neal ("the mother"), appeals from a judgment denying a modification of custody for her daughter, HLA. The mother has shared custody with HLA's father, Defendant, Brandon Addis ("the father"), under a shared joint custody implementation plan previously rendered with a consent judgment. The mother seeks joint custody with her named as domiciliary parent. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The mother filed a petition to establish custody on February 26, 2015, for HLA (DOB: September 11, 2011). A consent judgment was entered on April 15, 2015, providing for shared custody of HLA rotating on a weekly basis. The mother filed two rules for contempt for noncompliance with the joint custody plan against the father and then filed a rule to modify custody on September 15, 2016.

In the rule to modify custody, the mother alleged that there had been material changes in circumstances warranting a modification of custody. Specifically, the mother asserted that: 1) the father refused to communicate with the mother regarding school choice for HLA and refused to pay preschool expenses; 2) the father leaves HLA with his mother much of the time during his custody periods; and, 3) the father refuses to share in the expenses for the minor child, and child support needs to be set. The mother intended at that time to move to Dallas, Texas, at the conclusion of her education to become a nurse practitioner, and she wanted to be named as HLA's domiciliary parent.

The court issued an interim order signed on November 30, 2016. The trial court continued the shared custody arrangement and appointed Shelley Booker to conduct a mental health evaluation of the parties and HLA and to submit a written report to the court. Ms. Booker completed her report in May of 2017. The trial court held a hearing on November 16, 2017.

At the hearing, the father testified that, when the original custody plan was set, he lived with his parents in Bossier Parish. The father moved to West Monroe for work in May/June 2017 without telling the mother. The father has a managerial position at a restaurant in West Monroe and has a varying work schedule that involves working nights and weekends, in addition to days. He also works as a referee at high school football games. HLA stays with her paternal grandparents in Haughton during the father's custodial periods, and he travels back and forth from West Monroe to Haughton to see his daughter as his work and referee schedules allow.

The father testified that he did not take HLA to Young Years preschool every day when he had custody of her, and he did not discuss with the mother what elementary school HLA should attend, even after the mother requested his input. The father testified that he was not always able to participate in HLA's school events, but his mother would attend instead. He also stated that he assisted HLA in a school project regarding HLA's family tree wherein he included his then-girlfriend, but not the mother. The father stated that he and the mother communicate mostly through text messages. The father gets benefits with his work, but at the time of the hearing, he had not added HLA to his health insurance. The father also testified that he wants to be able to claim HLA on his taxes.

The mother married her current husband ("the stepfather") about four months prior to the hearing. The stepfather testified at the hearing about his conviction in federal court for possession of methamphetamine and the time he served in federal prison for that offense. At the time of the hearing, HLA's stepfather was on probation for the possession offense. He also testified about prior arrests. HLA's stepfather began dating the mother five months after he was released from prison.

The mother testified that she completed her schooling to become a nurse practitioner in December 2016. At the time of the hearing, she was working as a registered nurse because she could not find work as a nurse practitioner in the Shreveport job market. The mother testified that she did not tell the father that she was going to have HLA tested for the magnet school program prior to HLA being tested. She also testified that she made the decision about where to place HLA for preschool and elementary school after trying to get the father's input.

The mother testified that she thinks she and the father need to have better communication. The mother stated that there have been times when the father is exercising his week of custody, and, in order for the mother to find out why HLA was not at preschool, she had to call the paternal grandmother to find out what was going on. The mother stated that HLA is living a split life in which there is little consistency between each half. The mother sought joint custody with her named as domiciliary parent and the father exercising custody on alternating weekends. The mother testified that she was aware that the father worked Saturdays and Sundays when proposing that custody arrangement.

At the hearing, the judge stated that the child was leading separate lives with each parent because the mother and the father were not communicating with each other. The trial judge pointed out that the mother and the father do not really know each other. The judge opined that the father living in West Monroe and the father's week of custody with HLA being mostly exercised by the paternal grandmother could be a problem. The trial judge stated that the parents agreed to joint custody of HLA, and observed that the reasons for the mother wanting to modify the custody arrangement had to do with HLA's homework and HLA living with her paternal grandmother. The best interest of the child factors still favor joint custody in this case.

The trial court maintained the week on-week off custody arrangement and ordered the parents to attend parenting classes and register and communicate through the Our Family Wizard program instead of through text messages. The court ordered the father to pay for half of HLA's health insurance costs and school fees. The trial court ordered the family to return to the court for a progress review hearing six months later.

The shared joint custody implementation plan was signed by the court on December 8, 2017. The plan provided for week on/week off shared custody with neither parent named as domiciliary parent. The plan provided a holiday and summer custody schedule with each parent providing HLA with unlimited telephone access to the other parent. The parents were ordered to exchange all medical information regarding the child with each other. Other provisions were made for accessing HLA's educational information, progress and calendar and HLA's transportation. The mother has appealed from the court's ruling, assigning the following errors:

1. Whether the trial court erred in holding the mother to a higher standard due to a prior consent judgment to shared custody prior to the child starting school.
2. Whether the trial court erred in holding the mother to a higher standard due to a prior consent judgment to shared custody prior to the father moving 90 miles away.
3. Whether the trial court erred in not analyzing the change in circumstances and best interest of the child under the La. C.C. art. 134 factors.
4. Whether the trial court erred in not placing the child's primary care with the mother when, for much of the father's week of custody, he is out of town and not with the child.
5. Whether the trial court erred in not modifying custody in light of the father's refusal to communicate with the mother and his failure to encourage a relationship between the mother and the child.
6. Whether the trial court erred in not determining whether a change in circumstances had been shown.
7. Whether the trial court erred in not naming a domiciliary parent.

DISCUSSION

The mother's assignments of error can be merged into three issues: 1) whether the trial court applied the correct standard for modification of a consent decree; 2) whether the trial court erred in finding there was no material change in circumstances and that continuing with week on-week off custody was in the best interest of the child; and 3) whether the court erred in failing to name a domiciliary parent.

Application of the Correct Standard for a Consent Decree

The mother argues that the trial court committed legal error by applying an incorrect principle of law regarding the burden of proof for custody modification of a consent decree. The father argues that the trial court applied the correct burden of proof to the mother's request, and the trial court was not required to delineate each alleged change in circumstance or articulate every factor from La. C.C. art. 134.

A court of appeal may not set aside a trial court's findings of fact in the absence of "manifest error" or unless they are clearly wrong. Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731. Where the original custody decree is a stipulated judgment or consent decree, the party seeking modification must prove: 1) that there has been a material change of circumstances since the original custody decree was entered, and 2) that the proposed modification is in the best interest of the child. Id. ; Chandler v. Chandler , 48,891 (La. App. 2d Cir. 12/13/13), 132 So.3d 413.

In the trial court's oral reasons for judgment, the court stated:

Just thinking back through the 134 issues and looking at Ms. Booker's report, right now the little girl clearly loves her father, clearly loves her mother, clearly enjoys both of their company but just, you know, presents a totally positive image when she's with the mother or the father, and I just don't want to do anything to disrupt that at this point in time without clear evidence to suggest there's a need for a change.

The court clearly considered whether there was a material change in circumstances since the original custody decree was entered. The trial court also considered the article 134 factors regarding the best interest of the child. Even though the trial court did not go through a rote recitation of each factor, we can see in the oral reasons for judgment that the court weighed the applicable factors in this case. This assignment of error lacks merit.

Material Change in Circumstances and Best Interest of the Child

The mother argues that there has been a material change in circumstances, and that it is in the best interest of the child for the previous custody arrangement to be modified, with the child residing primarily with her and the father having custody on alternating weekends and as his work schedule allows. She states that the following facts prove a material change in circumstances: 1) the child has started school and is no longer in preschool; 2) the mother has graduated with an advanced nursing degree; 3) the father moved 90 miles away without telling the mother about the move; 4) the mother remarried; 5) the father refuses to communicate with the mother; 6) the father was not helping the child with school; and 7) the child was primarily residing with the grandmother during the father's week of custody. The father argues that the facts enumerated by the mother do not amount to a material change in circumstances, and that it is still in the child's best interest for the mother and father to continue to share week on-week off custody.

Courts have an inherent power to determine a child's best interest and to tailor a custody order that minimizes the risk of harm to the child. Chandler, supra . The trial court has vast discretion in deciding matters of child custody and visitation. Id. ; Slaughter v. Slaughter , 44,056 (La. App. 2d Cir. 12/30/08), 1 So.3d 788. This discretion is based on the trial court's opportunity to better evaluate the credibility of the witnesses. Id. The trial court's findings in child custody matters will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986) ; Chandler, supra .

The primary consideration in any child custody determination is the best interest of the child. Lawrence v. Lawrence , 49,373 (La. App. 2d Cir. 8/13/14), 147 So.3d 821. Louisiana Civil Code article 134 provides the factors the courts are to examine to determine custody. The court must consider all relevant factors in determining the best interest of the child. Chandler, supra . Every child custody case should be decided in light of its own particular set of facts, circumstances and relationships. Id.

The trial court, in its questioning of the witnesses and its oral reasons for judgment, demonstrates that the court did consider whether there had been a material change in circumstances. The trial court questioned the mother, the father, the maternal grandmother, the paternal grandmother, HLA's Sunday school teacher and HLA's stepfather. The trial court questioned the father about communication issues between him and the mother, the father's refereeing, the reasons why the father moved to West Monroe and the financial benefits the move had for HLA, and how long the parties have been doing week on-week off custody.

The trial court questioned the mother about the fact that she did not tell the father about testing HLA for the magnet program. He also questioned the mother about her proposed custody schedule of alternating weekends, so that the mother can have custody of HLA during the school week; the trial court pointed out that the father works on weekends and, in light of that fact, the court questioned the mother about how her proposed custody schedule is supposed to work and help HLA.

In looking at the article 134 best interest of the child factors, the trial court correctly applied the law to the facts in this case, which also can be seen in the questions the court asked of the witnesses and in the court's oral reasons for judgment. The court considered the parents' communication with each other, the parents' respective financial situations, continuity in HLA's care, whether the child is having any emotional problems due to the original custody agreement or other factors, and whether the mother's proposed custody schedule will benefit or harm HLA.

It is clear from the record that both parties love HLA and want to be a significant part of her life. She has emotional ties with both parents and her extended family. Both parents are able to adequately provide for HLA regarding food, clothing, medical care, and other material needs. Both parents expressed a willingness to foster a relationship between HLA and the other parent. HLA has lived with the week on-week off custody arrangement for years and her mother, father and paternal grandmother have been important in her life and upbringing. The trial court observed that HLA staying with the paternal grandmother so much because the father works and lives in West Monroe could be a problem. However, the father and paternal grandmother testified that he sees HLA at least four to five days during his week of custody. Prior to his move to West Monroe, the father lived with the paternal grandmother and that is where HLA lived during the father's custody week. The distance between the parents' residences is approximately 90 miles, but given that the father is willing to travel to the paternal grandmother's residence in Haughton to stay with HLA during much of his week of custody, the distance between the residences is not a significant factor. Additionally, the father testified that he will move back to the Shreveport/Bossier area as soon as a management position becomes available with his work.

According to jurisprudence, in order to find that there has been a material change in circumstances warranting custody modification, there must be more evidence of a change in circumstances than was presented in this case. In Lawrence, supra , the mother had no job, GED or high school diploma, and lived in the separate property home of her husband who was two months behind on mortgage payments. The father had a college degree, stable employment and a secure place to live. This Court also found in Lawrence, supra , that while both parents showed an unwillingness to foster and encourage a close relationship with the other parent, the mother exhibited alarming behavior in that regard, which included accusing the stepmother of kidnapping the children from school and challenging the father's authority when in the children's presence. The mother would also go to the children's school during the father's weeks of custody. When the children were riding the bus to the father's home, the mother would sit in the yard so the kids would see her, ensuring that the children had a difficult adjustment to the custody schedule. This Court noted that the father had a calmer approach in dealing with the mother and awarded joint custody with the father as domiciliary parent.

In Chandler, supra , the trial court found that there had been a material change in circumstances warranting custody modification in favor of the mother, which this Court upheld. The father in Chandler was unwilling to meet his child support obligations, was voluntarily underemployed, lived in a small one-bedroom apartment after allowing the marital home to go into foreclosure because he did not pay the note for 18 months, filed for bankruptcy, refused to take his medication for bipolar disorder, left the two young children unsupervised, was uncooperative with the mother regarding the children's school and homework, and he was inappropriately not concerned about the children's medical and dental needs, even refusing to replace his son's broken glasses for several months and failing to keep the children covered by medical insurance. This Court upheld the trial court's decision that equal physical custody was no longer in the children's best interest.

In the case sub judice , the mother wants to modify custody to an arrangement that she knows is unfeasible for the father given his work schedule. The trial court wisely determined that the problems that have arisen between the parents are due to a lack of communication. We agree with the trial court that the court should not disrupt HLA's custody schedule without more clear evidence that suggests a need for change. The trial court was correct in setting this case for a six month review to determine HLA's progress with week on-week off custody. HLA has been through a year of school and the trial court will be able to determine if there is any further need for modifying HLA's week on-week off custody. This assignment of error lacks merit.

Domiciliary Parent

The mother argues that the trial court should have assigned a domiciliary parent because it is mandated by the law. The father argues that Louisiana law does not require the courts to name a domiciliary parent in custody cases. La. R.S. 9:335B(1) provides that in a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown. In this case, there was an implementation order. However, given the communication issues the trial court noted between the parents, it is in the best interest of HLA that a domiciliary parent be fixed. Therefore, we reverse in part and remand to the trial court to make a determination of which parent would best serve as HLA's domiciliary parent.

CONCLUSION

For the foregoing reasons we affirm in part, reverse in part and remand the case to the trial court for review and a determination of a domiciliary parent. Costs are assessed one-half to each party.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

      At the time of the custody modification hearing, the mother had decided not to move.

      Ms. Booker's report is discussed on the record, but it was not entered into evidence.

      The stepfather testified that he did not remember the specific charge, whether it was possession of methamphetamine or possession with intent to distribute. The stepfather testified that he was arrested with 16 people; 37 pounds of methamphetamine and $280,000 in cash were seized at the same time. He further testified that he was sentenced to 178 months on the drug charge.

      A. Except as provided in Paragraph B of this Article, the court shall consider all relevant factors in determining the best interest of the child, including:
      (1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
      (2) The love, affection, and other emotional ties between each party and the child.
      (3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (7) The moral fitness of each party, insofar as it affects the welfare of the child.
      (8) The history of substance abuse, violence, or criminal activity of any party.
      (9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
      (10) The home, school, and community history of the child.
      (11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
      (13) The distance between the respective residences of the parties.
      (14) The responsibility for the care and rearing of the child previously exercised by each party.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    Amanda Kay CHREENE and Dennis M. Trombley, Plaintiffs-Appellants v. Howard C. PRINCE, Jr. and Rowdy Adventures, L.L.C., Defendants-Appellees
    No. 52,351-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    PATRICK R. JACKSON, Counsel for Plaintiffs-1st Appellants, Amanda Kay Chreene and Dennis M. Trombley
    OFFICE OF JASON P. FOOTE, L.L.C., By: Jason P. Foote, James Devin Caboni-Quinn, BODENHEIMER, JONES & SZWAK, By: David A. Szwak, Shreveport, Counsel for Defendant-2nd Appellant, Howard C. Prince, Jr., Individually
    BODENHEIMER, JONES & SZWAK, By: David A. Szwak, Shreveport, Counsel for Defendants, Howard C. Prince, Jr., in his capacity as owner of Rowdy Adventures, L.L.C. and Ark-La-Tex Shop Builders, Inc.
    BRIAN, REBOUL & ASSOCIATES, L.L.C., By: Brian L. Reboul, Counsel for Intervenor-Appellee, ASI Lloyds
    Before MOORE, PITMAN, and STEPHENS, JJ.
   STEPHENS, J.

This case involves two appeals. Plaintiffs, Amanda Kay Chreene and Dennis M. Trombley, appeal the judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, in favor of defendant ASI Lloyds, granting its motion for summary judgment. Defendant Howard C. Prince, Jr., appeals the judgment in favor of the plaintiffs, denying his motion for summary judgment. For the following reasons, we affirm both judgments.

FACTS AND PROCEDURAL HISTORY

This litigation arises from the death of the minor decedent, Austin Trombley ("Austin"), in the summer of 2014. At the time of his death, Austin was 16 years old and employed by Rowdy Adventures, LLC, which was a zipline park located in Arkansas owned by Howard C. Prince, Jr. While he was employed at Rowdy Adventures ("the park") for the summer, Austin resided at a nearby camp ("the camp") also owned by Prince. On the night of his death, Austin became intoxicated after consuming alcohol at the camp, drove a borrowed vehicle, missed a curve, left the roadway, and was killed in the single-car accident. Abigale Williams, the owner of the vehicle and only passenger, survived.

Following Austin's death, his parents, Amanda Kay Chreene and Dennis M. Trombley (collectively, "Plaintiffs"), brought suit against Prince for negligent supervision. They also named Rowdy Adventures, LLC, as a defendant and later amended their petition to include as an additional defendant the owner of the land the camp was situated on, Ark-La-Tex Shop Builders, Inc., which is also owned by Prince. ASI Lloyds ("ASI") is the homeowners insurance carrier for Prince and intervened in the litigation to seek judicial recognition that the homeowners insurance policy does not provide coverage for the liability asserted against Prince due to the motor vehicle and business pursuit exclusions contained in the policy. All defendants filed motions for summary judgment seeking dismissal from the suit.

In support of its motion for summary judgment, ASI submitted a memorandum, a copy of the homeowner's policy issued to Prince and his wife for the period of March 12, 2014, through March 12, 2015 (the "policy"), and certified copies of Plaintiffs' Original Petition for Damages, and Amended Petition for Damages. In support of his motion for summary judgment, Prince submitted a memorandum, excerpts from his deposition, copies of the motor vehicle crash report and law enforcement investigative report, excerpts from Abigale Williams' deposition, a certified copy of Plaintiffs' Original Petition for Damages, excerpts from Plaintiffs' depositions, and a copy of Austin's employment application for Rowdy Adventures, LLC. Plaintiffs, in support of their opposition memorandum, submitted excerpts from Plaintiffs' and Prince's depositions, copies of the motor vehicle crash report and law enforcement investigative report, and a letter from Prince to counsel for Plaintiffs, dated June 12, 2015. The motions of both ASI and Ark-La-Tex Shop Builders, Inc., were granted, and the motions of Prince and Rowdy Adventures, LLC, were denied. Plaintiffs now appeal the grant of ASI's motion, and Prince appeals the denial of his motion.

DISCUSSION

Summary Judgment Law

Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. La. C. C. P. art. 966(A)(2). After an opportunity for adequate discovery, 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 its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery, i.e. , material facts are those which potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Wells v. Town of Delhi , 51,222 (La. App. 2 Cir. 4/5/17), 216 So.3d 1095, writ denied , 2017-0753 (La. 9/22/17), 227 So.3d 821.

Appellate courts review summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Larson v. XYZ Ins. Co., 2016-0745 (La. 5/3/17), 226 So.3d 412 ; Schelmety v. Yamaha Motor Corp., USA , 50,586 (La. App. 2 Cir. 4/13/16), 193 So.3d 194, writ denied , 2016-0903 (La. 9/6/16), 205 So.3d 919.

Plaintiffs' Appeal of ASI's Summary Judgment

In its motion for summary judgment, ASI argued that the motor vehicle exclusions provisions of the policy prohibit coverage for any liability Prince may have for Austin's death because the language of the provision is clear and unambiguous and the undisputed facts show that Austin's death arose out of his use of a motor vehicle. ASI also argued that coverage was barred due to the business pursuits exclusion contained in the policy because the alleged lack of supervision arises out of or in connection with the business, Rowdy Adventures, LLC. The trial court agreed and granted ASI's motion for summary judgment on these issues.

The interpretation of an insurance contract is usually a legal question that can be properly resolved by means of a motion for summary judgment. Bernard v. Ellis , 2011-2377 (La. 7/2/12), 111 So.3d 995 ; Schelmety , supra . An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Green ex rel. Peterson v. Johnson , 2014-0292 (La. 10/15/14), 149 So.3d 766 ; Schelmety , supra . An insurance contract must be "construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy." La. R.S. 22:881 ; Schelmety , supra . When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. In such cases, the insurance contract must be enforced as written. Schelmety , supra. However, exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Id. The burden is on the insurer to prove that a loss comes within a policy exclusion. Rodgers v. State Farm Mut. Auto. Ins. , 2015-0868 (La. 6/30/15), 168 So.3d 375 ; Schelmety , supra .

The pertinent portions of the policy pertaining to the motor vehicle exclusion reads as follows:

HOMEOWNERS 3 - SPECIAL FORM
DEFINITIONS
B. In addition, certain words and phrases are defined as follows:
1. ... Motor Vehicle Liability" ... mean[s] the following:
a. Liability for "bodily injury" or "property damage" arising out of the:
(1) Ownership of such vehicle or craft by an "insured";
(2) Maintenance, occupancy, operation, use, loading or unloading of such vehicle or craft by any person;
(3) Entrustment of such vehicle or craft by an "insured" to any person:
(4) Failure to supervise or negligent supervision of any person involving such vehicle or craft by an "insured"; or
(5) Vicarious liability, whether or not imposed by law, for the actions of a child or minor involving such a vehicle or craft.
...
7. "Motor vehicle" means:
a. A self-propelled land or amphibious vehicle; or
b. Any trailer or semitrailer ...
...
SECTION II - EXCLUSIONS
D. "Motor Vehicle Liability"
1. Coverages E and F do not apply to any "motor vehicle liability" if, at the time and place of an "occurrence", the involved "motor vehicle":
a. Is registered for use on public roads or property;

In their first assignment of error, Plaintiffs assert the trial court erred in granting ASI's motion for summary judgment and finding that the motor vehicle exclusion excludes coverage when the asserted theory of liability is negligent supervision and the duty to supervise did not involve the use of a motor vehicle. We disagree.

Specifically, Plaintiffs argue the motor vehicle exclusion under the policy does not apply because, while the use of the motor vehicle was essential to the accident, it is not essential to their asserted theory of liability against Prince, i.e. , negligent supervision, which they notably distinguish from negligent entrustment or use of a motor vehicle. In support of their argument for the distinction between theory of liability and nature of the accident, Plaintiffs rely on Frazier v. State Farm Mut. Auto. Ins. Co. , 347 So.2d 1275 (La. App. 1 Cir. 1977), writ denied , 1977-60406 (La. 10/14/1977), 351 So.2d 165. In Frazier , the defendants were babysitting a child who was injured when run over by an automobile driven by their daughter. The petition filed by the child's mother alleged two distinct causes of actions-one for the negligence of the defendants for not properly supervising the injured child, and another for the negligent operation of the motor vehicle by the defendants' daughter. The defendants' homeowner policy, like the policy here, contained a motor vehicle exclusion. The first circuit held that the homeowner's insurer could be liable for the alleged negligence of the defendants even though under the exclusionary clause, it does not afford coverage for the operation of the motor vehicle. Id. at 1276.

However, this case is distinguished from Frazier because, here, the policy expands the motor vehicle exclusion incorporated in its policy beyond operation or use, and even negligent entrustment, of a motor vehicle. The policy specifically contains a provision that excludes coverage for liability arising out of the "failure to supervise or negligent supervision of any person involving such vehicle or craft by an 'insured.' " The language of this provision in the policy is clear and explicit and obviously intended to apply to the very circumstances that are alleged by Plaintiffs in their suit against Prince-negligent supervision. While we recognize that exclusionary provisions are to be strictly construed against the insured, there is simply no ambiguity present in this provision in the policy that would allow it to be construed in Plaintiffs' favor. Likewise, the enforcement of the provision as written would not lead to any absurd consequences. The policy clearly excludes coverage for any liability Prince may be found to have for Austin's death because such liability arises out of Austin's use or operation of a motor vehicle and/or out of Prince's failure to supervise or negligent supervision of Austin involving a motor vehicle. Therefore, we find the trial court correctly granted ASI's motion for summary judgment on this issue. This assignment of error is without merit.

In their second assignment of error, Plaintiffs assert the trial court erred in finding that the business pursuits exclusion prohibits coverage when the injury did not arise out of a business conducted from an insured location or engaged in by an insured. In its written opinion, the trial court reasoned as follows:

Furthermore, ASI Lloyd's business exclusion would serve to exclude coverage for the liability of the defendant, Howard C Prince, Jr. to the extent that he is: (1) liable as owner of Rowdy Adventures, LLC or Ark-La Tex Shop Builders, Inc.; (2) vicariously liable for Rowdy Adventures, LLC or Ark-La Tex Shop Builders, or any employee; or (3) otherwise liable for injury resulting in the failure to follow Louisiana employment law.

The trial court did not address whether or not ASI's business pursuits exclusion would exclude coverage in the event that Prince was found personally liable. Because we conclude that the coverage is excluded based on ASI's motor vehicle exclusion and that ASI's motion for summary judgment was therefore properly granted, further analysis of the business pursuits exclusion is now moot, and consideration of this assignment of error is unnecessary.

Prince's Appeal

Prince also appealed and asserts his own assignments of error regarding the trial court's denial of his motion for summary judgment. In his first two assignments of error, Prince asserts the trial court erred in finding there exists a genuine issue of material fact as to his negligence, whether he owed any duty to supervise Austin, and whether that duty was breached. We disagree.

Liability for negligence is determined by applying the duty/risk analysis. Bufkin v. Felipe's La., LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851 ; Chesney v. Entergy La., L.L.C. , 51,718 (La. App. 2 Cir. 11/15/17), 245 So.3d 281, writ denied , 2017-2095 (La. 2/9/18), 236 So.3d 1262. The plaintiff must prove the defendant's conduct was the cause-in-fact of his harm, the defendant owed a duty of care, the defendant breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Id.

Whether a legal duty is owed by one party to another depends upon the facts and circumstances of the case and the relationship between the parties. Carroll v. Allstate Ins. , 51,591 (La. App. 2 Cir. 9/27/17), 244 So.3d 772 ; Gullette v. Caldwell Par. Police Jury , 33,440 (La. App. 2 Cir. 6/21/00), 765 So.2d 464. The question of whether a duty exists is a question of law which may be appropriate for resolution by summary judgment when it is clear that no duty exists as a matter of law and the facts of credibility of the witnesses are not in dispute. Gullette , supra.

The scope of duty inquiry involves the question of how easily the risk of injury can be associated with the duty sought to be enforced. Roberts v. Benoit , 605 So.2d 1032 (La.1991) ; Richardson v. Lloyds , 48,715 (La. App. 2 Cir. 3/26/14), 136 So.3d 953. It is not necessary for the defendant to have foreseen the particular injury that occurred. A risk may be included in the scope of the duty if the injury is easily associated with other risks that are foreseeable. Forest v. State, Through La. Dep't of Transp. & Dev. , 493 So.2d 563 (La. 1986). While the existence of duty is a legal question, "[t]here is no 'rule' for determining the scope of the duty." Roberts, supra; Pillow v. Entergy Corp., 36,384 (La. App. 2 Cir. 9/18/02), 828 So.2d 83, writ denied , 2002-2575 (La. 12/13/02), 831 So.2d 987. The scope-of-duty inquiry is fact sensitive and ultimately turns on "a question of policy as to whether the particular risk falls within the scope of the duty." Id.

Prince asserts he had no duty to supervise Austin. He testified in deposition and stated in a written letter submitted to counsel for Plaintiffs that there may have been an express or even legally implied assumption of responsibility to watch over Austin in previous years when Austin was placed in his care to attend trips as a guest of Prince's stepson. However, Prince claims he never told Plaintiffs he would take care of Austin or guarantee his safety while he was employed at the park or living in the camp. Chreene likewise testified Prince had not expressly made such a promise to her. However, Trombley testified that while he could not pinpoint the exact time and location of his conversation with Prince, Prince did explicitly promise, more than once, within the past three years to supervise Austin while he worked at the park and resided at the camp; notably, Trombley's deposition occurred approximately 2 ½ years after Austin's death. To grant Prince's motion, the trial court would have been required to make a credibility determination regarding the depositions of the parties. However, a trial court cannot make credibility determinations on a motion for summary judgment; it must assume that all affiants are credible. Independent Fire Ins. Co. v. Sunbeam Corp. , 1999-2181, 1999-2257 (La. 2/29/00), 755 So.2d 226 ; Wells, supra. The credibility of a witness is a question of fact, and, here, the testimony presents a genuine issue of material fact regarding the existence and time period of Prince's promise to Trombley.

Prince further asserts that even if he had a duty to supervise Austin, the accident falls outside the scope of duty because he could not have reasonably foreseen that Austin would consume enough alcohol to become intoxicated and then attempt to drive a vehicle borrowed from a third person. The deposition testimony of Abigale Williams establishes that on the night of the accident, she, Austin, and several others were consuming alcohol at the camp before leaving to continue drinking at a nearby riverbank; Prince was not present; and, Prince would not have approved of them consuming alcohol at the camp. Prince and Trombley both testified as well that Prince did not allow the consumption of alcohol at the camp or the park. Plaintiffs argue that if Prince had adequately supervised Austin, a 16-year-old boy, Austin would not have consumed any alcohol that night and the accident would never have occurred. They assert it is reasonably foreseeable that unsupervised teenagers would consume alcohol and sustain injuries as a result of their intoxication. The issue of scope of duty is fact sensitive. Considering the testimony, a reasonable trier of fact could determine that the accident was a foreseeable risk of harm and the accident could have been avoided if Prince had exercised a reasonable degree of supervision of Austin at the camp. We therefore find that the record before us establishes there is a genuine issue of material fact as to Prince's negligence, whether or not Prince owed any duty to supervise Austin, and whether or not he breached that duty. These assignments of error are without merit.

In his third assignment of error, Prince asserts the trial court erred in denying his motion for summary judgment and finding there exists a genuine issue of material fact as to his immunity from tort liability in accordance with La. R.S. 9:2798.4. We disagree.

Louisiana R.S. 9:2798.4 provides in pertinent part:

A. Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those available under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
(2) Was operating a motor vehicle, aircraft, watercraft, or vessel while he was under the influence of any controlled dangerous substance described in R.S. 14:98(A)(1)(c) or R.S. 40:964.
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(1)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S. 14:98(A)(1)(c) ; and
(2) This negligence was a contributing factor causing the damage. (Emphasis added).

While the documentary evidence before us establishes that Austin's blood alcohol content was 0.2 percent, no determination was made by the trial court with regard to Austin's percentage of negligence. Therefore, not all requirements for the application of the statute have been met. Prince, relying on Lyncker v. Design Eng'g, Inc. , 2010-0740 (La. App. 4 Cir. 10/20/10), 51 So.3d 137, writ denied , 2010-2592 (La. 1/14/11), 52 So.3d 904, asserts that a specific finding of fact regarding percentage of fault is not required where summary judgment evidence is sufficient to make a determination. However, here, the testimony establishes that Austin did not have a driver's license and was not known to ever drive, which could reasonably support a finding of additional causes for Austin's negligence, other than his intoxication. Thus there is a genuine issue of material of fact as to whether or not the motor vehicle accident and Austin's negligence were the result of his blood alcohol level as opposed to his lack of driving ability and/or experience and as to whether or not Austin was more than 25% negligent as a result of his intoxication. Accordingly, Prince's motion for summary judgment on the grounds of immunity from tort liability in accordance with La. R.S. 9:2798.4 was properly denied by the trial court. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court. Appellate costs are to be paid one-half by the plaintiffs, Amanda Kay Chreene and Dennis M. Trombley, and one-half by the defendant, Howard C. Prince Jr.

AFFIRMED .

      The trial court rulings on the motions of Ark-La-Tex Shop Builders Inc. and Rowdy Adventures, LLC were not appealed.

      Generally, the denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. La. C.C.P. arts. 968, 1841, 2083. However, we concur with the first and third circuits that in the interest of judicial economy, the denial of a motion for summary judgment may be reviewed in conjunction with an appealable final judgment. See MP31 Investments, LLC v. Harvest Operating, LLC , 2015-0766 (La. App. 1 Cir. 1/22/16), 186 So.3d 750 ; Mackmer v. Estate of Angelle , 2014-665 (La. App. 3 Cir. 12/10/14), 155 So.3d 125, writ denied , 2015-0069 (La. 4/2/15), 176 So.3d 1031. Therefore, Prince's assignments of error are appropriately reviewable in this appeal.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Cameron LEWIS, Appellant
    No. 52,289-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, JASON W. WALTMAN, TRENISHA J. HILL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and STEPHENS, JJ.
   PITMAN, J.

A jury convicted Defendant Cameron Lewis of second degree murder. The trial court sentenced him to the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the following reasons, we affirm Defendant's conviction and sentence.

FACTS

On April 14, 2016, a grand jury charged Defendant by indictment with second degree murder in violation of La. R.S. 14:30.1, alleging that on February 22, 2016, he murdered Bryan Savage.

On November 3, 2016, Defendant filed a motion to suppress recorded and unrecorded statements he gave to law enforcement officers on the grounds that they were not freely and voluntarily given, that the officers did not fully and adequately advise him of his constitutional rights and that they were made as a result of improper promises and inducements. On June 22, 2017, the trial court conducted a free and voluntary hearing, finding that Defendant's statements were freely and voluntarily made after he was advised of his rights, and denied the motion to suppress statements.

Also on November 3, 2016, Defendant filed a motion to suppress evidence. He sought to suppress items seized from a Honda Accord, which belonged to his wife Sanchasity Lewis, on the grounds that law enforcement officers did not have consent to search, the items were not in plain view, the search was not incident to an arrest and no exigent circumstances existed. Defendant argued that the subsequent search warrant was defective because it was secured after the search had begun; and, therefore, any evidence seized pursuant to the warrant should have been excluded. A hearing on the motion to suppress was held on November 14, 2017. On January 10, 2018, the trial court denied the motion to suppress.

A jury trial began on January 8, 2018. Cpl. Eric Mayes of the Caddo Parish Sheriff's Office testified that between 5:30 and 6:00 a.m. in the morning on February 22, 2016, he responded to a call about a suspicious vehicle on Woolworth Road. He drove up to a white Chevy Avalanche, which was parked on the side of Woolworth Road. The driver of the Avalanche drove away, and he followed and initiated a traffic stop. He approached the driver, whom he identified in court as Defendant. Defendant advised that he was parked on the side of the road because he was having a problem with his vehicle. Cpl. Mayes requested Defendant's driver's license, proof of insurance and proof of registration. Defendant produced his State of Louisiana identification card and a proof of registration and then searched the Avalanche for his proof of insurance. At this time, Cpl. Mayes heard sirens and observed fire vehicles driving on Woolworth Road. His partner then arrived at the scene of the traffic stop, and Cpl. Mayes asked Defendant to exit his vehicle. While Cpl. Mayes spoke with his partner, Defendant drove away. Cpl. Mayes and his partner engaged in a high-speed pursuit of Defendant's vehicle but called off the pursuit when Defendant's vehicle was no longer in sight. The traffic stop and Defendant's flight were recorded by the camera in Cpl. Mayes's vehicle, and video of this recording was introduced into evidence and played for the jury. Cpl. Mayes testified that he was then informed of a fire at the house on Woolworth Road where he had responded to the call about the suspicious vehicle. He reported to the house and learned that there was a deceased person inside. He noted that the middle portion of the house had collapsed on itself, that there was fire and water damage on the inside of the house and that the deceased was lying on the floor of the living room.

Officer Brian Michael of the Shreveport Police Department testified that on the evening of February 22, 2016, he came upon an abandoned white Ford truck at a park. He discovered that the truck was a stolen vehicle and was involved in a homicide investigation. He obtained a search warrant for the truck and remained with it until the crime scene unit arrived.

Officer Jason Saiz of the Shreveport Police Department testified that at approximately 1:00 a.m. on February 23, 2016, he received a message from dispatchers that suspects in a homicide were possibly at a hotel in the Shreveport area and were driving a white Avalanche. He discovered a white Avalanche parked at the Merryton Inn. Officers determined that the VIN matched that of the Avalanche involved in the homicide investigation.

Detective Marlon Clark of the Shreveport Police Department testified that on February 23, 2016, he responded to the Merryton Inn. He stated that Defendant, Amanda Williams and Sanchasity Lewis had been taken into custody and that officers searched the hotel rooms they had occupied. Under the mattress in Amanda's room, officers found a sock containing foreign and commemorative coins. In Defendant and Sanchasity's room, officers found a key to a Honda vehicle. Det. Clark located a green Honda Accord in the parking lot of the hotel, determined that the key worked for that vehicle and impounded it. He noted that Defendant and Sanchasity were married and owned the Accord. Det. Clark testified that he went to the impound yard at the crime lab to investigate the Accord and a white Ford F250, which was the victim's work truck. Sanchasity gave written consent for a search of the Accord. Within its driver's side door, officers found a key to the F250. Also within the Accord, officers found a bag with bottles of medication with the victim's name on them, a wallet and a small caliber bullet.

Det. David Bonillas of the Shreveport Police Department testified that he was the primary investigator in this homicide case. He described the condition of Mr. Savage's body at the scene and noted that he was wearing only his underwear and a gold chain, he had blood coming from his nose and he had a wound to his upper chest area. He described what he observed at the house, noting the fire damage and that it appeared someone had gone through all of Mr. Savage's belongings and strewn paperwork everywhere. He testified that members of Mr. Savage's family advised that a television, two safes and various firearms were missing from the house and that Mr. Savage's F250 was also missing. They informed him that a woman named Bailey or Amanda was a home sitter for Mr. Savage. During Det. Bonillas's testimony, security footage from Sam's Town Casino recorded on February 22, 2016, was introduced into evidence and viewed by the jury. The video and photographs showed Defendant and Amanda arriving at and departing from the parking garage at different times in the Avalanche, the Accord and the F250.

Det. Bonillas also testified that he interviewed Defendant at the police station on the morning of February 23, 2016, several hours after his arrest. Defendant denied any involvement in the homicide and stated that Lee Lewis was responsible. He also interviewed Amanda, and she stated that she did not know Lee Lewis. Based on these inconsistent statements, he interviewed Defendant on February 24, 2016. An audio and video recording of this interview was played for the jury. During the interview, Defendant at first denied involvement, but he then admitted to being inside the house and repeatedly stated that he did not kill Mr. Savage. He explained that Amanda was a sitter for Mr. Savage and knew that the house would be "an easy lick." He and Amanda entered the house and went separate ways-he stole two televisions, and she took coins and prescription medication. He stated that Amanda shot Mr. Savage with the .22 or .25 caliber pistol she had when they entered the house. Defendant admitted to setting the fire with lighter fluid to "cover [their] tracks."

Following the interview at the police station, Det. Bonillas drove Defendant to the crime scene, and they walked through the house. This was recorded, and the video was played for the jury. In the video, Defendant detailed how he and Amanda broke into the house and went to different areas of the house. Defendant heard Mr. Savage "holler" and heard a "pop." He then saw Mr. Savage lying on his back on the floor, and he was breathing and moaning and looking at Defendant. Defendant then found lighter fluid and started a fire using his lighter. Defendant removed two televisions from the house and put them in the Avalanche. Defendant saw Amanda with a gun when they arrived at the house and noted that it was an automatic.

On cross-examination, Det. Bonillas testified that Amanda was also charged with second degree murder. He noted that she was a suspect in a previous burglary of Mr. Savage's house. He stated that in November and December 2015, Amanda was a sitter for Mr. Savage's father, who lived with Mr. Savage.

Corporal Betsy Huey Pickett of the Shreveport Police Department testified that she investigated the crime scene. She described the condition of the house and how fire damage, including the ceiling collapsing, impacted the investigation. She stated that it appeared that someone had ransacked the house and that items were strewn about.

Corporal Jennifer White of the Shreveport Police Department testified that she investigated the crime scene and recovered a spent cartridge casing, which appeared to be .22 in caliber.

Joshua McCollum, an arson investigator with the Shreveport Fire Department, testified that he investigated the house on Woolworth Road, which included taking photographs and collecting samples of debris.

Bruce Stentz, a forensic chemist with the North Louisiana Crime Lab, testified that he analyzed four samples collected at the scene. He found ignitable liquids on two of the samples.

Dr. Long Jin, an expert in the field of forensic pathology, testified that he performed the autopsy on Mr. Savage. He determined the manner of death to be homicide and the cause of death to be a single perforating gunshot wound to the left chest. He noted that the bullet penetrated Mr. Savage's aorta, which caused significant blood loss. He testified that Mr. Savage likely lived "several minutes" after being shot. He opined that Mr. Savage expired prior to the fire. He stated that he did not observe any smoke in Mr. Savage's airway, and the toxicology reports did not show any carbon monoxide. He observed burns on 15 to 20 percent of Mr. Savage's body surface.

On January 10, 2018, a unanimous jury convicted Defendant as charged of second degree murder.

On January 24, 2018, Defendant filed a motion for new trial. He argued that the trial court erred in denying his motions to suppress, that it erred in including in the jury instructions any reference to the offense of aggravated arson and that the verdict is contrary to the law and evidence. He also filed a motion for post-verdict judgment of acquittal. In the alternative, he argued that he should be convicted of the lesser included offense of manslaughter. These motions were addressed at a hearing on January 24, 2018, and the trial court denied the motions. Defendant waived sentencing delays, and the trial court sentenced him to the statutory mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.

Defendant appeals.

DISCUSSION

Sufficiency of the Evidence

Defendant argues that the evidence adduced at trial was insufficient to find him guilty of second degree murder beyond a reasonable doubt. He contends that, at most, he is guilty of manslaughter. He further asserts that there was insufficient evidence to prove that he was a principal to aggravated arson or aggravated burglary; thus, he could not be convicted of felony murder. He notes that Dr. Jin's testimony that Mr. Savage expired before the fire started precludes a conviction for aggravated arson. He submits that the evidence only supports a finding of simple burglary of an inhabited dwelling in that he intended to commit a theft, but did not know Amanda was going to shoot Mr. Savage.

The state argues that the evidence presented at trial was sufficient to prove that Defendant was guilty of second degree murder, specifically of felony murder because it proved the crimes of aggravated arson and aggravated burglary. It notes that Defendant admitted that he used charcoal lighter fluid to start a fire and that Mr. Savage was alive when he set the fire. He also admitted to stealing a television and knowing Amanda was armed with a pistol.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold , 603 So.2d 731 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. State v. Hearold , supra .

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , supra ; State v. Hearold , supra . See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied , 02-3090 (La. 11/14/03), 858 So.2d 422.

La. R.S. 14:30.1(A)(2) provides, in pertinent part, that second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of an enumerated felony, including aggravated arson or aggravated burglary, even though he has no intent to kill or to inflict great bodily harm.

La. R.S. 14:51(A) defines aggravated arson as the intentional damaging by any explosive substance or the setting fire to any structure, watercraft or movable whereby it is foreseeable that human life might be endangered.

La. R.S. 14:60(A) defines aggravated burglary and states:

A. Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous weapon.
(3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Garcia , 44,562 (La. App. 2 Cir. 10/28/09), 26 So.3d 159, writ denied , 09-2583 (La. 2/11/11), 56 So.3d 992, citing State v. Watson , 397 So.2d 1337 (La. 1981). An individual may only be convicted as a principal for those crimes for which he has personally had the requisite mental state, the requisite mental knowledge, the requisite mental intent. State v. Garcia , supra , citing State v. Watson , supra .

Acting in concert, each person becomes responsible not only for his own acts, but for the acts of the other. State v. Anderson , 97-1301 (La. 2/6/98), 707 So.2d 1223 ; State v. Jones , 49,830 (La. App. 2 Cir. 5/20/15), 166 So.3d 406, writ not considered , 15-1524 (La. 3/14/16), 188 So.3d 1067. Under the law of principals, a person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Hampton , 98-0331 (La. 4/23/99), 750 So.2d 867 ; State v. Jones , supra . While possession of a dangerous weapon is an essential component of the commission of an aggravated burglary, a person may be a principal to the offense even though he did not personally have possession of the weapon used in the commission of the crime. State v. Ortiz , 96-1609 (La. 10/21/97), 701 So.2d 922, cert. denied , 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

The evidence presented at trial was sufficient to support a conviction for second degree felony murder based either on the commission of aggravated arson or aggravated burglary.

Mr. Savage was killed when Defendant was engaged in the perpetration or attempted perpetration of aggravated arson. In his interview with Det. Bonillas and while walking through the crime scene with law enforcement officers on February 24, 2016, Defendant admitted to using lighter fluid and his lighter to set a fire at Mr. Savage's house to "cover [his and Amanda's] tracks." It was foreseeable that human life might be endangered because Defendant believed Mr. Savage was alive when he set the fire. Defendant observed Mr. Savage breathing and moaning and looking at him while lying on the floor. Although Dr. Jin opined that Mr. Savage had expired prior to Defendant setting the fire, his opinion does not preclude a conviction for second degree murder based on aggravated arson. Further, Amanda was inside the house when Defendant set the fire, which also put her life in danger.

Mr. Savage was killed when Defendant was engaged as a principal in the perpetration or attempted perpetration of aggravated burglary. Defendant and Amanda made an unauthorized entry into Mr. Savage's house while Mr. Savage was present, and they had the intent to commit a felony or a theft therein, i.e., they intended to take items from Mr. Savage's house. Defendant and Amanda ransacked the house and took a variety of items, including televisions, coins and Mr. Savage's F250. Defendant knew that Amanda was armed with a dangerous weapon, i.e., a .22 or .25 caliber firearm, when they entered the house. While in the house, Amanda committed a battery on Mr. Savage by shooting him. The facts that Defendant did not have possession of the weapon and did not shoot Mr. Savage do not affect his status as a principal to aggravated burglary.

Accordingly, this assignment is without merit.

Motion to Suppress Statements

Defendant argues that the trial court erred in denying his motion to suppress statements. He contends that his statements were not freely and voluntarily given, that he was not fully advised of his constitutional rights and that his statements were the results of improper promises and inducements.

The state argues that law enforcement used well-known tactics when questioning Defendant and that jurisprudence has not condemned these methods as improper under the circumstances of this case.

Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Roddy , 33,112 (La. App. 2 Cir. 4/7/00), 756 So.2d 1272, writ denied , 00-1427 (La. 5/11/01), 791 So.2d 1288.

When a defendant alleges specific instances of police misconduct in reference to the statement, it is incumbent upon the state to specifically rebut the allegations. State v. Vessell , 450 So.2d 938 (La. 1984) ; State v. Washington , 51,818 (La. App. 2 Cir. 4/11/18), 245 So.3d 1234.

The admissibility of a confession is in the first instance a question for the trial court. State v. Roddy , supra . The trial court's conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility is entitled to great weight and will not be overturned on appeal unless it is not supported by the evidence. State v. Benoit , 440 So.2d 129 (La. 1983) ; State v. Roddy , supra .

When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Blank , 04-0204 (La. 4/11/07), 955 So.2d 90, cert. denied , 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007) ; State v. Platt , 43,708 (La. App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied , 09-0265 (La. 11/6/09), 21 So.3d 305.

Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Henderson , 31,986 (La. App. 2 Cir. 8/18/99), 740 So.2d 240.

The trial court's finding that Defendant's statements were made freely and voluntarily is supported by the evidence; and, thus, it did not err in denying the motion to suppress.

At the free and voluntary hearing, Det. Bonillas testified that he first interviewed Defendant on February 23, 2016. Prior to conducting the interview, he read Defendant his Miranda rights, and Defendant acknowledged that he understood his rights by signing a form and providing a statement. This form and a video recording of Defendant signing the form were introduced into evidence. During the interview, Defendant stated that he was the getaway driver for Lee Lewis and Amanda. Following this interview, Defendant was arrested for aggravated flight for fleeing from Cpl. Mayes during the traffic stop.

Det. Bonillas testified that he also interviewed Defendant on February 24, 2016, at the police station. Prior to conducting the interview, he read Defendant his Miranda rights, and Defendant acknowledged that he understood his rights by signing a form and providing a statement. This form was introduced into evidence. An audio and video recording of Defendant signing the form and the interview that followed was introduced into evidence and played for the trial court. During this interview, Defendant admitted to entering the victim's house, removing items from the house and setting fire to the house. Also during the interview, Det. Johnny Elie said to Defendant that he "needs a voice" and implored Defendant to let the officers be his voice. Det. Elie later commented that he was "here to help" Defendant. Following this interview at the police station, officers transported Defendant to the crime scene. Audio and video recordings of the transport and of walking through the crime scene were played for the trial court. At the conclusion of the walkthrough, Det. Elie asked Defendant if anyone forced or coerced him to walk through the crime scene. Defendant responded that he volunteered.

In his testimony, Det. Bonillas denied making any promises to Defendant or threatening him to get him to talk. He stated that at no time during the interviews did Defendant indicate that he wanted to terminate the interview or that he wanted to speak to an attorney. He noted that Defendant appeared to be in his right mind and gave logical, yet sometimes deceptive, responses to the detectives' questions. He denied hearing Det. Elie make any promises to or threaten Defendant.

On cross-examination, Det. Bonillas confirmed that Defendant was being questioned primarily in relation to the homicide, not the aggravated flight. Defense counsel questioned why Det. Bonillas did not write on the Miranda rights form the offense for which Defendant was under arrest or investigation. Det. Bonillas responded, "Sometimes I leave it blank and sometimes I fill it in. I mean, the law only requires me to read him his Miranda rights." Defense counsel further questioned Det. Bonillas about a statement from his report that "On the return [from the walkthrough of the crime scene], Lewis asked Detective Elie and I how speaking to investigators would help his case." In explanation of that statement, Det. Bonillas testified:

Yeah, I told him that -- well, I can't remember verbatim, but I believe I told him something about that he would have to get with his lawyer and it would be up to the judge and up to the District Attorney's office on his statements to us, how they would be weighed in court.

The trial court found Defendant's statements to be free and voluntary, stating:

All right. I, obviously, have been sitting here since 2:45 listening and watching all of this, and I didn't see any threats. I didn't see anything except for what I would refer to and what I just stated were interrogation techniques the police use all the time.
I do think all the statements were made freely and voluntarily. He didn't -- Mr. Lewis wasn't impaired. He was advised he had a right to an attorney. He never asked for an attorney. He never stopped to say I need advice, I don't want to talk to you anymore. There was no threats, there was no promises. Saying let us be your voice, I mean, the detectives are the ones that write the reports that go to the DA and that's what Detective Elie says. I mean, I don't think it was improper. I don't think it was coercion, so I think all the statements that were made and that we just watched were made freely and voluntarily after being advised of his rights.

The trial court's conclusion that Defendant's statements were freely and voluntarily made is supported by the evidence. Law enforcement officers advised Defendant of his rights prior to each interview, and Defendant waived these rights. He never asked for a lawyer or to terminate the interview. The few comments made by Det. Elie were not coercive and do not constitute improper inducement. The trial court properly denied the motion to suppress Defendant's statements.

Accordingly, this assignment of error lacks merit.

Motion to Suppress Evidence

Defendant argues that the trial court erred in denying his motion to suppress evidence. He contends that the consent to search the Accord given by Sanchasity is tainted by an illegal detention; and, thus, the evidence seized as a result of the search should have been suppressed.

The state argues that the trial court did not err in denying the motion to suppress. It notes that Sanchasity signed a consent form to search the Accord and that law enforcement obtained a search warrant as a prophylactic measure to ensure there could be no question as to the validity of the search. It contends that Sanchasity voluntarily cooperated with the investigation and gave a statement to clear her name and that there is no evidence to support any illegal detention of her.

The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson , 02-0333 (La. 4/9/03), 842 So.2d 330 ; State v. Tatum , 466 So.2d 29 (La. 1985) ; State v. Ledford , 40,318 (La. App. 2 Cir. 10/28/05), 914 So.2d 1168. To claim the protection of the Fourth Amendment, the claimant must have a legitimate expectation of privacy in the place of intrusion and the expectation must be one that society is prepared to recognize as reasonable. Minnesota v. Olson , 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

La. C. Cr. P. art. 703 states that a defendant may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D) ; State v. Johnson , 32,384 (La. App. 2 Cir. 9/22/99), 748 So.2d 31.

In reviewing the correctness of the trial court's pretrial ruling on a motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress and may review the entire record, including testimony at trial. State v. Monroe , 49,365 (La. App. 2 Cir. 11/19/14), 152 So.3d 1011. Great weight is placed upon the trial court's ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews , 28,153 (La. App. 2 Cir. 5/08/96), 674 So.2d 1082. Accordingly, this court reviews the trial court's ruling on a motion to suppress under the manifest error standard for factual determinations, while applying a de novo review to its findings of law. State v. Hemphill , 41,526 (La. App. 2 Cir. 11/17/06), 942 So.2d 1263, writ denied , 06-2976 (La. 3/9/07), 949 So.2d 441.

It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Raheem , 464 So.2d 293 (La. 1985) ; State v. Crews , supra . To be valid, consent must be (1) free and voluntary, in circumstances that indicate the consent was not the product of coercion, threat, promise, pressure or duress that would negate the voluntariness; and (2) given by someone with apparent authority to grant consent, such that the police officer reasonably believes the person has the authority to grant and consent to the search. State v. Bates , 51,890 (La. App. 2 Cir. 2/28/18), 246 So.3d 672, citing United States v. Matlock , 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and State v. Howard , 49,965 (La. App. 2 Cir. 6/24/15), 169 So.3d 777, writ granted , 15-1404 (La. 12/16/16), 212 So.3d 1168, and aff'd , 15-1404 (La. 5/3/17), 226 So.3d 419. However, if consent was obtained after an illegal detention, intrusion or entry, the consent is valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. State v. Bates , supra . Among the factors to consider in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the law enforcement officers adequately informed the individual that he or she need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct. Id.

If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin , 97-3065 (La. 12/1/98), 722 So.2d 988 ; State v. Bates , supra .

At the motion to suppress hearing, Det. Bonillas testified about officers locating Defendant, Sanchasity and Amanda at the Merryton Inn. Officers obtained a search warrant for the hotel rooms occupied by the suspects and found keys to two vehicles parked outside the hotel rooms, i.e., the Avalanche and the Accord. Both vehicles were impounded. Det. Bonillas stated that Sanchasity was transported to the police station to be questioned as a witness. Officers did not believe she was involved in the homicide, so they did not read her the Miranda rights. Sanchasity told officers that the Accord belonged to her, and she signed a consent to search form, which was introduced into evidence. An audio and video recording of Sanchasity signing the consent form was also introduced into evidence. Det. Bonillas testified that he did not make any promises or threats to Sanchasity regarding the consent to search.

Det. Bonillas further testified that he advised Det. Clark that consent had been obtained to search the Accord, and Det. Clark and Cpl. John Madjerick began processing the vehicle. Cpl. Madjerick opened the driver's side door, saw a Ford key in the compartment near the door handle and deduced that the key might be to the F250 stolen from Mr. Savage's house. Det. Bonillas stated that Det. Clark then stopped the search temporarily in order to obtain a search warrant. He instructed Det. Joey Brown to obtain a search warrant for the Accord, and the search warrant was introduced into evidence. Sanchasity signed a second consent to search form, which was also introduced into evidence. Det. Bonillas confirmed that no items were recovered pursuant to the second consent form. After the search warrant was secured, officers resumed searching the Accord and seized a black bag from the back seat, which contained Mr. Savage's wallet and two prescription bottles bearing his name.

On cross-examination, defense counsel questioned Det. Bonillas as to why the search was stopped to obtain a warrant if he believed the consent to have been valid. Det. Bonillas explained:

Well it's always -- like I would say in case there's any issues that might come up with that consent form. Like we're here today. It's probably always best to get a search warrant once you find evidence in a vehicle.

He added, "[I]n my experience if we -- if there's any doubt even if it's one percent just go ahead and get a warrant."

Det. Elie testified that he was present when Sanchasity and Det. Bonillas signed the consent to search form. He stated that he made no promises or threats to Sanchasity in connection with the consent. He testified that she appeared to answer questions in a coherent, logical manner; that she did not appear to be under the influence of any drugs or alcohol; and that her consent was freely and voluntarily given.

After taking the matter under advisement, the trial court denied the motion to suppress. It determined that Sanchasity freely and voluntarily gave her consent to search; and, therefore, the key to the F250 was obtained pursuant to her valid consent. It also determined that the items inside the black bag were obtained pursuant to a valid search warrant.

The trial court did not err in denying Defendant's motion to suppress the items seized from the Accord. Law enforcement officers seized the key to Mr. Savage's F250 following Sanchasity, who owned the Accord, giving valid consent to search. Her consent was in no way coerced. Law enforcement officers seized a black bag containing medication prescribed to Mr. Savage pursuant to a valid search warrant.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Defendant Cameron Lewis.

AFFIRMED.

      The trial court prepared the ruling in November 2017, but did not sign and file it until after the trial began.

      Throughout the record, Amanda Williams is also referred to by other names including Bailey, Bailey Williams and Amanda Compton.

      The bill of indictment charged Defendant with second degree murder in violation of La. R.S. 14:30.1, but it did not specify if this charge was based on specific intent pursuant to La. R.S. 14:30.1(A)(1) and/or felony murder pursuant to La. R.S. 14:30.1(A)(2). The jury instructions charged the jury as to felony murder with the underlying felonies of aggravated arson and aggravated burglary.