author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Ron Karry LASTER, Appellant.
    No. 44,870, KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 5, 2010.

      Peggy Sullivan, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Sarah S. Midboe, Dhu Thompson, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

hln October 2003, a series of armed robberies took place in Shreveport, Louisiana. These crimes occurred at the Travel-odge Motel on October 24, at the Lucky Liquor Store at about 10:00 p.m. on October 25 and at approximately 1:00 a.m. on October 26 at a private residence. On October 26, defendant, Ron Karry Laster, was arrested in Ardmore, Oklahoma, driving a vehicle stolen in the home invasion robbery. The trial court granted defendant’s motion to represent himself with the assistance of standby counsel. Defendant was tried by a jury and found guilty on all three counts. The state withdrew a multiple offender bill of information and defendant was sentenced to 45, 65, and 55 years at hard labor. The sentences were ordered to be served concurrently without the benefit of probation, parole, or suspension of sentence. On appeal defendant is represented by the Appellate Project. Finding no error, we affirm.

Discussion

Self-Representation

The defense argues that the trial court did not adequately advise defendant concerning self-representation.

An accused has the right to choose self-representation. State v. Leger, 05-0011 (La.07/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Bridgewater, 00-1529 (La.01/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Because of the disadvantages of proceeding without counsel, an accused must knowingly, intelligently, and unequivocally waive the right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Yates, 44,391 (La.App.2d Cir.07/01/09), 15 So.3d 1260; State v. Moore, 40,311 (La.App.2d Cir.01/13/06), 920 So.2d 334, writ denied, 06-2267 (06/01/07), 957 So.2d 167.

The trial court, in accepting a waiver of counsel, should advise the accused of the nature of the charge and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver. State v. Simmons, 05-1462 (La.03/17/06), 924 So.2d 137; State v. Strain, 585 So.2d 540 (La.1991). There is no particular formula which must be followed by the trial court in determining whether the defendant waived his right to counsel. State v. Moore, supra.

In the instant case the record shows that the trial court inquired into defendant’s educational history, his understanding of the penalties, his occupation, and his mental health history. Defendant, who was 42 years old, stated that he had gone to Indiana State University for two years, he recited the penalties for the crimes and stated that he had no mental health issues. The court also told defendant that if he proceeded through trial, he could not later switch back and forth between representing himself or | ^requesting counsel. Further, the court informed defendant that he would have to accept the consequences of representing himself if he received an adverse verdict. Defendant stated that he understood what the trial court was advising. The trial court allowed defendant’s motion but kept the Indigent Defender Board attorney as standby counsel.

Defendant filed several pretrial motions and received and frequently used the assistance of his standby counsel. The ability and conduct shown by defendant in pretrial matters and during the trial itself clearly demonstrated that defendant understood what he was doing and knowingly, intelligently, and unequivocally waived his right to counsel.

Sufficiency of Evidence

Defendant contends that the evidence adduced at trial was insufficient to convict him of three counts of armed robbery.

La. R.S. 14:64(A) provides:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

The standard of review applied to an insufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard is now written in La. C. Cr. P. art. 821. All evidence, both circumstantial and direct, must be sufficient under Jackson v. Virginia to satisfy a rational juror that the defendant is guilty beyond a reasonable 14 doubt. State v. Rhodes, 29,207 (La.App.2d Cir.01/22/97), 688 So.2d 628, unit denied, 97-0753 (La.09/26/97), 701 So.2d 980.

The appellate court does not assess the credibility of witnesses 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.2d Cir.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The evidence shows that in late October 2003, defendant, Andrea Riggin, Elijah Madkins and Kia Newsom left Topeka, Kansas, in defendant’s Buick automobile bound for New Orleans, Louisiana. Defendant brought a number of guns with him. The group stopped in Bossier City, Louisiana, and stayed at the Days Inn. They met a man named Calvin, from whom they obtained crack cocaine. They went on to New Orleans and stayed for two or three days. The four from Kansas again stopped in the Shreveport area on then-way back to Topeka. They stayed again at the Days Inn and got with Calvin to obtain more crack cocaine. Calvin was identified by the police as Calvin Easley who lives in Shreveport. Significantly, the group was in need of money to buy drugs and thus planned a robbery.

Count Three: Travelodge Motel

Although this was the third count, chronologically it was the first armed robbery. On October 24, 2003, the Shreveport Police were called to the Travelodge Motel located at 2134 Greenwood Road. Theresa Ahmad |swas the manager on duty and was working at the front desk of the motel. At approximately 3:00 p.m. a tall black male wearing a black shirt with stripes, black pants, and a black hat entered the motel with a gun. The man told Ms. Ahmad to get on the ground and then the man stepped over her and took cash from the drawer. A housekeeper, Wanda Sue Jones, was also in the motel and witnessed the robbery.

Andrea Riggin, who was described as defendant’s girlfriend, testified that defendant and Calvin discussed committing a robbery in an area that Calvin had previously worked. She testified that they went to this location and she saw defendant walk from his vehicle toward the motel with a pistol in his pants. She stated that when he came from the motel he had the pistol and cash. She further testified that defendant bragged about robbing the motel. Riggin identified the driver of the vehicle as Calvin.

The testimony of Ms. Ahmad indicated that the robber was a tall, thin, black male. This description matches defendant. Both Ms. Ahmad and Ms. Jones testified that the man who took money from the drawer was armed with a pistol. Another witness who was out of state at trial told the investigating officer that the robber was a young man. The officer explained that the robber was wearing sunglasses and a hat and that this could make him look younger. The jury found these witnesses to be credible and concluded that defendant was guilty of armed robbery. Viewing these facts in a light most favorable to the prosecution, there was sufficient evidence to convict defendant of this crime.

Count One: Lucky Liquor Store

| (iOn October 25, 2006, at approximately 10:00 p.m. a Lucky Liquor store located on 1647 Kings Highway was robbed by two black males armed with a revolver and a shotgun. Bazemore Hill and Debbie Hausen were the employees working at the time. Both of the robbers wore sunglasses and both had caps covering their heads. One was described as short with darker skin while the other was taller with lighter skin. The cash register was locked so they unplugged it and took it with them. The manager, who was in the back, saw the robbery taking place from the security monitor and called 911. An LSU Medical Center police officer, Lisa Booth, was driving by as the robbers were leaving the liquor store. She made a U-turn and pulled in behind the suspects’ Buick automobile, activated her cruiser’s lights, and chased the Buick for two blocks. The three occupants stopped the car, jumped out and ran. One of the suspects, Elijah Madkins, was later found hiding in an abandoned garage. The vehicle left behind by the robbers was registered to defendant, Ron Karry Laster.

Officer Booth observed three men fleeing the vehicle with weapons and a cash register. She positively identified Isaiah Madkins that evening and later identified defendant in court. As stated, Madkins and his girlfriend, Kia Newsom, had ridden with defendant and Andrea Riggin from Topeka, Kansas, to Shreveport. Later a resident who lived a couple of blocks from where the car was abandoned found a shotgun and a handgun in his yard. According to Andrea Riggin’s testimony, these guns were identical to those brought by defendant from Kansas. Significantly, the robbery failed and defendant fled on foot. He had no money to buy cocaine Rand no transportation in which to flee the state. Riggin testified that when defendant returned that night to the Days Inn at 8:00 a.m. he was driving a stolen Cadillac and told her about the robberies. Defendant said that the third man in the liquor store robbery was Calvin. Considering the evidence in a light most favorable to the prosecution, there was sufficient evidence to convict defendant of the armed robbery of Lucky Liquor.

Count Two: Home invasion armed, robbery

Shortly after the liquor store robbery and within a couple of blocks of where defendant’s car was abandoned, a home invasion armed robbery was called in to 911 at 1:38 a.m. According to the victim, Misty Garrison, she awoke to find a tall, thin, light-skinned black male in her room. She stated that the robber put a wet leather glove to her mouth and a knife to her throat. In a struggle, the victim pulled off the perpetrator’s mask. The robber tied Garrison to the bed, rummaged through her room for valuables, and then left in her car.

Later that same day, on October 26, 2003, defendant was pulled over in Ard-more, Oklahoma, for failure to wear a seat-belt. After questioning the occupants, the trooper discovered that none of them owned the vehicle. The officer found a purse in the vehicle and called Garrison’s number which was listed on a checkbook in the purse. After discovering that the car was stolen, the officer arrested the occupants, who were defendant, Riggin and Newsom. (As stated, Madkins had been apprehended in the chase after the liquor store robbery).

RRiggin testified that on the night of October 25, defendant, Madkins, and Calvin left together in defendant’s Buick. Riggin testified that defendant returned alone wet and dirty around 3:00 a.m. driving the stolen Cadillac and told her about the liquor store and home invasion armed robberies.

Misty Garrison testified at trial that the perpetrator used a knife to rob her of money, jewelry, and her car. The knife came from her kitchen after the intruder had broken in from the back door. Garrison stated that the robber had wet gloves. Defendant was arrested in Oklahoma while driving Garrison’s stolen vehicle. After the arrest, one of Garrison’s credit cards was found in defendant’s front pocket. Further, Riggin was wearing one of the victim’s stolen rings. Moist gloves were discovered in defendant’s possession in Oklahoma. Garrison positively identified defendant multiple times. When considering these facts in the light most favorable to the prosecution, the elements of this crime were established and there was sufficient evidence to convict defendant.

Quashing the Subpoena Duces Tecum

Defendant next asserts that the trial court erred in quashing a subpoena duces tecum issued to Shreveport Detective Patrick McConnell to obtain records of his investigation of Michael House.

To be admissible, such evidence must be trustworthy, reliable and of probative value. State v. Gremillion, 542 So.2d 1074 (La.1989). In the instant case, defendant did not testify at trial. At the pretrial hearing, defendant claimed that he rented Misty Garrison’s Cadillac from Michael j^House in a “rent-a-rock” situation. According to defendant, Det. McConnell had investigated House and could testify that House looked similar to defendant and that House had previously been convicted of armed robbery. Defendant also noted that House had been killed in an attempted armed robbery. Defendant incorrectly contends that the only way his “rent-a-rock” claim could be brought before the jury was if Det. McConnell had been subpoenaed. In fact, the only way this assertion or claim could have been presented was for defendant to testify. No one else, including Det. McConnell or Andrea Rig-gin, had any knowledge of the alleged “rent-a-rock” transaction. See State v. McBride, 00-0422 (La.App. 3d Cir.11/15/00), 773 So.2d 849, writ denied, 01-0294 (La.02/08/02), 807 So.2d 858. Defendant could have gotten on the stand and testified that he rented the car from House in exchange for cocaine and then presented evidence of House’s appearance and history. Even so, this defense is spurious considering the time frame of events and the circumstances. Andrea Riggin did testify and this testimony, coupled with the time limitations involved, foreclosed any such claim by defendant concerning House. We also note that defendant’s claim fails to explain why defendant abandoned his car and how defendant, who had no funds, got the cocaine to exchange for the car with House.

Det. McConnell’s testimony would at best demonstrate a physical similarity and criminal history. Not only is this is not relevant, it creates the danger of confusion of the issues, misleading of the jury or an undue waste of time that substantially outweighs any probative value. Exclusion of such |inevidence does not violate defendant’s right to present a defense. State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, unit denied, 07-805 (La.03/28/08), 978 So.2d 297. Nothing was introduced to show that Det. McConnell would testify that House was the robber or at least that defendant was not. As in State v. McBride, supra, defendant could have testified about his alleged “rent-a-rock” transaction with House.

The right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Mosby, 595 So.2d 1135 (La.1992); State v. Lathan, supra; State v. Pugh, 02-171 (La.App. 5th Cir.10/16/02), 831 So.2d 341.

Identification

The defense argues that Misty Garrison’s initial identification of defendant was unduly suggestive and therefore, her subsequent identifications should have been suppressed. The defense claims that the initial identification was suggestive because it was during the Oklahoma trial for the theft of Garrison’s vehicle and defendant was clearly the person on trial for that offense. Also, defendant claims that the identification was problematic because the two are of different races.

A defendant attempting to suppress an identification must first show that the identification procedure was suggestive, and that the totality of the circumstances presented a substantial likelihood of misidentification by the eyewitness. State v. Martin, 595 So.2d 592 (La.1992); State v. Clark, 44,594 (La.App.2d Cir.08/19/09), 16 So.3d 1256. Even if the identification procedure was suggestive, the identification will be admissible if, under the totality of the circumstances, it is found to be reliable. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.06/26/98), 719 So.2d 1048. The opportunity to cross-examine a witness about his or her in-court identification of the defendant as the perpetrator of a crime will ordinarily cure any suggestiveness of such an identification. State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 02-1570 (La.05/30/03), 845 So.2d 1067.

The U.S. Supreme Court has enunciated five factors for evaluating the reliability of an identification. These are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the victim’s prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

According to defendant, the 911 call was placed at 1:38 a.m. and therefore, if the victim awoke at 1:30 she would have only had eight minutes to observe the intruder. The victim stated that she looked at the clock and it read 1:30. However, she also stated that she kept watching the clock and the ordeal lasted around 45 minutes. Garrison stated that the robber was within one foot of her face at one point during the robbery. There was a struggle, she pulled off his mask and he then tied and bound | ^Garrison. Assuming that the ordeal only lasted six minutes, it would still be enough time for her to observe the features of defendant.

Misty Garrison specifically stated that she memorized defendant’s face so that she could identify him at a later time. According to Garrison, she was “freaked out” at first but later calmed down. Garrison gave a clothing description of defendant and stated that he was a tall, thin, light-skinned, black male. Defendant is a tall, thin, light-skinned, black male.

Garrison stated that she was 100 percent positive that defendant was the man who robbed her. Her level of certainty as to his identity has been consistent throughout these proceedings. The crime occurred on October 26, 2003. The identification occurred in court in Oklahoma on January 22, 2004. Less than three months elapsed between the crime and the identification. According to State v. Jordan, supra, a lapse of 14 months was not considered to be an extraordinarily long lapse of time.

The totality of the circumstances supports the reliability of the identification.

Motion to Quash

According to defendant’s fourth assignment of error, the trial court erred in denying defendant’s motion to quash the bill of information regarding the alleged home invasion robbery of Misty Garrison. Defendant argued at the original hearing on the motion to quash that he was entitled to receive any photographs and CSI reports concerning the crime scene at Ms. Garrison’s home. The state responded that none of these items exist. Defendant now argues that the failure of the state to conduct this sort of an | ^investigation prejudiced his defense and the trial court should have granted the motion to quash on this basis.

First there was no denial of investigative access. The evidence of defendant’s guilt is overwhelming. What evidence the state did have was given to defendant. There has been no prejudice to defendant because the police did not have photographs of the victim’s residence.

La. C. Cr. P. arts. 532 and 534 govern the motion to quash.

Nothing in the abovementioned articles supports the granting of a motion to quash based on defendant’s rationale. Further, there is no argument in this assignment of error specifying how the trial court’s decision on this issue is incorrect.

Excessive Sentence

Defendant contends that his concurrent sentences of 45, 65, and 55 years are excessive.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir. 104/02/97),14 691 So.2d 864. It is well settled that the trial judge is given wide discretion in the imposition of sentences and the sentence imposed by her should not be set aside in the absence of abuse of that discretion. State v. Bell, 438 So.2d 636 (La.App. 2d Cir.1983); State v. Jones, 381 So.2d 416 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979.)

The maximum penalty for armed robbery is 99 years imprisonment. Defendant was sentenced to serve 45 years on Count One, 65 years on Count Two, and 55 years on Count Three. The three sentences are to be served concurrently at hard labor without the benefit of probation, parole, or suspension of sentence. The trial judge stated that she considered the provisions of La. C. Cr. P. art. 894.1. In particular she noted that defendant has a history of committing robberies and at least one burglary which were all crimes of violence. Further, the court noted that the instant offenses included use of weapons and were of a violent nature.

These sentences were supported by the facts of the case and do not violate La. Const, art. 1 § 20.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

WILLIAMS and MOORE, JJ., would not consider rehearing.

      . The bill of information alleges that the residential robbery occurred on October 25 when it actually happened just past midnight. Initially the bill charged only the two counts committed on October 25. The third count at the motel was added by an amendment.

      . While the bill of information spells defendant’s middle name with an "a" (Kharry), in his filing with the court defendant spells his name with an "e” (Kerry).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Shirley SPERANDEO and Johnathan Crayton v. Jose OSABAS and Progressive Insurance Company.
    No. 09-CA-627.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.
    Kevin M. Steel, Attorney at Law, Gret-na, LA, for Appellant, Shirley Sperandeo and Johnathan Crayton.
    Adrienne Haines, Attorney at Law, Me-tairie, LA, for Appellee, Jose Osabas and Progressive Security Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

|2In early October of 2007, Shirley Sper-andeo was operating her automobile, with Johnathan Crayton as a passenger, on Gretna Boulevard near its intersection with Stumpf Boulevard. Jose Osabas was traveling in his vehicle on Stumpf Boulevard near the same intersection when the two vehicles collided. On October 6, 2008, Sperandeo and Crayton (“Plaintiffs”) filed a Petition for Damages in the Second Parish Court for the Parish of Jefferson. In their Petition, Plaintiffs allege that the accident occurred on October 4, 2007.

On February 17, 2009, Osabas and his insurer, Progressive Insurance Company, (“Defendants”) filed a peremptory exception of prescription asserting that the accident in question had actually occurred on October 3, 2007. According to defendants, the Plaintiffs’ claims prescribed on Friday, October 3, 2008 so their Petition for Damages filed on October 6, 2008 was untimely. In opposition to the exception of prescription, Plaintiffs did state that the accident occurred on October 3, 2007. Plaintiffs argued, however, that the prescriptive period began on October 4, 2007 and ended on October 4, 2008, which was a legal holiday, and, thus, the prescription period ended on the next business day, October 6, 2008.

[3The trial court heard argument on defendant’s exception of prescription on April 14, 2009. After hearing argument from counsel, the trial court sustained the exception of prescription and dismissed Plaintiffs’ lawsuit.

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission for trial. La. C.C.P. arts. 927 and 928(B). The exception of prescription must be specifically pleaded and may not be supplied by the Court. La. C.C.P. art. 927(B); Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, when the exceptor shows that the prescriptive period has passed, the burden shifts to the plaintiff to prove that prescription has been suspended, interrupted, or renounced. Dixon v. Houck, 466 So.2d 57, 59 (La.App. 2 Cir.1985). See also, Wimberly v. Gatch, 93-2361 (La.4/11/94); 635 So.2d 206, 211.

On the trial of a peremptory exception of prescription pleaded prior to trial on the merits, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Waguespack v. Judge, 04-137 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090. However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Cichirillo v. Avondale Indus., Inc., 04-2894 (La.11/29/05), 917 So.2d L424; Wagues-pack, supra. In the present ease, no evidence was introduced at the trial.

Delictual actions are subject to a libera-tive prescription of one year, which commences to run from the date injury or damage is sustained. La. C.C. art. 3492. “If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription.” La. C.C. Art. 3456. In order to determine the date that prescription accrues, one must know the date that prescription commences.

Here, although the Plaintiffs aver in their Petition that the accident occurred in October 4, 2007, they also admit in them response to defendant’s exception of Prescription that the accident occurred on October 3, 2007. Thus, the defendant showed that the prescription had accrued before the Plaintiffs filed their Petition and Plaintiffs did not meet their burden to prove that prescription had been interrupted, suspended, or renounced. Accordingly, we cannot say that the trial judge erred in sustaining Defendants’ exception of prescription.

However, we point out the mandatory language of La. C.C.P. art. 934:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Further, La. C.C.P. art. 934 has been liberally applied in cases involving prescription. Omega Center for Pain Management, L.L.C. v. Omega Institute of Health, Inc., 07-558 (La.App. 5 Cir. 12/27/07), 975 So.2d 48, 51-52; Whitnell v. Menville, 540 So.2d 304, 309 (La.1989). Here, the trial judge did not find that the grounds of the objection could not be removed by amendment of the petition.

Accordingly, pursuant to La. C.C.P. art. 934, we find that the trial judge erred in dismissing Plaintiffs’ petition without ordering them to amend their petition within a reasonable period of time. Accordingly, we vacate the dismissal and remand this matter in order for the trial judge to allow amendment, within a reasonable time, before entering a dismissal with prejudice.

AFFIRMED IN PART; VACATED IN PAR T; REMANDED.

      . Although, both parties allegedly attached the Police Report of the accident to pleadings, that document is not in the appellate record. We ordered the Clerk of Court for the Second Parish Court to supplement the appellate record with any exhibits or attachments not already lodged with this Court but the Clerk was unable to locate any exhibits for this matter.

      . An admission by a party in a pleading constitutes a judicial confession and is proof against the party making the admission. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156, 159. A judicial confession has the effect of waiving evidence as to the subject of its admission. Id.


text:
    STATE of Louisiana v. Alvin C. HYMAN.
    No. 09-KA-409.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Michael G. Morales, Churita Han-sell, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Appellant, Alvin C. Hyman.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

|2On September 26, 2006, the Jefferson Parish Grand Jury indicted defendant, Alvin C. Hyman, on one count of second degree murder, in violation of La. R.S. 14:30.1. Defendant pled not guilty at arraignment.

Defendant was tried by a twelve-person jury on January 13, 14, and 15, 2009. The jury returned a verdict of guilty of the lesser-included charge of manslaughter, a violation of La. R.S. 14:31. On March 6, 2009, the trial court sentenced defendant to 40 years at hard labor. Defendant filed a motion to reconsider sentence, which the court denied. Thereafter, defendant filed a timely motion for appeal, which the trial court granted on March 6, 2009.

Facts

In the early morning hours of August 6, 2006, Leslie Daigrepont was at Alvin C. “Chris” Hyman’s apartment when Mr. Hy-man accused her of stealing narcotics and money from him. According to Mrs. Daig-repont, Mr. Hyman grabbed her by the throat, threw her to the floor, and attempted to “strip search” | ¡¡her. Mrs. Daigre-pont escaped the apartment when someone unexpectedly knocked at Mr. Hyman’s front door.

When she returned to her house, Mrs. Daigrepont described the confrontation to her husband, Joshua Daigrepont, and, her brother, Dirk Guidry. Although Mrs. Daigrepont denied Mr. Hyman’s accusations while he was questioning her, she admitted to her husband and brother that she had, in fact, stolen narcotics and money from Mr. Hyman earlier that morning.

Later that morning, Mrs. Daigrepont was speaking on the telephone with Leslie Boyer, Mr. Hyman’s girlfriend, when Mr. Hyman commandeered the telephone to tell Mrs. Daigrepont that she and her family were “dead.” Mrs. Daigrepont’s brother, Dirk Guidry, then informed Mr. Hy-man that he was coming to Hyman’s apartment to “beat his ass.” Mr. Hyman accepted the challenge, agreeing to meet Mr. Guidry there. Mr. Guidry and Mr. Daigrepont then drove to Mr. Hyman’s residence. Mrs. Daigrepont did not go with her husband and brother.

Joshua Daigrepont confirmed that his wife told him about her confrontation with Hyman. He verified that his wife was talking with Ms. Boyer on the telephone when Hyman threatened his wife and her family. Mr. Daigrepont confirmed that his brother-in-law, Mr. Guidry, retorted that he would be waiting at Hyman’s house for him.

Mr. Daigrepont then drove with Mr. Guidry to Hyman’s house at about 9:00 a.m. They knocked on the door of Mr. Hyman’s second floor apartment and shouted for him to open the door. When they received no response, Mr. Daigrepont and Mr. Guidry went downstairs to Shara-mie Brewer’s apartment, where they waited for about 20 to 30 minutes. As they were leaving Ms. Brewer’s apartment, Hy-man arrived at the apartment complex.

|4When Mr. Hyman exited the passenger side of the car, he was holding a gun. Mr. Daigrepont saw the weapon and ducked between parked cars, but Mr. Guidry began yelling at Mr. Hyman.

Mr. Daigrepont testified that Mr. Hy-man then raised the gun and pulled the trigger twice, but the weapon failed to discharge. Next, Mr. Hyman turned toward the car and asked an occupant whether there were any bullets in the gun. Hyman then turned back toward Guidry and fired a shot. Immediately, Hyman got back into the car.

Mr. Daigrepont testified that, after Mr. Hyman was in the vehicle, he fired a shot through the car’s window at Mr. Daigre-pont, who was crouched between parked cars. Mr. Daigrepont was unharmed.

Sharamie Brewer witnessed the shooting from the window of her apartment at 126 Athania Parkway. She heard Mr. Gui-dry and Mr. Hyman arguing in the parking lot of her apartment complex but she could not make out what they were saying. She saw Mr. Hyman get out of a car, point a gun, and shoot Mr. Guidry.

Debbie Dawson testified that, on August 6, 2006, she lived at 124 Athania Parkway. She knew Mr. Hyman, who lived in the next building at 126 Athania Parkway. At 5:30 a.m. that morning, Ms. Dawson heard loud voices emanating from Mr. Hyman’s building but she could not hear what the man and the woman were saying.

Later that morning, Ms. Dawson saw two men, who she did not know, waiting in front of Mr. Hyman’s building. She overheard the men talking angrily about a confrontation between Mr. Hyman and the sister of one of the men. Ms. Dawson assumed the fight to which the men were referring was the argument she had heard earlier that morning.

| ¡jShortly thereafter, Ms. Dawson, from her second floor bedroom window, saw Mr. Hyman arrive at his apartment complex. He was riding in the passenger seat of a car, other than the one that he usually drove. Mr. Hyman exited the vehicle with a gun in his hand and started shouting at the two men. He challenged the men to “come over here” and to “handle this like a man.”

Mr. Hyman then pointed the gun at Mr. Guidry. Ms. Dawson heard the gun click two times then fire. Mr. Guidry fell to the ground immediately. Ms. Dawson called 9-1-1 to report the shooting then attempted to render assistance. Ms. Dawson testified that the altercation happened in less than two minutes.

Devin Doran, who was incarcerated on an unrelated charge at the time of trial, testified that she had known Alvin Hyman for a couple of months before the shooting. On the morning of August 6, 2006, Ms. Doran and her male friend, Tracy, ran into Mr. Hyman as he left a bar. He asked them for a ride home so they drove him to his apartment building. When they arrived, two men were standing in front of the building. Neither of those men had a gun. To her and Tracy’s shock, Mr. Hy-man got out of the car and shot the “little dude.” Mr. Hyman re-entered the car, and told Tracy to drive him to another place, which Tracy did. Ms. Doran testified that she had no further contact with Mr. Hyman.

Leslie Daigrepont, Joshua Daigrepont, Leslie Boyer, Sharamie Brewer, Debbie Dawson, and Devin Doran viewed a photographic lineup provided by the Jefferson Parish Sheriffs Office at separate times. After viewing the lineup, each witness identified defendant, Alvin “Chris” Hyman, as the shooter.

Once Mr. Hyman was identified as a suspect, Deputy Verloin Degruy of the Jefferson Parish Sheriffs Office worked with defendant’s cellular telephone company to locate his phone by using a global positioning system (GPS). That | (¡information allowed Detective Gorumba to narrow his search for Mr. Hyman to the residence of Mary Spaulding on Elizabeth Avenue.

When the police arrived, Ms. Spaulding gave written consent for police to search her house. The officers located defendant in the rear bathroom and arrested him immediately.

At trial, Mary Spaulding testified that defendant called her that day asking her to pick him up from somewhere in New Orleans. When she picked Hyman up, he was wearing a hat and a wig. Defendant admitted that he shot Mr. Guidry but told Ms. Spaulding that Guidry had pulled a gun on him and was going to shoot him. During the search of Spaulding’s house, Detective Gorumba recovered a brown wig.

Several police officers involved in the homicide investigation testified for the State at trial. Sergeant Billy Lewis identified a tape recording of the 9-1-1 call associated with the homicide. The recording was played for the jury. Sergeant Lewis verified that the call was initiated at 8:42 a.m., and the first police unit arrived at the scene at 8:47 a.m.

Detective Timothy Anclade was a patrolman with the Jefferson Parish Sheriffs Office on August 6, 2006, who was dispatched to 126 Athania in Metairie at 8:44 a.m. on that date. When he arrived at the scene five minutes later, he found a white man lying on his back in the parking lot. Detective Anclade secured the scene. Next, he interviewed a witness who said a vehicle pulled up, someone exited the vehicle, shot the victim, and left in the same vehicle. The witness gave Anclade the shooter’s name, which Anclade passed on to the homicide division.

On August 6, 2006, Captain Steve Buras was assigned to the Persons Division, which investigates homicides, robberies, and rapes. At the crime scene, Captain Buras recovered a spent .9 mm cartridge casing in the parking lot, 45 to 50 |7feet south of where the body was discovered, and a cellular telephone and a baseball cap.

Sergeant Donald Meunier, a homicide investigator, walked the perimeter of the murder scene and found no other ballistic evidence. Detective Meunier prepared a search warrant for defendant’s apartment at 126 Athania Parkway, Apartment C. However, no firearms were recovered.

Dr. Fraser Mackenzie, an expert in pathology and forensic pathology, performed an autopsy on Dirk Guidry’s body. Dr. Mackenzie determined that Dirk Guidry’s death was a homicide caused by a gunshot wound to the chest that perforated the left lung and heart and lodged in the victim’s back. Dr. Mackenzie recovered the bullet and turned it over to a Jefferson Parish Crime Scene technician.

Captain Tim Scanlan, the assistant director of the Jefferson Parish Sheriffs Office Crime Lab, is an expert in tool mark examination, crime scene reconstruction, trace analysis, forensic science, and crime scene processing. He examined the lead projectile recovered from the victim and the spent bullet casing. He determined that the projectile had a lead core that was consistent with .38 caliber class ammunition and the spent casing was consistent with the same class of ammunition.

Furthermore, Captain Scanlan testified that a gunshot residue test was performed on the victim’s hands in order to determine whether he had handled or discharged a gun. The test produced a negative result. Toxicology tests of Dirk Guidry’s blood revealed marijuana, cocaine, morphine, hy-drocodone, and 6-0-monoacetylmorphine.

At trial, defendant called Leslie Boyer to testify. Ms. Boyer testified that she had known Dirk Guidry since high school. On the morning of the shooting, |sshe was involved in telephone conversations with Alvin Hyman, Leslie Daigrepont, and Dirk Guidry. Ms. Boyer testified that Mr. Hy-man did not threaten Mrs. Daigrepont or her family during those conversations. Further, Ms. Boyer initiated a three-way call between Mr. Hyman and Mr. Guidry. According to Ms. Boyer, during that conversation, Mr. Guidry informed them that he was waiting at Hyman’s house with a gun. Ms. Boyer also reported that, according to Mr. Hyman, while they were arguing in front of his house, he saw Mr. Guidry lift his shirt and thought Mr. Gui-dry was pulling a gun from his waistband.

Edward “Eddie” Guy, a licensed investigator, also testified on defendant’s behalf. He stated that he went to the scene to measure pertinent distances. Mr. Guy noted that there is a dumpster next to the driveway of the apartment complexes that would have obscured the view of the murder scene from Sharamie Brewer’s first floor apartment.

Based on the testimony and evidence, the twelve-person jury found defendant guilty of manslaughter. Defendant appeals his conviction and sentence and assigns seven assignments of error for our review.

In defendant’s fourth and fifth assignments of error, he challenges the sufficiency of evidence: the verdict of manslaughter is contrary to the law and the evidence and the district court erred in denying defendant’s motion for post-verdict judgment of acquittal. When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is ^insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. Id.

The constitutional standard for testing the sufficiency of evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. The question of sufficiency of the evidence is properly raised in a motion for post-verdict judgment of acquittal. State v. Pearson, 07-332, p. 12 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 653.

In this case, defendant was convicted of manslaughter under La. R.S. 14:31. La. R.S. 14:31(A)(1) provides, in pertinent part, that manslaughter is:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

On appeal, defendant does not deny that he shot Dirk Guidry, but insists that he acted in self-defense. Accordingly, defendant does not argue that the State failed to prove the elements of manslaughter but he maintains that the prosecution failed to prove, beyond a reasonable doubt, that the homicide was not in self-defense.

When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982); State v. Theriot, 07-71, p. 13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715. According to La. R.S. 14:20(1), a homicide is | ^justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

The determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and- 2) whether deadly force was necessary to prevent the danger. Theriot, 07-71 at 12, 963 So.2d at 1020. “ ‘[T]he lack of a weapon is not dispositive of the issue of self-defense, because it is the reasonableness of the apprehension and not the actuality of danger that determines the question of self-defense under La. R.S. 14:20.’ ” Theriot, supra, quoting State v. Patorno, 01-2585, p. 11 (La.App. 1 Cir. 6/21/02), 822 So.2d 141,148.

The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, supra. The trier-of-fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to assess the credibility determinations of the trier of fact or to reweigh the evidence. Id.

In the instant case, defendant offered Leslie Boyer’s testimony to show that he did not threaten Mr. Guidry or the Daigre-ponts over the telephone but that the victim actually threatened him. On cross-examination, however, Ms. Boyer admitted that she told police she heard defendant tell Mrs. Daigrepont, “ ‘I’m going to get you, b* * *h. I’m going to get you, you wait and see. You stole my coke.’ ”

Conversely, Mrs. Daigrepont stated that, while they were on the telephone, she did not hear Mr. Guidry say anything to defendant about a weapon. Joshua I nDaigrepont testified that he did not hear Mr. Guidry say anything to defendant over the telephone about a gun.

Mr. Daigrepont further testified that Mr. Guidry did not bring a gun to Mr. Hyman’s apartment. Daigrepont testified that Mr. Guidry did not have a gun at all on the day of the incident. Furthermore, Mr. Daigrepont did not see a gun anywhere around Mr. Guidry after he was shot. He reiterated that he and Mr. Gui-dry planned only to fist-fight with defendant that day.

As defendant points out, both Mr. and Mrs. Daigrepont have criminal records and asserts that the couple’s testimony was unreliable, and not believable. As this Court has noted many times, however, questions of credibility are within the purview of the jury and it is not our function to assess the credibility determinations of the trier of fact or to reweigh the evidence. State v. Singleton, supra.

Furthermore, even if the jury did not rely on the Daigreponts’ testimony, there were at least three other witnesses whose testimony disproved defendant’s self-defense claim. Devin Doran, who drove defendant to the scene of the shooting, testified that no words were exchanged between defendant and the two men that were waiting for him at his apartment complex; defendant simply got out of her ear and shot one of the man. Ms. Doran did not see either the victim or the other man holding a gun, and defendant did not tell her that either of the men had a gun.

Sharamie Brewer, who witnessed the shooting from her apartment window, testified that she did not see Mr. Guidry or Mr. Daigrepont with a gun when they were waiting for defendant near her apartment. She also testified that she did not see Dirk Guidry with a firearm at the time of the shooting.

112Pebbie Dawson also witnessed the shooting from her nearby apartment. Pri- or to defendant’s arrival at the scene, Ms. Dawson heard Mr. Guidry and Mr. Daigre-pont talking. They appeared to be angry about the confrontation between defendant and Mrs. Daigrepont. Nevertheless, when defendant arrived in the parking lot, he was the one who acted in a confrontational manner. According to Ms. Dawson, defendant shouted at Guidry and Daigrepont to “come over here” and “handle this like a man.” Ms. Dawson testified that defendant pointed his gun at Mr. Guidry and pulled the trigger twice before it actually fired, which incidentally specifically corroborates Mr. Daigrepont’s testimony.

Ms. Dawson stated that she did not see Mr. Guidry or Mr. Daigrepont -with a gun that morning. Moreover, when Ms. Dawson attempted to give Mr. Guidry medical assistance after the shooting, she did not see a gun near his body.

Detective Anclade, the first police officer to arrive at the scene, testified he did not see a weapon on or near the victim’s body. Finally, none of the witnesses testified that Mr. Guidry attempted to attack defendant.

Based the foregoing testimony, we find that the State met its burden of proving, beyond a reasonable doubt, that defendant did not act in self-defense. Accordingly, we find no merit in these assignments of error.

Upon finding that the conviction was based upon sufficient evidence to prove that defendant was guilty, beyond a reasonable doubt, of manslaughter, we return to defendant’s first and second assignments of error: first, the “prosecution did not comply with its discovery requirements as it applies to the exculpatory/impeachment information prior to trial,” and second, “the district court did err in the denial of the motion for new trial.”

In these two assignments, defendant argues that his due process rights were violated by the State’s failure to provide to him before his trial exculpatory 113evidence regarding Joshua Daigrepont’s prior guilty pleas and the trial court erred in denying his motion for new trial based on this issue. Specifically, defendant complains the State did not inform him that: (1) Mr. Daigrepont had a felony charge nolle prossed in December of 2008; and (2) Mr. Daigrepont pled guilty to possession of heroin and felony theft in December, 2008 with the State’s assurance that he would not be multiple billed for either conviction.

On appeal, defendant further complains that the State allowed Joshua Daigrepont to give perjured testimony regarding his criminal history without correction. The State responds that it made its entire file available to the defense prior to trial, and that it made the defense aware of Mr. Daigrepont’s criminal record. The State further noted that documentation of Mr. Daigrepont’s criminal record was available to the defense with or without the State’s involvement. Finally, the State presented testimony from the prosecutor in charge of the cases that led to Daigrepont’s 2008 guilty pleas, who confirmed that he did not make a deal with Daigrepont in exchange for his testimony in this matter.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant’s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. The Brady rule includes evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may be determinative of guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La.1991).

114Regardless of whether there is a request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Bagley ⅛ touchstone of materiality is a “reasonable probability” of a different result.

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether, in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is shown when the State’s evidentia-ry suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

Here, in his pre-trial motions, defendant requested exculpatory evidence from the State. In response, the State provided the defense with information regarding Mr. Daigrepont’s (and other witnesses) criminal history. Specifically, the State reported, “Mr. Daigrepont was not offered any plea bargain in exchange for his testimony in this case.”

At trial, Joshua Daigrepont testified that he was currently serving a four-year sentence for (1) possession of heroin, (2) felony theft, (3) resisting arrest, and (4) possession of drug paraphernalia. Mr. Daigrepont testified that the instant resisting arrest conviction resulted from the original 2006 simple escape charge. He also admitted that he had a 1995 conviction for possession with intent to distribute marijuana.

| lsOn cross-examination, Mr. Daigrepont further admitted to convictions for (1) disturbing the peace in 1995 and (2) a marijuana charge involving Dirk Guidry in 1995. When questioned about the felony theft charge to which he pled guilty a month prior to the instant trial, Mr. Daig-repont testified that he had received a two-year sentence for that offense, and that he was not multiple billed.

At the conclusion of Mr. Daigrepont’s testimony, defense counsel moved for a mistrial. Counsel argued that he had specifically asked the State about any deals made with witnesses for their testimony, and the State misinformed him because, in December 2008, Mr. Daigrepont had not been multiple-billed on his theft or heroin charges and a felony escape charge against him had been nolle prossed.

The prosecutor responded that he provided defense counsel with Mr. Daigre-pont’s local, state, and FBI “rap sheets” and Mr. Daigrepont’s recent guilty pleas to possession of heroin, possession of drug paraphernalia, and theft of goods. The prosecutor reiterated that Mr. Daigrepont had not been offered any plea bargains in exchange for his testimony at the murder trial.

Furthermore, Jeff Hand, a former Jefferson Parish Assistant District Attorney, testified thereafter that he was the assistant district attorney involved in Mr. Daig-repont’s most recent guilty pleas. He stated that he chose not to multiple-bill Mr. Daigrepont because the previous felonies were almost ten years old and the district attorney’s office must use its discretion in order to move cases. Mr. Hand stated that Mr. Daigrepont’s guilty pleas were not associated with the murder case. Had that been the case, he would not have allowed Mr. Daigrepont to plead guilty and be sentenced before he had testified in this case. Furthermore, he understood that because Mr. Daigrepont was related to the victim in the murder case, he would have a compelling reason to testify without the offer of a deal from [ 1Bthe State. The trial judge denied defendant’s motion for mistrial and subsequent motion for new trial on this basis.

Here, we find that the State adequately complied with the requirements of Brady. First, the record reveals that the State turned over the criminal histories requested by the defense, including Mr. Daigrepont’s latest guilty pleas. Second, as defense counsel demonstrated at trial, further information on the State’s witnesses was readily available from the Jefferson Parish Clerk of Court. Third, the former prosecutor testified that he did not make a deal with Mr. Daigrepont in exchange for testimony in this case; he chose not to multiple bill Mr. Daigrepont for reasons unrelated to this case. Finally, defense counsel, in an attempt to discredit Mr. Daigrepont, thoroughly cross-examined him about his prior convictions and any deals that he could have made with the State. Upon review, we find that the trial judge did not err in denying defendant’s motion for mistrial or motion for new trial.

On appeal, defendant further argues that his conviction should be reversed under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), because the prosecutor allowed Mr. Daigrepont, a key State witness, to give perjured testimony at trial without correction. The State argues that defendant failed to preserve the perjury issue for appeal, since he failed to raise it at trial. See, State v. Singleton, 05-634, pp. 9-10 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 809, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532; La. C.Cr.P. art. 841.

We agree. Furthermore, even if we were to address the merits of defendant’s argument, we find no error. The Louisiana Supreme Court described the provisions of Napue as follows:

| 17To prove a Napue claim, the accused must show that the prosecutor acted in collusion with the witness to facilitate false testimony. When a prosecutor allows a state witness to give false testimony without correction, a conviction gained as a result of that perjured testimony must be reversed, if the witness’s testimony reasonably could have affected the jury’s verdict, even though the testimony may be relevant only to the credibility of the witness. Id. at 269, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Furthermore, fundamental fairness to an accused, i.e., due process, is offended “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

State v. Broadway, 96-2659, p. 17 (La.10/19/99), 753 So.2d 801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

Here, we cannot say that Mr. Daigre-pont gave false testimony regarding his criminal record. He admitted to numerous prior convictions when questioned by the prosecutor and defense counsel. Furthermore, the record is devoid of any mention of collusion between the State and Mr. Daigrepont regarding any issue, including his criminal record. If this issue had been preserved, it would have no merit.

In his next assignment of error, defendant argues that the trial judge erred in denying a mistrial because, during trial, the State improperly introduced “other crimes” evidence without proper notice under State v. Prieur, 277 So.2d 126, 130 (La.1973). Here, defendant refers to Leslie Daigrepont’s testimony that | ^defendant used physical violence against her on the morning of the shooting. The State contends the evidence complained of was properly admitted as res gestae.

During Mrs. Daigrepont’s trial testimony, defense counsel objected and moved for a mistrial, arguing that the State had not given proper notice of its intention to introduce “other crimes” evidence of defendant’s physical attack on Mrs. Daigre-pont. The trial judge overruled defense counsel’s objection and denied his motion for mistrial.

Generally, evidence of “other crimes,” or bad acts committed by a criminal defendant, is inadmissible at trial due to the risk of grave prejudice to the defendant. La. C.E. art. 404 B(l); State v. Prieur, 277 So.2d at 128; State v. Williams, 01-1007, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030. But evidence of “other crimes” may be introduced if it is independently relevant or when it relates to conduct — formerly referred to as res gestae — that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404 B(l). Res gestae events constituting “other crimes” are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its ease without reference to them. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Taylor, 01-1638 at 10-11, 838 So.2d at 741. The res gestae doctrine is designed to allow the story of the crime to be told in its entirety, by proving its immediate context of happenings in time and 113place. Taylor, 01-1638 at 11, 838 So.2d at 742. Furthermore, the State is not required to provide the defendant with notice before introducing res gestae evidence. See La. C.Cr.P. art. 720; State v. Ridgley, 08-675, p. 13 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 697.

Here, Mrs. Daigrepont’s testimony that defendant physically attacked her at his apartment was integral to the chain of events that led to Dirk Guidry’s death. Mrs. Daigrepont stole cocaine and money from defendant, which triggered his physical attack on her. Mrs. Daigrepont’s description of defendant’s attack caused her husband and brother to pursue defendant, which led to defendant’s fatal shooting of her brother, Dirk Guidry. The testimony at issue completed the story of the crime. This testimony was res gestae, defendant was not entitled to prior notice, and the trial court did not err in denying his mistrial motion. Accordingly, we find that this assignment of error without merit.

In his final assignments of error, defendant argues that his sentence in this matter is excessive and the district court erred in denying his motion to reconsider sentence. Specifically, defendant argues that the trial court abused its discretion in sentencing him to 40 years at hard labor, the maximum term under the manslaughter statute, La. R.S. 14:31. Defendant points out that his criminal history was minimal, whereas the victim had numerous criminal convictions. The State responds that the sentence does not constitute an abuse of discretion.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, citing State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered | ^excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id., citing State v. Bonanno, 384 So.2d 355, 357 (La.1980).

A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Pearson, 07-332, p. 16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

On appellate review of a sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, 608 (per curiam) (citations omitted). To be considered excessive, a penalty must be so grossly disproportionate to the severity of the crime that it shocks the sense of justice, or makes no reasonable contribution to acceptable penal goals, and therefore, constitutes nothing more than the needless imposition of pain and suffering. State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citation omitted).

Here, the trial court judge gave extensive reasons for imposing the maximum sentence. First, he noted that the victim did not have a gun at the time of the shooting. Second, he felt that, when defendant’s gun failed to fire the first two times, defendant had an opportunity to withdraw from the conflict, but he consciously chose to fire the third and fatal shot. Third, the shooting was deliberate, and was not self-defense. Fourth, the judge further noted that defendant created a risk to more than one person by firing on the victim. He stated he had 121 considered the sentencing guidelines under La.C.Cr.P. art. 894.1, and felt that “any lesser sentence that I give you would deprecate the seriousness of this offense.”

Defense counsel filed a motion to reconsider sentence, challenging the “excessive and harsh nature of the sentence imposed.” Counsel also made an oral objection to “the imposition of the maximum sentence as being unwarranted.” The judge denied defendant’s motion.

We find no error in the trial court’s broad discretion in imposing this sentence of 40 years. Defendant was initially charged with second degree murder, which carries a mandatory life sentence. La. R.S. 14:30.1. Further, the record reveals sufficient evidence to support a conviction for second degree murder.

Further, as the sentencing judge noted, defendant had an opportunity to withdraw from the confrontation when his gun failed to fire, but he did not. More importantly, the evidence reflects that defendant was not acting in self-defense. Additionally, defendant has at least one prior felony conviction. Finally, the victim’s criminal record is irrelevant to the trial court’s determination of sentence. Based. on the foregoing, these two assignments of error lack merit.

Finally, as is our routine practice, the record was reviewed for errors patent, pursuant to La.C.Cr.P. art. 920. Our review reveals no errors patent.

Based on the foregoing, we find no merit in defendant’s assignments of error. Accordingly, we affirm his manslaughter conviction and 40-year sentence.

AFFIRMED.

      . With respect to Mr. Hyman, if habitual offender proceedings have been instituted by the State, those proceedings are not part of this appeal.

      . Ms. Boyer stated that she did not consider that statement to be a threat.

      . The Louisiana Supreme Court has found " ‘[tjhere is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.’ ” State v. Hobley, 99-3343, p. 25, n. 10 (La.12/8/99), 752 So.2d 771, 786, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000), quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998). See also, State v. Kenner, 05-1052 (La.12/16/05), 917 So.2d 1081 (per curiam).

      . On March 28, 2008, the State noticed its intent to use "other crimes” evidence. The State listed three instances of “other crimes:” 1) defendant's involvement in the distribution of illegal narcotics with and to Joshua and Leslie Daigrepont; 2) defendant’s acquaintance with Joshua Daigrepont while both men were incarcerated in the Jefferson Parish Correctional Center in March, 2006; and 3) defendant’s assertion, made at his apartment on August 6, 2006, that Leslie Daigrepont had stolen illegal narcotics and money from him. The defense filed an opposition to the State's notice.
      On May 16, 2008, the trial court ruled that the State would be allowed to introduce all of the notices "other crimes” evidence. Defendant challenged that ruling in this Court. This Court granted the writ in part, and denied it in part, finding that the trial court erred in granting the State permission to in-traduce evidence of defendant's use and distribution of illegal narcotics with and to the Daigreponts and evidence of defendant’s acquaintance with Mr. Daigrepont in the Jefferson Parish Correctional Center. The majority further ruled that the trial court properly granted the State’s request to use evidence of defendant’s accusation against Leslie Daigrepont. State v. Hyman, 08-590 (La.App. 5 Cir. 7/31/08) (unpublished writ).

      . At the time of the commission of the offense, the sentencing range for manslaughter was zero to 40 years at hard labor. La. R.S. 14:31.


author: JUDE G. GRAVOIS, Judge.

text:
    Beatrice A. MULLER v. A-1 MOBILE SHREDDING, L.L.C., Stanley J. Pausina, John Doe, Jim Doe and ABC Insurance Company.
    No. 09-CA-869.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      J. McCaleb Bilbro, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Scott W. Smith, Stephen M. Chouest, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ¡¿Defendant, Colony Insurance Company (Colony), commercial general liability (CGL) insurer for defendant, A-l Mobile Shredding, L.L.C. (A-l), appeals the trial court’s grant of plaintiffs motion for partial summary judgment, which found that Colony’s CGL policy provided coverage for plaintiff Beatrice A. Muller’s injuries. We also consider here Colony’s writ No. 09-C-818, which involves the denial of Colony’s cross motion for summary judgment, which sought a ruling that its policy’s automobile exclusion applied, precluding coverage for Mrs. Muller’s injuries.

For the following reasons, we affirm the trial court’s judgment on appeal. Likewise, we deny the relief sought in Colony’s writ application.

UFACTS AND PROCEDURAL HISTORY

Mrs. Muller contracted with A-l to shred the papers of her late husband. A-l’s business was conducted in the back of a converted box truck, which traveled to its customers’ locations and then parked there while conducting its shredding activities. The shredding equipment was located inside of the box on the back of the truck and was bolted to the body of the truck. All shredding was conducted inside of the box. The shredding equipment was powered by a generator, not the truck’s engine. The operation of the shredding equipment required that the box be ventilated, which was accomplished through a large exhaust fan that also required that a side door on the box remain open during shredding operations.

A-l came to Mrs. Muller’s home on April 8, 2008. The truck parked in front of her house with the engine turned off, the usual practice. A-l’s two employees went onto Mrs. Muller’s property and retrieved boxes of papers to be shredded and moved them to the truck. The day was windy. The side door on the box that was required to be open for ventilation purposes during shredding operations was secured open by a strap connecting the door latch and the side mirror mount on the truck. Mrs. Muller, who was 72 years old, was injured as she approached the truck with an additional box of papers to be shredded. Possibly because of the wind, the stop holding the side door open became loose or disconnected, allowing the door to swing free and into Mrs. Muller, knocking her to the ground next to the truck. She fractured her hip, which required surgery and physical therapy. This suit followed.

Plaintiff filed a motion for partial summary judgment, seeking a declaration that coverage for the incident in question was provided by the Colony CGL policy. Colony filed a cross motion for summary judgment, seeking a declaration that coverage was excluded under its policy by virtue of the automobile exclusion | contained therein. The motions were heard together on September 14, 2009. The trial court ruled from the bench in favor of Mrs. Muller, finding coverage under the Colony CGL policy under the “unique facts” of the case. The trial court, in a separate judgment, denied Colony’s cross motion for summary judgment. Colony’s timely appeal and writ application followed.

APPLICABLE LAW — SUMMARY JUDGMENT AND INTERPRETATION OF INSURANCE POLICIES

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E).

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. See Smith v. Reliance Ins. Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010.

15An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See LSA-C.C. art. 2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See LSA-C.C. art. 2046.

The purpose of liability insurance is to afford the insured protection for damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer, and if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds, 634 So.2d at 1183. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id. The rule of strict construction does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir.2/18/00), 753 So.2d 357, 363.

ANALYSIS

On appeal, Colony argues that the trial court did not correctly apply Louisiana law regarding the construction of insurance policies; and specifically, that Mrs. Muller’s motion for summary judgment was premised entirely upon Endorsement U159-0702 to the Colony policy. Colony argues that the trial court’s | (jUiisinterpretation of this endorsement had the effect of rendering inoperative the automobile exclusion included in A-l’s GCL policy.

Section I(l)(b) of Colony’s General Liability Coverage policy provides:

b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II — Who Is An Insured and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.

Endorsement U159-0702 of Colony’s GLC policy, at issue here, provides:

LIMITATION OF COVERAGE TO BUSINESS DESCRIPTION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
BUSINESS DESCRIPTION: PAPER SHREDDING AND RECYCLING
A. SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. Insuring Agreement, b. is amended and the following added:
(4) The “bodily injury” or “property damage” is caused by or results from the business described in the Schedule.
B. SECTION I — COVERAGES, COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY, 1. Insuring Agreement, b. is amended and the following added:
This insurance applies to “personal and advertising injury” caused by an offense in the course of the business described in the Schedule.

ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.

In light of the above-quoted policy provisions, Endorsement U159-0702 adds a fourth condition to the three coverage prerequisites set out in Section I(l)(b) of the policy’s Commercial General Liability Coverage Form, that the “bodily injury” or | ./‘property damage” be caused by or result from the “PAPER SHREDDING AND RECYCLING” business described in Endorsement U159-0702’s Schedule.

Colony argues that the trial court’s misinterpretation of this endorsement somehow reads out or renders inoperative the following “auto” exclusion in its policy:

2. Exclusions
This insurance does not apply to:
g. Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage” included the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.
“Auto” is defined in Colony’s GLC policy as follows:
SECTION V — DEFINITIONS
* * *
2. “Auto” means:
a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or
b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged.

When the trial court ruled from the bench, it stated:

I find that due to the unique nature of this business and limited to the facts of this case, I am going to find that there is coverage under the business policy— business liability policy, and deny defendant’s motion for summary judgment and grant plaintiffs motion for summary-judgment. ...

|Jt is clear from the transcript as a whole that the trial court focused not on the endorsement itself but rather on the facts surrounding this accident to determine whether the automobile exclusion applied.

From the record before us, it is clear that all four coverage prerequisites were met, including the additional one found in the Endorsement, that the bodily injury was caused by or results from the business described in the Endorsement’s Schedule, which is paper shredding and recycling. Colony argued, however, that the automobile exclusion applied because the shredding, in this case and always, takes place in their box truck, which meets the definition of automobile under the policy, thereby triggering the “auto” exclusion provisions of its policy.

The trial court asked Colony’s counsel what activity, if any, would be covered under its policy given that the shredding always takes place in A-l’s shredding truck. Counsel answered that the policy would provide coverage, for instance, if A-l’s employees went onto a customer’s property to obtain the documents to be shredded and caused any harm while on or inside the customer’s property. When the trial court opined that there would be no coverage for the actual business that A-l does, shredding in its shredding truck, Colony agreed that there would not be coverage under its policy for any activity inside the truck, since it involved use of an “auto,” which is why A-l purchased a commercial auto policy from another insurer.

In support of its interpretation of the endorsement adding the fourth condition to coverage, Colony cites Maradiago v. Castle, 2009 WL 3150160 (E.D.La.9/28/09) (not reported in F.Supp.). In that case, the plaintiffs sought coverage launder a CGL policy that Colony issued to the defendant that contained a very similar endorsement to the policy in this case that was also added to the policy after the adoption of the auto exclusion endorsement. The district court held that the endorsement did not “expand” the policy’s coverage so as to render the automobile exclusion endorsement ineffective or inapplicable. In that case, a tractor trailer operated by defendant insured and driven by its employee collided with a vehicle in which plaintiffs’ decedent was a passenger.

This court agrees that endorsement U159-0702 in the instant policy does not render the auto exclusion ineffective or inapplicable. Maradiago is distinguishable from the instant case on the facts, however, in that the plaintiffs’ death in Maradiago arose from a vehicular collision as Colony’s insured’s vehicle was being driven and collided with the vehicle in which the plaintiff was riding.

Ryder v. Darby, 09-122 (La.App. 3 Cir. 6/3/09), 11 So.3d 745, which Colony also cites for support, is also distinguishable. In that case, Colony issued a CGL policy to the “Smoker Friendly” store, which sold alcohol and tobacco products. Plaintiff was a passenger in a vehicle driven by another defendant who was underage and had purchased alcohol at Smoker Friendly. The vehicle crashed and plaintiff sustained serious injuries. Colony filed a motion for summary judgment denying coverage based on the “liquor liability exclusion” contained in the policy. Plaintiff opposed the motion arguing that an amending endorsement expanded the coverage afforded under the policy. Colony argued that the endorsement merely gave a fourth requirement for coverage and that all exclusions were still effective. This is the same argument Colony makes in this case.

In Ryder, the business was described in the endorsement as “tobacco products store.” The liquor liability exclusion excluded bodily injury caused by the insured’s furnishing of alcoholic beverages to a person “under the legal Imdrinking age ...” Plaintiffs argued that since the sale of alcoholic beverages fell within Smoker Friendly’s business description, the Colony policy should provide coverage because plaintiff’s injuries arose out of the store’s sale of alcohol. The trial court disagreed and found no coverage, which the court of appeal affirmed. Under plaintiffs’ theory, the court of appeal held, the exclusions listed in the Colony policy after the coverage section would be completely ignored.

The exclusion’s applicability in this case turns on whether the plaintiffs injuries arose “out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading’.” In the instant case, A-l’s shredding truck was not being used to transport, load or unload persons or cargo for transport. It was parked and the engine was turned off. The shredding machinery was powered by a generator, not the truck’s engine. The employees were in the back of the truck, not the cab, engaged in the shredding of Mrs. Muller’s documents, when the door strap became disengaged causing the door to strike Mrs. Muller. The door was strapped open for the ventilation necessary for the shredding machinery to operate properly, and was never open while the truck was being driven.

We agree with the trial court that under the unique facts of this case and the type of business in which A-l engaged, Mrs. Muller’s injuries did not arise from the use of an auto, or loading or unloading. Her injuries clearly arose from A-l’s business activity described in the policy’s Endorsement Schedule, which was paper shredding and recycling.

This reasoning in this case is similar to this Court’s in Terminix Services, Inc. v. State Farm, 01-720 (La.App. 5 Cir. 11/27/01), 803 So.2d 198, which interpreted an automobile liability policy and a CGL policy issued to the same |n insured to determine whether coverage was afforded for the plaintiffs injuries under the automobile policy. Terminix filed suit against Reichert Iron Works for fire damages to its building. Terminix had engaged Reic-hert to perform renovation and repairs to its building. The fire was caused by sparks from a cutting torch used by Reic-hert’s employees. Terminix argued that the fire arose out of the use of a vehicle insured by State Farm, since the torch was powered by fuel tanks located on the bed of the insured truck.

The court affirmed the trial court’s denial of coverage under the auto policy, holding that “In order for the conduct to arise out of the use of the vehicle, the automobile must be essential to the theory of liability. The specific duty breached by the insured must flow from use of the automobile. If the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of the automobile,” citing W.S. McKenzie and H.A. Johnson, Louisiana Civil Law Treatise, Volume 15, Insurance Law and Practice, § 65 (1986).

The court in Terminix further noted that “Louisiana courts have held that when automobiles covered under automobile liability policies are not being used for locomotion or transport purposes, but rather for purposes usually associated with the type of risks normally covered by a CGL policy, the CGL policy will provide coverage.” (cite omitted)

We accordingly find no merit to Colony’s argument that the trial court applied the endorsement to render the automobile exclusion ineffective. We agree with the trial court that under the unique facts of this case, Colony’s CGL policy provides coverage to Mrs. Muller because her injuries clearly arose out of A-l’s | ^shredding business and not from the use of an automobile as described in the policy’s automobile exclusion or as interpreted by other courts of this state.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s grant of plaintiffs motion for partial summary judgment. Likewise, for these same reasons, we deny Colony’s writ application no. 09-C-818.

AFFIRMED.

      . The two judgments were rendered on the same day following one hearing for both motions. Colony filed a writ application, no. 09-C-818, seeking review of the trial court’s denial of its cross motion for summary judgment. After Colony's appeal from the judgment granting of Muller’s motion for partial summary judgment was lodged, by order of this court the writ application was referred to the panel assigned to hear the appeal. The two matters were not consolidated, however.

      . According to the briefs and record, A-l purchased a business automobile liability policy from Gemini Insurance Company. Mrs. Muller sued Gemini in addition to Colony, and apparently settled with Gemini. Colony filed a motion to strike in this court, objecting to Muller’s discussion of this settlement in her brief. Whether or not plaintiff settled with Gemini and with what terms is entirely irrelevant to this court’s determination whether coverage is afforded under the Colony policy.

      . The Terminix court did find that the two policies at issue, the CGL policy and the auto policy, were structured to be mutually exclusive. We make no such determination here, not having the Gemini policy before us, as the Terminix court had both the CGL and the auto policies.