author: COX, J.

text:
    STATE of Louisiana, Appellee v. Trevor EDDEN, Appellant
    No. 52,288-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT, By: Annette F. Roach, Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney, TOMMY J. JOHNSON, WILLIAM C. GASKINS, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, COX, and BLEICH (Pro Tempore), JJ.
   COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. Trevor Edden appeals the sentence imposed after a jury convicted him of domestic abuse battery, fourth or subsequent offense. Edden was sentenced to 37 years' imprisonment at hard labor without the benefit of probation or suspension of sentence. Pro se and counseled motions for reconsideration of sentence were denied by the trial court. For the following reasons, Edden's conviction and sentence are affirmed.

FACTS

Edden and his live-in girlfriend, Jakia Norris, had been a couple for six years, lived together for three years, and had two children together. Around midday on October 19, 2014, Edden and Ms. Norris left their home by car to get something to eat. Ms. Norris was the passenger in the car and Edden drove. As the two left a gas station, they got into an argument for an undisclosed reason. During the verbal altercation, Edden struck Ms. Norris in the jaw causing her lip to bleed. Edden pulled the car over and the couple continued to fight. Ms. Norris fought back in self-defense, striking Edden in his face. Thereafter, Edden bit Ms. Norris on her left arm, right pinkie finger, and right leg.

Ms. Norris was able to get out of the car and run down the street. About five minutes later, Ms. Norris got a ride to her home and called police. The police photographed Ms. Norris to document the injuries she sustained. An emergency medical team was dispatched to her home, but no treatment was provided to her. At the time of the trial, Ms. Norris had a scar on her arm from the bite mark. She stated that she still lived with and had feelings for Edden.

On October 9, 2010, and March 14, 2012, Edden was placed on probation for domestic abuse battery convictions against a different complainant. In 2014, Edden pled guilty to two separate charges of domestic abuse battery against Ms. Norris. For these guilty pleas, he received 48 hours in jail and was placed on one-year probation for each conviction.

Edden was arrested on the instant offense and ultimately charged with one count of domestic abuse battery, fourth or subsequent offense, in violation of La. R.S. 14:35.3(F). He was tried by a jury and unanimously convicted as charged.

On May 16, 2017, the State filed a second-felony habitual bill of information against Edden, based upon a prior felony conviction in Caddo Parish, Docket No. 284,739, unauthorized entry of an inhabited dwelling on March 22, 2010. For that conviction, he received a suspended sentence of one year at hard labor and was placed on one year of supervised probation. Prior to hearing the habitual offender proceedings on September 18, 2017, the trial court denied Edden's motions for new trial and post-verdict judgment of acquittal. After hearing the testimony of one of the State's witness, the trial court adjudicated Edden as a second-felony offender.

No presentence investigation report was ordered. On October 19, 2017, Edden submitted a statement on sentencing. He stated that he was 28 years old and admitted his prior felony and misdemeanor convictions, in addition to his four prior convictions for domestic abuse. Edden admitted that he had also pled guilty to misdemeanor marijuana possession in August of 2012. Edden requested that the trial court consider an attached letter written by Ms. Norris and asked the trial court to "exercise as much mercy as possible" in sentencing him.

In her letter, Ms. Norris indicated that "we have been blessed" that Edden's most recent troubles and period of incarceration had "truly allowed" Edden to understand "what it takes to be a productive member of society." Ms. Norris did not attempt to argue that Edden's offense qualified as a misdemeanor, but asked the court to consider his "lack of any prior criminal activity," as well as the "pronounced improvements we have seen" in him. Ms. Norris insisted that Edden's "domestic abuse was left behind while incarcerated in the Caddo Parish Jail," and that the system had helped him through anger management. Ms. Norris requested that the trial court sentence Edden to credit for time served or a minimal period of additional incarceration.

On December 19, 2017, the State filed a memorandum on sentencing pointing out Edden's criminal history and that the present offense involved Edden's serious battering of Ms. Norris. The State also revealed a pending case, transferred to district court from city court just before trial of the instant case, occurring in November of 2016, in which Edden hit and scratched Ms. Norris during an argument. The State noted that as a second-felony offender, Edden faced sentencing exposure of 15-60 years' imprisonment without the benefit of probation or suspension of sentence, with the first three years also without the benefit of parole under La. R.S. 14:35.3(F). As aggravating circumstances, the State argued that Edden's conduct manifested deliberate cruelty to Ms. Norris and that Edden used his position or status to facilitate the commission of the offense. As an aggravating factor, the State argued the fact that Edden's criminal conduct was likely to recur due to this being a fifth domestic abuse conviction, with a sixth offense pending. The State contended that despite Ms. Norris's sentiments, Edden had been given the benefit of multiple minimal misdemeanor sentences, which had not deterred Edden. The State asked for a lengthy period of incarceration.

On December 21, 2017, Edden appeared for sentencing. Both Edden's counsel and the State referred the trial court to the sentencing statements discussed above. The trial court stated its consideration of Ms. Norris's request for leniency in sentencing, as well as both the defense and State's statements on sentencing. The trial court also confirmed her consideration of the La. C. Cr. P. art. 894.1 factors, including that any lesser sentence would deprecate the seriousness of the offense. The trial court sentenced Edden to 37 years' imprisonment at hard labor, without the benefit of probation or suspension of sentence, with credit for time served. As a special condition of the sentence, the trial court ordered that Edden not own or possess any firearm going forward, enroll and complete a domestic abuse prevention/intervention program, and have no contact of any kind with the victim. The trial court ordered that provisions in the protective order also be incorporated into the sentence.

On January 5, 2018, Edden filed two separate pro se motions to reconsider his sentence, raising numerous arguments unrelated to sentencing and ultimately asserting that he was sentenced "over your guidelines," because he was subject to a sentencing range of 10-30 years' imprisonment without the benefit of parole, probation, or suspension of sentence. On January 10, 2018, Edden's counsel filed a motion to reconsider sentence raising a constitutional excessiveness claim without argument. The trial court denied the motions to reconsider the sentence, finding the imposed sentence to be appropriate, constitutional, and reasonable in light of the circumstances surrounding the event, as well as Edden's criminal history and the fact that the unadjudicated domestic abuse battery charge was dismissed by the State. This appeal followed.

DISCUSSION

Edden argues that his sentence is constitutionally excessive because the trial court did not adequately comply with La. C. Cr. P. art. 894.1 and the lengthy sentence is not justified under the facts of this case. Edden contends that he is not one of the worst offenders and has only one prior, relatively minor felony for which he received a suspended sentence. He admits his past criminal record, but notes that he has not been incarcerated beyond a few days for any of the prior offenses. Edden argues that several mitigating factors were not considered by the trial court, including the fact that the present offense was minor, no one else was placed in danger, his age, and the fact that he has minor children who depend upon him for support.

Edden acknowledges that a period of incarceration is warranted in this case, but argues that the three-year term without the benefit of probation, parole, or suspension of sentence, as required by La. R.S. 14:35.3, is sufficient to provide both punishment and rehabilitative services. Edden claims that he has changed during his last period of incarceration, which has placed a hardship on his children. He argues that because almost all of his predicate offenses were used to enhance his sentence, he has effectively been "double-enhanced." Edden argues that the imposed sentence is nothing more than the purposeless infliction of needless pain and suffering and that a lesser sentence is warranted under the facts of this case and this offender.

Edden further argues that the applicable sentencing range should have been 10-60 years' imprisonment instead of 15-60 years' imprisonment. Edden points out that the imposed sentence is lenient in two respects. Under La. R.S. 14:35.3(F)(1), the trial court failed to impose the first three years of the sentence without the benefit of probation, parole, or suspension of sentence and to impose the mandatory $5,000 fine.

The State argues that the sentencing record reflects the trial court's consideration of the La. C. Cr. P. art. 894.1 sentencing factors, and that the imposed sentence does not shock the sense of justice. The State points out that the crime of fourth or subsequent domestic abuse battery carries a sentence of 10-30 years' imprisonment, with the first three years to be served without the benefit of probation, parole, or suspension of sentence. As a second-felony offender, Edden faced increased sentencing exposure of 15-60 years of imprisonment. The State argues that no matter which version of La. R.S. 15:529.1 is applied to Edden, the 37-year sentence is in the median range of habitual offender sentencing. The State also acknowledges that Edden's sentence is illegally lenient as the trial court neglected to impose the mandatory fine and the first three years without the benefit of probation, parole, or suspension of sentence.

The trial court has wide discretion in the imposition of sentences within the statutory limits, and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 1/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case. Id. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Thomas , 51,761 (La. App. 2 Cir. 1/10/18), 245 So.3d 1174.

Appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the trial court's compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1, and the second being a review of the sentence for constitutional excessiveness. However, because Edden's motions to reconsider his sentence raised only a claim that the sentence imposed was constitutionally excessive, he is relegated to review of his sentence on that ground alone. La. C. Cr. P. art. 881.1 ; State v. Williams , 51,667 (La. App. 2 Cir. 9/27/17), 245 So.3d 131, writ not cons. , 18-0017 (La. 3/9/18), 237 So.3d 1190. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Turner , 51,888 (La. App. 2 Cir. 2/28/18), 246 So.3d 695.

To constitute an excessive sentence, a reviewing court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock the sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and, therefore, is nothing more than the needless imposition of pain and suffering. State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262 ; State v. Bass , 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242, writ not cons ., 18-0296 (La. 4/16/18), 239 So.3d 830.

At the time of the offense, La. R.S. 14:35.3(F) carried a hard labor sentence of 10-30 years' imprisonment. Thus, for his second-felony habitual offender adjudication, Edden faced an increased sentencing exposure. La. R.S. 15:529.1(A)(1). Edden was adjudicated a second-felony offender on September 18, 2017, and received his enhanced sentence on December 21, 2017. In 2017, the legislature amended the Habitual Offender Law with Acts 2017, Nos. 257 and 282, and reduced the sentencing range for a second-felony offender like Edden. The Act further provided that, "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017."

In State v. Williams , 17-1753 (La. 6/15/18), 245 So.3d 1042, the defendant was adjudicated a third-felony offender. The armed robbery occurred in 2013, and under the law in effect on that date, he received a third-felony enhanced sentence of 66.33 years' imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant's appeal was pending when the legislature amended the law in 2017 and reduced the minimum sentencing range for a third-felony offender from "not less than two-thirds of the longest possible sentence" to "not less than one-half." The defendant sought to be resentenced under the 2017 amendments. The Louisiana Supreme Court granted the defendant's application in part to vacate his enhanced sentence for armed robbery and remanded for resentencing under the new law finding that "his conviction will become final after November 1, 2017."

In this matter, Edden argues that the amended version of La. R.S. 15:529.1(A)(1) is applicable to him. The 2017 amendments reduced the minimum sentencing range for a second-felony offender from "not less than one-half of the longest term" to "not less than one-third the longest term." However, in the 2018 legislative session, La. R.S. 15:529.1(K)(1) was added to La. R.S. 15:529.1, effective August 1, 2018, to now provide:

K. (1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed.

Williams was decided in June of 2018, before the enactment of La. R.S. 15:529.1(K), a curative provision. Additionally, Edden received a mid-range sentence, unlike the defendant in Williams . Because the 2018 amendments are procedural and this decision is being decided after August 1, 2018, we find that Edden was sentenced under the proper habitual offender law in effect in 2014, the date of the underlying offense.

On review, Edden's mid-range sentence of 37 years' imprisonment is not constitutionally excessive. The sentence imposed falls within the range of sentences set forth by the legislature for Edden's second-felony habitual offender conviction. The facts of record show that Edden has consistently exhibited a pattern of and propensity toward domestic abuse against the women in his life, which continued after he committed the present offense. The record adequately demonstrates an undue risk that during another period of suspended sentence or probation, Edden will commit another domestic abuse crime. Additionally, Edden's criminal record spanned over a seven-year period and included offenses other than these domestic abuse convictions. These facts are sufficient to show that Edden has failed to benefit from prior leniency in sentencing and significant probationary treatment.

Edden concedes that a period of incarceration is warranted under the facts of this case. The victim, Ms. Norris, has been left with lasting physical scarring. Edden's propensity toward abuse has not diminished and he fails to substantiate any new found claims of change. Ultimately, any mitigating factors cited by Edden were outweighed by the seriousness of the crime and aggravating factors evidenced on this record.

When considering the facts of this matter, including Edden's disturbing pattern of domestic abuse against this victim, the nature of the crime, Edden's continued failure to benefit from prior leniency in sentencing, and risk of continuing this behavior, the chosen mid-range sentence, while substantial, is not shocking to the sense of justice and is adequately particularized and tailored to this defendant. No abuse of the trial court's wide discretion has been shown. Edden has failed to take advantage of the numerous chances he has been given to change, and instead, continued in his pattern of domestic violence. Under the circumstances, the 37-year term is not constitutionally excessive.

Error Patent

Upon error patent review, it is noted that the trial court failed to impose the mandatory fine of $5,000, as provided in La. R.S. 14:35.3(F)(1). Accordingly, Edden's sentence, which does not include the fine, is illegally lenient. La. C. Cr. P. art. 882(A) provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. However, this Court is not required to take such action. State v. Baker , 51,933 (La. App. 2 Cir. 4/11/18), 247 So.3d 990 ; State v. Wesley , 49,438 (La. App. 2 Cir. 2/26/15), 161 So.3d 1039, writ not cons. , 15-1096 (La. 3/14/16), 188 So.3d 1065. Since this Court is not required to take action and Edden is not prejudiced in any way by the failure to impose the mandatory fine, we decline to impose the fine.

Additionally, both the State and Edden have correctly observed that the trial court also failed to impose the first three years of the sentence without the benefit of parole in accordance with La. R.S. 14:35.3(F)(1). Nevertheless, failure to include these required statutory restrictions is self-correcting on review, eliminating the need to remand for a ministerial correction of the illegally lenient sentence. La. R.S. 15:301.1 ; State v. Bass , supra .

CONCLUSION

For the foregoing reasons, Trevor Edden's conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BLEICH, J. (Pro Tempore )

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Cortez Usando COLEMAN, Appellant
    No. 52,074-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    ROBERT S. TEW, District Attorney, HOLLY A. CHAMBERS-JONES, Assistant District Attorney, Counsel for Appellee
    Before GARRETT, McCALLUM, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

Following a jury trial in the Fourth Judicial District, Parish of Ouachita, State of Louisiana, the defendant, Cortez Coleman, was found guilty as charged of the second degree murder of Steve Brown. Coleman was sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, and he now appeals his conviction. For the following reasons, Coleman's conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

On April 18, 2013, deputies with the Ouachita Parish Sheriff's Office found Steve Brown lying on the ground outside an abandoned house at 202 Central Street in West Monroe, Louisiana. Brown had a gunshot wound to the head and was dead. Ultimately, officers learned from two eyewitnesses, Ashley Williams and Viktavia Franklin, that Brown had been shot by Cortez Coleman, who then fled into the nearby woods. Coleman was later arrested and indicted by a grand jury on the charge of second degree murder, in violation of La. R.S. 14:30.1.

Prieur Hearing

On January 14, 2015, the state filed a notice of intent to use other crimes evidence under La. C.E. art. 404(B)(1) and a motion for a Prieur hearing, in accordance with State v. Prieur , 277 So.2d 126 (1973). Specifically, the State sought to introduce evidence that on June 9, 2011, Coleman and a friend, DeKendrick Patterson, conspired to lure Henry Lyons to a remote location in order to rob him of his 1996 Chevrolet Caprice and rims, and then shot Lyons multiple times before stealing his vehicle. The State asserted that the purpose of using said other crimes and/or wrong acts was to show Coleman's pattern of conduct, identity, absence of innocent intent, motive, plan and preparation, and to negate any claim of mistake or accident. These "other crime" facts were similar to the facts in the current case, in which the State alleged that Coleman conspired with his girlfriend to lure the instant victim, Brown, to a remote location in order to rob him of his 1996 Chevrolet Impala and rims, and shot and killed Brown.

On July 8, 2015, the parties appeared before the trial court for arguments on the State's Prieur motion. Officer John Martin, who was a major crime investigator with the East Carroll Parish Sheriff's Department on June 9, 2011, testified that he responded at 1:45 a.m. to the East Carroll Parish Hospital to interview a shooting victim named Henry Lyons. Officer Martin testified in detail about the series of events Lyons described to him, leading up to Coleman shooting him in the leg and hand and stealing Lyons' vehicle. Coleman and his accomplice, Patterson, drove off in Lyons' vehicle, leaving Lyons in the ditch. According to Ofc. Martin, Lyons believed that Coleman wanted to get the rims on Lyons' vehicle, which was later found abandoned on I-20 West in Richland Parish. The rims were still on the vehicle, but the vehicle was completely out of gas.

Officer Martin testified that arrest warrants were issued for both Coleman and Patterson. Patterson surrendered two days after the incident. Officer Martin interviewed Patterson, who confirmed Lyons' story. Officer Martin testified that Patterson told him that he and Coleman planned to convince Lyons to give them a ride and then rob him of the rims on his vehicle.

Officer Martin testified that Coleman was apprehended three months later and charged with attempted murder and carjacking. Coleman declined to give a statement to officers and posted a bond. When Coleman failed to appear at the next scheduled court date, a bench warrant was issued for his arrest. For unknown reasons, the warrant was not entered into the National Crime Information Center database.

The state asserted that the evidence of the 2011 offenses and Lyons' prior identification of Coleman as the shooter and carjacker were admissible to establish Coleman's intent to rob Brown of his vehicle and rims and to negate Coleman's claim that he accidentally shot Brown. On October 21, 2015, the trial court granted the motion and ruled that testimonial evidence of the 2011 offenses and the victim's identification of Coleman as the perpetrator were admissible at trial.

Trial of the Matter

The evidentiary portion of the trial in this matter began on July 21, 2016, wherein numerous witnesses testified, as will be discussed herein. In connection with the others crimes evidence against Coleman, which had been the subject of the previous Prieur hearing and which the trial court had determined could be introduced at trial, Lyons was called to testify. However, once on the witness stand, Lyons asserted that he had been drinking on June 9, 2011, and was under the influence of alcohol when interviewed by Ofc. Martin. At trial, he claimed no recollection of Coleman shooting him, how he ended up in the hospital with two gunshot wounds, or how his vehicle was stolen. Lyons admitted that he knew Coleman but denied having told Ofc. Martin anything regarding Coleman being the person who shot him and stole his vehicle.

Defense counsel objected when the State attempted to impeach Lyons' testimony with trial testimony by Ofc. Martin, arguing that when a non-party witness's credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt. The trial court ruled that Ofc. Martin's testimony regarding Lyons' prior statement was inadmissible-effectively denying the use of the State's other crimes evidence against Coleman.

The State filed an emergency request for supervisory review, and this court reversed the trial court, citing State v. Johnson , 99-3462 (La. 11/03/00), 774 So.2d 79, which held that an exception to this general rule exists for cases in which the witness's prior inconsistent statement also constitutes a prior statement of identification for purposes of La. C.E. art. 801(D)(1)(c). Accordingly, this court ordered the trial court to allow Ofc. Martin's testimony in order to impeach Lyons' trial testimony denying that he made the statements identifying Coleman as the 2011 perpetrator and as substantive evidence that Coleman committed the prior similar offense. State v. Coleman , 51,178-KW (La. App. 2 Cir. 07/25/16).

Despite this court's ruling, defense counsel again challenged Ofc. Martin's testimony about Lyons' prior inconsistent statement by filing a motion for mistrial pursuant to La. C. Cr. P. art. 770(2) on July 26, 2016. While acknowledging that Ofc. Martin's testimony was admissible as evidence that Lyons previously identified Coleman as the 2011 perpetrator, Coleman's motion for mistrial argued that Officer Martin's testimony about Lyons' statement was inadmissible for the purposes of establishing that Coleman shot and robbed Lyons for the purpose of taking Lyons' rims. The trial court denied the motion for mistrial based on the previous ruling on the emergency writ.

After the State rested, the trial court conducted a colloquy with Coleman regarding his rights, and Coleman exercised his constitutional right to remain silent. The defense rested and each side gave closing arguments. A unanimous jury found Coleman guilty as charged of second degree murder. A presentence investigation report was ordered for sentencing. No post-trial motions were filed.

At a sentencing hearing, the trial court reviewed the facts of the case and aggravating and mitigating factors. Coleman declined to make any statement at sentencing. The trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Coleman was advised of the time period within which to seek post-conviction relief.

Coleman filed a motion to reconsider sentence; however, the trial court denied the motion. Coleman sought an "out-of-time" appeal, which was granted, and this appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Coleman argues that the State failed to present sufficient evidence to support the verdict of second degree murder. Coleman takes issue with the witness testimony considered by the jury. He specifically argues that Williams' testimony was unreliable because she was also charged with a crime in this offense and asserts her testimony was self-serving. Coleman maintains that Williams' testimony is less credible because she initially lied to the officers and told them divergent versions of events on the night in question. Coleman also argues that Franklin's testimony was less credible because she did not describe Steve Brown's shooter. We disagree.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Bass , 51,411 (La. App. 2 Cir. 06/21/17), 223 So.3d 1242, writ not cons ., 18-0296 (La. 04/16/18), 239 So.3d 830. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So.3d 297, 12-0717 (La. 09/12/12), 98 So. 3d 305.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Norman , 51,258 (La. App. 2 Cir. 05/17/17), 222 So.3d 96, writ denied , 17-1152 (La. 04/20/18), 240 So.3d 926

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985) ; State v. Baker , 49,175 (La. App. 2 Cir. 08/27/14), 148 So.3d 217. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 04/09/14), 136 So.3d 979, writ denied , 14-0990 (La. 01/16/15), 157 So.3d 1127. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255, writ denied , 16-2187 (La. 09/06/17), 224 So.3d 985.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951, writ denied , 17-1101 (La. 06/01/18), 243 So.3d 1064. 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. Brown , 51,352 (La. App. 2 Cir. 05/02/17), 223 So.3d 88, writ denied , 17-1154 (La. 05/11/18), 241 So.3d 1013.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228, writ denied , 2017-0164 (La. 09/22/17), 227 So.3d 827. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Hust , 51,015 (La. App. 2 Cir. 01/11/17), 214 So.3d 174, writ denied , 17-0352 (La. 11/17/17), 229 So.3d 928. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa , 05-0213 (La. 01/19/06), 921 So.2d 94 ; State v. Hust, supra .

Louisiana R.S. 14:30.1 defines second degree murder, in pertinent part, as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated or first degree rape, forcible or second degree rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Allen , 41,548 (La. App. 2 Cir. 11/15/06), 942 So.2d 1244, writ denied , 07-0530 (La. 12/07/07), 969 So. 2d 619. All that is necessary is that the defendant form the specific intent to kill or inflict great bodily harm for an instant when committing the crime. State v. Williamson , 27,871 (La. App. 2 Cir. 04/03/96), 671 So.2d 1208, writ denied , 96-1143 (La. 10/04/96), 679 So.2d 1380.

Specific intent may be inferred from the circumstances of the offense and the defendant's act of deliberating pointing a gun and firing it at a person. State v. Patterson , 50,305 (La. App. 2 Cir. 11/18/15), 184 So.3d 739, writ denied , 15-2333 (La. 03/24/16), 190 So.3d 1190.

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B).

Trial Testimony: Investigation

Officers Miranda Rogers, Michael McLain, and James Humphrey (the "responding officers"), all of the Ouachita Parish Sheriff's Office ("OPSO"), each testified that on April 18, 2013, they responded to a 911 call that a man had been shot on Central Street in West Monroe. In the driveway of an abandoned house of a corner lot at 202 Central Street, the responding officers described finding a dark-colored Chevrolet Malibu, and parked behind it, a red 1996 Chevrolet Impala, with the driver's side door ajar. Officers McLain and Humphrey testified that the area was still very dark and dimly lit. Officer Humphrey testified that there was not a lot of foot traffic in the area, most of the existing homes were vacant, and there were several empty lots where trailers had been removed. The responding officers testified that, on the ground next to the Impala, they found a deceased black male with gunshot wounds to the head and right shoulder. Also at the scene, standing in the roadway, were four individuals: Ashley Williams, Viktavia Franklin, Michelle Mooney, and Jessie Cuerto.

Two of the young women identified themselves to the responding officers as Viktavia Franklin and Ashley Williams. The responding officers testified that Williams gave them a statement about the shooting. She acknowledged to them that the deceased man's name was Steve Brown, whom she had arranged to meet on Central Street. Initially, she related to them that a man approached her and Brown, pulled out a gun, and demanded that Brown give him his keys. Brown refused to give the man the keys, and instead pleaded with him. Brown then grabbed Williams and put her between him and the armed man. Williams struggled with Brown and managed to break free by removing her shirt. The armed man then pulled out a roll of duct tape and ordered Williams to tape Brown's hands. As she attempted to tape his hands, Brown broke free and ran to his vehicle, with the armed man chasing behind him. The armed man shot Brown as he was trying to get to his car.

The responding officers testified that Franklin also gave them a statement, which was largely corroborative of Williams' statement. Williams had been texting with Brown, and she made arrangements to meet him at the Central Street location. Franklin remained in Williams' car while Williams and Brown chatted outside. Franklin then saw Brown arguing with a man, who pointed a gun at Brown. Franklin saw Brown pull Williams in front of him, and then saw Williams trying to duct tape Brown's hands. Franklin said that when Williams broke free, Brown turned and ran toward his car. Franklin then heard a gunshot.

Officer Renee Smith of the OPSO testified that it was still dark outside at approximately 2:30 a.m. when she arrived at the crime scene with the crime scene investigation unit. Officer Smith photographed the crime scene, including the blood-splattered Impala later determined to be the victim's. Officer Smith's pictures show Brown lying on the ground next to his vehicle in a pool of blood. Brown had a piece of duct tape stuck to one hand, and his t-shirt was stuck in a gunshot wound to his shoulder. Officer Smith also photographed a bullet and a used .40 caliber shell casing that were found in the grass near the victim. Brown's cell phone was also collected as evidence.

Ofc. Humphrey testified, after he arrived at the scene, he was informed by Ofc. Rogers about the details she had gathered from Williams and Franklin regarding the shooting. Officer Humphrey testified that initially, several details of the women's story did not make sense to him. He was skeptical of Williams' claim that an unknown armed robber would try to get her to help by binding Brown with duct tape. Officer Humphrey was also skeptical about Williams' claim that she and Brown planned to meet at the location on Central Street, and that someone just "randomly" happened to walk by, in an area of vacant houses with no foot traffic, at that time to rob them. At the scene, Ofc. Humphrey placed Williams and Franklin in separate patrol vehicles and confiscated their cell phones. After Franklin was read her rights, she informed Ofc. Humphrey that the shooter was Williams' boyfriend. When Ofc. Humphrey informed Williams of her rights, she agreed to speak to him. Williams reiterated her claim that she did not know the shooter. Officer Humphrey instructed the other officers to take Franklin and Williams to the station, but with strict instructions to keep them separated. At the station, the women were again read their rights, and they were interviewed separately. Franklin repeated that the shooter was "Ashley's boyfriend." When Williams was confronted with Franklin's admission, she admitted that Coleman was the shooter. At the time, Williams maintained that she had no involvement in the shooting.

Officer Humphrey testified that later that morning, Williams' cell phone rang, and she was allowed to answer it on "speaker" setting. Officer Humphrey testified that the caller identified himself as "Capone," and said that he needed to be picked up from an attorney's office. Williams told the officers that "Capone" was a name that Coleman called himself, and she identified the caller as Coleman. Officer Jason Pleasant of the OPSO testified that he located Coleman at the attorney's office, where Coleman was arrested. Coleman's phone was seized. Officer Humphrey obtained search warrants for the cell phones and cellular service providers of all the cell phones collected.

Officers Humphrey and Bryan Boney conducted the initial unrecorded interview with Coleman. Both officers testified that Coleman denied knowing Brown or Williams and claimed that he had stayed with a friend the night before. Subsequently, Ofc. Pleasant spoke briefly with Coleman and informed him that police had other witnesses who were willing to testify about the shooting, and officers really wanted to hear his version of the incident. In response to Ofc. Pleasant's request, Coleman agreed to give a statement.

Officer Johnny Holyfield testified regarding Coleman's formal statement, and a video recording of the statement was played for the jury. In this recorded statement, Coleman claimed initially that the plan was devised by "the girls," but later stated that it was a setup planned by him and Williams because Coleman wanted to get money to get a friend out of jail. Coleman said that the plan was to get Brown's car keys and take his car. Coleman related that Williams had been texting with Brown after discovering him on a dating website. According to Coleman, he and Williams then created a "fake" page so they could continue talking to Brown and make arrangements to meet him. Coleman claimed that he got the gun and the duct tape from Williams and Franklin, who picked him up that day. Coleman said that once the meeting was arranged, Williams switched vehicles so that she was driving her brother's Malibu. Williams dropped Coleman off several streets away from Central Street. Coleman recounted that he and Williams continued texting once Brown arrived. Coleman told the officers that he was scared, and he had never done anything like that before. Coleman admitted that he walked up and asked Brown about his car, then pointed a gun at Brown and demanded the keys. Coleman confirmed that he ordered Williams to duct tape Brown's hands, but Brown broke free and grabbed Williams like a shield. Coleman said that Brown then shoved Williams into him, causing them both to fall. Coleman related that as he fell, the gun he was holding discharged, and Brown was hit.

Coleman said that he saw Brown on the ground, grabbed his gun, and ran off. Coleman told the officers that he left the gun wrapped in his shirt on top of a filing cabinet at the attorney's office. In his statement, Coleman claimed repeatedly that Brown was accidentally shot when the gun inadvertently discharged when dropped.

Officer Humphrey testified that the deputies were able to retrieve the gun, which was a .40 caliber Hi-Point semi-automatic pistol, and it was sent for testing at the crime lab. He further testified that the gun was not fingerprinted or swabbed for DNA because Coleman admitted that it was the gun used during the attempted armed robbery and shooting.

Officer Humphrey also testified that text messages retrieved from the cell phones confirmed Williams' involvement in planning the robbery and that Williams and Coleman were exchanging texts after Brown arrived and before Coleman walked up. Officer Humphrey also testified that, with the text messages retrieved, the officers were able to confirm testimony that Franklin's phone was used to lure Brown to the site to meet someone named "Brandy."

Trial Testimony: Forensic Evidence

Dr. Frank Peretti was accepted as an expert in forensic pathology and the classification of gunshot wounds. Dr. Peretti testified that he performed Brown's autopsy and concluded that the cause of death was a perforating gunshot wound to the left side of the victim's head that then exited the skull and entered the victim's right shoulder. The autopsy photographs show the entry gunshot wound was to the left temple area. Dr. Peretti testified that the "distant" entry gunshot wound was consistent with being made from over two feet away. Dr. Peretti testified that the shape of the gunshot wound to the head was inconsistent with Coleman's explanation that the gun discharged as he fell or when the gun hit the ground. Dr. Peretti testified that the round and circular entrance wound shape indicated that the shot to the head was straightforward and perpendicular, which was inconsistent with the oblong wound shape that would result from the gun being fired at an angle at or near the ground.

Troy Kendall Stracener with the North Louisiana Crime Lab was accepted as an expert in firearms identification and examination. Stracener testified that he received the gun, which had eight .40 caliber bullets in the magazine. He test-fired the gun using ammunition matching the type of ammunition found at the crime scene. Stracener testified that he determined that the bullet and casing found at the crime scene were fired from the gun that Coleman said he used during the attempted armed robbery and shooting (and that was found at the attorney's office where he said he left it).

Officer Larry Ludlow testified that he tested Williams' hands for gunshot residue, and the results indicated that she was nearby when a gun discharged or that she touched something with gunshot residue but that she did not actually fire a gun herself. Officer Ludlow testified that Coleman's hands were not tested for gunshot residue because, when officers found him at the attorney's office, he had just washed his hands, which would have washed away any gunshot residue.

Trial Testimony: Witnesses

Franklin also testified at trial. According to Franklin, at the time of Brown's murder, she was 17 years old and lived in Illinois, but was visiting in Monroe with family, including Williams, who was her cousin. Franklin related that she and Williams rode around town that day with Williams' boyfriend, Cortez Coleman. Williams drove, Franklin sat in the passenger seat, and Coleman sat in the back seat. Franklin related that Coleman talked about needing money in order to get his friend out of jail, and he talked about how much cars were worth. Coleman and Williams had been on a dating website, and as they drove around, Coleman recognized a vehicle that he had seen in someone's profile on the website. Williams and Coleman communicated with that person using Williams' cell phone (although Franklin testified she did not know who that person was at the time, the man is referred to herein by name-i.e. , Brown). Later on, they began to text Brown using Franklin's cell phone, and Williams arranged to meet Brown. Williams dropped Coleman at a gas station, drove around for about ten minutes and then returned to pick Coleman up. Franklin stated that Williams then switched vehicles with her brother, who owned a black Chevrolet Malibu. Next, Williams dropped Coleman in a neighborhood and then drove over and parked in the driveway of an abandoned house on Central Street. Williams then began texting on her phone. When Franklin asked why they were waiting there, she said that Williams told her they were waiting for Coleman.

Franklin described Brown (whom she claimed not to know) pulling up into the driveway behind them in a red car where he sat for a few minutes while Williams continued texting on her phone. According to Franklin, Brown eventually got out and walked up to Williams' car window, and then he walked over to Franklin's side of the car and got in on the rear passenger side. After ten minutes of chatting inside the vehicle, Williams and Brown stood outside the car and continued talking. Another man, whom Franklin said he did not recognize but turned out to be Coleman, then approached Williams and Brown. Franklin, who was still sitting in the car, estimated that the second man was 5' 5? tall. This second man, Coleman, asked for a cigarette, and he also asked who owned the red car. Franklin said that Brown responded that he had no cigarette, and the red car belonged to him. Coleman demanded Brown's keys, and Brown refused. Then Coleman pulled a gun from his waistband and Franklin heard a "clicking" sound. According to Franklin, Coleman pointed the gun at Brown. Franklin said that she screamed, and Coleman turned and pointed the gun at her and told her to shut up. Brown then grabbed Williams and used her as a shield. Coleman pulled a roll of duct tape from his pocket and demanded that Williams tape Brown's hands, but she refused. Franklin said Brown pleaded with Coleman before being shot, but Coleman insisted that Brown give him the keys. Franklin also said that Coleman told Brown to get in the trunk of his car and ordered Williams to tape Brown up, but Brown refused to get into the trunk. Williams then tried to tape Brown's hands, but he broke free, ran to his car, and opened the car door. According to Franklin, Coleman chased Brown. Franklin heard a gunshot and Williams screamed. Then Franklin saw Coleman run into the woods.

Franklin testified neither she nor Williams could find their phones, so they used the neighbor's phone to call 911. Franklin described the shooter as being short, with baggy clothes, and a hoodie. Franklin testified that she did not initially recognize Coleman as the shooter because she had only met him for the first time that day, and at the time of the shooting, it was very dark outside. Franklin testified that after the man ran into the woods, Williams told her that the shooter was Coleman. Franklin insisted that she did not know of any plan to rob Brown.

Williams testified at trial to the following. She was 21 years old at the time of the shooting; Williams admitted that she lied to the responding officers when she said she did not know the identity of the shooter; and, she lied when she gave a description to the 911 operator and the responding officers. Williams also admitted that she knew that Coleman was planning to rob Brown. Williams confirmed that she had been arrested and had pending charges for second degree murder and conspiracy to commit second degree murder, but said that she had no deal with the State in exchange for her testimony.

Williams testified that she had been dating Coleman about two months at the time of the shooting. According to Williams, Coleman always had a gun with him, and he called himself "Capone." Williams testified that Coleman had seen on Brown's dating website profile that Brown owned a red 1996 Chevrolet Impala, and Coleman wanted to steal the rims from Brown's car to help Coleman get his friend "Big Meat" out of jail. Williams testified that Coleman instructed her to contact Brown via the dating website so that they could set Brown up. Williams and Brown exchanged phone numbers and began texting. Williams confirmed that she, Franklin, and Coleman were riding around that day, and Coleman began texting Brown using Franklin's cell phone. Williams testified that she dropped Coleman off and then parked at Central Street to wait for Brown to arrive. Williams said that she was still texting with Coleman after Brown arrived that night, with Coleman telling her to get Brown out of the car. Brown walked around and got into the rear passenger side seat behind Franklin and began talking to them. Williams testified that Coleman then arrived at the site and demanded Brown's keys. When Brown refused Coleman's demand for the keys, Coleman threw the duct tape to her and ordered her to tape Brown up. Williams testified that, when Brown grabbed her like a shield, they struggled and somehow her shirt came off and she broke free of him. According to Williams, she ran off and turned to see Brown running to his car with Coleman chasing him. Williams testified that when Brown opened his car door, Coleman shot him. Then Coleman ran, and yelled "come on" at Williams and Franklin.

Michelle Mooney and her boyfriend Jesse Cuerto lived next door on the intersecting street of West Ransom Street. Mooney testified that she and Cuerto were woken up by the sounds of their dogs barking and people arguing, all of which were followed by a gunshot. Mooney testified that when she came outside, she saw an unknown black male running by-he yelled that his friend had been shot. Mooney then saw two young women come around the corner into the intersection, and they asked to use Mooney's phone to call 911. Mooney could not recall at trial the description that the woman who called gave of the man to the 911 operators.

Trial Testimony: Other Crimes Evidence

As explained herein, following a pretrial Prieur hearing, the trial court determined that evidence of Coleman's other crimes could be introduced at trial. In that vein, the state called Henry Lyons, the alleged victim of a shooting involving Coleman. Lyons claimed at trial that he had no memory of Coleman shooting him because he was intoxicated. In response, Ofc. Martin testified that on June 9, 2011, he found Henry Lyons in the East Carroll Hospital emergency room where he was being treated for two gunshot wounds. Officer Martin stated that Lyons did not appear to be under the influence of alcohol, did not smell of alcohol, did not slur his words, and did not have dilated pupils. Ofc. Martin stated that Lyons exhibited a normal and coherent demeanor, spoke clearly and distinctly, and appeared to understand all of the officer's questions. Lyons told Ofc. Martin that Coleman and his friend asked Lyons for a ride out to the dam so they could look for a bag. Once they got to the dam, the three men searched the area. Lyons related to Ofc. Martin that Coleman then pulled out a gun and began firing at Lyons. Some of the shots missed Lyons, but one struck him in the left knee. Lyons told the officer that, as he attempted to run away, Coleman shot him in the left hand. Lyons described that Coleman drove off in Lyons' burgundy 1996 Chevrolet Caprice. Lyons told the officer that he has 26-inch chrome rims on the vehicle, and he believed that Coleman wanted these rims. Officer Martin testified that the car was found abandoned with all four rims still intact, but with an empty gas tank. Officer Martin testified that Coleman was arrested three months later and charged with attempted murder and carjacking. An arrest warrant was issued when Coleman failed to appear for court on those charges, but the warrant was inadvertently not entered into the system so authorities were not alerted to search for Coleman on the 2011 charges.

Analysis

The evidence presented by the State in this case was sufficient to establish that Coleman was guilty of killing someone during the attempted commission of an armed robbery, in violation of La. R.S. 14:30.1. First, we consider Coleman's recorded statement to police, wherein he made several key admissions. Coleman admitted that he saw the car Brown owned and he conspired to commit armed robbery of the victim by taking his vehicle; he conspired with Williams to set Brown up so he would believe he was meeting a woman, and the pair worked to lure Brown to the vacant house on Central Street; he pointed a gun at Brown and demanded his keys and then tried to have Brown bound in duct tape; he needed money; and, Brown was shot with the gun that Coleman was using to rob him.

Second, the evidence refutes Coleman's description of the actual shooting, of which evidence was overwhelming. In his recorded statement, Coleman claimed that the gun discharged when he dropped it from his side. Most compelling to refute Coleman's claim is the forensic evidence. As explained in expert testimony by the forensic pathologist, Coleman's assertion that the gun discharged accidentally was not supported by the objective, scientific evidence as to the shape of the gunshot wound to Brown's head. Furthermore, this assertion that the gun discharged accidentally, based on Coleman's claim that Brown shoved Williams into Coleman, was inconsistent with the testimony of both Williams and Franklin-a reasonable credibility call clearly within the jury's discretion. Both Williams and Franklin testified that Brown attempted to escape by running to his vehicle and Coleman ran after him "with the gun." Then Coleman shot Brown. Thus, the witness accounts and the forensic evidence support a conclusion that Coleman intentionally shot Brown rather than that the shooting being inadvertent and accidental as described by Coleman.

Third, the facts surrounding the incident were confirmed by Williams, a participant and witness to the crime, and Franklin, a witness to the crime. Although there were obvious discrepancies in the women's initial statements to police and their trial testimony, there were no discrepancies in the essential facts establishing and supporting the charge that Coleman killed Brown during an attempted armed robbery. The testimony of Williams and Franklin at trial, despite some minor inaccuracies, was believable and sufficient to lead to the factual conclusion that Coleman committed the charged offense. Mooney, another witness at the scene, confirmed that she saw Coleman running away from the scene.

Finally, the admitted evidence indicated the shooting of Lyons was purposeful, and it buttressed the additional evidence that, in the killing of Brown, Coleman acted with intent, preparation, plan, and knowledge, and that the shooting was not an accident. Officer Martin recounted that Lyons described to him how Coleman lured him to a remote location, shot him numerous times, and stole his car with specialty rims-an uncanny harbinger of the incident leading to Brown's death. Clearly, the other crimes evidence tends to refute Coleman's claim that Brown was shot unintentionally, supporting the already significant evidence proving Coleman's guilt.

Thus, after viewing the evidence in the light most favorable to the prosecution, we find that the jury could have reasonably concluded that the essential elements of the crime for which Coleman was charged, i.e. , the second degree murder of Steve Brown, were proven beyond a reasonable doubt. This assignment is without merit.

Other Crimes Evidence

In his second assignment of error, Coleman states the trial court erred by allowing evidence of other crimes, acts, or wrongs. Specifically, he argues that the trial court erred in allowing trial testimony by Ofc. John Martin, already described herein, about a prior identification made by a victim, Henry Lyons, who identified Coleman as the person who shot him and stole his car in 2011. Coleman argues that Ofc. Martin's testimony was inadmissible because at trial, Lyons testified that he could not recall who shot him and because the 2011 charges were never proven. Further, Coleman asserts that the prejudicial effect of this other crimes evidence was not outweighed by the probative value of the evidence. We disagree.

Legal Principles

Courts may not admit evidence of other crimes to show the defendant as a person of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1) ; State v. Rose , 06-0402 (La. 02/22/07), 949 So.2d 1236 ; State v. Howard , 47,495 (La. App. 2 Cir. 11/14/12), 106 So.3d 1038.

The seminal case governing other crimes evidence, State v. Prieur, supra , has recently been amplified by the Louisiana Supreme Court's opinion in State v. Taylor , 16-1124, 16-1183 (La. 12/01/16), 217 So.3d 283. The court reaffirmed the majority of principles set forth in Prieur and its progeny and reiterated that La. C.E. art. 404B(1) governs the admissibility of other crimes, wrongs, or acts, provided that the prosecution establishes an independent reason for its admission, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Even when the evidence is offered for a purpose allowed under Article 404B(1), it must have substantial relevance independent from showing the accused's criminal character and is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. See State v. Taylor , supra at 292 ; State v. Colby , 51,907 (La. App. 2 Cir. 05/30/18), 244 So.3d 1260, 1272.

The trial court, in its gatekeeping function, must determine the independent relevancy of the evidence and balance the probative value of the prior bad acts evidence against its prejudicial effects before the evidence can be admitted. Huddleston v. United States , 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) ; State v. Miner , 17-1586 (La. 01/04/18), 232 So.3d 551 ; State v. Taylor, supra ; State v. Colby, supra ; see also , La. C.E. art. 403.

A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Parker , 42,311 (La. App. 2 Cir. 08/15/07), 963 So.2d 497, writ denied , 07-2053 (La. 03/07/08), 977 So.2d 896.

Analysis

On appeal, Coleman does not take issue with the trial court's pretrial determination of admissibility of evidence regarding Coleman's incident with Lyons, evidence tending to point to his intent, motive, preparation, plan, identity, and lack of accident in this case. Thus the issue faced by this court is not regarding the evidentiary standard applicable to the pretrial hearing, but the introduction of evidence at trial regarding Coleman's other crime and its applicability to the offense at hand. In other words, once the trial court determined at the pretrial Prieur hearing that the other crimes evidence against Coleman was admissible, was that evidence properly admitted during trial?

The state attempted to introduce the evidence of Coleman's other crime through the testimony of the purported victim, Lyons; however, as described herein, Lyons recanted on the stand. This court was already tasked with making the determination of the admissibility of Ofc. Martin's testimony in the state's writ application, and it was concluded that Ofc. Martin's testimony was admissible pursuant to State v. Johnson, supra . Considering the same issue, we again, on appeal conclude the disposition was correct.

As noted in State v. Taylor, supra at 294 :

[W]hile the rules of evidence are relaxed in a pre-trial hearing to determine what evidence may be offered at trial, the state will obviously be required to adhere to the rules of evidence when presenting evidence of the [other crimes] at trial. Should the state not properly present competent evidence at trial, the trial court may exclude the other crimes evidence at that time.

The Louisiana Supreme Court in State v. Johnson , supra at 80, articulated this very point:

Assuming a proper foundation, the credibility of any witness may be attacked by extrinsic evidence, including prior inconsistent statements. La. C.E. art. 607(D). Admission of the evidence, which bears solely on the issue of credibility, turns on a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. La. C.E. art. 607(D) ; State v. Owunta , 99-1569 (La. 5/26/00), 761 So.2d 528, 529 ; State v. Cousin , 96-2673 [96-2973] (La. 4/14/98), 710 So.2d 1065, 1071. When a non-party witness's credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt. Owunta , 99-1569 at 1, 761 So.2d at 529 ; Cousin , 96-2673 at 8-9, 710 So.2d at 1069. An exception to this general rule exists for cases in which the witness's prior inconsistent statement also constitutes a prior statement of identification for purposes of La. C.E. art. 801(D)(1)(c) ... [.] See United States v. Brink , 39 F.3d 419, 426 (3rd Cir. 1994) ("If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect." ). (Emphasis added).

So it is in the instant case. Lyons, despite identifying Coleman to Ofc. Martin earlier, failed to remember that he was shot by Coleman at the trial of this matter, thus failing to identify his shooter on the witness stand as he had before in his hospital bed. Therefore, in order to prove Lyons' identification and previous inconsistent statement to the officer, it was necessary for the State to introduce the testimony of Ofc. Martin at the trial-evidence which was not considered hearsay pursuant to La. C.E. 801(D)(1)(c). Because previous statements regarding identity by an eyewitness can be proved by the testimony of a person to whom the statement was made, i.e. , Ofc. Martin, the statement also can be given substantive effect. Therefore, the testimony of Ofc. Martin was wholly admissible, both to show that Lyons had previously and positively identified Coleman and for the substantive effect that he was shot by Coleman. See State ex rel. D.W., 09-855 (La. App. 5 Cir. 09/14/10), 47 So.3d 1048 ; State v. Collins , 01-1459 (La. App. 4 Cir. 08/21/02), 826 So.2d 598, writ denied , 02-2490 (La. 06/27/03), 847 So.2d 1254. The trial court did not err on this issue.

Coleman also contends that the probative value of the other crimes evidence does not outweigh its prejudicial effect. Although we have found the other crimes evidence relevant and otherwise admissible at trial under art. 801(D)(1)(c), we must conduct a balancing test pursuant to La. C.E. art. 403 which states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." Considering the weight of other evidence against Coleman, including the testimony of two eyewitnesses to the murder as well as compelling forensic evidence, we do not believe that the introduction of other crimes evidence created a danger of unfair prejudice, confusion, or misunderstanding by the jury. Because specific intent is an essential element of second degree murder, and also because Coleman claimed that he accidentally shot Brown when he dropped the gun, the evidence involving Lyons had significant relevance which would have substantially outweighed any alleged the unfair prejudice.

Inasmuch as a trial court's ruling on the admissibility of other crimes evidence will not be reversed absent an abuse of discretion, we conclude that the other crimes evidence was properly admitted at the trial of this matter, and the evidence is not substantially outweighed by the risk of undue or unfair prejudice to Coleman. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Cortez Coleman are affirmed.

AFFIRMED.

      When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, we first determine the sufficiency of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). We examine all the evidence considered by the jury, including evidence which may have been erroneously admitted. Id.

      At the time of trial, Cuerto was deceased.


author: WICKER, J.

text:
    Carlos RUSSELL and DeShannon Russell v. Michael G. JONES, Riley & Carroll Properties, Inc. and State National Insurance Company, Inc.
    NO. 18-CA-160
    Court of Appeal of Louisiana, Fifth Circuit.
    November 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CARLOS RUSSELL AND DESHANNON RUSSELL, Ron A. Austin, Harvey, Catherine H. Hilton, New Orleans, Lillian A. Williams
    COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL G. JONES, RILEY & CARROLL PROPERTIES, INC. AND ERNEST RILEY, Mark E. Young, Meredith R. Durham, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, STATE NATIONAL INSURANCE COMPANY, INC., Sean P. Mount, Anne E. Medo, Bryce M. Addison, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   WICKER, J.

Plaintiffs seek review of a judgment granting a motion to set aside a default judgment. For the following reasons, we find that the judgment appealed is not a final, appealable judgment, and this Court lacks jurisdiction to consider the merits of the appeal. Accordingly, for the reasons stated herein, we dismiss the appeal.

This litigation arises out of a July 21, 2012 motor vehicle accident. Plaintiffs, Carlos and DeShannon Russell, filed suit in 2013 against the defendant-driver, Michael Jones, Riley & Carroll Properties, defendant-driver's employer, and Ernest Riley, the owner of R & C, as well as R & C's alleged liability insurer, State National Insurance Company (SNIC). SNIC made payments initially but subsequently denied coverage and defense filed no responsive pleadings on behalf of Mr. Jones, Mr. Riley, or R & C. At some point in time, counsel for SNIC reported to plaintiffs' counsel that "SNIC had discovered that, at the time of the accident in question, Scottsdale Insurance Company carried general liability insurance coverage for Jones, Riley, and R & C."See Carlos Russell and DeShannon Russell v. Michael G. Jones, et al. , 17-585 (La. App. 5 Cir. 3/12/18), 239 So.3d 1083, 1085. Based on this information, plaintiffs amended their petition to include Scottsdale Insurance Company as a named defendant.

On June 11, 2015, plaintiffs presented evidence and obtained a default judgment against defendants, Mr. Jones, Mr. Riley, and R & C, in the amount of $154,255.72. On May 5, 2016, SNIC filed a motion to set aside the default judgment, contending that the judgment was an absolute nullity because SNIC-who plaintiffs had identified as a responsible insurer, a named defendant, and an adverse party in the litigation-was never served with notice of the hearing on the motion to confirm the default judgment or of the default judgment as it purports is required under La. C.C.P. art. 1913.

On December 5, 2017, the trial judge, citing a jurisprudentially created "interest of justice" exception set forth in Bridges v. Lyles, 10-1183 (La. App. 3 Cir. 3/9/11), 2011 WL 798940, 2011 La. App. Unpub. LEXIS 125, granted SNIC's motion to vacate the default judgment and vacated the June 11, 2015 default judgment. The record reflects that on January 25, 2018, more than thirty days from the date of the December 5, 2017 judgment, plaintiffs filed a motion for appeal seeking review of the court's December 5, 2017 judgment.

This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid, final judgment. See Input/Output Marine Sys. v. Wilson Greatbatch, Techs., Inc. , 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915. A "final judgment" is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation. La. C.C.P. art. 2083(A) ; Green Tree Servicing, LLC v. Edwards , 17-214 (La. App. 5 Cir. 11/15/17), 232 So.3d 688, 696. A final judgment is a judgment that "determines the merits in whole or in part," and an interlocutory judgment is one that "does not determine the merits but only preliminary matters in the course of the action." La. C.C.P. art. 1841 ; Davis v. Wong , 05-853, p. 3 (La. App. 5 Cir. 3/28/06), 927 So.2d 581, 583.

Upon our review of the record in this matter, we find that the judgment appealed is not a final, appealable judgment. We find that a judgment granting a motion to vacate a default judgment-which maintains the litigation at the trial court level and does not determine in whole or in part the merits of the underlying action-is not a final, appealable judgment.

Compare Bank of N.Y. v. Holden , 15-466 (La. App. 5 Cir. 12/23/15), 182 So.3d 1206, 1208 (wherein this Court found that a judgment vacating a dismissal of an action as abandoned under La. C.C.P. art. 561, which maintains the action, is an interlocutory judgment). Therefore, we find we do not have jurisdiction to consider the merits of this appeal. Accordingly, we dismiss the appeal and, consequently, further deny as moot the pending "Motion to Reinstate Oral Argument" and "Motion to Strike Appellee Brief" filed in connection with this appeal.

APPEAL DISMISSED; MOTION TO STRIKE DENIED AS MOOT; MOTION TO REINSTATE ORAL ARGUMENT DENIED AS MOOT

      Plaintiffs also named their own UM carrier, Progressive Paloverde Insurance Company.

      La. C.C.P. art. 1913 in part provides:
      A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
      B. Notice of the signing of a final default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exception, answer, or other pleading, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.
      C. Except when the service is required under Paragraph B of this Article, notice of the signing of a final default judgment shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
      D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

      In their appellate brief, appellees assert that plaintiffs first filed in the trial court a notice of intent to apply for a supervisory writ from the judgment at issue and, further, that the trial court set a January 4, 2018 return date. However, these documents are not included in the designated record on appeal.


author: MOLAISON, J.

text:
    Tracy VINCE and Joann Vince ON BEHALF OF SOUTHLAND EXPRESS, LLC v. METRO REDISCOUNT COMPANY, INC., Brian Brennan And Frank J. Adolf
    NO. 18-CA-237
    Court of Appeal of Louisiana, Fifth Circuit.
    November 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TRACY VINCE, JOANN VINCE AND SOUTHLAND EXPRESS, LLC, James E. Cazalot, Jr., Slidell
    COUNSEL FOR DEFENDANT/APPELLEE, BRIAN BRENNAN, Dominick F. Impastato, III, New Orleans
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
   MOLAISON, J.

The plaintiffs appeal a judgment that granted the defendant's exception of no cause of action. We affirm.

STATEMENT OF THE CASE

According to the record before us, on January 30, 2008, plaintiffs/appellants, Tracy Vince and JoAnn Vince, individually and on behalf of Southland Express, L.L.C. ("Southland"), entered into a "Business Manager Agreement" with defendant, Metro Rediscount Company, Inc. ("Metro"), pertaining to the sale of certain receivables arising from the "sales or services to [Southland's customers.]" The contract provided that Metro would "retain a portion of the sums payable" from Metro to Southland "to provide for satisfaction of [Southland's] Repurchase Obligation." Trace Vince and JoAnn Vince acted as personal guarantors for the contract, which was accepted by Frank Adolf ("Adolf"), in his capacity as president of Metro. Also executed on January 30, 2008, were three separate commercial security agreements in favor of Metro by Southland, JoAnn Vince, individually, and Tracy Vince, individually.

On December 31, 2012, plaintiffs/appellants, Tracy Vince and JoAnn Vince, individually and on behalf of Southland, filed a petition in the Twenty-Fourth Judicial District Court for damages against defendants, Metro, appellee Brian Brennan ("Brennan"), and Adolf, alleging that defendants owed Southland a balance of $527,101.57 on an open account. On March 18, 2013, defendants filed an answer, as well as exceptions of no cause of action and no right of action. The trial court granted defendants' exceptions on September 17, 2013, and gave leave for appellants to amend and supplement their petition "at any time" prior to when the matter was set for trial.

Appellants filed their first amended and supplemental petition for damages on September 1, 2016. On October 19, 2016, Brennan filed an answer to Southland's amended and supplemental petition, and also set forth various exceptions, raised affirmative defenses and asserted cross-claims against defendants Adolph, Metro, and Metro Rediscount Company of Kenner II, L.L.C. ("Metro II"), as Metro's successor in interest. On November 3, 2017, Brennan filed a "motion for summary judgment and/or exception of no cause of action", which was heard by the trial court on December 13, 2017. On that same date, the trial court granted Brennan's exception of no cause of action, dismissing all claims against him with prejudice. The trial court further determined that Brennan's motion for summary judgment was moot. Appellants thereafter timely sought the instant devolutive appeal.

ARGUMENTS AND ANALYSIS

Appellants' sole assignment of error is that the trial court erred in granting Brennan's exception of no cause of action, when the petition and amended petition alleged sufficient facts to establish causes of action for fraud and the liability of Brennan as a corporate officer.

The function of an exception of no cause of action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleadings. City of New Orleans v. Bd. of Dirs. of the La. State Museum , 98-1170 (La. 3/2/99), 739 So.2d 748, 755. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Therefore, an exception of no cause of action is triable solely on the face of the petition.

In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition. City of New Orleans v. Bd. of Comm'rs , 93-0690 (La. 7/5/94), 640 So.2d 237, 253. "[A]n exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings." Haskins v. Clary, 346 So.2d 193, 195 (La. 1977).

In appellants' original petition, Brennan was named as a defendant and identified as "Officer/Vice-President/Secretary of Metro Rediscount Company, Inc." Adolph was identified as the "Officer/President" of Metro. The factual allegations in the original petition, in summary, were that Southland contracted with Metro to collect payments from Southland's customers in Jefferson Parish. At a certain point in time, payments to Southland from Metro started to be returned from the bank for non-sufficient funds. Southland contacted Adolph directly and "requested he immediately cease accepting payments from Southland's customers." Southland alleged that Adolf continued to collect Southland's customer payments and submit checks to Southland that were returned by the bank as non-sufficient. Southland claimed that it terminated its relationship with Metro while Metro still allegedly owed it customer funds in the amount of $527,101.57.

The only factual allegation pertaining to Brennan in the original petition was that, "Joann Vince has also spoken to Metro's other Officer/Vice-President/Secretary, Brian Brennan, on multiple occasions who continues to indicate Adolf will handle this outstanding matter with Southland directly."

In its first and supplemental petition for damages, with respect to Brennan, Southland asserted that:

When payments received by Southland from Metro began to be returned from the bank as non-sufficient, Southland contacted Metro, through defendants, Frank Adolf and Brian Brennan, and requested they immediately cease accepting payments from Southland's customers. Those requests were ignored. Defendants, despite knowing that they had no authority to do so, continued to fraudulently collect Southland customer payments and failed to notify Southland that they were collecting customer payments on accounts never assigned to them and for which Metro had no authority to endorse. Defendants continued to submit checks to Southland that defendants knew were not backed by sufficient funds and would not be honored, thereby misrepresenting their value to Southland. Adolf and Brennan, acting through Metro, intentionally deceived and defrauded Southland through these worthless checks and the continued unauthorized collection of payments owed to Southland.
...
The scheme of intentional fraud by Frank J. Adolph and Brian Brennan, performed through Metro, makes them personally liable for the damages caused thereby and all amounts owed to third party creditors such as plaintiffs herein as well as attorneys' fees and punitive damages as permitted by law.

On its face, the supplemental petition first alleges that Brennan's role in causing the alleged damages was in his capacity as an Officer/Vice President/Secretary. However, the petition also alleges that certain acts of intentional fraud committed by Brennan through Metro make him personally liable to appellants.

In opposing Brennan's exception of no cause of action below, appellants argued:

As shown above, the plaintiff alleged the existence of a business relationship and the repeated issuance of bad checks by the Defendants and the repeated assurances by the Defendants that they would make the checks good. Even after the Plaintiffs tried to stop the Defendants from gaining access to the new checks issued by customers, the Defendants continued to cash the checks. Taking these allegations as true for the Exception of No Cause of Action, the Plaintiffs have set forth sufficient allegations to support a cause of action for fraud. Therefore, the Exception of No Cause of Action should be denied.
...
On the fact [sic] of the pleadings, Brian Brennan was identified as a corporate officer. It is clear from the pleadings that Metro owed Southland a duty of care. It is also clear from the pleadings that the duty was at least in part delegated to Brian Brennan as he was in regular communication with Southland especially over the bounced checks: The allegations in the pleadings indicate that Brian Brennan simply did nothing about the problem.

Brennan, however, asserts that appellants have failed to plead facts that would support his personal liability for the corporation's acts.

Corporations are distinct legal entities, separate from the individuals who comprise them. La. R.S. 12:219. Thus, if the officers and directors do not purport to bind themselves individually, they do not incur personal liability for the debts of the corporation. An exception to this rule arises when an officer or director, acting through the corporation, defrauds or deceives a third party. Young v. Adolph , 02-67 (La. App. 5 Cir. 5/15/02), 821 So.2d 101, 107. Thus, in the instant case, in order for appellants to effectively assert a cause of action against Brennan in his personal capacity, the petition would need to allege that Brennan committed an act of fraud as an officer of Metro while having a personal duty toward them, beyond a general administrative responsibility. See , Manning v. United Med. Corp., 04-0035 (La. App. 4 Cir. 4/20/05), 902 So.2d 406.

La. C.C. art. 1953 defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." Fraud may result from silence or inaction. To prevail on an action for fraud in this case, appellants must show by a preponderance of the evidence that they reasonably relied upon and were injured by a misrepresentation of a material fact made by Brennan with the intent to deceive. In pleading fraud, the circumstances constituting fraud must be alleged with particularity. La. C.C.P. art. 856. The specific intent to deceive is a necessary element of fraud, and fraud cannot be predicated upon mistake or negligence. Terrebonne Concrete, L.L.C. v. CEC Enters., L.L.C., 11-0072 (La. App. 1 Cir. 8/17/11), 76 So.3d 502, 509, writ denied sub nom., 11-2021 (La. 11/18/11), 75 So.3d 464.

Notably, the acts alleged in appellants' original petition do not differ in the amended petition. What does differ in the amended petition is appellants' assertion that Brennan had joined Adolph in the previously alleged acts of continuing to collect payments from Southland's customers without authorization and writing checks to Southland that were not backed with sufficient funds. Also, Southland ties all of the alleged acts together under a common scheme of fraud.

"Louisiana has chosen a system of fact pleading." 831 Bartholomew Investments-A, L.L.C. v. Margulis , 08-0559 (La. App. 4 Cir. 9/2/09), 20 So.3d 532, 538. "Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition." Id. at 538. "However, the mere conclusions of the plaintiff unsupported by facts does [sic] not set forth a cause of action." Id. A court may not consider legal conclusions "clothed as fact." Hooks v. Kennedy , 06-0541 (La. App. 1 Cir. 5/4/07), 961 So.2d 425, 431-32, writ denied , 07-1788 (La. 11/9/07), 967 So.2d 507. Simply stated, courts "are not compelled to accept a party's legal conclusions as facts." Id. at 432.

Louisiana recognizes four exceptions where a director can be held personally liable for a corporation's negligence. The personal duty requirement was detailed by the Louisiana Supreme Court in Canter v. Koehring Co., 283 So.2d 716 (La. 1973), as part of the fourth exception, which is stated as follows:

With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

Id. at 721.

In B-G & G Investors VI, L.L.C. v. Thibaut HG Corp. , 08-0093 (La. App. 4 Cir. 5/21/08), 985 So.2d 837, the Fourth Circuit considered the issue of whether corporate officers owed a personal duty to the plaintiff in a breach of contract case. In that matter, the plaintiff had entered into a purchase agreement for an apartment complex with defendant, Thibaut HG Corporation. After a survey revealed the existence of a fourteen-foot encroachment on the driveway that could limit the number of parking spaces available, the plaintiff sued Thibaut HG Corporation, and two of its corporate officers, alleging that defendants had intentionally and/or negligently withheld information concerning the encroachment. The corporate officers filed an exception of no cause of action, which the trial court granted. On appeal, the court upheld the granting of the exception, reasoning:

Regarding the tort claim, we note that Louisiana law does not generally recognize a cause of action by third parties against officers or directors of a corporation for tortious conduct (negligence, mismanagement, breach of fiduciary duty, etc.) attributable to the corporation, or for the debts of the corporation. See La. R.S. 12:93 (B) ; Manning v. United Medical Corp. of New Orleans , 04-0035, p.7 (La. App. 4 Cir. 4/20/05), 902 So.2d 406, 411. In Manning , this court held that personal liability cannot be imposed upon a corporate officer simply because of the officer's general administrative responsibility for the performance of some corporate function; instead, the officer must have a personal duty towards the plaintiff. Id. In the instant case, the petition does not allege any such personal duty on the part of Mr. Thibaut or Ms. Rusch. In fact, all the allegations of the petition are asserted against all three defendants collectively, lumping the two individual defendants in with the corporation. Therefore, on the face of the petition, it does not state a cause of action in tort against Mr. Thibaut or Ms. Rusch.

Id. at 841-42.

In the instant case, appellants' petition does not allege that Brennan is an owner of Metro or Metro II, nor does the petition allege that Brennan was a signatory to the contract entered into between appellants and Metro. Appellants do not state in the petition that Brennan himself serviced the Southland account, issued insufficient checks from Metro to Southland, or improperly contacted Southland's customers to collect payment.

In appellants' original petition, the only allegation against Brennan was that he told appellants that Adolph would "handle" the "outstanding matter with Southland directly." Nowhere in the petition does the word "fraud" appear. In their amended petition, appellants set forth the same basic set of facts alleged against Adolph in the original petition, except the actions were re-classified as fraudulent, and Brennan was accused of having the same liability as Adolph. We find that, on the face of the petition, appellants failed to plead, with particularity, sufficient facts by Brennan that constituted fraud. Instead, similar to the facts of B-G & G Investors VI, L.L.C., supra , the petition in the instant case "lumps in" Brennan with the co-defendants, Adolph and Metro, but does not allege with any specificity which acts were allegedly performed by Brennan.

Next, appellants have not alleged facts that indicate Brennan owed them any personal duty as a corporate officer. As discussed above, the petition itself does not establish that Brennan had responsibilities at Metro beyond those of a "general administrative" nature. Thus, we cannot say that appellants' petition asserts any personal duty to them by Brennan.

Based on the foregoing, and following our de novo review, we cannot say that the trial court erred in finding that the law does not afford a remedy to appellants against Brennan for personal liability, based on the alleged facts. Further, in light of the fact that appellants were previously granted leave to amend their original petition, we see no error in the trial court's refusal to allow appellants to amend the petition a second time. See La. C.C.P. art. 934.

Decree

The judgment of the trial court, dismissing Brennan from the proceedings with prejudice, is affirmed.

AFFIRMED

      The agreement was attached as Exhibit 5 to appellant's original petition.

      The three commercial security agreements were attached to appellant's original petition as Exhibits 6A, 6B, and 6C.

      The record before us indicates that Adolph, Metro, and Metro II also filed an answer and exceptions to appellants' amended and supplemental petition for damages; however, it does not appear that those particular claims had been ruled upon by the trial court prior to this appeal.

      Brennan filed a "hybrid" "motion for summary judgment and/or exception of no cause of action" in a single pleading. A "hybrid" pleading, which uses two separate evidentiary standards, and which the trial hears simultaneously, creates a scenario whereby the trial court may have evidence before it appropriate for one motion (i.e. summary judgment) and not the other (i.e. exception of no cause of action.) The fluidity of the proceedings was articulated by Brennan's counsel at the hearing itself, "[w]e are here on an exception of no cause of action and also motion for summary judgment either together or any alternative, however the case may be."
      An exception of no cause of action is triable solely on the face of the petition. Here, no evidence was formally introduced into the record at the December 13, 2017 hearing. Further, the trial court clearly made its ruling in the context of Brennan's exception of no cause of action. It cannot be determined from the record what the trial court's reasons were for granting Brennan's exception of no cause of action, or on what considerations its judgment was based upon. However, in this case, we do not find that the evidence attached to the motion for summary judgment was "admitted" at the hearing for purposes of the exception of no cause of action and, therefore, the pleadings have not been enlarged for purposes of the exception. Accordingly, for purposes of our de novo review of the exception, we limit our review to the petition and amended petition.

      This decision was superseded on other grounds by an amendment to La. R.S. 23:1032 as recognized in Walls v. American Optical Corp. , 98-0455 (La. 9/8/99), 740 So.2d 1262, 1265.

      At the conclusion of the December 13, 2017 hearing on the exception of no cause of action, the trial court stated:
      ... The Court is going to grant the exception of no cause of action as it relates to Brian Brennan. In light of the fact that this exception has already been granted and time has been given and the petition has been already amended, the Court is going to again grant that exception and not allow any further amendment of the pleading as it relates to Brian Brennan. The Court therefore grants it and dismisses the case as it relates to Brian Brennan personally.

      This article provides: "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."